G.R. No.
L-29271 August 29, 1980 That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing,
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADELINO BARDAJE, defendant-appellant.
MELENCIO-HERRERA, J.:
The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction
with Rape, and sentenced to death. The case is before us on automatic review.
On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of
First Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal,
Adriano Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS):
The undersigned complainant, after having been duly sworn to according to law, accuses Adelino
Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of
Rape, committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965,
in Bo. Lopig, Sta. Rita, Province of Samar, Philippines, and within the
jurisdiction of this Honorable Court the above-named accused, conspiring,
confederating together and helping one another, with lewd design, by means
of force and intimidation, and at nighttime, did then and there wilfully,
unlawfully and feloniously drag one Marcelina Cuizon from the house of one
Norma Fernandez and brought her to a far away place and once there, accused
Adelino Bardaje, by means of force and intimidation forcibly had sexual
intercourse with her several times while his co-accused were on guard.
Contrary to law. (Emphasis supplied).
ADELINO was arrested on December 17th, and it was on December 20th, when he signed the
alleged confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which
was probably the basis for MARCELINA's complaint, presumably prepared with the help of the
Fiscal. What has been noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the
FIVE OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was "kidnapped".
There is no indication in the record as to why Domingo Odal was not included in MARCELINA's
complaint as one of the accused.
The following day, December 21st, the Fiscal's office filed the following Information with the
Court:
The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio
Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime
of Rape with Illegal Detention committed as follows:
Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this
Honorable court the above-named accused, conspiring, confederating together and helping one
another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd
design, by means of force and intimidation, armed with bolos and at nighttime, did then and there
wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the
house of one Norma Fernandez and brought her to a far away place and once there, accused
Adelino Bardaje, by means of force and intimidation forcibly had sexual intercourse with her for
several times while his co-accused were on guard.
That the commission of the crime the aggravating circumstances that it was committed in an
uninhabited place and with the aid of armed men, were present. (Emphasis supplied).
It will be noted that the complaint filed directly by MARCELINA with the Court was amended by
the Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal
charged him with "Rape with Illegal Detention". MARCELINA merely alleged that she was
dragged from the house of Norma Fernandez by means of force and intimidation and at
nighttime. On the other hand, the Information added that the accused were "armed with bolos".
The name of the barrio was also changed from Lopig to Crossing. Lastly, the Information included
the allegation that the crime of Rape with Illegal Detention was committed with the "aggravating
circumstances that it was committed in an uninhabited place and with the aid of armed men".
Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood
trial. The period of the offense was from December 14th to 17th, with the complaint having been
filed on December 20th, or barely three (3) days thereafter. With that time frame in mind, an
analysis of the Information will show the assumption that only ADELINO was
the principal culprit while the FIVE OTHERS were either principals by cooperation or
accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and
Fidel Ansuas" indicates that it was ADELINO who had dragged MARCELINA "with" the help of the
FIVE OTHERS. Both the complaint and Information also indicated that ADELINO was the only one
who committed the rape, while the FIVE OTHERS were merely accomplices.
On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include
the allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3)
days, which allegation could be taken into account in connection with Illegal Detention 2 but not
in connection with Forcible Abduction. 3 Since according to Exhibit "C", MARCELINA was
"kidnapped" at midnight of December 14th, and ADELINO was arrested in the morning of
December 17th, or an interval of less than 72 Hours, it could not be correctly pleaded that
MARCELINA was deprived of liberty for three (3) days. 4
After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967,
in which he specifically argued that "the prosecution did not establish the elements of Rape and
Illegal Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in
the Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the crime
which should be imputed to ADELINO is Rape with Forcible Abduction. The prosecution's
Memorandum stated:
 Although the information is for Rape with Illegal Detention instead of Rape
with Forcible Abduction, yet from the body of the information it could be
clearly gleaned that the elements of abduction are sufficiently alleged therein
and hence the accused can be convicted thereunder (People vs. Emiliano
Javete, CA 01956-57-CR April 7, 1964 (82-1965).
The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with
Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced him
to death.
The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she
and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta. Rita,
Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14, 1965
while she was then eating supper, ADELINO, whom she knew when they were "still small", and
who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS, entered the house
and began drinking "sho hoc tong" which they brought along. After the liquor had been fully
consumed, Silvino Odal broke the kerosene lamp causing complete darkness. She then ran to the
room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed
her, tried to extricate her from her mother's embrace and dragged the two of them to the sala.
Pedro Odal choked the mother's neck thereby loosening her hold on the daughter and the four
males, two of whom were armed with bolos, forced her downstairs and by holding and dragging
her, brought her to the mountain about two kilometers from Barrio Crossing. That was about 12
midnight. On the way, ADELINO slapped her rendering her unconscious. She regained
consciousness in a hut, with ADELINO holding her hands, and removing her panty. She bit and
kicked him. Despite her struggle, ADELINO succeeded in having sexual intercourse with her
while his other companions stayed outside on guard.
Under cross-examination, MARCELINA declared that she did not know who owned the hut and
that it was just a one-room affair where a woman and two small children lived; that she and
Appellant slept in that same room as the woman, while the FIVE OTHERS slept near the kitchen. 5
At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS
brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon
at the house of one called Ceferino (also called Cipriano) who lived there with his family. She was
kept in one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed
with bolos, drinking and guarding her. In the evening, ADELINO had another sexual intercourse
with her even though she bit and kicked him and shouted for help which was to no avail as all
present were relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita
(daughter of Ceferino) the next day, because ADELINO threatened to kill her if she did not. Her
curling paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma
Fernandez (her cousin) who gave the equipment as she (Norma) was also threatened.
