Republic of the Philippines long bolo (sundang) which the accused had provided himself
for the purpose, thereby inflicting upon Felipe Lagera:
Supreme Court
Manila
FIRST DIVISION
People vs. Rebucan
DECISION
LEONARDO DE CASTRO, J.:
Assailed before this Court is the Decision[1] dated August 21, 2007 of
the Court of Appeals in CA-G.R. CR.-H.C. No. 00282, which modified the
Decision[2] dated November 3, 2003 of the Regional Trial Court (RTC) of
Carigara, Leyte, Branch 13, in Criminal Case No. 4232. In the Decision of the
Court of Appeals, the accused-appellant Rosendo Rebucan y Lamsin was
adjudged guilty beyond reasonable doubt of two (2) separate counts of murder
and was sentenced to suffer the penalty of reclusion perpetua for each count.
On January 23, 2003, the accused-appellant was charged with the
crime of double murder in an Information, the accusatory portion of which
reads:
That on or about the 6th day of November, 2002, in
the Municipality of Carigara, Province of Leyte, Philippines
and within the jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent to kill, with treachery
and evident premeditation and abuse of superior strength, did
then and there willfully, unlawfully and feloniously attack,
assault and wound FELIPE LAGERA Y OBERO, 65 years old
and RANIL TAGPIS Y LAGERA, 1 year old, with the use of a
Hypovolemic shock, massive blood loss and multiple
hacking wounds upon Ranil Tagpis:
Hypovolemic shock, massive blood loss and hacking
wound, head[,] which wounds caused the death of Felipe
Lagera y Obera and Ranil Tagpis y Lagera, immediately
thereafter.[3]
When arraigned on February 10, 2003, the accused-
appellant pleaded not guilty to the charge.[4] Trial, thereafter, ensued.
The prosecution presented as witnesses: (1) Dr. Ma. Bella V.
Profetana, Municipal Health Officer of Carigara, Leyte; (2) Carmela Tagpis, the
5-year-old granddaughter of the victim Felipe Lagera and sister of the victim
Ranil Tagpis, Jr.;[5] (3) Adoracion Lagera, the wife of Felipe Lagera; and (4)
Alma Tagpis, the daughter of Felipe Lagera and mother of Ranil Tagpis, Jr.
Dr. Profetana testified that she conducted a post-mortem examination
on the body of the victim Felipe Lagera on November 6, 2002. She stated that
Felipe sustained three hacking wounds, the first of which was located at his
right arm and was about 23x2x4 centimeters. The said wound was fatal and
could have been caused by a sharp instrument such as a bolo. The second
wound was located at Felipes nose maxillary area,[6] measuring 13
centimeters, with an inverted C shape. The second wound was not fatal and
could have been caused by a sharp-edged instrument like a bolo. The third
wound was located at Felipes left arm and was measured as 9x1x1.5
centimeters. The said wound was fatal and could have likewise been caused
by a sharp-edged instrument. Dr. Profetana concluded that the causes of
death of Felipe were hypovolemic shock, massive blood loss and multiple
hacking wounds. She also conducted a post-mortem examination on the body
of Ranil Tagpis, Jr. on the aforementioned date. The results revealed that Ranil
sustained a hacking wound at the fronto-temporal area[7] with a skull
fracture. In the case of Ranil, the cause of death was hypovolemic shock
secondary to massive blood loss secondary to [the] hacking wound to the
head.[8] The instrument that was most likely used was sharp-edged like a
bolo.[9]
 Carmela Tagpis testified as an eyewitness to the incident in
question. She pointed to the accused-appellant as the Bata Endong[10] (Uncle
Endong) who hacked her grandfather and brother. She stated that Ranil was
hit in the forehead, while Felipe was hit on the face, the left shoulder and the
right shoulder. After Felipe was hacked by the accused-appellant, the former
was still able to walk outside of his house, to the direction of the coconut tree
and thereafter fell to the ground. Carmela said that she saw that a long bolo
was used in the killing of Felipe and Ranil. She related that Felipe also owned
a bolo but he was not able to use the same when he was attacked. She was
then inside the house with Felipe and her two younger brothers, Jericho and
Bitoy (Ranil). She was sitting about four meters away when the hacking
incident occurred indoors.[11]
On cross-examination, Carmela stated that at the time of the incident,
she was playing with a toy camera inside the house and she was situated
beside a chicken cage, near a bench. Felipe was also there near the bench
and he was carrying Ranil in his right arm. When asked whether the accused-
appellant came inside the house in a sudden manner, Carmela answered in
the affirmative. She insisted that Ranil was indeed carried by Felipe when the
accused-appellant entered the house. She said that no fight or altercation
occurred between Felipe and the accused-appellant. After Felipe was hacked,
he immediately ran outside of the house. Carmela and Jericho then ran to the
back of the house.[12]
Adoracion Lagera testified that at 4:00 p.m. on November 6, 2002, she
was at the house of a certain Justiniano Rance. After arriving there, she was
fetched by a little boy who told her to go home because Felipe had been
hacked. She ran towards the direction of her house. When she got there, she
saw the lifeless body of Felipe sprawled on the ground. She then went inside
the house and found her daughter, Alma Tagpis, cuddling the body of Ranil
whose head was wounded. She told Alma to look for a motor vehicle to bring
the child to the hospital. She also found out that the other two children,
Carmela and Jericho, hid when they saw Felipe being hacked. When she
asked them who went to their house, Carmela told her that it was the accused-
appellant who entered their house and hacked the victims.[13]
Alma Tagpis testified that at about 4:00 p.m. on November 6, 2002,
she was in Brgy. Sogod, having their palay (unhusked rice grain)
milled. Shortly thereafter, she went home and proceeded to the house of her
father, Felipe, where she left her children. She then met a person looking for
her mother who was about to tell the latter that Felipe was hacked. When she
rushed to Felipes house, she saw him lying in the grassy place, wounded and
motionless. She asked Felipe who hacked him, but he was not able to answer
anymore. She went inside the house and saw blood on the floor and the feet
of her son Ranil.Thinking that the killer was still inside, she went to the back of
the house and pulled a slot of board on the wall so she could get inside. Upon
seeing the body of Ranil, she took him and ran towards the road.She was able
to bring Ranil to the hospital, but the doctor already pronounced him dead. Her
other two children, Carmela and Jericho, soon arrived at the hospital with the
police. When she asked them who killed Felipe, Carmela answered that it was
the accused-appellant.[14]
Thereafter, the prosecution formally offered the following documentary
evidence, to wit: (1) Exhibit A the Post-mortem Examination Report on
Felipe;[15] (2) Exhibit B the sketch of the human anatomy indicating the wounds
sustained by Felipe;[16] (3) Exhibit C the Certificate of Death of Felipe;[17] (4)
Exhibit D the Post-mortem Examination Report on Ranil;[18] (5) Exhibit E the
sketch of the human anatomy indicating the wounds sustained by Ranil;[19] and
(6) Exhibit F the Certificate of Death of Ranil.[20]
The defense, on the other hand, presented the following witnesses,
namely: (1) Raymond Rance, the stepson of the accused-appellant; (2)
Renerio Arminal,[21] the barangay chairperson of Brgy. Canlampay, Carigara,
Leyte; (3) Arnulfo Alberca, a member of the Philippine National Police (PNP)
stationed at Carigara, Leyte; and (4) the accused-appellant Rosendo Rebucan
y Lamsin.
Raymond Rance testified that his mothers name is Marites Rance. The
accused-appellant is not his biological father but the former helped in providing
for his basic needs. He narrated that on the night of July 18, 2002, he saw
Felipe Lagera inside their house. Felipe placed himself on top of Raymonds
mother, who was lying down. Raymond and his younger sister, Enda, were
then sleeping beside their mother and they were awakened. His mother kept
pushing Felipe away and she eventually succeeded in driving him out. In the
evening of July 20, 2002, at about 11:00 p.m., Raymond recounted that he
saw Felipes son, Artemio alias Timboy, inside their house. Timboy was able
to go upstairs and kept trying to place himself on top of Raymonds mother. The
latter got mad and pushed Timboy away. She even pushed him down the
stairs. The accused-appellant was working in Manila when the aforesaid
incidents happened. Raymond said that his mother thereafter left
for Manila. Subsequently, he saw the accused-appellant at the house of a
certain Bernie, several days after the accused-appellant arrived in Leyte. He
told the accused-appellant about the incidents involving Felipe and
Timboy. On November 6, 2002, Raymond and the accused were already living
in the same house. On the said date, the accused-appellant left their house
after they had lunch and he told Raymond that he was going to call the latters
mother. Raymond testified that the accused-appellant is a good man and was
supportive of his family. He also stated that the accused-appellant seldom
drank liquor and even if he did get drunk, he did not cause any trouble.[22]
Renerio Arminal testified that on November 6, 2002, the accused-appellant
surrendered to him. The latter came to him alone and told him that he (the
accused-appellant) fought with Felipe Lagera. Arminal then ordered the
human rights action officer, Ricky Irlandez, and the chief tanod, Pedro Oledan,
to bring the accused-appellant to the police station. Afterwards, the police
officers came to his place and he accompanied them to the house of Felipe. [23]
Arnulfo Alberca was likewise called upon to the witness stand to prove that the
voluntary surrender of the accused-appellant was entered into the records of
the police blotter. He was asked to read in open court the Police Blotter Entry
No. 5885 dated November 6, 2002, which recorded the fact of voluntary
surrender of the accused-appellant. His testimony was no longer presented,
however, since the prosecution already admitted the contents of the blotter. [24]
The accused-appellant testified that he arrived in Carigara, Leyte
from Manila on August 15, 2002. He went to the house of his elder brother,
Hilario, to look for his children. There, he learned that his wife went
to Manila and his brother was taking care of his two children and his stepson,
Raymond. On November 2, 2002, he saw Raymond at the place of his friend,
Bernie Donaldo. He asked Raymond why the latters mother went
to Manila and he was told that, while he was still in Manila, Felipe and Timboy
Lagera went to their house and tried to place themselves on top of his wife. He
then said that he harbored ill feelings towards the said men but he was able to
control the same for the sake of his children. On November 6, 2002, at about
2:00 p.m., he went to the house of barangay chairperson Arminal to place a
call to his wife who was in Manila. He was carrying a bolo at that time since he
was using the same to cut cassava stems in his farm. When he talked to his
wife, she confirmed that she was sexually molested by Felipe and
Timboy. Thereafter, as the accused-appellant proceeded to go home, it rained
heavily so he first sought shelter at the place of his friend, Enok. The latter was
drinking gin and he was offered a drink.After staying there and drinking for half
an hour, the accused-appellant decided to go home. Afterwards, he
remembered that he had to buy kerosene so he went to the store of Felipe
Lagera.[25]
The accused-appellant further testified that when he reached the house of
Felipe, the latter was feeding chickens. When Felipe asked him what was his
business in going there, he confronted Felipe about the alleged sexual abuse
of his wife. Felipe allegedly claimed that the accused-appellant had a bad
purpose for being there and that the latter wanted to start a fight. Accused-
appellant denied the accusation and responded that Felipe should not get
angry, as it was he (Felipe) who committed a wrong against him and his
wife. Felipe allegedly got mad and hurled the cover of a chicken cage at him,
but he was able to parry it with his hand. The accused-appellant then drew his
long bolo and hacked Felipe on the left side of the abdomen, as the latter was
already turning and about to run to the house. He also went inside the house
since Felipe might get hold of a weapon. When they were both inside and he
was about to deliver a second hacking blow, Felipe held up and used the child
Ranil as a shield. As the second hacking blow was delivered suddenly, he was
not able to withdraw the same anymore such that the blow landed on
Ranil. When he saw that he hit the child, he got angry and delivered a third
hacking blow on Felipe, which landed on the right side of the latters
neck. Thereafter, Felipe ran outside. He followed Felipe and hacked him
again, which blow hit the victims upper left arm. At that time, Felipe was
already on the yard of his house and was about to run towards the road. He
then left and surrendered to the barangay chairperson.[26]
During his cross-examination, the accused-appellant said that he was a bit
tipsy when he proceeded to Felipes house, but he was not drunk. When Felipe
ran inside the house after the first hacking blow, the accused-appellant stated
that he had no intention to back out because he was thinking that the victim
might get a gun and use the same against him. The accused-appellant also
asserted that when he was about to deliver the second hacking blow, Felipe
simultaneously took Ranil who was sitting on a sack and used him to shield
the blow. There was a long bolo nearby but Felipe was not able to take hold of
the same because the accused-appellant was chasing him. He admitted that
he had a plan to kill Felipe but claimed that when he arrived at the latters house
on the day of the attack, he had no intention to kill him.[27]
The defense also presented the following documentary evidence: (1) Exhibit 1
the Police Blotter Entry No. 5885 dated November 6, 2002; [28] and (2) Exhibit
2 the Civil Marriage Contract of Rosendo Rebucan and Marites Rance.[29]
On November 3, 2003, the RTC rendered a decision, convicting the
accused-appellant of the crime of double murder. The trial court elucidated
thus:
[In view of] the vivid portrayal of Raymond on how [the wife of
the accused] was sexually abused by the father and son
Lagera, the accused hatched a decision to avenge his wifes
sexual molestation. Days had passed, but this decision to kill
Felipe did not wither, instead it became stronger, that on the
6th of November 2002, he armed himself with a sharp long
bolo known as sundang and went to Brgy. Canlampay,
Carigara, Leyte where the victim live[d]. Fueled by hatred and
the spirit of London gin after consuming one bottle with his
compadre Enok, he decided to execute his evil deeds by
going to the house of Felipe Lagera, in the guise of buying
kerosene and once inside the house hacked and wounded the
victim, Felipe Lagera who was then holding in his arm his
grandson, one and half years 1 old, Ramil Tagpis, Jr.
The manner by which the accused adopted in killing
the victim, Felipe Lagera, and Ramil Tagpis, Jr. was a
premeditated decision and executed with treachery.
xxxx
There is credence to the testimony of the minor
eyewitness Carmela Tagpis that the victim, Felipe was
holding in his arms her younger brother, Ramil Tagpis,
Jr. inside his house, when the accused entered, and
without any warning or provocation coming from the
victim, the accused immediately delivered several
hacking blows on the victim giving no regard to the
innocent child in the arms of Lagera. With this precarious
situation, the victim who was unarmed has no
opportunity to put up his defense against the unlawful
aggression of the accused, moreso, to
retaliate. Moreover, what defense could an innocent 1 1/2
years old Ramil Tagpis, Jr. put up against the armed and
superior strength of the accused, but to leave his fate to God.
The circumstance that the attack was sudden and
unexpected and the victims, unarmed, were caught totally
unprepared to defend themselves qualifies the crime
committed as murder. x x x.
After the incident, the accused Rosendo Rebucan
immediately went to the house of Brgy. Chairman, Renerio
Arcenal at sitio Palali, Brgy. Canlampay, Carigara, Leyte, to
surrender, because he killed Felipe Lagera and Ramil Tagpis,
Jr. The Brgy. Chairman instructed his Brgy. Human Rights
Action Officer, Ricky Irlandez and his Chief Tanod, Pedro
Oledan to bring Rosendo to the Police Authorities of
Carigara, Leyte. This fact of voluntary surrender was
corroborated by Police Officer Arnulfo Alberca, who presented
to Court the police blotter, under entry No. 5885, dated
November 6, 2002, of the PNP, Carigara, Leyte.
Clearly, the act of the accused in surrendering to the
authorities showed his intent to submit himself unconditionally
to them, to save the authorities from trouble and expenses
that they would incur for his capture. For this reason, he has
complied with the requisites of voluntary surrender as a
mitigating circumstance[.] x x x.
 From the circumstances obtaining, the mitigating
circumstances of admission and voluntary surrender credited
to the accused are not sufficient to offset the aggravating
circumstances of: a) evident premeditation; b) treachery
(alevosia); c) dwelling the crime was committed at the house
of the victim; d) intoxication the accused fueled himself with
the spirit of London gin prior to the commission of the crime;
e) abuse of superior strength; and f) minority, in so far as
the child victim, Ramil Tagpis, Jr. is concerned, pursuant to
Article 63 of the Revised Penal Code as amended. x x x.
xxxx
In the mind of the Court, the prosecution has
substantially established the quantum of evidence to prove
the guilt of the accused beyond reasonable doubt. [30]
The RTC, thus, decreed:
WHEREFORE, premises considered, pursuant to
Sec. 6, Art. 248 of the Revised Penal Code, as amended and
further amended by R.A. 7659 (The Death Penalty Law), the
Court found accused ROSENDO REBUCAN y LAMSIN,
GUILTY beyond reasonable doubt of the crime of DOUBLE
MURDER charged under the information and sentenced to
suffer the maximum penalty of DEATH, and to pay civil
indemnity to the heirs of Felipe Lagera and Ramil Tagpis, Jr.
in the amount of Seventy-Five Thousand (P75,000.00) Pesos
for each victim and moral damages in the amount of Seventy-
Five Thousand (P75,000.00) Pesos to each; and
Pay the Cost.[31] (Emphases ours.)
The case was originally elevated to this Court on automatic review and
the same was docketed as G.R. No. 161706.[32] The parties, thereafter,
submitted their respective appeal briefs.[33] In our Resolution[34] dated July 19,
2005, we ordered the transfer of the case to the Court of Appeals for
appropriate disposition, pursuant to our ruling in People v. Mateo.[35] Before
the appellate court, the case was docketed as CA-G.R. CR.-H.C. No. 00282.
The Court of Appeals promulgated the assailed decision on August
21, 2007, modifying the judgment of the RTC. The appellate court adopted the
position of the Office of the Solicitor General (OSG) that the felonious acts of
the accused-appellant resulted in two separate crimes of murder as the
evidence of the prosecution failed to prove the existence of a complex crime
of double murder. The Court of Appeals subscribed to the findings of the RTC
that the killing of Felipe Lagera was attended by the aggravating
circumstances of treachery and evident premeditation. With respect to the
ensuant mitigating circumstances, the Court of Appeals credited the
circumstance of voluntary surrender in favor of the accused-appellant, but
rejected the appreciation of intoxication, immediate vindication of a grave
offense and voluntary confession. As for the death of Ranil, the appellate court
also ruled that the same was attended by the aggravating circumstance of
treachery and the mitigating circumstance of voluntary surrender. Thus, the
Court of Appeals disposed of the case as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the
Decision appealed from is hereby MODIFIED. As modified,
accused-appellant is hereby adjudged guilty beyond
reasonable doubt for two (2) counts of murder for the deaths
of Felipe Lagera and Ramil Tagpis, Jr., and is hereby
sentenced to suffer the penalty of reclusion
perpetua for each count of murder he has committed.
The award of civil indemnity is reduced to P50,000.00
for each victim; the award of moral damages is likewise
reduced to P50,000.00 for each victim. Further, exemplary
damages in the amount of P25,000.00 is awarded to the heirs
of each victim.[36]
The accused-appellant filed a Notice of Appeal[37] of the above
decision. In a Resolution[38] dated February 6, 2008, the Court of Appeals
ordered that the records of the case be forwarded to this Court.
On June 18, 2008, we resolved to accept the appeal and required the
parties to file their respective supplemental briefs, if they so desire, within thirty
days from notice.[39] Thereafter, both parties manifested that they were
adopting the briefs they filed before the Court of Appeals and will no longer file
their respective supplemental briefs.[40]
The accused-appellant sets forth the following assignment of errors:
I deliberately planned the killing of Felipe.
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT FOR THE CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FAILING TO
APPRECIATE THE MITIGATING CIRCUMSTANCE OF
IMMEDIATE VINDICATION OF A GRAVE OFFENSE IN
FAVOR OF THE ACCUSED-APPELLANT.
III
THE COURT A QUO GRAVELY ERRED IN FAILING TO
APPRECIATE INTOXICATION AS A MITIGATING
CIRCUMSTANCE IN FAVOR OF THE ACCUSED-
APPELLANT.
IV
THE COURT A QUO GRAVELY ERRED IN APPRECIATING
THE AGGRAVATING CIRCUMSTANCES OF DWELLING,
ABUSE OF SUPERIOR STRENGTH AND MINORITY.[41]
The accused-appellant admits to the killing of Felipe but denies that
the crime was committed with treachery and evident premeditation. He argues
that there is doubt as to the presence of treachery given that there was no
eyewitness who categorically stated that the accused-appellant attacked the
victims suddenly, thereby depriving them of the means to defend
themselves. He brushed aside the testimony of Carmela Tagpis, insisting that
she was not in a position to say that there was no altercation between him and
Felipe, which could have put the latter on guard. The prosecution allegedly
failed to prove that the accused-appellant intentionally waited for the time
when Felipe would be defenseless before initiating the attack. The fact that he
voluntarily surrendered to the barangay chairperson and the police and
admitted the killings supposedly showed that it was not intentional and he did
not consciously adopt the method of attack upon the two victims. The accused-
appellant similarly rejects the finding of the RTC that there was evident
premeditation on his part since the prosecution failed to prove that he
The accused-appellant maintains that at the time of the incident, he
was still unable to control his anger as he just recently discovered that his wife
was sexually abused by Felipe and the latters son, Timboy. He also avers that
he was a bit intoxicated when the crime took place so that he was not in total
control of himself. He claims that he is not a habitual drinker and that he merely
consumed the alcohol prior to the incident in order to appease his friend. He
likewise argues that the aggravating circumstance of dwelling should not have
been appreciated inasmuch as the same was not alleged in the
information.Moreover, the aggravating circumstance of abuse of superior
strength cannot be appreciated since he did not deliberately harm or attack
Ranil Tagpis, Jr. and the death of the latter was accidental. The accused-
appellant prays that he should only be found guilty of the crime of homicide
with the mitigating circumstances of voluntary surrender, immediate
vindication of a grave offense and intoxication.
The appeal lacks merit.
Basic is the rule that in order to affirm the conviction of an accused
person, the prosecution must establish his guilt beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of proof
as, excluding possibility of error, produces absolute certainty. Only moral
certainty is required, or that degree of proof which produces conviction in an
unprejudiced mind.[42] Ultimately, what the law simply requires is that any proof
against the accused must survive the test of reason for it is only when the
conscience is satisfied that the perpetrator of the crime is the person on trial
should there be a judgment of conviction.[43] A finding of guilt must rest on the
strength of the prosecutions own evidence, not on the weakness or even
absence of evidence for the defense.[44]
 In the instant case, the evidence of the prosecution established the influence which has been overlooked or the significance of which has been
fact that the killings of Felipe and Ranil were attended by treachery, thus misinterpreted.[51]
qualifying the same to murder.
Carmela testified as follows:
According to Article 248[45] of the Revised Penal Code, as amended,
any person who shall kill another shall be guilty of murder if the same was PROS. TORREVILLAS:
committed with the attendant circumstance of treachery, among other things, Q: Do you have a brother named Ranil Tagpis, Jr?
and that the situation does not fall within the provisions of Article 246.[46] There A: Yes sir.
is treachery when the offender commits any of the crimes against the person,
Q: Where is he now?
employing means, methods, or forms in the execution thereof which tend
A: He is dead.
directly and specially to insure its execution, without risk to himself arising from
the defense which the offended party might make.[47] The essence of treachery Q: Do you know the circumstance of his death?
A: Yes sir.
is a deliberate and sudden attack, offering an unarmed and unsuspecting
victim no chance to resist or to escape. There is treachery even if the attack is Q: Why did he die?
frontal if it is sudden and unexpected, with the victims having no opportunity to A: Because he was hacked by Bata Endong.
repel it or defend themselves, for what is decisive in treachery is that the
Q: Do you know also your grandfather Felipe Lagera, Jr?
execution of the attack made it impossible for the victims to defend themselves A: Yes sir.
or to retaliate.[48]
Q: Where is he now?
A: He is dead also.
In the case at bar, the RTC gave more weight to the testimony of
Carmela Tagpis in establishing the presence of treachery in the manner with Q: Why did he die?
which the accused-appellant carried out the violent killings of Felipe and A: Because he was hacked by Bata Endong.
Ranil. In this regard, we reiterate the established doctrine articulated in People
Q: Is the person your Bata Endong here in the court room who
v. De Guzman[49] that: hacked your brother and your grandfather?
A: Yes sir.
In the resolution of the factual issues, the court relies
heavily on the trial court for its evaluation of the witnesses and COURT INTERPRETER:
their credibility. Having the opportunity to observe them on the Witness pointing to a person when asked of his name
stand, the trial judge is able to detect that sometimes thin line identified himself as Rosendo Rebucan.
between fact and prevarication that will determine the guilt or
innocence of the accused. That line may not be discernible xxxx
from a mere reading of the impersonal record by the reviewing
court. x x x.[50] Q: What instrument did the accused use in killing your [brother
and] your grandfather?
A: Long bolo, sundang.
Moreover, we have oftentimes ruled that the Court will not interfere
Q: Were you able to see that long bolo?
with the judgment of the trial court in determining the credibility of witnesses A: Yes sir.
unless there appears in the record some fact or circumstance of weight and
 xxxx
Q: So, you mean to say that your uncle Endo went inside, it
Q: Was your grandfather armed that time? was so sudden?
A: He has his own bolo but he placed it on the holder of the A: Yes sir.
long bolo.
Q: Because it was sudden, you were not able to do anything,
Q: Was that long bolo used by your grandfather? what did you do?
A: No sir. A: I then cried at that time.

xxxx xxxx

Q: How far were you to the incident, when this hacking Q: But you are sure that when your uncle Endo entered as
incident happened? you said that your brother Ramil was carried by your
A: (witness indicating a distance of about 4 meters). papo Felipe?
A: Yes sir.
xxxx
Q: Did your uncle Endo and your papo Felipe fight or was
COURT: there an altercation?
Cross. A: No sir.[52]

ATTY. DICO:
As can be gleaned from the above testimony, Carmela firmly and
Q: You stated awhile ago that your brother Jericho, Bitoy
[Ranil] and you and your papo Felipe were at the categorically pointed to the accused-appellant as the person who entered the
house of your papo Felipe? house of Felipe. She clearly stated that the attack was not preceded by any
A: Yes sir. fight or altercation between the accused-appellant and Felipe. Without any
provocation, the accused-appellant suddenly delivered fatal hacking blows to
Q: You mean to say that there were no other persons present
in that house other than you four (4)? Felipe. The abruptness of the unexpected assault rendered Felipe
A: Yes sir. defenseless and deprived him of any opportunity to repel the attack and
retaliate. As Felipe was carrying his grandson Ranil, the child unfortunately
xxxx
suffered the same fatal end as that of his grandfather. In the killing of Ranil,
Q: So, you were playing that toy camera inside the room of the trial court likewise correctly appreciated the existence of treachery. The
your papo Felipe? said circumstance may be properly considered, even when the victim of the
A: No sir, I was playing then at the side of the chicken cage.
attack was not the one whom the defendant intended to kill, if it appears from
Q: Is that chicken cage was inside or outside the house of the evidence that neither of the two persons could in any manner put up
your papo Felipes house? defense against the attack or become aware of it.[53]Furthermore, the killing of
A: Inside the house of my grandfather.
a child is characterized by treachery even if the manner of assault is not
xxxx shown. For the weakness of the victim due to his tender years results in the
absence of any danger to the accused.[54]
Q: Was your brother Ranil carried by your grandfather Felipe?
A: Yes sir.
He was carried by his right arm.
 Although the accused-appellant painted a contrasting picture on the
matter, i.e., that the attack was preceded by a fight between him and Felipe,
the Court is less inclined to be persuaded by the accused-appellants version
of the events in question. Indeed, the Court has ruled that the testimony of
children of sound mind is more correct and truthful than that of older persons
and that children of sound mind are likely to be more observant of incidents
which take place within their view than older persons, and their testimonies are
likely more correct in detail than that of older persons. [55] In the instant case,
Carmela was cross-examined by the defense counsel but she remained
steadfast and consistent in her statements. Thus, the Court fails to see any
reason to distrust the testimony of Carmela.
Incidentally, the testimony of the accused-appellant not only
contradicts that of Carmela, but some portions thereof do not also conform to
the documentary evidence admitted by the trial court. The testimony of Dr.
Profetana and the sketch of the human anatomy of Felipe, which was marked
as Exhibit B for the prosecution, stated that Felipe sustained three hacking
wounds that were found on his right arm, at his nose maxillary area [56] and on
his left arm. On the other hand, the accused-appellant testified that he
delivered four hacking blows on Felipe, the three of which landed on the left
side of the victims abdomen, the right side of his neck and on his upper left
arm. When confronted on the said apparently conflicting statements, the
accused-appellant did not offer any explanation.[57]
Therefore, on the strength of the evidence of the prosecution, we
sustain the ruling of the RTC and the Court of Appeals that the circumstance
of treachery qualified the killings of Felipe and Ranil to murder.
The Court finds erroneous, however, the trial courts and the Court of
Appeals appreciation of the aggravating circumstance of evident
premeditation. For evident premeditation to aggravate a crime, there must be
proof, as clear as the evidence of the crime itself, of the following elements:
(1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that he clung to his determination; and (3) sufficient lapse
of time, between determination and execution, to allow himself to reflect upon
the consequences of his act.[58] It is not enough that evident premeditation is
suspected or surmised, but criminal intent must be evidenced by notorious
outward acts evidencing determination to commit the crime. In order to be
considered an aggravation of the offense, the circumstance must not merely
be premeditation; it must be evident premeditation.[59] In the case at bar, the
evidence of the prosecution failed to establish any of the elements of evident
premeditation since the testimonies they presented pertained to the period of
the actual commission of the crime and the events that occurred
thereafter. The prosecution failed to adduce any evidence that tended to
establish the exact moment when the accused-appellant devised a plan to kill
Felipe, that the latter clung to his determination to carry out the plan and that
a sufficient time had lapsed before he carried out his plan.
Likewise, the trial court erred in appreciating the aggravating
circumstances of abuse of superior strength, dwelling, minority and
intoxication. When the circumstance of abuse of superior strength concurs
with treachery, the former is absorbed in the latter.[60] On the other hand,
dwelling, minority and intoxication cannot be appreciated as aggravating
circumstances in the instant case considering that the same were not alleged
and/or specified in the information that was filed on January 23, 2003. Under
the Revised Rules of Criminal Procedure, which took effect on December 1,
2000, a generic aggravating circumstance will not be appreciated by the Court
unless alleged in the information. This requirement is laid down in Sections 8
and 9 of Rule 110, to wit:
SEC. 8. Designation of the offense. - The complaint
or information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the
statute punishing it.
SEC. 9. Cause of the accusation. - The acts or
omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable
a person of common understanding to know what offense is
 being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.
With regard to the conflicting rulings of the RTC and the Court of
Appeals vis--vis the nature of crimes committed, we agree with the appellate
court that the accused-appellant should be held liable for two (2) separate
counts of murder, not the complex crime of double murder.
Article 48 of the Revised Penal Code provides that [w]hen a single act
constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period. There
are, thus, two kinds of complex crimes. The first is known as compound crime,
or when a single act constitutes two or more grave or less grave felonies. The
second is known as complex crime proper, or when an offense is a necessary
means for committing the other.[61]
The Court finds that there is a paucity of evidence to prove that the
instant case falls under any of the two classes of complex crimes. The
evidence of the prosecution failed to clearly and indubitably establish the fact
that Felipe and Ranil were killed by a single fatal hacking blow from the
accused-appellant. The eyewitness testimony of Carmela did not contain any
detail as to this material fact. To a greater degree, it was neither proven that
the murder of Felipe was committed as a necessary means for committing
and/or facilitating the murder of Ranil and vice versa. As the factual milieu of
the case at bar excludes the application of Article 48 of the Revised Penal
Code, the accused-appellant should be made liable for two separate and
distinct acts of murder. In the past, when two crimes have been improperly
designated as a complex crime, this Court has affirmed the conviction of the
accused for the component crimes separately instead of the complex crime. [62]
In the determination of the penalty to be imposed on the accused-
appellant, we uphold the trial courts ruling that the mitigating circumstance of
voluntary surrender should be appreciated. For voluntary surrender to mitigate
criminal liability, the following elements must concur: (1) the offender has not
been actually arrested; (2) the offender surrenders himself to a person in
authority or to the latters agent; and (3) the surrender is voluntary. [63] To be
sufficient, the surrender must be spontaneous and made in a manner clearly
indicating the intent of the accused to surrender unconditionally, either
because they acknowledge their guilt or wish to save the authorities the trouble
and the expense that will necessarily be incurred in searching for and capturing
them.[64] The accused-appellant has duly established in this case that, after the
attack on Felipe and Ranil, he surrendered unconditionally to
the barangay chairperson and to the police on his own volition and before he
was actually arrested. The prosecution also admitted this circumstance of
voluntary surrender during trial.
We reject, however, the accused-appellants contention that the trial
court erred in failing to appreciate the mitigating circumstances of intoxication
and immediate vindication of a grave offense.
The third paragraph of Article 15 of the Revised Penal Code provides
that the intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offender has committed a felony in a state
of intoxication, if the same is not habitual or subsequent to the plan to commit
said felony; but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance. The Court finds that the accused-
appellant is not entitled to the mitigating circumstance of intoxication since his
own testimony failed to substantiate his claim of drunkenness during the
incident in question. During his cross-examination, the accused-appellant
himself positively stated that he was only a bit tipsy but not drunk when he
proceeded to the house of Felipe.[65] He cannot, therefore, be allowed to make
a contrary assertion on appeal and pray for the mitigation of the crimes he
committed on the basis thereof.
As regards the mitigating circumstance of immediate vindication of a
grave offense, the same cannot likewise be appreciated in the instant
case. Article 13, paragraph 5 of the Revised Penal Code requires that the act
be committed in the immediate vindication of a grave offense to the one
committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives by affinity within
the same degrees. The established rule is that there can be no immediate
vindication of a grave offense when the accused had sufficient time to recover
his equanimity.[66] In the case at bar, the accused-appellant points to the
alleged attempt of Felipe and Timboy Lagera on the virtue of his wife as the
grave offense for which he sought immediate vindication. He testified that he
learned of the same from his stepson, Raymond, on November 2, 2002. Four
days thereafter, on November 6, 2002, the accused-appellant carried out the
attack that led to the deaths of Felipe and Ranil. To our mind, a period of four
days was sufficient enough a time within which the accused-appellant could
have regained his composure and self-control. Thus, the said mitigating
circumstance cannot be credited in favor of the accused-appellant.
Article 248 of the Revised Penal Code, as amended, prescribes the
penalty of reclusion perpetua to death for the crime of murder. In this case,
apart from the qualifying circumstance of treachery, the prosecution failed to
prove the existence of any other aggravating circumstance in both the murders
of Felipe and Ranil. On the other hand, as the presence of the lone mitigating
circumstance of voluntary surrender was properly established in both
instances, Article 63, paragraph 3 of the Revised Penal Code[67] mandates that
the proper penalty to be imposed on the accused-appellant is reclusion
perpetua for each of the two counts of murder.
Anent the award of damages, when death occurs due to a crime, the
following may be recovered: (1) civil indemnity ex delicto for the death of the
victim; (2) actual or compensatory damages; (3) moral damages; (4)
exemplary damages; (5) attorney's fees and expenses of litigation; and (6)
interest, in proper cases.[68]
The RTC awarded in favor of the heirs of Felipe and Ranil the amounts
of P75,000.00 as civil indemnity and P75,000.00 as moral damages for each
set of heirs. The Court of Appeals, on the other hand, reduced the aforesaid
amounts to P50,000.00 and further awarded the amount of P25,000.00 as
exemplary damages to the heirs of the victim.
Civil indemnity is mandatory and granted to the heirs of the victim
without need of proof other than the commission of the crime.[69] Similarly,
moral damages may be awarded by the court for the mental anguish suffered
by the heirs of the victim by reason of the latters death. The purpose for making
such an award is not to enrich the heirs of the victim but to compensate them
for injuries to their feelings.[70] The award of exemplary damages, on the other
hand, is provided under Articles 2229-2230 of the Civil Code, viz:
Art. 2229. Exemplary or corrective damages are
imposed, by way of example or correction for the public good,
in addition to the moral, temperate, liquidated or
compensatory damages.
Art. 2230. In criminal offenses, exemplary damages
as a part of the civil liability may be imposed when the crime
was committed with one or more aggravating circumstances.
Such damages are separate and distinct from fines and shall
be paid to the offended party.
In People v. Dalisay,[71] the Court clarified that [b]eing corrective in
nature, exemplary damages, therefore, can be awarded, not only in the
presence of an aggravating circumstance, but also where the circumstances
of the case show the highly reprehensible or outrageous conduct of the
offender. In much the same way as Article 2230 prescribes an instance when
exemplary damages may be awarded, Article 2229, the main provision, lays
down the very basis of the award.[72]
Thus, we affirm the Court of Appeals award of P50,000.00 as civil
indemnity and P50,000.00 as moral damages. The award of exemplary
damages is, however, increased to P30,000.00 in accordance with the
prevailing jurisprudence. As held in People v. Combate,[73] when the
circumstances surrounding the crime call for the imposition of reclusion
perpetua only, the proper amounts that should be awarded are P50,000.00 as
civil indemnity, P50,000.00 as moral damages and P30,000.00 as exemplary
damages.
In lieu of actual or compensatory damages, the Court further orders
the award of P25,000.00 temperate damages to the heirs of the two victims in
this case. The award of P25,000.00 for temperate damages in homicide or
murder cases is proper when no evidence of burial and funeral expenses is
presented in the trial court. Under Article 2224 of the Civil Code, temperate
damages may be recovered, as it cannot be denied that the heirs of the victim
suffered pecuniary loss, although the exact amount was not proven.[74]
WHEREFORE, the Court hereby AFFIRMS with MODIFICATION the
Decision dated August 21, 2007 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 00282. The accused-appellant Rosendo Rebucan y Lamsin is
found GUILTY of two (2) counts of murder for the deaths of Felipe Lagera and
Ranil Tagpis, Jr. and is hereby sentenced to suffer the penalty of reclusion
perpetua for each count. The accused-appellant is further ordered to
indemnify the respective heirs of the victims Felipe Lagera and Ranil Tagpis,
Jr. the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
damages, P30,000.00 as exemplary damages and P25,000.00 as temperate
damages for each victim, plus legal interest on all damages awarded at the
rate of 6% from the date of the finality of this decision. No costs.
SO ORDERED.
EN BANC
[G.R. No. 130508. April 5, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO
REGALA y ABRIOL, accused-appellant.
DECISION
GONZAGA_REYES, J.:
Armando Regala appeals from the judgment in Criminal Case No. 7929
rendered by the Regional Trial Court of Masbate, Masbate, Branch 46,
5th Judicial Region, convicting him of the crime of Robbery with Rape.
The information against accused-appellant on November 27, 1995, filed by
2nd Assistant Provincial Prosecutor Jesus C. Castillo, reads as
follows: Sppedsc
"That on or about September 11, 1995, in the evening
thereof, at Barangay Bangon, Municipality of Aroroy,
Province of Masbate, Philippines, within the jurisdiction of
this Court, the said accused confederating together and
helping one another, with intent to gain, violence and
intimidation upon persons, did then and there wilfully,
unlawfully and feloniously enter the kitchen of the house of
Consuelo Arevalo and when inside, hogtied said Consuelo
Arevalo and granddaughter Nerissa Regala (sic), take, steal,
rob and carry away cash amount of P3,000.00 and two (2)
gold rings worth P6,000.00, to the damage and prejudice of
owner Consuelo Arevalo in the total amount of P9,000.00,
Philippine Currency; and in pursuance of the commission of
the crime of robbery against the will and consent of the
granddaughter Nerissa Regala (sic) wilfully, unlawfully and
feloniously accused Armando Regala y Abriol has for two
times sexually abused and/or intercoursed with her, while
hogtied on the bed and in the kitchen.
CONTRARY TO LAW.[1]
Accused-appellant was apprehended by the police four days after the
incident. He was identified at a police line-up by Nerissa and her
grandmother. Calrsc
The prosecution presented three witnesses: Dra. Conchita Ulanday,
Municipal Health Officer of Aroroy, Masbate, who personally examined the
rape victim; Nerissa Tagala, the rape victim, 17 years old, a third year high
school student; and her grandmother, Consuelo Arevalo, who was her
companion when the robbery with rape transpired at Consuelos house.
The prosecutions version is stated in Appellees Brief as follows: Sccalr
"On September 11, 1995, at about 9:00 oclock in the
evening at Barangay Bangon, Aroroy, Masbate, then 16-year
old victim Nerissa Tagala and her grandmother (Consuelo
Arevalo) were sleeping, when appellant Armando Regala
and his two other companions entered the formers house.
(pp. 6-7, TSN, August 26, 1996).
Appellant and his companions entered the house through
the kitchen by removing the pieces of wood under the stove.
Appellant went to the room of Nerissa and her grandmother
and poked an 8-inch gun on them, one after the other. (p. 8,
TSN, August 26, 1996)
 Nerissa and her grandmother were hogtied by appellant and
his companions. Thereafter, Nerissa was raped by appellant
Armando Regala in bed while her grandmother was on the
floor. After the rape, appellant and his two companions
counted the money which they took from the "aparador." (pp.
9-10, TSN, August 26, 1996)
Appellant and his companions then ran away with P3,000 in
cash, 2 pieces of ring valued at P6,000 and two wrist
watches worth P5,000. (pp. 11-13, TSN, August 26, 1996)
The following day, September 12, 1995, Nerissa went to the
Rural Health Clinic of Aroroy, Masbate for medical
examination. In the Medical Report presented by Municipal
Health Officer Dr. Conchita S. Ulanday, it was shown that
Nerissa sustained laceration of the hymen at 4:00 oclock
and 7:00 oclock positions (fresh wounds), indicating a
possible sexual assault upon the victim. (p. 16, TSN, August
26, 1996)[2]
The defense presented accused-appellant who testified that on September
11, 1995, he was staying in the house of Antonio Ramilo at barangay
Syndicate, Aroroy, Masbate. Ramilo was the manager in the gold panning
business where accused-appellant was employed. Antonio Ramilo testified
and corroborated his defense and stated that accused-appellant was in his
house, which is about 5 kilometers away from Barangay Bangon.Calrspped
The trial court held that the defense of alibi cannot overcome the positive
identification of the accused. The dispositive portion of the judgment reads:
"WHEREFORE, in view of all the foregoing, the Court finds
accused Armando Regala y Abriol guilty beyond reasonable
doubt of the crime of Robbery with Rape, as penalized under
Par. 2 of Art. 294 of the Revised Penal Code and hereby
sentences him to suffer imprisonment of reclusion perpetua;
to indemnify the victim Consuelo Arevalo the sum
of P9,000.00, the cash and value of the looted articles; to
indemnify the victim Nerissa Tagala the sum of P50,000.00
as moral damages, and the further sum of P25,000.00 as
exemplary damages. No subsidiary imprisonment in case of
insolvency, and to pay the costs."[3]
Armando has appealed to this Court pleading that: Scedp
(1) THE TRIAL COURT GRAVELY ERRED IN FINDING
THAT SUFFICIENT EVIDENCE EXIST TO ESTABLISH
CLEARLY THE IDENTITY OF THE ACCUSED-APPELLANT
AS PERPETRATOR OF THE CRIME CHARGED.
(2) THE TRIAL COURT GRAVELY ERRED IN FINDING
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME CHARGED.[4]
which alleged errors were discussed jointly.
In essence, accused-appellant questions the sufficiency of the prosecutions
evidence in identifying him as one of the perpetrators of the crime charged.
He claims that the complaining witness could not have positively identified
him as there was no electricity nor any light in the place of the incident which
took place at 9:00 oclock in the evening. Consuelo Arevalo was able to
identify accused-appellant only after he was pinpointed by Nerissa, and
made contradictory statements in court when she stated that accused-
appellant removed his mask after she was hogtied, and later stated that
accused-appellant removed his mask before she was hogtied. The medico-
legal officer, Dr. Ulanday, herself testified that the complaining witness either
voluntarily submitted to a sexual act or was forced into one. Edpsc
The appellee insists that appellants lame defense of alibi cannot stand
against the positive identification made by the victim, and avers that the
victim, a 16 year old barrio lass at the time the rape was committed, was
motivated by a sincere desire to seek and obtain justice. The Solicitor
General also recommends an additional award of compensatory damages
of P50,000.00 in favor of Nerissa Tagala. Edp
We affirm the judgment of conviction.
There was sufficient evidence to establish the identity of accused-appellant
as the perpetrator of the crime. Misedp
Nerissa positively recounted the incident on the witness stand. She was
sleeping with her grandmother in the latters house when the accused-
appellant Regala, together with the unidentified companions entered the
house. Regala pointed a gun, about 8 inches long, at her grandmother, and
then at her, and hogtied both of them. Regala took off her panty and her
shorts, and removed his own "porontong" pants, and made sexual
intercourse ("itot") with her while she was hogtied in bed. Her grandmother
was at the floor. She saw the aparador of her grandmother being opened.
She could not shout because the gun was pointed at her, and she was afraid.
Two companions of the accused-appellant entered the room as she was
being raped. Two rings valued at about P6,000.00 and 2 wrist watches (one
"Seiko" and the other "Citizen") and money was taken by the accused-
appellant and his companions. After raping her in bed, Nerissa saw accused-
appellant counting the money taken from the aparador. Thereafter, she was
brought to the kitchen, still hogtied, and raped again.[5] On cross-
examination, Nerissa stated that although there was no electricity, and the
light in the house was already off, she was able to see the face of Regala
because at the time Regala was counting the money, one of his companions
was holding the flashlight "beamed to the money" and there was "some
reflection" on the face of Regala[6] She remembered the face of Regala
because of an earring on his left ear[7] which he was wearing when presented
at the police line-up.[8]
Consuelo Arevalo testified and corroborated the testimony of her
granddaughter. Armando Regala entered the house with two companions,
hogtied her and Nerissa, and were asking for money. After having sexual
intercourse with Nerissa, Regala took P3,000.00 in paper bills and coins from
her aparador, and got a stainless Seiko wristwatch and two gold rings valued
at P6,000.00. She was able to recognize Regala because of his earring on
his left ear, and because he was pinpointed by Nerissa at the police station.
She was not able to shout at the time because her mouth was gagged with a
piece of cloth by Regala.[9] On cross-examination, Consuelo Arevalo
declared that she was able to see Regala because he used her flashlight,
and he took off the mask he was wearing; she recognized Regala because of
his earring and his flat top hair cut.[10]
The Court gives its approbation to the finding of the trial court that the
evidence was sufficient to clearly establish the identity of Armando Regala as
the person who, with two companions, committed the crime of robbery
accompanied by rape on the night of September 11, 1995. Nerissa Tagala
positively identified Armando Regala because at the time he was counting
the money on her bed, the other companion of the accused beamed the
flashlight towards the money and there was a reflection on the face of
Regala. Although the three intruders were wearing masks when they entered
the house, they removed their masks later.[11]
Our cases have held that wicklamps, flashlights, even moonlight and starlight
may, in proper situations, be sufficient illumination, making the attack on the
credibility of witnesses solely on this ground unmeritorious.[12]
We are not persuaded by the contention of accused-appellant that the
contradictory replies of Consuelo Arevalo when asked whether Regala
removed his mask "before"[13] or "after"[14] she and Nerissa were hogtied
exposed the fact that she was not able to identify the accused-appellant. The
contradiction referred to a minor detail and cannot detract from the fact that
both Nerissa and Consuelo positively identified Regala as there was a
flashlight used to focus at the money while it was being counted and there
was a reflection on the face of Regala. Both Nerissa and Consuelo
remembered the earring on his left ear, which he was still wearing at the time
of the police line-up inside the police station. Misoedp
Dr. Conchita Ulandays testimony does not support the contention of
accused-appellant that Nerissa voluntarily submitted to the sexual advances
of Regala. The admission of Dr. Ulanday that her findings point to the fact
that Nerissa "either voluntarily or was forced into sexual act" does not prove
that Nerissa voluntarily submitted to the sexual act. Dr. Ulanday testified that
there was suggested evidence of penetration as shown by the two
lacerations at 4 oclock and at 7 oclock which were fresh wounds. That the
act was involuntary was clearly established by the fact that Nerissa was
hogtied when she was sexually attacked. As correctly pointed out by
appellee, Nerissa was a 16-year old barrio lass, not exposed to the ways of
the world and was not shown to have any ill-motive to falsely implicate
accused-appellant, who was a stranger. And as repeatedly pronounced by
this Court, it simply would be unnatural for a young and innocent girl to
concoct a story of defloration, allow an examination of her private parts and
thereafter subject herself to a public trial or ridicule if she was not, in fact, a
victim of rape and deeply motivated by a sincere desire to have the culprit
apprehended and punished.[15]
The crime of robbery with rape was committed in 1995 when RA 7659 was
already in force. Article 294 of the Revised Penal Code as amended now
provides, under paragraph 1 thereof: Edpmis
"1. The penalty of reclusion perpetua to death, when for any
reason of or on occasion of the robbery, the crime
of homicide shall have been committed, or when the
robbery shall have been accompanied by rape or intentional
mutilation or arson."
The victim in the case at bar was raped twice on the occasion of the robbery.
There are cases[16] holding that the additional rapes committed on the same
occasion of robbery will not increase the penalty. In People vs.
Martinez,[17] accused Martinez and two (2) other unidentified persons, who
remained at large, were charged with the special complex crime of robbery
with rape where all three raped the victim. The Court imposed the penalty of
death after considering two (2) aggravating circumstances,
namely, nocturnidad and use of a deadly weapon. However, the Court did
not consider the two (2) other rapes as aggravating holding that "(T)he
special complex crime of robbery with rape has, therefore, been committed
by the felonious acts of appellant and his cohorts, with all acts or rape on that
occasion being integrated in one composite crime." Jjsc
There are likewise cases[18] which held that the multiplicity of rapes Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
committed could be appreciated as an aggravating circumstance. In People Panganiban, Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago, and De
vs. Candelario[19] where three (3) of the four (4) armed men who robbed the Leon, Jr., JJ., concur.
victim "alternately raped her twice for each of them", this Court, citing People
vs. Obtinalia,[20] ruled that "(T)he characterization of the offense as robbery
with rape, however, is not changed simply because there were several rapes
committed. The multiplicity of rapes should instead be taken into account in
raising the penalty to death." Scjj

