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AGGRAVATING CIRCUMSTANCES The penalty imposed by the lower court upon the appellant
being thus within the limits fixed by law, the judgment
THE PEOPLE OF THE PHILIPPINE ISLANDS, appealed from is affirmed with costs. So ordered.
PLAINTIFF AND APPELLEE, VS. MAGDALENA CALISO,
DEFENDANT AND APPELLANT. PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. BELINDA LORA Y VEQUIZO ALIAS LORENA
The appellant in this case was convicted of the crime of SUMILEW, ACCUSED-APPELLANT.
murder by the Court of First Instance of Occidental Negros,
and sentenced to suffer the penalty of reclusion perpetua, The defendant Belinda Lora y Vequizo alias Lorena
to indemnify the parents of the deceased in the sum of Sumilew was accused in the Court of First Instance of
P1,000, with the accessory penalties prescribed by law, Davao of serious illegal detention with murder in an
and to pay the costs. On this appeal, her counsel de oficio amended information which reads as follows:
attacks the findings of fact of the trial court, but does not
raise any question of law. The undersigned accuses the above-named accused of the
crime of Serious Illegal Detention with Murder under Art.
The questions of fact involved in this case are fully 267 in relation to Articles 248 and 48 of the Revised Penal
discussed in a well considered decision of the trial court, Code, committed as follows:
presided over by the then Judge Quirico Abeto.
That on or about May 28, 1975, in the City of Davao,
We agree to the conclusions of fact reached by the trial Philippines, and within the jurisdiction of this Honorable
court. As to the application of the law to the facts of the Court, the above-mentioned accused, being then a private
case, we are inclined to the proposition advanced by the person, wilfully, unlawfully and feloniously and for the
Attorney-General that in the commission of the crime the purpose of extorting ransom from spouses Ricardo Yap
aggravating circumstance of grave abuse of confidence and Myrna Yap, illegally detained their three (3) year old
was present since the appellant was the domestic servant child Oliver Yap, a minor, from May 28 to 29, 1975 and with
of the family and was sometimes the deceased child's treachery, evident premeditation and with intent to kill,
amah. The circumstance of the crime having been wilfully, unlawfully and feloniously attacked, assaulted
committed in the dwelling of the offended party, considered Oliver Yap by tying his mouth with stocking, placing him
by the lower court as another aggravating circumstance, inside a Pallmall cigarette box, covering the said box with a
should be dis- regarded as both the victim and the mat and piece of sack and filing the same with other boxes
appellant were living in the same house. (U. S. vs. in the third floor (bodega) of the house owned by said
Rodriguez, 9 Phil., 136; U S. vs. Destrito and De Ocampo, spouses Ricardo Yap and Myrna Yap, thereby inflicting
23 Phil., 28.) Likewise, threachery cannot be considered to upon said Oliver Yap the following to wit: "Asphyxia due to
aggravate the penalty as it is inherent in the offense of suffocation" which caused the death of said Oliver Yap.
murder by means of poisoning (3 Viada, p. 29). Similarly
the finding of the trial court that the appellant acted under That the commission of the foregoing offense was attended
an impulse so powerful as naturally to have produced by the following aggravating circumstances: (1) taking
passion and obfuscation should be discarded because the advantage of superior strength; (2) disregard of the respect
accused, in poisoning the child, was actuated more by a due the offended party on account of his age; (3) that the
spirit of lawlessness and revenge than by any sudden crime was committed in the dwelling of the offended party;
impulse of natural and uncontrollable fury (People vs. (4) that the crime was committed with abuse of confidence,
Hernandez, 43 Phil., 104, 111) and because such sudden she being a domestic helper (maid) or obvious
burst of passion was not provoked by prior unjust or ungratefulness; (5) that craft, fraud and disguise was
improper acts of the victim or of his parents (U. S. vs. employed; and (6) that the crime was committed with
Taylor, 6 Phil., 162), since Flora Gonzalez had the perfect cruelty, by deliberately and inhumanly augmenting the
right to reprimand the defendant for indecently converting suffering of the victim.
the family's bedroom into a rendezvous of herself and her
lover. Contrary to law.