MARCELINA and her "captors" stayed in Ceferino's house for two days. In the morning of
December 17, two soldiers with her father, Alejo Cuizon, arrived. The soldiers apprehended
ADELINO while the FIVE OTHERS jumped down the window and fled. Upon her father, she
embraced him and cried. They all returned to Barrio Crossing. She and her mother, Maria
Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's Office on
December 20, 1965 and submitted to a medical examination at the Samar Provincial Hospital.
When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were
living in the same hut where she was taken the second time, which hut was about waist high from
the ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the
room and the sala was a wall of split bamboos so that noise inside the room could be heard clearly
from the other side. 6
Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he
examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the following
findings:
1. No evidence of external injuries around the vulva or any part of the body.
2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.
3. Vagina easily admits two fingers.
4. Vaginal smear negative for spermatozoa 7
Explaining the "old healed laceration", the doctor stated that laceration may have been caused
by possible sexual intercourse or other factors, and if it were intercourse, he estimated that it
could have occured " say, two weeks or one month" or possibly more. 8
For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but
denied having raped her. He claims that they eloped on December 14 to 17, 1965 as previously
planned, they having been sweethearts since November 12, 1964. As such, they used to date in
Tacloban and "anything goes". MARCELINA's family used to have a house in Barrio Crossing but
now MARCELINA just stays in the house of her aunt, Sofia, which is about five houses away from
theirs. In the evening of December 14, 1965, while Sofia, MARCELINA's mother and others were
eating, MARCELINA handed him a bag and beauty culture equipment through the window, went
downstairs, after which the two of them walked to the mountains, to Ceferino Armada's house.
Ceferino was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with 18-
year old Narita, Ceferino's daughter. While in that hut, food was brought to them by his sister,
Nenita. MARCELINA curled Narita's hair the next day.
In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's
father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him
and embraced him and said she was to blame. notwithstanding, he was boxed by the soldiers as
instructed by MARCELINA's father and taken to Maulong PC Headquarters for questioning.
During the investigation, he was boxed and kicked and was forced to sign a statement implicating
the FIVE OTHERS as his companions even if untrue. He did not know who attested to his
statement as one Sgt. Gacelos took the document elsewhere.
Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly
brought the second time, corroborated that portion of ADELINO's testimony regarding their stay
in his house adding that MARCELINA and ADELINO had told him that they had eloped; that
MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's), and helped in
house chores and in the threshing of palay, while ADELINO helped in carrying palay because it
was rainy.
The trial Court found the prosecutors version of the incident more worthy of credence stating
that Complainant had no improper motive to implicate ADELINO in such a detestable crime as
Rape.
On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has
not been established beyond reasonable doubt.
In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on
the credibility of a complainant's testimony since by the intrinsic nature of those crimes they
usually involve only two persons — the complainant and the accused. The offended party's
testimony, therefore, must be subjected to thorough scrutiny for a determination of its veracity
beyond reasonable doubt.
In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards
raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable.
To start with, according to the medical findings, "no evidence of external injuries was found
around the vulva or any part of the body" of Complainant, a fact which is strange, indeed,
considering that Complainant was allegedly "dragged" slapped" into unconsciousness,
"wrestled" with, and criminally abused. Physical evidence is of the highest order and speaks more
eloquently than an witnesses put together. We are also faced with the medical finding of "old
healed lacerations" in the hymen which, according to the testimony of the examining physician
would have occurred two weeks or even one month before if said lacerations had been caused
by sexual intercourse. This expert opinion bolsters the defense that MARCELINA and ADELINO
had previous amorous relations at the same time that it casts serious doubts on the charge of
intercourse by force and intimidation.
Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room
affair occupied by a woman and two small children. Her charge, therefore, that she was ravished
in that same room is highly improbable and contrary to human experience.
Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that
of Ceferino Armada, consisted of a small room separated from the sala by a wall of split bamboos.
Further, that Ceferino with his wife and seven children all lived therein. It challenges human
credulity that she could have been sexually abused with so many within hearing and distance. It
is unbelievable, too, that under those circumstances the FIVE OTHERS could have stood guard
outside, armed with bolos and drinking, while ADELINO allegedly took advantage of her. If rape
were, indeed, their malevolent intent, they would, in all probability, have taken turns in abusing
her. That they did not, indicates that there was, indeed, some special relationship between
MARCELINA and ADELINO. Furthermore, with people around, and the hut constructed as it was,
it would have been an easy matter for MARCELINA to have shouted and cried for help. Surely,
the old man Ceferino, his wife and/or his children could not have been insensible to her outcries
notwithstanding their relationship to ADELINO. The aphorism still rings true that evidence to be
believed must not only come from the mouth of a credible witness but must be credible in itself.
Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's
daughters, a fact inconsistent with her allegation of "captivity". That she was threatened with
death if she did not accede to such an inconsequential request defies credulity. The livelihood is
that, as the defense maintains, MARCELINA was not forcibly abducted but that she and ADELINO
had, in fact, eloped and that she had brought her beauty culture paraphernalia with her, or, that
she herself had sent for them from her cousin Norma Fernandez voluntarily and not under threat
from ADELINO.
The totality of the foregoing circumstances count with such great weight and significance that
they lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had
been "kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual
intercourse, it was because of force or intimidation exercised upon her. They are circumstances
that were overlooked by the trial Court and justify a reversal of its finding of guilt as an exception
to the established rule that the findings of fact of a trial Judge based on the relative credibility of
witnesses are entitled to great respect and will not be disturbed by appellate Courts.