It should be noted that there is no law providing that the additional rape/s or
homicide/s should be considered as aggravating circumstance. The
enumeration of aggravating circumstances under Article 14 of the Revised
Penal Code is exclusive as opposed to the enumeration in Article 13 of the
same code regarding mitigating circumstances where there is a specific
paragraph (paragraph 10) providing for analogous circumstances. Sjcj
Republic of the Philippines
It is true that the additional rapes (or killings in the case of multiple homicide SUPREME COURT
on the occasion of the robbery) would result in an "anomalous situation" Manila
where from the standpoint of the gravity of the offense, robbery with one rape
would be on the same level as robbery with multiple rapes.[21] However, the THIRD DIVISION
remedy lies with the legislature. A penal law is liberally construed in favor of
the offender[22] and no person should be brought within its terms if he is not G.R. No. 76338-39 February 26, 1990
clearly made so by the statute.[23]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
In view of the foregoing, the additional rape committed by herein accused- vs.
appellant should not be considered as aggravating. The penalty of reclusion RENATO TAC-AN Y HIPOS, accused-appellant.
perpetua imposed by the trial court is proper. Supreme
The Office of the Solicitor General for plaintiff-appellee.
As regards the civil indemnity, we find well-taken the recommendation of the
Solicitor General that compensatory damages should be awarded in the
amount of P50,000.00. Nerissa Tagala is entitled to an award of civil Amadeo D. Seno for accused-appellant.
indemnity ex delicto of P50,000.00, which is given in favor of the offended
party in rape.[24] Also a conviction for rape carries with it the award of moral
damages to the victim since it is recognized that the victims injury is
concomitant with and necessarily results from the ordinary crime of rape to FELICIANO, J.:
warrant per se an award of P50,000.00 as moral damages.[25]
Accused Renato Tac-an appeals from the decision of the Regional Trial
WHEREFORE, the judgment convicting Armando Regala y Abriol guilty Court of Tagbilaran City, convicting him of qualified illegal possession of a
beyond reasonable doubt of the crime of Robbery with Rape, is hereby firearm and ammunition in Criminal Case No. 4007 and of murder in Criminal
AFFIRMED with the MODIFICATION that Nerissa Tagala is entitled to an Case No. 4012 and imposing upon him the penalty of death in both cases.
additional award of P50,000.00 as civil indemnity. Court
On 18 December 1984, appellant was charged with violation of Section 1,
SO ORDERED. paragraph (2), of Presidential Decree No. 1866, committed as follows:
 That, on or about the 14th day of December 1984, in the City
of Tagbilaran Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, while acting
under the influence of drugs and without any license or
permit from the proper authorities, did then and there
willfully, unlawfully and feloniously have ill his possession,
custody and control an unlicensed firearm, a SMITH &
WESSON Airweight caliber .38 revolver with Serial Number
359323 with Five (5) spent shells and Five (5) live
ammunitions and without any justifiable cause and with
intent to kill, used the said firearm and ammunitions to shoot
one Francis Ernest Escano III hitting and inflicting upon the
latter the following gunshot wounds or injuries, to wit:
MULTIPLE GUNSHOT WOUNDS — Head
& Chest (through and through);
Head Entrance — 1.4 x 2.2 cm., Left Fronto-
Temporal Area; Port — 1.3 x 0.3 cm.; Right
Cheek. 3.5 cm. above the right external
meatus;
Chest Entrance — 0.3 x 1 cm. — Right
Infrascapular Area at the level of the 7th
Intercostal Rib (Back); Exist — 0.3 cm. dia;
above the right nipple;
Y-shape laceration, check at the right angle
of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8
which gunshot wounds or injuries directly caused his death,
to the damage and prejudice of the Republic of the
Philippines.
Acts committed contrary to the provisions of Section 1,
paragraph 2 of the Presidential Decree No. 1866. 1
On 11 January 1985, an amended information 2 for murder was also filed
against appellant reading as follows:
That, on or about the 14th day of December, 1984 in the City
of Tagbilaran, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without any
justifiable cause and with intent to kill, evident pre-meditation
treachery, while acting under the influence of drugs, with
cruelty and deliberately augmenting the suffering of the
victim, did then and there willfully, unlawfully and feloniously
attack, assault and shot one Francis Ernest Escano with the
use of an unlicensed SMITH & WESSON Airweight caliber
.38 revolver with Serial Number 359323 hitting and inflicting
upon the latter the following gunshot wounds or injuries, to
wit:
MULTIPLE GUNSHOT WOUNDS — Head
and Chest (Through & Through);
Head Entrance — 14 x 2.2 cm., Left Fronto-
temporal Area; Port — l.3 x 0.3 cm., Right
Cheek, 3.5 cm., above the right external
meatus;
Chest Entrance — 0.3 x 1 cm. — right
Infrascapular Area at the level of the 7th
Inter-Costal Rib (back); exit — 0.3 cm. dia;
above the right nipple
Y-shape laceration, cheek at the angle of
the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8.
which gunshot wounds or injuries directly caused his death,
to the damage and prejudice of the heirs of the deceased
namely: Judge & Mrs. Francisco Rey H. Escano, in the
amount to be proved during the trial of the case.
Acts committed contrary to the provisions of Article 248 of
the Revised Penal Code, in relation to Section 17 of Batas
Pambansa Blg. 179, with the qualifying aggravating
circumstances of evident premeditation, treachery and acting
under the influence of dangerous drugs and cruelty.
Appellant entered a plea of not guilty in both cases. The two (2) criminal
cases were consolidated upon motion of the prosecution and tried jointly. On
31 July 1986, the trial court rendered a decision 3 convicting appellant under
both informations. The dispositive portion of the decision read as follows:
 WHEREFORE, all the foregoing premises considered,
decision is hereby rendered in Criminal Case No. 4007
finding the accused Renato Tac-an y Hipos GUILTY beyond
reasonable doubt of Illegal Possession of Firearms and
Ammunitions qualified with Murder under Section 1,
paragraphs 1 and 2 of Presidential Decree No. 1866 and
hereby sentences said Renato Tac-an y Hipos to suffer the
penalty of DEATH. Further, decision is also rendered in
Criminal Case No. 4012 finding the same accused Renato
Tac-an y Hipos GUILTY beyond reasonable doubt of Murder
under Article 248 of the Revised Penal Code, in relation to
Batas Pambansa Blg. 179 and P.D. 1866. Appreciating the
aggravating circumstance of evident premeditation
(treachery used to qualify the crime to murder) and the
special aggravating circumstances of acting while under the
influence of dangerous drugs and with the use of an
unlicensed firearm and with insult to a person in authority
and there being no mitigating circumstance to offset them,
and sentences the said Renato Tac-an y Hipos to suffer the
penalty of DEATH. The accused is likewise ordered to
indemnify the heirs of the deceased Francis Ernest Escano
in the amount of THIRTY THOUSAND PESOS
(P30,000.00); to pay actual compensatory damages in the
amount of ONE HUNDRED EIGHT THOUSAND THREE
HUNDRED TEN PESOS (P108,310.00); to pay moral
damages to Judge Francisco Escano, Jr., the sum of ONE
HUNDRED THOUSAND PESOS (P100,000.00) and to Mrs.
Lydia Escano the sum of ONE HUNDRED THOUSAND
PESOS (P100,000.00) for the mental anguish and suffering
each experienced because of the death of Francis Ernest.
All such amount shall earn legal interest from the time this
decision shall become final and executory until fully satisfied.
The accused shall also pay the costs.
SO ORDERED.
Immediately after promulgation of the decision, appellant signified his
intention to appeal to this Court, although the same was subject to automatic
review by this Court.
In his brief, appellant assigned the following as errors allegedly committed by
the trial court:
I. The lower court erred in believing the prosecution's version
of the case instead of according full faith and credence to the
defendant's version.
II. The trial court erred in not holding that Renato Tac-an was
justified in shooting the deceased.
III. The trial court erred in not holding that in (sic) the least
the defendant acted in incomplete self-defense in shooting
the deceased.
IV. The trial court erred in not holding that P.D. 1866 is
inapplicable to the defendant inasmuch as said decree was
enforceable only during the existence of the Martial Law
Regime.
V. The trial court erred in not holding that the defendant was
placed twice in jeopardy for having been prosecuted for
violation of P.D. 1866 despite his being prosecuted for
murder in an information which alleges that the accused
used an unlicensed firearm in killing the deceased.
VI. The trial court erred in not adjudging the defendant
innocent of murder.
From the record, the facts may be collated and summarized as follows:
Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of
age, and the deceased Francis Ernest Escano III, fifteen (15) years old, were
classmates in the third year of high school of the Divine Word College in
Tagbilaran City. They were close friends, being not only classmates but also
members of the same gang, the Bronx gang. Renato had been to the house
where Francis and his parents lived, on one or two occasions. On those
occasions, Francis' mother noticed that Renato had a handgun with him.
Francis was then advised by his mother to distance himself from Renato. 4
Francis withdrew from the Bronx gang. The relationship between Renato and
Francis turned sour. Sometime in September 1984, Renato and Francis
quarrelled with each other, on which occasion Francis bodily lifted Arnold
Romelde from the ground. Arnold was friend and companion to Renato. The
quarrel resulted in Renato and Francis being brought to the high school
principal's office. The strained relationship between the two (2) erstwhile
friends was aggravated in late November 1984 when Francis teamed that
Renato, together with other members of the Bronx gang, was looking for him,
apparently with the intention of beating him up. Further deterioration of their
relationship occurred sometime in the first week of December 1984, when
graffiti appeared on the wall of the third year high school classroom and on
the armrest of a chair in that classroom, deprecating the Bronx gang and
describing Renato as "bayot" (homosexual) 5 Renato attributed the graffiti to
Francis.
At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered
Room 15 of the high school building to attend his English III class. Renato
placed his scrapbook prepared for their Mathematics class on his chair, and
approached the teacher, Mrs. Liliosa Baluma, to raise a question. Upon
returning to his chair, he found Francis sitting there, on the scrapbook.
Renato was angered by what he saw and promptly kicked the chair on which
Francis was seated. Francis, however, explained that he had not intentionally
sat down on Renato's scrapbook. A fistfight would have ensued but some
classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas,
intervened and prevented them from assaulting each other. After the two (2)
had quieted down and apparently shaken hands at the instance of Mrs.
Baluma, the latter resumed her English III class. Francis sat on the last row
to the extreme right of the teacher while Renato was seated on the same last
row at the extreme left of the teacher. While the English III class was still
going on, Renato slipped out of the classroom and went home to get a gun.
He was back at the classroom approximately fifteen (15) minutes later. 6
The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m.
had just started in Room 15 when Renato suddenly burst into the room, shut
the door and with both hands raised, holding a revolver, shouted "Where is
Francis?" Upon sighting Francis seated behind and to the light of student
Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book
and the armrest of Ruel's chair. Francis and Ruel jumped up and with several
of their classmates rushed forward towards the teacher's platform to seek
protection from their teacher. Renato fired a second time, this time hitting the
blackboard in front of the class. Francis and the other students rushed back
towards the rear of the room. Renato walked towards the center of the
classroom and fired a third time at Francis, hitting the concrete wall of the
classroom. Francis and a number of his classmates rushed towards the door,
the only door to and from Room 15. Renato proceeded to the teacher, s
platform nearest the door and for the fourth time fired at Francis as the latter
was rushing towards the door. This time, Francis was hit on the head and he
fell on the back of Ruel and both fell to the floor. Ruel was pulled out of the
room by a friend; Francis remained sprawled on the floor bleeding
profusely. 7
Renato then went out of Room 15, and paced between Rooms 14 and 15. A
teacher, Mr. Pablo Baluma, apparently unaware that it was Renato who had
gunned down Francis, approached Renato and asked him to help Francis as
the latter was still alive inside the room. Renato thereupon re-entered Room
15, closed the door behind him, saying: "So, he is still alive. Where is his
chest?" Standing over Francis sprawled face down on the classroom floor,
Renato aimed at the chest of Francis and fired once more. The bullet entered
Francis' back below the right shoulder, and exited on his front chest just
above the right nipple. 8
Renato then left with two (2) remaining students and locked Francis alone
inside Room 15. Renato proceeded to the ground floor and entered the
faculty room. There, he found some teachers and students and ordered them
to lock the door and close the windows, in effect holding them as hostages.
He also reloaded his gun with five (5) bullets. After some time, a team of
Philippine Constabulary troopers led by Capt. Larino Lazo arrived and
surrounded the faculty room. With a hand-held public address device, Capt.
Lazo called upon Renato to surrender himself Renato did not respond to this
call. Renato's brother approached Capt. Lazo and volunteered to persuade
his brother to give up. Renato's father who, by this time had also arrived,
pleaded with Renato to surrender himself Renato then turned over his gun to
his brother through an opening in the balustrade of the faculty room. Capt.
Lazo took the gun from Renato's brother, went to the door of the faculty
room, entered and placed Renato under arrest. 9
Meantime, as soon as Renato left Room 15, some teachers and students
came to rescue Francis but could not open the door which Renato had
locked behind him. One of the students entered the room by climbing up the
second floor on the outside and through the window and opened the door
from the inside. The teachers and students brought Francis down to the
ground floor from whence the PC soldiers rushed him to the Celestino
Gallares Memorial Hospital. 10 Francis died before reaching the hospital.
Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy,
Tagbilaran City. The officer deposited the revolver recovered from Renato
which was an Airweight Smith and Wesson .38 caliber revolver, with Serial
No. 359323, as well as the five (5) live bullets removed from the said
revolver, and the five (5) empty cartridges which Renato had turned over to
him. Ballistic examination conducted by Supervising Ballistician, Artemio
Panganiban, National Bureau of Investigation, Cebu, showed that the empty
cartridge cases had been fired from the revolver recovered from Renato. 11
Appellant at the outset assails the trial court for having believed the
prosecution's version of the facts instead of the version offered by the
appellant. The trial court took into account, inter alia, the positive and direct
testimony of:
1. Mrs. Liliosa Baluma who testified as to, among other
things, the events which took place inside her English III
classroom immediately before the shooting;
 2. Ruel Ungab — a fifteen (15) year old classmate of Renato
and Francis, who had fallen on the floor with Francis when
the latter was finally hit by Renato;
3. Damaso Pasilbas — the Mathematics teacher who was
holding his class when Renato had burst into Room 15 and
started firing at Francis; and
4. Napoleon Jumauan — another sixteen (16) year old,
classmate of Renato and Francis who was inside the
classroom when Renato had started firing at Francis and
who was only about a foot away from the head of Francis
when Renato, having re-entered Room 15, had fired at
Francis as the latter was sprawled on the floor of the
classroom.
After careful examination of the record, we find no reason to disagree with
the conclusion of the trial court that Renato had indeed shot and killed
Francis under the circumstances and in the manner described by these
witnesses.
1. The claim of self-defense.
Renato claimed that he was acting in self-defense, or at least in incomplete
self-defense, when he shot Francis. For a claim of self-defense to be
sustained, the claimant must show by clear and convincing evidence that the
following requisites existed:
a) unlawful aggression on the part of the victim;
b) reasonable necessity of the means employed by the
accused to repel the aggression; and
c) lack of sufficient provocation on the part of the accused.
Testifying in his own behalf, Renato said that a few minutes before the end of
Mrs. Baluma's English III class, Francis had approached him:
(Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had a
conversation with Francis?
(Renato)
A: While the class was going on, Mrs.
Baluma was writing on the blackboard.
Q: Then what happened?
A: While our teacher was writing on the
blackboard Francis suddenly got near me.
Q: And what happened when Francis
approached you?
A: He said, 'So you are brave now you had a
(sic) guts to fight against me.'
Q: And what else did he say?
A: He said, 'Go home, get your firearm
because I will go home to get a gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your
firearm, if you won't go home and get a gun,
I will go to your place and kill you including
your parents, brothers and sisters.'
Q: And after that where did Francis go?
A: Before the bell rang he went ahead. 13
(Emphasis supplied)
12 We note at the outset that there was no evidence before the Court, except
Renato's own testimony, that Francis had uttered the above statements
attributed to him by Renato. Although there had been about twenty-five (25)
other students, and the teacher, in the classroom at the time, no
corroborating testimony was offered by the defense. In the second place,
assuming (arguendo merely) that Francis had indeed made those
statements, such utterances cannot be regarded as the unlawful aggression
which is the first and most fundamental requirement of self-defense.
Allegedly uttered in a high school classroom by an obviously unarmed
Francis, such statements could not reasonably inspire the "well grounded
and reasonable belief" claimed by Renato that "he was in imminent danger of
death or bodily harm." 14 Unlawful aggression refers to an attack that has
actually broken out or materialized or at the very least is clearly imminent: it
cannot consist in oral threats or a merely threatening stance or
posture. 15Further as pointed out by the Solicitor General, Francis was
obviously without a firearm or other weapon when Renato returned and burst
into Room 15 demanding to know where Francis was and forthwith firing at
him repeatedly, without the slightest regard for the safety of his other
classmates and of the teacher. There being no unlawful aggression, there
simply could not be self-defense whether complete or incomplete, 16 and
there is accordingly no need to refer to the other requirements of lawful self-
defense.
2. The claim that P.D. No. 1866 is inapplicable.
As pointed out at the outset, appellant was charged with unlawful possession
of an unlicensed firearm, a Smith and Wesson Airweight.38 caliber revolver
with five (5) spent bullets and five (5) live ones and with having used such
firearm and ammunition to shoot to death Francis Ernest Escano III, in
violation of Section 1 of P.D. No. 1866.
Section 1 of P.D. No. 1866 provides, in relevant part, that:
Section 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. — The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall
be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any
firearms, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture
of any firearm or ammunition.
If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be
imposed. (Emphasis supplied)
Appellant urges that P.D. No. 1866 is inapplicable to him "considering that
the reason for its [P.D. No. 1866] issuance no longer exists." He argues that
P.D. No. 1866 was enforceable only during the existence of martial law, and
that when martial law was "lifted in 1979," the reason for the "existence" of
P.D. No. 1866 faded away, with the result that the "original law on firearms,
that is, Section 2692 of the [Revised] Administrative Code, together with its
pre-martial law amendments, came into effect again thereby replacing P.D.
No. 1866." 17
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983)
which suggests that it was intended to remain in effect only for the duration of
the martial law imposed upon the country by former President Marcos.
Neither does the statute contain any provision that so prescribes its lapsing
into non-enforceability upon the termination of the state or period of martial
law. On the contrary, P.D. No. 1866 by its own terms purported to
"consolidate, codify and integrate" all prior laws and decrees penalizing
illegal possession and manufacture of firearms, ammunition and explosives
in order "to harmonize their provisions as well as to update and revise certain
provisions and prior statutes "in order to more effectively deter violators of
the law on firearms, ammunitions and explosives." 18 Appellant's contention
is thus without basis in fact.
3. The claim of double jeopardy.
It is also contended by appellant that because he had already been charged
with illegal possession of a firearm and ammunition in Criminal Case No.
4007, aggravated by the use of such unlicensed firearm to commit a
homicide or murder, he was unconstitutionally placed in jeopardy of
punishment for the second time when he was charged in Criminal Case No.
4012 with murder "with the use of an unlicensed [firearm]," in violation of
Article 248 of the Revised Penal Code in relation to Section 17 of B.P. Blg.
179.
It is elementary that the constitutional right against double jeopardy protects
one against a second or later prosecution for the same offense, and that
when the subsequent information charges another and different offense,
although arising from the same act or set of acts, there is no prohibited
double jeopardy. In the case at bar, it appears to us quite clear that the
offense charged in Criminal Case No. 4007 is that of unlawful possession of
an unlicensed firearm penalized under a special statute, while the offense
charged in Criminal Case No. 4012 was that of murder punished under the
Revised Penal Code. It would appear self-evident that these two (2) offenses
in themselves are quite different one from the other, such that in principle,
the subsequent filing of Criminal Case No. 4012 is not to be regarded as
having placed appellant in a prohibited second jeopardy.
We note that the information in Criminal Case No. 4007 after charging
appellant with unlawful possession of an unlicensed firearm and ammunition,
went on to state that said firearm and ammunition had been used to shoot to
death Francis Ernest Escaño III. We note also that the amended information
in Criminal Case No. 4012 after charging appellant with the unlawful killing of
Francis Ernest Escaño III, stated that the killing had been done with the use
of an unlicensed firearm. We believe these additional allegations in the two
(2) informations did not have the effect of charging appellant with having
committed the same offense more than once.
However, in sentencing Renato to suffer the penalty of death for the crime of
murder, the trial court did take into account as a "special aggravating
circumstance" the fact that the killing of Francis had been done "with the use
of an unlicensed firearm." In so doing, we believe and so hold, the trial court
committed error. There is no law which renders the use of an unlicensed
firearm as an aggravating circumstance in homicide or murder. Under an
information charging homicide or murder, the fact that the death weapon was
an unlicensed firearm cannot be used to increase the penalty for the second
offense of homicide or murder to death (or reclusion perpetua under the 1987
Constitution). The essential point is that the unlicensed character or condition
of the instrument used in destroying human life or committing some other
crime, is not included in the inventory of aggravating circumstances set out in
Article 14 of the Revised Penal Code. 19
In contrast, under an information for unlawful possession (or manufacture,
dealing in, acquisition or disposition) of a firearm or ammunition, P.D. No.
1866 authorizes the increase of the imposable penalty for unlawful
possession or manufacture, etc. of the unlicensed firearm where such firearm
was used to destroy human life. Although the circumstance that human life
was destroyed with the use of the unlicensed firearm is not an aggravating
circumstance under Article 14 of the Revised Penal Code, it may still be
taken into account to increase the penalty to death (reclusion perpetua,
under the 1987 Constitution) because of the explicit provisions of P.D. No.
1866. As noted earlier, the unlawful possession of an unlicensed firearm or
ammunition is an offense punished under a special law and not under the
Revised Penal Code.
4. The claim that there was no treachery.
Appellant contends that there was no treachery present because before any
shot was fired, Renato had shouted "where is Francis?" Appellant in effect
suggests his opening statement was a warning to Francis and that the first
three (3) shots he had fired at Francis were merely warning shots. Moreover,
building upon his own testimony about the alleged threat that Francis had
uttered before he (Renato) left his English III class to go home and get a gun,
appellant argues that Francis must have anticipated his return and thus had
sufficient time to prepare for the coming of the appellant. 20 Appellant's
contention, while ingenious, must be rejected. The trial court made a finding
of treachery taking explicit account of the following factors:
1. Room 15 of the Divine Word College High School
Department Tagbilaran City, is situated in the second floor of
the building. It is a corner room and it has only one (1) door
which is the only means of entry and exit;
2. At the time of the attack, the deceased was seated on his
chair inside his classroom and was writing on the armrest of
his chair and also talking to Ruel Ungab and while their
teacher, Mr. Damaso Pasilbas was checking the attendance.
The deceased was not aware of any impending assault
neither did he have any means to defend himself;
3. The accused used an airweight Smith & Wesson .38
caliber revolver in shooting to death the defenseless and
helpless Francis Ernest Escaño;
4. The attack was so sudden and so unexpected. the
accused consciously conceived that mode of attack;
5. The accused fired at Francis again and again and did not
give him a chance to defend himself. After the deceased was
hit on the head and fell to the floor while he was already
sprawled and completely defenseless the accused fired at
him again and the deceased was hit on the chest;
6. The deceased was not armed. He was totally defenseless.
He was absolutely not aware of any coming attack. 21
The Court also pointed out that Renato must have known that Francis while
inside Room 15 had no means of escape there being only one (1) door and
Room 15 being on the second floor of the building. Renato in effect blocked
the only exit open to Francis as he stood on the teacher's platform closest to
the door and fired as Francis and Ruel sought to dash through the door.
Renato's question "where is Francis?" cannot reasonably be regarded as an
effort to warn Francis for he shot at Francis the instant he sighted the latter,
seated and talking to Ruel Ungab. That Renato fired three (3) shots before
hitting Francis with the fourth shot, can only be ascribed to the indifferent
markmanship of Renato and to the fact that Francis and the other students
were scurrying from one part of the room to the other in an effort to evade the
shots fired by Renato. The cumulative effect of the circumstances
underscored by the trial court was that the attack upon Francis had been
carried out in a manner which disabled Francis from defending himself or
retaliating against Renato. Finally, the circumstance that Renato, having
been informed that Francis was still alive, re-entered Room 15 and fired
again at Francis who lay on the floor and bathed with his own blood,
manifested Renato's conscious choice of means of execution which directly
and especially ensured the death of his victim without risk to himself. 22 We
are compelled to agree with the trial court that treachery was here present
and that, therefore, the killing of Francis Ernest Escaño III was murder.
 5. The claim that there was no evident premeditation.
The trial court also found the presence of evident premeditation and
appreciated the same as a generic aggravating circumstance. Here, it is the
urging of the appellant that the requisites of evident premeditation had not
been sufficiently shown. In order that evident premeditation may be taken
into account, there must be proof of (a) the time when the offender formed
his intent to commit the crime; (b) an action manifestly indicating that the
offender had clung to his determination to commit the crime; and (c) of the
passage of a sufficient interval of time between the determination of the
offender to commit the crime and the actual execution thereof, to allow him to
reflect upon the consequences of his act. 23 The defense pointed out that
barely fifteen (15) minutes had elapsed from the time Renato left his English
III class and the time he returned with a gun. While there was testimony to
the fact that before that fatal day of 14 December 1984, anger and
resentment had welled up between Francis and Renato, there was no
evidence adequately showing when Renato had formed the intention and
determination to take the life of Francis. Accordingly, we must discard
evident premeditation as an aggravating circumstance.
6. The claim that the killing was not done under the influence
of a dangerous drug.
Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982
provides as follows:
SEC. 17. The provisions of any law to the contrary
notwithstanding, when a crime is committed by an offender
who is under the influence of dangerous drugs, such state
shall be considered as a qualifying aggravating circumstance
in the definition of a crime and the application of the penalty
provided for in the Revised Penal Code.
The trial court found that Francis was killed by Renato while the later was
under the influence of a dangerous drug, specifically marijuana, and took that
into account as a "special aggravating circumstance". No medical evidence
had been submitted by the prosecution to show that Renato had smoked
marijuana before gunning down Francis. Fourteen (14) days had elapsed
after December 14, 1984 before Renato was medically examined for possible
traces of marijuana; the results of the examination were negative. Defense
witness Dr. Rogelio Ascona testified that in order to have a medically valid
basis for determining the presence of marijuana in the human system, the
patient must be examined within twenty-four (24) hours from the time he is
supposed to have smoked marijuana. 24 The prosecution had presented
Orlando Balaba, a student at the Divine Word College, High School
Department, who testified that he found Renato and one Jaime Racho inside
the men's room of the High School Department sucking smoke from a hand-
rolled thing that look like a cigarette, that he had asked Renato what that was
and that Renato had replied damo (marijuana). 25 While the testimony of
Orlando Balaba was corroborated by two (2) other prosecution witnesses, we
believe that Orlando Balaba's testimony was incompetent to show that what
Renato and Jaime Racho were smoking inside the men's room was indeed
marijuana. It was pointed out by apellant that Orlando Balaba had never
smoked nor smelled marijuana.
In the absence of medical evidence, the Court took into account certain
detailed factors as circumstantial evidence supporting the testimony of
Orlando Balaba. These circumstances were:
The circumstance of place where the killing was committed,
the circumstance of the manner of the attack, the
circumstance of holding hostage some teachers and
students inside the faculty room, the circumstance of
terrifying an entire school, the circumstance that sitting on a
scrapbook is too insignificant as to arouse passion strong
enough to motivate a killing, are circumstantial evidences
that gave the court no room for doubt that prosecution
witnesses Orlando Balaba, Benjamin Amper and Allan de la
Serna truthfully told the court that they saw the accused
smoking marijuana inside the comfort room at 1:45 in the
afternoon of December 14, 1984. ... . 26
The above circumstances pointed to by the trial court may be indicative of
passionate anger on the part of Renato; we do not believe that they
necessarily show that Renato had smoked marijuana before entering his
English III class. In the absence of competent medical or other direct
evidence of ingestion of a dangerous drug, courts may be wary and critical of
indirect evidence, considering the severe consequences for the accused of a
finding that he had acted while under the influence of a prohibited drug. The
Court considers that the evidence presented on this point was simply
inadequate to support the ruling of the trial court that Renato had shot and
killed Francis while under the influence of a prohibited drug.
7. The claim that appellant had voluntarily surrendered.
Appellant contends that he had voluntarily surrendered and that the trial court
should have considered that mitigating circumstance in his favor. The trial
court did not, and we consider that it correctly refused to do so. Firstly,
Renato surrendered his gun, not himself, 27 by handing over the weapon
through the balustrade of the faculty room. Secondly, he surrendered the gun
to his brother, who was not in any case a person in authority nor an agent of
a person in authority. 28 Thirdly, Renato did not surrender himself he was
arrested by Capt. Lazo. The fact that he did not resist arrest, did not
constitute voluntary surrender. 29 Finally, if it be assumed that Renato had
surrendered himself, such surrender cannot be regarded
as voluntary and spontaneous. Renato was holed up in the faculty room, in
effect holding some teachers and students as hostages. The faculty room
was surrounded by Philippine Constabulary soldiers and there was no
escape open to him. He was not entitled to the mitigating circumstance of
voluntary surrender.
8. Whether or not the crime was committed in contempt of or
with insult to the public authorities.
The trial court held that the shooting to death of Francis had been done "in
contempt of or with insult to the public authorities:
Under Republic Act 1978, as amended, a teacher of a public
or private school is considered a person in authority. The
fact that Mr. Damaso Pasilbas, the teacher in mathematics,
was already checking the attendance did not deter the
accused from pursuing his evil act, The accused ignored his
teacher's presence and pleas. Not yet satisfied with the
crime and terror he had done to Francis and the entire
school, the accused entered the faculty room and held
hostage the teachers and students who were inside that
room. To the court, this act of the accused was an insult to
his teachers and to the school, an act of callus disregard of
other's feelings and safety and completely reprehensible. 30
We believe the trial court erred in so finding the presence of a generic
aggravating circumstance. Article 152 of the Revised Penal Code, as
amended by Republic Act No. 1978 and Presidential Decree No. 299,
provides as follows:
Art. 152. Persons in authority and agents of persons in
authority. — Who shall be deemed as such. — In applying
the provisions of the preceding and other articles of this
Code, any person directly vested with jurisdiction, whether
as an individual or as a member of some court or
government corporation, board, or commission, shall be
deemed a person in authority. A barrio captain and a
barangay chairman shall also be deemed a person in
authority.
A person who by direct provision of law or by election or by
appointment by competent authority, is charged with the
maintenance of public order and the protection and security
of life and property, such as a barrio councilman, barrio
policeman and barangay leader and any person who comes
to the aid of persons in authority, shall be deemed an agent
of a person in authority.
In applying the provisions of Articles 148 and 151 of this
Code, teachers, professors and persons charged with the
supervision of public or duly recognized private
schools, colleges and universities, and lawyers in the actual
performance of their professional duties or on the occasion
of such performance, shall be deemed persons in
authority. (As amended by P.D. No. 299, September 19,
1973 and Batas Pambansa Blg. 873, June 12, 1985).
Careful reading of the last paragraph of Article 152 will show that while a
teacher or professor of a public or recognized private school is deemed to be
a "person in authority," such teacher or professor is so deemed only for
purposes of application of Articles 148 (direct assault upon a person in
authority), and 151 (resistance and disobedience to a person in authority or
the agents of such person) of the Revised Penal Code. In marked contrast,
the first paragraph of Article 152 does not identify specific articles of the
Revised Penal Code for the application of which any person "directly vested
with jurisdiction, etc." is deemed "a person in authority." Because a penal
statute is not to be given a longer reach and broader scope than is called for
by the ordinary meaning of the ordinary words used by such statute, to the
disadvantage of an accused, we do not believe that a teacher or professor of
a public or recognized private school may be regarded as a "public authority"
within the meaning of paragraph 2 of Article 14 of the Revised Penal
Code, 31 the provision the trial court applied in the case at bar.
ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby
MODIFIED in the following manner and to the following extent only:
1. In Criminal Case No. 4007, appellant shall suffer the
penalty of reclusion perpetua;
2. In Criminal Case No. 4012 — (a) the aggravating
circumstances of evident premeditation and of having acted
with contempt of or insult to the public authorities shall be
DELETED and not taken into account; and (b) the special
aggravating circumstances of acting while under the
influence of dangerous drugs and with the use of an
 unlicensed firearm shall similarly be DELETED and not
taken into account. There being no generic aggravating nor
mitigating circumstances present, the appellant shall suffer
the penalty of reclusion perpetua.
The two (2) penalties of reclusion perpetua shall be served successively in
accordance with the provisions of Article 70 of the Revised Penal Code. As
so modified, the decision of the trial court is hereby AFFIRMED. Costs
against appellant.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.
G.R. No. 88631 April 30, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO COLLADO, CRISANTO LARA, FELIX COLLADO @ "ELEX
COLLADO," ROMEO GLORIANI, accused, CRISANTO LARA, accused-
appellant.
The Solicitor General for plaintiff-appellee.
Wilfredo O. Paraiso for accused-appellant.
MEDIALDEA, J.:
The accused, Fernando Collado, Crisanto Lara, Felix Collado (alias Elex
Collado) and Romeo Gloriani, were charged with the crime of robbery with
homicide in Criminal Case No. SC-3180 before the Regional Trial Court, 4th
Judicial Region, Branch 26, Santa Cruz, Laguna. The information filed in said
case reads (p. 23, Rollo):
That on or about January 20, 1985 at Barangay Mojon, Municipality
of Pila, Province of Laguna, and with the jurisdiction of this
Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another, with intent to gain,
(with) violence against or intimidation of person, in an uninhabited
place and while conveniently armed with a piece of wood and knife
did, then and there, wilfully, unlawfully and feloniously take, steal and
carry away FIVE THOUSAND FIVE HUNDRED SEVENTY PESOS
(P5,570.00) in cash and one Seiko Wrist watch worth P500.00 with
the total value of P6,070.00 against the will and consent of the owner
thereof, Mrs. Maria Regay, and by reason and on occasion of such
robbery, said accused with treachery, abuse of superior strength and
in disregard of the respect due the offended party on account of her
age and sex being an old woman, with intent to kill and without
justifiable cause, did then and there wilfully, unlawfully and
feloniously attack, assault, hit and stab with said piece of wood and
knife Maria Regay who as a result thereof sustained multiple injuries
in the different vital parts of her body which directly caused her death
to the damage and prejudice of the heirs of said Maria Regay.
CONTRARY TO LAW.
Upon being arraigned on April 15, 1986, Fernando Collado and Crisanto Lara
pleaded not guilty to the crime charged and the case against them was set
for trial while Felix Collado and Romeo Gloriani remained at large. On
September 8, 1986, Fernando Collado withdrew his former plea of not guilty
and pleaded guilty as an accomplice. The judgment with respect to him was
promulgated on September 9, 1986. Thereafter, trial on the merits proceeded
against Crisanto Lara. On May 4, 1989, the trial court rendered its decision,
the dispositive portion of which, reads (p. 43, Rollo):
WHEREFORE, finding the accused, CRISANTO LARA, guilty
beyond reasonable doubt as principal in the crime of Robbery With
Homicide, he is hereby sentenced to suffer the penalty of reclusion
perpetua and the accessory penalties imposed by law, to indemnify
the heirs of the victim in the amount of P30,000.00, without
subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Hence, the present appeal by Crisanto Lara.
The antecedent facts, as stated in the plaintiff-appellee's brief are, as follows
(pp. 4-18, Appellee's Brief, p. 97, Rollo):
On January 18, 1985, appellant Crisanto Lara went to the house of
Honorio delos Santos in Pila, Laguna and proposed to the latter that
they hold-up Maria Regay. The following day, January 19th, at
around 6:00 o'clock P.M., appellant returned to his (delos Santos)
house to follow up the proposal. On both occasions, however, delos
Santos told appellant that he did not want to go as he did not like that
kind of work (pp. 10-11, 16, TSN, April 21, 1987).
On January 20, 1985 at around 7:00 o'clock A.M., Josefina
Buenaflor, a resident of Mojon, Pila, Laguna, and a daughter of the
victim Maria Regay saw Crisanto Lara on the road walking to and fro
between his house and her house while conversing with the
neighbors. Afterwards, Nanding Collado came out from his house
and went over to Crisanto (p. 6, TSN, October 14, 1986).
At about 9:30 to 10:00 A.M. of the same day, January 21, (sic) 1985,
Mario Marasigan, son-in-law of the victim, was at the a coconut
plantation he was tending which was about 100 meters from the
barrio road. He was cutting trees which he would use as posts for his
house. He climbed up a tall madre de cacao tree and after he had
cut a branch, he saw Felix Collado and Fernando Collado standing
on either end of the pathway leading to Barangay Pansol and
Concepcion as if waiting for somebody. He also saw Crisanto Lara
and Romeo Gloriani at the middle of this pathway about 40 meters
away from him. Crisanto Lara was holding a piece of wood and
Romeo Gloriani was hiding behind a coconut tree (TSN, September
15, 1986, pp. 5-6, 8; TSN, September 30, 1988, p. 11).
After a few minutes (sic), he saw the victim Maria Regal (sic) walking
along the pathway at a distance of more or less 40 meters from him
on the way back to Mojon from the direction of Barangay
Concepcion. Felix Collado who was on that end of the pathway hid
himself and she continued walking to where Crisanto Lara was now
positioned hiding behind a coconut tree (TSN, Sept. 30, 1986, p. 15).
Then Crisanto Lara struck her on the face with a piece of wood, a
guava branch with a diameter of around 2 1/2 inches, with such
strong force that the old woman fell on the ground. Crisanto Lara
then hid himself and Romeo Gloriani dragged the stricken victim for
about 5 (sic) meters to a coconut tree where Gloriani pulled out his
knife and after stabbing her once she appeared to regain
consciousness and began struggling on her back and rolling on the
ground as Gloriani continued stabbing her. The weapon used by
Gloriani for stabbing was a double bladed dagger around 6 to 7
inches long excluding the handle (TSN, Sept. 15, 1985, pp. 7-9;
TSN, Sept. 30, 1985, p. 16).
Marasigan was taken by surprise seeing his uncle hit his mother-in-
law that he was not able to shout (p. 15, ibid).
When the old woman stopped struggling, Romeo Gloriani pulled up
her skirt and cut a cord tied around her waist where she kept her
money
(p. 17, Ibid) and at that time Crisanto Lara reappeared and came
near and both Crisanto Lara and Romeo Gloriani left followed by
Fernando Collado and Elex Collado who took the same route
through the fence and towards the house of Fernando Collado (pp.
8-9, ibid).
Marasigan then went down the tree but did not go near the victim.
Neither did he tell his relatives about the incident in consideration of
appellant Crisanto Lara who is his uncle. He left the place at around
10:30 A.M. and returned to his house and did his normal work there
(pp. 19-20, 26, ibid).
In the same morning at around 10:00 A.M. Josefina Buenaflor was
told by her sister that their mother who attended a wedding feast at
Mojon had not yet returned home. So they started to look for her at
the coconut plantation as this was the route she usually took in going
to Mojon. They failed to find her. They inquired from their neighbors
who also did not know the whereabouts of their mother (pp. 9-10,
TSN, October 14, 1986).
At around 3:00 o'clock P.M., a certain Ugid Balatibat told Josefina
Buenaflor that he saw the latter's mother sprawled on a coconut
plantation. She and her sister ran to the place, crying. But before
they reached the place, about three coconut plantations away from
the place where they eventually (sic) found their mother, Crisanto
Lara stopped them telling them, not to touch the body of their mother
as there were no policemen yet at that time (pp. 9, 10, 14, ibid).
Finally, on January 21, 1985, Josefina Buenaflor was able to see the
body of her mother at the plantation. She was then with policemen
and with her barrio mates (p. 10, ibid).
Her mother had a "kacha" tied on her waistline where she kept the
money she earned from the sale of the pigs and chickens that she
raised. When her mother was found dead there was no more "katsa"
wrapped around the latter's waist (pp. 12-13, ibid).
Maria Regay also had a Seiko watch valued at P500.00 which she
placed in her pocket. The watch, however, was not anymore in her
pocket when she was found dead (pp. 13-14, ibid).
The wake of Maria Regay lasted for 5 days. Crisanto Lara attended
the wake and even often looked at the cadaver of Maria Regay. He
even solicited contributions from tricycle drivers (pp. 10-11, 15, ibid).
Dr. Rosauro Framil, a Municipal Health Officer of Pila, Laguna and a
resident of Pila, Laguna conducted an autopsy on a certain Maria
Regay on January 21, 1985, at the Laguna Provincial Hospital
Morgue, Sta. Cruz from 9:00 P.M. to 12:00 midnight of January 21,
1985 (pp. 4-5, TSN, September 9, 1986).
The victim had already shown sign of putrefactive changes as shown
by the appearance of small worms on the eyes, nose and ear
openings. The body was already emitting unfavorable odor which
suggest (sic) death for more than 24 hours. In his opinion the
incident took place at more or less 10:00 A.M. of January 20, 1985
(pp. 5-6, 19, ibid).
There was a depressed fracture on the head region and on the left
temporal with contusions. There was also a periorbital contusion on
the side of the head (p. 6, ibid).
He further testified that on the chest and back, there were multiple
stab wounds, about 9:2 stab wounds on the left and right area below
the clavicle, one on the right breast, a stab wound on the left breast,
a stab wound on the right side of the chest just above and medial to
right arch, a stab wound on the mid portion, on the left side of the
chest just above the left subcostal arch, and another stab wound on
the left side of the chest along mid auxiliary line about the level of the
7th intercostal space. Length of the stab wound on both sides of the
scapular area on the back and abdominal region, there was no
external injury seen on the area. On the extremities, the right forearm
had a fracture closed and complete at its 3rd radio/ulna bones. The
left upper arm was almost macerated which could be the result of
some animal bites probably a stray dog. These were the external
findings (p. 6, ibid).
As to internal findings, there was extradural hemorrhage on the left
temporal area; on the chest intrapleural hemorrhage bilateral due to
the wound inflicted on both lungs, right middle lobe has been hit. Left
lung –– middle and lower lobe have both stab wounds which
produced more hemorrhage than that of the left. The heart was not
hit (p. 7, ibid).
The affected internal organs of the body of the victim were: fracture
on the head region, so there was involvement of the brain, the
extradenal hemorrhage of the left temporal area is the result of the
depressed fracture on the head. On the body, the internal organs
severed were the lungs, right and left and in the abdominal region,
there were none and also the bones which were evidenced by the
fracture on the right forearm and the right upper arm (p. 8, ibid).
On opening the skull, there was extradenal hemorrhage on the left
temporal area. It is located on the side. Extradenal means that the
brain is covered by denal matter and outside of that is the place
where the hemorrhage sets in (p. 11, ibid).
By the nature of the total injuries, the instruments used by the
assailant could be that considering the fracture on the head, it could
be due to some hard object like a piece of wood or metal which most
probably could give rise to the depressed fracture. With respect to
the stab wounds, probably a double bladed knife could have been
used because (sic) of the nature of the stab wounds itself (p. 8, ibid).
The cause of death was pulmonary failure secondary to lung
damage. Severe hemorrhage intrapleural secondary to lung damage
brought about by the penetrating stab wounds on the chest, most
probably, the weapon used was a knife. Since the hemorrhage on
the brain is not as much as that to the hemorrhage on the lungs, he
presumed that the cause of death was more due to the damage on
the lungs. Assuming, however, that there were no other wounds and
that the only wound was on the skull which caused hemorrhage, the
hemorrhage on the skull would be sufficient to cause death (p.
11, ibid).
He could not tell the relative position of the victim and the assailant
but as to the wound on the head, however, his honest guess was
that when the victim was hit, the latter was not facing the assailant
(p. 13, ibid).
On February 5, 1985, Mario Marasigan finally reported to Pfc.
Villanueva that he witnessed the killing and robbery committed
against Maria Regay. He said that he reported the matter which he
kept to himself for 15 days because he was bothered by his
conscience behind the death of his mother-in-law (pp. 22-23, 24-25,
TSN, September 30, 1986).
In April of 1985, Fernando Collado was apprehended at the Pacita
Complex, San Pedro, Laguna. Raymundo T. Matiola, a policeman
and a resident of Pila, Laguna took the sworn statement (Exhibit C)
of Fernando Collado on April 8, 1985 that there were four who were
responsible for the slaying and robbing of Maria Regay, namely:
one alias Elee, Fernando Collado, Crisanto Lara and Loriana, whose
first name he did not remember (pp. 3-4, TSN, December 12, 1986).
The defense of appellant Crisanto Lara is one of alibi. He testified
that he was a resident of Balat-atis, San Antonio, Quezon. On
January 20, 1985 at around 9:00 A.M. to 11:00 A.M., he was at the
Laguna Provincial Hospital in Sta. Cruz. He visited his nephew,
Romeo Marasigan as the latter's body become (sic) swollen. He
stayed in the hospital up to more or less 2:00 o'clock P.M. (pp. 3-4,
9, TSN, March 11, 1987).
When he left the hospital, he went to Barangay Pansol, Pila, Laguna
and arrived there at 3:00 P.M. He went to the house of the father of
his nephew. After that he rested and then he cooked food. After
cooking, he again rested for more or less one (1) hour and then he
ate ( pp. 5-6, ibid).
He spent the night of January 20, 1985 in the house of the father of
his nephew, He went to sleep at more or less 6 (sic) or 6:30 P.M. He
woke up at 5:00 A.M. of January 21 (p. 6, ibid).
After that, he went to the house of his niece at Barangay Mojon, Pila,
Laguna and arrived there at more or less 10:00 A.M. While there, he
heard that a certain Maria was missing (p. 7, ibid).
He admitted seeing Josefina Buenaflor on January 21, 1981 (sic)
while she was on her way to see her mother and told her that it
would be better to call first the police (p. 7, ibid) but denied the
testimony of Mario Marasigan that he was one of those who
participated in the slaying and robbing of Maria Regay and the one
who allegedly struck Maria with a branch of guava tree because he
cannot hold a branch as it is heavy and his left hand is amputated
and his other hand is "pasmado." For the record, appellant's right
hand was shown –– the forefinger is severed and there is a scar at
the back of his palm, and the middle finger is also damaged as well
as the ring finger. The other fingers are deformed (p. 8, ibid).
His left hand was amputated and right hand damaged on March 13,
1981 when he caused palay to be milled that day and he was
waylaid while going to the ricemill. Since then and prior to February
20, 1984 (sic) that was the condition of his left and right arm (p. 2,
TSN, March 17, 1987) but he continued to have a job of "buying
banana fruits" (p. 7, ibid).
But while he claimed that his right hand could not hold a knife, when
asked to handle a stamp pad in open court, he was able to grasp the
same (pp. 7-8, ibid).
During the wake, he solicited from the tricycle drivers because he
was told to do so by Honorio, a member of the barangay council and
an "alalay" of the barangay captain. The one who gave his collection
to the family of Maria Regay was Honorio (pp. 4-5, TSN, April 2,
1987).
Fernando Collado who pleaded guilty as an accomplice in this case
claimed that he knows appellant Crisanto Lara only by face; that it
was only at the provincial jail that they came to know each other (pp.
2-3, TSN, January 14, 1987).
On January 20, 1985 at around 9:00 A.M. to 10:30 A.M., he
remembered being in the land of a certain Jun at Mojon, Pila,
Laguna whose full name he did not know and while there, his uncle,
Romeo Gloriani, called him and told him that he was waiting for the
old woman, Maria. At that time, aside from he (sic) and his uncle,
there were no other persons around (pp. 3-4, ibid).
When Matandang Maria showed up, his uncle pointed a balisong
knife at her. After that his uncle got her money and gave the money
to him After he received the money, he ran away. He did not
anymore see what his uncle did to Matandang Maria (p. 5, ibid).
He proceeded to the irrigation site of Mojon, Pila, Laguna where his
uncle followed him and he gave him the money who in turn gave him
P200.00 (pp. 5-6, ibid).
After that, his uncle left. Before the latter left, however, he told him
that if the event would be discovered, witness should tell that it was
Crisanto Lara and Felix Collado who did it (pp. 6-7, ibid).
After that, he stayed in the town proper of Pila for 2 weeks and he
proceeded to San Pedro at the Pacita Complex where he worked at
a construction company. After 2 months of working there, however,
he was apprehended by the Pila Police in connection with the slaying
and robbing of Maria Regay. He was brought to the municipal
building of Pila (pp. 7-8, ibid).
He alleged that during his investigation, he was given blows, kicks,
and bullets placed in between his fingers and electric treatment by
the police authorities of Pila, because he told them that it was his
uncle who was the culprit. After that he was asked to sign a
confession (Exhibit C) prepared by police authorities (pp. 8-10, ibid).
While detained at the Provincial Jail, he wrote a letter (Exhibit 1)
addressed to Fiscal Regaza, a portion of which, marked as Exhibit I-
a, states as follows:
 xxx xxx xxx
. . . aaminin ko na po ang aking pagkakasala sa harap ng
hukuman, subalit kung bibigyan po ninyo ako ng mababang
sintensiya, labis na po akong naawa sa isang tao na
napasangkot o isinangkot ng aking complainant dahil sa
katotohanang siya po ay wala sa lugar na pinangyarihan ng
krimen.
Ang tao pong ito ay si Ginoong Crisanto Lara, tatlumpu at
apat na taong gulang ng Barangay Balat-atis San Antonio,
Quezon.
While he initially denied being (sic) written Exhibit 1 claiming that it
was written by Jojo Acosta from San Pedro (p. 19, TSN, January 23,
1987), on subsequent questioning by the defense counsel, however,
he stated that the whole of Exhibit 1-a are his (p.14, ibid).
In this appeal, the accused-appellant raises the following assignment of
errors (pp. 51-52, Rollo):
I ground (p. 8, ibid), facing the direction where the four accused were
The trial court erred in giving credence to the testimony of Mario
Marasigan.
II
The trial court erred in finding that accused Crisanto Lara struck the
victim with a piece of wood and that the prosecutor was able to
demonstrate that the accused can still hold and grip a stamp pad.
III
The trial court erred in giving credence to the testimony of rebuttal
witness Honorio Delos Santos.
IV
The trial court erred in not giving credence to the entire testimony of
accused Fernando Collado.
I attacked because he was taken by surprise when he saw his uncle, the
The accused-appellant tries to destroy the credibility of Mario Marasigan by
asseverating that: 1) if he really searched the coconut plantation in looking
for a suitable post, he would have seen the four accused during that time
considering that the tree where he got the post is about 50 meters away from
the scene of the incident, unless the four accused and the victim fell down
from the sky; 2) the sound produced by cutting the branches of a tree would
not have escaped the sense of hearing of the four accused; 3) he testified
that the first time he saw the accused-appellant again since January 20,
1985 was when the accused-appellant was apprehended by the police but
according to the daughter of the victim, the accused-appellant attended the
wake and even solicited contributions; 4) his failure to help the victim and
report the incident immediately but instead proceeded to do his normal work
is inconsistent with human nature; and 5) his cross-examination is full of
material inconsistencies as to the length of time he stayed atop the tree and
the place where the accused-appellant was positioned.
Mario Marasigan's failure to see the four accused at the time he was looking
for posts could be due to the fact that the coconut plantation was vast (p. 4,
tsn, September 30, 1986). There were ten (10) coconut trees, seven (7)
lanzones trees, two (2) sampaloc trees and bamboo grass between the place
where he and the four accused were situated (p. 9, ibid). It was only when he
was already on the top of a tree (p. 7, ibid), about four (4) meters from the
positioned (p. 10, ibid), that he saw them. His view while on the top of a tree
was not in any way obstructed by these trees because they were tall and far
from one another (pp. 9-10, ibid).
Mario Marasigan has cut just one branch of the tree when he saw the four
accused (p. 11, tsn, September 30, 1986). He used a bolo in cutting this
branch (p. 7, ibid). The distance between him and the four accused was
about fifty (50) meters (p. 8, ibid). Taking into account these circumstances,
the four accused could not have heard the sound produced when Mario
Marasigan cut a branch of the tree. Besides, their attention was focused on
the arrival of the victim (p. 5, tsn; September 15, 1986). Thus, the four
accused could not have noticed the presence of Mario Marasigan.
It is probable that Mario Marasigan and the accused-appellant attended the
wake on different dates and time that is why the former saw the latter for the
second time since the incident only when he was apprehended by the police.
Mario Marasigan's failure to help the victim, his mother-in-law, and report the
incident immediately but instead proceeded to do his normal work, per se, is
inconsistent with human nature. However, such failure was satisfactorily
explained by him. He failed to help the victim while the latter was being
accused-appellant, hit her (p.15, p.18, tsn, September 30, 1986). He also
failed to report the incident at once to the authorities because one of the
perpetrators of the crime is his uncle and he pities him (p. 12, tsn, September
15, 1986; p. 26, tsn, September 30, 1986). He reported the incident on
February 5, 1985 or after 15 days, when he was disturbed by his conscience
(p. 22, tsn. September 30, 1986).
The inconsistencies referred to are de minimus which are not sufficient to
blur or cast doubt on Mario Marasigan's straightforward attestations
(see People v. Orita, G.R. No. 88724, April 3, 1990, 184 SCRA
105, citing People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA
98). Rather than discredit his testimony, discrepancies on minor details must
be viewed as adding credence and veracity to such spontaneous testimonies
(Aportadera, et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). Whether Mario Marasigan stayed on top of the tree
for ten (10) minutes or for twenty (20) to twenty five (25) minutes and
whether the accused-appellant was at the middle of the road or behind a
coconut tree is beside the point.
II
Still in relation to the questioned credibility of Mario Marasigan, the accused-
appellant alleges that he (Mario Marasigan) could not have positively
identified the piece of wood (guava branch, about 2.5 inches in diameter)
allegedly used in hitting the victim because he was fifty (50) meters away,
unless he possesses the eye of an eagle. The accused-appellant is unable to
hold a piece of wood with a diameter of about 2.5 inches much more swing
and strike it with such force as to cause a person to fall down because his left
hand is amputated, his light hand is "pasmado," with the forefinger severed,
the middle and ring fingers damaged and the other two fingers deformed.
Contrary to the finding of the trial court, nothing in the record shows that the
accused-appellant was able to hold and grip a stamp pad. Had the
proceedings taken place before the judge who penned the decision, he could
have taken judicial notice that at that point in time when the fiscal put into the
right hand of the accused-appellant a stamp pad, his right hand was then
resting on the arm rest of the chair with his palm open.
Mario Marasigan was able to specify the kind of wood used by the accused-
appellant in hitting the victim perhaps because of the fact that he is a
carpenter (p. 2, tsn, September 15, 1986), resident in a rural area and tends
a plantation (p. 4, ibid). It is, therefore, to be expected that he is familiar with
different types of wood. At any rate, the specific kind of wood used by the
accused-appellant is again of no moment. What is material is the testimony
of Mario Marasigan that the accused-appellant struck the victim on the face
with a piece of wood (p. 7, ibid). This was corroborated by the testimony of
the physician that the fracture on the head of the victim was most probably
caused by some hard object like a piece of wood or metal (p. 8, tsn,
September 9, 1986).
The alleged incapacity of the accused-appellant cannot overthrow the
positive testimony of Mario Marasigan that he saw him (the accused-
appellant) strike the victim with a piece of wood which caused her to fall to
the ground (p.15, tsn, September 30, 1986). The accused-appellant should
have proven in court his alleged incapacity. He merely testified that he is in a
position to submit to a physical examination with regard to the capability of
his right hand should the trial court desire (p. 8, tsn, March 11, 1987). It was
his duty to substantiate his contention and not rely on the desire of the trial
court. Anyway, in his cross-examination, the prosecution succeeded in
eliciting from him the vital fact that he is not left-handed and even after his
hands were damaged, he was still able to work, that is, buying banana fruits
(p. 7, tsn, March 17, 1987). Moreover, when a stamp pad was thrown to him,
he held it with his right hand (p. 8, ibid). The counsel of the accused-
appellant objected to the manner the fiscal conducted the cross-examination
because it was tantamount to making the accused-appellant the
prosecution's witness (ibid) and not because the right hand of the accused-
appellant was then resting on the arm rest of the chair with the palm open, as
he now claims. The defense of incapacity which was weak from the very
start, collapsed during the cross-examination.
III
The accused-appellant likewise puts in issue the credibility of Honorio delos
Santos because according to him, he came to know of the plan to rob the
victim on January 18 and 19, 1985 when the accused-appellant made such
proposal to him. However, it took him two years, three months and three
days before he revealed such proposal.
The delay by Honorio delos Santos to reveal the proposal made by the
accused-appellant to him was satisfactorily explained in his testimony that it
was long after the incident happened that the children of the victim needed
him (p. 26, tsn, April 21, 1987). At any rate, the accused-appellant's
conviction may be sustained even without Honorio delos Santos' testimony.
The testimony of Mario Marasigan, being positive and credible, is sufficient to
support a conviction (see People v. Mision, G.R. No. 63480, February 26,
1991).
IV
Finally, the accused-appellant maintains that since the judge who wrote the
decision had no opportunity of observing the demeanor of Fernando Collado
when he testified in court, the most logical thing for him to do was to consider
his entire testimony or disregard it entirely.
It is not unusual for a judge who did not try a case to decide it on the basis of
the record for the trial judge might have died, resigned, retired, transferred,
etc. (People v. Escalante, et al., G.R. No. L-37147, August 22, 1984, 131
SCRA 237). The fact that the judge who heard the evidence is not the one
who rendered the judgment and that for that reason the latter did not have
the opportunity to observe the demeanor of the witnesses during the trial but
merely relied on the records of the case does not render the judgment
erroneous (Co Tao v. Court of Appeals, 101 Phil. 188 and U.S. v. Abreu, 30
Phil. 402). Actually, it was not necessary for the trial judge, who wrote the
decision, to have observed the demeanor of Fernando Collado. He merely
considered his admission in court that money was taken from the victim,
P200.00 of which was given to him (p. 35, Rollo), and disregarded his
inconsistent testimony as to the participation of the accused-appellant in the
crime charged (pp. 40-41, Rollo):
It is on record that Fernando Collado declared at the courtroom that
Crisanto Lara was not with them at the time of the robbery, (TSN,
January 14, 1987, p. 5) but this appears to be a mere afterthought
because at the police station, he implicated the accused (Ibid, p. 7).
Though this was later explained by him as being the instruction of
their uncle, Romeo Gloriani, his excuse simply lacks reliability and
acceptance. Why impute the crime, of all people, on a nephew,
Feli(x) Collado, and a friend, Crisanto Lara? Why will his uncle
involve the two? Feli(x) Collado is (sic) his brother. Why did he
blindly follow his uncle? (W)as it not more convenient to point to
other persons not dear to them? This evidently goes against the
realities of life, unless of course, they were really in conspiracy with
one another.
We note that the judge who rendered judgment in this case took on a
painstaking task of scrutinizing in great detail the records and wrote a
comprehensive decision (pp. 34-41, Rollo):
After an evaluation of the evidentiary records, the Court finds beyond
reasonable doubt, that the accused, Crisanto Lara, has committed
the crime of Robbery with Homicide (sic). The prosecution has
sufficiently established by strong and persuasive evidence that the
accused was one of four persons who conspired to commit robbery
against the victim during the perpetration of which the latter was
killed. The evidence shows that the accused is a principal by direct
participation. No less than his nephew, Mario Marasigan, testified
that he saw him struck the victim on the face with a piece of wood
which appeared to him to be a branch of a guava tree (TSN,
September 15, 1986, p. 7). This was corroborated by the findings of
the medico-legal officer who testified that the victim also suffered a
fracture on the head due to some hard object, like a piece of wood
(TSN, September 9, 1989, pp. 8 and 11).
The overt act was the initial step of the conspirators in executing the
crime charged. After the victim was struck by the accused, she was
later on dragged and stabbed several times by Romeo Gloriani (Ibid,
p. 9) who thereafter raised her skirt and cut the cord of muslim cloth
(katsa) around her waist (TSN, September 30, 1986, p. 17; TSN,
October 14, 1986, p. 12) where she usually kept her money (TSN,
September 15,1986, p. 11). Accused Fernando Collado confirmed
that money was taken from the victim, P200.00 of which was given to
him (TSN, January 14, 1987, p.5).
xxx xxx xxx
The bare fact is that Mario Marasigan was very positive that it was
the accused who struck the victim. There could not have been a
case of mistaken identity; the accused was his uncle, a brother of his
father, Dionisio Marasigan, on his maternal side (TSN, September
15, 1986, p. 3; TSN, March 17, 1987, p. 6). And it has not been
shown that Mario Marasigan had an ill motive against his uncle.
xxx xxx xxx
As the accused was positively identified, his defense that he was in a
hospital at Sta. Cruz, Laguna, at the time of the incident cannot
prosper. Alibi is unavailing as a defense against the positive
identification of the accused by a witness (See Aportadera v. Court
of Appeals, G.R. 31358, March 16, 1988). It is an inherently weak
defense for it is easy to fabricate (Ibid). For alibi as a defense to
succeed, it must be shown that not only was an accused at some
other place at the same time but it was physically impossible for him
to have been at scene of the crime at the time of its commission
(People vs, Almario, G.R. 69374, March 16, 1989; People vs. Reunir,
G.R. 73605, January 29, 1988).
In this case, assuming his assertion that he was at the Laguna
Provincial Hospital at Santa Cruz is true, such fact cannot eliminate
him as a possible perpetrator. Judicial notice can be taken of the fact
that Sta. Cruz is just 9 kilometers away from Pila and can be reached
within 8 to 12 minutes. Brgy. Mojon is even nearer. In one case, it
was held that the fact that the victim's house is accessible by jeep or
tricycle via a well-paved road in a matter of 15 to 20 minutes from the
 place where the accused claimed to be at the time the crime was
committed, sufficiently demonstrates that it was not physically
impossible for the accused to be at the scene of the crime
(See People v. Temblor, G.R. 66884, May 28, 1988). In the case of
People vs. Almario, supra, the Supreme Court rejected the alibi of
the accused who claimed that he was at Tondo, Manila, which is one
and half hour drive from the scene of the crime, Lumban, Laguna.
Anyway, his self-serving defense of alibi was lacking in
corroboration. His nephew, Romeo Marasigan, whom he claimed to
have visited at the hospital was never presented to confirm his
version. Hospital records could have been subpoenaed and
presented to show that he was really confined in the said hospital. In
other words, his claim is lacking in convincing details to inspire belief.
xxx xxx xxx
Moreover, his claim that he was at San Antonio, Quezon, before
January 20, 1985 and arrived at Pila only in the morning of said date
is belied by the testimony of Honorio delos Santos whom he pointed
to as the person to whom he turned over his collections from the
tricycle drivers (TSN, April 2, 1987, p. 5). Honorio delos Santos
bluntly stated that the accused was the mastermind because on two
occasions before the incident, on the 18th and the 19th of January,
1985, the latter approached him at their house at Mojon, Pila,
Laguna and proposed to him that they rob the victim (TSN, April 21,
1987, p. 3 to 10).
We find that the quantum of proof necessary to overcome the presumption of
innocence and establish the guilt of the accused-appellant beyond
reasonable doubt for the crime charged is adequate.
The trial court appreciated the aggravating circumstances of disregard of age
and sex, uninhabited place, taking advantage of superior strength and
evident premeditation. Disregard of the respect due the offended party by
reason of his rank, age or sex may be taken into account only in crimes
against persons or honor, when in the commission of the crime there is some
insult or disrespect shown to rank, age or sex. It is not proper to consider this
aggravating circumstance in crimes against property. Robbery with homicide
is primarily a crime against property and not against persons. Homicide is a
mere incident of the robbery, the latter being the main purpose and object of
the criminal (People v. Pagal, et al., G.R. No. L-32040, October 25, 1977, 79
SCRA 570; People v. Capillas, et al., G.R. No. L-27177, October 23, 1981,
108 SCRA 173; People v. Pecato, et al., G.R. No. L- 41008, June 18, 1987,
151 SCRA 14). Neither should evident premeditation be considered against
the accused-appellant. The requisites necessary to appreciate evident
premeditation have not been met in this case. Thus, the prosecution failed to
prove all of the following: (a) the time when the four accused determined to
commit the crime; (b) an act manifestly indicating that the four accused had
clung to their determination to commit the crime; and (c) the lapse of
sufficient length of time between the determination and execution to allow
them to reflect upon the consequences of their act (People v. Batas, G.R.
Nos. 84277-78, August 2, 1989, 176 SCRA 46; People v. Iligan, et al., G.R.
No. 75369, November 26, 1990).
The aggravating circumstances of uninhabited place and taking advantage of
superior strength attended the commission of the crime.1âwphi1 Article 294
of the Revised Penal Code provides, inter alia, that any person guilty of
robbery with the use of violence against or intimidation of any person shall
suffer the penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed.
Correlating this provision with Article 63 of the Revised Penal Code,
paragraph 2, subparagraph 1 which provides that when in the commission of
the deed there is present only one aggravating circumstance, the greater
penalty shall be applied, the proper imposable penalty is death. In view,
however, of Article III, Section 19(l) of the 1987 Constitution and Our ruling in
People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the
cited Constitutional provision did not declare the abolition of the death
penalty but merely prohibits the imposition of the death penalty, the Court
has since February 2, 1987 not imposed the death penalty whenever it was
called for under the Revised Penal Code but instead reduced the same
to reclusion perpetua (People v. Orita, supra; People v. Solis, et al., G.R.
Nos. 78732-33, February 14, 1990, 182 SCRA 182). Reclusion perpetua,
being a single indivisible penalty under Article 294, paragraph 1 of the
Revised Penal Code, is imposed regardless of any mitigating or aggravating
circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA
615; People v. Manzano, G.R. No. L-38449, November 25, 1982, 118 SCRA
705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision appealed from is hereby AFFIRMED, subject
to the modification that the civil indemnity is increased to P50,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
EN BANC
 [G.R. No. 148877. August 19, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. ANGELITO BAGSIT Y
BAGSIT, appellant.
DECISION
PER CURIAM:
The Decision of the Regional Trial Court of Batangas City finding accused
ANGELITO BAGSIT y BAGSIT guilty beyond reasonable doubt of murder,
sentencing him to death and ordering him to indenmify the heirs of the
deceased P75,000.00 for moral damages, P96,950.00 for funeral and similar
expenses, and to pay costs,[1] is on automatic review before the Court.
On 12 September 1999 at around twenty (20) minutes past eight oclock
in the evening, prosecution witness Richard Sison[2] and his younger sister
Heidi were watching television inside their house at Bgy. Soro-soro, Ilaya,
Batangas City. When Richard looked out of the window, he saw a man whom
he identified as Angelito Bagsit pointing a gun at his father Pepito Sison who
was then closing the front door of their house. The barrel of the gun held by
Angelito protruded thru their grilled window. Not for long, Richard heard a
gunshot and almost simultaneously saw his father falling to the cement floor.
With the help of his mother Teodora who came from his grandfathers house
next door, Richard rushed his father to the hospital where he died shortly after.
Richard Sison further testified that appellant Angelito Bagsit, a second
cousin of his mother, used to frequent their house. He could not say what
motivated Angelito to kill his father but as far as he knew, his father had no
quarrel with the appellant before the shooting incident.
Zenaida Bagsit Aguilar, daughter-in-law of the deceased, also testified
that at around twenty past eight in the evening of the killing she was inside her
house which was about ten (10) meters away from that of the deceased. As
she was preparing coffee in the kitchen, appellant Angelito, who was toting a
gun, passed by. Moments later, she heard Angelito cock his gun. Worried that
something untoward would happen, she hurried towards her fathers house
nearby. But before she could even talk to her father, a shot rang out. From her
fathers house she looked out of the window and saw Pepito, awash in his own
blood, being carried by his wife. Although she did not see the actual shooting,
she was certain that it was the appellant who fatally shot her father-in-law
because, under the circumstances, nobody else could have done it.
When called to the witness stand, appellant Angelito Bagsit vehemently
denied having anything to do with the death of Pepito Sison. He averred that
in the evening of 12 September 1999 he became drunk after a drinking bout
with Dante Bagsit and a certain Marcos Barte who hired him earlier that
morning to take care of his piggery. He remembered having left the house of
Marcos Barte at around eleven oclock in the evening. He recounted that he
failed to reach his house, a mere ten (10)-minute walk, because it was already
very dark. Instead, he spent the night leaning on a fence by the house of one
Felix Agdon. When he finally arrived home at around five oclock the following
morning his wife told him about the shooting of Pepito and that some police
officers were looking for him.
Relying on the positive assertions of the principal witnesses for the
prosecution, the trial court discarded the denial and alibi of the appellant.
Instead, it gave utmost significance to the positive identification by Richard
Sison of the assailant before the investigating authorities immediately after the
killing. Thus the court a quo explained -[3]
It is also to be noted that in denying the offense charged against him, the
accused claimed to be having a drinking spree at the house of one Marcos
Barte. If this is true, why was Marcos Barte and one Dante Bagsit, both of
whom he claimed to be his drinking partners that fateful night, not come
forward to corroborate his defense of alibi x x x x Besides, during his early
direct testimony the accused claimed he was in the house of one Marcos
Barte until 11:00 oclock in the evening of September 12, 1999 but later on
declared that after failing to consume the fifth bottle of gin, he had gone
home about 7:00 oclock in the evening. Finally, the Court observed that
during the cross-examination of the accused, he was able to declare the
length of the distance he had walked from the house of Marcos Barte as well
as the length of time that had elapsed when he slumped on the fence of Felix
Agdon where he allegedly passed the night because he was drunk. The
Court finds this narration somewhat strange for him to do so because if really
he was that drunk his apparent recollection defeats his very claim of
drunkenness.
Appellant now implores this Court for his exculpation, calling attention to
the alleged errors of the trial court in finding him guilty of murder. He insists:
(a) that in violation of his constitutional rights he was illegally arrested without
a warrant; (b) that the trial court gravely erred in giving full faith to the
unreliable, incredible and biased testimonies of the prosecution witnesses;
and, (c) that he was wrongly meted the penalty of death notwithstanding the
presence of reasonable doubt calling for his exoneration.[4]
First, the appellant contends that his arrest on 13 September 1999 was
illegal because the police authorities, despite reasonable time, effected his
arrest without first securing a warrant of arrest in violation of his constitutional
rights.
We are not convinced. It is long settled that where the accused, by his
voluntary submission to the jurisdiction of the court, as shown by the counsel-
assisted plea he entered during the arraignment and his active participation in
the trial thereafter, voluntarily waives his constitutional protection against
illegal arrests and searches. We have consistently ruled that any objection
concerning the issuance or service of a warrant of arrest or a procedure in the
acquisition by the court of jurisdiction over the person of the accused must be
made before he enters his plea, otherwise the objection is deemed waived.[5]
Second, the appellant argues that the testimonies of the prosecution
witnesses are tainted with suspicion and bias. Specifically, he points out that
while witness Zenaida Aguilar claimed that she saw him pass by the side of
her house carrying a gun and heard him cock it while she was at the kitchen,
she nonetheless clarified that she did not see the actual shooting. Moreover,
according to the appellant, it is surprising that a vital witness such as Zenaida
Aguilar failed to execute any sworn statement before the police authorities
and, worse, even took nine (9) months to give her testimony.
Appellant also belittles the alleged eyewitness account of Richard Sison
by explaining that under the circumstances described by Richard, it is
improbable, if not outright impossible, for him to have had a clear view of the
assailant. He explained that the light from within the house and the beam from
the television caused a partial, if not a total impairment, of the witness vision;
the natural consequence being that the suspects distinct features would not
be recognizable from inside the well-lighted room.
Appellants contentions are too insipid and hollow to deserve serious
attention. While it is true that Zenaidas testimony is by itself insufficient to
establish appellants authorship of the crime, the same being merely
circumstantial in nature, we cannot discount its corroborative value because it
establishes the fact that at the time Pepito was felled by an assassins bullet,
the appellant was at or near the locus criminis. We have to mention that the
house of Zenaida was but a stones throw away from the house of the victim.
Thus, if her testimony is taken in conjunction with Richards eyewitness
account, which also placed him at the scene of the crime, the appellants
defense of alibi that he was nowhere near the crime scene would necessarily
collapse. For alibi to prosper, it is not enough for the accused to prove that he
was elsewhere when the crime was committed, but he must also demonstrate
that it would be physically impossible for him to be at the scene of the crime at
the time of its commission. Further, it must be supported by the most
convincing evidence since it is an inherently weak defense which can be easily
fabricated.[6]
Neither can we accommodate the appellants specious assertion that
Zenaidas delay in narrating her part of the gruesome story completely
destroyed her credibility as a witness. It is axiomatic that delay in reporting a
crime cannot always be construed as false accusation. This is founded on the
truism that an ordinary person is naturally reluctant to be embroiled in a violent
incident if only to avoid unwanted anxieties and exposure to possible reprisals
on himself and his family.
Appellant literally clutches at straws in insisting that the lighting inside the
house made it entirely impossible for Richard to identify him as the culprit.
First, we must bear in mind that appellant Angelito and Richard were no
strangers to each other. They came from the same locality and were in fact
neighbors since childhood.[7] Second, it has not been shown to our satisfaction
that the supposed glare of the light inside the house was such that it virtually
made the identification of the assailant impossible. On the contrary, what
cannot be disputed is that: (a) when Richard looked out of the window, there
was no obstruction which might have prevented him from seeing the appellant
who was only several meters away from where he stood. In fact, the appellant
was very close to the grilled window when he shot the victim that the light
inside the house would have sufficiently illumined his face which all the more
enabled Richard to recognize him; (b) the witness averred during his cross-
examination that the appellant shouted after he fired his gun.[8] It is not strange
then that Richard, being a neighbor of the appellant since childhood, was
familiar with the latters voice. Surely, it is not fanciful to stress that even under
less favorable circumstances a familiar face and a familiar voice would
considerably reduce any error in identifying the assailant.
It is dogmatic that the positive identification of the accused, where
categorical and consistent and without any showing of ill motive on the part of
the eyewitness testifying on the matter, prevails over alibi and denial which, if
not substantiated by clear and convincing evidence, are negative and self-
serving evidence undeserving of weight in law.[9] Richard Sison would not have
imputed a crime as serious as murder if he were not truly convinced that in the
hands of that person dripped the blood of his father.
Treachery qualified the killing to murder. The appellant, who closely
positioned himself surreptitiously behind the window of the house of his
unsuspecting victim while the latter had his back turned, and fired his gun
execution style, eliminated any risk from any defense that the victim might put
up.
As alleged in the amended Information,[10] the killing was perpetrated with
the use of an illegally possessed firearm. With the passage of RA 8294 on 6
June 1997, the use of unlicensed firearm in murder or homicide is not a
separate crime but merely a special aggravating circumstance.[11] After having
been sufficiently proved by way of a certification[12] dated 25 August
2000[13] that the appellant was not a licensed gun holder, an aggravating
circumstance shall be appreciated against him pursuant to the above-
mentioned law, which provides in part that if homicide or murder is committed
with the use of unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
Dwelling, also alleged in the amended Information, is likewise
aggravating. The triggerman showed greater perversity when, although
outside the house, he attacked his victim inside the latters own house when
he could have very well committed the crime without necessarily transgressing
the sanctity of the victims home. He who goes to anothers house to hurt him
or do him wrong is more guilty than he who offends him elsewhere. For the
circumstance of dwelling to be considered, it is not necessary that the accused
should have actually entered the dwelling of the victim to commit the offense -
it is enough that the victim was attacked inside his own abode, although the
assailant might have devised means to perpetrate the assault from the
outside.[14]
The penalty for murder is reclusion perpetua to death pursuant to Art. 248
of The Revised Penal Code as amended by RA 7659. There being two (2)
aggravating circumstances without any mitigating circumstance to offset the
same, the trial court correctly imposed the penalty of death.
A final word on the damages. In addition to the P75,000.00 as moral
damages, the trial court awarded P96,950.00 as actual burial and incidental
expenses.
In consonance with prevailing jurisprudence, we grant the award of
P50,000.00 to the heirs of the victim as civil indemnity for his death. The
amount is awarded without need of proof other than the commission of the
crime.[15] We also reduce the amount of moral damages to P50,000.00[16] in
line with recent jurisprudence for the pain and sorrow wrought by Pepitos
untimely demise as testified to by his widow Teodora Bagsit Sison. [17]The
actual damages granted by the trial court should however be deleted. The
barren testimony of the widow in the absence of receipts to prove that the
family of the deceased incurred funeral and incidental expenses is not
sufficient to support this claim. However, temperate damages may be awarded
in place of actual damages.
The award of exemplary damages is warranted under Art. 2230 of
the New Civil Code, in view of the presence of the generic aggravating
circumstance of dwelling and the special aggravating circumstance of use of
unlicensed firearm.
Three (3) members of the Court maintain their position that RA 7659,
insofar as it prescribes the death penalty, is unconstitutional; however, they
submit to the ruling of the Court, by majority vote, that the law is constitutional
and that the death penalty should be imposed accordingly.
WHEREFORE, the Decision of the trial court finding appellant Angelito
Bagsit y Bagsit guilty of murder qualified by treachery, with the special
aggravating circumstance of use of unlicensed firearm and the generic
aggravating circumstance of dwelling, and imposing on him the supreme
penalty of DEATH, is AFFIRMED with the MODIFICATION that the amounts
of P50,000.00 as civil indemnity, another P50,000.00 as moral damages,
P25,000.00 as exemplary damages and, in lieu of actual damages, temperate
damages of P25,000.00 shall be awarded to the heirs of the victim Pepito
Sison. The award of actual damages is deleted for lack of sufficient evidence.
In accordance with Art. 83 of The Revised Penal Code, as amended by
Sec. 25 of RA 7659, upon the finality of this Decision, let the records of this
case be forwarded to Her Excellency, The President of the Philippines, for the
possible exercise of her pardoning power. Costs against appellant.
SO ORDERED.
Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Azcuna, and Tinga, JJ., concur.
Davide, Jr., C.J., Austria-Martinez, Corona, Carpio-Morales, and Callejo,
Sr., JJ., on official leave.
EN BANC
[G.R. No. 132632. June 19, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL
RIOS, accused-appellant.
DECISION
PUNO, J.:
If capital punishment is justified, it serves as a deterrent; if injudiciously
imposed, it generates resentment.[1] This truism underscores the wisdom of
the admonition that any decision authorizing the State to take life must be as
error-free as possible.[2] At stake in the case at bar is life itself, hence, we
shall strictly adhere to our bounden duty to exercise extreme caution in the
review of the parties' evidence.
For the death of Ambrocio Benedicto due to a fatal stab wound, appellant
Angel Rios was charged with the crime of murder in an information that
reads:
"That on or about the 7th day of February 1996, in the
municipality of San Jose del Monte, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with bladed
instrument and with intent to kill one Ambrocio Benedicto,
did then and there wilfully, unlawfully and feloniously, with
evident premeditation, abuse of superior strength and
treachery, attack, assault and stab with the said bladed
instrument the said Ambrocio Benedicto, hitting the latter on
 his body, thereby causing him serious physical injuries which
directly caused his death.
Contrary to law."
Appellant Rios, assisted by counsel de oficio, entered a plea of "not guilty" to
the charge against him.[3] Thereupon, trial on the merits of the case ensued.
Ambrocio and Anacita Benedicto owned a sari-sari store in their house in
Marigold Subdivision, San Jose del Monte, Bulacan. According to Anacita, at
around 6:30 in the evening of February 7, 1996, appellant Angel Rios, a
neighbor, hurled stones at their house. A few minutes later, and while the
Benedicto spouses were tending their store, appellant bought cigarettes.
Ambrocio confronted appellant about the stoning incident and an altercation
ensued between them.[4]
As the two engaged in a verbal tussle, Joselino Mesa and his
fellow barangay tanods named Amorsolo Dayao, Rivera and Espino who
were roving the vicinity, chanced upon the disputants. Having heard the
appellant shout at Ambrocio, Mesa intervened and requested the two to part
ways. He even escorted them to their respective residences.[5]
A few minutes later, appellant went back to the store. [6] Just then, Anacita
saw her husband go to the terrace of their house. Appellant suddenly
approached Ambrocio and stabbed his right stomach. Anacita was only a
meter away from the antagonists; she was facing her husbands back while
appellant was standing in front of Ambrocio. As Anacita started shouting,
appellant fled.[7]
Mesa and his group saw Anacita weeping while Ambrocio was lying lifeless
in the terrace of their house. Anacita told the tanods that appellant had
stabbed her husband. One of the tanods assisted Ambrocio but the latter
succumbed to death even before they could reach the hospital. The
postmortem certificate of death shows that Ambrocio died of "shock due to a
stab wound at the chest around 3 cm. penetrating the right auricle (heart)."[8]
Mesa and his companions arrested appellant in his brothers house thirty (30)
minutes after the crime happened.[9] The following day, Anacita and Mesa
executed sworn statements before the police.[10]
With only appellant testifying, the defense interposed alibi. Appellant, a 39-
year-old laborer from San Fernando, Romblon who had been staying for two
decades with his brother in Graceville, Marilao, Bulacan, had reported to his
job in San Jose del Monte, Bulacan at 7:00 a.m. of February 7, 1996. He
stopped working at 5:00 p.m. and returned to his brothers house, reaching it
at around 8:00 p.m. Moments later, Joselino Mesa, accompanied by
some barangay tanods, arrived and brought him to the municipal hall of San
Jose del Monte. They did not inform him that he was a suspect in the killing
of Ambrocio Benedicto.[11] Appellant knew Ambrocio because they had built a
house near the Benedictos residence and it was from the latters store that
they would buy their cooking needs. He denied having seen Ambrocio on
that fateful day of February 7, 1996.[12]
On December 3, 1997, the Regional Trial Court of Bulacan, Branch
22,[13] rendered a Decision finding appellant guilty beyond reasonable doubt
for the murder of Ambrocio Benedicto. It found that the killing of Ambrocio
was attended by the qualifying circumstance of treachery but that abuse of
superior strength is "comprehended" by said circumstance. It ruled out the
presence of evident premeditation. However, it considered dwelling as
aggravating to the effect that even if the accused did not enter the victims
house, such as when he shot the victim from under the house or when he
fired the shot that fell the victim who was inside his house, said circumstance
is aggravating. The trial court thus disposed of Criminal Case No. 572-M-96
as follows:
"WHEREFORE, in view of the foregoing, judgment is hereby
rendered as follows:
1......finding the accused, ANGEL RIOS, GUILTY beyond
reasonable doubt of the crime of murder as penalized under
Art. 248, of the Revised Penal Code (as amended by Rep.
Act No. 7659) and is hereby sentenced to suffer the death
penalty;
2......accused is ordered to pay the following amounts to the
heirs of Ambrocio Benedicto:
P50,000.00 - for the life of the victim (Ambrocio Be
P32,892.00 - actual damages (supported by Exhib
and based on Table I) P82,892.00
With 6% interest on all amounts due from the filling of the
information on April 24, 1996 until said amounts have been
fully paid.
SO ORDERED."
Appellant is now before this Court on automatic review of said Decision, with .....q Where is this Ambrocio Benedicto, your husband now?
the following assignments of error:
.....a Hes already dead.
"I
.....q Tell us, what is the cause of death of your husband?
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED GUILTY BEYOND REASONABLE DOUBT OF .....a He was stabbed.
THE CRIME CHARGED DESPITE INSUFFICIENCY OF
EVIDENCE.
.....q By whom madam witness?