The aggravating circumstance of abuse of confidence According to the trial judge, "he has appointed as counsel
being offset by the extenuating circumstance of defendants de oficio Atty. Hildegardo Iñigo a bar topnothcer with
lack of instruction considered by the lower court, the considerable practice," in view of the gravity of the offense.
medium degree of the prescribed penalty should, therefore,
be imposed, which, in this case, is reclusion perpetua. Upon motion of the counsel for the accused, the
arraignment was postponed to enable him to study the
charge against the accused. Thereafter, after being
arraigned, the accused Belinda Lora, in the presence and amount of P3,000.00 to the island infront of the (Davao)
with the assistance of her counsel, entered a plea of guilty Regional Hospital and to go there alone without any
in Visayan dialect, which is her native dialect. policeman or companion, after which his son (Oliver) would
be left to the security guard of the hospital at the
The Court thereafter directed the prosecution to present its emergency exit.[6]
evidence and the counsel for the accused manifested that
the evidence of the defense would be presented only for The Yaps borrowed the amount of P3,000.00. Upon
proving mitigating circumstances. instructions of the NBI, the money was marked with Mrs.
Yap's initials "MY".[7]
Eight witnesses for the prosecution, namely: Myrna Yap,
David Cortez, Fidencio Bisnar, Ricardo Yap, Agaton Ricardo Yap wrapped the P3,000.00 in a piece of paper
Bonahos, Emmanuel Mesias, Rolando Estillori and Juan and went to the Regional Hospital at 9:30 in the evening of
Abear, Jr. were presented. May 28, 1975. He placed the money near the Imelda
Playground. He proceeded to the hospital and looked for
The facts are undisputed. his child from the security guard. However, the security
guard said nobody left a boy with him.[8] Ricardo Yap
On May 26, 1975, accused Belinda Lora, using the name stayed at a corner looking and calling for his child but could
"Lorena Sumilew", applied as a housemaid in the not locate him. After ten minutes, he went back to where he
household of the spouses Ricardo Yap and Myrna Yap at had placed the money but the money was not there
373 Ramon Magsaysay Avenue, Davao City. The spouses anymore. He waited until 11:00 o'clock, after which he went
had a store on the ground floor; a mezzanine floor was home.[9]
used as their residence; while the third floor was used as a
bodega for their stocks. They had two children, Emily and The following morning, May 29, 1975, Mrs. Yap received a
Oliver Yap. Oliver was 3 years and five months old.[1] phone call from the accused informing her that her son was
at the Minrapco Terminal and that she was asking for
Belinda Lora was accepted as a housemaid in the re- another P3,000.00. Mrs. Yap proceeded to the terminal
sidence of the Yaps and reported for work the following whereupon she learned that the terminal had moved to a
day, May 27, 1975. Her duties were to wash clothes and to place near a theatre. When Myrna Yap arrived at the place,
look after Oliver Yap.[2] she saw the accused board a Minica bus. She followed and
grabbed the accused.[10] As the accused said that Mrs.
On May 28, 1975, Mrs. Myrna Yap returned home from the Yap's son was brought to the Regional Hospital, they pro-
market to find her mother-in-law and her husband panicky ceeded there. Upon arriving there, a couple, Mr. and Mrs.
because their son, Oliver, and the maid, accused Belinda Bonahos, said that the Yap son was in Panacan. Mrs. Yap
Lora, were missing. The mother-in-law had found a ransom and the accused went to Panacan. After arriving at
note at the stairway to the mezzanine floor. The note said Panacan, the accused told Mrs. Yap that her son was in the
that Oliver was to be sold to a couple and that the writer custody of a woman whom she paid P100.00 and that the
(defendant herein) needed money for her mother's woman would return her son at 6:00 o'clock P.M. that day.