This case also constitutes an exception to the general belief that a young girl would not expose
herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit
who had ravished and shamed her placed behind bars. As we view it, MARCELINA was
confronted with a paradoxical situation as a daughter of relative tender age who could not
shamefacedly admit to her parents that she had eloped and voluntarily submitted to sexual
intercourse, since that elopement must have met with righteous indignation on the part of her
parents. As a result, MARCELINA was faced with no other choice but to charge ADELINO with
rape or incur the ire of her parents and social disrepute from a small community.
In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial
confession made by an accused shag not be sufficient ground for conviction unless corroborated
by evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that
the crime prosecuted had been committed. That proof has not been met in the case at bar, the
evidence establishing more of an elopement rather than kidnapping or illegal detention or
forcible abduction, and much less rape. Moreover, ADELINO, aged 18, was by himself when being
investigated by soldiers, 10 without benefit of counsel nor of anyone to advise him of his rights.
Aside from his declaration that Ws confession was obtained through maltreatment and
violence, 11 it was also vitiated by a procedural irregularity testified to by no less than
prosecution witness Sgt. Pedro Gacelos to the effect that he and room after he presented the
statement to the Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so
called confession was attested without ADELINO's presence so that the latter cannot be said to
have duly subscribed and sworn to it.
It should also be noted that throughout the hearings before the trial Court, it was assumed that
ADELINO was being held responsible for the complex crime of Rape with Illegal Detention. While
it is true that an accused can be punished for a crime described by the facts alleged in tile
Information despite a wrong designation of the crime in the preamble of the Information, 13 yet,
in capital cases, it should be desirable that, whenever a discrepancy is noted between the
designation of the crime made by the Fiscal and the crime described by the facts pleaded in his
Information. The lower Court should call attention of the accused to the discrepancy, so that the
accused may be fully apprised of the nature and cause of the accusation against him. This was
not done in regards to ADELINO who all the time was under the impression that he was being
tried for Rape with Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had
known that he was being tried for Forcible Abduction with Rape, he may have changed the
strategy or tactics of his defense. Not that it could be said he would have done so; but he should
have been advised he had the right, and given the opportunity, to do so.
Again, one of the rights of an accused is "to have compulsory process issued to secure the
attendance of witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in the
house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well as the
hair of other girls in the vicinity.
ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But
instead of taking effective steps to have Narita brought to Court, the lower court gave
responsibility for Narita's attendance to the defense, expressly stating that, if the defense was not
able to bring her to the Court, her testimony will be dispensed with. The record shows:
ATTY. BOHOL
I appear as counsel for the accused. Up to now, Your Honor,
the witnesses we have been expecting have not yet arrived.
This representation, with the consent of the Clerk of Court
have wired the Chief of Police of Sta. Rita, Samar to bring
Ceferino Armada and Narita Armada tomorrow for the
hearing, continuation of this case for those persons
mentioned to testify, your Honor, for the accused. We pray,
Your Honor, that we be given time to hear from the Chief
of Police to bring those persons tomorrow, Your Honor.
COURT
What will be the nature of the testimonies of those
witnesses.
xxx xxx xxx
COURT
How about the other girl?
ATTY. BOHOL
Narita Armada will substantially be corroborative, Your
Honor.
COURT
Suppose the two witnesses do not arrive tomorrow, for
which this case is set also?
ATTY. BOHOL
If we receive information and find that those witnesses
could really not come for this case, Your Honor, I will be
constrained to submit the case for decision based on the
testimony of the accused. However, Your Honor, if it will be
all right with the Honorable Court and we find that there is
hope that within this week Ceferino Armada could come
here, in view of the distance, I pray before the Honorable
Court that we be given time within this week to present
Ceferino Armada, and upon his failure, submit the case for
decision
COURT
The Court will not allow that anymore, anyway this case is
set for tomorrow. The Court wail grant the postponement
today on condition that any witness not presented
tomorrow will be considered waived Afterall as you have
manifest, 4 their testimonies will be corroborative.
xxx xxx xxx
COURT
What I mean is that you should have taken the necessary
precaution for the attendance of your witness today
considering that there is a subpoena for the witnesses.-
ORDER - for the reason that accused have no more
witnesses to present today, the trial of this case is hereby
Postponed for tomorrow, July 26, 1967 at 8:30 A.M., with
the warning that witnesses not presented during that day
shall be considered waived. 15
Considering that this case involved a prosecution for a capital offense, the lower Court acted
precipitously in not having Narita brought to Court, by ordering her arrest if necessary ADELINO
was deprived of his right "to have compulsory process issued to secure the attendance of
witnesses on his behalf."
Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA
testified before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC
Sgt. who investigated the complaint against ADELINO, testified:
 Q. Was that investigation of M Cuizon reduced to writing?

A. Yes, Sir. 16

It would have been advisable if the lower Court had right then and there asked for the production
of the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse
previous to December 14th. On the other hand, ADELINO had testified that he and MARCELINA
used to go together to Tacloban, and while there several times, "we had sexual intercourse
because she likes it." 17 Considering the possible infliction of the death penalty on ADELINO, the
lower Court could have asked MARCELINA if she had had sexual intercourse prior to December
14th and, if so, if it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The
lower Court could have asked MARCELINA if she realized that, charging ADELINO with Rape with
Illegal Detention, the latter could be sentenced to death. If that had been explained to her clearly
by the lower Court, she might then have admitted that she was neither raped nor "kidnapped"
nor illegally detained.

MARCELINA could had been examined on the two matters mentioned above, with the Court
excluding the public from the hearing under the provisions of Rule 119, Section 14. MARCELINA
might have testified without feeling the pressure of her relatives or other persons, if such
pressure had in fact existed.