II
.....a By Angel Rios.

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING

Fiscal:
THE EXISTENCE OF TREACHERY AS A QUALIFYING
CIRCUMSTANCE.
.....q Madam witness, if Angel Rios, is around in this
courtroom will you be able to identify him?
III
Witness:
THE TRIAL COURT GRAVELY ERRED IN CONSIDERING
DWELLING AS A GENERIC AGGRAVATING
CIRCUMSTANCE. .....a Yes, sir.

IV Fiscal:

THE COURT A QUO GRAVELY ERRED IN AWARDING .....Will you please stand up and look around and point him
P32,892.00 AS ACTUAL DAMAGES." to us.

The appeal is partly meritorious. While there is proof beyond reasonable .....(Witness pointed to man in yellow shirt who gave the
doubt that appellant dealt the fatal stab wound upon Ambrocio Benedicto, the name of Angel Rios.)
trial court erroneously appreciated the qualifying circumstance of treachery.
Hence, appellant cannot be held liable for the crime of murder but for the Court:
lesser crime of homicide.
.....q Why do you say that it was Angel Rios who stabbed
No cogent reason exists to overturn the trial courts assessment that Anacita your husband?
Benedicto positively and unequivocally identified appellant as the felon who
stabbed her husband. It is doctrinal that the trial courts evaluation of the .....a Because I saw him.
credibility of a testimony is accorded the highest respect, for the trial court
has an untrammeled opportunity to observe directly the demeanor of a Fiscal:
witness and thus, to determine whether he or she is telling the
truth.[14]Anacitas testimony on the matter clearly supports the trial courts
.....q When was your husband stabbed by Angel Rios?
finding on the matter. Thus:

.....a He was stabbed on February 7, 1996.

"Fiscal:
 Court:
.....q At what time?
.....a More or less 8:00 in the evening.
Fiscal:
.....q Where?
.....a In the terrace of our house.
.....q Where is your house located?
.....a In Muzon, San Jose del Monte, Bulacan."
(Underscoring supplied.)[15]
There is no doubt therefore, that Anacita had a good look at her husbands
assailant and that she actually saw appellant stab Ambrocio as she was only
a meter away from them, behind her husband who was facing appellant. She
could not have mistaken another man for appellant because being neighbors,
he was familiar to her.[16] Aside from being her neighbor, appellant even
admitted that he used to be a customer in the Benedictos sari-sari store
where he would buy cooking needs. Familiarity with the physical features,
particularly those of the face, is the best way to identify a person.[17] Thus, in
the absence of an established ill motive on the part of Anacita, her
identification of appellant as her husbands killer should be given full faith and
credit, her relationship with the victim notwithstanding. Relationship with the
victim per se is not proof of prejudice.[18]
Anacitas failure to name the weapon used by appellant and to recall his
position as he stabbed Ambrocio cannot diminish her credibility. Her relative
position to the two accounts for Anacitas failure to see the details
surrounding the incident. Witnesses are not expected to remember every
single detail of an incident with perfect or total recall.[19] Nevertheless,
Anacitas one-meter distance from the two enabled her to observe the
manner by which appellant stabbed Ambrocio he did so in a manner
described in the dialect as "pakadyot,"[20] meaning the bladed instrument
came from underneath.
Appellants positive identification of appellant as the perpetrator of the crime
was thus proven beyond reasonable doubt by the consistent and firm
testimony of Anacita Benedicto. Consequently, such positive identification
effectively effaced appellants alibi.[21] That she was the only eyewitness to
the killing presented by the prosecution did not in any way dilute the
evidentiary value of her credible testimony. It is entrenched in jurisprudence
that the testimony of a single witness, if found convincing and credible by the
trial court, is sufficient to support a finding of guilt beyond reasonable
doubt.[22]
However, appellant is correct in arguing that treachery did not attend the
commission of the crime. Its presence was not established beyond
reasonable doubt. As this Court said in People v. Derilo:
"It is an ancient but revered doctrine that qualifying and
aggravating circumstance before being taken into
consideration for the purpose of increasing the degree of the
penalty to be imposed must be proved with equal certainty
and clearness as that which establishes the commission of
the act charged as a criminal offense. It is not only the
central fact of a killing that must be shown beyond
reasonable doubt; every qualifying and aggravating
circumstance alleged to have been present and to have
attended such killing, must similarly be shown by the same
degree of proof."[23]
In this case, the prosecution failed to discharge its duty under the law as
regards the qualifying circumstance of treachery. There is treachery when
the offender commits any of the crimes against persons, employing means,
methods or forms in the execution thereof which tend directly and specifically
to insure its execution without risk to himself arising from the defense which
the offended party may make. To constitute treachery, these two conditions
must be present: (1) employment of means of execution that gives the
person attacked no opportunity to defend himself or retaliate; and (2) the
means of execution were deliberately or consciously adopted.[24]
Treachery may not be appreciated where, as in this case, the attack against
the victim cannot be categorized as unexpected and unforeseen so as to
deprive him the opportunity to defend himself. By the facts of the case, where
the incident of the victim berating the accused for throwing stones at his
residence preceded the fatal assault, a possible retaliation by the accused
was not remote. As this Court has repeatedly held, there is no treachery
when the victim is placed on guard, as when a heated argument preceded
the attack, especially when the victim was standing face to face with his
assailant. In that instance, the initial assault could not have been
unforeseen.[25]
Moreover, where treachery is alleged, the manner of attack must be proven.
Absent any particulars as to the manner in which the aggression commenced
or how the act which resulted in the death of the victim unfolded, treachery q Where was your husband hit by the stab of Angel Rios?
cannot be appreciated.[26] It cannot be presumed or concluded merely on the
basis of the resulting crime.[27] In the case at bar, the prosecution presented a In his right stomach.
Anacitas ambiguous testimony on how the attack began to support its claim
that treachery attended the commission of the crime. Thus:
q What was the position of the accused when he stabbed
your husband?
"q Before the stabbing was there conversation between
them? a I did not see.

a My husband went outside our terrace.

q You did not see who stabbed your husband? What I mean
to say is was the accused also fronting your husband?
q Then what happened?
a What I only saw, Your Honor, was my husband was
a Then I saw him stabbed. stabbed." (Underscoring supplied.)[28]

q By whom? On cross-examination, Anacita testified as follows:

a By Angel. "q Madam witness, I will be showing to you transcript of

stenographic notes taken down on May 31, 1996
q What weapon?
Court:
a I did not see the weapon used.
.....What is the defense?
Court:
Atty. Tolentino:
q How many times?
.....He did not do it, Your Honor.
a Only once.
q - by the question of the court, `What was the position of the
q What did you do? accused when he stabbed your husband'?

a I shouted. Witness:

q How far were you from the stabbing? a - `I did not see. It was `pakadyot maam.

a More or less one (1) meter. q You said that the accused stabbed your husband in the
manner that you said `pakadyot. Will you tell the court when
Fiscal: your husband was stabbed by the accused how was he
positioned in relation to your husband?
q Madam witness, when your husband was stabbed by
Angel Rios, what was his position at that time? a He was facing my husband.

a My husband was standing at that time. Court:

 q Sitting down or standing up?
a They were standing up.
q What about you, what was the position of the accused in
relation to you when you said you saw the incident?
a I cannot understand where I was.
q What about your position in relation to your husband when
the incident was happening?
a I only saw it when I went out.
x x x.....x x x.....x x x.
q Will you tell the honorable court the position of your
husband in relation to you? Was your husbands back
towards you or was your husband facing you?
a My husbands back was in front of me.
q What about the accused? How was he positioned in
relation to you?
a The accused was facing me frontally.
Atty. Tolentino:
q And you said you were just one meter away from them?
a I cannot remember because I did not see how he was
stabbed."[29]
From this testimony, it is indubitable that Anacita saw the stabbing incident
but she could not describe exactly how it was commenced notwithstanding
what appears to be her conclusion that the stabbing was done in a
"pakadyot" manner. This may perhaps be blamed on the frailty of human
memory but it does not obliterate the fact the she actually saw the stabbing
incident. The doubt as to its manner or mode of execution should therefore
be resolved in favor of the appellant.
The trial court correctly appreciated the aggravating circumstance of dwelling
or morada in this case. The word dwelling includes every dependency of the
house that forms an integral part thereof[30] and therefore it includes the
staircase of the house[31] and much more, its terrace. When a crime is
committed in the dwelling of the offended party and the latter has not given
provocation, dwelling may be appreciated as an aggravating
circumstance.[32] Provocation in the aggravating circumstance of dwelling
must be: (a) given by the offended party, (b) sufficient, and (c) immediate to
the commission of the crime.[33]
We hold that the altercation between appellant and Ambrocio that
immediately preceded the latters fatal stabbing is not within the purview of
the concept of provocation under Article 14 (3) of the Revised Penal Code.
The unrebutted facts established by the prosecution show that it was the
appellant who started the events that led to his unfortunate killing of
Ambrocio, by stoning the latters house. In an apparent show of unmitigated
braggadocio, appellant even went to the victims house on the pretext of
buying cigarettes after the stone-throwing incident. The victim naturally
confronted appellant about that incident. As the two engaged in heated
argument, the roving tanods intervened and the two parted ways. However, a
few minutes later, appellant returned to the victims house and right at the
latters terrace, dealt him the fatal stab wound. Under these circumstances, to
cater to appellants claim that the victim provoked him would amount to
erasing the duly established fact that by stoning the victims house, appellant
himself instigated the heated argument that resulted in his physical assault
upon the victim.
The presence of the aggravating circumstance of dwelling warrants the
imposition of exemplary damages against the appellant.[34] Such damages,
the award of which depends upon the Courts discretion, shall be a part of the
civil liability that may be imposed upon the appellant.[35] However, we agree
with the Solicitor General that the trial court overlooked certain evidentiary
requirements in the award of actual damages. Actual damages cannot be
allowed unless supported by evidence on record.[36] The trial court mainly
based its award of P32,892.00 on the photocopy of the receipt issued by the
funeral parlor[37] and on a receipt issued by a livestock agricultural
corporation.[38] The prosecution reserved its right to present the original copy
of the receipt of the funeral parlor evidencing payment of the amount
of P27,000.00[39] but it does not appear on record that it indeed presented
that original copy. On the other hand, the receipt issued by the Broadway
Livestock Agricultural Corporation in favor of one Sotero Espiritu was in full
payment of the amount of P5,092.00 for an undecipherable purpose which
the prosecution claimed was for "expenses."[40] However, considering that
these "expenses" were not explained and the absence of a duly established
connection between the death of the victim and the "expenses" paid to a
livestock agricultural corporation, the receipt can not be given evidentiary
weight.
It is necessary for a party seeking the award of actual damages to produce
competent proof or the best evidence obtainable to justify such award. Only
substantiated and proven expenses, or those that appear to have been
genuinely incurred in connection with the death, wake or burial of the victim
will be recognized in courts. The courts will not rely merely on suppositions or
conjectures.[41] Hence, only the amount of eight hundred pesos (P800.00)
spent for the niche and funeral mass that is evidenced by an original
receipt[42] shall be awarded to the victims heirs.
Under Article 249 of the Revised Penal Code, the penalty for the crime of
homicide is reclusion temporal. In view of the presence of the aggravating
circumstance of dwelling or morada, the penalty should be imposed in its
maximum period.[43] Applying the Indeterminate Sentence Law, the
imposable penalty shall be twelve (12) years of prision mayor maximum to
twenty (20) years of reclusion temporal maximum.
WHEREFORE, the Decision appealed from is MODIFIED and appellant is
found guilty of the crime of homicide and is meted to suffer an indeterminate
sentence of twelve (12) years prision mayor maximum to twenty (20)
years reclusion temporal maximum, to indemnify the heirs of Ambrocio
Benedicto in the amount of P50,000.00, to pay exemplary damages
of P20,000.00, and actual damages of P800.00.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 116736 July 24, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and
JOHN DOE, accused,
BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y
RIVERA, accused-appellants.
PANGANIBAN, J.:
A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can
be held liable as a principal, not simply as an accessory, where it is proven
that the said victim was actually alive but subsequently died as a direct result
of such concealment and burial. Nonetheless, in the present case, Appellant
Garcia cannot be held liable as a principal because the prosecution failed to
allege such death through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his relationship with the
principal killer, Appellant Ortega, who is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by Appellants Benjamin
Ortega, Jr. and Manuel Garcia from the Decision,1 dated February 9, 1994
written by Judge Adriano R. Osorio,2 finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S. Razon in an
Information3 dated October 19, 1992, as follows:
That on or about October 17, 1992 in Valenzuela, 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 abuse of superior strenght (sic) and with deliberate
intent to kill, did then and there willfully, unlawfully and
feloniously attack, assault and stab repeatedly with a pointed
weapon on the different parts of the body one ANDRE MAR
MASANGKAY y ABLOLA, thereby inflicting upon the latter
serious physical injuries which directly caused his death.
During arraignment, Appellants Ortega and Garcia, assisted by counsel de
oficio,4 pleaded not guilty to the charge.5Accused "John Doe" was then at
large.6 After trial in due course, the court a quo promulgated the questioned
Decision. The dispositive portion reads:7
 WHEREFORE, finding accused Benjamin Ortega, Jr. y
Conje and Manuel Garcia y Rivera [g]uilty beyond
reasonable doubt of the crime charged, the Court hereby
sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the
sum of P35,000.00 for funeral expenses of deceased Andre
Mar Masangkay and death indemnity of P50,000.00.
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo
P. Velicaria8 who took over from the Public Attorney's Office as counsel for
the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the prosecution witnesses as
follows:9
Diosdado Quitlong substantially testified that on October 15,
1992 at about 5:30 in the afternoon, he, the victim Andre Mar
Masangkay, Ariel Caranto, Romeo Ortega, Roberto San
Andres were having a drinking spree in the compound near
the house of Benjamin Ortega, Jr. at Daangbakal,
Dalandanan, Valenzuela, Metro Manila. That while they were
drinking, accused Benjamin Ortega, Jr. and Manuel Garcia
who were [already] drunk arrived and joined them. That
victim Andre Mar Masangkay answered the call of nature
and went to the back portion of the house. That accused
Benjamin Ortega, Jr. followed him and later they [referring to
the participants in the drinking session] heard the victim
Andre Mar shouted, "Don't, help me!" (Huwag, tulungan
ninyo ako!) That he and Ariel Caranto ran towards the back
portion of the house and [they] saw accused Benjamin
Ortega, Jr., on top of Andre Mar Masangkay who was lying
down in a canal with his face up and stabbing the latter with
a long bladed weapon. That Ariel Caranto ran and fetched
Benjamin Ortega, Sr., the father of accused Benjamin, Jr.
That he [Quitlong] went to Romeo Ortega in the place where
they were having the drinking session [for the latter] to pacify
his brother Benjamin, Jr. That Romeo Ortega went to the
place of the stabbing and together with Benjamin Ortega, Jr.
and Manuel Garcia lifted Andre Mar Masangkay from the
canal and brought Andre Mar to the well and dropped the
latter inside the well. That Romeo Ortega, Benjamin Ortega,
Jr. and Manuel Garcia then dropped stones measuring 11 to
12 inches high, 2 feet in length and 11 to 12 inches in weight
to the body of Andre Mar Masangkay inside the well. That
Romeo Ortega warned him [Quitlong] not to tell anybody of
what he saw. That he answered in the affirmative and he
was allowed to go home. That his house is about 200 meters
from Romeo Ortega's house. That upon reaching home, his
conscience bothered him and he told his mother what he
witnessed. That he went to the residence of Col. Leonardo
Orig and reported the matter. That Col. Orig accompanied
him to the Valenzuela Police Station and some police
officers went with them to the crime scene. That accused
Benjamin Ortega, Jr. and Manuel Garcia were apprehended
and were brought to the police station.
On cross-examination, he said that he did not talk to the
lawyer before he was presented as witness in this case. That
he narrated the incident to his mother on the night he
witnessed the killing on October 15, 1992. That on October
15, 1992 at 5:30 in the afternoon when he arrived, victim
Andre Mar Masangkay, Romeo Ortega, Serafin and one
Boyet were already having [a] drinking spree and he joined
them. That accused Benjamin Ortega, Jr. and Manuel Garcia
were not yet in the place. That the stabbing happened
between 12:00 midnight and 12:30 a.m. That they drank gin
with finger foods such as pork and shell fish. That he met the
victim Andre Mar Masangkay only on that occasion. That
accused Benjamin Ortega, Jr. and Manuel Garcia joined
them at about 11:00 p.m. That there was no altercation
between Benjamin Ortega, Jr. and Manuel Garcia in one
hand and Andre Mar Masangkay, during the drinking
session. That at about 12:30 a.m. Andre Mar Masangkay
answered the call of nature and went to the back portion of
the house. That he cannot see Andre Mar Masangkay from
the place they were having the drinking session. That he did
not see what happened to Andre Mar Masangkay. That he
only heard Masangkay asking for help. That accused Manuel
Garcia was still in the drinking session when he heard
Masangkay was asking for help. That Benjamin Ortega, Jr.
and Manuel Garcia are his friends and neighbors. That when
he heard Andre Mar Masangkay was asking for help, he and
Ariel Caranto ran to the back portion of the house and saw
Benjamin Ortega, Jr. on top of Andre Mar Masangkay and
stabbing the latter. That Andre Mar Masangkay was lying
down with his back in the canal and Benjamin Ortega, Jr. on
top stabbing the former. That he did not see any injuries on
Benjamin Ortega, Jr. That he called Romeo Ortega to pacify
his brother Benjamin, Jr. That he did not do anything to
separate Benjamin Ortega, Jr. and Masangkay. That he
knows that Andre Mar Masangkay was courting Raquel
Ortega. That Raquel Ortega asked permission from Andre
Mar Masangkay when she left between 8:00 and 9:00 p.m.
That there was no trouble that occurred during the drinking
session.
PNP Superintendent Leonardo Orig substantially testified
that Diosdado Quitlong is his neighbor for about 9 years.
That on October 16, 1992 at 5:00 in the morning, he was
summoned by Diosdado Quitlong and reported to him the
stabbing incident that occurred at Daangbakal near the
subdivision he is living. That he relayed the information to
the Valenzuela Police Station and a police team under police
officer Param accompanied them to the place. That he
asked the police officers to verify if there is a body of person
inside the well. That the well was covered with stones and
he asked the police officers to seek the help of theneighbors
(sic) to remove the stones inside the well. That after the
stones were removed, the body of the victim was found
inside the well. That the lifeless body was pulled out from the
well. That the body has several stab wounds. That he came
to know the victim as Andre Mar Masangkay. That two men
were arrested by the police officers.
On cross-examination, he said that he saw the body when
taken out of the well with several stab wounds. That
Diosdado Quitlong told him that he was drinking with the
victim and the assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while the latter was
answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially
testified that he conducted [an] autopsy on the cadaver of
Andre Mar Masangkay on October 16, 1992 at the
Valenzuela Memorial Homes located at Macarthur Highway.
That he prepared the autopsy report and the sketch of
human head and body indicating the location of the stab
wounds. That the cause of death is multiple stab wounds,
contributory, [a]sphyxia by submersion in water. That there
were 13 stab wounds, 8 of which were on the frontal part of
the body, 2 at the back and there were contused abrasions
around the neck and on the left arm. There was stab wound
at the left side of the neck. That the contused abrasion could
be produced by cord or wire or rope. That there is (an)
incised wound on the left forearm. That the stab wounds
which were backward downward of the body involved the
lungs. That the victim was in front of the assailant. That the
stab wound on the upper left shoulder was caused when the
assailant was in front of the victim. That the assailant was in
front of the victim when the stab wound near the upper left
armpit was inflicted as well as the stab wound on the left
chest wall. That the stab wound on the back left side of the
body and the stab wound on the back right portion of the
body may be produced when the assailant was at the back
of the victim. That the assailant was in front of the victim
when the stab wound[s] on the left elbow and left arm were
inflicted. That the large airway is filled with muddy particles
indicating that the victim was alive when the victim inhaled
the muddy particles. The heart is filled with multiple
hemorrhage, loss of blood or decreased of blood. The lungs
is filled with water or muddy particles. The brain is pale due
to loss of blood. The stomach is one half filled with muddy
particles which could [have been] taken in when submerged
in water.
On cross-examination, he said that he found 13 stab wounds
on the body of the victim. That he cannot tell if the assailant
or the victim were standing. That it is possible that the stab
wounds was (sic) inflicted when both [referring to
participants] were standing or the victim was lying down and
the assailant was on top. That he cannot tell the number of
the assailants.
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven
o'clock in the morning, went home, changed his clothes and went to
work. 10 After office hours, he and Benjamin Ortega, Jr. passed by the
canteen at their place of work. After drinking beer, they left at eight o'clock in
the evening and headed home. En route, they chanced on Diosdado
Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join
their own drinking spree. Thereupon, Appellant Garcia's wife came and
asked him to go home because their daughter was still sick. To alleviate his
daughter's illness, he fetched his mother-in-law who performed a ritual called
"tawas." After the ritual, he remained at home and attended to his sick
daughter. He then fell asleep but was awakened by police officers at six
o'clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her husband.
She however added two other participants in the drinking session aside from
Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely,
a MangSerafin and Boyet Santos. 11
Benjamin Ortega, Jr. likewise substantially corroborated the testimony of
Appellant Manuel Garcia. 12 According to him, between eleven and twelve
o'clock in the evening, Masangkay left the drinking session. Thirty (30)
minutes after Masangkay left, he also left the drinking place to urinate. 13 He
went behind the house where he saw Masangkay peeping through the room
of his sister Raquel. He ignored Masangkay and continued urinating. 14 After
he was through, Masangkay approached him and asked where his sister
was. He answered that he did not know. Without warning, Masangkay
allegedly boxed him in the mouth, an attack that induced bleeding and
caused him to fall on his back. When he was about to stand up, Masangkay
drew a knife and stabbed him, hitting him on the left arm, thereby
immobilizing him. Masangkay then gripped his neck with his left arm and
threatened to kill him. Unable to move, Ortega shouted for help. Quitlong
came and, to avoid being stabbed, grabbed Masangkay's right hand which
was holding the knife. Quitlong was able to wrest the knife from Masangkay
and, with it, he stabbed Masangkay ten (10) times successively, in the left
chest and in the middle of the stomach. When
the stabbing started, Ortega moved to the left side of Masangkay to avoid
being hit.15 Quitlong chased Masangkay who ran towards the direction of the
well. Thereafter, Ortega went home and treated his injured left armpit and
lips. Then, he slept.
When he woke up at six o'clock the following morning, he saw police officers
in front of his house. Taking him with them, the lawmen proceeded to the
well. From the railroad tracks where he was asked to sit, he saw the police
officers lift the body of a dead person from the well. He came to know the
identity of the dead person only after the body was taken to the police
headquarters. 16
The Trial Court's Discussion
17
The trial court explained its basis for appellants' conviction as follows:
The Court is convinced that the concerted acts of accused
Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo
Ortega in lifting, carrying and dumping the victim Andre Mar
Masangkay who was still alive and breathing inside the deep
well filled with water, head first and threw big stones/rocks
inside the well to cover the victim is a clear indication of the
community of design to finish/kill victim Andre Mar
Masangkay. Wounded and unarmed victim Andre Mar
Masangkay was in no position to flee and/or defend himself
against the three malefactors. Conspiracy and the taking
advantage of superior strength were in attendance. The
crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime
and the form and manner in which assistance is rendered to
the person inflicting the fatal wound may determine
complicity where it would not otherwise be evidence (People
vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable.
Accused (m)ust reimburse the heirs of victim Andre Mar
Masangkay the amount of P35,000.00 for the funeral
expenses of the deceased.
The Issues
In their ten-page brief, appellants fault the trial court with the
following: 18
I. The trial court erred in holding that there is
conspiracy on the basis of the prosecution's
evidence that at the time both accused and
one Romeo Ortega lifted the body of Andrew
Masangkay from where he succumbed due
to stab wounds and brought and drop said
body of Andrew Masangkay to the well to
commit murder;
II. The trial court erred in finding and holding
that Andrew Masangkay was still alive at the
time his body was dropped in the well;
III. The trial court erred in convicting Manuel
Garcia and in not acquitting the latter of the
crime charged; and
IV. The trial court erred in not finding that if
at all Benjamin Ortega Jr. is guilty only of
homicide alone.
On the basis of the records and the arguments raised by the appellants and
the People, we believe that the question to be resolved could be simplified
thus: What are the criminal liabilities, if any, of Appellants Ortega and
Garcia?
The Court's Ruling
We find the appeal partly meritorious. Appellant Ortega is guilty only of
homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented conflicting
narrations. The prosecution witnesses described the commission of the crime
and positively identified appellants as the perpetrators. The witnesses for the
defense, on the other hand, attempted to prove denial and alibi. As to which
of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard,
the trial court held: 19
The Court has listened intently to the narration of the
accused and their witnesses and the prosecution witnesses
and has keenly observed their behavior and demeanor on
the witness stand and is convinced that the story of the
prosecution is the more believable version. Prosecution
eyewitness Diosdado Quitlong appeared and sounded
credible and his credibility is reinforced by the fact that he
has no reason to testify falsely against the accused. It was
Diosdado Quitlong who reported the stabbing incident to the
police authorities. If Quitlong stabbed and killed the victim
Masangkay, he will keep away from the police authorities
and will go in hiding. . . .
Because the trial court had the opportunity to observe the witnesses'
demeanor and deportment on the stand as they rendered their testimonies,
its evaluation of the credibility of witnesses is entitled to the highest respect.
Therefore, unless the trial judge plainly overlooked certain facts of substance
and value which, if considered, might affect the result of the case, his
assessment of credibility must be respected. 20
In the instant case, we have meticulously scoured the records and found no
reason to reverse the trial court's assessment of the credibility of the
witnesses and their testimonies 21 insofar as Appellant Ortega is concerned.
The narration of Eyewitness Diosdado Quitlong appears to be spontaneous
and consistent. It is straightforward, detailed, vivid and logical. Thus, it clearly
deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on the
unbelievable. Appellant Ortega claimed that after he was able to free himself
from Masangkay's grip, he went home, treated his injuries and slept. 22This is
not the ordinary reaction of a person assaulted. If Ortega's version of the
assault was true, he should have immediately reported the matter to the
police authorities, if only out of gratitude to Quitlong who came to his rescue.
Likewise, it is difficult to believe that a man would just sleep after someone
was stabbed in his own backyard. Further, we deem it incredible that
Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong.23 The natural tendency of a person
under attack is to defend himself and not to persist in choking a defenseless
third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of superior strength
were alleged in the information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial court's finding. Abuse of superior strength requires
deliberate intent on the part of the accused to take advantage of such
superiority. It must be shown that the accused purposely used excessive
force that was manifestly out of proportion to the means available to the
victim's defense. 24 In this light, it is necessary to evaluate not only the
physical condition and weapon of the protagonists but also the various
incidents of the event. 25
In his testimony, Witness Dominador Quitlong mentioned nothing about
Appellant Ortega's availment of force excessively out of proportion to the
means of defense available to the victim to defend himself. Quitlong
described the assault made by Appellant Ortega as follows: 26
ATTY. ALTUNA:
Q Will you please tell me the place and date
wherein you have a drinking spree with
Andrew Masangkay and where you
witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about
5:30 in the afternoon we were drinking in the
house of Mr. Benjamin Ortega, Sr., because
the house of Benjamin Ortega Sr. and the
house of his son Benjamin Ortega, Jr. are
near each other.
xxx xxx xxx
Q Mr. Witness, who were the companions of
said persons, Benjamin Ortega, Jr., Manuel
Garcia, you (sic) in drinking in said place?
A The other companions in the drinking
session were Ariel Caranto y Ducay,
Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew
Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he
was also there.
Q You said that the two accused, Manuel
Garcia and Benjamin Ortega, Jr. arrived
drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we
were drinking ... (interrupted by Atty. Altuna)
Q Who is that "we"?
A Referring to Benjamin Ortega, Jr., Manuel
Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew
Masangkay. Andrew Masangkay answer to
a call of nature and went to the back portion
of the house, and Benjamin Ortega, Jr.
followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the
shout said "Huwag, tulungan n'yo ako".
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed
Andrew Masangkay to answer a call of
nature and after you heard "huwag, tulungan
n'yo ako" coming from the mouth of the late
Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back
portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was
on top of Andrew Masangkay and he was
stabbing Masangkay.
Q Will you please demonstrate to the
Honorable Court how the stabbing was done
telling us the particular position of the late
Andrew Masangkay and how Benjamin
Ortega, Jr. proceeded with the stabbing
against the late victim, Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a
canal with his face up, then Benjamin
Ortega, Jr. was "nakakabayo" and with his
right hand with closed fist holding the
weapon, he was thrusting this weapon on
the body of the victim, he was making
downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
 Q How many times did Benjamin Ortega, Jr. stomach. 32 This is evident from the expert testimony given by the medico-
stabbed Andrew Masangkay? legal officer, quoted below: 33

A I cannot count the number of times. ATTY. ALTUNA:

It should be noted that Victim Masangkay was a six-footer, whereas Q Will you please explain this in simple
Appellant Ortega, Jr. was only five feet and five inches tall. 27 There was no language the last portion of Exhibit N,
testimony as to how the attack was initiated. The accused and the victim beginning with "tracheo-bronchial tree", that
were already grappling when Quitlong arrived. Nothing in the foregoing is sentence immediately after paragraph 10,
testimony and circumstances can be interpreted as abuse of superior 2.5 cms. Will you please explain this?
strength. Hence, Ortega is liable only for homicide, not murder.
A The trancheo-bronchial tree is filled with
Second Issue: Liability of Appellant Manuel Garcia muddy particles.

Appellants argue that the finding of conspiracy by the trial court "is based on Q I ask you a question on this. Could the
mere assumption and conjecture . . ." 28 Allegedly, the medico-legal finding victim have possibly get this particular
that the large airway was "filled with muddy particles indicating that the victim material?
was alive when the victim inhaled the muddy particles" did not necessarily
mean that such muddy particles entered the body of the victim while he was A No, sir.
still alive. The Sinumpaang Salaysay of Quitlong stated, "Nilubayan lang
nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr." Thus, the
Q What do you mean by no?
prosecution evidence shows Masangkay was already "dead" when he was
lifted and dumped into the well. Hence, Garcia could be held liable only as an
accessory. 29 A A person should be alive so that the
muddy particles could be inhaled.
We do not agree with the above contention. Article 4, par. 1, of the Revised
Penal Code states that criminal liability shall be incurred by "any person Q So, in short, you are telling or saying to us
committing a felony (delito) although the wrongful act done be different from that if there is no inhaling or the taking or
that which he intended." The essential requisites for the application of this receiving of muddy particles at that time, the
provision are that (a) the intended act is felonious; (b) the resulting act is person is still alive?
likewise a felony; and (c) the unintended albeit graver wrong was primarily
caused by the actor's wrongful acts. In assisting Appellant Ortega, Jr. carry A Yes, sir.
the body of Masangkay to the well, Appellant Garcia was committing a
felony. The offense was that of concealing the body of the crime to prevent Q Second point?
its discovery, i.e. that of being an accessory in the crime of
homicide. 30 Although Appellant Garcia may have been unaware that the A The heart is pale with some multiple
victim was still alive when he assisted Ortega in throwing the body into the petechial hemorrhages at the anterior
well, he is still liable for the direct and natural consequence of his felonious surface.
act, even if the resulting offense is worse than that intended.
Q And this may [be] due to stab wounds or
True, Appellant Garcia merely assisted in concealing the body of the victim. asphyxia?
But the autopsy conducted by the NBI medico-legal officer showed that the
victim at that time was still alive, and that he died subsequently of
A These are the effects or due to asphyxia
drowning.31That drowning was the immediate cause of death was medically
or decreased amount of blood going to the
demonstrated by the muddy particles found in the victim's airway, lungs and
heart.
Q This asphyxia are you referring to is the
drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple
petechial hemorrhages.
Q What could have caused this injury of the
lungs?
A This is due to asphyxia or the loss of
blood.
Q Are you saying that the lungs have been
filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that
due to stab wounds or asphyxia, the lungs
have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral
organs, pale. What is this?
A The paleness of the brain and other
visceral organs is due to loss of blood.
Q And, of course, loss of blood could be
attributed to the stab wound which is
number 13?
A Yes, sir.
Q And the last one, under the particular
point "hemothorax"?
A It indicates at the right side. There are
around 1,400 cc of blood that accumulate at
the thoraxic cavity and this was admixed
with granular materials?
Q And what cause the admixing with
granular materials on said particular portion
of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials
as affected by asphyxia? Am I correct?
A It's due to stab wounds those muddy
particles which set-in thru the stab wounds.
Q So, because of the opening of the stab
wounds, the muddy particles now came in,
in that particular portion of the body and
caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly,
the last two portions, will you please explain
the same?
A The hemoperitoneum there are 900 cc of
blood that accumulated inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with
muddy particles. Please explain the same?
A The victim could have taken these when
he was submerged in water.
Q What is the take in?
 A Muddy particles.
Q And he was still alive at that time?
A Yes, sir. (Emphasis supplied)
A Filipino authority on forensic medicine opines that any of the following
medical findings may show that drowning is the cause of death: 34
1. The presence of materials or foreign
bodies in the hands of the victim. The
clenching of the hands is a manifestation of
cadaveric spasm in the effort of the victim to
save himself from drowning.
2. Increase in volume (emphysema
aquosum) and edema of the lungs (edema
aquosum).
3. Presence of water and fluid in the
stomach contents corresponding to the
medium where the body was recovered.
4. Presence of froth, foam or foreign bodies
in the air passage found in the medium
where the victim was found.
5. Presence of water in the middle ear.
The third and fourth findings were present in the case of Victim
Masangkay. It was proven that his airpassage, or specifically his
tracheo-bronchial tree, was filled with muddy particles which were
residues at the bottom of the well. Even his stomach was half-filled
with such muddy particles. The unrebutted testimony of the medico-
legal officer that all these muddy particles were ingested when the
victim was still alive proved that the victim died of drowning inside
the well.
The drowning was the direct, natural and logical consequence of the felony
that. Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under
this paragraph, a person may be convicted of homicide although he had no
original intent to kill. 35
In spite of the evidence showing that Appellant Garcia could be held liable as
principal in the crime of homicide, there are, however, two legal obstacles
barring his conviction, even as an accessory — as prayed for by appellants'
counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of
"attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on
the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA."
The prosecution's evidence itself shows that Garcia had nothing to do with
the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and the
resulting drowning of Victim Masangkay. The hornbook doctrine in our
jurisdiction is that an accused cannot be convicted of an offense, unless it is
clearly charged in the complaint or information. Constitutionally, he has a
right to be informed of the nature and cause of the accusation against him.
To convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right. 36 Section 14, par.
2, of the 1987 Constitution explicitly guarantees the following:
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to
appear is unjustifiable. (Emphasis supplied)
In People vs. Pailano, 37 this Court ruled that there can be no conviction for
rape on a woman "deprived of reason or otherwise unconscious" where the
information charged the accused of sexual assault "by using force or
intimidation," thus:
The criminal complaint in this case alleged the commission
of the crime through the first method although the
prosecution sought to establish at the trial that the
complainant was a mental retardate. Its purpose in doing so
is not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-
appellant on the ground that he violated Anita while she was
deprived of reason or unconscious, such conviction could
 not have been possible under the criminal complaint as
worded. This described the offense as having been
committed by "Antonio Pailano, being then provided with a
scythe, by means of violence and intimidation, (who) did,
then and there, wilfully, unlawfully and feloniously have
carnal knowledge of the complainant, Anita Ibañez, 15 years
of age, against her will'. No mention was made of the second
circumstance.
Second. Although the prosecution was able to prove that Appellant Garcia
assisted in "concealing . . . the body of the crime, . . . in order to prevent its
discovery," he can neither be convicted as an accessory after the fact
defined under Article 19, par. 2, of the Revised Penal Code. The records
show that Appellant Garcia is a brother-in-law of Appellant Ortega, 38 the
latter's sister, Maritess, being his wife. 39 Such relationship exempts
Appellant Garcia from criminal liability as provided by Article 20 of the
Revised Penal Code:

Conviction of the accused-appellant on the finding that he Art. 20. Accessories who are exempt from criminal liability.
had raped Anita while she was unconscious or otherwise — The penalties prescribed for accessories shall not be
deprived of reason — and not through force and intimidation, imposed upon those who are such with respect to their
which was the method alleged — would have violated his spouses, ascendants, descendants, legitimate, natural, and
right to be informed of the nature and cause of the adopted brothers and sisters, or relatives by affinity within
accusation against him. [Article IV, Sec. 19, Constitution of the same degrees with the single exception of accessories
1973; now Article III, Sec. 14(2)] This right is safeguarded by falling within the provisions of paragraph 1 of the next
the Constitution to every accused so he can prepare an preceding article.
adequate defense against the charge against him.
Convicting him of a ground not alleged while he is On the other hand, "the next preceding article" provides:
concentrating his defense against the ground alleged would
plainly be unfair and underhanded. This right was, of course, Art. 19. Accessories. — Accessories are those who, having
available to the herein accused-appellant.
knowledge of the commission of the crime, and without
having participated therein, either as principals or
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a accomplices, take part subsequent to its commission in any
person charged with rape could not be found guilty of of the following manners:
qualified seduction, which had not been alleged in the
criminal complaint against him. In the case of People vs.
1. By profiting themselves
Montes, [fn: 122 SCRA 409] the Court did not permit the
or assisting the offender to
conviction for homicide of a person held responsible for the profit by the effects of the
suicide of the woman he was supposed to have raped, as crime.
the crime he was accused of — and acquitted — was not
homicide but rape. More to the point is Tubb v. People of the
Philippines, [fn: 101 Phil. 114] where the accused was 2. By concealing or
charged with the misappropriation of funds held by him in destroying the body of the
trust with the obligation to return the same under Article 315, crime, or the effects or
paragraph l(b) of the Revised Penal Code, but was convicted instruments thereof, in order
of swindling by means of false pretenses, under paragraph to prevent its discovery.
2(b) of the said Article, which was not alleged in the
information. The Court said such conviction would violate the 3. By harboring, concealing,
Bill of Rights. or assisting in the escape of
the principal of the crime,
By parity of reasoning, Appellant Garcia cannot be convicted of homicide provided the accessory acts
through drowning in an information that charges murder by means of with abuse of his public
stabbing. functions or whenever the
author of the crime is guilty
of treason, parricide,
 murder, or an attempt to
take the life of the Chief
Executive, or is known to be
habitually guilty of some
other crime.
Appellant Garcia, being a covered relative by affinity of the principal accused,
Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting
provision of the Revised Penal Code. This Court is thus mandated by law to
acquit him.
Penalty and Damages
The award of actual damages should be reduced to P31,790.00 from
P35,000.00. The former amount was proven both by documentary evidence
and by the testimony of Melba Lozano, a sister of the victim. 38 Of the
expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim. 39 However, in line with
current jurisprudence, 40 Appellant Ortega shall also indemnify the heirs of
the deceased in the sum of P50,000.00. Indemnity requires no proof other
than the fact of death and appellant's responsibility therefor. 43
The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant Ortega.
Because he is entitled to the benefits of the Indeterminate Sentence Law, the
minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal is PARTLY
GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of homicide and
sentenced to ten (10) years of prision mayor medium, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to
pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as
actual damages. Appellant Manuel Garcia is ACQUITTED. His immediate
release from confinement is ORDERED unless he is detained for some other
valid cause.
SO ORDERED.
EN BANC
[G.R. No. 129051. July 28, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO MOLINA y
FLORES, accused-appellant.
DECISION
ROMERO, J.:
The present case is one for murder brought before us on automatic
review, the capital punishment of death having been imposed by the trial
court. Accused-appellant, Romeo Molina, was indicted for the crime of murder
allegedly committed as follows:
That on or about the 14th day of July, 1995 at barangay D Alarcio,
municipality of Laoac, province of Pangasinan and within the jurisdiction of
this Honorable Court, the said accused, with intent to kill and with treachery,
did then and there wilfully, unlawfully and feloniously attack, hit and stab
DOMINGO FLORES with the use of a stone and knife, inflicting to said victim
the following injuries:
EXTERNAL FINDINGS:
- Contusion + lacerated wound 0.5 cm. over the left eyebrow
- Contusion + lacerated wound V-shape over the right parieto temporal area
- Contusion + lacerated wound over the occipital area
- Deep lacerated wound 2 cm. over the ant. neck area
- (+) Subcuteous emphysema base cervinal area
INTERNAL FINDINGS:
- Depressed Fracture over the occipital bone with minimal bleeding
- Linear fracture over the right parieto tempral bone
which injuries being mortal caused the death of said Domingo Flores to the
damage and prejudice of his heirs.
CONTRARY to Article 248, Revised Penal Code.[1]
On arraignment, accused-appellant with the assistance of counsel
entered a plea of not guilty and after trial, Judge Joven F. Costales of Branch
45 Regional Trial Court of Urdaneta, Pangasinan rendered the decision[2] now
under review, the decretal portion of which reads:
WHEREFORE, in view of all the foregoing, this Court finds the accused
ROMEO MOLINA y Flores GUILTY beyond reasonable doubt of the crime of
MURDER defined and penalized under Republic Act No. 7659 otherwise
known as the Heinous Crime Law, the offense having been committed with
the attendant aggravating circumstance of dwelling and hereby sentences
him with the ultimum supplicium of DEATH to be executed pursuant to
Repbulic Act No. 8177 known as the Lethal Injection Law and to pay the
heirs of the victim DOMINGO FLORES in the amount of P50,000.00 as
indemnity; P40,000.00 as actual damages; P200,000.00 as moral damages;
and to pay the costs.
Finally, it is said:
Dura lex, sed lex, translated as The law is harsh, but that is the law!
SO ORDERED.[3]
The facts, as culled from the evidence of the prosecution are as follows:
On July 14, 1995, at around 10:00 oclock in the evening, Domingo Flores
was asleep in his house in DAlarcio, Laoac, Pangasinan. His daughter,
Melanie, who was then listening to the radio, was the only one in the household
still awake at that time. Hearing a sound, she saw accused-appellant, her
fathers cousin, barging in through the kitchen door and going straight to her
fathers room. She peeped through a curtain and saw accused-appellant hitting
her sleeping father on the head with a stone the size of a fist and afterwards
stabbing him in the neck and eyebrow with a knife. She was able to recognize
her uncle as her fathers assailant because there was a lamp near her fathers
head at the time of the attack. Afraid that she too would be harmed, Melanie
did not immediately come to her fathers aid and instead watched as accused-
appellant made good his escape. It was only after Molina had left that she
hastened to call her grandfather, Eufrosinio Flores, who lived
nearby.[4] Responding to Melanies cries, Eufrosinio found his son on the bed
soaked in his own blood. As Eufrosinio lifted his son onto his lap, Domingo,
fatally wounded and bleeding, told his father that it was his insan Romy who
stabbed him. Hours later, Domingo died from his injuries while being
transferred to another hospital.[5] Post-mortem findings revealed that the cause
of his death was severe intracranial bleeding secondary to skull fracture and
blood loss due to a stab wound on the neck.[6]
On his part, Molina interposed the defense of alibi to exculpate himself
from liability. According to him, on July 14, 1995, he left his house in
Cabilaoan, Laoac, Pangasinan at around three oclock in the afternoon to
borrow the plow of his uncle, Martin Molina, who lived in Manaoag,
Pangasinan. When he was returning home after getting the plow, he met the
victim Domingo Flores and Orlando Fernandez. Suddenly and without any
provocation, the two who appeared drunk at the time, took turns mauling
him. Thereafter, he hailed a tricycle and told the driver to take him to the Don
Amadeo Perez, Sr. Memorial Hospital in Urdaneta, Pangasinan where his
injuries were cleaned and treated. The attending physician, Dr. Noel Obedoza,
recommended that Molina be confined but the latter refused, saying he had no
money.
According to the accused-appellant, he stayed in the hospital waiting area
up to eleven oclock in the evening of July 14, 1995 until a nursing attendant in
the said hospital, Alejandro Duyag, took pity on him and brought him to the
latters house where he spent the night. Molina claimed that he has since
stayed with Duyag for about a month as he did not want to go home for fear
that his attackers would harm him again. During his stay with Duyag, he
worked for the latter as farm helper. Accused-appellant further denied having
had anything to do with the death of Domingo Flores, claiming that he only
learned of the killing more than a month later. He likewise said that prior to July
14, 1995, there was no bad blood between him and the victim. In fact, he said,
Domingo was like a father to him and he saw no reason why the victims family
would make any false accusations against him.[7]
To corroborate the foregoing testimony of the accused-appellant, the
defense presented Dr. Noel Obedoza[8] and Alejandro Duyag, Sr.[9] Moreover,
the policeman who prepared the investigation report based on the police
blotter entry regarding the killing of Domingo Flores and the investigating
officer assigned to the case were likewise called as witnesses to establish
certain inconsistencies in the initial statements of Melanie and Eufresinio. [10]
Article 248 of the Revised Penal Code as amended by Republic Act No.
7659 states that:
Art. 248. Murder. Any person who, not falling within the provisions of Article
246 shall kill another, shall be guilty of murder and shall be punished
by reclusion perpetua to death if committed with any of the following
attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.
xxx.
 In the case at bar, the identity of Domingo Flores killer is not
unknown. The records show that accused-appellant was positively identified
as the assailant, not only by Domingos daughter Melanie, who witnesses the
stabbling, but also by the victim himself while the latter was in the throes of
death.
The requisites for the admissibility of dying declaration have already been
established in a long line of cases. Thus, in the case at bar, the victims ante-
mortem statement is entitled to much probative weight since it has been
proven that: (1) at the time the declaration was made, death was imminent and
the declarant was conscious of that fact; (2) the declaration refers to the cause
and surrounding circumstances of such death; (3) the declaration relates to
facts which the victim was competent to testify to; (4) the declarant thereafter
died; and (5) the declaration is offered in a criminal case wherein the
declarants death is the subject of the inquiry.
Indeed, a dying declaration is entitled to the highest credence because
no person who knows of his impending death would make a careless and false
accusation. Thus, it has been held that when a person is at the point of death,
every motive of falsehood is silenced and the mind is induced by the most
powerful consideration to speak the truth.[11]
Accused-appellant attempted to exculpate himself from liability by
pointing out certain inconsistencies between the sworn statements and the
testimonies of Melanie and Eufrosinio. In Melanies sworn statement, she said
that she saw accused-appellant stab her father that fateful night of July 14,
1995. However, she testified in court that she saw Molina hit her father twice
in the head with a stone before stabbing him on the left eyebrow and
neck. Eufresinio, on the other hand, averred in his sworn statement that
Domingo, making his dying declaration, pointed to Molina as his assailant, in
the jeepney while the victim was being brought to the hospital; in his testimony,
however, Eufresinio clarified that the dying declaration was made while they
were still in Domingos house right after the latter was stabbed.
To our mind, these inconsistencies do not affect the credibility of the said
witnesses. For one, accused-appellant himself admitted in open court that
prior to July 14, 1995, there was never any bad blood between him and
Domingo and that he saw no reason why the latters family would make false
accusations against him. Moreover, the alleged discrepancies may well be due
to the fact that at the time the sworn statements of the witnesses were taken,
they were still in a state of grief and shock, which explains why they were not
able to relate accurately the events that transpired on the night of the
killing. Likewise, it should be noted that the sworn statements of the said
witnesses were prepared by police investigators and misapprehension by the
latter of the facts related by the witnesses cannot be discounted. In any case,
the records bear out the fact that during the trial, both Melanie and Eufresinio
were able to clarify their averments in their respective sworn statements and
despite the gruelling cross-examination, they managed to consistently and
credibly maintain their version of what actually happened.
It should be reiterated that discrepancies between the affidavit of a
witness and his testimony in court do not necessarily discredit him because it
is a matter of judicial experience that affidavits, being taken ex-parte, are
almost always incomplete and often inaccurate.[12] Besides, as the lower court
cited, the testimonial discrepancies could have been caused by the natural
fickleness of memory which tends to strengthen, rather than weaken credibility
as they erase any suspicion of rehearse testimony.[13] Furthermore, as this
Court has time and again observed, it is when the testimony appears totally
flawless that a court may entertain misgivings on its veracity. In fact, certain
minor variances in the details of a witness account, more frequently than not,
can be badges of truth rather than indicia of falsehood, and they often bolster
the probative value of the testimony.[14]
Moreover, well entrenched is the rule that inconsistencies and
discrepancies in the testimony of witnesses, when referring only to minor
details and collateral matters, do not affect either the substance of their
declaration, their veracity, or the weight of their testimony. Although there may
be inconsistencies on minor details, the same do not impair the credibility of
the witness where there is consistency in relating the principal occurrence and
positive identification of the assailant, as in the case at bar.[15]
With respect to the accused-appellants defense of alibi, suffice it to say
that denials and alibis, unsubstantiated by clear and convincing evidence, are
negative and self-serving and deserve no probative weight especially in light
of the testimonies of credible witnesses who have positively identified the
accused as the assailant. In addition, it has been held that for an alibi to
prevail, the defense must establish by positive, clear and satisfactory proof
that it was physically impossible for the accused to have been at the scene of
the crime at the time of its commission, and not merely that the accused was
somewhere else,[16] as Molina claimed in this case. Accused-appellant himself
admitted on the witness stand that from the hospital where he was treated for
his injuries, he could have easily taken a tricycle ride to get to the victim's
house.[17]
This Court has had occasion to rule that alibi is one of the weakest
defenses an accused can invoke, and the courts have always received it with
caution, if not suspicion, not only because it is inherently unreliable but likewise
because it is rather easy to fabricate.[18]
As to the manner in which Molina killed the victim, the same was
undoubtedly attended by treachery since the accused attacked Domingo while
the latter was asleep and unable to defend himself. There is alevosia where
the attack was sudden and unexpected, rendering the victim defenseless and
ensuring the accomplishment of the assailants evil purpose without risk to
himself.[19]
 Likewise, the generic aggravating circumstance of dwelling was properly
appreciated by the trial court, considering that Molina purposely entered the
victims abode with the intention to kill him. Article 14 (5) of the Revised Penal
Code provides that where the crime was committed in the dwelling of the
offended party and the latter has not given any provocation, the same is
considered an aggravating circumstance. As Viada puts it, The home is a sort
of sacred place for its owner. He who goes to anothers house to slander him,
hurt him or do him wrong, is more guilty than he who offends him elsewhere.[20]
It should be emphasized that for dwelling to be appreciated as an
aggravating circumstance, there must have been no provocation on the part
of the victim. The provocation contemplated here is one that is sufficient and
immediate to the commission of the crime. In other words, the invasion of the
privacy of the offended partys house must have been the direct and immediate
consequence of the provocation given by the latter as where, for example, the
accused and the victim quarelled in front of the latters house and the accused,
in a fit of rage entered the victims house and proceeded to stab him.[21] Such
is not the situation in the case at bar because the killing in the victims house
occurred at least six hours after the accuseds mauling.
There is, however, the mitigating circumstance of vindication of a grave
offense to offset the generic aggravating circumstance of dwelling. As the
records show, accused-appellant was treated for injuries he sustained when
he was mauled in the afternoon of July 14, 1995 and the prosecution did not
offer anny rebuttal evidence to deny the allegation that Domingo was one of
the men who beat up Molina. Indeed, that accused-appellant was mauled for
no apparent reason by someone who looked up to as a father understandably
engendered a strong feeling of vengeance on his part. Sadly, however, he
chose to take the law into his own hands to sate his thirst for revenge.
WHEREFORE, in view of the foregoing, the judgment of the trial court
convicting the accused for murder is hereby AFFIRMED with the
MODIFICATION that the penalty is reduced from death to reclusion perpetua,
the generic aggravating circumstance of dwelling having been offset by the
mitigating circumstance of vindication of a grave offense.
No costs.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago,
JJ., concur.
Davide, Jr., C.J., on leave.
G.R. No. L-35413 November 7, 1979
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE MORALES, defendant-appellant.
Edcel C. Lagman for appellant.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eulogio
Raquel-Santos and Solicitor Mm Rosario Quetulio-Losa for appellee.
CONCEPCION JR., J.:
AUTOMATIC REVIEW of the death sentence imposed upon the accused for
having carnal knowledge of a woman under 12 years of age, against her will,
with the use of a deadly weapon.
The record shows that the offended party, Antonia (Anita) Solano, who was
born on August 10, 1958, 1 was serving as a housemaid in the house of the
accused, Felipe Morales, in order to pay off a debt incurred by her parents
with said Felipe Morales. 2 The accused is married to Isabel Mahinay and the
spouses have four (4) children whose ages are 16, 15, 11, and 7
years. 3 They live in a secluded and forested area in Nanganangan,
Dumalinao, Zamboanga del Sur, a barrio very far from the poblacion and the
highway, and where their nearest neighbor lived half a kilometer away. 4
In the evening of March 10, 1970, while the household was asleep, Felipe
Morales told Antonia Solano, who was sleeping by herself in another part of
the unpartitioned house, "to wake up because he would make a sexual
intercourse" with her. 5 Then, the accused got his bolo and, pointing it at the
chest of the girl near her neck, told her that if she would not consent, he
would kill her. He pulled down her panty and placed himself on top of her.
She struggled to get up, but Felipe Morales held her down. She could not
shout because she was afraid that the accused would kill her. The accused
inserted his penis into her genitalia and had sexual intercourse with her. She
felt pain and blood came out of her vagina. She tried to rouse the 15-year old
daughter of the accused who was sleeping near her, saying: "Mar you wake
up because your father is raping me." But, Mar did not wake up. She merely
moved. 6 Felipe Morales had sexual intercourse with her five (5) times that
night. 7
The following day, she went home and reported the incident to her parents.
But, they did not believe her. 8 However, she stayed in their house and did
not return to the house of Felipe Morales until "Felipe Morales went to our
house and he told my parents that if they will not allow me to return to the
house of Felipe Morales, the accused will kill all of us." 9 So, she went back
to the house of Felipe Morales. She also reported the incident to the wife of
Felipe Morales, but "she did not mind." 10 Thereafter, Felipe Morales had
sexual intercourse with the complainant two or three times every night. 11
On May 11, 1970, Felipe Morales and his son took Antonia Solano with,
them to Nilo, to sell rattan and to buy some provisions in the market. Finding
an opportunity, Antonia Solano escaped and fled to Pagadian City, to the
house of one Loring Sali in the wharf area. She recounted her ordeal and
together they went to a policeman who in turn brought them to the capitol
where he got a lawyer, one Atty. Carpio. The latter brought Antonia Solano
back to Dumalinao where she filed a complaint before Mayor Edmundo
Dalid. She was investigated by the chief of police who then helped her in
filing a formal complaint against Felipe Morales. 13 "She was also taken to
the Municipal Health Officer who examined her thoroughly from head to foot,
after which a medical certificate was issued. The medical certificate 4 states
the following:
Physical Examination
Anita Solano, born August 10, 1958, living in Barrio
Nanganangan residing with the family of Felipe Morales
because Anita was left by her mother there when her father
died last year 1969. Her father died 1968.
Date, time & place of alleged commission of Rape
Since March 1970, Felipe Morales, with whom she is living
with or staying with get her every night and sleep with her
even against the will & consent of the wife. It was just
recently, this first week of May that she was able to escape.
According to the child she could not escape because there is
a bolo beside them while sleeping and it is hard to escape
because the place is yet a forest.
Menarche had not began yet, it was only last March 21,
1970 she had bloody discharge from the vagina for 2 weeks,
but last April 1970 there was no blood discharge or
menstruation
Date, time place of examination petition.
May 13, 1970, 11:30 AM, Dumalinao, RHU Center.
All years 9 months old child, slightly pale looking brought by
the policeman.
Physical Examination:
Breasts not yet developed. Examination of the vulva shows
absence of public hair.
Hymen shows healed lacerations at 3:00 o'clock, 6:00
o'clock & at 9:00 o'clock when compared to the face of the
clock.
Small vaginal speculum inserted to visualize the cervix,
cervix pinkish.
Diagnosis: Healed lacerations of hymen therefore virginity
lost.
Antonia gave her name as Anita Solano because "I was afraid of the
accused. The moment he will see me, he will kill me." 15
Felipe Morales admitted that he had carnal knowledge of Antonia Solano on
the occasions mentioned by her. He claims, however, that it was with the
consent of the woman. He declared that on March 7, 1970, he and his
common-law wife, Isabel Mahinay, went to the house of Gaudencio Sanoy,
where the parents of Antonia Solano were then residing, in order to propose
and make arrangements for his marriage to Antonia. Among those present,
other than the parents of Antonia and Gaudencio Sanoy, were Pacio and the
son of Flavio, whose family names he could not recall. Antonia was also
present, but was asleep in another part of the house when they arrived.
However, she was awakened and she consented to her marriage with Felipe
Morales. Felipe Morales was required to give a dowry of P200.00 and one
and a half (1-1/2) hectares of land to the parents of Antonia. But, he was only
able to give P62.00 and still lacks P138.00. They also agreed to have the
marriage celebrated the next year because the priest might not consent as
Antonia was still young. 16
On March 10, 1970, he invited Antonia and her parents to his house to
participate in a prayer. They came and stayed in their house that night.
Antonia slept with her parents while his wife slept beside her sister. He slept
beside Antonia. "As a matter of fact, it was her parents who said that 'why is
it that you are far from each other, anyway what is lacking is only the
marriage ceremony."' So, he and Antonia rolled inside a mat and had sexual
intercourse. Antonia was a virgin and, in the beginning, he found it difficult to
insert his penis into her vagina. Antonia did not resist and enjoyed the act.
"She even go on top of me." He had sexual intercourse with Antonia five (5)
times that night. He and Antonia were "as sweet as honey" and had sexual
intercourse 2 to 3 times every night until May 11, 1970. He does not know
why Antonia filed a complaint against him.
The trial court rejected the defense and found that the accused Felipe
Morales did in fact commit the crime of rape on the person of Antonia
Solano, who at the time of the intercourse was only 11 years and 7 months
old, and that the marriage proposal of Morales was a last-ditch effort to make
Antonia Solano withdraw her charge of rape.
We have examined the records of the case with great care and find no
reason to disturb the findings of fact of the trial court based upon credibility of
witnesses. In the manner the complainant had testified in court, there could
be no doubt that she was telling the absolute truth. It is hard to conceive that
she would claim and admit the ignominy and shame she had gone through if
they were not true. We are also fully convinced that the allegations of rape
have been proven beyond reasonable doubt. In the case at bar, the offended
party recited in full the details of how the accused did everything in his power
to overcome her. The evidence of force indicates that the accused had carnal
knowledge of her after pointing a bolo at her chest, near the neck, and telling
her that he would kill her if she did not accede to his demands. The accused
pinned her down and though she tried to get up, he proved much stronger.
She could not shout as she was afraid that he would kill her if she did. Her
testimony is corroborated by Dr. Bernarda Dalid who examined her and
found signs of violation of her person. One other circumstance which
supports the claim that rape was committed is the fact that the day following
the commission of the felony, the complainant went home and reported the
incident to her parents and refused to return to the house of the accused,
until the latter threatened to kill all of them if she did not return. Another
circumstance indicative of his guilt is the fact that the accused proposed
marriage to Antonia. Antonia Solano declared that the accused had, indeed,
proposed marriage to her, but that it was made after he had raped her and
she did not agree to the proposal "because he has wife and so many children
and he even raped me and I am still young." 18 And Gaudenico Sanoy, a
friend of the accused, who was presented to corroborate the statement of the
accused that he had proposed marriage, stated that he cannot understand
why the accused should propose marriage "because I know that Felipe
Morales is a married man" and has four children.19 He did not ask Felipe
Morales the reason why he was proposing marriage "because if I will ask he
might get angry." 20 He was also ashamed and did not like to interfere. 21 The
accused, who had already a wife and children some of whom are even older
than the complainant, would not have offered to marry her except out of a
sense of guilt and in order to avoid criminal responsibility.
We are not oblivious to the effort made by counsel for the accused to
discredit the testimony of the complainant in pointing out some discrepancies
or flaws in the testimony of the complainant concerning the manner she was
forced into submission by the accused. But said flaws or discrepancies
cannot devalue the substance of her testimony or destroy the other
circumstances that point unerringly to the defendant's guilt. Besides, We
have to consider her situation as a girl of tender age whose will had been
subjugated accompanied by threats of death, and the fact that the felony was
committed almost two years before she gave her testimony in court.
The claim of the defendant that it was the parents of the complainant who
proposed that the accused should have sexual intercourse with the offended
party without the benefit of clergy is very incredible. The fact that accused is
a married man with four children was known to the parents of the
complainant. Even if they consented that their daughter be a second wife to
the accused, still it is unbelievable for the parents of the girl to have proposed
and openly and willingly allowed their daughter to have sexual intercourse
with the accused, before marriage, and in the presence of several persons,
including the wife of the accused.
Besides, if it were true, as the defense alleges, that the complainant had
agreed to marry the accused and have sexual intercourse with him and that
their connubial relationship was "as sweet as honey," it is incomprehensible
for the complainant to have escaped from the accused at the first opportunity
and later denounce him for committing such a beastly and shameful crime.
Considering the extreme modesty and timidity of the Filipino women,
especially those from the barrio, We cannot believe that the herein offended
party, whose chastity has not been questioned, could have fabricated such a
story as would so seriously dishonor her.
But, even granting that she had consented to the intercourse, this fact does
not relieve the accused of criminal responsibility. Since the offended party
was less than 12 years old at the time of the intercourse, rape was
committed although there might have been consent to the sexual act. Being
of tender age, she is presumed not to have a will of her own. The law does
not consider any kind of consent given by her as voluntary.
The accused assails the decision of the trial court, claiming that the
prosecution failed to introduce evidence, whether documentary or
testimonial, to support the claim of the offended party that she was under 12
years of age at the time of the commission of the felony. The contention is
without merit. Antonia Solano declared that she was born on August 10,
1958 so that she was only 11 years and 7 months old on March 10, 1970
when the accused had carnal knowledge of her. 'This fact is admitted by the
accused in his sworn statement, 22 given soon after his arrest, wherein he
stated the following:
 Q Do you know how old Anita Sullano is?
A What I know of her age is running 12
years old.
The fact is further corroborated by Dr. Bernarda Dalid who, upon examining
the offended party, stated that the complainant was "A(n) 11 years 9 months
old child, slightly pale looking brought by the policeman." 23 Besides, the age
of the complainant has not been controverted in the court below. In the
absence of proof to the contrary, her testimony should be accepted as the
truth, as found by the trial court.
It may be true that the complaint and the information stated that the
complainant was 12 years old. However, as contended by the Solicitor
General, "the allegations in the complaint or information do not control over
the proof submitted regarding the date of birth of the complainant, which
proof, the defense did not controvert in any way during the trial. Besides, the
information is technically correct, because when it was filed on September
22, 1970, the complainant was then actually 12 years of age, her 12th
birthday having been August 10, 1970." 24
The accused also claims that the sexual intercourse between the accused
and the complainant could not have been consummated other than through
mutual agreement and performed with utmost secrecy and surreptitiousness
since the sala of his house, which is only 3 x 3 meters in dimension, is used
at the same time as the sleeping quarters of his entire family consisting of
himself, his wife, and four children whose ages were 16, 15, 11, and 7 years.
Seemingly, it would be improbable for the accused to have raped the
complainant under those circumstances and in the presence of his wife and
children, but a man overcome by his perversity and beastly passions
chooses neither time, nor place, nor victim, and forgets everything to satisfy
his passion. Besides, as stated in the medical certificate (Exh. "A") the
accused would have sexual intercourse with the complainant even against
the will and consent of the wife."
Finally, the accused contends that the claim of the complainant during the
trial that she was threatened with a bolo is a "wild figment of her malevolent
imagination" since her complaint, affidavit, and the "searching questions and
answers" Mayor Dalid do not mention anything about her having been
threatened by the accused with a bolo, and, therefore, deserves no
credence.
The contention is without merit. The medical certificate (Exhibit "A") shows
that the complainant had already mentioned the bolo as the intimidating force
in the commission of rape against her. The said certificate states: "According
to the child, she could not escape because there is a bolo beside them while
sleeping and it is hard to escape because the place is yet a forest." At any
rate, the fact that the affidavit of the offended party in support of the
complaint and information are less detailed than her testimony in open court
does not make said affidavit or testimony false or incredible, there being no
incongruity between them or inconsistency in the facts stated in one and the
other. Neither the rules nor practice require detailed affidavits in support of a
complaint or information.
The trial court found that the aggravating circumstances of nighttime,
dwelling and abuse of confidence attended the commission of the felony.
Nighttime, however, is not aggravating since the record does not show that it
was sought after to facilitate the attainment of the lustful purpose. Dwelling
cannot also be appreciated as an aggravating circumstance because the
accused and the offended party are domiciled in the same house where the
felony was committed." 25 But abuse of confidence is present since the
complainant was a housemaid of the accused when the crime was
committed.
Under Article 335 of the Revised Penal Code, the penalty to be imposed
is reclusion perpetua to death when the crime of rape is committed with the
use of a deadly weapon. Since the felony was committed with the use of a
deadly weapon and attended by the aggravating circumstance to offset the
same, the penalty should be imposed in its maximum period, which is death.
The trial court, therefore, correctly sentenced the accused to suffer the death
penalty.
The Solicitor General recommends that the accused should be ordered to
indemnify the offended party. We agree. Having been raped is akin to
suffering moral death. Hence, the offended party should be indemnified.
WHEREFORE, the judgment of the trial court is hereby affirmed with the
modification that the accused Felipe Morales is ordered to indemnify the
offended party, Antonia Solano, the amount of P12,000.00. With costs
against the accused. However, for lack of the required number of votes, for
the imposition of the death penalty, the accused Felipe Morales is hereby
sentenced to suffer the penalty of reclusion perpetua.
SO ORDERED.
Fernando, CJ., Antonio, Aquino, Fernandez, Guerrero, Abad Santos and De
Castro, JJ., concur.
Teehankee and Aquino, JJ., concur in the result.

THIRD DIVISION
[G.R. No. 69317. May 21, 1990.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DANILO BADILLA
Y OÑES alias DODONG, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Camilo D. Quiason counsel de oficio for Accused-Appellant.
SYLLABUS
1. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ESTABLISHED IN CASE
AT BAR. — The appellant’s reason for stabbing the victim is that "when he
saw that his finger was bleeding because of the bite of Nestora Horohoro’s
teeth, he felt so obfuscated so he held his knife and stabbed Nestora
Horohoro." This statement is purely self-serving. The more believable reason
is the appellant’s craving for the radio cassette recorder and the electric fan
and his willingness to get them from the appellant whatever the means or
cost. The testimony of Joseph Lim reveals that the appellant already had a
plan to get not only the radio cassette but the rota air electric fan as well
even before the killing. The testimony of the appellant, therefore, was only an
attempt to cover-up his plan to get the two items as he did not even make
mention of an electric fan to be borrowed from the deceased. These two
items were offered by the appellant to Joseph Lim as early as 8:00 o’clock in
the morning of July 18, 1984. Upon the victim’s refusal to give the said items,
the appellant attacked and killed the victim and thereafter took the items to
sell to Joseph Lim. The policemen were already there because of the tip that
someone was coming back to sell what were probably hot items. The
homicide then, was committed as a consequence of or on occasion of the
robbery.
2. ID.; ID.; IMPOSABLE PENALTY. — Robbery with homicide is punishable
by reclusion perpetua to death. The aggravating circumstances of treachery
and dwelling are appreciated in this case with the mitigating circumstance of
plea of guilty. Death, then is the proper imposable penalty (Article 63 (4),
Revised Penal Code). In view, however, of Article III, Section 19 (1) of the
1987 Constitution as interpreted in our ruling in People v. Muñoz, Et Al., G.R.
Nos L-38969-70, February 9, 1989, 170 SCRA 107 [1989]; prohibiting the
imposition of the death penalty, the Court has since February 2, 1987 not
imposed the death penalty whenever it was called for under the Revised
Penal Code but instead reduced the same to reclusion perpetua. (People v.
Solis, Et Al., G.R. Nos. 78732-33, February 14, 1990) Thus, Danilo Badilla is
sentenced to reclusion perpetua.
3. ID.; ROBBERY; ELEMENTS; PRESENT IN CASE AT BAR. — It is evident
that robbery was committed. Article 293 of the Revised Penal Code states:
"Any person who, with intent to gain, shall take any personal property
belonging to another, by means of violence against or intimidation of any
person, or using force upon anything shall be guilty of robbery." These
elements are present in the instant case. The intention to gain can be
gleaned not only from the testimony of the businessman-buyer, Joseph Lim
but also from the appellant’s own testimony as he would have used the
proceeds of the sale of the radio cassette and electric fan for his fare. There
was also the use of force as earlier discussed.
4. ID.; AGGRAVATING CIRCUMSTANCES; TREACHERY; PRESENT IN
CASE AT BAR. — Treachery is present in this case because the appellant
employed measures intended to ensure the commission of the offense
without risk to him arising from the defense his victim might make. (People v.
Francisco, Et Al., G.R. No. 69580, February 15, 1990) The numerous stab
wounds, some of which were inflicted at the back of the victim, shows that
the appellant’s attack was sudden and brutal. The suddenness of the attack
deprived the victim, who was a woman, unarmed, and alone, the opportunity
to run or fight back. The appellant, a strong young man, did not even suffer
any injuries except for the small wound on his finger inflicted by a bite.
Obviously, apart from using her teeth, the victim could not put up any
defense.
5. ID.; ID.; DWELLING; VICTIM NEED NOT BE THE OWNER OF THE
HOUSE WHERE THE CRIME WAS COMMITTED.— Dwelling may mean
temporary dwelling. We agree with the trial court that dwelling is an
aggravating circumstance even though the victim was not the owner of the
house where the crime was committed. She was living in that house with her
niece. The owner was in Manila.
6. ID.; ID.; OBVIOUS UNGRATEFULNESS; NOT APPRECIATED IN CASE
AT BAR. — Obvious ungratefulness cannot be appreciated as there is no
evidence as to what generosities and the extent thereof were received by the
appellant from the victim.
7. ID.; MITIGATING CIRCUMSTANCES; LACK OF INTENTION TO
COMMIT SO GRAVE A WRONG; NOT APPRECIATED IN CASE AT BAR.
— The appellant submits that the mitigating circumstance of lack of intention
to commit so grave a wrong mentioned in the sixth assignment of error,
should be considered as he had no intention to kill. This mitigating
circumstance addresses itself to the intention of the offender at the particular
moment when he executes or commits the criminal act. (People v. Abueg,
145 SCRA 622, 634 [1986]). We find that such mitigating circumstance
cannot be considered in this case. The intention of the appellant was clearly
manifested in his overt acts as the victim suffered at least eighteen (18) stab
wounds and multiple lacerated wounds plus abrasions and other injuries.
8. REMEDIAL LAW; ADMISSIBILITY OF EVIDENCE; OBJECTIONS
THERETO MUST BE MADE AT THE PROPER TIME. — It has been
repeatedly held as a rule of evidence that objections against the admission of
any evidence must be made at the proper time and that if not so made it will
be understood to have been waived. The proper time to make a protest or
objection is when, from the question addressed to the witness, or from the
answer thereto, or from the presentation of the proof the inadmissibility of
evidence is, or may be, inferred. (People v. Mariño, 130 SCRA 595, 600-601
[1984]; People v. Verges, 105 SCRA 744, 755 [1981]). In the case at bar,
even if the appellant would not admit Exhibit "E" without seeing the original,
this is not the objection that is raised in the accused’s appeal. Moreover, the
appellant did not object to the admissibility of Exhibit "E" and "E-1." Even
without said rule, the witness presented by the prosecution, Dr. Escobia, had
personally examined the cadaver of the deceased and is, thus deemed
competent to testify on the same matters covered by the post-mortem
certificate.
DECISION
GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court of Bohol,
Branch 3, the dispositive portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, in view of the foregoing considerations, judgment is hereby
rendered finding accused Danilo Badilla y Oñes alias Dodong guilty beyond
reasonable doubt of the crime of Robbery with Homicide allegedly committed
in the manner and under the circumstances described in the aforequoted
information and as penalized under the provisions of Article 294 of the
Revised Penal Code and taking into account three aggravating
circumstances alleged in the aforequoted information which is offset by one
mitigating circumstance, the Court hereby sentences accused Danilo Badilla
y Oñes alias Dodong the penalty of DEATH and to indemnify the heirs of
Nestora Horohoro the sum of P12,000.00 without subsidiary imprisonment in
case of insolvency therefor pursuant to and in accordance with the provisions
of Art. 39 of the Revised Penal Code as amended by RA 5465 and to pay the
costs of the proceedings.
The weapons used in the commission of the crime namely one stainless
knife with white handle and two pieces of broken pestle are ordered
confiscated in favor of the government, and the one rota air electric fan
marked Exhibit B and the radio cassette (Exh. A) Dynamic Sound, are
ordered returned to the heirs of Nestora Horohoro." (Original Record, pp. 55-
56).
The prosecution evidence upon which the trial court based its finding of guilt
beyond reasonable doubt is summarized as follows:jgc:chanrobles.com.ph
"The first witness of the prosecution was Ruth Torrefranca, 10 years old,
single, Grade V, student of Cogon Elementary School, Tagbilaran City, who
testified that on July 18, 1984, in the morning she was at home in their house
at Calceta Street, Tagbilaran City together with her aunt Nestora Horohoro.
The owner of the house where they live is Praxedes Quidang who at that
time was in Manila. That she knows accused Danilo Badilla (witness pointing
to the accused in the courtroom). In the whole morning of July 18, 1984 she
was in school from 7:00 o’clock in the morning to past 11:00 o’clock. In the
afternoon she went back to school but at about 2:00 in the afternoon of the
aforementioned date somebody went to school to her classroom and
informed her of the incident that happened to her aunt Nestora Horohoro.
Before that incident when she returned home at 11:00 o’clock Nestora
Horohoro and Danilo Badilla were with them. They ate lunch together in the
said house. After lunch she left for school and at about 2:00 in the same
afternoon somebody informed her that her aunt Nestora Horohoro died. She
went home due to said information. When she arrived home she noticed that
the radio cassette and rota air electric fan were already gone. These two
aforementioned things were placed near the TV set and that Nestora
Horohoro was already dead lying face down bathed in her own blood at the
porch where she was sweeping when she (Ruth Torrefranca) left for school
after lunch. Nestora Horohoro was already dead when she arrived. The radio
cassette was shown to her in the trial by the prosecuting fiscal and was
identified by her to be the same radio cassette near the TV set in the sala of
Praxedes Quidang where she lives and said radio cassette was marked
Exhibit "A." The rota air electric fan presented by the prosecution was also
identified by her to be the same rota air electric fan that was placed near the
TV set of the house of Praxedes Quidang and the prosecution marked said
rota air electric fan as Exhibit "B." On cross-examination she declared that
before the death of Nestora Horohoro on July 18, 1984, he (sic) saw Danilo
Badilla the accused visit the house of Praxedes Quidang three times.
However, she did not know the reason why Danilo Badilla visited Nestora
Horohoro because at that time she did not know yet that the accused is a
relative of Nestora Horohoro.
The next witness of the prosecution was Erica Requina, 45 years old,
married, beautician, resident of Calceta St., Tagbilaran City, who declared
that she knows accused Danilo Badilla (witness pointing to accused in the
courtroom). She knew Nestora Horohoro being a niece of Praxedes Quidang
who lives in the house of the latter. The house of Praxedes Quidang is
located at Calceta St., City of Tagbilaran which is adjacent to her (Erica)
house. Her house and the house of Praxedes Quidang are separated by a
fence. On July 18, 1984 at past 1:00 o’clock in the afternoon she was at
home with her husband. When she was about to go out from her house, she
heard a sound of the gate in the house of Praxedes Quidang. She went out
and verified what was it and there she saw Danilo Badilla going out of the
gate bringing a radio cassette and rota air electric fan. This Danilo Badilla is
the accused in this case which she identified during the trial to be the same
Danilo Badilla whom she saw bringing the radio cassette and rota air electric
fan. After seeing the accused bringing rota air electric fan and radio cassette,
she went to the gate of the house of Praxedes Quidang and called for
Nestora Horohoro but nobody answered. So she went inside the gate to
verify whether Nestora Horohoro was washing clothes but instead she saw
Nestora Horohoro lying dead bathed in her own blood. In view of the situation
that she saw, she awoke her husband and told her husband to call for the
police. At first she wanted to call the police at Socias residence nearby but
the telephone was busy so she rode a pedicab towards the Tagbilaran City
police station and reported the matter to the police. When she reached the
police station, the police already knew about the incident because somebody
had already reported the matter, therefore she went back home riding in the
police jeep with Pat. Balatero. She declared that she saw the rota air electric
fan and radio cassette brought by accused Badilla because she visits the
house of Praxedes Quidang almost everyday as they are neighbors. She
identified the radio cassette and rota air electric fan in the trial to be the same
rota air electric fan and radio cassette placed in the house of Praxedes
Quidang which were brought by the accused.
The next witness of the prosecution, was Joseph Lim, 33 years old, married,
businessman and resident of CPG Avenue, Tagbilaran City who declared
that he knows accused Danilo Badilla (witness pointing to accused in the
courtroom). That as businessman he is engaged in the sale of hardware and
groceries and his place of business establishment is at the old post office
building, CPG Avenue, Tagbilaran City. The name of his store is Tagbilaran
Champion Enterprises. At about 8:00 o’clock in the morning of July 18, 1984
he was at his store. While in his store a certain person approached him and
offered to sell a radio cassette and a rota air electric fan. He told the person
to bring the said items because he would see if he would like it. That person
wanted to sell the two aforementioned items promised to come back at about
2:00 P.M. and after that the person went away. After the person left he called
the radio station DYRD and inquired the radio station if somebody has lost a
radio cassette and rota air electric fan because he usually hears from said
radio station about some person who lost things like radio cassette. But the
radio station DYRD advised him to call a police station at Tagbilaran City and
so he called for the police. The police with whom he conversed on the
telephone told him that the police would go to his store. At about 9:00 in the
morning of that day there were policemen who arrived at his store. The
policemen stayed nearby his store until past 1:00 o’clock in the afternoon of
said day. At past 1:00 in the afternoon of the same date the person who
introduced to him that he would sell radio cassette and electric fan arrived in
his store. While the said person was in his store the two policemen were also
inside his store. Right there he asked the person about the price of the two
items and the answer of said person it was P3,000.00. This person who was
selling the two items was called by the policemen and was asked about the
last price of said items, and the person answered it is P3,000.00. After that
he (accused) was asked by the police who were then in plain clothes as to
where he got the radio cassette and rota air and the answer of that person it
was given to him by his brother. Then the police told the person that he
would be investigated and this person was later on known to be Danilo
Badilla who was identified by him (Joseph Lim) in the trial of the case to be
the same person who went to his store to sell radio cassette and rota air. He
identified the radio cassette to be colored black, Sanyo Dynamic Sound
which he identified in the trial and marked Exhibit A and likewise she (sic)
identified the rota air to be light brown in color. Later on he learned from the
police station that somebody died. He did not know how the accused Danilo
Badilla got those radio cassette and rota air.
On cross-examination Joseph Lim declared that when Danilo Badilla went to
his store at 1:00 in the afternoon of July 18, 1984 bringing the radio cassette
and rota air electric fan he noticed that there was a small wound on his index
finger. He forget whether it was long (sic) or right index finger.
The next witness for the prosecution was Teofano Ordidor, patrolman of the
Tagbilaran Police Station, who declared that he had been with the Tagbilaran
Police Station as patrolman for 16 years up to the present. That on July 18,
1984 in the morning while in the police station he was called by Capt.
Absalon, then the station commander, to conduct surveillance at Champion
Enterprises because there was a person who offered to sell a radio cassette
and electric fan. In compliance with the said order of their station commander
he and Pfc. Zamora want to the Champion Enterprises located at CPG North,
Tagbilaran City. The owner of the said store is Joseph Lim. They asked
Joseph Lim if it is true that there was a person who offered to sell a radio
cassette and electric fan to him and Joseph Lim answered Yes. Joseph Lim
informed them that person who offered to sell the aforementioned items
would come back to his store. When the person came back to the Champion
Enterprises at about past noon time he and Pat. Zamora were already in the
store, while Joseph Lim and accused Danilo Badilla (the person who offered
to sell the aforementioned items) were negotiating for the price of the said
items, they were listening. And they heard that Danilo Badilla would sell the
item for P3,000.00 to Joseph Lim. After that he held the shoulder of Danilo
Badilla and introduced themselves to be policemen because they were then
in plain clothes. They invited the accused to go with them to the police station
for questioning because the items he brought to Champion Enterprises were
questionable. Pat. Ordidor identified the radio cassette recorder (Dynamic
Sound) marked Exhibit "A" : and the rota air electric fan (Super King) as
Exhibit B. He was able to identify the two items because there was an initial
of Pat. Eugenio Zamora in the radio cassette marked Exhibit 2 (should be A)
as well as in the rota air electric fan. Thereafter, they rode on a motorcycle
and brought the accused to the police station. They noticed that the right little
finger of the accused was with bandage which was stained with blood. At the
police station they conducted investigation on the accused. The piece of
cloth (bandage) which was the cover of the little finger of the accused was
removed and said piece of cloth was identified by him to be the same
bandage marked Exhibit D.
The next witness of the prosecution was Dr. Marcial Escobia, Jr., 31 years
old, resident physician of the Celestino Gallares Memorial Hospital,
Tagbilaran City, who declared that on July 18, 1984 he examined the dead
body of Nestora Horohoro. After examining said deceased body, he issued a
postmortem certificate of death marked Exhibit E and the back of the said
certificate is a postmortem certificate marked Exhibit E-1 which he both
identified during the trial. Atty. Migriño, Jr., admits that the entry in the post
mortem certificate is correct, after Dr. Escobia compared the said certificate
with the records of the hospital. The post mortem certificate is signed by Dr.
Jones of the Tagbilaran City Hospital because the dead body of Nestora
Horohoro was brought to the City Hospital of Tagbilaran. However, they
received the request from the INP Tagbilaran City to conduct autopsy on the
deceased body of Nestora Horohoro and after which he issued an autopsy
report marked Exhibit F but it was signed by Dr. Jones because as already
said the dead body was brought to the Tagbilaran City Hospital. Dr. Escobia
declared that the dead body of Nestora Horohoro showed the
following:jgc:chanrobles.com.ph
"MULTIPLE LACERATED WOUNDS:chanrob1es virtual 1aw library
2 CM. LEFT FRONTAL
2.5 CM. RIGHT FRONTO TEMPORAL.
INCISED WOUND — 2 CM ANGLE OF THE LEFT JAW BELOW THE LEFT
EAR.
STAB WOUNDS:chanrob1es virtual 1aw library
1 CM. LEFT CHEEK
1 CM. MISTERNUM, 4TH INTERCOSTAL SPACE, PENETRATING
THORACIC CAVITY, LACERATING RIGHT LUNG
1 CM. MIDCLAVICULAR, 2ND INTERCOSTAL SPACE PENETRATING,
LACERATING LEFT LUNG
1 CM. LEFT 5TH INTERCOSTAL SPACE MIDCLAVICULAR LUNG,
PENETRATING THORACIC CAVITY, LACERATING LEFT LUNG.
1 CM. LEFT 7TH INTERCOSTAL SPACE, MIDAXILLARY LINE
1 CM. RIGHT PARASTERNAL, 3RD INTERCOSTAL SPACE
1 CM. RIGHT MIDAXILLARY LINE, 4TH INTERCOSTAL SPACE
PENETRATING THORACIC CAVITY, LACERATING RIGHT LUNG.
1 CM. RIGHT POSTERIOR AXILLARY LINE, 4TH INTERCOSTAL SPACE
MIDVERTEBRAL AREA
1 CM. 3RD RIGHT INTERCOSTAL SPACE PARAVERTEBRAL AREA
1 CM. 4TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. 6TH RIGHT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. 7TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. 8TH LEFT INTERCOSTAL SPACE, PARAVERTEBRAL AREA
1 CM. LEFT HAND
1 CM. LEFT FOREARM HEMOTHORAX, SECONDARY TO PENETRATING
STAB WOUNDS OF THE APPROXIMATELY 60 cc EACH PLEURAL
CAVITY ABRASIONS - NECK, FACE, ANTERIOR CHEST
(SGD.) MARCIAL M. ESCOBIA, JR.
Medico Legal Officer"
According to Dr. Escobia the lacerated wound right side of the forehead and
temple of the head of the said victim may be caused by blunt object. It could
have been caused by wooden pole which was shown to Dr. Escobia during
the trial which was already marked Exhibit G (long broken pole) and G-1
(short broken pole). The incised wound in the body of the victim may be
caused or inflicted with knife. And when shown the knife (Exh. H) Dr. Escobia
said it is possible that said knife may have been the instrument used in
inflicting the incised wound on said victim. The victim Nestora Horohoro
sustained fifteen (15) stab wounds. The cause of death was due to
hemorrhage and collapse of the lungs because the wound penetrated the
lungs of the victim. There were four wounds which penetrated the lungs of
the victim.
The next witness of the prosecution Pat. Erlende Bantugan, Tagbilaran
Police Station, who declared that on July 18, 1984 at about past 12:00 he
was at the police station of Tagbilaran City. While in said station a certain
Rica Requina requested them to go with her to the residence of Praxedes
Quidang because they (sic) saw a dead person. He and Pat. Suaybaguio
went with Requina to the aforementioned house at Calceta St., Tagbilaran
City. When they arrived at the said house Pat. Oppus also arrived and they
cordoned the area to prevent persons from getting inside. When they went
inside the compound where the house is located they saw a person lying
face on the ground and they also noticed a broken pestle situated near the
body of the victim who was lying on the pool of blood. The broken pestle was
marked Exhibit G and G-1. He could still identify the two pieces of broken
pestle because he inscribed at the tip of the long broken pestle the letters
EEB and another initial on the shorter broken pestle letters EEB which
means Erlende E. Bantugan. Thereafter, he requested Pat. Oppus to contact
the Fiscal and the doctor to conduct an inquest. Later on, Fiscal Geulen, Jr.
and a photographer arrived. He requested the photographer to take pictures
of the victim. When Fiscal Geulen rolled the body of the victim to face up they
found a knife underneath which knife was identified by him in the trial marked
Exhibit H. He could identify the said knife because he placed initial on the tip
of the knife at the time of the investigation letters EEB which means Erlende
E. Bantugan. After Fiscal Geulen inspected the body of the victim, the body
of the said victim was brought to the funeral parlor. When they entered the
door of the house there was a drop of fresh blood coming from the kitchen
door to the sala and they saw a piece of cloth with blood stain near the door
of the comfort room and this bloodstained cloth was marked Exhibit 1 (should
be I) which he identified to be the same cloth found near the door of the
comfort room. Afterwards when he went to the sala of the house he saw a
portion of a piece of cloth taken from the handkerchief which portion was
marked Exhibit J. After that the father of the victim in the person of Amadeo
Horohoro informed them that the rota air electric fan and radio cassette in the
house were lost. The photographs taken by the Ramasola Superstudio
photographer which took pictures of the victim were marked as Exhibits L, L-
1, L-2 and L-3 and the pool of blood in Exhibit L is marked Exhibit L-(a).
(Original Record, pp. 46-51).
The version of the defense is shown in the testimony of the Accused-
Appellant. It is summarized as follows:jgc:chanrobles.com.ph
"Danilo Badilla, 21 years old, single, jobless, temporarily residing at barrio
Bood, Maribojoc, Bohol who declared that he is a resident of the Municipality
of Calamba, Misamis Occidental but he is on vacation, that is why he stayed
at barangay Bood, Maribojoc, Bohol. His parents are from Calamba, Misamis
Occidental and both are still alive. He arrived in barrio Bood last June 1984
and stayed in the house of his uncle. He also remembered that upon his
arraignment in this case he pleaded Guilty. Before July 18, 1984 he already
knew Nestora Horohoro because she was his relative being related to his
mother. The surname of his mother is Oñes. Before July 18, 1984 he already
saw Nestora Horohoro at her residence in the house of Quidang at Calceta
Street, Tagbilaran City. He had gone to the house of Praxedes Quidang
three times. When he first visited Nestora Horohoro in the residence of
Quidang he wanted to borrow money from Nestora Horohoro but the latter
did not lend him money. However, he stayed in the house of Quidang for four
hours. When he left the house of Quidang Nestora Horohoro told him to
come back. He came back for the second time to the house of Quidang just
to visit but he did not borrow money anymore from Nestora Horohoro. The
third time he visited Nestora Horohoro at the house of Quidang his purpose
was to borrow the radio cassette recorder in the house of Quidang because
he would bring it to the sea. The radio cassette exhibited by the prosecution
was the same radio cassette he borrowed from Nestora Horohoro. He did not
bring the radio cassette recorder after Nestora Horohoro agreed but he went
first to contact one Joseph Lim at the Champion Enterprises because he had
planned to pledge the radio cassette recorder to Joseph Lim for P500.00 so
that the money could be used for his daily expenses. He contacted Joseph
Lim at the Tagbilaran Champion Enterprises but at that time he did not know
Joseph Lim yet. However, he noticed that Joseph Lim store had radio
cassette for sale and he thought that Joseph Lim would be interested to buy
a radio cassette recorder. After contacting Joseph Lim the latter told him to
go back to the store because he would examine first the item. Then he went
back to the house where Nestora Horohoro was residing. When he arrived at
the house of Quidang where Nestora Horohoro was residing he did not get at
once the radio cassette recorder. He first listened to the drama through the
radio at the house of Quidang. Then he took his lunch with Nestora Horohoro
at Quidang’s house. After lunch Nestora Horohoro was cleaning at the back
portion of their kitchen and he also helped. At that time Nestora Horohoro’s
companion was a small girl. Later on the small girl went to school. After that
Nestora Horohoro was treaming (sic) the grasses with a bolo. While she was
treaming (sic) the grasses it was already about 2:00 o’clock in the afternoon
and it was almost time to go to the sea. He told Nestora Horohoro that he
was leaving and that he will bring the radio cassette but Nestora Horohoro
refused. He went near to Nestora Horohoro but he was pushed by Nestora.
At that time Nestora Horohoro got angry and she refused to lend the radio
cassette. He approached again Nestora Horohoro but she shouted. He told
her not to shout for there might be neighbors who could hear them but she
kept on shouting. And so he tried to cover her mouth with his hand and so it
happened that his little finger was placed in the mouth of Nestora Horohoro
and she bit it while he pulled his finger away. He told Nestora Horohoro not
to bite his finger and he asked her to release it. And he told Nestora that he
is no longer borrowing the radio cassette. He was able to pull by force his
finger out from the mouth of Nestora Horohoro. When he saw that his finger
was bleeding because of the bite of Nestora Horohoro’s teeth, he felt
obfuscated so he held his knife and stabbed Nestora Horohoro. He cannot
remember how may times he stabbed Nestora Horohoro but he had no
intention to kill her. Because he thought that Nestora Horohoro was already
dead he decided to bring the rota air electric fan and radio cassette recorder
inside the house of Praxedes Quidang where Nestora Horohoro was residing
because his plan was to use the proceeds of said item for his fare. He
identified the small piece of cloth marked Exhibit D for the prosecution which
was bloodstained and he told the court that, that is the same cloth that he
bound around his finger that was bleeding. Then he left the house of
Quidang and brought the radio cassette recorder and the rota air electric fan
and proceeded to the Champion Enterprises. He declared also that the
broken pestle marked Exhibits G and G-1 for the prosecution was already
broken when he was there and he did not use said pestle against Nestora
Horohoro. At the time he stabbed Nestora Horohoro, the bolo used by
Nestora Horohoro in treaming (sic) the grass was stuck in the banana plant
but Nestora Horohoro did not use said bolo against him although Nestora
Horohoro attempted to reach for the bolo but he tried to hold her hands. The
knife marked Exhibit H of the prosecution was identified by him to be the
same knife he used in stabbing Nestora Horohoro. He had that knife during
that occasion because he was planning to go with his friends to the sea and
eat raw fish locally called `kinilaw’. On cross-examination, Accused Danilo
Badilla declared that he went to the house of Praxedes Quidang where
Nestora Horohoro was residing in 1984 for the first time. At that time he did
not know yet Nestora Horohoro but he introduced himself to her. He was first
looking for Praxedes Quidang but she was not there so he borrowed money
from Nestora Horohoro. He is acquainted with Praxedes Quidang the owner
of the house where Nestora Horohoro is residing because Praxedes Quidang
and Nestora Horohoro are his relatives. He further declared on cross-
examination that his purpose to borrow the radio cassette recorder on July
18, 1984 was to pledge it to Joseph Lim. After lunch on July 18, 1984
Nestora Horohoro refused to lend him the said radio cassette. On further
cross-examination accused answered that the knife (Exh. H) which was
exhibited by the prosecution was bent because of the force he used when he
stabbed Nestora Horohoro. (Original Record, pp. 51-53).
The accused raises the following assignment of errors in his appeal, to
wit:chanrob1es virtual 1aw library
I AGGRAVATING CIRCUMSTANCES. (Appellant’s Brief, pp. 1-3).
THE TRIAL COURT ERRED IN NOT HOLDING THAT THE INFORMATION
FAILED TO AVER THE COMMISSION OF THE OFFENSE OF ROBBERY
WITH HOMICIDE AS DEFINED IN ARTICLE 294 OF THE REVISED PENAL
CODE.
II
ASSUMING ARGUENDO THAT THERE WAS ROBBERY COMMITTED,
THE TRIAL COURT ERRED IN FINDING THAT THE KILLING WAS
COMMITTED AS A CONSEQUENCE OF OR ON THE OCCASION OF THE
ROBBERY.
III
THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE POST-
MORTEM CERTIFICATE, EXHIBIT "E", AND THE AUTOPSY REPORT,
EXHIBIT "F", WHICH WERE PREPARED AND SIGNED BY DR. ALBERT
JONES, BUT WHO WAS NOT PRESENTED AS A WITNESS.
IV
THE TRIAL COURT ERRED IN FINDING THAT THE CRIME WAS
COMMITTED WITH TREACHERY, OBVIOUS UNGRATEFULNESS AND
DWELLING.
V
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY, WHICH
HAS BEEN DECLARED UNCONSTITUTIONAL UNDER THE 1973 AND
THE FREEDOM CONSTITUTIONS.
VI
THE TRIAL COURT ERRED IN NOT FINDING THAT THE OFFENSE
COMMITTED IS SIMPLE HOMICIDE WITH THE MITIGATING
CIRCUMSTANCES OF PLEA OF GUILTY AND LACK OF INTENTION TO
COMMIT SO GRAVE A WRONG AND WITH NO OFFSETTING
Two trials were conducted in this case. During the initial proceedings, the
accused was arraigned. He pleaded guilty to the offense charged. As a result
of this plea of guilty, the accused was sentenced to death by the lower court
on October 31, 1984. In an automatic review of the foregoing decision, this
Court gave the accused a fuller opportunity to re-examine his plea of guilt,
set aside the judgment under automatic review and ordered the case to be
remanded to the trial court for further proceedings on September 11, 1985.
The questioned March 3, 1986 decision of the trial court is based on the
continued proceedings.
It should be stressed at the outset that the accused-appellant never withdrew
his October 22, 1984 plea of GUILTY during the further proceedings. In his
later testimony he admits killing the victim although he attributes it to
obfuscation.
In the first assignment of error, the appellant contends that the information
filed against him does not charge the crime of robbery as the phrase "with
the intent to gain and by the use of force and violence" qualifies the charge of
homicide, not the charge of robbery.
The information filed against the accused alleged:jgc:chanrobles.com.ph
"That on or about the 18th day of July, 1984, in the City of Tagbilaran,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with the intent to gain and by the use of force and violence,
did then and there willfully, unlawfully and feloniously assault, attack, and
beat Nestora Horohoro with a wooden pole, and with the use of a stainless
knife, a deadly weapon, stab the latter on the vital parts of her body thereby
inflicting upon her various mortal wounds which directly caused the death of
said Nestora Horohoro, and thereafter, the said accused did then and there
willfully, unlawfully, feloniously and forcibly take and carry away one (1) rota-
air electric fan and one (1) Sanyo Dynamic radio cassette recorder, to the
damage and prejudice of the heirs of the said Nestora Horohoro in an
amount to be proved during the trial. (Emphasis supplied)
Acts committed contrary to the provisions of Article 294 of the Revised Penal
Code with the aggravating circumstances of treachery, obvious
ungratefulness and dwelling." (Original Record, p. 10)
A close analysis of the above information will reveal that it has sufficiently
alleged the proper offense committed which is that of Robbery with Homicide
and fully apprises the accused about what he is facing.
It is explicit in Rule 110, Sec. 9 of the Rules of Criminal Procedure
that:jgc:chanrobles.com.ph
"SEC. 9. Cause of accusation. — The acts or omissions complained of as
constituting the offense must be stated in ordinary and concise language
without repetition, not necessarily in the terms of the statute defining the
offense, but in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable
the court to pronounce proper judgment. (8)"
Although the term "with the intent to gain and by the use of force and
violence" precedes the part alleging the "homicide", the information taken as
a whole is sufficient to enable a person of common understanding to know
that the crime charged is that of robbery with homicide as the necessary
elements of the said offense are present in the above information. This
notwithstanding, we take this opportunity to remind the Chief Prosecutors of
provinces and cities to train their subordinates how to prepare carefully
crafted and precisely professional informations in studiedly correct grammar
so that, as argued by the distinguished counsel of the appellant, technical
offenses are accurately presented with all distinguishing and essential
elements characterized beyond question.
The appellant also states assuming arguendo that robbery was committed,
the killing was the result of the quarrel between the victim and himself thus,
the homicide was not committed as a consequence of or on occasion of the
robbery.
This contention is without merit.
The appellant’s reason for stabbing the victim is that "when he saw that his
finger was bleeding because of the bite of Nestora Horohoro’s teeth, he felt
so obfuscated so he held his knife and stabbed Nestora Horohoro." This
statement is purely self-serving. The more believable reason is the
appellant’s craving for the radio cassette recorder and the electric fan and his
willingness to get them from the appellant whatever the means or cost. The
testimony of Joseph Lim reveals that the appellant already had a plan to get
not only the radio cassette but the rota air electric fan as well even before the
killing. The testimony of the appellant, therefore, was only an attempt to
cover-up his plan to get the two items as he did not even make mention of an
electric fan to be borrowed from the deceased. These two items were offered
by the appellant to Joseph Lim as early as 8:00 o’clock in the morning of July
18, 1984. Upon the victim’s refusal to give the said items, the appellant
attacked and killed the victim and thereafter took the items to sell to Joseph
Lim. The policemen were already there because of the tip that someone was
coming back to sell what were probably hot items.
The homicide then, was committed as a consequence of or on occasion of
the robbery.
It is evident that robbery was committed. Article 293 of the Revised Penal
Code states:jgc:chanrobles.com.ph
"Any person who, with intent to gain, shall take any personal property
belonging to another, by means of violence against or intimidation of any
person, or using force upon anything shall be guilty of robbery."cralaw
virtua1aw library
These elements are present in the instant case. The intention to gain can be
gleaned not only from the testimony of the businessman-buyer, Joseph Lim
but also from the appellant’s own testimony as he would have used the
proceeds of the sale of the radio cassette and electric fan for his fare. There
was also the use of force as earlier discussed.
It has been held that in robbery with homicide, the robbery itself must be
proven, otherwise, the accused may be convicted only for the killing,
homicide or murder as the case may be. (People v. Repuela, Et Al., G.R. No.
85178, March 15, 1990). In the case at bar, the fact of robbery has been
established.
As regards the third assignment of error, the appellant questions the
admissibility in evidence of the post-mortem certificate, Exhibit "E" signed by
Dr. Jones when he was not presented as a witness to identify said certificate.
Also, he states that the best evidence should have been the hospital records
and not the post-mortem certificate of death as the entries in the certificate
were merely copied from the hospital records.chanroblesvirtualawlibrary
It has been repeatedly held as a rule of evidence that objections against the
admission of any evidence must be made at the proper time and that if not so
made it will be understood to have been waived. The proper time to make a
protest or objection is when, from the question addressed to the witness, or
from the answer thereto, or from the presentation of the proof the
inadmissibility of evidence is, or may be, inferred. (People v. Mariño, 130
SCRA 595, 600-601 [1984]; People v. Verges, 105 SCRA 744, 755 [1981]).
In the case at bar, even if the appellant would not admit Exhibit "E" without
seeing the original (TSN, January 10, 1986, p. 28), this is not the objection
that is raised in the accused’s appeal. Moreover, the appellant did not object
to the admissibility of Exhibit "E" and "E-1." (TSN, January 17, 1986, p. 5)
Even without said rule, the witness presented by the prosecution, Dr.
Escobia, had personally examined the cadaver of the deceased and is, thus
deemed competent to testify on the same matters covered by the post-
mortem certificate.
The appellant alleges that the aggravating circumstances of treachery,
dwelling, and obvious ungratefulness were not supported by evidence.
Treachery is present in this case because the appellant employed measures
intended to ensure the commission of the offense without risk to him arising
from the defense his victim might make. (People v. Francisco, Et Al., G.R.
No. 69580, February 15, 1990)
The numerous stab wounds, some of which were inflicted at the back of the
victim, shows that the appellant’s attack was sudden and brutal. The
suddenness of the attack deprived the victim, who was a woman, unarmed,
and alone, the opportunity to run or fight back. The appellant, a strong young
man, did not even suffer any injuries except for the small wound on his finger
inflicted by a bite. Obviously, apart from using her teeth, the victim could not
put up any defense.
Obvious ungratefulness cannot be appreciated as there is no evidence as to
what generosities and the extent thereof were received by the appellant from
the victim.
Dwelling is also considered as an aggravating circumstance in this case.
The appellant cites a number of cases decided in the 1940’s and 50’s ruling
that for the circumstance of dwelling to be established, the house in which
the offense is committed must belong to the victim or at least be her
permanent dwelling.
People v. Sto. Tomas, 138 SCRA 206, 219 [1985]
states:jgc:chanrobles.com.ph
"Anent appellant’s submission that the trial court erred in considering
dwelling as an aggravating circumstance, we find the same bereft of any
legal support. There is no dispute that the place where the crimes herein
involved were committed is the house of Consolacion Grulla. It is there where
she lives with her daughter, Natividad Grulla (the other victim) and where
Salvacion Grulla was temporarily staying in order to escape from the
brutalities of the appellant brought about by the latter’s jealousy. The fact that
Salvacion’s stay in the said place may be considered as a temporary sojourn
adds no validity to appellant’s stance on this point."cralaw virtua1aw library
Dwelling, then, may mean temporary dwelling. Applying the above ruling, we
agree with the trial court that dwelling is an aggravating circumstance even
though the victim was not the owner of the house where the crime was
committed. She was living in that house with her niece. The owner was in
Manila.
The appellant submits that the mitigating circumstance of lack of intention to
commit so grave a wrong mentioned in the sixth assignment of error, should
be considered as he had no intention to kill.
This mitigating circumstance addresses itself to the intention of the offender
at the particular moment when he executes or commits the criminal act.
(People v. Abueg, 145 SCRA 622, 634 [1986]).chanrobles.com:cralaw:red
We find that such mitigating circumstance cannot be considered in this case.
The intention of the appellant was clearly manifested in his overt acts as the
victim suffered at least eighteen (18) stab wounds and multiple lacerated
wounds plus abrasions and other injuries.
Robbery with homicide is punishable by reclusion perpetua to death. The
aggravating circumstances of treachery and dwelling are appreciated in this
case with the mitigating circumstance of plea of guilty. Death, then is the
proper imposable penalty (Article 63 (4), Revised Penal Code). In view,
however, of Article III, Section 19 (1) of the 1987 Constitution as interpreted
in our ruling in People v. Muñoz, Et Al., G.R. Nos L-38969-70, February 9,
1989, 170 SCRA 107 [1989]; prohibiting the imposition of the death penalty,
the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead
reduced the same to reclusion perpetua. (People v. Solis, Et Al., G.R. Nos.
78732-33, February 14, 1990) Thus, Danilo Badilla is sentenced to reclusion
perpetua.
WHEREFORE, IN VIEW OF THE ABOVE, the judgment of the trial court is
MODIFIED, and the accused-appellant DANILO BADILLA is found GUILTY
beyond reasonable doubt of the special complex crime of robbery with
homicide with the aggravating circumstances of treachery and dwelling and
the mitigating circumstance of plea of guilty. The accused-appellant is hereby
sentenced to suffer the penalty of reclusion perpetua. In addition, the
INDEMNITY to the offended party is INCREASED TO THIRTY THOUSAND
PESOS (P30,000.00)
SO ORDERED.
G.R. No. L-37271 July 1, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
MAGDALENA CALISO, defendant-appellant.
Juan Sumulong for appellant.
Attorney-General Jaranilla for appellee.
ABAD SANTOS, J.:
The appellant in this case was convicted of the crime of murder by the Court
of First Instance of Occidental Negros, and sentenced to suffer the penalty
of reclusion perpetua, to indemnify the parents of the deceased in the sum of
P1,000, with the accessory penalties prescribed by law, and to pay the costs.
On this appeal, her counsel de oficioattacks the findings of fact of the trial
court, but does not raise any question of law.
The questions of fact involved in this case are fully discussed in well
considered decision of the trial court, presided over by then Judge Quirico
Abeto, which decision reads as follows:
Se halla acusada Magdalena Caliso del delito de asesinato de un
niño de 9 meses de edad, ocurrido en La Carlota, Negros
Occidental, el dia 8 de febrero del presente año, 1932. La querella
alega que la acusada, siendo una criada de los Sres. Esmeralda
(Emilio), voluntaria, ilegal y criminalmente y con el proposito de
satisfacer una venganza, administro cierta cantidad de acido acetico
concentrado, que es una sustancia venenosa, a Emilio Esmeralda,
Jr., un niño de 9 meses de edad, causandole quemaduras en la
boca, en la garganta, en los intestinos y otras partes vitales de los
organos internos que le produjeron necesariamente la muerte de la
victima, quien sucumbio pocas horas despues; que en la comision
de este delito, han concurrido las circunstancias agravantes de
alevosia, abuso de confianza y que el acto se ha cometido en la
propia morada de los padres de la victima.
Despues de presentadas las pruebas, tanto de la acusacion, como
de la defensa, y despues de oidos los brillantes informes aducidos
tanto por el Fiscal Provincial, como por el abogado de oficio de la
acusada, el Juzgado se ha reservado la decision para este dia, no
sin antes felicitar tanto a la acusacion como a la defenda, la primera
por lo concienzudo en la reunion y presentacion de sus pruebas, y la
segunda por el interes grande con que ha demostrado a favor de la
acusada. El Juzgado ha querido tomar tiempo para decidir esta
causa, porque se da cuenta de lo grave que es el delito cometido y
de las circunstancias tanto de la acusada como de los ofendidos en
esta causa. Por un lado, esta la acusada, que es una mujer que
pertenece al sexo debil, en la primavera de su vida, a quien una
sentencia podria privar de todos los beneficios que la vida le ofrece.
Por otro lado, una madre loca de dolor que ha perdido al unico hijo
varon de la familia y que considera a la causada como la persona
que le ha arrebatado su unico cariño. Por eso el Juzgado ha
querido, hasta donde le ha sido posible, poner toda su atencion en
todos los detalles de las pruebas, observando hasta los menores
actos de los testigos y de la acusada.
Y de las pruebas presentadas, el Juzgado encuentra que en la tarde
del dia 8 de febrero de 1932, mientras los esposos. Sres. Emilio
Esmeralda y Flora Gonzalez estaban durmiendo tomando la siesta,
repentinamente la Sra. de Esmeralda se desperto porque oyo un
grito agudo de su hijo Emilio Esmeralda, de 9 meses de edad, que
estaba durmiendo en una cama al lado opuesto del sitio donde
estaba ella durmiendo con su marido. Cuando la Sra. de Esmeralda
llego, seguida de su marido, a la cama donde habia dejado dormido
a su hijo, al levantar el mosquitero de la cama, percibio
inmediatamente un olor fuerte de acido acetico y encontro a su hijo,
que seguia llorando fuertemente, con los ojos en blanco, los labios
hinchados y blanquecinos y la cara amoratada, y al levantarle
percibio olor de acido acetico en la respiracion del niño. Entonces
grito preguntando quien habia puesto acido acetico en la boca de su
hijo, y como ella es farmaceutica de profesion, se acordo
inmediatamente de un antidoto que podia neutralizar los efectos del
acido acetico y ella misma saco agua de cal y mojando un algodon
hidrofilo, limpio la boca del niño, al mismo tiempo que mandaba a su
marido que llamara por telefono al doctor. Pocos momentos despues
llego el Dr. Augusto Locsin, quien segun su declaracion, noto
inmediatamente el olor de acido acetico en la respiracion del niño, y
quiso hacer la primera cura, lavando el estomago del niño, pero la
madre no quiso que el lavado llegara hasta el estomago, por el
temor de lastimar la garganta del chiquillo con el 'catheter', y por
este motivo el lavado solamente se pudo hacer hasta la garganta del
niño. Despues de algun tiempo, llegaron, procedentes de Bacolod,
los Dres. Orosa y Ochoa, quienes por telefono habian sido llamados
tambien por el padre de la victima. El Dr. Orosa es el jefe medico del
Hospital Provincial de esta provincia, y el Dr. Ochoa es uno de los
medicos residentes en dicho hospital, especialista en las
enfermedades de los cinco sentidos. Ambos doctores declararon
positivamente que habian percibido el olor de acido acetico en la
respiracion del niño, y habiendo ellos concluido que el chiquillo habia
tomado acido acetico, aplicaron la cura para eliminar dicha sustancia
del organismo del niño, y despues de hacer las primeras curas,
llevaron al niño al Hospital Provincial y alli murio pocos minutos
despues de haber llegado.
Ambos doctores, asi como el Dr. Locsin, son unanimes en la
afirmacion de que la muerte del chiquillo se debio al
envenenamiento por medio de acido acetico, y todos, especialmente
el Dr. Ochoa, coinciden en la opinion de que la muerte ha sido por
asfixia, pues el acido acetico ha hecho estragos en la laringe del
niño y este no pudo respirar. El Dr. Ochoa que, como se ha dicho,
es un especialista en los cinco sentidos, examino la boca y la
garganta del niño y encontro alli quemaduras ocasionadas, segun el,
por el acido acetico. Y tan seguros estan los doctores de que el niño
habia tomado acido acetico y que la muerte del mismo se debio a
esta sustancia, que el mismo Dr. Orosa, que es un medico de muy
larga experiencia y un experto cirujano, le aseguro al Fiscal que no
habia necesidad de autopsia para llegar a una conclusion rayana a
la seguridad sobre la causa de la muerte del chiquillio, y que aun
cuando la autopsia demostrara que no existia acido acetico en los
intestinos de, niño, ya porque este habia sido absorbido por el
organismo, o ya porque el estomago habia sido lavado, el estaba
segurismo de que la muerte se debio al envenenamiento por acido
acetico, porque el habia olido esa sustancia, cuyo olor es
inconfundible, en la respiracion del niño y ha visto los estragos de la
sustancia en la garganta y en la boca del occiso. Ambos medicos,
de un modo positivo, sin dudar ni un momento, aseguraron al
Juzgado de que la causa de la muerte, como se ha repetido varias
veces, es por envenenamiento por acido acetico. Y el Juzgado esta
conforme en que en tales circunstancias, no habia necesidad de
autopsia para que el Juzgado pueda concluir, en vista de las
afirmaciones de los medicos basadas en los hechos por ellos
encontrados, que la muerte ha sido por envenenamiento por acido
acetico.
El Juzgado no tiene duda alguna de la competencia de estos dos
doctores, sobre todo tratandose de la opinion del Dr. Ochoa, que es
un especialista en los cinco sentidos y que ha reconocido la
garganta y la boca del niño, en las cuales encontro quemaduras
pruducidas por aciso acetico.
Aparte de esto, la madre del occiso, que es una farmaceutica,
acostumbrada a oler y distinguir sustancias, percibio el olor del acido
acetico en los primeros momentos en que alzo a su hijo de la cama.
El marido de esta señora, Sr. Emilio Esmeralda, tambien es un
quimico y aseguro tambien haber olido el olor fuerte del acido
acetico desde los primeros momentos. Aparte de estas dos
personas que pueden equivocarse, ya por su pasion o por las
preocupaciones de momento por estar interesados por su hijo, esta
el Sr. Julian Gomeri, otro quimico que vivia en la misma casa, quien
aseguro al Juzgado que al entrar en el cuarto donde estaba el
chiquillo en brazos de su madre, olio inmediatamente el olor
sofocante del acido acetico, tanto es asi que pregunto
inmediatamente quien habia puesto acido acetico en la cama del
niño y en seuida se puso a buscar por si habia dicha sustancia en la
cama del niño, pero no encontro ninguna botella de acido acetico, ni
rastro de esta sustancia en la cama, sino en la respiracion del niño.
Por eso el Juzgado repite que esta probado fuera de toda duda
racional que el niño Emilio Esmeralda, Jr., murio a consecuencia de
envenenamiento de acido acetico, y es insostenible la teoria de que
pubo haber tenido una indigestion por haber ingerido jugo de
naranja de California despues de haber tomado leche, y de que el
olor del acido acetico podia derivarse del vomito dle chiquillo por la
mezcala del jugo de naranja con la leche. Tres medicos y tres
quimicos es imposible que confundan el olor del jugo de naranja que
se ha vuelto acido al mezclarse con la leche, con el olor fuerte del
acido acetico concentrado.
Habiendo llegado a esta conclusion de que la muerte del niño Emilio
Esmeralda, Jr., se debio a envenenamiento por acido acetico, la otra
cuestion que el Juzgago tiene que resolver es: quien le administro
esta sustancia.
Desde este punto las pruebas son todas circunstanciales
unicamente.
Es un hecho probado que dias antes de este suceso, al volver el Sr.
Emilio Esmeralda a su casa, procedente de la fabrica de la Central
La Carlota, a eso de la madrugada, not cierto bulto que se movia en
los bajos de su cama en el cuarto-habitacion de el y de su señora
cuando esta pasaba algunos dias en La Carlota. Temiendo que
algun ladron se habia introducido debajo de la cama, cogio su
revolver y amenazo con dispararle un tiro al que estaba alli metido si
no salia. Efectivamente de alli salio un hombre y, todo temblando, le
dijo al Sr. Esmeralda que el no era un ladron, sino que estaba alli
porque habia sido llamado por la acusada con quien estaba en
relaciones amorosas. El Sr. Esmeralda entonces le recrimino por su
acto y le dejo marchar, conminandole que no volviera a repetir el
acto. Cuando la Sra. Flora Gonzalez llego a La Carlota algunos dias
despues, o sea en el dia de autos, el Sr. Esmeralda, despues del
desayuno y estando entonces ausente la acusada por haber ido al
mercado, le conto a su señora lo que habia sucedido en uno de los
dias pasados, o sea, el haber sorprendido a un hombre en su propio
cuarto y debajo de su misma cama, acudiendo a una cita que tuvo
con la acusada. La Sra. de Esmeralda, dada su educacion y por ser
mujer al fin, se sintio muy ofendida e indignada por el acto de su
criada y, muy nerviosa, espero la vuelta de la acusada, y cuando
esta llego, la Sra. Esmeralda la busco en la cocina, la empezo a
insultar de pies a cabeza, recriminandola por su acto inmoral y por
haberse permitido ocultar a su amante en el propio cuartro de sus
amos, y despues de regañar a la acusada, se volvio a su cuarto, y
pareciendole poco la recriminacion que acababa de hacer a la
acusada, otra vez la Sra. de Esmeralda volvio a la cocina a
reprenderla de nuevo, y como no se calmaban los nervios de la Sra.
de Esmeralda en estas dos ocasiones, a medida que volvia a la
cocina, emprendia nuevos insultos a la acusada, en terminos que
cuando la Sra. de Esmeralda puso a dormir a su hijo en la cama,
cuando encontro algo sucias las fundas de la almohada, otra vez se
fue a la cocina y volvio a amonestar a la acusada recriminandola y
diciendola que solamente sabia tener amantes y no sabia cumplir
sus deberes como criada. Apenas dos horas escasas de ocurrir
estos insultos, ocurrio el suceso que dio lugar a la muerte del niño
Emilio Esmeralda, Jr.
Procediendo por eliminacin, el Ministerio Fiscal ha tratado de probar
al Juzgado, y asi alega en su informe, que en el momento de ocurrir
el incidente del envenenamiento del niño, solamente estaban en
aquel dia viviendo en la casa donde ocurrio el suceso, diez
personas, a saber: los esposos Esmeralda, sus dos hijas, Lilia y
Elsa, el niño Emilio Esmeralda, Jr., Julai Gomeri, Jose Colmenares,
Catalino Ramos, una criada de unos 12 años de edad, llamada
Magdalena Soriano, y la aqui acusada. El Ministerio Fiscal dice que
no pueden ser autores dle envenenamiento, ni el Sr. Esmeralda, ni
su esposa. El Juzgado, desde luego, esta conforme con esta
eliminacion. No es posible que estos sean los autores de tal
envenenamiento; ademas de ser padres, la actitud de la madre,
enloquecida de dolor por la muerte de su hijo, aleja toda duda. Seria
absurda la mas remota suposicion de que estas personas fuesen los
autores de tal envenenamiento. No podia ser Elsa Esmeralda
porque esta, aparte de sus pocos años, estaba durmiendo con su
hermanito en la misma cama donde ocurrio el incidente. No podia
ser Lilia, ni la criada Magdalena Soriano, porque ambas estaban
entonces en el retrete, segun las pruebas; ademas que no podia
caber la suposicion de que, o Magdalena Soriano, o Lilia hayan
administrado equivocadamente acido acetico al niño dormido, por
cuanto que la botella que lo contenia estaba en la cocina, segun la
acusada misma, cerca del cantaro de agua donde ella habia puesto,
y la acusada, segun ella misma, estaba toda la tarde en la cocina
fregando platos, de tal manera que si Magdalena Soriano o Lilia
hubiesen querido alcanzar la botella de acido acetico, la acusada los
hubiera visto. Julian Gomeri estaba dormido en su cuarto; era un
compañero del Sr. Esmeralda en el trabajo, amigo intomo de la
familia y no ha tenido ningun disgusto con ningun miembro de ella y
no hay motivo alguno para atribuir que el haya puesto en la boca del
niño acido acetico. Jose Colmenares estaba en la fabrica de la
Central, que dista medio kilometro de la casa ocupada por los Sres.
de Esmeralda, ocupado en sus trabajos como empleado de dicha
Central. Catalino Ramos estaba ausente entonces en la localidad,
pues se encontraba en el pueblo de Talisay. Eliminadas estas
personas, solamente queda la acusada como posible autora del acto
de administrar acido acetico al niño Emilio Esmeralda, Jr.
Desde luego, la prueba de que la acusada, pocas horas antes del
suceso, era la unica de la casa que habia recibido insultos de la
madre del niño, es una prueba circunstancial contra ella. Ninguno
tenia motivos de resentimiento hacia ningun miembro de la familia
del occiso mas que la acusada. Ella misma ha admitido durante su
testimonio que en aquel dia ella habia sido reprendida por su ama.
Cuando el niño Emilio Esmeralda, Jr., dio un grito agudo que hizo
despertar a su madre, Julian Gomeri, que estaba dormido en el otro
cuarto, pudo abrir los ojos y vio a la acusada saliendo de la puerta
de la sala y dirigiendose hacia la cocina. Por esta sala habia que
pasar al salir del cuarto donde estaba dormido el niño, para ir a la
cocina; y la distancia de la puerta de esta sala al sitio donde estaba
durmiendo el niño habia apenas 4 o 5 metros. La acusada no ha
podido desmentir esta declaracion de Julian Gomeri, ni ha podido
dar explicacion alguna por que en aquel preciso momento ella salia
de la sala para ir a la cocina. Es posible que despues de haberse
puesto el acido acetico en la boca del niño, este no haya podido
gritar inmediatamente, sino algunos segundos despues al sentir los
efectos del acido, de tal manera que la acusada tuvo tiempo para
abandonar el sitio y volver a la cocina y estando en la sala, el niño
dio el primer grito que le hizo abrir los ojos a Julian Gomeri. Este
hecho es otra prueba circunstancial bastante fuerte, a juicio del
Juzgado, contra la acusada. Cuando la madre del niño estaba
curando a este, ordeno a la acusada y a Magdalena Soriano a que
hirvieran agua en la cocina, y mientras estas dos criadas cumplian la
orden, la acusada, sin motivo alguno plausible, le puso las manos
debajo de las narices de Magdalena Soriano y le dijo: "Mis manos
estan oliendo acido acetico porque se ha derramado algo alli cuando
hice vinagre esta mañana con acido acetico." Esta explicacion no
pedida hecha por la acusada no parece indicar otra cosa mas que
algun temor que abrigaba por si alguien pudiese oler acido acetico
en sus manos. Otra prueba circunstancial contra la acusada es el
hecho de que en la casa ella era la unica que tenia bajo su custodia
esta botella Exhibit A que contenia acido acetico. Magdalena
Soriano no sabia siquiera donde estaba puesta esta botella. Cuando
la Sra. de Esmeralda busco esta botella, cuyo recuerdo le trajo a la
memoria al oler el acido acetico en la boca de su hijo, la acusada fue
quien saco la botella de la cocina y le entrego a la Sra. de
Esmeralda, diciendola, poco mas o menos, estas palabras: "Señora,
aqui esta botella; no ha salido de la cocina."
La acusada, al declarar en la silla testifical como testigo a su favor,
al ser preguntada por el Juzgado si ha olido acido acetico al entrar
en el cuarto, se inmuto algun tanto; pero inmediatamente se repuso
y nego rotundamente haber olido acido acetico. El Juzgado le dirigio
varias veces esta pregunta, y la acusada insistio en su negativa. El
Juzgado le pregunto si conocia el acido acetico y el olor del mismo,
y afirmo que si y volvio a afirmar que no habia percibido tal olor en el
cuarto al entrar y durante todo el tiempo que habia permanecido alli.
Ahora bien, tres medicos imparciales, does quimicos y una
farmaceutica, aparte de Magdalena Soriano, han olido el
inconfundible olor de acido acetico en el cuarto. La unica que no ha
podido oler dicha sustancia es la acusada. En la comisionde un
crimen, el unico que tiene interes en negar la existencia de un
cuerpo del delito es casi siempre, o sin casi, el autor del mismo. Y
esta actitud de la acusada de negar una cosa tan evidente y sobre la
cual el Juzgado no tiene duda alguna, corrobora, a juicio del
Juzgado, todas las pruebas circunstanciales que se han presentado
por la acusacion.
La defensa hace enfasis en el hecho de que la acusada, lejos de
escaparse, entro en el cuarto para ayudar a la madre del niño para
salvar a este, y tanto es asi que la misma acusada, segun Julian
Gomeri, tan pronto como la Sra. de Esmeralda pidio algodon, fue la
que saco de las manos de Julian Gomeri el algodon y lo entrego a la
Sra. de Esmeralda. Este hecho no es, a juicio del Juzgado,
suficiente para demostrar la inocencia de la acusada. ¡Cuantas
veces ha sucedido que el que ha realizado un acto criminal, se
arrepiente de su crimen y trata de remediarlo! El que acaba de herir
a un hombre, despues de pasado el primer momento de obcecacion,
si el pudiera curarlo, indudablemente no se encontraria mejor
medico para el herido. Tambien puede suceder que la acusada,
habiendo querido causar daños unicamente a la criatura, haya
querido usar de toda su habilidad para que los efectos del daño no
fuesen tan grandes. La actitud de la acusada, por tanto, es
perfectamente explicable y no incompatible con su culpabilidad. Otra
actitud de la acusada que parece tener bastante peso es su actitud
cuando ella volvio por la tarde del dia siguiente del suceso a la
estacion de policia cuando el Jefe de Policia le dijo que volviera en
aquella tarde. Y el abogado de la acusada tiene razon para hacer
enfasis sobre esta circunstancia. La acusada ha sido arrestada casi
a media noche del mismo dia del suceso. Fue puesta en libertad a
las 11 de la mañana del dia siguiente, en vista de que no llegaba
orden de arresto contra ella; pero el Jefe de Policia le dijo que
volviera a las 3 en punto de la tarde, y a las 3 de aquella tarde la
acusada volvio al edificio municipal. El abogado de la acusada
arguye que una conciencia criminal no procederia como ha
procedido la acusada; ella se hubiera escapado. El Juzgado ha
considerado detenidamente este aspecto de la cuestion; ha
meditado largamente sobre este acto de la acusada; pero la
conclusion del Juzgado es que si la acusada volvio en la tarde de
aquel dia al edificio municipal, era porque la acusada no sabia que el
niño Emilio Esmeralda, Jr., habia muerto. Ademas, ella debia saber
que, mujer que era, no podia ir a ninguna parte sin que le alcanzaran
las autoridades correspondientes y, por tanto, era mejor para ella
presentarse ante las autoridades aparentando tener una conciencia
tranquila y preparando en esa forma su futura defensa. El Juzgado
cree que desde el momento en que la acusada mostro solicitud
suma para salvar la vida del niño que ella habia segado en
momentos de colera, la acusada ya habia concebido su plan de
defensa.
Se dira tal vez quo no es usual que, habiendo la madre del niño
ofendido a la acusada, esta, en lugar de tomar venganza de la
madre, que muchas oportunidades hubiera ella tenido porque, segun
ha tratado de resaltar el abogado de la defensa, la acusada dormia
en el mismo cuarto de los esposos Esmeralda y preparaba la
comida de estos, haya dirigido su accion vengadora a una inocente
criatura, maxime teniendo en consideracion que la acusada es una
mujer y las mujeras, por regla general, son mas caritativas que los
hombres. En primer lugar, ya sea un hombre, ya sea una mujer,
cuando estan obcecados por el odio y la venganza, ya no
consideran las circunstancias y procuran dirigir su venganza al que
les ha ofendido alli mismo donde es mas facil ejecutar. En este caso,
el niño Emilio Esmeralda, Jr., era el que dormia mas cerca a la
puerta entrando inmediatamente, procedente de la cocina, y era el
que, por su tierna edad, podia sentir inmediatamente los efectos del
acido acetico, pudiendo asi ejecutar su venganza con mayor
seguridad de su parte. Causando daño al niño, que, por ser el unico
varon de la familia, era el mas querido por los Sres. de Esmeralda,
se causaba mayor daño a la Sra. de Esmeralda. El Juzgado, desde
luego, acepta la teoria de que la mujer es mucha mas caritativa que
el hombre y mucho mas debil del consenso comun; pero
precisamente por ser mas caritativa, por ser mas debil, cuando la
mujer se vuelve mala y quiere vengarse, su venganza busca al mas
debil tambien y sobre este hace recaer esa venganza, y la
experiencia diaria nos enseña que los seres mas debiles, sean
hombres o mujeres, cuando se vuelven malos, son peores
enemigos; y no es nada extraño, por tanto, que la acusada,
temiendo atacar al Sr. Esmeralda y a la Sra. de Esmeralda, porque
contra ellos no tenia asegurada la ejecucion de su venganza, ha
escogido como victima a una criatura indefensa de 9 meses de
edad.
Por las consideraciones expuestas, el Juzgado encuentra probado
fuera de toda duda racional que Emilio Esmeralda, Jr., de 9 meses
de edad, fallecio el dia 8 de febrero de 1932, a consecuencia de
envenenamiento por acido acetico concentrado, y que la acusada,
aprovechando la ocasion en que sus amos estaban durmiendo,
administro una pequeña cantidad de esta sustancia a dicho niño,
quemandole de este modo la boca y la garganta, a consecuencia de
lo cual dicho niño fallecio.
Se declara, por tanto, a la acusada Magdalena Caliso culpable del
delito de asesinato, y estimando en la comision del delito la
concurrencia de la circunstancia agravante de alevosia, porque se
trata de un ser indefenso, y de la circunstancia de haberse realizado
el acto en la propia morada de los padres de la victima, cuyas
circunstancias estan compensadas con las circunstancias
atenuantes de falta de instruccion y de haber obrado la acusada a
impulsos de un sentimiento que la hayan producido arrebato y
obcecacion, le condena a la pena de reclusion perpetua, a
indemnizar a los padres del occiso en la suma de P1,000, con las
accesorias de ley, y a pagar las costas del juicio. Asi se ordena.
We agree to the conclusions of fact reached by the trial court. As to the
application of the law to the facts of the case, we are inclined to the
proposition advanced by the Attorney-General that in the commission of the
crime the aggravating circumstance of grave abuse of confidence was
present since the appellant was the domestic servant of the family and was
sometimes the deceased child's amah. The circumstance of the crime having
been committed in the dwelling of the offended party, considered by the
lower court as another aggravating circumstance, should be disregarded as
both the victim and the appellant were living in the same house. (U.S. vs.
Rodriguez, 9 Phil., 136; U.S. vs. Destrito and De Ocampo, 23 Phil., 28.)
Likewise, threachery cannot be considered to aggravate the penalty as it is
inherent in the offense of murder by means of poisoning (3 Viada, p. 29).
Similarly the finding of the trial court that the appellant acted under an
impulse so powerful as naturally to have produced passion and obfuscation
should be discarded because the accused, in poisoning the child, was
actuated more by a spirit of lawlessness and revenge than by any sudden
impulse of natural and uncontrollable fury (People vs. Hernandez, 43 Phil.,
104, 111) and because such sudden burst of passion was not provoked by
prior unjust or improper acts of the victim or of his parents (U.S. vs. Taylor, 6
Phil., 162), since Flora Gonzalez had the perfect right to reprimand the
defendant for indecently converting the family's bedroom into a rendezvous
of herself and her lover.
The aggravating circumstance of abuse of confidence being offset by the
extenuating circumstance of defendant's lack of instruction considered by the
lower court, the medium degree of the prescribed penalty should, therefore,
be imposed, which, in this case, is reclusion perpetua.
The penalty imposed by the lower court upon the appellant being thus within
the limits fixed by law, the judgment appealed from is affirmed with costs. So
ordered.
Street, Malcolm, Hull, and Imperial, JJ., concur.
G.R. No. L-34497 January 30, 1975
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BENJAMIN ONG y KHO and BIENVENIDO QUINTOS Y
SUMALJAG, defendants-appellants.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor
General Santiago M. Kapunan and Solicitor Celso P. Ylagan for Plaintiff-
appellee
Dominador Laberinto and Associates for appellant Benjamin Ong.
Jose R. Quintos and Luciano V. Bonicillo for appellant Bienvenido Quintos.
FERNANDEZ, J.:
This is an automatic appeal from a decision of the Circuit Criminal Court,
Seventh Judicial District in Criminal Case No. CCC-VII-922 Rizal, dated
October 11, 1971, the dispositive part of which reads as follows:
WHEREFORE, finding the accused Benjamin Ong y Kho
and Bienvenido Quintos y Sumaljag, GUILTY, beyond
reasonable doubt of the crime of Kidnapping with Murder as
defined under Article 248 of the Revised Penal Code, in
relation to Article 267 thereof, as charged in the Information,
the Court hereby sentences each one of them to suffer the
penalty of DEATH; to indemnify the heirs of the deceased
Henry Chua, the amount of P12,000.00; to pay moral
damages in the amount of P50,000.00, and another
P50,000.00 as exemplary damages jointly and severally; and
to pay their proportionate share of the
costs.1
The information filed by the Provincial Fiscal of Rizal, B. Jose Castillo against
(1) Benjamin Ong y Kho, (2) Bienvenido Quintos y Sumaljag (3) Fernando
Tan, alias "Oscar Tan," and (4) Baldomero Ambrosio alias "Val", the latter
two being then at large, reads: .
That on or about April 23 to April 24, 1971, inclusive, in the
municipality of Parañaque, province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, being then private individuals,
conspiring and confederating together and mutually helping
one another did then and there wilfully, unlawfully and with
treachery and known premeditation and for the purpose of
killing one Henry Chua and thereafter extorting money from
his family through the use of a ransom note, kidnap(ped) and
carry(ied) away said Henry Chua, initially by means of a
friendly gesture and later through the use of force, in an
automobile, and later after having taken him to an
uninhabited place in Caloocan City, with the use of force
detained him (Henry Chua) and kill(ed) him in the following
manner to wit: The accused after gagging and tying up
Henry Chua and repeatedly threatening him with death,
assured him that if he would write and sign a ransom note
for the payment by his family of the sum of $50,000.00 (US),
he would not be killed and would be released upon receipt of
the ransom money, but after said Henry Chua agreed and
did execute such a ransom note, he was again gagged and
tied up by the accused, and thereafter stabbed in the
abdominal region several times with an icepick, inflicting
upon him (Henry Chua) mortal wounds on his vital organs,
which directly caused his death.
All contrary to law with the following generic aggravating
circumstances:
(a) Evident premeditation;
(b) Grave abuse of confidence;
(c) Nighttime;
(d) Use of a motor vehicle;
(e) Use of superior strength; and
(f) Cruelty.2
Personal Circumstances of the Two
Appellants
At the time of the trial before the lower court in September of 1971, the
accused Benjamin Ong was 31 years old, employed with the Acme Shoes,
Rubber and Plastic Corporation, a firm owned by his brother-in-law, Chua
Pak, for the past 11 years, the last 6 of which was as an assistant manager.
He was already receiving a monthly salary of P1,800.00 excluding yearly
bonuses of P30,000.00 and other representation allowances or a total annual
income of from P60,000.00 to P70,000.00. He had his elementary schooling
at the Assumption Academy in San Fernando, Pampanga; his first and
second years of high school at Chiang Kai-shek High School in Manila; and
his third and fourth years at the Mapua Institute of Technology. He was a
third year Commerce student, majoring in accounting at the University of the
East, when he quit schooling in 1959. He married Athena Caw Siu Tee Ong
on November 25, 1962 at the St. Jude Catholic Church, by whom he already
had four children: Connie Louis, 7 years old; Dennis, 5 years old; Edgar, 3
years old; and Fanny, 1 year old.3
On the other hand, accused Bienvenido Quintos was 39 years old, single, an
unlicensed surveyor and computer for two years already at the Robes
Francisco Realty Corporation with a relatively "small" income. He was a third
year engineering student when he stopped studying. In 1954 he was charged
of Resisting Arrest and Assault Upon an Agent in Authority but this case was
settled amicably.4
Brief Synopsis of the Testimony of
the Prosecutions Witnesses
The prosecution presented several witnesses to prove its charge of
kidnapping with murder. First to testify was Patrolman Marciano Roque of the
Crimes against Property Division of the Detective Bureau of the Caloocan
City Police Department who declared that: He knew Benjamin Ong for about
6 years already because he usually investigated theft and robbery cases at
the Acme Firm and at times received some money from Ong. In a series of 6
meetings with Benjamin Ong starting from the first week of April, 1971,
Benjamin Ong confided to him his plan to get a man who cheated him in
gambling by as much as P150,000; that he would ask for money from the
latter's parents; and that after which, he would kill the victim. Benjamin Ong's
determination was shown when his godson was even introduced to him as
one who would help him. Benjamin Ong brought him to Barrio Makatipo in
Novaliches, Caloocan City and described it as a suitable place where to bring
the victim. Ong also told him that he had acquired a bag, flashlight and a
piece of cloth. He was prevailed upon by Benjamin Ong to participate in his
plan assuring that he could resign from the government service once the
money is collected. Patrolman Roque revealed this plan to his Division Chief,
Capt. Dueñas, the Officer-in-Charge, Lt. Manapat and the Chief of Police,
Celestino Rosea. However, the three did not believe that Benjamin Ong had
the guts to do it. After the incident, Patrolman Roque said that he and Police
Chief Rosca met with Atty. Nestor Gonzales of the National Bureau of
Investigation to supply the early leads in this case although they did not find
a trace of the crime when they went to Barrio Makatipo.5
Miss Ligaya Tamayo testified next. She declared that: She worked as an
entertainer at the Wigwam Nightclub in Parañaque, Rizal and knew Henry
Chua very well. At around 1:30 o'clock in the early morning of April 24, 1971,
she and Miss Mickie Yaro had Henry Chua and Benjamin Ong for their
guests. The two talked in Chinese and had some drinks. Benjamin Ong
showed her a check in favor of Henry Chua which he claimed that the latter
won in a gambling game. She, however, did not actually see him give it. At
around 1:30 that same morning, she accompanied the two to the door and
saw them leave the place and ride in a Mustang car.6
Sy Yap, older brother of Henry Chua, was the third witness. He testified that:
He was with Atty. Nestor Gonzales and other agents of the NBI on
September 2, 1971 in Barrio Makatipo after Benjamin Ong pinpointed the
place of burial, and there he saw the decomposing body of the victim under
the ground, immersed in water. He saw and identified the following personal
effects found with the body: a white gold watch which stopped at the hour of
6:22 and date of "24"; Driver's License No. 32219 with the name of Sy Sing
Biok alias Henry Chua; Diner's card — Diner Group 0004149-1; pass issued
by the Bureau of Customs for Henry Chua dated January 19, 1971; receipt
for payment of the license of the car; residence certificate; lighter; wallet;
currencies in different denominations; shirt jacket; pair of shoes; socks; brief;
undershirt; T-shirt; and trousers with a mark "Especially tailored for Henry
Chua, 2-2-71, No. 95812."7
Dr. Ricardo G. Ibarrola, Jr., Medico-Legal Officer of the NBI appeared as the
fourth witness. He testified on his post mortem examination made on
September 2, 1971 at La Funeraria Paz, of the deceased Henry Chua, 31
years old, single, and on his necropsy report, Exhibit "M". He said that the
deceased sustained two wounds on the liver and large intestine caused by a
long pointed cylindrical instrument similar to an icepick. He added that most
likely, the assailant was in front of and on a higher level than the victim.
Although this did not appear in his report, he theorized that the two wounds
were not the immediate cause of death since there was only a slight degree
of hemorrhage in the vicinity of the punctured wounds. He said that the liver
and large intestine had no sufficient time to bleed because something else
must have happened which was the asphyxiation or suffocation of the victim
due to his burial.8 He stated, however, in his necropsy report, Exhibit "M",
that the cause of death of the deceased was "punctured wounds of the
abdomen."
Miss Clarita Teh, travel agent of Skyways Travel Service located At Ongpin
St., Sta. Cruz, Manila, declared that: At about 4:00 p.m. of April 22, 1971,
Benjamin Ong called her up by phone to ask for a reservation ticket for
Hongkong and Taipei. On the morning of April 23, 1971, Benjamin Ong went
to her office but forgot to bring along his papers including his Alien Certificate
of Registration. In the afternoon of April 24, 1971, Benjamin Ong went back
to the office, this time with the pertinent papers plus P4,000 cash. She said
that he changed his destination from that of Hongkong and Taipei to that of
Canada. However, he needed P7,000 for this purpose. On April 29, 1971,
Mrs. Ong got back the P4,000 because the latter said that her husband did
not have enough money. 9
Patrolman Gener S. Estrella, municipal policeman of Baliuag, Bulacan,
followed next on the witness stand. He stated that on April 25, 1971, he was
on his tour of duty from 4:00 o'clock to 8:00 o'clock a.m. at the poblacion
when he received information that an unidentified car was parked in a
gasoline station. He therefore sought the company of Patrolman Ceferino
Castro and they went to Barrio Tibag where they saw the locked Mustang car
parked in a gasoline station with plate number 16-02B, L-P.C., series '71.
They reported the matter to their head, Lt. Herminio Angeles. 10
Severo "Boy" Roslin, mechanic, gave the next testimony. He knew Fernando
Tan since 1965. On April 29, 1971, early morning, he saw Fernando Tan and
another, introduced to him as Alfredo Hernandez, who happened to be
Benjamin Ong. Fernando Tan requested him to bring them to the airport and
obtain airplane seats for the Visayas. He accompanied them but they failed
in this endeavor so that they proceeded to the pier. Likewise, they were
frustrated in getting a passage to the South. They ended up taking a train
ride to Lucena City. Roslin said that he went back to Manila that same day.
On May 1, 1971, he and Fernando Tan went to the house of Bienvenido
Quintos near Abad Santos St. in Manila. They did not see him so that they
had to come back at noon. They then took him with them and, after passing
by a laundry shop, they went to Singalong where they picked up Benjamin
Ong at around 7:00 p.m. Roslin claimed that they were using his Chevy car.
They went to Barrio Balugo, Oas, Albay and stayed at his parent's house.
He, Quintos, and Tan stayed there for one half month where they took
themselves into swimming at the river. They left Benjamin Ong there. 11
Enrique Lacanilao, an NBI agent, testified that: Exhibits "N" and "O" are the
voluntary written statements signed respectively by Benjamin Ong on
September 1, 1971 and by Bienvenido Quintos on September 3, 1971. He
said that Benjamin Ong pinpointed to them the place of burial at Barrio
Makatipo, and Sy Yap was with them during the examination. They found the
mouth of the victim gagged and his hands tied. It was in a state of
decomposition. The victim's body was facing downward with the buttocks
protruding up. The hands were tied just above the chest while the feet were
far apart. The buttocks were one foot from the surface while the face was
one and a half feet below facing down. There were no houses in the area
which he believed was the Araneta subdivision. He directed the reenactment
of the crime. It appeared in their reenactment that Fernando Tan and
Bienvenido Quintos were the ones who grabbed Henry Chua from his
Mustang car when Benjamin Ong was urinating; that the victim's mouth was
gagged while his hands were tied at the back; that during the making of the
ransom note. Tan was holding the gun while Quintos was focusing the
flashlight; that afterwards, Henry Chua's hands were tied again, this time in
front; that he was stabbed after he was made to lie down facing up; that
Baldomero Ambrosio and Bienvenido Quintos pulled the victim to the hole
that Baldomero Ambrosio shovelled while Bienvenido Quintos held the
flashlight; that at the time the ransom note was being prepared Benjamin
Ong was near the car, about 50 meters from the hole, so that his person did
not appear in the picture of the reenactment of this portion. Benjamin Ong
was taken by the NBI into custody from the 2nd PC Zone on September 1,
1971 at around 6:30 in the evening whereupon at 10:00 p.m. of that same
night, his written testimony was taken down up to past 12:00 midnight. He
had a small bandage around his wrists because of an attempted suicide on
his part. Bienvenido Quintos, on the other hand, he said, was arrested on
September 3, 1971 and his extrajudicial statement was taken on the same
day at around 7:00 or 8:00 p.m. 12
Diego H. Gutierrez, also an NBI agent, testified last for the prosecution. He
identified Exhibits "Q" and "R" as the voluntary supplementary extrajudicial
statements respectively of Bienvenido Quintos and Benjamin Ong. Gutierrez'
testimony focused on Bienvenido Quintos' admission that the hole was dug
and covered with fresh twigs after the group's second meeting at the Barrio
Fiesta Restaurant. 13
Brief Synopsis of the Testimony of
the Witnesses for the Defense
The defense started the presentation of their evidence with the testimony of
Dr. Mariano P. Lara, retired Chief Medico-Legal Officer of the Manila Police
Department. His testimony centered on the matter of asphyxiation. He said
that asphyxiation as the possible cause of death was nowhere reflected on
the necropsy report of Dr. Ibarrola of the NBI; and that the death of the victim
could have been due to shock as a result of the wounds inflicted on him. 14
Rene Aguas, BIR examiner and first cousin of Bienvenido Quintos, then
testified. He said that he went to the NBI on September 8, 1971 in order to
follow up the clearance papers of his deceased father. By coincidence, he
discovered that Quintos was detained there, so, he tried to get in touch with
him. He gathered that Quintos was "okay" although later on the latter
revealed that he was hurt also. 15
Artemio R. Quintos, an engineer and father of accused Bienvenido Quintos,
followed next. He said that he visited his son on September 3, 1971 along
with Atty. Bonicilla at around 7:00 p.m. at the NBI. The guard refused to tell
him where his son was so that the following day, September 4, he went back
to the NBI in the morning as well as in the evening. Still he did not find his
son. On September 5, he delivered clothes for the use of his son to the jailer,
Benjamin Laforteza and was issued a receipt therefor. On September 6, he
brought a letter addressed to the Director of the NBI requesting him that he
be allowed to see his son. It was only on September 7, at 4:00 p.m. he
claimed, that he met his son. He said that Bienvenido Quintos showed to him
his stomach with some bluish discoloration at the navel. On that day, he also
received his son's dirty clothes and found bloodstains on it. 16
Bienvenido Quintos then took the witness stand. He revealed that he came to
know Fernando Tan when they were still in Dagupan City long time ago. He
said that he was invited on April 23, 1971 by Fernando Tan and that they met
at around 7:00 p.m. of that day. They proceeded to the Barrio Fiesta
Restaurant in Caloocan City where he was introduced to Benjamin Ong and
Baldomero Ambrosio for the first time. At 9:00 p.m., they went to Brown
Derby Supper Club in Quezon City after which they proceeded to Amihan
Nightclub at around 10:30 p.m. at Roxas Boulevard. He, Fernando Tan, and
Baldomero Ambrosio were left in the car. Later, Benjamin Ong went out of
the Amihan Nightclub and took Fernando Tan with him. Fernando Tan
returned and after a while he was invited to the nearby Wigwam Nightclub.
They hurriedly left the place and Fernando Tan took the front seat of the
Biscayne car while he took the back seat and followed a certain car. When
that car stopped, he saw Benjamin Ong vomitting. Fernando Tan and
Baldomero Ambrosio went down and Fernando Tan pulled out his gun. The
victim was dragged and forced into the rear part of their car. The victim's
hands and feet were tied by Baldomero Ambrosio while the mouth was
gagged by Fernando Tan with a flannel cloth. Bienvenido Quintos made clear
in his testimony that the victim was lying on his back inside the car so that his
face was up and his hands were on his breast. Fernando Tan then
threatened him with his gun should he not cooperate with them. At Barrio
Makatipo, the victim laid down on the ground and Benjamin Ong got the
shovel and flashlight and gave them to Fernando Tan. The victim was made
to walk a little distance and then lie down again face up. Benjamin Ong gave
to Fernando Tan an icepick who then gave it to Baldomero Ambrosio and in
turn gave it to him. He refused to stab the victim so that he returned it to
Fernando Tan who made the actual stabbing on the victim's chest twice.
According to him, there was already a hole in that place. He also claimed that
Exhibit "O" was not a voluntary statement of his and that he was maltreated
by more or less 5 men. He said that he went to Oas, Albay on May 1, 1971
but that he was never contacted by the group between April 24 and 30. At a
certain point during the proceedings, the court suspended his testimony for
about 15 minutes after he complained of an aching head. 17
Benjamin Ong testified last for the defense. He related that Henry Chua was
a friend and that they were slightly related to each other. He felt that he was
cheated because he was the only one who continuously lost in their mahjong
sessions. Henry Chua's group, including Ko King Pin, Go Bon Kin and
Marcelo Tanlimco went to his office and humiliated him there. On April 21,
1971, Henry Chua called him up by phone and invited him to the Amihan
Nightclub where he could settle the gambling debt. He admitted responsibility
for Henry Chua's death but emphasized that his purpose was merely to kill
him. He added that nothing was taken from the body of the victim. He asked
the assistance of Fernando Tan and Baldomero Ambrosio who merely drove
the car. He denied the testimony of Patrolman Marciano Roque regarding his
revelation of his plan. He believed that Henry Chua knew that he had a
grudge against him during that fatal day. He waited for them to dig and cover
the hole which took about one hour and a half after the stabbing. He
attempted suicide by slashing his wrist 7 or 8 times while he was still in the
custody of the P.C. at Camp Vicente Limin Laguna. He was also brought by
the NBI to the Salem Motel where he was investigated from 8:30 in the
evening up to 5:30 in the morning of the next day. Exhibit "N", his
extrajudicial statement, was taken while he was groggy and very weak. He
likewise pinpointed the grave. At a certain juncture during Benjamin Ong's
testimony, his counsel sought the court's permission to exclude the public
from the hearing because Ong's wife would testify on something that would
constitute a "great shame" to their family. Benjamin Ong, however, refused to
go ahead with said testimony. Benjamin Ong further claimed that he decided
to kill Henry Chua on April 23, 1971. He was hurt by the threatening words
on the part of the victim which humiliated him and, as such, he was forced to
resign from his job. He went to the Skyways Travel Service only after the
incident. He, however, changed his destination and wanted to go instead to
Canada and Europe. The reason why he was not able to pursue his
departure was because Sy Yap called him up and asked him about his
brother's whereabouts so that he seriously felt that the authorities were
already after him. He left Manila on April 29, 1971 and went to Legaspi City
with Fernando Tan but found no acquaintance there so that they went back
to Manila. It was Fernando Tan who contacted Boy Roslin and Bienvenido
Quintos after which they went to Oas, Albay and stayed there for about two
to three days. He hid himself on top of the mountain with an old man.
Furthermore, he said that Henry Chua was aware that he resented him.
Benjamin Ong likewise denied having called Fernando Tan at anytime, to
come in with him to the nightclub. 18
Non-Conflicting Facts
Non-conflicting facts, as shown in the testimonies of the accused and
witnesses in open court, and reiterated in the respective briefs of the parties,
are as follows: For more or less one year and a half prior to the dreadful
incident, the accused Benjamin Ong used to play mahjong with the deceased
Henry Chua and the latter's companions, Ko King Pin, Go Bon Kim (sic) and
Marcelo Tanlimco. In those sessions he lost substantially that at one time, it
amounted to as much as P150,000.00. He suspected that he lost in unfair
games and was completely cheated by Henry Chua and the latter's
companions, who made things worse by pressing him to pay his gambling
debt with a threat of bodily harm upon his person and that of his family. The
deceased and his companions embarrassed Benjamin Ong, incident after
incident, especially when they went time and again to Benjamin Ong's office
at the Acme Shoes, Rubber and Plastic Corporation to confront him. The
extent of his embarrassment was made manifest by the fact that he had to
resign from his job.
On April 21, 1971, Henry Chua repeated his demands for early settlement of
his gambling debt and, as such, invited Benjamin Ong to see him on April 23,
1971 at the Amihan Nightclub and bring with him the money owed
(P50,000.00). That same day that Henry Chua phoned Benjamin Ong, the
latter contacted and sought the assistance of Fernando Tan, a technical
supervisor also of the Acme Firm. Benjamin Ong told Fernando Tan about
his grudge and plans against Henry Chua in order to avenge the
embarrassment and humiliation he suffered before the eyes of his
subordinates.
Fernando Tan, who incidentally, owed Benjamin Ong his job19, was very
accommodating and he shared Ong's feelings against Henry Chua. And,
according to Benjamin Ong, Tan said "Why not just kill him." 20 Tan
immediately contacted Baldomero Ambrosia, Benjamin Ong's godson in
marriage and a former Acme employee, and likewise called upon his
boyhood friend Bienvenido Quintos at the latter's office at the Robes
Francisco Realty Corporation.
On April 23, 1971, the four met at the Barrio Fiesta Restaurant in Caloocan
City and finalized their plan to liquidate Henry Chua. The group, riding in
Benjamin Ong's Biscayne car, then went to the Amihan Nightclub and arrived
there at past nine o'clock in the evening. The two, Benjamin Ong and Henry
Chuamet there and had a couple of drinks. Benjamin Ong asked for patience
and leniency with regard to his indebtedness and ample time for its
settlement.
From the Amihan the two went to the nearby Wigwam Nightclub where they
tabled two hostesses Ligaya Tamayo and Mickie Yaro and had some more
drinks. At around 1:30 a.m. of the following day, April 24, 1971, the duo left
the place and rode in Henry's Mustang car. Fernando Tan, Bienvenido
Quintos and Baldomero Ambrosio riding in Ong's Biscayne car, followed the
couple down Roxas Boulevard, then to Quiapo and Quezon Boulevard
Extension in Quezon City where, after passing the Sto. Domingo Church,
they made a turn towards a dirt road leading to Del Monte Avenue. When
they reached a dark and secluded place, Benjamin Ong urged Chua to stop
the car in order to urinate, to which the latter obliged. It was at this time that
the Biscayne car arrived and stopped in front of the Mustang car whereupon
Fernando Tan and Baldomero Ambrosio alighted with a flashlight and
pretended to be policemen. Fernando Tan poked his gun at Henry Chua and
pulled him down from his Mustang car with Baldomero Ambrosio giving him
help. They then guided and forced him inside the rear part of the Biscayne.
He was made to lie, face up. His hands were tied and his mouth gagged with
a flannel cloth. Fernando Tan and Bienvenido Quintos then rested their feet
on him. Baldomero Ambrosio drove the Biscayne while Benjamin Ong drove
the Mustang and followed them from behind.
The group took Del Monte Avenue, Roosevelt Avenue, and then E. de los
Santos Avenue, right to the North Diversion Road, and right again to
Novaliches until they reached a deserted place that looked like an idle
subdivision in Barrio Makatipo, Novaliches, Caloocan City. It was here that
Henry Chua was stabbed twice with an icepick, allegedly by Fernando Tan,
and buried there with all his belongings with him consisting of a Piaget watch,
lighter, wallet containing P50 bills, driver's license, diner's card, etc.
After this, the group proceeded to Barrio Tibag, Baliuag, Bulacan with
Benjamin Ong and Fernando Tan on the Mustang. There they left it locked
near a gasoline station. The foursome then regrouped in the Biscayne and
proceeded back to Caloocan City where they separated at about 7:00 o'clock
in the morning.
On August 29, 1971, somewhere in Barrio Balugo, Oas, Albay, Benjamin
Ong was arrested by operatives of the 2nd PC Zone and later turned over to
the NBI. On the other hand, Bienvenido Quintos was apprehended on
September 2, 1971 in his residence at Tayabas St., in Sta. Cruz, Manila by
members of the MPD and later turned over to the NBI also.
Important Points of Conflict
The prosecution adds more to what the defense claims and conflicts appear
in various instances. One such instance was the testimony of the first
prosecution witness, Patrolman Marciano Roque of Caloocan City, to the
effect that one month or so before the execution of the crime, Benjamin Ong
solicited his help in consummating his plan. Patrolman Roque testified that
he tried his best to convince Benjamin Ong to desist but to no avail. It was
this witness who revealed Benjamin Ong's plan to ask for money from the
rich family of the deceased and, with said money, he, Roque, could already
resign from his job should he participate. 21
In his testimony before the lower court, Benjamin Ong vehemently denied A That was what he said.
having revealed such plan to the witness. 22 However, in his brief, accused
Benjamin Ong claims that this testimony if ever there was such, does not Q In other words, this was not the way he
reveal his intention to kill Henry Chua that early. At most, he said, it was a told you, that he would grab the man so that
mere "infantile thought of wishing someone dead" and no more. 23 he could get the money by extortion or by
ransom?
On this point, counsel for the accused Ong, argued as follows in their well-
written brief: A He said that after having in his possession
his intended victim he would demand some
Pat. Roque has not categorically asserted that he was a money from his parents.
friend of Benjamin Ong. They came to know each other
when he, as a policeman, investigated theft and robbery Q I will recall in your direct testimony ... you
cases on the complaint of the Acme Shoe and Rubber said that afterwards if he could get the
Corporation where Benjamin Ong worked as Assistant money he will kill the man, that was your first
Manager. (pp. 5-7, t.s.n., Sept. 16, 1971) As so why testimony, which is correct?
Benjamin would reveal a plan to kidnap another to a
policeman, in the absence of a close and long association, is
A He lost one hundred fifty thousand.
just too incredible to merit belief. Pat. Roque said that
Benjamin Ong "confided to me that I am the only person
whom he can trust so he further enumerated a detail that he Q And he needed money and so he would
intended to get a money and ask for the money from the demand money from the father or parents of
parents of the victim. (Id., p. 10) As to why he merited the the victim, is that not your testimony?
trust of Benjamin Ong, he did not say.
A Yes, sir.
Pat. Marciano Roque said that he has no criminal record (Id.,
p. 42). He has not conveyed to Benjamin Ong any Q And afterwards he wanted to kill the man?
information that he is a gun for hire (Id., p. 43), nor does he
have that reputation (Id., p. 43). If he were a criminal or he A No, sir.
had a reputation as a professional killer, it is perhaps
possible for one in Benjamin Ong's position to have made Q And so what is your testimony now?
the proposition to him. Moreover, when he was cross-
examined on the alleged intention to collect ransom, he
A After he got the man he will demand
committed material contradictions such as to raise serious
money from the parents or ransom money
doubt on the veracity of his testimony. He could not
from the parents of the victim.
categorically assert whether the alleged intention of
Benjamin Ong was to kill the victim first and demand money
from his parents after, or detain him first, and after receiving Q So it is the other way. He first would kill
ransom money, kill the victim. the man and afterwards get the money.