It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged
trial Judges have been enjoined to refrain from accepting them with alacrity but to be extra
solicitous in seeing to it that an accused fully understands the import of his plea, so also, in
prosecutions for capital offenses, it behooves the trial Courts to exercise greater care in
safeguarding the rights of an accused. The trial Judge should also take a more active role by
means of searching questions in the examination of witnesses for the ascertaintment of the truth
and credibility of their testimonies so that any judgment of conviction imposing the supreme
penalty may rest on firm and unequivocal grounds. The life and liberty of an individual demand
no less.

WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty,
is reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged.
His immediate release is ordered unless lie is held on other charges.

Costs de oficio.

SO ORDERED.
G.R. Nos. 108280-83 November 16, 1995
ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
G.R. Nos. 114931-33 November 16, 1995
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS
SANTOS, and JOSELITO TAMAYO, accused-appellants.
PUNO, J.:
The case before us occurred at a time of great political polarization in the aftermath of the 1986
EDSA Revolution. This was the time when the newly-installed government of President Corazon
C. Aquino was being openly challenged in rallies, demonstrations and other public fora by
"Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity
between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the
murder of Stephen Salcedo, a known "Coryista."
From August to October 1986, several informations were filed in court against eleven persons
identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-
47322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-
47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case
No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against
Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat.
Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin
Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.
The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of
the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution
presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo,
and the police officers who were at the Luneta at the time of the incident. In support of their
testimonies, the prosecution likewise presented documentary evidence consisting of newspaper
accounts of the incident and various photographs taken during the mauling.
The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta
by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application
was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal
Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and
Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an
impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar
Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the
leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them
ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty.
Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators."
Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear
gas and truncheons to disperse them. The loyalists scampered away but some of them fought
back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and
the situation later stabilized.1
At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the
Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos,
jogging around the fountain. They approached her and informed her of their dispersal and Annie
Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued
jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos,
Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few
minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang
gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the
loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow
shirt.2 He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting
"Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers
appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him.
Salcedo tried to extricate himself from the group but they again pounced on him and pummelled
him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo
Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers
so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing
him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to
Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from
them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo
on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him
even as he was already fallen.3Salcedo tried to stand but accused Joel Tan boxed him on the left
side of his head and ear.4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan,
Cory Iyan. Patayin!"5 Sumilang tried to pacify Pacadar but the latter lunged at the victim again.
Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell.
Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to
stand, Sison repeatedly boxed him.6 Sumilang saw accused Gerry Neri approach the victim but
did not notice what he did.7
Salcedo somehow managed to get away from his attackers and wipe off the blood from his face.
He sat on some cement steps8 and then tried to flee towards Roxas boulevard to the sanctuary of
the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in
the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako."
He cried: "Pulis, pulis. Wala bang pulis?"9
The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo
collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic
officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took
him to the Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions,
abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem
findings:
Cyanosis, lips, and nailbeds.
 Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side;
6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm.,
face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left
suprascapular region; 6.0 x 2.8 cm., right elbow.
Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.
Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.
Hematoma, scalp; frontal region, both sides; left parietal region; right
temporal region; occipital region, right side.
Fractures, skull; occipital bone, right side; right posterior cranial fossa; right
anterior cranial fossa.
Hemorrhage, subdural, extensive.
Other visceral organs, congested.
Stomach, about 1/2 filled with grayish brown food materials and fluid.10
The mauling of Salcedo was witnessed by bystanders and several press people, both local and
foreign. The press took pictures and a video of the event which became front-page news the
following day, capturing national and international attention. This prompted President Aquino
to order the Capital Regional Command and the Western Police District to investigate the
incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo
Lim, then Police Chief, for persons who could give information leading to the arrest of the
killers.11Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the
police, and on the basis of their identification, several persons, including the accused, were
apprehended and investigated.
For their defense, the principal accused denied their participation in the mauling of the victim
and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the
photographs presented by the prosecution12 because on July 27, 1986, he was in his house in
Quezon City.13 Gerry Neri claimed that he was at the Luneta Theater at the time of the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta
waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia
impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos
admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that
he merely watched the mauling which explains why his face appeared in some of the
photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a
member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day.
According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed
the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting
Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo.
The maulers however ignored him. 21
The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in
their defense.
On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar,
Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder
qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion
temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise
convicted as an accomplice. The court, however, found that the prosecution failed to prove the
guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver
Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows:
WHEREFORE, judgement is hereby rendered in the aforementioned cases as
follows:
1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322,
the Court finds that the Prosecution failed to prove the guilt of the two (2)
Accused beyond reasonable doubt for the crime charged and hereby acquits
them of said charge;
2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court
finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond
reasonable doubt, as principals for the crime of Murder, defined in Article 248
of the Revised Penal Code, and, there being no other mitigating or aggravating
circumstances, hereby imposes on each of them an indeterminate penalty of
from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS,
of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion
Temporal, as minimum, to TWENTY (20) YEARS of Reclusion Temporal, as
Maximum;
3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the
Court finds the Accused Richard de los Santos guilty beyond reasonable doubt
as principal for the crime of Murder defined in Article 248 of the Revised Penal
Code and, there being no other extenuating circumstances, the Court hereby
imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS,
TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as
Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum;
4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court
finds the Accused guilty beyond reasonable doubt as principal, for the crime
of "Murder" defined in Article 248 of the Revised Penal Code and hereby
imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS,
TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as
Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;
5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court
finds that the Prosecution failed to prove the guilt of the Accused for the crime
charged beyond reasonable doubt and hereby acquits him of said charge;
 6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court
finds that the Prosecution failed to prove the guilt of the Accused beyond
reasonable doubt for the crime charged and hereby acquits them of said
charge;
7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds
the said Accused guilty beyond reasonable doubt, as accomplice to the crime
of Murder under Article 18 in relation to Article 248 of the Revised Penal Code
and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and
FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS,
FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as
Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan,
Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and
severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as
actual damages and the amount of P30,000.00 as moral and exemplary
damages, and one-half (1/2) of the costs of suit.