ATTY. QUISUMBING: ATTY. DE SANTOS

Q Your testimony is as follows: that he told The question is misleading.

you that after demanding the money to kill
the man, you remember that? COURT:
 Answer.
WITNESS:
A No, sir, he said that after receiving the
money the man may be killed.
Q Is that your testimony? That he will kill the
victim or the victim may be killed?
A No, sir.
Q So which is which?
A He will kill the victim.
Q After getting the money?
A Yes sir. (pp. 38-41, t.s.n., Sept. 16, 1971)
Another point of conflict is the claim of the prosecution that a ransom note
was indeed written and copied by Henry Chua from a prepared note before
the latter was ice-picked and buried. It appears that co-accused Bienvenido
Quintos stated in his supplementary extrajudicial statement before the NBI
that:
Yes sir. After we have brought victim some meters away
from the road, FERNANDO TAN ordered victim to lie face
down on the ground at the same (time) he untied victim and
removed the gag while his gun was still pointed at the head
of Victim. Thereafter he ordered the victim to copy a
prepared ransom note in a piece of yellow paper. I saw the
figure $50,000.00 because I was holding then the flashlight.
It was only after the ransom note was written and was
submitted to BENJAMIN ONG that FERNANDO TAN
returned to us. 24
This is hearsay as against Benjamin Ong. And Ong vehemently denied the
same in his testimony in open court when he said upon questioning:
Q In this statement Exhibit "N", you admitted
that Henry Chua was taken from the
Mustang car and transferred to the Viscain
(sic) car and then brought to that
uninhabited place in Barrio Makatipo; what
was your purpose in having the late Henry
Chua taken from his car and brought to
Makatipo?
A My purpose was just to kill him, and there
is (sic) not going to be any delay.
Q Was there any purpose of detaining him
for sometime?
xxx xxx xxx
A No, there was no purpose to detain him
any further. 25
Also, in his extrajudicial statement, he said:
Q When you hatched the plan to kill HENRY
CHUA, did it ever occur to you to demand or
ask for any ransom money from the family of
HENRY CHUA?
A Never, the question of ransom money
never entered my mind? 26
Admittedly, no such genuine ransom note was received by the family of the
deceased. Undoubtedly, its presence in the crime could aggravate it,
allowing the imposition of the capital punishment of death. 27
Also conflicting is the matter of Bienvenido Quintos' participation at the time
Henry Chua was dragged into the Biscayne car. The briefs of both parties
tend to show that it was Fernando Tan and Baldomero Ambrosio who pulled
Henry Chua out of his Mustang car, forced him into the Biscayne car, tied
and gagged him. 28 However, Agent Lacanilao testified that in the
reenactment of the crime it was shown that Bienvenido Quintos and
Fernando Tan were the ones who dragged Henry Chua out of his
car. 29 Added to this is the claim of Benjamin Ong that Baldomero Ambrosio
merely drove the Biscayne for the
group. 30
The prosecution likewise claims in its brief that as early as a week before the
incident, the group already chose a site and prepared a hole where to bury
Henry Chua; 31 that this group was in constant search of the victim along the
nightclub row in Roxas Boulevard during the succeeding evenings but failed (c) In those cases where the Supreme Court convicted the
to see him; 32 that a day before the unfortunate evening, Ong contacted Miss accused of Kidnapping with Murder, there was shown an
Clarita Teh of the Skyways Travel Service at Ongpin St., Sta. Cruz, Manila, intention to deprive the victim of his liberty, and it was held
and asked for a booking for Hongkong and Taipei, and deposited P4,000.00 that the kidnapping was a necessary means to commit the
therein. 33 Similarly, it is alleged that on April 29, 1971, a few days after the crime of murder.
incident, Tan and Ong contacted Severo "Boy" Roslin, a long-time friend of
Tan, to help them obtain airplane seats for the Visayas, but they failed; 34 that II
they also proceeded to the pier to seek passage to the South on a boat but
they were likewise frustrated; 35 that instead, they took a train ride to Lucena The court a quo erred in finding that the killing of the
City where Roslin left them and after which, they continued to Legaspi
deceased was attended by the generic aggravating
City; 36 that finding no acquaintance there, they went back to Manila; 37 that
circumstances of —
on May 1, 1971, Tan again engaged Roslin's services and with the latter
driving his car, they picked up Quintos and Ong and went to Barrio Balugo,
Oas, Albay and stayed there in the house of Roslin's parents; 38 that Ong (a) Abuse of superior strength;
was left there while Roslin, Tan and Quintos went back to Manila. 39
(b) Nighttime;
A reenactment of the crime was had by Benjamin Ong, Bienvenido Quintos
and some NBI and MPD agents who played the role of their co-accused (c) Uninhabited place;
Fernando Tan and Baldomero Ambrosio. 40
(d) Abuse of confidence;
The trial of this case in the lower court proceeded with commendable speed,
although separate trials for the two accused who had been arrested so far at (e) Use of motor vehicle; and
that time were held upon the latter's request. Both entered a plea of "not
guilty" to the crime charged upon arraignment on September 4, 1971. (f) Cruelty.
However, in the case of Benjamin Ong, he invoked the doctrine laid down in
the case of People vs. Yturriaga 41 to the extent that the prosecution should
and the qualifying circumstances of —
not nullify the mitigating circumstance of a plea of guilty, by counteracting it
with "unfounded allegations" of aggravating circumstances in the information.
In other words, he admitted his guilt in so far as the crime of simple murder (a) Alevosia
was concerned. 42
(b) Evident premeditation.
Before this Court, the accused Benjamin Ong maintains that:
III
I
Assuming that the killing of Henry Chua was attended by the
The Court a quo erred in finding the accused guilty of the aggravating circumstance of alevosia, the aggravating
crime of kidnapping with murder because — circumstance of abuse of superior strength and nighttime, if
present, are absorbed by treachery.
(a) There was no evidence offered against the accused
which would prove that the crime of kidnapping was IV
committed at all;
The court a quo erred in not appreciating (a) plea of guilty,
(b) Kidnapping cannot be complexed with murder; and (b) circumstances of a similar nature or analogous to
Article 13, paragraphs 1 to 9 of the Revised Penal Code as
mitigating.
V and of his mistress and his five children by her, and his
The court a quo erred in imposing the death penalty upon
the accused.
VI
The court a quo erred in sentencing the accused to pay
excessive damages. 43
For his part, the accused Bienvenido Quintos argues that:
1. The lower court erred in giving full weight and credit to the
extrajudicial statement of the defendant-appellant.
2. The lower court erred in not finding that there was no
conspiracy between defendant-appellant Bienvenido Quintos
and the other accused.
3. The lower court erred in not acquitting defendant-
appellant Bienvenido Quintos. 44
OUR RULING
The Evidence on the Alleged Writing of a
Ransom Note is Insufficient to Support
a Finding in Favor of the Prosecution:
First, Benjamin Ong vehemently denied asking for ransom.
In the extrajudicial statement of Benjamin Ong, he was
asked this question: "Q. When you hatched the plan to kill
HENRY CHUA, did it ever occur to you to demand or ask for
any ransom money from the family of HENRY CHUA?" to
which he answered: "Never, the question of ransom money
never entered my mind." (Question No. 5, Exh. N.)
Secondly, no ransom note was presented as evidence by the prosecution,
nor did the latter show that a demand for money was made upon the family
of the victim. In the case of People vs. Manzanero, Jr.45, We held:
Furthermore, what could have been the motive for the
kidnapping? According to the trial court, the ransom money
was needed by Manzanero to defray the huge expenses for
the day-to-day living of his lawful wife and seven children,
repair shop that was earning only about P1,000 monthly
could hardly meet the salaries of his 16 workers and
mechanics. But is it credible that Manzanero, "being the
intelligent and shrewd man that he appears to be," according
to the trial court, could even have entertained the illusion that
the kidnapping that he was to perpetrate so clumsily and
amateurishly would he profitable to him, and he could
escape from criminal prosecution? And what is strange is, if
the ransom note was indeed written why was it never
presented in evidence? The claim that it was lost is
unbelievable. That ransom note, if it ever existed, was the
most important piece of evidence that could support the
prosecution's theory that the kidnapping was for ransom.
Certainly, that piece of evidence should be kept and
preserved. No plausible explanation was given how that
ransom note got lost. Neither the father nor mother of
Floresita was made to testify regarding the alleged ransom
note.
Moreover, if ransom was the purpose of the kidnapping, why
did Manzanero so easily, and without apparent reason, give
up his alleged criminal enterprise, when he could have
pursued it to a successful end? If there was really that
ransom note, and that ransom note was sent the most
logical thing that Manzanero would have doing was to send
instructions to Floresita's family on how, when, and to whom
the ransom money should be delivered. There is no
evidence that Manzanero ever made any follow up in order
to get the ransom.
Furthermore, barely two days after the alleged kidnapping
for ransom, Manzanero, without having obtained even part of
the ransom money, released Floresita. Would a kidnapper,
as Manzanero was alleged to be, readily release the victim
without realizing his purpose? (Emphasis Supplied)
Thirdly, the extrajudicial statement of accused Quintos wherein he stated that
Fernando Tan ordered Henry Chua to prepare a ransom note wherein he
saw the figure $50,000.00, is tainted with serious doubts due to the apparent
maltreatment that Quintos received from the NBI and MPD men on
September 3, 1971. 46 The medical certificates and case record 47 issued by
the Philippine General Hospital support the findings and remark of the
examining physician, Dr. Florencio Lucero, that in the person of accused
Quintos, "intramascular hematoma is evident." Besides, it is hearsay and
therefore incompetent evidence against Benjamin Ong. And in the
reenactment, as testified to by NBI agent Lacanilao, while the ransom note
was being prepared, Benjamin Ong was about 50 meters away from the
place where the note was being prepared.
Fourthly, although both parties in their briefs agree that the victim's hands
were tied after he was shoved into the rear floor of the Biscayne car, neither
makes a categorical claim that the hands were tied at his back. In fact Acting
Solicitor General Hector C. Fule submits in his brief that the victim was made
to lie down "face up". 48 This leads to the conclusion that the rope around the
victim's hands was never removed at any instance up to the time that he was
buried and exhumed. This discounts the idea that before the victim was
made to copy a prepared ransom note, the hands at his back were tied, and
after the writing, his hands were again tied, this time in front. Bienvenido
Quintos in open court positively stated that the victim was made to lie on his
back inside the car and his bands tied on his breast. 49 The contrary evidence
on this point are those of Agent Lacanilao on the reenactment of the crime
which was based on the extra-judicial statement of Bienvenido
Quintos. 50 However, as shown above, this statement is of dubious veracity.
Finally, that appellants never intended to make money out of the murder of
Henry Chua, can be clearly deduced from the fact that Chua was buried with
everything in his person; and during the exhumation of his body, his brother,
Sy Yap Chua, identified the articles found in the body of the deceased, such
as a Piaget watch worth around P10,000.00 (Exh. B), a wallet together with
money, with P50 bills and other denominations.
In the light of the foregoing facts and circumstances, We cannot give any
credence to the testimony of Patrolman Roque that about the first week of
April, 1971, Benjamin Ong confided to him his plan to get a man who
cheated him in gambling by as much as P150,000.00; that he would ask for
money from the latter's parents and after which he would kill the victim. And
the facts brought out on cross examination of this witness, which We have
discussed earlier, show the incredibility of Ong confiding to Patrolman Roque
his criminal intention, particularly, his intention to ask money from the parents
of the intended victim. As a matter of fact, this witness, on cross examination,
got lost, so to speak, on the point of whether according to Ong, he would first
kill the intended victim and demand money from his parents afterwards, or
detain him first and, after receiving a ransom money, kill the victim.
Furthermore, from the first week of April, 1971, when this intention was
allegedly revealed by Ong to this witness, Ong could have changed his mind
with respect to the demand for money when the victim was actually taken
and killed in the early morning of April, 1971.
There was no Kidnapping to Make the Crime a
Complex one of kidnapping the Murder
The extrajudicial confession (Exhibit N) of accused Benjamin Ong was
affirmed and confirmed by him in open court, thus:
Q I show you this document marked as
Exhibit "N", statement of Benjamin Ong,
dated September 1, 1971, do you admit that
this is your statement given to the NBI?
A Yes, sir.
Q In this statement, Exhibit "N", you
admitted that Henry Chua was taken from
the Mustang car and transferred to the
Biscayne car and then brought to the
uninhabited place in Barrio Makatipo, what
was your purpose in having the late Henry
Chua taken from his car and brought to
Makatipo?
A My purpose was just to kill him, and there
is not going to be any delay.
Q Was there any purpose of detaining him
for sometime?
A No, there was no purpose to detain him
any further.
And the evidence on record shows clearly that the deceased Henry Chua
and Benjamin Ong left the Wigwam Nightclub at Parañaque, at about 1:30
a.m. on April 24, 1971, in the car of Chua. Chua went voluntarily with Ong, so
much so that Chua himself drove his car. They were already in Del Monte
Avenue, near the place in Caloocan where Chua was killed and buried when
they tied the hands of the deceased; that there were still disagreement
among the four accused on who would kill the deceased, until finally it was
the co-accused Fernando Tan who stabbed him with an icepick; and that the
four accused, including two others, parted from each other at 7:00 o'clock in
the early morning of April 24, 1971 after they brought the car of Chua and left
it in Bo. Tibag, Baliuag, Bulacan.
In view of the foregoing facts and circumstances, We hold that there was no
kidnapping, but only murder, because the detention of Chua was
only incidental to the main objective of murdering him and was not a
necessary means for the commission of the murder. From the Commentaries
on the Revised Penal Code of Justice Aquino, an acknowledged authority in
criminal law, We find the following:
If the detention of the victim is only incidental to the main
objective of murdering him, and is not a necessary means
for the commission of the murder, the crime is only murder
and not the complex one of murder through kidnapping. In
the Guerrero case, the accused Huks brought to the
mountain two persons, father and son. The father was killed.
The son, a 14-year old minor, was above to escape on the
second night following his detention. HELD: The accused
were guilty of murder as to the father and kidnapping as to
the son.
In a 1902 case, the victim was taken from his house and
then brought to an uninhabited place, where he was
murdered. HELD: The crime was murder only. There was no
illegal detention "since it does not appear that it was the
purpose of the accused to commit this offense. The primary
objective was to kill the victim.
Where after the robbery committed in a house, three of its
inmates were taken to a place near the river one kilometer
from the house, where they were killed, the kidnapping was
deemed absorbed in the crime of robbery with homicide.
Where the appellants kidnapped the victim at his house at
Avilos Street, Manila and forded him to ride in a car, but
while the car was at the intersection of Libertad Street,
Pasay City, the victim jumped from the car and was shot to
death, the crime was held to be murder only. (I Revised
Penal Code by Justice Aquino).
And We quote from the brief of appellant Ong:
The crime committed was only murder. —
As early as the case of US vs. Nicolas Ancheta, et al. (No.
422, March 14, 1902; 1 Phil. 165), it was held that where the
accused kidnapped the victim, Ventura Quinto, took him to a
place called Radap and there by order of Nicolas Ancheta
and Sebastian Dayag, the victim was killed, the crime
committed by them was murder. The acts committed by the
accused do not constitute the crime of illegal detention since
the deceased was captured in his house and taken by the
accused to an uninhabited place selected by them for the
purpose of killing them there. (At p. 169). In the case of US
vs. Teodoro de Leon (No. 522), March 10, 1902; 1 Phil.
163), there was a demand for the payment of ransom.
Nevertheless, the accused was found guilty not of
kidnapping with murder but of murder only. In this case, the
deceased, Don Julio Banson was forcibly removed from his
house by Fabian Tolome, by order of Teodoro de Leon. He
was tortured and maltreated by the defendant until they
arrived at a place called Bulutong. "Not satisfied with
torturing the deceased by himself he (Teodoro de Leon)
ordered Tolome to give him a blow upon the chest with a
bolo. Don Julio begging for mercy, the defendant sent one of
his servants to the wife of the deceased to ask for $1,000.00
for his ransom. After the servant had been sent all were led
to a place called Cosme and upon arriving there the
defendant ordered Fabian and Tomome to conduct Don
Julio to a ditch. At the same time the witness and his three
companions were given their liberty by the defendant, who
remained with his two companions and with Don Julio. Don
Julio was never afterwards seen alive and his headless body
was found two or three days later in this same place." The
accused was found guilty of the crime of murder. Similarly, in
the case of US vs. Emiliano Cajayon, et al. (No. 981, Oct. 8,
1903; 2 Phil. 570) twelve armed men kidnapped Tranquilino
Torres and took him with them to the barrio Maliig in the
town of Lubang, Cavite province, where they killed him and
buried him in a hole dug for that purpose. It was held that the
crime committed was murder. The pertinent facts of the case
are stated briefly as follows: About 20 armed men forced
their way into the house of Felix Marin, made him and his
son prisoners, and carried them off with their arms tied
behind their backs. From there they proceeded to the house
of the head man of the barrio which they set on fire, and
after capturing all the inmates, brought them to an estero
called the "Pasig" where they set all prisoners free, except
Felix Marin and Isabel Beltran. These two they took away in
a boat and carried to a clump of manglares, at the edge of
the estero, where Maris still bound, was decapitated by one
of the band with a single stroke of a bolo. Isabel Beltran was
set free. It will be noted that as to Isabel Beltran, the son of
Felix Maris and the others, who were made prisoners, there
was deprivation of liberty. Nevertheless, the accused was
found guilty of murder, and not of kidnapping with murder. In
the case of People vs. Magno Quinto, et al. (L-1963, Dec.
22, 1948; 82 Phil. 467), it was established that Gregorio
Caling was picked up at his home in Floridablanca,
Pampanga by a band of Hukbalahap on the night of
December 9, 1945 and taken to the bank of the Gumain
River, Gregorio Caling was investigated in connection with
his arms, maltreated, and subsequently killed. The judgment
finding him guilty of murder was affirmed. In the case
of People vs. Juan Bulatao (L-2186, Jan. 29, 1949; 82 Phil.
743), one Jose Tan was forcibly taken by four armed men,
among them the accused. The following morning, the victim
was found dead. It was also held that the accused was guilty
of murder. In the case of People vs. Eufracio Lansang (L-
1187, Jan. 25, 1949; 82 Phil. 662) the accused who
participated in the kidnapping of the victim who was
thereafter killed was found guilty as an accomplice in the
crime of murder. The case of People vs. Alejandro Mendiola,
et al. (L-1642, Jan. 29, 1949; 82 Phil. 740) is more
significant. In this case the Supreme Court said:
"The circumstances of the case, as proved
by the evidence, lead us to the conclusion
that each and everyone of appellant took
part with Taciano V. Rizal in a conspiracy to
kidnap as they did Teofilo Ampil and they
are all equally responsible for his killing,
which was perpetrated in accordance with
the plan of the kidnappers. Once the
kidnapping has been decided, the authors
necessarily had to entertain the killing as
one of the means of accomplishing the
purposes of kidnapping.
"The three appellants were correctly found
by the trial court guilty as authors of the
crime of murder ..."
In the case of People vs. Francisco Moreno (L-2335, March
7, 1950; 85 Phil. 731), several armed men went to the house
of Manuel Artates in barrio Pogoncile Aguilar, Pangasinan,
and took him to the Marapudo Mountains in Mangatarem
where, he together with one Jose Jasmin, was beheaded.
Thereafter, "the defendant Francisco cautioned all the men
who took part in or witnessed the execution as well as the
kidnapping of the two men not to reveal to anyone what they
had seen that night under penalty of punishment." The
decision of the trial court finding the appellant guilty of
murder was affirmed. In the case of People vs. Alfredo
Riparip, et al.(L-2408, May 31, 1950; 85 Phil. 526), one
Enrique Roldan was on December 27, 1944 kidnapped and
on the following day killed by certain guerilla units. The
accused were found guilty of the crime of murder. In People
vs. Gaudencio Villapa, et al. (L-4259, April 30, 1952; 91 Phil.
189), the deceased Federico Agonias was taken by the
accused from the house of Guillermo Calixto in barrio San
Marcelino, Balugao, Pangasinan, and he was killed about 50
meters from the house. They were found guilty of murder. In
People vs. Emeterio Sarata, et al. (L-3544, April 18, 1952;
91 Phil. 111), it appeared that the four accused took the
victim Sabiano Bucad from his house, placed him in a banca
and sailed towards the opposite shore of the Bato lake
where the victim was maltreated and killed by the accused. It
was held that the crime committed was murder. In the case
of People vs. Eligio Camo and Buenaventura Manzanido (L-
4741, May 7, 1952; 91 Phil. 240), the accused took the
deceased Patricio Matundan from his house in the barrio of
Conda to the barrio of Talaan, both of the Municipality of
Sariaya, Quezon. Upon reaching a place near the
mangroves, the group stopped, and accused Camo shot and
killed the victim. The accused were charged with the crime of
murder with kidnapping. The Supreme Court held:
"The Solicitor-General next contends that
the offense committed was the complex
crime of kidnapping with murder. Again, we
are inclined to agree with the trial court that
the crime committed was simple murder. It is
true that Patricio was taken from his home
but it was not for detaining him illegally for
any length of time or for the purpose of
obtaining ransom for his release. In quite a
number of cases decided by this court
where the victim was taken directly from his
house to the place where he was killed,
kidnapping was not considered to raise the
offense to the category of a complex." (At p.
246)
In People vs. Nestorio Remalante (L-3512, Sept. 26, 1952;
92 Phil. 48), the accused with about 10 armed men met
Mercedes Tobias, accompanied by Eusebio Gerilla and
Lucia Pilo, on the way to her home in the barrio of Guiarona,
municipality of Dagami, Province of Leyte. The accused took
hold of Mercedes Tobias and dragged her, while at the same
time striking her with the butt of his rifle at different parts of
her body. Eusebio Gerilla and Lucia Pilo saw Mercedes
being dragged towards the sitio of Sawahan. Hardly had
they walked one kilometer when they heard gun reports. The
following day, Mercedes was found dead in Sawahan with
two gunshot wounds. Nestorio Remalante was charged and
found guilty by the trail court of the crime of kidnapping with
murder. As to the charge of kidnapping, the Supreme Court
held:
"There is no sufficient evidence of intention
of kidnap because from the moment
Mercedes Tobias was held and dragged to
the time when the gun reports were heard
nothing was done or said by the appellant or
his confederates to show or indicates that
the captors intended to deprive her of her
liberty for sometimes and for some purposes
and thereafter set her free or kill her. The
interval was so short as to negative the idea
implied in kidnapping. Her short detention
and ill-treatment are included or form part of
the perpetration of the crime." (at p. 51)
In the case of the People vs. Silvino Guerrero, et al., (L-
9559, May 14, 1958; 103 Phil. 1136, Unrep), the appellants
were found guilty for the murder of Candido Disengano and
the kidnapping of Paulo Disengano. As tot he killing of
Candido Disengano, it was held:
"As the court a quo has correctly held,
appellants cannot be convicted of the
complex crime of kidnapping with murder
under Article 48 of the Revised Penal Code,
for the reason the kidnapping was not a
necessary means to commit the murder.
Candido was detained and brought to the
mountains to be killed — this we have held
may not be considered kidnapping with
murder but mere murder. (People v. Camo,
G.R. No. L-4741, May 7, 1952; People vs.
Remalante G.R. No. L-3512, 48 O.G. 3881-
3883; People v. Villapa, et al., G.R. No. L-
4259, April 30, 1952) [13 Velayo's Digest
(new series) 337; please see also 103 Phil.
1136]"
In People vs. Santos Umali, et al., (L-8860-70, January 23,
1957; 100 Phil. 1095 Unrep.), the accused were charge and
convicted by the trial court of kidnapping with murder. The
evidence shows that the deceased was killed in front of this
house. The crime committed is only murder. (13 Velayo's
Digest [New Series], p. 340).
In People vs. Cenon Serrano alias Peping, et al., (L-7973,
April 27, 1959; 105 Phil. 531), the accused were charged
with illegal detention with murder. After a drinking spree, the
accused, Cenon Serrano, suggested to the deceased Pablo
Navarro to leave Bacolor, Pangpanga for San Fernando for
a good time, to which suggestion the latter agreed. While the
victim together with the accused Cenon Serrano and others
were on the way to San Fernando, Cenon Serrano
suggested that they proceed to Angeles for a good time to
which Pablo Navarro agreed. Upon reaching barrio San
Isidro, Cenon Serrano ordered the driver to proceed to barrio
Dolores, Bacolor, Pampanga where the deceased was
detained and questioned at the stockade of the civilian
guards. That same afternoon, Pablo Navarro was taken out
of the stockade and was brought to sitio Castilang Malati
where the deceased was shot and killed. The trial court
found the defendants guilty of the crime of murder. The
decision was affirmed by the Supreme Court. In People vs.
Rosario Lao, et al. (L-10473, January 28, 1961; 1 SCRA 42),
one Rosa Baltazar was taken by two of the accused and
killed beside a creek about 6 to 10 meters away from the
hatchery of the Lao poultry farm where she was staying. The
trial court found them guilty of the crime of kidnapping with
murder. The Supreme Court held that "the crime committed
is not kidnapping with murder as stated in the title of the
information but murder.".
In People vs. Felipe Sacayanan (L-15024-25, Dec. 31, 1960;
110 Phil. 588), a group of five armed men forcibly took from
their hour the victims Juan Galaraga and Victor Alamar to a
place about 40 meters away from the house where they
were shot. Juan Galaraga died. Victor Alamar was seriously
wounded. The trial court convicted the accused of the
complex crime of kidnapping with murder. The Supreme
Court held that this was error. "Nothing was said or done by
the accused on his confederates to show that they intended
to deprive their victims of their liberty for sometime and for
some purpose. There was no appreciable interval between
their being taken and their being shot from which kidnapping
may be inferred." (See People v. Remalante, 92 Phil. 48;
O.G. [9] 38881).
From the foregoing discussion, it seems clear that the weight
of authority is in favor of the proposition that where the victim
was taken from one place to another, solely for the purpose
of killing him and not for detaining him for any length of time
or for the purpose of obtaining ransom for his release, the
crime committed is murder, and not the complex crime of
kidnapping with murder. This ruling is entirely consistent with
law. Art. 267 of the Revised Penal Code penalizes a person
"who shall kidnap or detain another," and the penalty
becomes capital "where the kidnapping or detention was
committed for the purpose of extorting ransom from the
victim or any other person."
xxx xxx xxx
In the case at bar, the only evidence appreciable against the
appellant Benjamin Ong regarding the surrounding
circumstances of Henry Chua's death are (1) the
extrajudicial statement of Benjamin Ong, (2) the testimony of
Benjamin Ong during the trial, (3) the testimony of agent
Enrique Lacanilao about the reenactment of the crime. .
In the extrajudicial statement (Exhibit N) Benjamin Ong said
that from the Wigwam nightclub, Henry Chua and he rode on
Henrys Mustang Car with the latter driving it. Fernando Tan
and his friend were in the Biscayne car of Benjamin Ong
following the Mustang (Answer to Question No. 40, p. 3,
Exh,. N). At Araneta Avenue in Quezon City, Benjamin Ong
requested Henry Chua to stop the car to enable him to
urinate. When Henry Chua complied, Fernando Tan and his
friend stopped in front of the Mustang car, pretending to be
policeman, and ordered Henry Chua to go with them to the
police precinct. (Id., p. 5) Fernando Tan drove the Biscayne
car, while Benjamin Ong in henry Chua's car followed. From
Araneta Avenue, Fernando Tan drove to Novaliches where
Henry Chua was killed, (Id.) It will be noted that no
appreciable time elapsed from arrival at Novaliches up to the
time Henry Chua was killed, to indicate a separate intention
to deprived the latter of his liberty. When Benjamin Ong
testified on September 22, 1971, he affirmed his admission
of responsibility for the death of Henry Chua (t.s.n.., Sept.
22, 1971, p. 26). He further testified as follows:
ATTY. QUISUMBING:
Q In this statement Exhibit "N", you admitted
the Henry Chua was taken from the
mustang car and transferred to the Biscayne
car and then brought to that uninhabited
place in having the late Henry Chua taken
from his car and brought to Makatipo?
A My purpose was just to kill him, and there
is not going to be any delay.
Q Was there any purpose of detaining him
for sometime?
xxx xxx xxx
A No, there was no purpose to detain him
any further. (Id., pp. 27-28)
The narration of agent Enrique Lacanilao about the
enactment of the crime showed that there was no detention
of the deceased Henry Chua for any length of time. He was
killed and promptly buried. (Please see pp. 43-47, t.s.n.,
Sept. 18, 1971). On the basis of the foregoing evidence, the
accused can hardly be held liable for kidnapping as well. It
may not be amiss to state that an accused is entitled to
acquittal unless his guilt is shown by proof beyond
reasonable doubt. (Rule 133, Section 1, Revised Rules of
Court). The evidence at hand hardly satisfied the
requirement of proof beyond reasonable doubts as to the
charge of kidnapping. The necessary result is that the
accused can be held liable only for the killing of Henry Chua.
[Brief for the Appellant Benjamin Ong y Kho, pp. 43 to 56]
And the evidence on record clearly show that Henry Chua voluntarily went
with Benjamin Ong when they left the Wigwam Nightclub at Parañaque at
about 1:30 a.m. on April 24, 1971, so much so that they rode in the car of
Chua and it was driven by Chua himself. The two drove straight down Roxas
Boulevard, then to Quiapo, and Quezon Boulevard Extension in Quezon City;
and after passing Sto. Domingo Church, they made a turn towards a dirt road
leading to Del Monte Avenue. When they reached a dark and secluded
place, Benjamin Ong urged Chua to stop the car for the former to urinate to
which the latter obliged. The Biscayne car where Fernando Tan, Bienvenido
Quintos and Baldomero Ambrosio were riding, stopped. Fernando Tan poked
his gun at Chua and pulled him from his Mustang car with Ambrosio giving
help. His hands were tied his mouth gagged with a flannel cloth, and he was
placed in the Biscayne car. Tan and Bienvenido Quintos then rested their
feet on him. Then Ambrosio drove the Biscayne while Ong drove the
Mustang. They proceeded towards Barrio Makatipo, Novaliches, Caloocan
City, where Henry Chua was stabbed to death and buried.
In other words, the time interval When the deceased Henry Chua was
actually deprived of his liberty was short (from Del Monte Avenue to Barrio
Makatipo, Novaliches, Caloocan); and the same was only incidental to the
main objective of murdering him.
The only authority cited by the prosecution on this point is that of the case
of Parulan vs. Rodas (88 Phil. 615). But the ruling in the Parulan case cannot
be applied to the case at bar, because in the Parulan case, the Court found
that the kidnapping was a necessary means for the purpose of extorting
ransom from the victim and killing him if the desired amount could not be
given; and that the defendants had to kidnap or carry the victim from Manila
(where he was already deprived of his liberty, with Parulan poking his gun on
the victim), to a faraway and secluded place (a river in Bambang, Bulacan) in
order to better secure the consent of the victim through fear to pay the
ransom, and kill him if he refuses to accede to their demands, as in fact he
was killed be Parulan because of his (victim's) refusal to the ransom.
We Hold that Both Appellants are Guilty
of Murder
The killing of the victim in this case was attended by several qualifying and
aggravating circumstances. The facts on record prove this, beyond
reasonable doubt, even if we were to disregard the extrajudicial confession of
Benjamin Quintos which he denied and was allegedly extracted from him
through force and intimidation.
Treachery (alevosia) qualified the killing to murder. Undisputed facts show
that Henry Chua's hands were tied and his mouth was gagged with a flannel
cloth before he was stabbed twice with an icepick and buried in a shallow
grave near a creek. These facts portray well that the tied hands of the victim
rendered him defenseless and helpless thereby allowing the accused to
commit the crime without risk at all to their person. 51
The accused Benjamin Ong and Bienvenido Quintos, however, were quick to
insist that this circumstance should not be taken against them because they
did not do the actual stabbing (which was done by Fernando Tan). Easily, the
weakness of this claim can be discerned. Conspiracy, connivance and unity
of purpose and intention among the accused were present throughout in the
execution of this crime. The four participated in the planning and execution of
the crime and were at the scene in all its stages, They cannot escape the
consequence of any of their acts even if they deviated in some detail from
what they originally thought of. Conspiracy implies concert of design and not
participation in every detail of execution. 52 Thus, treachery should be
considered against all persons participating or cooperating in the perpetration
of the crime. 53
With regards to the aggravating circumstance of abuse of superior strength,
the same should be deemed absorbed in treachery. This position is itself
supported by the Acting Solicitor General in his brief and is sustained in a
long line of decisions. 54
In the same vein, the accused would like the aggravating circumstance of
nighttime (nocturnidad) to be absorbed in treachery in that it forms part of the
peculiar treacherous means and manner adopted to insure the execution of
the crime. The case of People vs. Berdida 55 provides the exception to this
rule and is applicable to the case at bar. It was there held that:
From the facts and evidence of record in this case, it is clear
that appellants took advantage of nighttime in committing the
felonies charged. For it appears that to carry out a sentence
they had pronounced upon Antonio Maravilla and Federico
Cañalete for the death of one Pabling, they had evidently
chosen to execute their victims under the cover of darkness,
at the dead of night, when the neighborhood was asleep.
Inasmuch as the treachery consisted in the fact that the
victims' hands were tied at the time they were beaten, the
circumstance of nighttime is not absorbed in treachery, but
can be perceived distinctly therefrom, since the treachery
rests upon an independent factual basis. A special case
therefore is present to which the rule that nighttime is
absorbed in treachery does not apply. 56
This aggravating circumstance was correctly appreciated by the lower court
regardless of whether or not the same was purposely and deliberately sought
by the accused for it is clear that the darkness of the night facilitated the
commission of the crime and was taken advantage of by them. 57
The purposive selection of an uninhabited place (despoblado) is likewise
clear from the evidence. The killing was done in Barrio Makatipo, Novaliches,
Caloocan City, an isolated place that resembled that of an abandoned
subdivision. The place was ideal not merely for burying the victim but also
forkilling him for it was a place where the possibility of the victim receiving
some help from third persons was completely absent. The accused sought
the solitude of the place in order to better attain their purpose without
interference, and to secure themselves against detection and
punishment. 58 As aptly stated in the "Sentence" of the lower court:
... The possibility of the victim calling for succor or
assistance from any third person was ruled out by the
chosen site. Trees, lush vegetation and thick cogon grasses
hide the place where the crime was committed from the view
of even a chance passerby. The choice of an uninhabited
place for the killing of Henry Chua, therefore, further
aggravated the offense committed by the accused. People
vs. Curiano, L-15256-57, October 31, 1962; U.S. vs. Vitug,
17 Phil. 1). 59
In the case of the aggravating circumstance of abuse of confidence (abuso
de confianza), it appears that the lower court wrongly appreciated this
circumstance. In order for this circumstance to obtain, it is necessary that
there be a relation of trust and confidence between the accused and the one
against whom the crime was committed, and that the accused made use of
such relation to commit the crime. 60 It is essential too that the confidence be
a means of facilitating the commission of the crime, the culprit taking
advantage of the offended party's belief that the former would not abuse said
confidence. 61
Nowhere in the records does it appear that Henry Chua reposed confidence
upon the person of Benjamin Ong. If any, Henry Chua was simply not afraid
of Benjamin Ong, having told and bragged to the latter about his violent
exploits in the past and threatened him with bodily harm in case of failure to
pay. 62 He knew that he was far stronger than Benjamin Ong in terms of
influence and money. He thought that Benjamin Ong would fear him. The fact
that Henry Chua invited Ong for nightclubbing that fatal evening and
accommodated him in his car on their way home from the nightclub does not
mean that Henry Chua had confidence in him. There was no special relation
of confidence between them. He knew that Benjamin owed him a substantial
amount and that its settlement had long been overdue which fact irritated him
very much. Benjamin Ong and Henry Chua were together that night in the
nightclub as well as in the car not because of said confidence. It was simply
because Benjamin Ong had some accounts to settle with him. Thus, in the
case of U.S. vs. Cruz, et al., 63 it was held that: .
... The fact of Cabaya having simulated friendship and desire
for work, together with the companions who went with him,
and the fact that he received food and work immediately
upon being accepted by the Americans to work in the mines,
is not, as stated in the judgment, a degree of treachery,
according to law, sufficient to constitute the aggravating
circumstance of abuse of confidence. It may however, be
argued as unworthy conduct and ingratitude, but not as
abuse of confidence. It is necessary first to show what has
been the confidence granted or given in order to determine
whether there was or was not an abuse of it, and in the
present case there is nothing to show what the confidence
given or conceded to Cabaya was, that could facilitate the
commission of the crime.
Likewise, in the case of People vs. Brocal, 64 it was held that:
There is no abuse of confidence in attempted rape where on
the day of the crime the accused was in the company of the
offended girl, not because of her confidence in him, but
because they were partners in a certain business.
More convincing this time is the aggravating circumstance of use of motor
vehicle in the commission of the crime. The Biscayne car of Benjamin Ong
was used in trailing the victim's Mustang car from Wigwam Nightclub up to
the time that it was overtaken and blocked. It carried the victim on the way to
the scene of the killing, it contained at its baggage compartment the pick and
shovel used in digging the grave; it was the fast means of fleeing and
absconding from the scene. Again, the motor vehicle facilitated the stark
happening. It has been held that the use of a motor vehicle is aggravating in
murder where the said vehicle was used in transporting the victim and the
accused. 65
Cruelty (ensanamiento) as an aggravating circumstance, cannot be
considered here. The brief of the Acting Solicitor General agrees with that of
the accused in denying the attendance of cruelty as an aggravating
circumstance. Indeed, as it appears from the record, the group intended
merely to kill the victim, bury him, and flee from the locale of the fearful
crime. For cruelty to exist, it must be shown that the accused enjoyed and
delighted in making their victim suffer slowly and gradually, causing him
unnecessary physical or moral pain in the consummation of the criminal act.
66 Even granting that the victim died because of asphyxiation when he was
buried and not hemorrhage from stab wounds, as testified to by Dr.
Ibarrola67, which however, has been contradicted by his own necropsy report
which shows that the cause of death was the "punctured wounds in the
abdomen," and by Dr. Lara who testified that the two wounds could have
produced death due to shock, it appears that the victim's burial was not
meant to make him suffer any longer but simply to conceal his body and the
crime itself.
Concededly, the qualifying circumstance of evident premeditation
(premeditacion conocida) attended the commission of the crime. What else
can better portray this circumstance than the frequent meetings 68 of the four
accused at the Barrio Fiesta Restaurant in order to discuss, lay out the plan,
and secure the different paraphernalia consisting of the rope, icepick, flannel
cloth, flashlight and shovel69. Added to this is the careful selection of an
"ideal" site for the grissly happening70. Similarly, the plan to go to Taipei and
Hongkong immediately after the incident pictures the presence of evident
premeditation71. The accused meditated and tenaciously persisted in the
accomplishment of the crime and were not prompted merely by the impulse
of the
moment. 72
The claim of the accused Benjamin Ong that the mitigating circumstance of
plea of guilty should be appraised in his favor, is hereby sustained. Indeed,
the kidnapping portion of the crime cannot be appreciated here beyond
reasonable doubt as stated at the outset. Furthermore, it can be seen that
the prosecution alleged so many aggravating circumstances which should be
absorbed in one or the other. To plead guilty to this information naturally
would be most unfair for the accused especially where the penalty would be
the capital punishment of death. The accused showed signs of
remorsefulness upon his arrest when he cooperated with the police
authorities in the solution of the crime. As held in the case of People vs.
Yturriaga73,
... It only remains to consider briefly whether the defendant's
plea of guilty in the form it was entered constitutes a
voluntary confession of guilt before the court as defined in
the same subsection of Article 13. We think it does.
Although the confession was qualified and introduction of
evidence became necessary, the qualification did not deny
the defendant's guilt and, what is more, was subsequently
fully justified. It was not the defendant's fault that aggravating
circumstances were erroneously alleged in the information
and mitigating circumstances omitted therefrom. If such
qualification could deprive the accused of the benefit of plea
of guilty, then the prosecution could nullify this mitigating
circumstance be counteracting it with unfounded allegations
of aggravating circumstances.
We hold that the accused Benjamin Ong is likewise entitled to the mitigating
circumstance that is analogous to passion and obfuscation (Art. 13, par. 10,
Revised Penal Code), based on the following facts stated in his brief:
a) Henry Chua and his companions went to the office of Benjamin Ong. In a
loud voice, with angry gestures, and in the presence of his subordinates and
fellow employees, Henry Chua demanded payment, and threatened bodily
harm to him and his family.
b) Henry Chua went as far as to threaten the life of Benjamin Ong unless his
obligation to Chua was paid. "If you treasure your life, you better pay first."
c) Because of this incident, he, Benjamin Ong, "was humiliated."
d) His brother-in-law, Chua Pak told him that he was holding a very
responsible position in the company and so he should not be involved in any
scandal.
e) He was "discredited and degraded in front of my brother-in-law." He was
so embarrassed, he finally tendered his resignation from the company.
f) Because of the threat of Henry Chua, the accused tried to get money from
all sources but he was not successful. The allotted time was so short. To
relieve him of the pressure brought to bear upon him to pay his gambling
debt, he even thought of embezzling money belonging to the company in
which he worked.
g) Because of his inability to raise money to be paid to Henry Chua, he
became "deeply depressed." He felt: "I was being turned into a criminal.
h) He begged Henry Chua to give him more time to raise the money.
"Nagmamakaawa na ako sa kanya." This was the night before Henry Chua
was killed. If Henry Chua had granted him time "the whole plan to kill Henry
Chua might not materialize." But Henry Chua, while not relenting, but
perhaps in utter contempt and disdain of Benjamin Ong instead decided to
transfer from Amihan to Wigwam because he wanted to be entertained by a
hostess. Henry Chua, it will be noted, was well known to Wigwam hostess,
Ligaya Tamayo. Benjamin Ong was seen by her for the first time that
evening.
i) So while Chua enjoyed himself, Benjamin Ong was worried, as he pleaded
with Henry Chua in vain for more time to pay the obligation.
xxx xxx xxx
In People vs. Timoteo Olgado, et al (L-4406, March 31, 1952; 91 Phil. 908
Unrep.), the two accused were provoked to commit two murders because of
the indecent propositions made to the women by Jalumio and his
companions. For Mario Aninias, this is the mitigating circumstance of passion
and obfuscation or vindication of a grave offense to his wife. 74
In this regard, accused Benjamin Ong filed on October 10, 1973 before this
Court a Petition for New Trial and/or to Consider Case as Simple
Murder. 75 In this petition, Benjamin Ong's wife, Athena Caw Siu Tee Ong,
alleged in an affidavit an incident when her husband refused to allow her to
testify on during the regular trial in the lower court. She said that Benjamin
Ong suppressed it because it would be a source of "great shame" to their
family. Indeed, the records show how Benjamin Ong's counsel vainly
convinced him to tell it but he refused to do so. 76 Lately, Benjamin Ong has
changed his mind and has consented to his wife's divulging the story. Said
story simply consists of Henry Chua's proposal of love and attempted rape
allegedly committed on the person of Athena on April 15, 1971 which Henry
Chua asked in lieu of the payment of the gambling debt. However, this matter
is now academic because it would only tend to bolster the mitigating
circumstance that is analogous to passion and obfuscation, which we have
just considered in favor of the accused Benjamin Ong.
As We hereby sentence the two accused-appellants Benjamin Ong and
Bienvenido Quintos to suffer the penalty of reclusion perpetua, We affirm that
part of the decision under review, which sentenced them jointly and severally
to indemnify the heirs of the deceased Henry Chua in the amount of
P1,000.00; to pay moral damages in the amount of P50,000.00, and another
P50,000.00 as exemplary damages; and to pay their proportionate share of
the costs, as We find no reason to disturb the same.
Makalintal, C.J., Teehankee, Makasiar, Antonio, Esguerra, Muñoz Palma and
Aquino, JJ., concur.
Castro, J., concurs in the result.
Fernando, J., took no part.

IN VIEW OF ALL THE FOREGOING, the two accused-appellants Benjamin

Ong y Kho and Bienvenido Quintos y Sumaljag, are hereby found guilty
beyond reasonable doubt of the crime of murder with the attendant qualifying
circumstance of treachery, and the aggravating circumstances of evident Separate Opinions
premeditation and use of motor vehicle. These two circumstances are offset
by the mitigating circumstances of plea of guilty and one similar or analogous
to passion or obfuscation which are appreciated in favor of accused-
appellant Benjamin Ong who is hereby sentenced to reclusion perpetua.
BARREDO, J., concurring and dissenting:
Justices Teehankee and Makasiar, however, are of the opinion that the crime
committed by the two accused-appellants Benjamin Ong and Bienvenido
Quintos is kidnapping with murder and that the kidnapping was conceived for I fully concur in the finding in the main opinion of Mr. Justice Fernandez that
the purpose of extorting ransom, among other motives. The members of the herein accused-appellants Benjamin Ong y Kho and Bienvenido Quintos y
Court failed to arrive at a clear consensus on the existence of the Sumaljag are guilty of the murder of Henry Chua. The conspiracy among
aggravating circumstances of "nighttime" and "uninhabited place" (which Ong, Quintos and their co-accused which resulted in the killing of their victim
Justice Barredo, in his concurring and dissenting opinion, concluded do not in the early morning of April 24, 1971 appears proven in the record beyond
obtain in this case). reasonable doubt. So also the manner in which the offense was committed.
No less than Ong himself admits his responsibility for it. Indeed, I venture the
thought that this case could have been terminated earlier with the conviction
With respect to the accused-appellant Bienvenido Quintos, although no
of appellants were it not for the unjustified insistence of the prosecution to
mitigating circumstance can be appreciated in his favor, and he should
exact from them more than what I consider, in the light of the proven
therefore be sentenced to death, the Court hereby imposes upon him the
circumstances, to be demanded by justice and the public interest.
penalty of reclusion perpetua and not death, because of Our conclusion that
his co-accused-appellant Benjamin Ong should be sentenced only
to reclusion perpetua, and because Justice Barredo, in his concurring and At the arraignment, Ong's counsel made it plain that even as his client was
dissenting opinion, even concluded that Bienvenido Quintos is guilty only as entering a plea of not guilty, he was doing so with the intention to invoke the
an accomplice; and hence, in any event, We would not have the necessary ruling of this Court in People v. Felipe Yturriaga, (86 Phil. 535), meaning in
ten votes for the imposition of the death penalty upon said accused- effect that while Ong was willing to plead guilty to the murder charged in the
appellant. . information, he could not do so only because the accusation has not only
baselessly complexed it with kidnapping for ransom but alleged several
aggravating circumstances which he felt are unfounded, hence he would in
due time ask the court that he be credited with the mitigating circumstance of
the plea of guilty, after he shall have succeeded in showing that the
prosecution is making the charge against them appear graver than what they
have actually committed.
As it turned out later and as borne by the record, outside of the confessions
of the appellants and their testimonies in open court, the prosecution had no
independent evidence as to how the offense here in question was committed.
Indeed, from the very nature of the versions of the accused, which the
People accepts, regarding the manner in which Henry Chua died in their
hands, the same would have remained unknown to the investigating
authorities and the fiscal, where it not for the voluntary revelations contained
in said confessions. Notably no portion of Ong's confession has been
repudiated. Thus, it may be said that for the government, this would have
been no more than a plain case of murder qualified by treachery, which could
be deduced by the fact that when the corpse of Chua was disinterred, his
hands were tied at the back and his mouth was gagged, had not the accused
gone further than admitting that they had killed their prey. Whatever
qualifications of the killing appear now in the information, must have been
based by the Fiscal on his own conclusions from the facts furnished by the
appellants, not from the findings of any investigator. And unfortunately for the
accused, the Fiscal's conclusions, erroneous as they are, made the case
against them much graver than what it actually is.
The record shows that appellant Ong and the deceased Chua were close
friends and even distant relatives. For more than one year and a half they
were often together with some other friends of Chua, namely Go Bun Kin,
Marcelo Tanlimco and Ko King Pin. They used to gamble — play mahjong —
with the peculiarity that the constant loser was Ong. His losses mounted to
close to P150,000, and at the time of the killing of Chua, Ong still owed him
P50,000. Things came to a point that in the mind of Ong, he suspected that
he was being cheated and Chua was the culprit. On the other hand Chua
was assiduous in demanding payment of his winnings. So much so that
about one month before the tragic occasion in question, Chua, accompanied
by the other players aforenamed, went to the offices of Acme Shoe and
Rubber Products, where Ong was employed as assistant manager, and
demanded, shouting and gesturing in the process, payment of the P50,000.
This incident humiliated Ong because it happened in the presence of his
superiors and subordinates; he had pleaded with his visitors not to create
any scandal, but they persisted; Ong lost face; his brother-in-law, the owner
of the firm admonished him that the responsible position he was occupying
should be spared from such "scandals". Things became harder and harder
for Ong to bear he had to resign. Ko King Pin had subsequently returned to
that office two or three times, at the instance of Chua, on which occasions,
he did not only demand payment, he suggested to Ong that Chua was not a
man to be angered; and Ong had every reason to believe the veiled threat,
since Chua used to brag to him about violent incidents where he was
involved; in fact, Chua told him once "You do not have money, why do you
have to gamble? Are you not ashamed of yourself? If you treasure your life,
you better pay first." Thus cornered, Ong turned to all his sources of funds,
but even his usual lenders were no longer available.
On April 21, 1971, Chua called him by phone and in angry tones informed
him that the check he (Ong) had issued in payment of his gambling losses
had been dishonored by the bank. Chua threatened to "turn over the check
to other people who will not be courteous anymore." And Chua demanded
that they meet at Amihan Night Club on April 23, 1971, and that Ong should
bring the money with him. The chosen hour: 9:00 p. m.
Evidently facing a dead end in his effort to raise the necessary funds, the
thought of doing away with the life of Chua when they would meet that night
recurred to his mind. He had been previously crying over the shoulders of
another close friend, his co-accused Fernando Tan, and the latter had
broached the idea, "Why not just kill him." In fact, Tan agreed to take part in
the killing. As related in the People's brief:
... A week before April 23, 1971, Fernando Tan phoned his
friend Bienvenido Quintos at the latter's office at Robes
Francisco Realty and made an appointment with him
whereat they discussed the plan of Ong to which Quintos
agreed (tsn., p. 4, Sept. 22, 1971; Quintos' answers to Nos.
7-9 in his second sworn statement [Exh. Q], rec., p. 61).
Soon, the trio (Ong, Tan and Quintos) met at the Barrio
Fiesta Restaurant at Caloocan City and after eating dinner,
they left and bought a shovel and pick at hardware store
somewhere at Rizal Avenue Extension Caloocan City (Ans.
to Q. No. 13, Exh. Q. rec., p. 62). From there, and using
Ong's car, the trio proceeded to Novaliches to look for a site
where to bury their intended victim. Ong selected a particular
place, saying "Ito ang mabuti", after which they returned to
Caloocan City and parted ways (Ans. to Q. No. 16, Exh. Q,
rec., p. 62). On the following evening, the trio met again at
the Barrio Fiesta Restaurant and at this meeting, they were
joined by Baldomero Ambrosia alias "Val", a former Acme
employee and a godson of Ong by marriage (tsn, p. 31,
Sept. 22, 1971; Exh. R, rec., p. 65). After eating dinner, they
all rode on Ong's car and proceeded to the site in
Novaliches, selected the previous day by Ong (Ans. to Q.
No. 17, Exh. Q, rec., p. 62). Upon reaching the site, Ong
opened the back compartment of his car and instructed Val
 to get the shovel and pick. The four walked for a distance of
about thirty meters from the road, after which Val was
instructed to dig a hole. With Quintos holding a flashlight, Val
dug the hole while Tan and Ong watched the digging, after
which they covered the hole with fresh twigs. Thence they
returned to Caloocan City where they separated (Ans. to Q.
No. 18, Exh. Q, rec., 62).
Regarding what happened immediately before, during and after the meeting
of Chua and Ong at Amihan at 9:00 p.m., April, 23, 1971, I find the following
conclusions of the trial court to be supported by the evidence, except as to
(1) one aspect of that meeting at Amihan, for whereas the decision simply
says that Chua and Ong met, it omits the pivotal relevant point that it was the
deceased who fixed the time and place of said meeting and (2) the existence
of the alleged ransom note, which does not appear to be clearly established,
as will be discussed later:
On April 20 or 21, 1971, Benjamin talked to Henry Chua over
the telephone. They agreed to meet at the Amihan Nightclub
on Roxas Club Blvd., Parañaque, Rizal, at around 9:00
o'clock in the evening of Friday April 23, 1971. The stage
was set for the carrying out of his plans, so on April 22,
1971, Benjamin Ong contacted Clarita Teh of the Skyways
Travel Agency and requested not only booking but also the
preparation of his travel papers, destination — Taipei.
Obviously, this was a necessary step to insure his escape
immediately after the execution of his plan to kidnap and
murder Henry Chua.
At 7:30 o'clock, in the evening of April 23, 1971, Benjamin
Ong met Fernando Tan, "Val" and Bienvenido Quintos at the
Barrio Fiesta in Caloocan City. There the plans of the group
were finalized and after dinner they proceeded to Amihan
Nightclub.
Benjamin Ong joined Henry Chua inside the Club while
Fernando Tan, Val and Quintos remained in Ong's Biscayne
car and waited outside the club. A short while later,
Benjamin Ong came out of the Amihan Nightclub and told
Fernando Tan to come inside. Obviously, this was a
necessary step to enable Fernando Tan to know the identity
of the intended victim. Quintos and Val remained in the car.
Sometime later, Fernando Tan came out of the Amihan
Nightclub and asked Quintos to go with him to the Wigwam
Nightclub which is next door to the Amihan Nightclub.
After plying Henry Chua with brandy inside the Amihan
Nightclub, Benjamin Ong, on the pretext that the hostess of
his acquaintance was not there, urged the former to move to
the Wigwam Nightclub. There they tabled two hostesses
known to them, one of them being Ligaya Tamayo. Ong
continued to ply Henry Chua with brandy. In the meanwhile,
Fernando Tan and Quintos took a separate table inside the
Wigwam Nightclub so they could watch Benjamin Ong and
Henry Chua when they start to leave the place. At around
1:30 a.m., April 24, 1971, Henry Chua and Benjamin Ong left
the Wigwam Nightclub and got into Henry Chua's Mustang
car, Fernando Tan and Bienvenido Quintos followed and got
into Ong's Biscayne car, and when the Chua car passed by,
they followed, with "Val" driving the Biscayne.
The Chua car left the Wigwam Nightclub in Parañaque,
Rizal, proceeded through Manila, passing Quezon Bridge,
then to Quezon City passing Quezon Boulevard Extension,
passed Sto. Domingo Church, where it made a U-turn and
then turned right on a dirt road leading to Del Monte Avenue.
Reaching a paved portion of the road leading to Del Monte
Avenue, Ong told Chua to stop the car on the pretext of
wanting to urinate. As soon as Ong got out of the parked
Chua car, Val parked the Biscayne car ahead of the
Mustang, blocking its way, and Fernando Tan and Val
alighted. They proceeded to the parked Mustang car where
Fernando Tan poked a gun at Henry Chua and Val opened
the door at the driver's side and dragged Henry Chua from
the Mustang car and forced him into the back seat of the
Biscayne car. Henry Chua was then forced to lie down face
up on the floor of the car while his hands and feet were
bound by Fernando Tan with pieces of rope and a flannel
cloth tied over his mouth to gag him. Benjamin Onggot be
behind the wheel of the Mustang car and followed the
Biscayne car which had started to move towards Novaliches.
Arriving at the site previously chosen in Barrio Makatipo,
both cars stopped. Fernando Tan and Benjamin Ong, having
alighted from the cars they were riding in, talked, while Val
pulled Henry Chua out of the Biscayne car. Ong then took a
shovel and a flashlight from the trunk compartment at the
back of the Biscayne car. He handed the shovel to Quintos.
The rope binding Henry Chua's feet was untied, but his
hands remained tied and his mouth was still gagged as the
accused led him to the site where a hole had previously
been dug out.
 At that place, Henry Chua's hands and mouth were untied
and ungagged, although Fernando Tan held his gun pointed
at Henry Chua's head. He was then ordered to copy a
prepared ransom note directing that $50,000. ransom money
be paid. Henry Chua complied, but pleaded "Huwag ninyo
akong patayin, ha?" to which Fernando Tan answered,
"Pabayaan mo, makauuwi ka." Henry Chua's hands were
again tied in front of him and the gag over his mouth tied
again. He was made to lie on the ground, face up. Benjamin
Ong then handed the icepick to Fernando Tan and said
"Patayin na iyan!" Fernando Tan handed the icepick to Val,
who in turn, handed it to Quintos. But Quintos, obviously did
not have the nerve to kill Chua, justifying his inaction by
saying he had no grudge against Chua. Fernando Tan then
grabbed the icepick uttering the words, "Hindi ka pa pala
puede." The flashlight was then handed by Tan to Val who
focused it on Henry Chua's breast. Fernando Tan then
stabbed Henry Chua twice with the icepick. The body of their
victim was then to dragged to the prepared hole, Val pulling
the body while Quintos was holding the legs, and dumped in
a crouching position, face down, with the tied hands held in
front of his breast. The hole was then covered with soil, then
the mound stomped on by Benjamin Ong.
Benjamin Ong and Fernando Tan boarded the Mustang
while Quintos and Val rode in the Biscayne car. With Ong
driving the Mustang and Val the Biscayne they proceeded to
Barrio Tibag Baliuag Bulacan, where the Mustang car was
locked and abandoned near a Shell gasoline station. All four
then returned to Manila in Ong's Biscayne car. They parted
from each other's company at around 7:00 o'clock in the
morning of April 24, 1971. On the following days, both
Benjamin Ong and Bienvenido Quintos reported to their
respective place of work as if nothing sinister had taken
place. (Appellant's Brief [Ong], pp. XIV-XIX)
In connection with the meeting at Amihan, the only evidence on record as to
how the place and time thereof were fixed is the following portion of Exhibit
N, the extrajudicial confession of Ong:
30. Q. What did you do after you were embarrassed and
degraded as you mentioned?
A. Sometime on April 20 or 21, 1971, HENRY CHUA called
me up by phone at my office and it was at this time that I
decided to kill him. He asked me when I could make
settlement of my obligations and he asked me if I am
available on Friday, April 23, 1971 to see him at AMIHAN
CLUB at Roxas Blvd. and I said yes, promising that I would
pay him. (Appellant's brief [Ong], No. 30, p. 22)
It was Chua then who set such place and time. As will be elucidated later,
this particular detail is decisive in determining whether or not appellants
purposely sought the cover of the night's darkness in committing the crime
for which the State is demanding atonement with their own lives.
With respect to the supposed ransom note, I must make it clear at the outset
that in my view of the case at bar, it is of no significant consequence whether
or not there was in fact such a note. But if it could be in any sense material, I
would subscribe to the view in the main opinion that its non-production
considerably impairs credence as to the possibility of its actual existence.
And as I will explain at a more appropriate place in the subsequent
discussion, the other related circumstances extant in the record tend to belie,
in my opinion, that anything about ransom was ever taken up on the
occasion in question.
Subject to the foregoing reservations, I would say that the basic conclusions
of fact of the trial court find ample support in the evidence before it. Indeed,
in the light of said facts, it is beyond reasonable doubt that appellants Ong
and Quintos should be held criminally responsible for the killing of Henry
Chua. And from what I gather from appellant Ong's position since the time he
was investigated by the agents of the National Bureau of Investigation, he is
not shirking that responsibility.
Insofar as appellant Quintos is concerned, while he admits having been with
his co-accused when Chua's life was taken, he claims that his part in the
whole affair was either innocuous or impelled by uncontrollable fear. At least
one damaging point, however, is quite clear in his own testimony. He admits
having been handed the ice pick for him to kill Chua, and although he claims
he refused to use it, he has not proven that he exerted an effort to dissuade
his companions from completing and accomplishing their criminal design. At
any rate, the discussion and finding in the main opinion that Quintos was one
of the conspirators has sufficient basis in the record to warrant his conviction,
and I concur therein, even as I do not share the conclusion, as I will presently
point out, that he and Ong deserve the extreme penalty of death.
His Honor held that the crime committed by appellants is kidnapping for
ransom with murder, an offense ineludably punished precisely with death.
Even for kidnapping for ransom alone, such is the enexorable penalty
provided by law. (Article 267, Revised Penal Code, as amended by Republic
Act 1084.) The pertinent provision reads thus:
 The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting ransom
from the victim or an other person, even if none of the
circumstances above-mentioned were present in the
commission of the offense.
However, I concur fully in the main opinion that such holding is completely
erroneous and cannot be upheld.
As Mr. Justice Fernandez very well point out, it is basic and elementary that
the essence of the crime of kidnapping under Article 267 of the Revised
Penal Code is detention. Indeed, from the very beginning of Philippine
jurisprudence in Volume I of the Philippine Reports, the Supreme Court
already took the view that taking the victim from his home to a suitable place
and then and there killing him evinces no shade of illegal detention, since it
would not appear that the intention is to deprive him of his liberty, but rather
of his life. (United States vs. Ancheta, 1 Phil. 165, 169.) There has been no
ruling otherwise since then.
It is to my mind incorrect to say that in the two Parulan cases, Parulan vs.
Rodas, 78 Phil. 855 and People vs. Parulan, 88 Phil. 615, this Court held that
the offense of kidnapping or illegal detention can be complexed with the
crime of murder pursuant to Article 48 of the Revised Penal Code when it is
shown that the purpose of the apprehension and detention of the victim is to
take him to the place of killing, as where the kidnapping is resorted to as a
means for his killing, thereby overruling the doctrine in Ancheta, supra. I have
read and studied both Parulan decisions, but I cannot find therein anything
along the legal proposition suggested. This is what appears in Justice Feria's
opinion in the first case:
From a cursory examination of the foregoing it clearly
appears that the crime charged is kidnapping and murder
and the former was committed by the defendants as a
necessary means "for the purpose of extorting ransom from
the victim or killing him if the desired amount of money could
not be given," that is, that the defendants had to kidnap or
carry the victim to a faraway and secluded place in order to
better secure the consent of the victim through fear to pay
the ransom, and kill him with certain sense of impunity and
certainty that no other person may witness the commission
of the offense by the defendants if the victim refuses to
accede to their demand, and that in fact he was killed by the
defendants because of his refusal to pay the ransom.
And this is what Justice Pablo said in the second case:
La contencion de due el Juzgado de Primera Instancia de
Manila no tiene jurisdiccion sobre la causa, ya esta resuelta
por este tribunal en Parulan contra Rodas, 78 Phil., 855. En
dicho recurso el acusado impugno la jurisdiccion del
Juzgado de Primera Instancia de Manila, alegando que el
secuestro y asesinato son dos distintos crimenes; que el
asesinato se cometio en Bulacan y, por tanto, el juzgado de
esta provincial es la que tenia jurisdiccion exclusive sobre la
causa. Este Tribunal dedaro que el crimen denunciado es el
delito complejo de secuestro conase asesinato; que el
secuestro se realizo como medio necesario para arrancar
dinero de la victima o matarle si la cantidad pedida no lo
diese; que cualquier juzgado de primera instancia en que se
haya cometido cualquier elemento esencial de dicho crimen
complejo tiene jurisdiccion; y se denego la solicitud.
What is to me clear from these quotations is that it is the element of demand
for ransom and subsequent frustration in getting the same existing in Parulan
that makes the difference between it and Ancheta, wherein said element was
absent. Which is understandable, because when the purpose of the
kidnapping is ransom, the offender would necessarily have to detain his
victim while waiting for the result of the demand, and kill him only in case
such result is negative. In other words, in Parulan the kidnapping was
definitely for ransom and not necessarily to kill, whereas in the instant case it
was solely to kill. When the sole purpose of the kidnapping is to kill, I
maintain that the Ancheta ruling still holds, precisely because in such a case
the intent to commit detention which is the essence of kidnapping is absent.
Strikingly parallel, indeed, to the circumstances of the case at bar were those
of Ancheta. Said the Court therein:
Furthermore, in view of the nature and circumstances of the murder for which
this cause is prosecuted it is evident that the fact that the deceased was
captured in his house and taken by the defendants to an uninhabited place
selected by them for the purpose of killing him there, does not constitute the
crime of illegal detention, since it does not appear that it was the purpose of
the accused to commit this offense. On the contrary they seized the
unfortunate Quinto in his house with the sole object of carrying him away to a
suitable place, which they subsequently pointed out to the authorities, and of
there murdering him.
A careful review of the evidence in this case fails to show any indication that
Ong and his co-accused ever entertained the thought of detaining the
deceased for ransom. It is true a certain Patrolman Marciano Roque of the
Caloocan City Police testified regarding alleged conversations he had with
Ong wherein the latter supposedly revealed to him a plan to kidnap Chua for
ransom. Let us hearken in this connection to the findings of the trial judge
himself:
... The first witness presented was Pat. Marciano Roque of
the Caloocan Police Department. He testified to having
known Benjamin Ong for more than five years as the latter
was the Assistant Manager of the Acme Shoe, Rubber and
Plastic Corporation, a company situated in Caloocan City
owned by Chua Pak Ong's brother-in-law. Sometime during
the first week of April, 1971, he went to the Acme office to
get a pair of rubber sandals and was there met by Benjamin
Ong who invited him to ride in his car and there revealed his
plan to kidnap a person whom he believed had cheated him
in a gambling game. The witness dissuaded the accused
Benjamin Ong from carrying out his plan but the latter
persisted and reiterated his request for assistance during the
several meetings which followed. On one occasion,
according to this witness, he was taken to Barrio Makatipo,
Caloocan City, by Benjamin Ong and shown the place where
said accused intended to bury the person he was planning to
kidnap and kill. Benjamin Ong tried to convince the witness
to join in his plan to effect a kidnapping by assuring him that
he already had a completed plan, that a godson of his would
also help out, and that the father of the intended victim was
very rich and that from the ransom money they would
receive from the father of the victim, the witness could
already leave the police force and retire. Witness also
testified that he tried his best to avoid Ben Ong, and at their
last meeting urged him to forget the whole thing. Although he
informed Capt. Duenas and Lt. Manabat of the Caloocan
Police, and still later Chief of Police Celestino Rosca of
Benjamin Ong's plan, he did not know the identity of the
intended victim until the first week of May, 1971 when he
was called by Chief of Police Celestino Rosca who informed
him that a Chinaman by the name of Henry Chua was
missing and that Benjamin Ong was being sought be the
NBI. ... (Pp. III-IV, Appellant's Brief [Ong].)
One does not have to tarry for more than a moment to see how preposterous
Patrolman Roque's testimony is. What immediately strikes me is that
allegedly Ong did not only confess to him his diabolical plan to kidnap Chua
for ransom, Ong actually invited Roque to join in the commission of such
capital offense. If such testimony were in any way true, I am sure the present
case would not have come to be at all — Chua would not have been killed
and Ong would probably have long been in jail for a non-capital offense
initiated by no less than the Caloocan City Police. For I cannot conceive of a
faithful and loyal policeman to whom a proposal to commit such a heinous
crime can be made without his taking corresponding action in the public
interest, just as it is for me difficult to imagine how Ong or any man could
have had the courage and audacity to even merely suggest such an idea to a
member of the police, there being nothing in the evidence showing that such
a close and intimate relation existed between them to permit that a matter so
strictly personal and confidential in nature be discussed by them just like that.
The thing becomes more absurd and ludicrous when it is considered that
Patrolman Roque added that he had sort of reported Ong's proposal earlier
to his superiors Captain Duenas and Lieutenant Manabat and later to the
Chief of Police himself, Celestino Rosca. One has to be completely naive to
believe that these high officers of the Caloocan City Police just laughed off
the report of Patrolman Roque merely because allegedly Ong did not reveal
to him the name of the intended victim, even if it was already apparent to
Roque that Ong was really serious and persistent in his proposal. The Court
has consistently refused to give any credit to testimonies that on their faces
do not accord with the ordinary experience of man and the usual course of
official conduct, and surely, in my opinion, We must reject this one for being
obviously a pure canard. Indeed, if only so that the police in this country are
made aware of the necessity for all of them to always act consistently with
the demands of public interest on occasions similar to the present one,
wherein a policeman either imposes upon the good faith of the court by
telling it a cock-and-bull story or reacts to an invitation for him to take part in
the commission of a capital offense as if it were nothing more casual than a
personal and private matter to him, I feel that the record of the testimony in
question should be brought to the attention of the National Police
Commission.
But even if there were a way of considering the said testimony as true, still,
the fact would be that whatever proposition it was that Ong made to
Patrolman Roque, nowhere in the record has it been demonstrated that Ong
ever carried out the same either alone or together with his co-accused in this
case, much less with the assistance of Roque which admittedly was never
given. There is neither testimony of any witness nor statement of any of the
accused indicating any link between Tan's alleged act of making Chua copy
a ransom note and sign it and Ong. If such a link could be a matter of
inference or something covered by the rule that the act of any of the
conspirators constitutive of an inculpatory element or circumstance of the
offense is the act of all, the conspiracy being proven, this legal conjectures
would be patently belied by the undisputed proof to the effect that, as found
by His Honor, after Chua had prepared and signed the supposed ransom
note, and even as he was pleading "Huwag ninyo akong patayin, ha?" and
Fernando Tan was assuring him "Pabayaan mo, makauuwi ka", his (Chua's)
"hands were tied again and the gag over his mouth tied again. He was made
to lie on the ground face up. Benjamin Ong then handed the ice-pick to
Fernando Tan and said "Patayin na iyan" ", and without further loss of time, it
was so done. In other words, even assuming arguendo that Ong had ever
made a proposition to Patrolman Roque to join him in a kidnapping for
ransom, the fact is that idea never passed the stage of a mere proposal,
hence is not punishable under Article 8 of the Revised Penal Code, and what
actually was committed by Ong and his companions was no more than
murder, the ransom idea, if it was ever thought of, having been abandoned
completely at least insofar as Ong was concerned. The prosecution did not
present any evidence, presumably because there was none, that anybody,
not to speak of the members of the Chua family, one of whom, Sy Giap, a
brother of the deceased, testified at the trial, ever received a demand for
ransom from any of the accused.
The following, therefore, rule out the possibility that there was an element of
ransom in the taking of Chua to the place of his killing: (1) The evidence of
the prosecution that such an idea was in the mind of Ong days before April
24, 1971 is utterly incredible, being unnatural and contrary to human
experience and official comportment of the most simple minded policeman
(2) the non-production of the alleged ransom note has not been explained at
all; (3) indisputably no demand was ever made upon anyone for the payment
of any ransom; and (4) the trial court found, and this finding is firmly borne by
the evidence presented by both parties at the hearing, that Ong evidently
paid no heed to the supposed preparation or copying and signing of the
alleged ransom note, as on the spot he resolutely, impatiently and curtly
directed his co-accused, "Patayin na iyan", without regard to the alleged
ransom note, which, to be sure, does not appear to have been talked about
then by the accused at all.
In view of the foregoing, I am totally convinced that the offense committed by
the accused in the instant case cannot be more than murder; certainly, it was
not kidnapping for ransom with murder. Thus, the only question that remains
to be determined is, were there any circumstances attending the commission
of the offense or related thereto that could legally be considered as mitigating
or aggravating the same for purposes of imposing the appropriate penalty?
According to the information, the murder in question was qualified by
treachery and that it was attended by the following generic aggravating
circumstances: (1) evident premeditation; (2) grave abuse of confidence; (3)
nighttime; (4) use of motor vehicle; (5) use of superior strength and (6)
cruelty. But as earlier stated, at the arraignment, appellant Ong offered in
effect to plead guilty to murder, instead of to kidnapping for ransom with
murder, and challenged the propriety of the aggravating circumstances thus
alleged. In convicting the appellants of kidnapping for ransom with murder,
the trial court appreciated against them the aggravating circumstances of
nighttime, despoblado or uninhabited place, abuse of confidence, use of
motor vehicle and cruelty. Additionally, in His Honor's own words, it was his
finding that "the killing of the victim was qualified by evident premeditation. ...
The killing of Henry Chua was, therefore, also qualified be the circumstance
of treachery or alevosia", hence, neither of these two circumstances was
considered as generic aggravating. And with respect to the submission of
appellant Ong that applying the doctrine in Yturriaga, supra, he should be
credited with the mitigating circumstance of plea of guilty, the learned trial
judge disposed of the contention as follows:
In a manifestation filed before entering trial, the accused
Benjamin Ong reiterated the fact that he entered a plea of
"not guilty" to the information as read to him, but invoked the
doctrine in the case of People vs. Yturriaga, 86 Phil. 534,
539, that the prosecution may not nullify the mitigating
circumstance of a plea of guilty and deprive the accused of
the benefit of such a plea, by counter-acting it with
unfounded allegations' of aggravating circumstances in the
information.
This Court, however, believes that the Yturriaga doctrine
cannot be invoked in this case in view of the conclusion
reached that the crime committed was the complex offense
of kidnapping with murder for which the law prescribes the
indivisible penalty of death. Furthermore, having reached the
conclusion that five aggravating circumstances attended the
commission of the crime, even if the plea of guilty to simple
murder were to be credited in favor of the accused Benjamin
Ong, the same will not suffice to offset entirely the impact of
the aggravating circumstances which impel this Court to
impose the maximum penalty prescribed by the law even if
the crime committed were only murder.(Appellant's brief
[Ong] p. XXXIII.)
It is my considered view that the trial court erred in the appreciation of the
different circumstances attending the killing of the deceased, except as to the
aggravating circumstance of use of motor vehicle, which appears to have
been properly taken into account. I do not see sufficient basis, whether in fact
or in law, for His Honor's appreciation of the circumstances
of nocturnidad and despoblado just as I concur in the main opinion in
rejecting also abuse of superior strength and cruelty, for the reasons therein
given to which I find it unnecessary to add any. I also concur in that instead
of using both alevosia and evident premeditation as qualifying
circumstances, one of them, evident premeditation should be considered as
a generic aggravating circumstance. In other words, my conclusion at this
point is that only two aggravating circumstances may be appreciated against
appellants, namely, evident premeditation and use of motor vehicle. I hold
further that nocturnidad and despoblado may not be so considered, and I
submit the following considerations in this regard:
Anent the aggravating circumstance of despoblado in United States vs.
Salgado, 71 Phil. 56, the Supreme Court of the Philippines quoted
approvingly the definition of an uninhabited place contemplated in Article 14
(6) of the Revised Penal Code given by the Supreme Court of Spain in its
decision of January 9, 1884 to the effect that it "is one where there are no
houses at all, a considerable distance from town, or where the houses are
scattered a great distance from each other." (at p. 58) Such that "in order that
depoblado may be aggravating, it is necessary that the proofs show
affirmatively that the crime was committed in an uninhabited place." (Aquino,
Revised Penal Code, Vol. I, p. 306) Thus, in a parricide case where the
distance of the houses to the scene of the crime was not shown, this Court
held that despoblado could not be appreciated as aggravating. (United
States vs. Ayao, 4 Phil. 114) This is how Justice Mapa puts it:
The prosecution says that the murder was perpetrated in an
uninhabited place, and with the concurrence of this
aggravating circumstance asks that the penalty of death he
imposed upon the appellants. We do not agree with this
view, although the complaint establishes that the place
called Denden, where the crime was committed, is
uninhabited; the evidence in the case does not prove
sufficiently that it was really so. The only witness who was
interrogated about this matter was Faustina Bobiles, who
testified that at the place in question "there are houses,"
although the are at a distance from the site where the
deceased was wounded. This distance not being clearly
specified, there is not a good basis from which to determine
accurately whether the site was inhabited or not, and the
defendants should he given the benefit of the doubt.
In the case at bar, the scene of the crime, according to the prosecution, is an
"abandoned subdivision." To start with, that expression by itself already
negates the idea of a place "where there are no houses at all, a considerable
distance from town." A subdivision is designed as a place for habitation and
to refer to it as abandoned is often an exaggeration, unless the exact import
of the word is explained. It is true, in testifying about the reenactment, one of
the NBI Investigators, Enrique Lacanilao, mentioned that there were no
houses there. But such a casual statement does not convince me of its
accuracy and positiveness, to warrant the finding that the aggravating
circumstance in question may be held to legally exist. Even the fact that Ong
did mention in his confession that he considered the place "ideal" because it
was "abandoned and uninhabited" is not to my mind indicative enough that
said appellant's use of the term uninhabited is precisely what the law
connotes. Besides, if precision of language is to be taken into account, Ong
did not refer to the place as "ideal" for killing Chua, but, to quote him exactly,
"to bury him." (Exh. N) The pictures taken during the reenactment which, in
the words of His Honor, shows "trees, lush vegetation and thick cogon
grasses hide the place", cannot be conclusive, taken as they have been
about five months after the happening at issue. In any event, considering that
the appreciation or non-appreciation of this aggravating circumstance, which
notably was not alleged in the information, could spell the difference between
the imposition of either reclusion perpetua or death upon the accused herein,
I would rather give appellant the benefit of my doubt by making the finding
that would not make the consequence of any mistake of mine in connection
therewith irretrievable.
Similarly, I am not sufficiently persuaded that the trial court properly
appreciated the aggravating circumstance of nocturnidad. Earlier, I have
punctualized the circumstance clearly established in the record that it was
the victim, Henry Chua, who specified the place and the time of Ong's
meeting with him at Amihan on that fateful night of April 23, 1971. This point
is to my mind important because "nocturnity is not necessarily an
aggravating circumstance, and the same should be taken into consideration
according to the circumstances surrounding the commission of the crime.
Where it is not evident that the defendants had purposely sought the
nighttime to perpetrate the crime, nocturnity cannot be considered as an
aggravating circumstance. While it is true that the defendants in the case
under consideration killed the deceased about eight o'clock at night, it is not
shown that they purposely sought this hour for this purpose." (United States
vs. Balagtas, 19 Phil. 164, 173.) My impression from all the circumstances
disclosed by the evidence surrounding the commission of the offense in the
instant case is that it would not have mattered to the deceased whether the
killing was to take place at night or in the daytime. Even if the place which the
accused had chosen to be "ideal" for their purpose, may not, as I have
demonstrated, be considered in the criminal law as "uninhabited" for purpose
of its being an aggravating circumstance and hence may not be deemed to
have afforded them the sense of impunity contemplated in the law, as
regards nighttime, there is no indication at all that they actually deliberated
on the necessity or convenience of waiting for the cover of the night's
darkness in carrying out their plan.
I am not unaware that Balagtas was decided under the aegis of the Old
Penal Code which provided in Article 10 (15) that nocturnity, band or
despoblado "shall be taken into consideration by the courts according to the
nature and incidents of the crime" and that, on the other hand, Article 14 (6)
of the Revised Penal Code has eliminated that qualification and instead
considers it as aggravating "that the crime be committed in the nighttime, or
in an uninhabited place or by a band, whenever such circumstances may
facilitate the commission of the offense." In fact, there are decisions of this
Court justifying the appreciation of nocturnidad as aggravating even when,
without purposely seeking the night's darkness to commit the crime, the
offender "had taken advantage of it in order to facilitate the commission of
the crime or for the purposes of impunity." (Cases cited in Aquino, op. cit. at
pp. 301-304; Padilla, Criminal Law, Vol. I, 1974 ed. pp. 377-383.) But
in People vs. Matbagon, 60 Phil. 887, Justice Vickers spoke for the majority
of the Court thus:
The next question is whether or not nocturnity should be
taken into account as an aggravating circumstance in this
case.
No. 15 of article 10 of the Penal Code provided that it was an
aggravating circumstance that the crime be committed in the
nighttime, or in an uninhabited place, or by a band of more
than three armed men (en enadrilla); that this circumstance
should be taken into consideration by the courts according to
the nature and incidents of the crime.
No. 6 of article 14 of the Revised Penal Code provides that it
is an aggravating circumstance that the crime be committed
in the nighttime or in an uninhabited place, or by a band,
whenever such circumstances may facilitate the commission
of the offense that whenever more than three armed
malefactors shall have acted together in the commission of
an offense it shall be deemed to have been committed by a
band.
There appears to be no material difference between the
provision of the Revised Penal Code and that of the Penal
Code. In construing the provision of the Penal Code relating
to nocturnity would be considered as an aggravating
circumstance only when it appeared that it was especially
sought by the offender or that he had taken advantage
thereof in order to facilitate the commission of the crime or
for the purpose of impunity.
It was said in the case of People vs. Trumata and
Baligasa (49 Phil., 192), that nocturnity should not be
estimated as an aggravating circumstance, since the time for
the commission of the crime was not deliberately, chosen by
the accused; that if it appears from the record that the
accused took advantage of the darkness for the more
successful consummation of his plans, to prevent his being
recognized, and that the crime might he perpetrated
unmolested, the aggravating circumstance of nocturnity
should be applied (U.S. vs. Billedo, 32 Phil., 574, 579).
In the present case none of the foregoing reasons exists for
appreciating nocturnity as an aggravating circumstance. The
attack made by the defendant upon the deceased was but a
sequel to the fight at the cockpit, which had taken place half
an hour before. If the defendant had killed the deceased in
the fight at the cockpit, probably no one could contend that
nocturnity should be appreciated as an aggravating
circumstance in that case. It would be purely accidental, and
so it was in the present case.
The Supreme Court of Spain in its decision of May 23, 1885
held that even in the case of robbery with homicide the fact
that the crime was committed at night is not to be
appreciated as an aggravating circumstance when it may be
inferred that the darkness was not intentionally sought or
taken advantage of, but intervened casually: "Considerando
que tampoco es de estimar en perjuicio de los mencionados
reos Oliva y Ruiz Bringas la circunstancia de haberse
ejecutado el delito de noche, que es la 15 del citado articulo
10, porque no surte efecto alguno legal en sentido de
agravar la pena imponible si los culpables no la han elegido
para realizar mejor sus malos propositos, o como medio de
conseguir la impunidad, lo cual no consta que hicieran
aquellos al matar y robar al Lopez, toda vez que hallandose
los tres con frecuencia en una habitacion independiente de
las demas que ocupaban otros vecinos, no parece queles
fuera necesaria una hora precisa para su perpetracion,
deduciendose sin gran esfuerzo que, si el delito se cometio
de noche, fue sin ser buscada exprofeso, interviniendo esa
circunstancia casualmente".
In its decision of January 25, 1888, relating to a tumultuous
affray at night, the same court held that the fact that the
offense was committed at night should not be regarded as
an aggravating circumstance, because it was not chosen or
sought for by the accused, but was purely accidental.
On the other hand, in its decision of April 14, 1888, the
Supreme Court of Spain held that the aggravating
circumstance of nocturnity should he appreciated when the
accused chose the nighttime or took advantage, of it to
commit the crime more easily or to secure his impunity.
Viada's comment on this question is as follows: "En aquellos
delitos, cuya naturaleza no empece a la apreciacion de la
circunstancia de la noche, habra que distinguir: cuando
 aparezca que el autor del hecho busco la noche, o por lo
menos se aprovecho de ella para facilitar la ejecucion del
delito, o lograr, a ser posible, su impunidad, debera
apreciarse esta circunstancia de agravacion; cuando
aparezca lo contrario, esto es, que la noche no ha sido
aguardada ni aprovechada con intencion por el delincuente
para ejecutar en ella el delito, en este caso no debera
tomarse en consideracion la circunstancia de nocturnidad,
que fue puramente accidental, para agravar la
responsibilidad del culpable." (2 Viada, 262, 5th ed.)
Justice Hull, with whom Justices Villareal and Butte concurred, wrote a
dissent 1 in which he argued that "The test fixed by the statute is an objective
one", and that "a subjective test (was) fixed by the majority opinion." To my
knowledge, this disparity of views as to whether the test should really be
objective or subjective has not been definitely resolved in any subsequent
decision of this Court. I wish this case were considered by the Court as the
appropriate one to lay down the law on the matter with more clarity, but since
it seems that not all my colleagues are disposed to go along such direction, I
would express my own considered view that as seemingly conceived by the
Old Penal Code, the test should be subjective.
As Justice Vickers elucidated in Matbagon, "to take advantage of a fact or
circumstance in committing a crime clearly implies an intention to do so, and
one does not avail oneself of the darkness unless one intended to do so." In
the quotation from Viada in that same case, it is important to note that he
makes it plain that in a case where "la noche no ha sido guardada ni
aprovechada con intencion por el delincuente para ejecutar en ella el delito,
en este caso no debera tomarse en consideracion la circunstancia de
nocturnidad. (Emphasis mine)
In the Court's per curiam decision in People vs. Boyles, G. R. No. L-15308,
May 29, 1964, 11 SCRA 88, this is what is said:
The lower court appreciated nocturnity against the
appellants solely on the basis of the fact on record that the
crime was committed at about 5:00 o'clock in the morning.
This particular finding can stand correction. By and of itself,
nighttime is not an aggravating circumstance. It becomes so
only when it is especially sought by the offender and taken
advantage of by him to facilitate the commission of the crime
to insure his immunity from capture (People v. Alcala, 46
Phil. 739; People v. Matbagon, 60 Phil. 887; People v.
Pardo, 79 Phil, 658). Stated differently, in default of any
showing or evidence that the peculiar advantages of
nighttime was purposely and deliberately sought by the
accused, the fact that the offense was committed at night will
not suffice to sustain nocturnidad. It must concur with the
intent or design of the offender to capitalize on the intrinsic
impunity afforded by the darkness of night.
In the case presently on appeal, We note that other than the
time of the crime, nothing else whatsoever suggests the
aggravating circumstance of nighttime. Not one of the
prosecution evidence, oral or documentary, makes the
slightest indication that the protection of night's darkness
was deliberately availed of by the appellants. In view of this
deficiency in the case for the Government, We are
constrained to disallow the said circumstance even as,
technically, it may have been accepted by them when they
pleaded guilty on arraignment.
I cannot really imagine how anyone can be criminally held responsible for
taking advantage of nighttime, when there is no evidence that the benefit or
gain to be derived from its darkness was in any way considered, much less
intended or designed by the accused, especially, when, as in the case at bar,
the thrust of the government's proof is that Ong was so bent on killing his
victim and, to my mind, would have cared less if he did it in the daytime.
There may be instances where the circumstances may indicate positively,
even in the absence of any words coming from the accused, that night is
being taken advantage of, but I am not ready to say that it is so in this case
under our consideration now.
Withal, following a decision of the Supreme Court of Spain (of February 28,
1884), this Court held in United States vs. Baguio, 14 Phil. 240, that the
appreciation of nocturnity as an aggravating circumstance (lies) in the
discretion of the court." I believe that the change I have referred to above in
the phraseology of the pertinent provision of our penal code has not deprived
the Supreme Court of that discretion, particularly where the question of
whether the death penalty should be imposed or not hinges on the opinion of
the Court as to the presence or absence of such aggravating circumstance.
For my part, therefore, after mature reflection and deliberation in the light of
the somehow unsettled construction of the specific pertinent penal provision,
I feel there is ample ground to hold, as I do hold, that the extant
circumstances of the killing here in question do not warrant the conclusion
that nighttime should be appreciated as having aggravated the crime
committed by the accused, for the simple reason that the record is bare of
any indication that the accused ever considered the advantage of nighttime
in the commission of the offense in question. In this connection, it might be
relevant to recall that in Boyles, supra, the accused had already pleaded
guilty to the information which charged nocturnidad, and still the Court, after
hearing the evidence, discarded the same for want of evidence of intent or
design in that respect.
Coming now to the contention of appellant Ong that he should be credited
with the mitigating circumstance of plea of guilty, I agree with the main
opinion that the contention is justified by the facts of record. To reiterate, this
appellant made it manifest from the start of the present proceedings in the
court below that in due time he would invoke Yturriaga, supra, because the
prosecution was indicting him for an offense much graver than what he had
committed and was furthermore alleging aggravating circumstances
unwarranted by the facts he had confessed to or could be proven. As it has
turned out, appellant's initial position as to the offense he has committed and
the circumstances attending the same is in the main the correct one. More
than that, if more effort had only been exerted by the fiscal to be as accurate
as possible in designating the offense imputable to the herein accused, the
absence of the element of ransom would have been obvious to him. It is not
fair to level against anyone a charge of having committed an offense
generally punishable with death, which in itself should cause uncalculable
mental torture, when with a little more deliberation and study, it should be
apparent that a lighter offense can sufficiently vindicate the public interest
involved. I do not mean to urge prosecuting officers to be unnecessarily
liberal. What I wish to discourage is over zealousness that can have unjust
and oppressive consequences. The touchstone of a democratic criminal
prosecution is nothing less than fairness in the charge, the trial and
conviction.
Section 4 of Rule 118 allows the accused, with the consent of the fiscal and
the court, to "plead guilty of any lesser offense than that charged which is
necessarily included in the offense charged in the complaint or information."
Under this provision, once the consent of the fiscal and the court is secured,
and upon the information being correspondingly amended, the accused
actually enters a plea of guilty, he is still entitled to the benefit of the plea of
guilty as a mitigating circumstance when the court sentences him for such
lesser offense, even if the offer, the amendment and the plea are made after
the prosecution has started its evidence, (People vs. Ortiz, 15 SCRA
352)albeit it may be mentioned that the reasoning pursued in this decision is
that after the amendment, the plea is to an entirely new information as to
which no evidence has yet been presented, thus adhering strictly to the
language of Article 13 (7) of the Revised Penal Code requiring that the
accused should have "voluntarily confessed his guilt before the court prior to
the presentation of the evidence of the prosecution." Where no evidence has
yet been presented by the prosecution, it is doubtless that the benefit of the
plea of guilty under the above provision inures to the accused. (People vs.
Intal, 101 Phil. 306.) In People vs. Noble, 77 Phil. 93, where the accused
offered to plead guilty to the lesser offense of homicide instead of murder
with which he was charged and the fiscal refused to agree, the Court held,
after finding the accused guilty of murder, that the mere offer to plead guilty
to homicide was not a mitigating circumstance.
In the case at bar, the Court is confronted with a situation in which the
appellant offered to plead guilty to precisely the lesser offense which he had
confessed to from the start of the NBI investigation before his arraignment.
That offer was rejected by the fiscal, who, we must presume, was already in
possession of all the evidence which he eventually presented to the court,
and which the court has found as not warranting at all the graver charge of
kidnapping for ransom with murder. Under these circumstances, I concur in
the main opinion that the following dictum in Yturriaga applies:
... It only remains to consider briefly whether the defendant's
plea of guilty in the form it was entered constitutes a
voluntary confession of guilt before the court as defined in
the same subsection of article 13. We think it does.
Although the confession was qualified and introduction of
evidence became necessary, the qualification did not deny
the defendant's guilt and, what is more, was subsequently
fully justified. It was not the defendant's fault that aggravating
circumstances were erroneously alleged in the information
and mitigating circumstances omitted therefrom. If such
qualification could deprive the accused of the benefit of plea
of guilty, then the prosecution could nullify this mitigating
circumstance by counteracting it with unfounded allegations
of aggravating circumstances.
The trial court refused to consider the foregoing ruling, taking the pragmatic
view that inasmuch as it had found the offense committed to be one
punishable with the indivisible penalty of death, and, even if it were murder,
there were five aggravating circumstances present, it was inconsequential to
discuss the applicability of Yturriaga as in the end it would not affect the
result. For the reasons I have already discussed above, it is evident that His
Honor's position cannot be sustained.
The main opinion also credits appellant Ong with a mitigating circumstance
analogous to passion and obfuscation. Indeed, in passing judgment over the
criminal responsibility of this appellant, it is but just that the Court should
consider the cause or reason that must have impelled him to have Chua's life
taken. After all, he is not asking to be absolved. He has freely confessed his
guilt; he is only seeking understanding of his motives, hopefully to secure
thereby whatever lightening effect the same may have on the penalty he
would have to undergo in atonement for his act. I am certain he does not
expect the Court to exempt him from criminal liability. In other words, he
refers to the reasons for his crime not to justify it, but only to show absence
of real depravity or any inherent criminal nature. If he did premeditate and
premeditating did persist in going ahead with his decision to kill his friend, the
urge was accidental, not inborn. The frequent and persistent demands for
payment of his gambling debts perhaps should have been expected, but the
manner in which these were made is something else. As already noted
earlier, such importunings bothered the boss of Ong, they annoyed and
"scandalized" Ong's co-workers in the office, to whom he lost face being the
assistant manager; so much so that he had to give up his job. Then there
were the veiled threats conveyed to Ong by Ko King Pin that Chua was not a
man to be provoked to anger, which Ong could not ignore, what with Chua's
own words, "If you treasure your life, you better pay first," and that he would
turn over Ong's bouncing check "to other people who will not be courteous
anymore." Not every man is given the equanimity and calmness needed to
withstand all these without breaking down inwardly and feeling oppressively
aggrieved. Under these circumstances, it would not be an exaggeration to
say that the urge in the feeling of appellant to kill his tormentor was less than
purely voluntary, which diminution is the basis of the mitigating circumstance
contemplated in Article 13 (5) of the Revised Penal Code.2 (Reyes, Criminal
Law, Vol. I, p. 250.) Indeed, rather than consider the motive behind Ong's
offense to be analogous to passion or obfuscation as the main opinion does,
I am more inclined to hold that the resolution to do away with the life of Chua
"surged from the resentment" of Ong over the importunings and threats of
Chua and his companions, and inasmuch as evident premeditation is being
appreciated against him, in the fashion of People vs. Guzman, et al. L-7530,
Aug. 30, 1958, he could be given, by analogy, the benefit of this mitigating
circumstance. Anyway, it can be considered alternatively with passion or
obfuscation, with which it cannot co-exist. (People vs. Doniego, 9 SCRA
541.)
There is no definite criterion of what is a grave offense for the purposes of
Article 13(5) of the Revised Penal Code. Each case should be decided
according to the peculiar milieu proven to have been the setting of the
offense. In People vs. Rosel, 66 Phil. 323, the Court held that the remark of
the injured party before the guests that the accused was living at the
expense of his wife was such an offense under this article. Where the injured
party had insulted the father of the accused by contemptuously telling him:
"Phse, ichura mong lalake" (Pshaw, you are but a shrimp), the accused was
held to have acted in vindication of a grave offense against his father. And it
matters not that the killing of Chua was not immediately after Ong was
humiliated, threatened and oppressed it being clear to me that the influence
of such importunings lasted until the commission of the offense. (People vs.
Parana, 64 Phil. 331.)
I realize that the circumstances I have pointed out cannot justify the killing of
Chua. But as I have already stated carrier, this discussion is not intended to
exonerate him. I have just looked, as it were, into the surely perturbed mind
of appellant in the night in question, to determine the degree of perversity
and criminal tendencies therein, and I am convinced that he was motivated
by the circumstances I have elucidated on rather than by pure criminality. At
this point, I am not even taking into account, because of procedural and
technical impediments, that appellant Ong has filed a motion for new trial
strongly indicating what at the trial he behemently refused to divulge for
reasons very personal to him, namely, that the deceased had made amorous
advances to his wife and attempted to rape her on April 15, 1971, which
Chua asked in exchange for her husband's gambling debt. No doubt, if the
wife had testified to such facts at the trial, appellant would be entitled to a full
credit of the mitigating circumstance under discussion.
There is an additional circumstance which to me is important in measuring
criminal responsibility of the appellants in this case. I refer to the pecularity
that were it not for the disclosures made by them in their confessions and
during the reenactment, the prosecution would have had no basis
whatsoever for its attempt, which the Court has frustrated by this decision, to
make them answer for the graver offense of kidnapping for ransom with
murder accompanied by the string of aggravating circumstances listed in the
information. One cannot easily commiserate with killers, but considerations of
human dignity and fairness demand that they are not made to undergo any
punishment more than the facts, the law and justice warrant. And the law is
inclined to be more liberal to those who after committing any offense evince
by their conduct some signs of remorse and resignation to accept the
penalties that they deserve, by admitting their guilt. But in the present case,
appellant Ong has gone further. He did not only confess he and his co-
accused killed the victim, he freely told his investigators exactly what
happened to its last details, thereby making himself subject to the charge of
aggravating circumstances, no other evidence of the government could have
supported, considering how and where the offense was committed and the
difficulty of securing witnesses for the State to testify thereon. As I have said
earlier, without the help of the appellants, this would have been no more than
a case of murder. In view of this consideration, I believe it would only he
consonant with existing rules in the appreciation of mitigating circumstances
that appellant Ong be credited with an additional mitigating circumstance
analogous to the plea of guilty.
As regards the case of appellant Quintos, I am struck by the evidence that at
the last moment he refused to do what he was assigned to do — stab the
victim. In other words, he did not carry out to its ultimate conclusion the
criminal design he had in common with his accused. Indeed, in my review of
the record I have not discerned any clear evidence of the specific
participation of this appellant in the commission of the offense in question. In
the brief of the Solicitor General, the only imputation to Quintos is that he
held the flashlight while Tan was making Chua prepare a ransom note and
that Quintos held the legs of the victim when his dead body was dumped into
the previously chosen hole for his burial. And there is a hint in the record to
the effect that. Quintos had his feet on top of Chua when the latter was being
taken to the place of killing. As to the alleged preparation of a ransom note, I
have already demonstrated, it has not been proven beyond reasonable
doubt. This is also the holding in the main opinion. As to the other acts
attributed to him, I am not satisfied of their conclusiveness. And having in
mind the undisputed desistance of this appellant, I would say that his
responsibility as principal does not satisfy my conscience. I hold him guilty
only as accomplice because his act of accompanying the other accused was
an act of cooperation short of direct participation. .
Accordingly, my vote is to find appellant Benjamin Ong guilty as principal of
the crime of murder, with the aggravating circumstances of use of motor
vehicle and evident premeditation although these are offset by the mitigating
circumstances of plea of guilty, passion or obfuscation alternatively with
vindication of a grave offense and the disclosure of all the details of the
offense that enabled the prosecution to allege aggravating circumstances
which otherwise could not have been known, which in my opinion is
analogous to the plea of guilty but separate and distinct therefrom. In
consequence, said appellant should suffer an indeterminate sentence of from
12 years of prision mayor as minimum to 20 years of reclusion temporal as
maximum, with the accessory penalties of the law.
Likewise, I find the appellant Bienvenido Quintos guilty of murder, but only as
an accomplice, with the aggravating circumstances of evident premeditation
and use of motor vehicle offset only by one mitigating circumstance similar to
that in the case of Ong which is analogous to the plea of guilty inasmuch as
Quintos also revealed details that the government would not have known
otherwise. Accordingly, he should be sentenced to 6 years of prision
correccional as minimum to 17 years and 4 months of reclusion temporal as
maximum, with all the accessory penalties of the law.
In all other respects, I concur in the dispositive portion of the main opinion.
Before closing, I would like to explain that I had to prepare this separate
opinion because I believe that in order for me to save any person accused of
a capital offense from the death penalty it must appear that from a
computation of the attending aggravating and mitigating circumstances, the
death penalty is not imposable. In other words, I cannot vote for less than the
extreme penalty of death when the Court finds that there are aggravating
circumstances not sufficiently offset by mitigating circumstances.
Separate Opinions
BARREDO, J., concurring and dissenting:
I fully concur in the finding in the main opinion of Mr. Justice Fernandez that
herein accused-appellants Benjamin Ong y Kho and Bienvenido Quintos y
Sumaljag are guilty of the murder of Henry Chua. The conspiracy among
Ong, Quintos and their co-accused which resulted in the killing of their victim
in the early morning of April 24, 1971 appears proven in the record beyond
reasonable doubt. So also the manner in which the offense was committed.
No less than Ong himself admits his responsibility for it. Indeed, I venture the
thought that this case could have been terminated earlier with the conviction
of appellants were it not for the unjustified insistence of the prosecution to
exact from them more than what I consider, in the light of the proven
circumstances, to be demanded by justice and the public interest.
At the arraignment, Ong's counsel made it plain that even as his client was
entering a plea of not guilty, he was doing so with the intention to invoke the
ruling of this Court in People v. Felipe Yturriaga, (86 Phil. 535), meaning in
effect that while Ong was willing to plead guilty to the murder charged in the
information, he could not do so only because the accusation has not only
baselessly complexed it with kidnapping for ransom but alleged several
aggravating circumstances which he felt are unfounded, hence he would in
due time ask the court that he be credited with the mitigating circumstance of
the plea of guilty, after he shall have succeeded in showing that the
prosecution is making the charge against them appear graver than what they
have actually committed.
As it turned out later and as borne by the record, outside of the confessions
of the appellants and their testimonies in open court, the prosecution had no
independent evidence as to how the offense here in question was committed.
Indeed, from the very nature of the versions of the accused, which the
People accepts, regarding the manner in which Henry Chua died in their
hands, the same would have remained unknown to the investigating
authorities and the fiscal, where it not for the voluntary revelations contained
in said confessions. Notably no portion of Ong's confession has been
repudiated. Thus, it may be said that for the government, this would have
been no more than a plain case of murder qualified by treachery, which could
be deduced by the fact that when the corpse of Chua was disinterred, his
hands were tied at the back and his mouth was gagged, had not the accused
gone further than admitting that they had killed their prey. Whatever
qualifications of the killing appear now in the information, must have been
based by the Fiscal on his own conclusions from the facts furnished by the
appellants, not from the findings of any investigator. And unfortunately for the
accused, the Fiscal's conclusions, erroneous as they are, made the case
against them much graver than what it actually is.
The record shows that appellant Ong and the deceased Chua were close
friends and even distant relatives. For more than one year and a half they
were often together with some other friends of Chua, namely Go Bun Kin,
Marcelo Tanlimco and Ko King Pin. They used to gamble — play mahjong —
with the peculiarity that the constant loser was Ong. His losses mounted to
close to P150,000, and at the time of the killing of Chua, Ong still owed him
P50,000. Things came to a point that in the mind of Ong, he suspected that
he was being cheated and Chua was the culprit. On the other hand Chua
was assiduous in demanding payment of his winnings. So much so that
about one month before the tragic occasion in question, Chua, accompanied
by the other players aforenamed, went to the offices of Acme Shoe and
Rubber Products, where Ong was employed as assistant manager, and
demanded, shouting and gesturing in the process, payment of the P50,000.
This incident humiliated Ong because it happened in the presence of his
superiors and subordinates; he had pleaded with his visitors not to create
any scandal, but they persisted; Ong lost face; his brother-in-law, the owner
of the firm admonished him that the responsible position he was occupying
should be spared from such "scandals". Things became harder and harder
for Ong to bear he had to resign. Ko King Pin had subsequently returned to
that office two or three times, at the instance of Chua, on which occasions,
he did not only demand payment, he suggested to Ong that Chua was not a
man to be angered; and Ong had every reason to believe the veiled threat,