The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan,
Richard de los Santos and Joselito Tamayo had been under detention during
the pendency of these cases shall be credited to them provided that they
agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail.
The Warden of the City Jail of Manila is hereby ordered to release the Accused
Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they
are being detained for another cause or charge.
The Petition for Bail of the Accused Rolando Fernandez has become moot and
academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and
Joselito Tamayo is denied for lack of merit.
The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are
hereby cancelled. 22
On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court
by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito
Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by
abuse of superior strength, but convicted Joselito Tamayo of homicide because the information
against him did not allege the said qualifying circumstance. The dispositive portion of the
decision reads:
PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as
follows:
1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y
Mostero and Richard de los Santos are hereby found GUILTY beyond
reasonable doubt of Murder and are each hereby sentenced to suffer the
penalty of Reclusion Perpetua;
2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond
reasonable doubt of the crime of Homicide with the generic aggravating
circumstance of abuse of superior strength and, as a consequence, an
indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum
to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed
upon him;
3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an
accomplice to the crime of Murder.
CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the
instant consolidated cases, the said cases are now hereby certified to the
Honorable Supreme Court for review. 24
Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as
Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us
for automatic review of the decision of the Court of Appeals against the four accused-appellants
sentenced to reclusion perpetua.
Before this court, accused-appellants assign the following errors:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED
THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT
THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME
FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF
STEPHEN SALCEDO.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING
CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND
INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO
SUMILANG.
III
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE
ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY
OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE
 ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF
THE DECEASED.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.
V Lim, much less that both or either of them ever received such reward from the government. On
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED
IN A TUMULTUOUS AFFRAY. 25
In their additional brief, appellants contend that:
I during the investigation of Salcedo's death. 31
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A
CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-
SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE
TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT,
ALL CONTRARY TO THE RULES OF EVIDENCE.
II
THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D",
"G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT
PROPERLY IDENTIFIED.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING
THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING
ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN
TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL
GROUNDS SURROUNDING THE INCIDENT. 26
Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies
of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because
they are unreliable, doubtful and do not deserve any credence. According to them, the
testimonies of these two witnesses are suspect because they surfaced only after a
reward was announced by General Lim. Renato Banculo even submitted three sworn
statements to the police geared at providing a new or improved version of the incident.
On the witness stand, he mistakenly identified a detention prisoner in another case as
accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive
prompting the trial court to reprimand him several times. 28
There is no proof that Banculo or Sumilang testified because of the reward announced by General
the contrary, the evidence shows that Sumilang reported the incident to the police and submitted
his sworn statement immediately two hours after the mauling, even before announcement of any
reward. 29 He informed the police that he would cooperate with them and identify Salcedo's
assailants if he saw them again. 30
The fact that Banculo executed three sworn statements does not make them and his testimony
incredible. The sworn statements were made to identify more suspects who were apprehended
The records show that Sumilang was admonished several times by the trial court on the witness
stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's
testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the
whole, his testimony was correctly given credence by the trial court despite his evasiveness at
some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate
the credence of witnesses considering their visual view of the demeanor of witnesses when on
the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions
of a witness' testimony.
Banculo's mistake in identifying another person as one of the accused does not make him an
entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest
mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected
from persons with imperfect senses. In the court's discretion, therefore, the testimony of a
witness can be believed as to some facts but disbelieved with respect to the others. 34
We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate
each other on all important and relevant details of the principal occurrence. Their positive
identification of all petitioners jibe with each other and their narration of the events are
supported by the medical and documentary evidence on record.
Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that
the victim had various wounds on his body which could have been inflicted by pressure from
more than one hard object. 35 The contusions and abrasions found could have been caused by
punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was
a result of fractures in Salcedo's skull which may have been caused by contact with a hard and
blunt object such as fistblows, kicks and a blunt wooden instrument. 37
Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified
that Salcedo was pummeled by his assailants with stones in their hands. 38
Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G,"
and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1"
to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police
intelligence-operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores
properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating
the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution
witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to
impeach the said affidavit, they should have placed Pat. Flores on the witness stand.
Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the
Luneta — starting from a grassy portion to the pavement at the Rizal Monument and along Roxas
Boulevard, 41 — as he was being chased by his assailants 42 and as he sat pleading with his
assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling
published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms.
Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these
photographs is being questioned by appellants for lack of proper identification by the person or
persons who took the same.
The rule in this jurisdiction is that photographs, when presented in evidence, must be identified
by the photographer as to its production and testified as to the circumstances under which they
were produced. 48 The value of this kind of evidence lies in its being a correct representation or
reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying
the scene at the time of the crime. 50 The photographer, however, is not the only witness who can
identify the pictures he has taken. 51 The correctness of the photograph as a faithful
representation of the object portrayed can be proved prima facie, either by the testimony of the
person who made it or by other competent witnesses, after which the court can admit it subject
to impeachment as to its accuracy. 52Photographs, therefore, can be identified by the
photographer or by any other competent witness who can testify to its exactness and accuracy. 53
This court notes that when the prosecution offered the photographs as part of its evidence,
appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of
proper identification. 54 However, when the accused presented their evidence, Atty. Winlove
Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48"
to prove that his clients were not in any of the pictures and therefore could not have participated
in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and
accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas
represented all the other accused per understanding with their respective counsels, including
Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to
cross-examine all the accused who took the witness stand. 56 No objection was made by counsel
for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a
continuing objection to their admissibility. 57
The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that
the person who took the same was not presented to identify them. We rule that the use of these
photographs by some of the accused to show their alleged non-participation in the crime is an
admission of the exactness and accuracy thereof. That the photographs are faithful
representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo
Pacadar and Joel Tan identified themselves therein and gave reasons for their presence
thereat. 58
An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the
appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in
various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo
Sison appears only once and he, although afflicted with hernia is shown merely running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the
two appellants in the photographs does not exculpate them. The photographs did not capture the
entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not
record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and
Banculo61Appellants' denials and alibis cannot overcome their eyeball identification.