since Chua used to brag to him about violent incidents where he was
involved; in fact, Chua told him once "You do not have money, why do you
have to gamble? Are you not ashamed of yourself? If you treasure your life,
you better pay first." Thus cornered, Ong turned to all his sources of funds,
but even his usual lenders were no longer available.
On April 21, 1971, Chua called him by phone and in angry tones informed
him that the check he (Ong) had issued in payment of his gambling losses
had been dishonored by the bank. Chua threatened to "turn over the check
to other people who will not be courteous anymore." And Chua demanded
that they meet at Amihan Night Club on April 23, 1971, and that Ong should
bring the money with him. The chosen hour: 9:00 p. m.
Evidently facing a dead end in his effort to raise the necessary funds, the
thought of doing away with the life of Chua when they would meet that night
recurred to his mind. He had been previously crying over the shoulders of
another close friend, his co-accused Fernando Tan, and the latter had
broached the idea, "Why not just kill him." In fact, Tan agreed to take part in
the killing. As related in the People's brief:
... A week before April 23, 1971, Fernando Tan phoned his
friend Bienvenido Quintos at the latter's office at Robes
Francisco Realty and made an appointment with him
whereat they discussed the plan of Ong to which Quintos
agreed (tsn., p. 4, Sept. 22, 1971; Quintos' answers to Nos.
7-9 in his second sworn statement [Exh. Q], rec., p. 61).
Soon, the trio (Ong, Tan and Quintos) met at the Barrio
Fiesta Restaurant at Caloocan City and after eating dinner,
they left and bought a shovel and pick at hardware store
somewhere at Rizal Avenue Extension Caloocan City (Ans.
to Q. No. 13, Exh. Q. rec., p. 62). From there, and using
Ong's car, the trio proceeded to Novaliches to look for a site
where to bury their intended victim. Ong selected a particular
place, saying "Ito ang mabuti", after which they returned to
Caloocan City and parted ways (Ans. to Q. No. 16, Exh. Q,
rec., p. 62). On the following evening, the trio met again at
the Barrio Fiesta Restaurant and at this meeting, they were
joined by Baldomero Ambrosia alias "Val", a former Acme
employee and a godson of Ong by marriage (tsn, p. 31,
Sept. 22, 1971; Exh. R, rec., p. 65). After eating dinner, they
all rode on Ong's car and proceeded to the site in
Novaliches, selected the previous day by Ong (Ans. to Q.
No. 17, Exh. Q, rec., p. 62). Upon reaching the site, Ong
opened the back compartment of his car and instructed Val
to get the shovel and pick. The four walked for a distance of
about thirty meters from the road, after which Val was
instructed to dig a hole. With Quintos holding a flashlight, Val
dug the hole while Tan and Ong watched the digging, after
which they covered the hole with fresh twigs. Thence they
returned to Caloocan City where they separated (Ans. to Q.
No. 18, Exh. Q, rec., 62).
Regarding what happened immediately before, during and after the meeting
of Chua and Ong at Amihan at 9:00 p.m., April, 23, 1971, I find the following
conclusions of the trial court to be supported by the evidence, except as to
(1) one aspect of that meeting at Amihan, for whereas the decision simply
says that Chua and Ong met, it omits the pivotal relevant point that it was the
deceased who fixed the time and place of said meeting and (2) the existence
of the alleged ransom note, which does not appear to be clearly established,
as will be discussed later:
On April 20 or 21, 1971, Benjamin talked to Henry Chua over
the telephone. They agreed to meet at the Amihan Nightclub
on Roxas Club Blvd., Parañaque, Rizal, at around 9:00
o'clock in the evening of Friday April 23, 1971. The stage
was set for the carrying out of his plans, so on April 22,
1971, Benjamin Ong contacted Clarita Teh of the Skyways
Travel Agency and requested not only booking but also the
preparation of his travel papers, destination — Taipei.
Obviously, this was a necessary step to insure his escape
immediately after the execution of his plan to kidnap and
murder Henry Chua.
At 7:30 o'clock, in the evening of April 23, 1971, Benjamin
Ong met Fernando Tan, "Val" and Bienvenido Quintos at the
Barrio Fiesta in Caloocan City. There the plans of the group
were finalized and after dinner they proceeded to Amihan
Nightclub.
Benjamin Ong joined Henry Chua inside the Club while
Fernando Tan, Val and Quintos remained in Ong's Biscayne
car and waited outside the club. A short while later,
Benjamin Ong came out of the Amihan Nightclub and told
Fernando Tan to come inside. Obviously, this was a
necessary step to enable Fernando Tan to know the identity
of the intended victim. Quintos and Val remained in the car.
Sometime later, Fernando Tan came out of the Amihan
Nightclub and asked Quintos to go with him to the Wigwam
Nightclub which is next door to the Amihan Nightclub.
After plying Henry Chua with brandy inside the Amihan
Nightclub, Benjamin Ong, on the pretext that the hostess of
his acquaintance was not there, urged the former to move to
the Wigwam Nightclub. There they tabled two hostesses
known to them, one of them being Ligaya Tamayo. Ong
continued to ply Henry Chua with brandy. In the meanwhile,
Fernando Tan and Quintos took a separate table inside the
Wigwam Nightclub so they could watch Benjamin Ong and
Henry Chua when they start to leave the place. At around
1:30 a.m., April 24, 1971, Henry Chua and Benjamin Ong left
the Wigwam Nightclub and got into Henry Chua's Mustang
car, Fernando Tan and Bienvenido Quintos followed and got
into Ong's Biscayne car, and when the Chua car passed by,
they followed, with "Val" driving the Biscayne.
The Chua car left the Wigwam Nightclub in Parañaque,
Rizal, proceeded through Manila, passing Quezon Bridge,
then to Quezon City passing Quezon Boulevard Extension,
passed Sto. Domingo Church, where it made a U-turn and
then turned right on a dirt road leading to Del Monte Avenue.
Reaching a paved portion of the road leading to Del Monte
Avenue, Ong told Chua to stop the car on the pretext of
wanting to urinate. As soon as Ong got out of the parked
Chua car, Val parked the Biscayne car ahead of the
Mustang, blocking its way, and Fernando Tan and Val
alighted. They proceeded to the parked Mustang car where
Fernando Tan poked a gun at Henry Chua and Val opened
the door at the driver's side and dragged Henry Chua from
the Mustang car and forced him into the back seat of the
Biscayne car. Henry Chua was then forced to lie down face
up on the floor of the car while his hands and feet were
bound by Fernando Tan with pieces of rope and a flannel
cloth tied over his mouth to gag him. Benjamin Onggot be
behind the wheel of the Mustang car and followed the
Biscayne car which had started to move towards Novaliches.
Arriving at the site previously chosen in Barrio Makatipo,
both cars stopped. Fernando Tan and Benjamin Ong, having
alighted from the cars they were riding in, talked, while Val
pulled Henry Chua out of the Biscayne car. Ong then took a
shovel and a flashlight from the trunk compartment at the
back of the Biscayne car. He handed the shovel to Quintos.
The rope binding Henry Chua's feet was untied, but his
hands remained tied and his mouth was still gagged as the
accused led him to the site where a hole had previously
been dug out.
At that place, Henry Chua's hands and mouth were untied
and ungagged, although Fernando Tan held his gun pointed
at Henry Chua's head. He was then ordered to copy a
prepared ransom note directing that $50,000. ransom money
be paid. Henry Chua complied, but pleaded "Huwag ninyo
akong patayin, ha?" to which Fernando Tan answered,
"Pabayaan mo, makauuwi ka." Henry Chua's hands were
again tied in front of him and the gag over his mouth tied
again. He was made to lie on the ground, face up. Benjamin
Ong then handed the icepick to Fernando Tan and said
"Patayin na iyan!" Fernando Tan handed the icepick to Val,
who in turn, handed it to Quintos. But Quintos, obviously did
not have the nerve to kill Chua, justifying his inaction by
saying he had no grudge against Chua. Fernando Tan then
grabbed the icepick uttering the words, "Hindi ka pa pala
puede." The flashlight was then handed by Tan to Val who
focused it on Henry Chua's breast. Fernando Tan then
stabbed Henry Chua twice with the icepick. The body of their
victim was then to dragged to the prepared hole, Val pulling
the body while Quintos was holding the legs, and dumped in
a crouching position, face down, with the tied hands held in
 front of his breast. The hole was then covered with soil, then
the mound stomped on by Benjamin Ong.
Benjamin Ong and Fernando Tan boarded the Mustang
while Quintos and Val rode in the Biscayne car. With Ong
driving the Mustang and Val the Biscayne they proceeded to
Barrio Tibag Baliuag Bulacan, where the Mustang car was
locked and abandoned near a Shell gasoline station. All four
then returned to Manila in Ong's Biscayne car. They parted
from each other's company at around 7:00 o'clock in the
morning of April 24, 1971. On the following days, both
Benjamin Ong and Bienvenido Quintos reported to their
respective place of work as if nothing sinister had taken
place. (Appellant's Brief [Ong], pp. XIV-XIX)
In connection with the meeting at Amihan, the only evidence on record as to
how the place and time thereof were fixed is the following portion of Exhibit
N, the extrajudicial confession of Ong:
30. Q. What did you do after you were embarrassed and
degraded as you mentioned?
A. Sometime on April 20 or 21, 1971, HENRY CHUA called
me up by phone at my office and it was at this time that I
decided to kill him. He asked me when I could make
settlement of my obligations and he asked me if I am
available on Friday, April 23, 1971 to see him at AMIHAN
CLUB at Roxas Blvd. and I said yes, promising that I would
pay him. (Appellant's brief [Ong], No. 30, p. 22)
It was Chua then who set such place and time. As will be elucidated later,
this particular detail is decisive in determining whether or not appellants
purposely sought the cover of the night's darkness in committing the crime
for which the State is demanding atonement with their own lives.
With respect to the supposed ransom note, I must make it clear at the outset
that in my view of the case at bar, it is of no significant consequence whether
or not there was in fact such a note. But if it could be in any sense material, I
would subscribe to the view in the main opinion that its non-production
considerably impairs credence as to the possibility of its actual existence.
And as I will explain at a more appropriate place in the subsequent
discussion, the other related circumstances extant in the record tend to belie,
in my opinion, that anything about ransom was ever taken up on the
occasion in question.
Subject to the foregoing reservations, I would say that the basic conclusions
of fact of the trial court find ample support in the evidence before it. Indeed,
in the light of said facts, it is beyond reasonable doubt that appellants Ong
and Quintos should be held criminally responsible for the killing of Henry
Chua. And from what I gather from appellant Ong's position since the time he
was investigated by the agents of the National Bureau of Investigation, he is
not shirking that responsibility.
Insofar as appellant Quintos is concerned, while he admits having been with
his co-accused when Chua's life was taken, he claims that his part in the
whole affair was either innocuous or impelled by uncontrollable fear. At least
one damaging point, however, is quite clear in his own testimony. He admits
having been handed the ice pick for him to kill Chua, and although he claims
he refused to use it, he has not proven that he exerted an effort to dissuade
his companions from completing and accomplishing their criminal design. At
any rate, the discussion and finding in the main opinion that Quintos was one
of the conspirators has sufficient basis in the record to warrant his conviction,
and I concur therein, even as I do not share the conclusion, as I will presently
point out, that he and Ong deserve the extreme penalty of death.
His Honor held that the crime committed by appellants is kidnapping for
ransom with murder, an offense ineludably punished precisely with death.
Even for kidnapping for ransom alone, such is the enexorable penalty
provided by law. (Article 267, Revised Penal Code, as amended by Republic
Act 1084.) The pertinent provision reads thus:
The penalty shall be death where the kidnapping or
detention was committed for the purpose of extorting ransom
from the victim or an other person, even if none of the
circumstances above-mentioned were present in the
commission of the offense.
However, I concur fully in the main opinion that such holding is completely
erroneous and cannot be upheld.
As Mr. Justice Fernandez very well point out, it is basic and elementary that
the essence of the crime of kidnapping under Article 267 of the Revised
Penal Code is detention. Indeed, from the very beginning of Philippine
jurisprudence in Volume I of the Philippine Reports, the Supreme Court
already took the view that taking the victim from his home to a suitable place
and then and there killing him evinces no shade of illegal detention, since it
would not appear that the intention is to deprive him of his liberty, but rather
of his life. (United States vs. Ancheta, 1 Phil. 165, 169.) There has been no
ruling otherwise since then.
It is to my mind incorrect to say that in the two Parulan cases, Parulan vs.
Rodas, 78 Phil. 855 and People vs. Parulan, 88 Phil. 615, this Court held that
the offense of kidnapping or illegal detention can be complexed with the
crime of murder pursuant to Article 48 of the Revised Penal Code when it is
shown that the purpose of the apprehension and detention of the victim is to
take him to the place of killing, as where the kidnapping is resorted to as a
means for his killing, thereby overruling the doctrine in Ancheta, supra. I have
read and studied both Parulan decisions, but I cannot find therein anything
along the legal proposition suggested. This is what appears in Justice Feria's
opinion in the first case:
From a cursory examination of the foregoing it clearly
appears that the crime charged is kidnapping and murder
and the former was committed by the defendants as a
necessary means "for the purpose of extorting ransom from
the victim or killing him if the desired amount of money could
not be given," that is, that the defendants had to kidnap or
carry the victim to a faraway and secluded place in order to
better secure the consent of the victim through fear to pay
the ransom, and kill him with certain sense of impunity and
certainty that no other person may witness the commission
of the offense by the defendants if the victim refuses to
accede to their demand, and that in fact he was killed by the
defendants because of his refusal to pay the ransom.
And this is what Justice Pablo said in the second case:
La contencion de due el Juzgado de Primera Instancia de
Manila no tiene jurisdiccion sobre la causa, ya esta resuelta
por este tribunal en Parulan contra Rodas, 78 Phil., 855. En
dicho recurso el acusado impugno la jurisdiccion del
Juzgado de Primera Instancia de Manila, alegando que el
secuestro y asesinato son dos distintos crimenes; que el
asesinato se cometio en Bulacan y, por tanto, el juzgado de
esta provincial es la que tenia jurisdiccion exclusive sobre la
causa. Este Tribunal dedaro que el crimen denunciado es el
delito complejo de secuestro conase asesinato; que el
secuestro se realizo como medio necesario para arrancar
dinero de la victima o matarle si la cantidad pedida no lo
diese; que cualquier juzgado de primera instancia en que se
haya cometido cualquier elemento esencial de dicho crimen
complejo tiene jurisdiccion; y se denego la solicitud.
What is to me clear from these quotations is that it is the element of demand
for ransom and subsequent frustration in getting the same existing in Parulan
that makes the difference between it and Ancheta, wherein said element was
absent. Which is understandable, because when the purpose of the
kidnapping is ransom, the offender would necessarily have to detain his
victim while waiting for the result of the demand, and kill him only in case
such result is negative. In other words, in Parulan the kidnapping was
definitely for ransom and not necessarily to kill, whereas in the instant case it
was solely to kill. When the sole purpose of the kidnapping is to kill, I
maintain that the Ancheta ruling still holds, precisely because in such a case
the intent to commit detention which is the essence of kidnapping is absent.
Strikingly parallel, indeed, to the circumstances of the case at bar were those
of Ancheta. Said the Court therein:
Furthermore, in view of the nature and circumstances of the murder for which
this cause is prosecuted it is evident that the fact that the deceased was
captured in his house and taken by the defendants to an uninhabited place
selected by them for the purpose of killing him there, does not constitute the
crime of illegal detention, since it does not appear that it was the purpose of
the accused to commit this offense. On the contrary they seized the
unfortunate Quinto in his house with the sole object of carrying him away to a
suitable place, which they subsequently pointed out to the authorities, and of
there murdering him.
A careful review of the evidence in this case fails to show any indication that
Ong and his co-accused ever entertained the thought of detaining the
deceased for ransom. It is true a certain Patrolman Marciano Roque of the
Caloocan City Police testified regarding alleged conversations he had with
Ong wherein the latter supposedly revealed to him a plan to kidnap Chua for
ransom. Let us hearken in this connection to the findings of the trial judge
himself:
... The first witness presented was Pat. Marciano Roque of
the Caloocan Police Department. He testified to having
known Benjamin Ong for more than five years as the latter
was the Assistant Manager of the Acme Shoe, Rubber and
Plastic Corporation, a company situated in Caloocan City
owned by Chua Pak Ong's brother-in-law. Sometime during
the first week of April, 1971, he went to the Acme office to
get a pair of rubber sandals and was there met by Benjamin
Ong who invited him to ride in his car and there revealed his
plan to kidnap a person whom he believed had cheated him
in a gambling game. The witness dissuaded the accused
Benjamin Ong from carrying out his plan but the latter
persisted and reiterated his request for assistance during the
several meetings which followed. On one occasion,
according to this witness, he was taken to Barrio Makatipo,
Caloocan City, by Benjamin Ong and shown the place where
said accused intended to bury the person he was planning to
 kidnap and kill. Benjamin Ong tried to convince the witness
to join in his plan to effect a kidnapping by assuring him that
he already had a completed plan, that a godson of his would
also help out, and that the father of the intended victim was
very rich and that from the ransom money they would
receive from the father of the victim, the witness could
already leave the police force and retire. Witness also
testified that he tried his best to avoid Ben Ong, and at their
last meeting urged him to forget the whole thing. Although he
informed Capt. Duenas and Lt. Manabat of the Caloocan
Police, and still later Chief of Police Celestino Rosca of
Benjamin Ong's plan, he did not know the identity of the
intended victim until the first week of May, 1971 when he
was called by Chief of Police Celestino Rosca who informed
him that a Chinaman by the name of Henry Chua was
missing and that Benjamin Ong was being sought be the
NBI. ... (Pp. III-IV, Appellant's Brief [Ong].)
One does not have to tarry for more than a moment to see how preposterous
Patrolman Roque's testimony is. What immediately strikes me is that
allegedly Ong did not only confess to him his diabolical plan to kidnap Chua
for ransom, Ong actually invited Roque to join in the commission of such
capital offense. If such testimony were in any way true, I am sure the present
case would not have come to be at all — Chua would not have been killed
and Ong would probably have long been in jail for a non-capital offense
initiated by no less than the Caloocan City Police. For I cannot conceive of a
faithful and loyal policeman to whom a proposal to commit such a heinous
crime can be made without his taking corresponding action in the public
interest, just as it is for me difficult to imagine how Ong or any man could
have had the courage and audacity to even merely suggest such an idea to a
member of the police, there being nothing in the evidence showing that such
a close and intimate relation existed between them to permit that a matter so
strictly personal and confidential in nature be discussed by them just like that.
The thing becomes more absurd and ludicrous when it is considered that
Patrolman Roque added that he had sort of reported Ong's proposal earlier
to his superiors Captain Duenas and Lieutenant Manabat and later to the
Chief of Police himself, Celestino Rosca. One has to be completely naive to
believe that these high officers of the Caloocan City Police just laughed off
the report of Patrolman Roque merely because allegedly Ong did not reveal
to him the name of the intended victim, even if it was already apparent to
Roque that Ong was really serious and persistent in his proposal. The Court
has consistently refused to give any credit to testimonies that on their faces
do not accord with the ordinary experience of man and the usual course of
official conduct, and surely, in my opinion, We must reject this one for being
obviously a pure canard. Indeed, if only so that the police in this country are
made aware of the necessity for all of them to always act consistently with
the demands of public interest on occasions similar to the present one,
wherein a policeman either imposes upon the good faith of the court by
telling it a cock-and-bull story or reacts to an invitation for him to take part in
the commission of a capital offense as if it were nothing more casual than a
personal and private matter to him, I feel that the record of the testimony in
question should be brought to the attention of the National Police
Commission.
But even if there were a way of considering the said testimony as true, still,
the fact would be that whatever proposition it was that Ong made to
Patrolman Roque, nowhere in the record has it been demonstrated that Ong
ever carried out the same either alone or together with his co-accused in this
case, much less with the assistance of Roque which admittedly was never
given. There is neither testimony of any witness nor statement of any of the
accused indicating any link between Tan's alleged act of making Chua copy
a ransom note and sign it and Ong. If such a link could be a matter of
inference or something covered by the rule that the act of any of the
conspirators constitutive of an inculpatory element or circumstance of the
offense is the act of all, the conspiracy being proven, this legal conjectures
would be patently belied by the undisputed proof to the effect that, as found
by His Honor, after Chua had prepared and signed the supposed ransom
note, and even as he was pleading "Huwag ninyo akong patayin, ha?" and
Fernando Tan was assuring him "Pabayaan mo, makauuwi ka", his (Chua's)
"hands were tied again and the gag over his mouth tied again. He was made
to lie on the ground face up. Benjamin Ong then handed the ice-pick to
Fernando Tan and said "Patayin na iyan" ", and without further loss of time, it
was so done. In other words, even assuming arguendo that Ong had ever
made a proposition to Patrolman Roque to join him in a kidnapping for
ransom, the fact is that idea never passed the stage of a mere proposal,
hence is not punishable under Article 8 of the Revised Penal Code, and what
actually was committed by Ong and his companions was no more than
murder, the ransom idea, if it was ever thought of, having been abandoned
completely at least insofar as Ong was concerned. The prosecution did not
present any evidence, presumably because there was none, that anybody,
not to speak of the members of the Chua family, one of whom, Sy Giap, a
brother of the deceased, testified at the trial, ever received a demand for
ransom from any of the accused.
The following, therefore, rule out the possibility that there was an element of
ransom in the taking of Chua to the place of his killing: (1) The evidence of
the prosecution that such an idea was in the mind of Ong days before April
24, 1971 is utterly incredible, being unnatural and contrary to human
experience and official comportment of the most simple minded policeman
(2) the non-production of the alleged ransom note has not been explained at
all; (3) indisputably no demand was ever made upon anyone for the payment
of any ransom; and (4) the trial court found, and this finding is firmly borne by
the evidence presented by both parties at the hearing, that Ong evidently
paid no heed to the supposed preparation or copying and signing of the
alleged ransom note, as on the spot he resolutely, impatiently and curtly
directed his co-accused, "Patayin na iyan", without regard to the alleged
ransom note, which, to be sure, does not appear to have been talked about
then by the accused at all.
In view of the foregoing, I am totally convinced that the offense committed by
the accused in the instant case cannot be more than murder; certainly, it was
not kidnapping for ransom with murder. Thus, the only question that remains
to be determined is, were there any circumstances attending the commission
of the offense or related thereto that could legally be considered as mitigating
or aggravating the same for purposes of imposing the appropriate penalty?
According to the information, the murder in question was qualified by
treachery and that it was attended by the following generic aggravating
circumstances: (1) evident premeditation; (2) grave abuse of confidence; (3)
nighttime; (4) use of motor vehicle; (5) use of superior strength and (6)
cruelty. But as earlier stated, at the arraignment, appellant Ong offered in
effect to plead guilty to murder, instead of to kidnapping for ransom with
murder, and challenged the propriety of the aggravating circumstances thus
alleged. In convicting the appellants of kidnapping for ransom with murder,
the trial court appreciated against them the aggravating circumstances of
nighttime, despoblado or uninhabited place, abuse of confidence, use of
motor vehicle and cruelty. Additionally, in His Honor's own words, it was his
finding that "the killing of the victim was qualified by evident premeditation. ...
The killing of Henry Chua was, therefore, also qualified be the circumstance
of treachery or alevosia", hence, neither of these two circumstances was
considered as generic aggravating. And with respect to the submission of
appellant Ong that applying the doctrine in Yturriaga, supra, he should be
credited with the mitigating circumstance of plea of guilty, the learned trial
judge disposed of the contention as follows:
In a manifestation filed before entering trial, the accused
Benjamin Ong reiterated the fact that he entered a plea of
"not guilty" to the information as read to him, but invoked the
doctrine in the case of People vs. Yturriaga, 86 Phil. 534,
539, that the prosecution may not nullify the mitigating
circumstance of a plea of guilty and deprive the accused of
the benefit of such a plea, by counter-acting it with
unfounded allegations' of aggravating circumstances in the
information.
This Court, however, believes that the Yturriaga doctrine
cannot be invoked in this case in view of the conclusion
reached that the crime committed was the complex offense
of kidnapping with murder for which the law prescribes the
indivisible penalty of death. Furthermore, having reached the
conclusion that five aggravating circumstances attended the
commission of the crime, even if the plea of guilty to simple
murder were to be credited in favor of the accused Benjamin
Ong, the same will not suffice to offset entirely the impact of
the aggravating circumstances which impel this Court to
impose the maximum penalty prescribed by the law even if
the crime committed were only murder.(Appellant's brief
[Ong] p. XXXIII.)
It is my considered view that the trial court erred in the appreciation of the
different circumstances attending the killing of the deceased, except as to the
aggravating circumstance of use of motor vehicle, which appears to have
been properly taken into account. I do not see sufficient basis, whether in fact
or in law, for His Honor's appreciation of the circumstances
of nocturnidad and despoblado just as I concur in the main opinion in
rejecting also abuse of superior strength and cruelty, for the reasons therein
given to which I find it unnecessary to add any. I also concur in that instead
of using both alevosia and evident premeditation as qualifying
circumstances, one of them, evident premeditation should be considered as
a generic aggravating circumstance. In other words, my conclusion at this
point is that only two aggravating circumstances may be appreciated against
appellants, namely, evident premeditation and use of motor vehicle. I hold
further that nocturnidad and despoblado may not be so considered, and I
submit the following considerations in this regard:
Anent the aggravating circumstance of despoblado in United States vs.
Salgado, 71 Phil. 56, the Supreme Court of the Philippines quoted
approvingly the definition of an uninhabited place contemplated in Article 14
(6) of the Revised Penal Code given by the Supreme Court of Spain in its
decision of January 9, 1884 to the effect that it "is one where there are no
houses at all, a considerable distance from town, or where the houses are
scattered a great distance from each other." (at p. 58) Such that "in order that
depoblado may be aggravating, it is necessary that the proofs show
affirmatively that the crime was committed in an uninhabited place." (Aquino,
Revised Penal Code, Vol. I, p. 306) Thus, in a parricide case where the
distance of the houses to the scene of the crime was not shown, this Court
held that despoblado could not be appreciated as aggravating. (United
States vs. Ayao, 4 Phil. 114) This is how Justice Mapa puts it:
The prosecution says that the murder was perpetrated in an
uninhabited place, and with the concurrence of this
aggravating circumstance asks that the penalty of death he
imposed upon the appellants. We do not agree with this
view, although the complaint establishes that the place
 called Denden, where the crime was committed, is
uninhabited; the evidence in the case does not prove
sufficiently that it was really so. The only witness who was
interrogated about this matter was Faustina Bobiles, who
testified that at the place in question "there are houses,"
although the are at a distance from the site where the
deceased was wounded. This distance not being clearly
specified, there is not a good basis from which to determine
accurately whether the site was inhabited or not, and the
defendants should he given the benefit of the doubt.
In the case at bar, the scene of the crime, according to the prosecution, is an
"abandoned subdivision." To start with, that expression by itself already
negates the idea of a place "where there are no houses at all, a considerable
distance from town." A subdivision is designed as a place for habitation and
to refer to it as abandoned is often an exaggeration, unless the exact import
of the word is explained. It is true, in testifying about the reenactment, one of
the NBI Investigators, Enrique Lacanilao, mentioned that there were no
houses there. But such a casual statement does not convince me of its
accuracy and positiveness, to warrant the finding that the aggravating
circumstance in question may be held to legally exist. Even the fact that Ong
did mention in his confession that he considered the place "ideal" because it
was "abandoned and uninhabited" is not to my mind indicative enough that
said appellant's use of the term uninhabited is precisely what the law
connotes. Besides, if precision of language is to be taken into account, Ong
did not refer to the place as "ideal" for killing Chua, but, to quote him exactly,
"to bury him." (Exh. N) The pictures taken during the reenactment which, in
the words of His Honor, shows "trees, lush vegetation and thick cogon
grasses hide the place", cannot be conclusive, taken as they have been
about five months after the happening at issue. In any event, considering that
the appreciation or non-appreciation of this aggravating circumstance, which
notably was not alleged in the information, could spell the difference between
the imposition of either reclusion perpetua or death upon the accused herein,
I would rather give appellant the benefit of my doubt by making the finding
that would not make the consequence of any mistake of mine in connection
therewith irretrievable.
Similarly, I am not sufficiently persuaded that the trial court properly
appreciated the aggravating circumstance of nocturnidad. Earlier, I have
punctualized the circumstance clearly established in the record that it was
the victim, Henry Chua, who specified the place and the time of Ong's
meeting with him at Amihan on that fateful night of April 23, 1971. This point
is to my mind important because "nocturnity is not necessarily an
aggravating circumstance, and the same should be taken into consideration
according to the circumstances surrounding the commission of the crime.
Where it is not evident that the defendants had purposely sought the
nighttime to perpetrate the crime, nocturnity cannot be considered as an
aggravating circumstance. While it is true that the defendants in the case
under consideration killed the deceased about eight o'clock at night, it is not
shown that they purposely sought this hour for this purpose." (United States
vs. Balagtas, 19 Phil. 164, 173.) My impression from all the circumstances
disclosed by the evidence surrounding the commission of the offense in the
instant case is that it would not have mattered to the deceased whether the
killing was to take place at night or in the daytime. Even if the place which the
accused had chosen to be "ideal" for their purpose, may not, as I have
demonstrated, be considered in the criminal law as "uninhabited" for purpose
of its being an aggravating circumstance and hence may not be deemed to
have afforded them the sense of impunity contemplated in the law, as
regards nighttime, there is no indication at all that they actually deliberated
on the necessity or convenience of waiting for the cover of the night's
darkness in carrying out their plan.
I am not unaware that Balagtas was decided under the aegis of the Old
Penal Code which provided in Article 10 (15) that nocturnity, band or
despoblado "shall be taken into consideration by the courts according to the
nature and incidents of the crime" and that, on the other hand, Article 14 (6)
of the Revised Penal Code has eliminated that qualification and instead
considers it as aggravating "that the crime be committed in the nighttime, or
in an uninhabited place or by a band, whenever such circumstances may
facilitate the commission of the offense." In fact, there are decisions of this
Court justifying the appreciation of nocturnidad as aggravating even when,
without purposely seeking the night's darkness to commit the crime, the
offender "had taken advantage of it in order to facilitate the commission of
the crime or for the purposes of impunity." (Cases cited in Aquino, op. cit. at
pp. 301-304; Padilla, Criminal Law, Vol. I, 1974 ed. pp. 377-383.) But
in People vs. Matbagon, 60 Phil. 887, Justice Vickers spoke for the majority
of the Court thus:
The next question is whether or not nocturnity should be
taken into account as an aggravating circumstance in this
case.
No. 15 of article 10 of the Penal Code provided that it was an
aggravating circumstance that the crime be committed in the
nighttime, or in an uninhabited place, or by a band of more
than three armed men (en enadrilla); that this circumstance
should be taken into consideration by the courts according to
the nature and incidents of the crime.
No. 6 of article 14 of the Revised Penal Code provides that it
is an aggravating circumstance that the crime be committed
in the nighttime or in an uninhabited place, or by a band,
whenever such circumstances may facilitate the commission
of the offense that whenever more than three armed
malefactors shall have acted together in the commission of
an offense it shall be deemed to have been committed by a
band.
There appears to be no material difference between the
provision of the Revised Penal Code and that of the Penal
Code. In construing the provision of the Penal Code relating
to nocturnity would be considered as an aggravating
circumstance only when it appeared that it was especially
sought by the offender or that he had taken advantage
thereof in order to facilitate the commission of the crime or
for the purpose of impunity.
It was said in the case of People vs. Trumata and
Baligasa (49 Phil., 192), that nocturnity should not be
estimated as an aggravating circumstance, since the time for
the commission of the crime was not deliberately, chosen by
the accused; that if it appears from the record that the
accused took advantage of the darkness for the more
successful consummation of his plans, to prevent his being
recognized, and that the crime might he perpetrated
unmolested, the aggravating circumstance of nocturnity
should be applied (U.S. vs. Billedo, 32 Phil., 574, 579).
In the present case none of the foregoing reasons exists for
appreciating nocturnity as an aggravating circumstance. The
attack made by the defendant upon the deceased was but a
sequel to the fight at the cockpit, which had taken place half
an hour before. If the defendant had killed the deceased in
the fight at the cockpit, probably no one could contend that
nocturnity should be appreciated as an aggravating
circumstance in that case. It would be purely accidental, and
so it was in the present case.
The Supreme Court of Spain in its decision of May 23, 1885
held that even in the case of robbery with homicide the fact
that the crime was committed at night is not to be
appreciated as an aggravating circumstance when it may be
inferred that the darkness was not intentionally sought or
taken advantage of, but intervened casually: "Considerando
que tampoco es de estimar en perjuicio de los mencionados
reos Oliva y Ruiz Bringas la circunstancia de haberse
ejecutado el delito de noche, que es la 15 del citado articulo
10, porque no surte efecto alguno legal en sentido de
agravar la pena imponible si los culpables no la han elegido
para realizar mejor sus malos propositos, o como medio de
conseguir la impunidad, lo cual no consta que hicieran
aquellos al matar y robar al Lopez, toda vez que hallandose
los tres con frecuencia en una habitacion independiente de
las demas que ocupaban otros vecinos, no parece queles
fuera necesaria una hora precisa para su perpetracion,
deduciendose sin gran esfuerzo que, si el delito se cometio
de noche, fue sin ser buscada exprofeso, interviniendo esa
circunstancia casualmente".
In its decision of January 25, 1888, relating to a tumultuous
affray at night, the same court held that the fact that the
offense was committed at night should not be regarded as
an aggravating circumstance, because it was not chosen or
sought for by the accused, but was purely accidental.
On the other hand, in its decision of April 14, 1888, the
Supreme Court of Spain held that the aggravating
circumstance of nocturnity should he appreciated when the
accused chose the nighttime or took advantage, of it to
commit the crime more easily or to secure his impunity.
Viada's comment on this question is as follows: "En aquellos
delitos, cuya naturaleza no empece a la apreciacion de la
circunstancia de la noche, habra que distinguir: cuando
aparezca que el autor del hecho busco la noche, o por lo
menos se aprovecho de ella para facilitar la ejecucion del
delito, o lograr, a ser posible, su impunidad, debera
apreciarse esta circunstancia de agravacion; cuando
aparezca lo contrario, esto es, que la noche no ha sido
aguardada ni aprovechada con intencion por el delincuente
para ejecutar en ella el delito, en este caso no debera
tomarse en consideracion la circunstancia de nocturnidad,
que fue puramente accidental, para agravar la
responsibilidad del culpable." (2 Viada, 262, 5th ed.)
Justice Hull, with whom Justices Villareal and Butte concurred, wrote a
dissent 1 in which he argued that "The test fixed by the statute is an objective
one", and that "a subjective test (was) fixed by the majority opinion." To my
knowledge, this disparity of views as to whether the test should really be
objective or subjective has not been definitely resolved in any subsequent
decision of this Court. I wish this case were considered by the Court as the
appropriate one to lay down the law on the matter with more clarity, but since
it seems that not all my colleagues are disposed to go along such direction, I
would express my own considered view that as seemingly conceived by the
Old Penal Code, the test should be subjective.
As Justice Vickers elucidated in Matbagon, "to take advantage of a fact or
circumstance in committing a crime clearly implies an intention to do so, and
one does not avail oneself of the darkness unless one intended to do so." In
the quotation from Viada in that same case, it is important to note that he
makes it plain that in a case where "la noche no ha sido guardada ni
aprovechada con intencion por el delincuente para ejecutar en ella el delito,
en este caso no debera tomarse en consideracion la circunstancia de
nocturnidad. (Emphasis mine)
In the Court's per curiam decision in People vs. Boyles, G. R. No. L-15308,
May 29, 1964, 11 SCRA 88, this is what is said:
The lower court appreciated nocturnity against the
appellants solely on the basis of the fact on record that the
crime was committed at about 5:00 o'clock in the morning.
This particular finding can stand correction. By and of itself,
nighttime is not an aggravating circumstance. It becomes so
only when it is especially sought by the offender and taken
advantage of by him to facilitate the commission of the crime
to insure his immunity from capture (People v. Alcala, 46
Phil. 739; People v. Matbagon, 60 Phil. 887; People v.
Pardo, 79 Phil, 658). Stated differently, in default of any
showing or evidence that the peculiar advantages of
nighttime was purposely and deliberately sought by the
accused, the fact that the offense was committed at night will
not suffice to sustain nocturnidad. It must concur with the
intent or design of the offender to capitalize on the intrinsic
impunity afforded by the darkness of night.
In the case presently on appeal, We note that other than the
time of the crime, nothing else whatsoever suggests the
aggravating circumstance of nighttime. Not one of the
prosecution evidence, oral or documentary, makes the
slightest indication that the protection of night's darkness
was deliberately availed of by the appellants. In view of this
deficiency in the case for the Government, We are
constrained to disallow the said circumstance even as,
technically, it may have been accepted by them when they
pleaded guilty on arraignment.
I cannot really imagine how anyone can be criminally held responsible for
taking advantage of nighttime, when there is no evidence that the benefit or
gain to be derived from its darkness was in any way considered, much less
intended or designed by the accused, especially, when, as in the case at bar,
the thrust of the government's proof is that Ong was so bent on killing his
victim and, to my mind, would have cared less if he did it in the daytime.
There may be instances where the circumstances may indicate positively,
even in the absence of any words coming from the accused, that night is
being taken advantage of, but I am not ready to say that it is so in this case
under our consideration now.
Withal, following a decision of the Supreme Court of Spain (of February 28,
1884), this Court held in United States vs. Baguio, 14 Phil. 240, that the
appreciation of nocturnity as an aggravating circumstance (lies) in the
discretion of the court." I believe that the change I have referred to above in
the phraseology of the pertinent provision of our penal code has not deprived
the Supreme Court of that discretion, particularly where the question of
whether the death penalty should be imposed or not hinges on the opinion of
the Court as to the presence or absence of such aggravating circumstance.
For my part, therefore, after mature reflection and deliberation in the light of
the somehow unsettled construction of the specific pertinent penal provision,
I feel there is ample ground to hold, as I do hold, that the extant
circumstances of the killing here in question do not warrant the conclusion
that nighttime should be appreciated as having aggravated the crime
committed by the accused, for the simple reason that the record is bare of
any indication that the accused ever considered the advantage of nighttime
in the commission of the offense in question. In this connection, it might be
relevant to recall that in Boyles, supra, the accused had already pleaded
guilty to the information which charged nocturnidad, and still the Court, after
hearing the evidence, discarded the same for want of evidence of intent or
design in that respect.
Coming now to the contention of appellant Ong that he should be credited
with the mitigating circumstance of plea of guilty, I agree with the main
opinion that the contention is justified by the facts of record. To reiterate, this
appellant made it manifest from the start of the present proceedings in the
court below that in due time he would invoke Yturriaga, supra, because the
prosecution was indicting him for an offense much graver than what he had
committed and was furthermore alleging aggravating circumstances
unwarranted by the facts he had confessed to or could be proven. As it has
turned out, appellant's initial position as to the offense he has committed and
the circumstances attending the same is in the main the correct one. More
than that, if more effort had only been exerted by the fiscal to be as accurate
as possible in designating the offense imputable to the herein accused, the
absence of the element of ransom would have been obvious to him. It is not
fair to level against anyone a charge of having committed an offense
generally punishable with death, which in itself should cause uncalculable
mental torture, when with a little more deliberation and study, it should be
apparent that a lighter offense can sufficiently vindicate the public interest
involved. I do not mean to urge prosecuting officers to be unnecessarily
liberal. What I wish to discourage is over zealousness that can have unjust
and oppressive consequences. The touchstone of a democratic criminal
prosecution is nothing less than fairness in the charge, the trial and
conviction.
Section 4 of Rule 118 allows the accused, with the consent of the fiscal and
the court, to "plead guilty of any lesser offense than that charged which is
necessarily included in the offense charged in the complaint or information."
Under this provision, once the consent of the fiscal and the court is secured,
and upon the information being correspondingly amended, the accused
actually enters a plea of guilty, he is still entitled to the benefit of the plea of
guilty as a mitigating circumstance when the court sentences him for such
lesser offense, even if the offer, the amendment and the plea are made after
the prosecution has started its evidence, (People vs. Ortiz, 15 SCRA
352)albeit it may be mentioned that the reasoning pursued in this decision is
that after the amendment, the plea is to an entirely new information as to
which no evidence has yet been presented, thus adhering strictly to the
language of Article 13 (7) of the Revised Penal Code requiring that the
accused should have "voluntarily confessed his guilt before the court prior to
the presentation of the evidence of the prosecution." Where no evidence has
yet been presented by the prosecution, it is doubtless that the benefit of the
plea of guilty under the above provision inures to the accused. (People vs.
Intal, 101 Phil. 306.) In People vs. Noble, 77 Phil. 93, where the accused
offered to plead guilty to the lesser offense of homicide instead of murder
with which he was charged and the fiscal refused to agree, the Court held,
after finding the accused guilty of murder, that the mere offer to plead guilty
to homicide was not a mitigating circumstance.
In the case at bar, the Court is confronted with a situation in which the
appellant offered to plead guilty to precisely the lesser offense which he had
confessed to from the start of the NBI investigation before his arraignment.
That offer was rejected by the fiscal, who, we must presume, was already in
possession of all the evidence which he eventually presented to the court,
and which the court has found as not warranting at all the graver charge of
kidnapping for ransom with murder. Under these circumstances, I concur in
the main opinion that the following dictum in Yturriaga applies:
... It only remains to consider briefly whether the defendant's
plea of guilty in the form it was entered constitutes a
voluntary confession of guilt before the court as defined in
the same subsection of article 13. We think it does.
Although the confession was qualified and introduction of
evidence became necessary, the qualification did not deny
the defendant's guilt and, what is more, was subsequently
fully justified. It was not the defendant's fault that aggravating
circumstances were erroneously alleged in the information
and mitigating circumstances omitted therefrom. If such
qualification could deprive the accused of the benefit of plea
of guilty, then the prosecution could nullify this mitigating
circumstance by counteracting it with unfounded allegations
of aggravating circumstances.
The trial court refused to consider the foregoing ruling, taking the pragmatic
view that inasmuch as it had found the offense committed to be one
punishable with the indivisible penalty of death, and, even if it were murder,
there were five aggravating circumstances present, it was inconsequential to
discuss the applicability of Yturriaga as in the end it would not affect the
result. For the reasons I have already discussed above, it is evident that His
Honor's position cannot be sustained.
The main opinion also credits appellant Ong with a mitigating circumstance
analogous to passion and obfuscation. Indeed, in passing judgment over the
criminal responsibility of this appellant, it is but just that the Court should
consider the cause or reason that must have impelled him to have Chua's life
taken. After all, he is not asking to be absolved. He has freely confessed his
guilt; he is only seeking understanding of his motives, hopefully to secure
thereby whatever lightening effect the same may have on the penalty he
would have to undergo in atonement for his act. I am certain he does not
expect the Court to exempt him from criminal liability. In other words, he
refers to the reasons for his crime not to justify it, but only to show absence
of real depravity or any inherent criminal nature. If he did premeditate and
premeditating did persist in going ahead with his decision to kill his friend, the
urge was accidental, not inborn. The frequent and persistent demands for
payment of his gambling debts perhaps should have been expected, but the
manner in which these were made is something else. As already noted
earlier, such importunings bothered the boss of Ong, they annoyed and
"scandalized" Ong's co-workers in the office, to whom he lost face being the
assistant manager; so much so that he had to give up his job. Then there
were the veiled threats conveyed to Ong by Ko King Pin that Chua was not a
man to be provoked to anger, which Ong could not ignore, what with Chua's
own words, "If you treasure your life, you better pay first," and that he would
turn over Ong's bouncing check "to other people who will not be courteous
anymore." Not every man is given the equanimity and calmness needed to
withstand all these without breaking down inwardly and feeling oppressively
aggrieved. Under these circumstances, it would not be an exaggeration to
say that the urge in the feeling of appellant to kill his tormentor was less than
purely voluntary, which diminution is the basis of the mitigating circumstance
contemplated in Article 13 (5) of the Revised Penal Code.2 (Reyes, Criminal
Law, Vol. I, p. 250.) Indeed, rather than consider the motive behind Ong's
offense to be analogous to passion or obfuscation as the main opinion does,
I am more inclined to hold that the resolution to do away with the life of Chua
"surged from the resentment" of Ong over the importunings and threats of
Chua and his companions, and inasmuch as evident premeditation is being
appreciated against him, in the fashion of People vs. Guzman, et al. L-7530,
Aug. 30, 1958, he could be given, by analogy, the benefit of this mitigating
circumstance. Anyway, it can be considered alternatively with passion or
obfuscation, with which it cannot co-exist. (People vs. Doniego, 9 SCRA
541.)
There is no definite criterion of what is a grave offense for the purposes of
Article 13(5) of the Revised Penal Code. Each case should be decided
according to the peculiar milieu proven to have been the setting of the
offense. In People vs. Rosel, 66 Phil. 323, the Court held that the remark of
the injured party before the guests that the accused was living at the
expense of his wife was such an offense under this article. Where the injured
party had insulted the father of the accused by contemptuously telling him:
"Phse, ichura mong lalake" (Pshaw, you are but a shrimp), the accused was
held to have acted in vindication of a grave offense against his father. And it
matters not that the killing of Chua was not immediately after Ong was
humiliated, threatened and oppressed it being clear to me that the influence
of such importunings lasted until the commission of the offense. (People vs.
Parana, 64 Phil. 331.)
I realize that the circumstances I have pointed out cannot justify the killing of
Chua. But as I have already stated carrier, this discussion is not intended to
exonerate him. I have just looked, as it were, into the surely perturbed mind
of appellant in the night in question, to determine the degree of perversity
and criminal tendencies therein, and I am convinced that he was motivated
by the circumstances I have elucidated on rather than by pure criminality. At
this point, I am not even taking into account, because of procedural and
technical impediments, that appellant Ong has filed a motion for new trial
strongly indicating what at the trial he behemently refused to divulge for
reasons very personal to him, namely, that the deceased had made amorous
advances to his wife and attempted to rape her on April 15, 1971, which
Chua asked in exchange for her husband's gambling debt. No doubt, if the
wife had testified to such facts at the trial, appellant would be entitled to a full
credit of the mitigating circumstance under discussion.
There is an additional circumstance which to me is important in measuring
criminal responsibility of the appellants in this case. I refer to the pecularity
that were it not for the disclosures made by them in their confessions and
during the reenactment, the prosecution would have had no basis
whatsoever for its attempt, which the Court has frustrated by this decision, to
make them answer for the graver offense of kidnapping for ransom with
murder accompanied by the string of aggravating circumstances listed in the
information. One cannot easily commiserate with killers, but considerations of
human dignity and fairness demand that they are not made to undergo any
punishment more than the facts, the law and justice warrant. And the law is
inclined to be more liberal to those who after committing any offense evince
by their conduct some signs of remorse and resignation to accept the
penalties that they deserve, by admitting their guilt. But in the present case,
appellant Ong has gone further. He did not only confess he and his co-
accused killed the victim, he freely told his investigators exactly what
happened to its last details, thereby making himself subject to the charge of
aggravating circumstances, no other evidence of the government could have
supported, considering how and where the offense was committed and the
difficulty of securing witnesses for the State to testify thereon. As I have said
earlier, without the help of the appellants, this would have been no more than
a case of murder. In view of this consideration, I believe it would only he
consonant with existing rules in the appreciation of mitigating circumstances
that appellant Ong be credited with an additional mitigating circumstance
analogous to the plea of guilty.
As regards the case of appellant Quintos, I am struck by the evidence that at
the last moment he refused to do what he was assigned to do — stab the
victim. In other words, he did not carry out to its ultimate conclusion the
criminal design he had in common with his accused. Indeed, in my review of
the record I have not discerned any clear evidence of the specific
participation of this appellant in the commission of the offense in question. In
the brief of the Solicitor General, the only imputation to Quintos is that he
held the flashlight while Tan was making Chua prepare a ransom note and
that Quintos held the legs of the victim when his dead body was dumped into
the previously chosen hole for his burial. And there is a hint in the record to
the effect that. Quintos had his feet on top of Chua when the latter was being
taken to the place of killing. As to the alleged preparation of a ransom note, I
have already demonstrated, it has not been proven beyond reasonable
doubt. This is also the holding in the main opinion. As to the other acts
attributed to him, I am not satisfied of their conclusiveness. And having in
mind the undisputed desistance of this appellant, I would say that his
responsibility as principal does not satisfy my conscience. I hold him guilty
only as accomplice because his act of accompanying the other accused was
an act of cooperation short of direct participation. .
Accordingly, my vote is to find appellant Benjamin Ong guilty as principal of
the crime of murder, with the aggravating circumstances of use of motor
vehicle and evident premeditation although these are offset by the mitigating
circumstances of plea of guilty, passion or obfuscation alternatively with
vindication of a grave offense and the disclosure of all the details of the
offense that enabled the prosecution to allege aggravating circumstances
which otherwise could not have been known, which in my opinion is
analogous to the plea of guilty but separate and distinct therefrom. In
consequence, said appellant should suffer an indeterminate sentence of from
12 years of prision mayor as minimum to 20 years of reclusion temporal as
maximum, with the accessory penalties of the law.
Likewise, I find the appellant Bienvenido Quintos guilty of murder, but only as
an accomplice, with the aggravating circumstances of evident premeditation
and use of motor vehicle offset only by one mitigating circumstance similar to
that in the case of Ong which is analogous to the plea of guilty inasmuch as
Quintos also revealed details that the government would not have known
otherwise. Accordingly, he should be sentenced to 6 years of prision
correccional as minimum to 17 years and 4 months of reclusion temporal as
maximum, with all the accessory penalties of the law.
In all other respects, I concur in the dispositive portion of the main opinion.
Before closing, I would like to explain that I had to prepare this separate
opinion because I believe that in order for me to save any person accused of
a capital offense from the death penalty it must appear that from a
computation of the attending aggravating and mitigating circumstances, the
death penalty is not imposable. In other words, I cannot vote for less than the
extreme penalty of death when the Court finds that there are aggravating
circumstances not sufficiently offset by mitigating circumstances.
.R. No. L-23109 June 29, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REALINO ZEA alias BOY and SEVERINO ELEGIO, defendants-appellants.
G.R. No. L-23110 June 29, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO AWITIN alias CARDO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Luciano E. Salazar for defendants-appellants.
ESCOLIN, J.:
Automatic review of the decision of the Court of First In stance of Davao in
Criminal Cases Nos. 6683 and 6896, imposing the supreme penalty of death
upon Realino Zea alias Boy, Severino Elegio and Ricardo Awitin for the
crime of robbery with homicide. The decretal portion of the decision reads as
follows:
WHEREFORE, the court finds:
(1) That the guilt of the accused Gualberto Boleche alias
Ambing and Gregorio AMADORE alias Gorio has not been
proved beyond reasonable doubt and therefore acquits
them, and
(2) That the accused Realino Zea alias Boy, Severino Elegio
and Ricardo Awitin alias Cardo are guilty beyond reasonable
doubt as principals of the crime of robbery 'With homicide,
defined and penalized under article 294 of the Revised
Penal Code, with the aggravating circumstances of (1) use
of motor vehicle, (2) use of craft and (3) abuse of confidence
with respect to Realino Zea and Severino Elegio and the
aggravating circumstances of (1) use of motor vehicle and
(2) use of craft as regards Ricardo Awitin, without any
mitigating circumstance, and hereby sentences all of them to
Death, with the accessories of the law, to indemnify jointly
and severally the heirs of Tan Diong Ong alias Ho Sing Ong
in the sum of Six Thousand Pesos (P6,000.00) and Go Su
Lian in the amount of One Thousand Nine Hundred Fifty
Pesos (P1,950.00) representing the amount robbed and to
pay the costs proportionately.
Tan Diong Ong was the business associate and jefe de viaje of one Go Su
Lian, a Chinese merchant engaged in buying and selling rice and corn in
Davao City. As jefe de viaje, Tan Diong Ong made frequent trips to the
outlying towns of Davao to buy grains. In these trips, he brought with him
substantial amount of cash.
Among the employees of the Chinamen were Realino Zea, alias Boy, the
driver of their Ford cargo truck; Severino Elegio, part-time driver of said truck;
and Gualberto Boleche and Gregorio Amadore, both cargadores. At the time
material to this case, Zea was residing in a house at T. Claudio St., Davao
City, and staying with him in said house were his friends, Severino Elegio;
the latter's half-brother, Edilberto Gutierrez: and Ricardo Awitin.
On August 15, 1960, Tan Diong Ong was scheduled to make a trip to
Bansalan to buy corn. For this purpose, he was given by Go Su Lian the
amount of P2,000.00. Where Severino Elegio reported for work that morning,
he informed his employers that the regular driver, Boy Zea, could not drive as
he was suffering from severe stomach ache and that the latter had requested
him to drive the truck that day.
At about 7:30 in the morning, the cargo truck left the compound of the
Chinamen with Elegio at the wheel. Ong was seated beside truck while the
cargadores, Boleche and Amadore, stayed at the cargo compartment.
However, instead of proceeding to their destination, Elegio drove to the
house of Boy Zea. At said house, Ong asked Boy about his ailment and the
latter replied that he was already well and fit to drive. Whereupon, Boy and
his two companion is, Edilberto Gutierrez and Ricardo Awitin, boarded the
truck. Boy took the driver's seat and the vehicle departed for Bansalan.
The truck made a brief stop at Cogon where Ong inquired from one Tan
Seng, a Chinese merchant, if he had corn for sale: and after the latter told
him that he had none, the trip was resumed.
At about 9:30 that morning, Jose Yanez, a cochero was driving his tartanilla
along the highway, headed for the poblacion of Digos. Yanes testified that
while passing sitio Tres de Mayo, he came upon a cargo truck parked about
15 meters away from the bridge. Its hood was opened and a man was
looking into the engine. After his tartanilla had crossed the bridge, he heard a
gunshot coming from where the truck was parked and this was followed by
another shot. Shortly after, he saw five men running from the truck towards
him. They boarded his tartanilla and-instructed him to take them to Digos. On
the way thereto, one of the passengers, whom he Identified as Ricardo
Awitin, removed the blood-stained shirt he was wearing 1 and threw it away.
When they reached the road junction at Kiagot, two of his passengers,
Identified at the trial as Edilberto Gutierrez and Ricardo Awitin, jumped out of
the tartanilla and ran to the woods. Elegio warned Boleche and Amadore not
to tell anyone of the participation of Gutierrez and Awitin in the commission of
the crime, Since that day, Gutierrez had succeeded in avoiding arrest, while
Awitin was apprehended by the police in Balengwan, Misamis Oriental on
January 10, 1961.
Upon arrival of the tartanilla at Digos, Boy Zea reported to Pat. Jumao-as of
the Digos Police that he and his companions were held-up at sitio Tres de
Mayo by armed unidentified men and that their jefe de viaje, Mr. Ong, was
shot by the robbers.
Forthwith, the policemen brought Boy Zea and his companions to the scene
of the crime. On their way thereto, Corporal Cuevas picked up at the
roadside a white shirt splattered with blood. 2 The shirt was Identified at the
trial as the same one worn by Awitin during the incident.
The police found Mr. Ong lying at the roadside, his head smeared with blood.
Of the amount of P2,000.00 he had brought with him, only a P50.00 bill was
retrieved from his pocket. He was immediately taken to the Caños Hospital
and later transferred to San Pedro Hospital in Davao City where he died at
12:45 p.m. that day, August 15, 1960. Dr. Alex Panuncianan, who examined
the victim, described the latter's injuries as follows:
Two gunshot wounds on the head. Point of entry at the right
infraorbital and at the left temple, X-ray revealed two foreign
bodies of metalic density, the size and shape of which
approximates the description of a .38 Cal. Bullet, lodged
deep within the substance of the brain. The patient did from
intracerebral hemorrhage, massive, and laceration of the
brain caused by the bullets. ...
At the scene of the crime, Boy Zea informed the police officers that the hood
of the truck had been opened because the engine had faltered and that he
and Elegio were fixing it when Mr. Ong was shot.
Tranquilino dela Cruz, municipal councilor and an experienced mechanic,
later went to the scene of the incident. He checked the engine and tested the
vehicle, and found the same to be in perfect running condition.
This information, coming as it did from an experienced mechanic, aroused
the suspicion of the Digos police on the story foisted off by Boy Zea that the
crime was perpetrated by unidentified robbers. The following day, August 16,
1960, Boy Zea, Elegio Boleche and Amadore were summoned to the police
station, and in the ensuing investigation of Elegio and Boy Zea, the police
discovered that the crime was committed in pursuance of a sinister plot to
rob and kill the Chinamen. The names of the conspirators, and the time and
the place it was planned were revealed by Elegio in the extrajudicial
statement he executed on August 16, 1960. 3 Thus,
Q Who planned to kill Mr. Ong?
A Realino Zea, alias Boy, sir.
Q How did you come to know of his plan to
kill Mr. Ong,.?
A He told me in their house, sir, as I am
staying with him,
Q Did Realino Zea, alias Boy tell you his
reason for wanting to kin Ong?
A He resented the employment of Mr. Ong
as jefe de viaje as previously he was the
one being trusted with the money to buy
corn. He was able to tell me that Mr. Ong
was just a newcomer as the latter was only
employed as jefe de viaje about 2 weeks
ago by Mr. Go. He also told me that it would
be a nice Idea to rob Mr. Ong of the cash
being entrusted to him and he was trying to
invite me to participate in his plan but I told
him I was afraid.
Q When did Realino Zea, alias Boy, tell you
of this plan to kill Mr. Ong?
A I cannot remember the date, but it was a
few days after Mr. Ong had already started
to work as jefe de viaje of Mr. Go.
Q Before you left for the house of Mr. Go
from the house of Realino Zea alias Boy in
Davao City, were you told of the plan that
they will kill Mr. Ong on that day of August
15, 1960?
A No, sir. I did not know that their plan was
to kill Mr. Ong that day, although last
Sunday August 14, 1960, I was told again
that they win kill Mr. Ong and I was even
told by Realino Zea that the moment he
stopped the truck he wig tell me to open the
hood and pretend to work on the defect of
the engine of the truck.
Q You mentioned the word "they", who are
the other persons aside from Realino Zea
who planned to kill Mr. Ong?
A Ricardo Awitin and Edilberto Gutierrez, sir.
Q Where did Realino Zea. Ricardo and
Edilberto tell you of their intention to kill Mr.
Ong?
A In the house of Realino Zea at T. Claudio,
Davao City.
Q Do you know where in Davao City Realino
Zea, Edilberto Gutierrez live?
A They are living with Realino Zea, sir, in the
house of the latter.
The conspiracy was likewise admitted by Realino Zea in his sworn
statement 4 as follows:
Q You mean to say that there was already a
previous plan agreed among you about
robbing Mr. Ong and killing him
A Yes, sir.
Q Who conceived the plan to kill Ong and to
rob him of his money?
A Edilberto, sir, alias Eddie.
Q Who presented thetlieqqq Idea of
stopping the truck after crossing the bridge
at Tres de Mayo, Digos, Davao where a
check-up on al alleged engine trouble was to
be made?
A I was the one, sir.
Q When was this Idea presented by you to
your companions and who were your
companions in conceiving the plan to kill Mr.
Ong?
A It was only last Sunday night, August 14,
1960, when the plan was conceived by
Edilberto as he said he needed money as he
will get married in Cagayan in this month of
August, 1960.
Q Where was this plan discussed among
you and who were those present?
 A In our house at Tomas Claudio, Davao
City and those present were Edilberto
Gutierrez alias Eddie, Ricardo alias Kardo,
Severino Elegio and myself.
Q What did you tell your companions about
the plan being discussed in your house in
the night of August 14, 1960?
A I just agreed with their plan.
A At about what tune did you discuss the
plan to kill Mr. Ong?
Q You said that upon stopping near the
bridge which you had crossed at Tres de
Mayo, Digos, Davao, you called upon
Severino (Elegio) to check up your dynamo,
what did Severino do?
A He went down and raised up the hood and
pretended to work on the dynamo while I
stepped on the accelerator and stopped or
switched off the engine and joined Severino
near the machine.
Q What happened after that?