Appellants claim that the lower courts erred in finding the existence of conspiracy among the
principal accused and in convicting them of murder qualified by abuse of superior strength, not
death in tumultuous affray.
Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:
Art. 251. Death caused in a tumultuous affray. — When, while several persons,
not composing groups organized for the common purpose of assaulting and
attacking each other reciprocally, quarrel and assault each other in a confused
and tumultuous manner, and in the course of the affray someone is killed, and
it cannot be ascertained who actually killed the deceased, but the person or
persons who inflicted serious physical injuries can be identified, such person
or persons shall be punished by prison mayor.
If it cannot be determined who inflicted the serious physical injuries on the
deceased, the penalty ofprision correccional in its medium and maximum
periods shall be imposed upon all those who shall have used violence upon
the person of the victim.
For this article to apply, it must be established that: (1) there be several persons; (2)
that they did not compose groups organized for the common purpose of assaulting and
attacking each other reciprocally; (3) these several persons quarrelled and assaulted
one another in a confused and tumultuous manner; (4) someone was killed in the
course of the affray; (5) it cannot be ascertained who actually killed the deceased; and
(6) that the person or persons who inflicted serious physical injuries or who used
violence can be identified.62
A tumultuous affray takes place when a quarrel occurs between several persons and they engage
in a confused and tumultuous affray, in the course of which some person is killed or wounded
and the author thereof cannot be ascertained.63
The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and
one individual. Confusion may have occurred because of the police dispersal of the rallyists, but
this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a
while later after said dispersal that one distinct group identified as loyalists picked on one
defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and
blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a
reciprocal aggression at this stage of the incident.64
As the lower courts found, the victim's assailants were numerous by as much as fifty in
number65 and were armed with stones with which they hit the victim. They took advantage of
their superior strength and excessive force and frustrated any attempt by Salcedo to escape and
free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several
meters away and hit him mercilessly even when he was already fallen on the ground. There was
a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood
from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend
himself nor could he find means to defend himself. Sumilang tried to save him from his assailants
but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but
they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of
superior strength on a defenseless victim qualifies the killing to murder.
on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00
to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71
IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:
1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los
Santos are found GUILTY beyond reasonable doubt of Murder without any
aggravating or mitigating circumstance and are each hereby sentenced to
suffer the penalty of reclusion perpetua;
2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable
doubt of the crime of Homicide with the generic aggravating circumstance of
abuse of superior strength and, as a consequence, he is sentenced to an
indeterminate penalty of TWELVE (12) YEARS of prision mayor as minimum
to TWENTY (20) YEARS of reclusion temporal as maximum;
3. All accused-appellants are hereby ordered to pay jointly and severally the
heirs of Stephen Salcedo the following amounts:

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no (a) P74,000.00 as actual damages;
proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants'
safety from any defense the victim could have made. True, the attack on Salcedo was sudden and (b) P100,000.00 as moral damages; and
unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or
because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling
him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the (c) P50,000.00 as indemnity for the death of the victim.
rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of
treachery is the sudden and unexpected attack without the slightest provocation on the part of Costs against accused-appellants.
the person being attacked. 66
SO ORDERED.
The qualifying circumstance of evident premeditation was alleged in the information against
Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack
against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-
called "Coryistas." It was not preceded by cool thought and reflection.

We find however the existence of a conspiracy among appellants. At the time they were
committing the crime, their actions impliedly showed a unity of purpose among them, a
concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a
showing as to who among the conspirators inflicted the fatal wound is not required to sustain a
conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent
and character of their participation, because the act of one is the act of all. 68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral
and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986,
Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in
Saudi Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought
Adamczuk v. Holloway, 13 A.2d 2 (Pa. 1940)
Supreme Court of Pennsylvania
Filed: April 9th, 1940
Precedential Status: Precedential
Citations: 13 A.2d 2, 338 Pa. 263
Docket Number: Unknown
Panel: H. Edgar Barnes, James B. Drew, William B. Linn, George W. Maxey, Marion D.
Patterson, William I. Schaffer, Horace Stern
Author: George W. Maxey
Plaintiffs brought an action in trespass against defendants for personal injuries and property
damage arising out of a collision between a car owned and operated by plaintiff, Jack J. Adamczuk,
and a car owned by defendant, Morris Cohen, and driven by defendant, Elmer Holloway. (A cross-
action with the present defendants as plaintiffs and Jack J. Adamczuk as defendant resulted in a
verdict for the latter.)
The accident took place at about 9:30 p. m. on January 31, 1938, in Warren County, New Jersey,
where highway route 6, leading from Portland, Pennsylvania, to New York City, in a direction
which is practically west to east, is crossed by the Bridgeville Road, leading from Blairstown to
Phillipsburg, New Jersey, in a direction which is generally north and south. Adamczuk was
driving southwardly on the Bridgeville Road and Holloway was driving eastwardly on route 6.
The jury returned a verdict for defendants. Plaintiffs' motion for a new trial was refused and
these appeals followed.
The assignment of error which appellant stresses is based upon the refusal of the court to admit
in evidence a certain photograph of the locus of the accident and the approach to it on highway
route 6.
When plaintiff, Jack Adamczuk, was on the stand, he was shown "Exhibit No. 3" and he identified
the roads and buildings appearing in the picture and stated, in answer to his counsel, that "the
conditions represented by that picture truly represent the conditions of the crossing at the time
of this accident except for the fact of daylight or dark." Then the exhibit was offered in evidence.
On cross-examination it was disclosed that the witness did not know who took the picture or
when it *Page 265 was taken. He stated that when the picture was taken the location of the
camera was on route 6 but he did not know at what distance from the intersection. He had no
experience in photography. He said he did not know whether the photographer tilted the camera
up or down when the picture was taken, and he did not know whether the photographer
"endeavored to accentuate certain parts of the picture." The court then sustained the objection
to the picture's introduction.
It was offered in evidence again when Herbert C. Dillard, Civil Engineer and County Surveyor,
was on the stand. He was asked on cross-examination by defendant's counsel: "If you were taking
a picture, and wanted to accentuate the curve of route six to the west, you could accomplish that
by taking the picture farther away from the intersection, that is, farther to the east of the
intersection, could you not?" He answered: "I think you could, yes." This witness was asked if he
took photographs and developed them. He answered: "Very little."
At the close of plaintiff's case the picture was again offered in evidence and was objected to and
the objection sustained, the court saying: "There is some mystery about exhibit number three,
which is not clear to the court. There is no proof of who took it, or any identity as to the picture,
other than the physical view thereon; it isn't shown where the camera was standing, under what
conditions it was taken, and whether it was taken with a view to distorting it or not." The court
then commented on the fact that plaintiff had two days "since adjournment last Friday, to procure
the original taker of this photograph and thus establish it in the legal way with the right of cross-
examination to defendants' counsel of the photographer."
The rule is well settled that a photograph may be put in evidence if relevant to the issue and if
verified. It does not have to be verified by the taker. See Wallace v. R. R. Co.,222 Pa. 556, 71 A.
1086, and Com. v. Swartz, *Page 266 40 Pa. Super. 370. Its verification depends on the
competency of the verifying witness and as to that the trial judge must in the first instance decide,
subject to reversal for substantial error.
Wigmore on Evidence (2d ed.), Vol 2, sec. 792, p. 97, says: "The objection that a
photograph may be so made as tomisrepresent the object is genuinely directed against its
testimonial soundness; but it is of no validity. It is true that a photograph can be deliberately so
taken as to convey the most false impression of the object. But so also can any witness lie in his
words. A photograph can falsify just as much and no more than the human being who takes it or
verifies it. The fallacy of the objection occurs in assuming that the photograph can come in
testimonially without a competent person's oath to support it. If a qualified observer is found to
say, 'This photograph represents the fact as I saw it,' there is no more reason to exclude it than if
he had said, 'The following words represent the fact as I saw it,' which is always in effect the tenor
of a witness's oath. If no witness has thus attached his credit to the photograph, then it should
not come in at all, any more than an anonymous letter should be received as testimony." Section
793: "The map or photograph must first, to be admissible, be made a part of some
qualifiedperson's testimony. Someone must stand forth as its testimonial sponsor; in other words,
it must be verified. There is nothing anomalous or exceptional in this requirement of verification;
it is simply the exaction of those testimonial qualities which are required equally of all witnesses;
the application merely takes a different form." In other words, if a witness is familiar with the
scene photographed and is competent to testify that the photograph correctly represents it, it
should, if relevant, be admitted.
But there is also a rule giving the trial judge discretion to reject a picture on the ground that the
evidence is cumulative or that the photograph is unnecessary. In *Page 267 Kaufman v. Nat.
Lumber Ins. Co., 231 Pa. 642, 81 A. 53, there was an assignment of error based on the action of
the court below in sustaining the objection to the admission of certain photographs of the locus
in quo. The photographs were objected to on the ground that they were taken by an
inexperienced amateur photographer, that they were not taken with care and that, as the jury
had personally visited the ground, the photographs were unnecessary for a proper
understanding of the case. This court, in overruling that assignment of error, said: "This was a
matter peculiarly for the trial judge to pass upon in the exercise of his discretion."
In Marcinkiewicz v.Kutawich, 87 Pa. Super. 260, that court said: "The question of the sufficiency
of the preliminary proofs to identify a photograph and show that it is a fair representation of the
objects which it purports to portray, is a question committed to the discretion of the trial judge."
While the court might well have admitted the challenged photograph in evidence and have
warned the jury of a photograph's deceptive possibilities, we do not find that its exclusion under
the facts of this case amounted to reversible error, for, as the court below pointed out, "the jury
had the benefit of several other photographs showing the intersection and the roads for some
distance on which the plaintiffs and the defendant Holloway were driving, and, in addition to
that, had the lengthy testimony of County Engineer Dillard." This engineer testified about the 2
1/2% grade on the Bridgeville Road as it approached the intersection, as to the objects that
would obstruct the vision of persons approaching the intersection, and he described the
curvature on Route 6 near the intersection. The jury had all the testimony they needed as to the
crossroads and as to the road's curvature.
Appellants contend that the admission of this photograph was of importance because it would
show that at the intersection a person could see to the west, if he held *Page 268 his head at a 45
degree angle, only a distance of about 200 feet. The engineer testified that a person at the
intersection had a clear, unobstructed view to the west of 793 feet. Jack Adamczuk, in explaining
why he did not see the car coming from the west, said that he had his head turned at a 45 degree
angle. Appellees contend that this excuse is of no avail to him and that had be held his head in a
normal position he would have had an unobstructed view to the west of nearly 800 feet. The
assignment of error based on the exclusion of the photograph is overruled.