A That was about 8:00 o'clock in the A Eddie (Edilberto Gutierrez) opened the
evening, sir. door at the left (when facing the truck) and
loaded his gun and I saw him shoot Mr.
The four conspirators found the opportune time to carry out their sinister plot Ong. Eddie entered the truck before firing at
Mr. Ong.
on August 15. 1960 when Tan Diong Ong was scheduled to leave for
Bansalan to buy corn.
Q Who was the companion of Eddie in going
As heretofore stated, the cargo truck left the Chinamen's house at about 7:30 inside the truck where he shot Mr. Ong?
in the morning, with Tan Diong Ong, Boy Zea, Elegio, Boleche and Amadore
on board. Zea, Gutierrez, and Awitin also boarded the truck from their house A Cardo (Ricardo Awitin), sir.
at T. Claudio St. 'They made their first stop at Cogon where Ong went to the
house of Tan Seng to inquire if the latter had corn for sale. Q What did you do upon hearing the shot
fired?
At Astorga, Zea again brought the truck to a stop, on the pretense that he
was going to urinate, Boy Zea, Elegio, Gutierrez and Awitin then got down A I intended to run but I met Cardo coming
and went behind the truck. 'There, in whispers, they laid out the final details out from under the truck so that I returned
for the execution of the crime. They agreed that, on the pretext that the truck back towards the engine.
had run into engine trouble, Boy Zea would bring the vehicle to t dead stop at
an isolated place near the bridge in sitio 'Tres de Mayo; and that while Elegio Q Did you see what happened to Mr. Ong in
and Zea went through the motions of fixing the engine, Edilberto Gutierrez your return to the engine?
would shoot down the Chinaman with his cal. 38 pistol and divest him of his
money. They would then proceed to the police station at Digos and report A No, sir. What I noticed is that Eddie and
that the slaying of Mr. Ong was an incident of an alleged hold-up perpetrated Cardo were dragging -Mr. Ong from the
by armed unidentified men, Having set up their plan, then, returned to the
truck.
truck and continued on their way,
Q But you said you saw Cardo corning out
The finally reached sitio Tres de mayo As pre-arranged, Boy Zea brought from under the truck when you intended to
The truck to a full stop. What transpired thereafter was narrated by Boy Zea run. how can you explain this?
as follows:
 A Cardo went back and entered the truck
and helped Eddie in dragging Mr. Ong.
Q Where was Eddie when we fired at Mr.
Ong with his Cal. 38 pistol?
A Inside the truck, sir, at the left (when
facing the truck side where he entered with
Cardo.
Q When you said that Cardo entered the
truck after meeting him coming out from
under the truck to help Eddie in dragging Mr.
Ong, what did they do with Mr. Ong?
A I no longer saw what they did to Mr. Ong
because I ran away from the truck.
Q How many shots were fired?
A I only heard two shots fired.
Q Where were you when the second shot
was fired?
A I was already at the bridge which is about
15 meters away from the truck.
Q Why did you run away from the scene?
A Because I want to avoid being hit as they
may shoot me.
Q When you ran away from the truck, where
were your committed passions?
A They followed me.
In his affidavit, 5 Elegio substantially confirmed the foregoing statements of
Boy Zea.
There is no question that it was Edilberto Gutierrez who shot and killed the
deceased Tan Diong Ong. All the accused, in their testimonies as well as in
their sworn statements, are in unison that Gutierrez alone was the trigger
man. This notwithstanding, the trial court held each and all the appellants
guilty as principals on the basis of the findings of the existence of a
conspiracy.
The records support the lower court's findings. With respect to Boy Zea and
Elegio, the conclusion is easily reached that, as co-conspirators, they are
equally guilty as the trigger man. As pointed out, said appellants executed
their respective extrajudicial settlements wherein they positively and directly
acknowledged that in the night of August 14, 1960, in the secrecy of their
house at T. Claudio St., they agreed to kill and rob the victim. It is significant
to note that no attempt whatever was made by said accused to dispute either
the voluntary execution of their respective sworn statements or the truth of
the incriminating facts recited therein. As this Court said in People vs.
Garcia: 6 "There is no evidence of a higher quality than a confession. It
represents the outward manifestation of a man. Unless, therefore, the
confession is nullified by evidence of duress ..., the same is admissible as an
evidence of guilt of a high quality."
In US vs. Delos Santos 7 the same principle was stated in this wise: "If a
confession be true and voluntary, the deliberate act of the accused with a full
comprehension of its significance, there is no impediment to its admission as
evidence and it then becomes evidence of a high order, since it is supported
by the presumption, a very strong one, that no person of normal mind will
deliberately and knowingly confess himself to be the perpetrator of a crime,
especially if it be a serious crime, unless prompted by truth and conscience."
It would not be amiss to state that said confessions, having been made
before the effectivity of the 1973 Constitution, are admissible in evidence.
But quite apart from the confessions of said accused, there is adequate
evidence adduced at the trial to support the lower court's finding of the
existence of a conspiracy. In open court, Boy Zea and Elegio admitted
having performed certain overt acts in the furtherance of their common
design. They testified that when the truck reached sitio Tres de Mayo, Boy
Zea brought the truck to a full stop and that on the false pretense that the
engine had failed, Elegio opened the hood and pretended to fix the engine.
As pre-arranged, the vehicle was parked at that isolated and uninhabited
place to enable them to consummate the crime undetected and unseen by
any other person.
They further declared that upon their arrival at Digos they gave to the police
the report that they were held up by unidentified men. That such report was
pure concoction was confirmed by Zea in his affidavit, as follows:
 Q Was it included in your plan that after
accomplishing your intention to rob and kill
Mr. Ong, you and your companions will run
away and pretend that what transpired was
a hold-up?
A It is with the plan, sir.
Q Was it also included in your plan that to
make it appear more convincing, you will
report to the police authorities that you were
victims of a hold-up?
A Yes, sir.
Q In running away from the scene of the
crime, where were you intending to
proceed?
A Our purpose is to report to the police force
about a prepared and fabricated report of a
hold-up.
The false report given to the police was obviously a scheme intended to
conceal the Identity of the real malefactors.
By the same token, the testimonies of Boy Zea and Elegio as well as those of
Boleche and Amadore established not only Awitin's participation in the
planning of the crime in the night of August 14, 1960, but also his role in the
actual perpetration in the cold-blooded murder of Mr. Ong. He placed himself
beside the victim immediately before the victim was shot in order to prevent
his escape; and after the shooting, he and Gutierrez pulled out the Chinaman
from the truck, dragged him to the roadside where they left him in the
bushes.
The concerted action and the unity of purpose displayed by the appellants
clearly indicate the existence of a conspiracy. It has been laid down as a rule
that when the defendants by their acts aimed at the same object, one
performing one part and another performing another part so as to complete
it, with a view to the attainment of the same object, and their acts, though
apparently independent were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of
sentiments, the court will be justified in concluding that said defendants were
engaged in conspiracy. 8 Accordingly, as co-conspirators, appellants are
liable for the wrongful act and its consequences.
However, We set aside the holding of the trial court that the crime was
aggravated by the circumstances of (1) use of motor vehicle (2) use of craft
and (3) abuse of confidence.
The aggravating circumstance of use of motor vehicle is appreciated when it
is shown that the vehicle was purposely sought to facilitate the commission
of the offense or to insure its success or when it is manifested that without it
the offense charged could not have been committed. 9
In the case at bar, the use of the truck was not intentionally sought by
appellants. The crime was committed in the course of their regular
employment and activity. The use of the truck was not necessary to facilitate
the perpetration of the heinous crime. In fact, they could have consummated
their nefarious design by simply waiting in ambush at some point along the
route of the truck.
Nor was the commission of the crime attended by aggravating circumstance
of use of craft. The lower court found as basis for this aggravating
circumstance the fact that Zea pretended to be sick in order that Elegio could
secure Mr. Go's permission to drive the truck, thereby enabling Zea, Awitin
and Gutierrez to board the vehicle when it passed by Zea's house.
Craft is chicanery resorted to by the accused to aid in the execution of his
criminal design. It is employed as a scheme in the execution of the crime. In
the instant case, it cannot be said that Zea's excuse proved to be a
significant aid in the execution of the conspiracy. One way or the other, the
appellants' criminal design could have been carried out without Zea's having
feigned illness on the day in question.
With respect to abuse of confidence, the same can be appreciated only if the
following requisites are present: (a) the offended party had trusted the
offender; (b) the offender abused such trust; and (c) such abuse facilitated
the commission of the crime. 10 In the present case, the above requisites
have not been fully met. Elegio and Zea came to know Tan Diong Ong only
about two weeks before the incident.
The penalty for robbery with homicide is reclusion perpetua to death. In the
absence of any aggravating circumstance, the appropriate penalty
is reclusion perpetua.
ACCORDINGLY, the death penalty imposed by the trial court is hereby
modified as follows: each of the accused-appellants is hereby sentenced to
suffer the penalty of reclusion perpetua, to indemnify jointly and severally the
heirs of Tan Diong Ong in the sum of Thirty Thousand (P30,000.00) Pesos
and Go Su Lian in the amount of One Thousand Nine Hundred Fifty
(P1,950.00) Pesos, representing the amount robbed, and to pay the costs
proportionately.
SO ORDERED.
Fernando, C.J., Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos,
Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Teehankee, J., took no part.
Melencio-Herrera J., is on leave.
G.R. No. L-48738 May 18, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO SAAVEDRA y PADUA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Amadeo D. Seno for defendant-appellant.
SARMIENTO, J.:
On June 23, 1978, the then Circuit Criminal Court sitting in Cebu City
rendered a decision 1 sentencing Romeo Saavedra yPadua, born on
February 24, 1958 in Cebu City, to the supreme penalty of death for the
murder of Ernesto Pulmares. The decision is before us on automatic review,
The facts established by the evidence on record are as follows:
On January 14, 1977, the deceased, a foreman 2 at Cummins Diesel
Philippines, Mandaue City branch, joined Alfredo Pavon, Cummins Diesel
quality control manager, 3 at the guest house of the company compound at
San Jose de la Montaña in Mabolo, Cebu City, 4 where Pavon dropped two
secretaries. 5 According to Pavon, it was "after office hours" 6 when he met
the deceased. Thereupon, he asked the deceased to accompany him to Kan-
Irag hotel, a local inn located at uptown Cebu City, 7 where he (Pavon) had
instructed another employee, Eleazar Asuncion, to make a long distance
telephone call regarding a company matter. 8
As he prepared to drive to the hotel, he noticed a red taxi cab parked at the
Cummins Diesel guest house gate. 9Three persons — Romeo Saavedra, the
herein accused-appellant, Henry Fernandez, and Reynaldo Quilala —
occupied the cab, although Pavon neither knew them nor noticed that they
were on board. 10
It was around 9:00 p.m. when they reached the hotel. 11 After parking his
car, Pavon proceeded to the lobby where Pulmares followed him. Upon
entering the hotel, he heard a commotion behind him. 12 He turned and saw
two men running toward a waiting taxi cab outside. 13 According to him, one
"looked at me and smiled and made a thumbs-up sign." 14 He later Identified
the first as Henry Fernandez and the one who gave the thumbs-up sign as
Romeo Saavedra. 15
Subsequently, he saw Ernesto Pulmares holding on to his
abdomen. 16 "[Mlay tama ako, 17 Pulmares uttered. He had just been
stabbed.
Pavon rushed Pulmares to the Chong Hua Hospital in Cebu City, 18 It was
about 9:15 p.m. when they reached the hospital. 19
Dr. Jesus Lim, company physician at Cummins Diesel, was shortly
sununoned to attend to Pulmares. 20 He forthwith prepared him for
operation. 21
From the record of operation, 22 Pulmares suffered a stab wound in the right
"hypochondriac region" 23 and an inch-long laceration at the left "distal
forearm." 24 The victim survived the operation 25 but developed uremia
later. 26 He was then sent to the Cebu Doctor's Hospital where he was placed
in peretonial dialysis. 27 But that notwithstanding, he died. He was
pronounced dead on January 18, 1977. 28
Eleazar Asuncion, a Cummins manager, corroborated substantially Pavon's
testimony. He testified that he met the deceasW at the Kan-Irag Hotel, but
when he saw him he was clutching at his abdomen, wounded. 29 Like Pavon,
he heard him declare "I'm wounded, 30 after which they rushed him to the
Chong Hua Hospital. 31
Elenita Diores, a housemaid cum cook at the Cummins Diesel guest
house, 32 claimed on the other hand that Reynaldo Quilala and Romeo
Saavedra had been shadowing the guest house premises as early at 5:00 p.
m. on January 14, 1977. 33 She testified that at about the time Pavon and
Pulmares arrived at 9:00 p.m., a red taxi cab had been parked at the
gate. 34 She pointed to Quilala, Saavedra, and an unnamed person as the
occupants of the cab. 35 And when Pavon and Pulmares left, the three
followed them. 36
She further testified that while at the guest house, Saavedra and his
unnamed companion entered the premises and inquired for "Ernie," 37 whom
she Identified as the deceased Emesto Pulmares. 38 She admitted that she
did not know, at that time, the companion of Saavedra and Quilala, but
claimed having remembered his face. 39 She later pointed to Henry
Fernandez as the third man. 40
The prosecution presented Exhibits "C," 41 "C-1," 42 and "G," 43 consisting of
an alleged communication sent by Romeo Saavedra to Henry Fernandez
advising him not to "make any confession" 44 and assuring him that "we win
not also mention you." 45
The prosecution likewise presented Exhibits "D," 46 D-1, 47 and "E" to "E-
4," 48 Fernandez!s alleged extra-judicial confession, as wen as Exhibits
"H" 49 and "H-1," 50 an alleged statement given by Saavedra admitting being
in Fernandez's company on the night of the tragedy, but claiming that they
were there to "face Emesto whom he [Fernandez] will challenge to a fist
fight." 51
On August 12, 1977, Remigio Arzadon, District State Prosecutor, filed an
information 52 to wit:
xxx xxx xxx
The undersigned, District State Prosecutor, accuses
Reynaldo Quilala y Fernandez, Romeo Saavedra y Padua
and Henry Fernandez y Dakay of the crime of Murder,
conunitted as follows:
That on or about the 14th day of January, 1977, in the City of
Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a
deadly sharp pointed weapon known as Samurai, taking
advantage of nighttime and superior strength, with known
premeditation and treachery, and with the use of a motor
vehicle, conspiring, confederating and mutually helping one
another, did then and there willfully, unlawfully, feloniously,
and suddenly attack, assault and stab Emesto Pulmares y
Pinga, inflicting upon him a stab wound at his abdomen as a
consequence thereof, the said Emesto Pulmarbs died three
days thereafter.
That the commisqion of the offense was attended by the following
aggravating circumstance, first that it was committed by means of treachery
and/or evident premeditation; wond, the accused took advantage of nighttime
to commit the offense; third, that the accused took advantage of their
superior strength; and fourth, that a motor vehicle was used by the accused
to accomplish their murderous act.
CONTRARY TO LAW. 53
xxx xxx xxx
The three accused were subsequently arrested and held
without bail. They were arraigned on August 18,
1977. 54 Reynaldo Quilala and Romeo Saavedra entered
separate pleas of "not guilty. 55 Henry Fernandez, on the
other hand, pleaded "guilty." 56
Unknown to the court, however, the three were released by
the Philippine Constabulary. 57 The court thereafter ordered
their arrest and recommitment, but only Saavedra and
Fernandez were apprehended. Quilala has remained at
large since then. 58
On November 12, 1977, the trial court rendered a separate decision against
Fernandez, 59 the dispositive portion of which reads as follows:
xxx xxx xxx
WHEREFORE, the Court finds the accused Henry
Fernandez y Dakay GUILTY beyond reasonable doubt of the
crime of Murder, qualified by treachery, as defined and
penalized under Article 248 of the Revise Penal Code, as
principal by direct participation, upon his plea of guilty made
freely, voluntarily and spontaneously in open court with the
assistance of counsel, and favorably appreciating the
mitigating circumstances of intoxication, plea of guilty and
voluntary surrender, two of which are offset by the
aggravating circumstances of use of a motor vehicle and
known premeditation andafter applying the Indeterminate
Sentence Law, finds the proper imposable penalty to be TEN
(10) YEARS and ONE (1) day of prision mayor as the
minimum, to SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of reclusion temporal as the
maximum, to indemnify the heirs of the deceased Ernesto
Pulmares y Pinga in the amount of P12,000.00, plus
 P18,000.00 for moral and exemplary damages, and to pay
the costs of this suit.
However, in view of the fact that the accused is a youthful
offender under the provisions of Presidential Decree No.
603, the Court suspends the sentence upon him and orders
his commitment temporarily to the care and custody of
Inspector Antonio Paguia of the PC-CIS, Ill PC Jose, until
further orders and until he shall have reached the age of
majority or for such shorter period as the Court may
determine and deem proper under the circumstances,
subject to the visitation, control and supervision of the
Department of Social Services and Development Region No.
VI I, Cebu City, which office is required to submit quarterly
reports of his progress, conduct and/or behavior while under
commitment, until otherwise ordered by this Court.
SO ORDERED. 60
Fernandez did not appeal, and the decision has since become final. That
notwithstanding, Fernandez took the stand for the prosecution in the trial
against Saavedra.
Fernandez, a pier worker at Trans Asia Shipping, 61 testified that on January.
14, 1977, Saavedra and Quilala went to see him in his house. 62 According to
him, Saavedra was an old friend, 63 while that was the first time that he saw
Quilala. 64 Saavedra invited him for a drink, which he initially declined since
he did not have money. 65 Saavedra, however, offered to pay for the
drinks. 66 They then repaired to the Sable store, located at Magsaysay Street,
Cebu City. 67 Saavedra and Quilala, at that time, had already a few drinks. 68
He further admitted that after drinking (he claimed to have consumed 14
bottles of beer), 69 they proceeded to San Jose de la Montana aboard a red
taxi cab. 70 It was the first time he went there, 71 and he did not know why
they were going there. 72
Quilala instructed him to enter the Cummins Diesel guest house
compound, 73 which he did. Later, Pavon's red car arrived. Pavon dropped
two women, after which he drove to KanIrag Hotel 74 where they tailed him 75
While on their way, Quilala handed him a four-inch samurai, the murder
weapon. 76 He did not inquire what it was for, and was only told, "you just
hold it there." 77
Upon reaching Kan-Irag hotel, Pavon and the victim alighted. The tandem of
Fernandez and Saavedra likewise alighted one after the other. 78 Quilala
allegedly instructed Fernandez: "Go ahead Rey that's my enemy, you stab
him." 79 Fernandez was supposed to have expressed initial hesitation ("No
Bay, I will not do it, we will commit sin"), 80 but Quilala threatened him: "Okay,
if you will not stab him, I will shoot you with this Indian pana, Indian
target." 81 It was a threat Saavedra himself allegedly seconded: "[Y]ou just go
ahead, Rey, so that you will not meet an accident." 82
Fernandez thereafter approach Puhnares at the hotel doorway. 83 He lunged
the samurai at him twice, once at the abdomen and again at the
midsection. 84 He then dashed toward the cab outside wherein Quilala was
waiting for them. 85 Saavedra followed him. 86
They headed toward the Cebu City Colleges where they alighted. 87 They
boarded a tartanilla and disembarked at the Pasil Parochial Church. 88 They
agreed to drink again. 89
Fernandez further averred that upon learning that Pulmares died three days
later, he left for Manila where he stayed for about one month. 90 When he
returned to Cebu City, he was apprehended by elements of the Cebu
police. 91
He likewise Identified Exhibit "C," the letter in which Saavedra advised him
not to "make any confession." 92
On cross-examination, he added that Saavedra subsequently admitted to
him that he (Saavedra) gesticulated with a "thumbs-up" sign after he
(Femandez) had infficted the fatal wounds upon Pulmares. 93 He likewise
stressed that he had not seen Pulmares before and that he took his life "on
orders" 94 of Quilala, who was allegedly then aiming an Indian pana at him. 95
For his part, the herein accused-appellant, Romeo Saavedra, testified that
both Quilala and Fernandez were old friends. 96 Quilala saw him (Saavedra)
in the afternoon of January 14, 1977 at a basketball court, who asked to be
accompanied to the
Cummins Diesel plant. 97 He met, on the other hand, Fernandez in the same
basketball court in the evening. 98 Both were but chance meetings. 99
Quilala then invited them for a drink at Sable store. 100 After a few drinks,
Saavedra went home for dinner but retumed shortly. 101 Quilala and
Fernandez were then set to leave ("[t]hey are going somewhere") 102 and he
went along. 103
They proceeded to San Jose dela Montafla aboard a red taxi cab. 104 It was
already about 9:00 o'clock at night. Quilala instructed both Saavedra and
Fernandez to look for the deceased. 105 Saavedra testified that he did not
know the deceased. 106
A red automobile soon arrived, driven by Pavon, 107 beside whom sat the
victim. Two women alighted after which the car proceeded toward Ramos
Street. Saavedra averred that he did not know Pavon. Thereafter, they
pursued Pavon's car until Kan-Irag Hotel. 108 Pavon and the deceased then
got off the car and entered the hotel. He testified that Quilala ordered
Fernandez "to go to the deceased and tell him that Rene [Qtiilala] wants to
say something" 109 to him. Quilala likewise ordered him to accompany
Femandez. 110
Saavedra declared that he was about seven meters away from Fernandez at
the time of the fatal stabbing. 111 He then ran back toward the car. 112 He
denied that they had plotted todo away with the victim and insisted that he
"happened only [to be] with them during the drinking." 113 He likewise
denied having threatened Fernandez with bodily harm. He also denied
having seen Quilala aiming an Indian pana at Fernandez at the time of the
killing. 114 He denied finally having gestured "thumbs-up" during or after the
stabbing as both Fernandez and Pavon claimed 115
He further stated that after the stabbing, they proceeded to the Cebu Central
Colleges where they hailed a rig on their way home. 116 Quilala and
Fernandez resumed drinking but he went straight home. 117
He admitted that he did not inform the authorities of the incident. He
disclosed that Quilala saw him the following day and threatened to kill him if
he squealed. 118Further, according to him, "he [Quilala] has lots of tough
guys." 119 Neither did he inform his parents nor brothers or sisters for the
same reason. 120
And while he knew Quilala, he denied having known that he was a Cummins
Diesel employee, or, inferentially, that he maintained a grudge against the
victim. 121It seems that the victim had earlier recommended Quilala's
dismissal from the firm. 122
On cross-examination, he reiterated that he did not know why they were
going to San Jose de la Montaña, 123 and that he was just told to go
along. 124 He added that he did not know the victim and, most of all, the
purpose for which Quilala wished to see him. 125
He likewise admitted that Exhibits "G" and "H" were his handwritten
statements. 126
The defense thereafter rested, and the case was submitted for decision.
On June 23, 1978, the court rendered judgment 127 against Saavedra, the
dispositive portion of which reads as follows:
xxx xxx xxx
WHEREFORE, the Court finds, after trial on the merits, the
accused Romeo Saavedra y Padua GUILTY beyond
reasonable doubt of the crime of Murder, qualified by
treachery, as defined and penalized under Article 248 of the
Revised Penal Code, as co-principal thereof, and there
being present and proven the generic aggravating
circumstances of use of a motor vehicle and drunkenness
which was intentional without any mitigating circumstances
to offset them, hereby sentences said to suffer the extreme
penalty of DEATH, with the accessory penalties provided by
law, to indemnify jointly and severally with his co-accused,
the heirs of the deceased Emesto Palmares in the amount of
P12,000.00 plus P18,000.00 for moral and exemplary
damages, and to pay the costs of this action.
It appearing that accused Reynaldo Quilala y Fernandez is
still at-large up to this date, let alias warrants be issued for
his arrest to be coursed through the III CIS, PC District,
Cebu City, the National Bureau of Investigation, Manila, and
the METROCOM, PC-INP, Metro Manila.
SO ORDERED. 128
xxx xxx xxx
Neither the corpus delicti nor the Identity of the kwer is in issue in this case.
There is no doubt that the deceased, Emesto Pulmares, died as a
consequence of a stabbing, a crime to which Henry Fernandez pleaded
guilty, and for which he was tried and accordingly sentenced. It has been our
constant and invariable holding that, unless improvidently made, a plea of
guilty is equivalent to a confession of the charges for which the court may
duly pass sentence against the accused. 129 What is in controversy is
whether or not the accused-appellant, Romeo Saavedra, may, based on the
evidence, be held liable as a coconspirator in the killing in question.
While Fernandez and Saavedra both pointed to Reynaldo Quilala as the
brains behind the slay, we are not concerned here with Quialala's guilt or
innocence since he has not been brought within our jurisdiction. Accordingly,
our concern is the verdict alone against Saavedra.
We hold that upon the evidence on record, Romeo Saavedra's complicity has
not been established beyond reasonable doubt.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to Commit it. 130 Proof of
the agreement need not rest on direct evidence and may be inferred from the
conduct of the accused disclosing a common understanding among them
with respect to the conunission of the offense 131 But hke the offense itself,
conspiracy must be shown beyond reasonable doubt. 132
We find nothing in the records that would satisfactorily established
Saavedra's involvement in the plot, if there was one, to liquidate the victim.
As we stated, it is not necessary that the actual agreement be proven in
court, yet, there must be some proof of it.
The trial court, in deciding against the accused-appellant, pointed to certain
acts he was supposed to have conunitted, acts that are allegedly consistent
with a conspiracy. We quote, in part:
xxx xxx xxx
First of all, accused Saavedra has not explained
satisfactorily or convincingly his companionship and
togetherness with his two-accused Quilala and Fernandez
that fateful evening of January 14, 1977. All indications point
unerringly and inescapably to the conclusions that it was he
and Quilala who originally hatched the plan to kill the victim
earlier that same afternoon due to Quilala's desire to avenge
his being fired from his employment at Cummins at the
instance of the victim who was his foreman. This conclusion
is supported not only by his admission that he went to collect
the latter's salary at around 4:00 o'clock in thp afternoon, but
by the unrebutted testimony of prosecution witness Elenita
Diores that she had seen Saavedra and Quilala at the
Cummins guest house in San Jose de la Montafia Street
loitering near the gate around four times earlier that
afternoon.
Secondly, while Saavedra claims that it was he who was
approached by Quilala and the latter invited him and
Fernandez to a drinking spree, yet there is the testimony of
Fernandez, which the Court finds to be more credible, that
Quilala and Saavedra had jointly invited him. It was also
Saavedra who accompanied Fernandez in alighting from the
taxi and looking for the victim at the Cummins guest house
earlier that evening, and was also with Fernandez when they
alighted at Kan-Irag Hotel and Fernandez stabbed the victim.
Thirdly, even after Saavedra saw Fernandez stab the victim,
he did not separate from Fernandez and Quilala. He did not
run away to report the incident to any authority or to his own
father who was a policeman of Cebu City. Instead, he still
joined Fernandez and Quill& inside the same getaway
vehicle and, after making a thumbsup gesture which was
seen by prosecution witness Alfredo Pavon, went with them
to resume their drinking spree. He also did not tell anyone in
his family about what had happened when he went home
that evening and for twelve (12) days thereafter. Despite his
claims or pretensions of innocence, he did not give any
statement to the CIS, PC upon his arrest narrating his
version of the incident the way he described it in Court.
Fourthly, Saavedra not only failed or refused to give a
correct version of the incident to the CIS while under
detention but even tried to mislead the investigators by
giving a statement (Exhibit "H") which tried to shift the blame
for the killing on a certain "Jessie," which he said he made
upon the instructions of Quilala. Furthermore, Saavedra
admitted that he wrote the letter to Fernandez (Exhibit "4C")
wherein he cautioned the latter not to make any confession
about the killing or to implicate them therein as there was no
evidence against all of them, and promising Fernandez that
he will not also be implicated by him and Quilala.
Fifthly, there is on the record the plea of guilty of Fernandez
to the crime charged against him in conspiring with
Saavedra and Quilala, as well as his testimony as a
prosecution witness against Saavedra, which all constitute
judicial admissions which are admissible against Saavedra
as proof of conspiracy. There is also the extrajudicial
confessional statements of Fernandez (Exhibits "D" and "D-
1," "E " to "E-4 ") which were given voluntarily and dovetail
with his judicial testimony. These statements are admissible,
likewise, to show and prove that other persons participated
in the perpetration of the crime charged and proved (People
v. Aquino, 57 SCRA 43). They are also admissible and may
be taken into account and consideration as circumstances in
assessing and passing upon the weight and credibility of the
 testimony of an accomplice as well as those of the witnesses
or the opposing parties (People v. Domondon, 43 SCRA
486). 133
xxx xxx xxx
We shall take these up ad seriatim.
The fact that the trio of Fernandez, Saavedra, and Quilala had earlier, met,
engaged in a drinking session, and proceeded to the Kan-Irag hotel — the
chain of events prefacing the tragedy-is not enough indication that they had
conspired to kill Puhnares. Conspiracy is more than that. It transcends mere
companionship. So we said in People v. Custodia. 134
xxx xxx xxx
It is well to recall the settled rule that conspiracy
presupposes the existence of a preconceived plan or
agreement and in order to establish the existence of such a
circumstance, it is not enough that the persons supposedly
engaged or connected with the same be present when the
crime was perpetrated. There must be a logical relationship
between the commission of the crime and the supposed
conspirators, evidencing a clear and more intimate
connection between and among the latter, such as by their
overt acts committed in pursuance of a common design
... 135
xxx xxx xxx
Moreover, presence at the scene of the crime, without more, does not imply
conspiracy. That has been our consistent ruling. 136
Saavedra's failure to explain "his companionship and togetherness with his
two co-accused Quilala and Fernandez" 137 is therefore of no moment.
Saavedra is not bound to account for the company he keeps. The burden
remains upon the state to demonstrate the existence of conspiracy arising
from that companionship. But more important, and as a rule, relationship or
association alone is not a badge of conspiracy. 138 To borrow
from Custodio, the accused "may have accompanied [the assassin] only out
of sense of good fellowship." 139
The circumstances alone that the accused-appellant had earlier been seen
within the vicinity of San Jose de la Montana Street and may have collected
Quilala's salary earlier on the same day is no proof that he was part of the
cabal alleged. The fact that the accused-appellant had earlier been trailing
the deceased or had curried favors for Quilala does not suggest that he had
been in fact out to kill the deceased pursuant to a conspiracy.
Conspiracy, indeed, presupposes a prior knowledge of the criminal design.
The particular circumstances mentioned by the lower court do not, to us,
evince such advance knowledge.
On the other hand, both Fernandez and Saavedra vehemently denied any
intimation of the tragedy that was about to happen." 140 This does not make
Saavedra a part of the scheme, assuming there was one, to execute the
deceased. 141
The reliance of the trial court upon Fernandez's testimony that it was
Saavedra, along with Quilala, who summoned him (Fernandez) for a drinking
session and who acco..rnpanied him to the Cummins Diesel guest house to
inquire for the whereabouts of the victim is not quite well-taken. Fernandez's
claims of innocence are to begin with, impressed with serious doubts. As the
actual assassin, he is a polluted source. And as such, he was obviously
trying to minimize as much as possible further liability, by pinning lone
authorship of the offense upon Saavedra and Quilala.
For the same reason, we cannot rely on Fernandez's claim that Saavedra
admitted to him having signalled "thumbs-up" after the fatal stabbing, or that
he (Saavedra) ordered him (Fernandez) to "go ahead Tsoy so nothing will
happen to you," 142 or "you just go ahead, Rey, so that you wifl not meet an
accident," 143 which Saavedra denied having made.
But even then, these alleged acts and utterances are not necessarily
inculpatory as far as Saavedra is concerned. The fact that Saavedra may
have motioned "thumbs up" is not sufficient an indicium that he was in on the
murder plot. It does not establish the "logical relationship" between such an
overt act and Fernandez's deadly plan referred to in Custodio. Conspiracy,
as we said, depends on positive and convincing proof. It is nota matter of
speculation.
Saavedra's alleged warnings ("go ahead Tsoy so nothing will happen to
you;" 144 "you just go ahead, Rey, so that you will not meet an
accident" 145) are equally indecisive. For Saavedra may have been in fact
voicing a concern for Fernandez's personal safety.
Indeed, Fernandez could not categorically pinpoint Saavedra as a party to
the alleged conspiracy, thus:
xxx xxx xxx
Q Did Romeo Saavedra utter anything as
you were conversing with Quilala,.?
ATTY. MATHEW:
Objection, leading, your Honor.
Q What was Romeo Saavedra doing when
Quilala told you to do?
A He said, "you just go ahead, Rey, so that
you will not meet an accident." 146
xxx xxx xxx
Q From the Khan Irag Hotel up to the place
where you reached Cebu Central College or
CCC, was there any conversation that
transpired between you and Quilala and
Saavedra?
A No sir, but upon arriving CCC we
disembarked and boarded the tartanilla. 147
Q When you were on board the tartanilla,
was there a conversation among you?
A Yes, sir, and quilal said, he will surely die
and that time, I was scared. 148
xxx xxx xxx
Q Before you left for Manila, did you have a
conversation with Quilala and Saavedra?
ATTY. MATHEW:
Leading.
COURT:
May answer.
A Not anymore, sir. 149
xxx xxx xxx
Q How did Saavedra participated in inducing
you to kill the victim?
A He was the one who said, when we will be
at Kanirag you go ahead Tsoy so nothing
will happen to you. 150
xxx xxx xxx
Q How did Quilala come to know you when
before that time you did not know each
other?
A Because the two of them were together.
Q And they went to you?
A Yes they fetched me.
Q Who actually fetched you?
A Romeo Saavedra.
Q Did Romeo Saavedra tell you what was
the reason why he fetched you?
A No, he just said let's have a drink. 151
xxx xxx xxx
Q When did you come to know that you are
going to kill somebody?
A It was during the time when I was aimed
at.
Q How did you come to know that you were
hired to kin?
A He (referring to Quilala) told me that he
has some animosities with that man.
FISCAL:
Q Was that in San Jose dela Montafia or in
Kan-irag?
Q After you stabbed the victim and you and
Saavedra returned to the taxi was there any
statement uttered by Romeo Saavedra?
ATTY. MATHEW:
Leading and improper your Honor.

A In Kan-irag already. COURT:

Q When Quilala told you that where was
Romeo Saavedra?
A Behind.
Q Did you hear anything from Romeo
Saavedra by way of comment to the
statement given by Quilala to you?
A He said you go ahead so you will not meet
an accident. 152
xxx xxx xxx
FISCAL:
Q Where was Romeo Saavedra when the
samurai was given to you?
Witness may answer.
WITNESS:
A He said he wiu surely die. 153
xxx xxx xxx
COURT:
Q While drinking at Sable's store and
before,going to San Jose dela Montana
when you said that the two were conversing
most of the time, did you hear anything in
that conversation which would give you an
indication regarding the intention of Quilala
towards that man whom you stabbed at
Kan-irag Hotel?

A He was present. A I heard from them that the two of them

Q Was there any statement given by
Saavedra to you when that samurai was
given to you?
have already gone to San Jose dela
Montana.
Q I heard it from whom?

WITNESS — (Fernandez) A From the two of them who were talking

about it.
A There was nothing.
Q That was ALL you heard that right before
you went to Kan-irag?
FISCAL:

A Yes sir.
 COURT:
Q After the stabbing in the hotel and you
went back to the taxi and you took a
tartanilla to Sable's store to resume drinking
was any information related to you by either
Quilala or Saavedra as to what prompted
Quilala to have you kill that man?
A Nothing, they were happy about it. 154
xxx xxx xxx
While Fernandez was straightforward in condemning Quilala as the
mastermind, he was not as unequivocal with respect to Saavedra. From his
testimony, all Saavedra did was to invite him for a drink and thereafter, to
accompany them in what would turn out to be a deadly expedition to Kan-
Irag hotel. Aside from Saavedra's alleged orders to "go ahead," 155 which
Saavedra denied, Fernandez did not indeed say for certain that Saavedra
knew, or was a part of, the murder plot. We cannot suppose conspiracy from
these circumstances alone.
We do not likewise see how Saavedra's failure to separate from Fernandez
and Quilala after the incident can make Saavedra a co-conspirator. As we
stated, it is possible that he joined Fernandez and Quilala, admittedly two old
friends of his, 156 out of camaraderie — not conspiracy — and it is not
remote that he went with them to San Jose dela Montafia out of the same
sense of comradeship.
Suffice it to state that Exhibit "H" was executed without the assistance of
counsel, and there is no showing that he waived his right to counsel, with the
assistance of counsel. 162
With respect to Exhibit "C," 163 still another letter in which Saavedra
counselled Fernandez to desist from making any confession, we find nothing
incriminatory in the same. We hereinbelow reproduce the same:
Too Henry
Henry una sa tanan ako mangumusta kanimo nga maayo ba
imong pagkahimutang diha. Henry ayaw kasuko kanamo ni
Rene ang imong ngalan wala namo banggit ug nahimo ayaw
pag-amen niining kaso kay u,a silay ibedensiya. Henry duna
diay informer diha sa ato nga si Loklok umagad ni Pedro
Sepe nga tigbantay sa Don Bosco. Henry balikon ko sa
pagsulti ayaw gyod pagamen kay ligtas ka niining kaso kay
kami sa ni Rene din usab mo amen niini. Henry ug mosulat
ka kanamo ipadala lang sek to ngahan sa tao nga tigpala ug
pagkaon nganha kang Ben Villarin. Henry ayaw gyog sultihi
si Ben niining nahitabo kay informer usab kana nganha,
Kami usab ni Rene maayo ?nan ang among pagkabutang
nganhi sa Lahug Detent'on Center. Henry bantayi ang imong
mga baba sa Pagsulti nganha sa Investigator nga si Paguia
ka wise kana, Henry ayaw banggita ang among ngalan ni
Rene nga ikaw naka-ila kanamo kay kami usab din mo
banggit kanimo sama ra sa dita kaila

This court is further hard put to accept the argument that Saavedra should
have given a statement to the police authorities upon his arrest if he were
truly innocent of the charges. An accused has the right to remain
silent. 157Saavedra's silence should not be therefore construed as an
admission of guilt. 158

The trial court next makes capital of Exhibit "H," 159 a letter in which
Saavedra implicated a certain "Jessie" as the mastermind. According to the
court, it was an attempt by Saavedra "to mislead the
investigation." 160 According, however, to Saavedra, he executed Exhibit "H"
upon instructions of Quilala. 161

Be that as it may, we do not believe that Exhibit "H" establishes Saavedra's

complicity in the murder under review. It is at best, an effort by Saavedra to
shield Quilala from the law, arising presumably from a distorted sense of
ABRIL 12, 1977 164
loyalty, or if he is to be believed, out of fear of Quilala indeed.
Exhibit "C" is not in the nature of an extrajudicial confession. Saavedra is not
admitting liability there and neither is he therein demanding that Fernandez
conceal the "truth." He is merely appealing to him, in what may in fact be
considered a brotherly advice, to take precautions ("Henry bantayi ang imong
mga baba sa pagsulti nganha sa Investigador nga si Paguia ka wise
kana" 165) and in a manner of speaking, to keep his mouth shut, a
Constitutional right in fact of Fernandez.
It is true that Saavedra, in the same exhibit, urged Fernandez not to admit
knowing him (Saavedra), yet, that is but a natural behavior. It is not
necessarily indicative of guilt. It is consistent with human tendency of self-
protection, whether one be truly guilty or innocent.
The accused-appellant's neglect in informing the authorities of the incident
except some twelve days thereafter cannot be taken-against him. Failure to
report violations of the law, save in certain cases — misprision of
treason 166for one, concealing "evil practices" in the course of a
sedition 167 for another — is not a crime. 168 But what should not be lost
sight of is the fact that Saavedra, as he claims 169 feared reprisals from
Quilala. It is a natural reaction, to our mind, and does not of necessity
suggest Saavedra's guilt, let alone, his participation in a common criminal
design.
It should be noted that Saavedra had no motive to take the life of the victim.
The records show that he did not know him at all. 170
In rejecting the court a quo's finding of conspiracy, we are not foreclosing the
possibility that Reynaldo Quilala, indeed, had a hand in the killing of Ernesto
Pulmares, whether as a coconspirator or a principal by induction. 171 Until
Quilala is brought to the bar of justice, however, this court is powerless to
rule on his culpability. But as far as the evidence in this case is concerned,
we are not persuaded that conspiracy has been proven. It is an evidence that
does not accordingly pass the legal test. It has not demonstrated conspiracy
beyond reasonable doubt.
It is not important that the accused-apperant's evidence consists of bare
denials and generalizations. For the rule is that the prosecution must rely on
the strength of its evidence and not on the weakness of the defense
evidence. 172Moreover:
xxx xxx xxx
If the inculpatory facts and circumstances are capable of two
or more explanations, one of which is consistent with the
innocence of the accused of the crime charged and the other
consistent with their guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to support a
conviction. (U.S. v& Maafto [1903], 2 Phil. 718.) ... 173
xxx xxx xxx
As a consequence, the parties' liabilities should be considered
individually. 174 Fernandez should thus be held liable in the light of his actual
participation. In the instant case, although the trial court found him guilty of
murder by direct participation upon his plea of guilty 175 he was sentenced
to a relatively fight penalty. 176
On the other hand, may the accused-appellant be considered an
accomplice? An accomplice is defined by statute 177 as one who, not being
a principal, cooperates in the execution of the offense by previous or
simultaneous acts. 178
We hold in the negative.
Saavedra's presence at the locus criminis, we earlier said, is not enough to
make him a conspirator. Neither is it sufficient to hold him liable in the
character of an accomplice. 179
What should be stressed is the fact that an accomplice, to be such, must
have had previous knowledge of the principal's criminal intent, and must
have performed an overt act that contributed to the death of the victim or, in
any event, helped in the consummation of the offense, either by way
of,material or moral aid, but short of direct participation. 180 In People v.
Tatlonghari, 181 we found the accused guilty for such compucity in "casting
stones at the victim, and distracting his attention," 182 although such acts
were not indispensable to the consummation of the crime of murder (of which
we convicted the actual killer).
Here, Saavedra did not perform such act that would suggest cooperation on
his part in the killing of the deceased. And as we have stated, the
prosecution has not shown that a mutual design existed between Saavedra
and Fernandez at the time of that killing.
Neither can it be argued that Saavedra, by his presence, provided moral aid
to Fernandez in liquidating the victim, In People v. Tamayo, 183 we held the
accused, who shouted oral encouragements ("go ahead!" 184 "strike
them;"185 "this is the time, " 186) to the principal, hable as a
complice. Unlike Tamayo, however, Saavedra here merely stood behind
Fernandez. In fact, Fernandez testified that he was "conversing with
somebody" at that time. 187 That does not amount to the moral assistance him and you did not even ask help from your
contemplated by law. own father?

While Saavedra is said to have made a "thumbs up" signal, that is by itself an A I'm afraid of him because he has lots of
ambiguous act. Furthermore, it came after Fernandez had inflicted the lethal tough guys.
wounds upon the victim. It could not have therefore served Fernandez any
more purpose, the crime having been completed. Q You did not think before that may be the
Court win not believe in you, so that you win
There is further no showing that Saavedra was aware that Fernandez was also suffer the same fate as Rene Quilala?
armed with the miniature samurai when they entered Kan-Irag hotel or when
they were aboard the cab. While Fernandez testified that Saavedra and A No, sir.
Quilala were seated beside each other at the rear of the automobile, 188 it is
not far-fetched for Quilala to have slipped the murder weapon from behind Q Now, was your fear of telling the truth
unnoticed. With a four-inch knife, 189 this is not at all impossible. For the
because of the fact that according to the
same reason, Fernandez could have easily concealed the same in his
evidence of the prosecution it is possible
person when he entered the hotel without Saavedra (who tagged along from
that you, Rene Quilala and Henry
behind) knowing about it. In fact, he must have hidden it to avoid detection by
Fernandez according to the prosecution that
possible eyewitnesses in the hotel. you connived in Sable Store to kin that
man?
In the light of our findings, the accused-appellant Romeo Saavedra is entitled
to an acquittal.
A No sir, we did not plan it there.

But may we dwell on certain final observations. In his brief, 190 the appellant
Q You still want to stick to your story despite
accuses the trial judge of bills. He alleges that while the prosecution
the testimony of Henry Fernandez and
propounded but 83 questions upon the accused, the judge asked a total of
Alfredo Pabon?
111 questions.
A Yes, sir. 192a
The intervention of the judge in the conduct of the proceedings is not per
se improper, and the number of his questions is immaterial. In Domanico v.
Court of Appeals, 191 we held that a judge may intervene in the trial to xxx xxx xxx
expedite the same or to clarify an obscurity.
This is likewise quite apparent from the challenged decision 193 itself thus:
But this is not an iron-clad rule. Judges are nonetheless admonished to
observe proper decorum, especially when interrogating witnesses. This is to xxx xxx xxx
avoid subsequent charges of oppression or, as in this case, partiality. A
judge is, needless to state, a neutral arbiter of controversies. He is called Finally, the Court notes from Saavedra's behavior and manner of testifying
upon not only to act ixnpartiaby, but also to appear impartial. 192 while on the witness stand to be indicative of lack of repentance or remorse
for his participation in the savage and heinous assault upon a fellow human
From a reading of the records, it appears that His Honor deviated from this being who was not even known to him and had not done him any harm. On
norm. Thus: the contrary, up to the trial of his case, he has tried to mislead the Court by
giving incredible, implausible and illogical reasons for his behavior during the
xxx xxx xxx incident in question, and had even tried to dissuade or induce Fernandez
while under detention to cover-up and camouflage the actual happenings of
that fateful night to prevent the solution of the crime. Such actuations on his
Q Why what is, what has he done or he has
shown to you that you have to be afraid to
part deserve severe censure and condemnation ff only to serve as a warning
to future transgressors. 194

xxx xxx xxx

In any event, this reversal cures whatever impropriety may have attended the
case below.

WHEREFORE, the sentence appealed from is REVERSED and the accused-

appeUant, Romeo Saavedra y Padua, is hereby ACQUITTED. His release
from confinement is hereby ordered, unless he is held for another legal
cause. With costs de oficio.

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,

Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Teehankee, C.J., concurs in the result.