The assignments of error based on the court's limitation of the cross-examination of defendant
Holloway, are also overruled. We find the court's discretion in limiting cross-examination was
not abused.
The judgment is affirmed.
State v. Tatum
58 Wn.2d 73 (1961)
360 P.2d 754
THE STATE OF WASHINGTON, Respondent, v. RALPH TATUM, Appellant.[*]
No. 35383.
The Supreme Court of Washington, Department Two.
April 6, 1961.
Moore & Rabideau, for appellant.
Roger L. Olson, for respondent.
*74 DONWORTH, J.
Ralph Tatum (hereinafter called appellant) was convicted of the crime of first-degree forgery and
was sentenced to life imprisonment as an habitual criminal.
The essential facts of the case are summarized as follows:
One William Tousin, of Pasco, received monthly welfare checks from the state of Washington. In
February, 1960, Tousin did not receive his check (the checks were generally mailed to a rooming
house in Pasco where Tousin resided.) The mail was normally left on a window ledge in the
hallway of the rooming house. Appellant resided at the same place. Tousin's February check for
$28.90 was endorsed and cashed at Sherman's Food Store in Pasco by someone other than the
payee, Tousin.
An employee of the store, Caroline Pentecost, testified that although she could not specifically
recall the above-mentioned transaction, the initials appearing on the face of the check were hers.
She also testified that whenever a check was presented to her for payment at the store, the store
manager had instructed her to initial it and then insert it into a "Regiscope" machine. This
machine is designed to simultaneously photograph, through two separate lenses, both the check
and the person facing the machine.
When it was discovered that the endorsement of the payee was a forgery, the Regiscope film of
the transaction was sent to the Regiscope distributor in Portland to be developed. The processed
film shows both the check and the person of appellant (from his waist up) with the food store in
the background. Upon the trial, both the negative and the print therefrom were admitted in
evidence, over appellant's objection.
This appeal presents two questions for our consideration:
(1) Were the Regiscope films (the negative and the print) authenticated sufficiently to warrant
their admission into evidence? (2) Did Phillip Dale, the Regiscope distributor, qualify as an expert
witness with respect to the filming process despite the fact that he was not a photographer by
profession?
*75 [1] At the outset, with respect to the question of the admissibility of the Regiscope films, it
should be noted that this court has for many years encouraged the admission and use of
demonstrative evidence, including photographs. See Kelly v. Spokane, 83 Wash. 55, 145 Pac. 57
(1914); Norland v. Peterson, 169 Wash. 380, 13 P. (2d) 483 (1932); Cady v. Department of Labor
& Industries, 23 Wn. (2d) 851, 162 P. (2d) 813 (1945). There is equally well-established
precedent for the proposition that the admission or rejection of photographs as evidence lies
within the sound discretion of the trial court. See Quayle v. Knox, 175 Wash. 182, 27 P. (2d) 115
(1933); State v. Hardamon, 29 Wn. (2d) 182, 186 P. (2d) 634 (1947); State v. Little, 57 Wn. (2d)
516, 358 P. (2d) 120 (1961). We have also held that the trial court's discretion extends to the
sufficiency of identification. See Kellerher v. Porter, 29 Wn. (2d) 650, 189 P. (2d) 223 (1948), and
the cases cited therein.
[2] What quantum of authentication do courts require before a photograph may be admissible in
evidence? It is simply this that some witness (not necessarily the photographer) be able to give
some indication as to when, where, and under what circumstances the photograph was taken,
and that the photograph accurately portray the subject or subjects illustrated. See 9 A.L.R. (2d)
899. The photograph need only be sufficiently accurate to be helpful to the court and the jury.
See Hassam v. J.E. Safford Lbr. Co., 82 Vt. 444, 74 Atl. 197 (1909); Blake v. Harding, 54 Utah 158,
180 Pac. 172 (1919).
[3] Witness Pentecost testified that she recognized the background shown in the picture as that
of the food store, and, as mentioned previously, she also testified as to the store's standard
procedure of "regiscoping" each individual who cashed a check at the store. Phillip Dale testified
at length concerning the Regiscope process. The testimony of these two witnesses taken together
amounted to a sufficient authentication to warrant the admission of the photograph (both the
print and the negative) into evidence.
The authentication supplied by the testimony summarized above, of course, did not preclude
appellant from *76 attempting to prove that the individual portrayed was someone other than
appellant, that the photograph was inaccurate in one or more respects, that appellant was
somewhere else at the moment the photograph was taken, or any other such defense. But these
arguments go to the weight rather than to the admissibility of the exhibits in question. In our
opinion, the Regiscope exhibits, coupled with the other evidence produced by the state, sufficed
to establish a prima facie case of first-degree forgery.
[4, 5] The second question (whether or not witness Dale properly qualified as an expert witness
respecting the Regiscope process) presents less difficulty. The fact that Dale was not a
professional photographer and may have not understood all of the technical details of the
process, did not, from an evidentiary standpoint, disqualify him from expressing an opinion in
his testimony as to the possibility of altering a given Regiscope print. This court has many times
held that the question of whether or not a witness is qualified to express an expert opinion lies
within the sound discretion of the trial court. See Wilson v. Wright, 52 Wn. (2d) 805, 329 P. (2d)
461 (1958); Kelly v. Valley Constr. Co., 43 Wn. (2d) 679, 262 P. (2d) 970 (1953); and White v.
Fenner, 16 Wn. (2d) 226, 133 P. (2d) 270 (1943). In view of witness Dale's testimony that he
personally had developed "four to five hundred thousand" individual Regiscope films, we hardly
think that the trial court abused its discretion in this regard.
The judgment of the trial court is affirmed.