hospitalization.[3] Four pieces of residence certificates were Mrs. Yap therefore, made the accused sign a promisory
also found inside the paper bag of the maid. One residence note that she would return Oliver on the same day.[11] After
certificate bore the No. 1941785 with the name "Sumiliw, the accused boarded a bus for Surigao, Mrs. Yap listed
Lorena Pamintil."[4] down the bus number and the seat number and reported to
Lt. Mesias of the Davao City Police Force that the
The incident was reported immediately to the police. Mrs. "kidnapper" was on board the Surigao bus.[12]
Yap, accompanied by one Mrs. Erlinda Velez, went to look
for Oliver and the housemaid. Not finding them in Davao Lt. Mesias stopped the bus and placed the accused under
City, they went to Digos and Bansalan (Davao) and looked arrest. From the body of the accused was taken an
in the hospitals there. The residence certificate in the name improvised pouch containing 36 pieces of P50.00 bills and
of Lorena Sumiliw was issued in Digos and the ransom 24 pieces of P20.00 bills. The money had initials reading
letter stated that the mother of the defendant was very "MY" below the serial numbers.[13]
sick.[5]
The following morning, May 30, 1975, upon waking up at
In the evening of May 28, 1975, the Yaps received two around 6 o'clock in his house, Ricardo Yap noticed that
telephone calls at their residence. The first call was blood was dripping from the ceiling. He went upstairs,
received by Mrs. Yaps's mother-in-law while the second which was being utilized as a bodega, to verify, and found
call was received by Ricardo Yap. Lorena Sumiliw his son placed inside the carton of Marlboro cigarettes. The
(defendant), the caller, instructed Ricardo Yap to bring the head of the child was inside the carton while his feet
protruded outside.[14] His mouth was tied with stockings.[15] The crime actually committed is not the complex crime of
The child was already dead.[16] He had died of "asphyxhia kidnapping with murder, as found by the trial court, but the
due to suffocation."[17] simple crime of murder qualified by treachery.
The defendant presented evidence only for the purpose of Kidnapping is a crime against liberty defined in Article 267,
proving alleged mitigating circumstances. She claims that Title IX, Book II of the Revised Penal Code. The essence of
she did not intend to kill the child.[18] kidnapping or serious illegal detention is the actual
confinement or restraint of the victim or the deprivation of
To support her plea for mercy, she stated that she had his liberty.[24]
three children aged from one to five years whom she left in
Pagadian.[19] On objection to the materiality of the "Where there is no showing that the accused intended to
evidence, the appellant's counsel pleaded that she be deprive their victims of their liberty for some time and for
allowed to prove those facts for "humanitarian some purpose, and there being no appreciable interval
consideration" which might enable the Supreme Court to between their being taken and their being shot from which
review the penalty with compassion.[20] kidnapping may be inferred, the crimes committed were
murder and frustrated murder and not the complex crimes
The defendant capped her testimony with the following of kidnapping with murder and kidnapping with frustrated
plea: murder."[25]
"A I would request the Honorable Court that LIFE In the instant case, the gagging of the child with stockings,
IMPRISONMENT will be the penalty imposed upon me placing him in a box with head down and legs upward and
because I really committed the crime. I did not really intend covering the box with some sacks and other boxes were
to kill the child. only the methods of the defendant to commit murder. The
child instantly died of suffocation. This is evident from the
Q Would you like to make any further appeal? testimony of Dr. Juan Abear, Jr. who performed the
autopsy on May 30, 1975 at 8 o'clock in the morning. When
A I really repent to what I have done, sir." [21] Dr. Abear conducted the autopsy, the body of the child was
already in a state of decomposition. Dr. Abear opined that
On cross-examination, the defendant admitted that she the child must have died three days before the autopsy.[26]
gagged the child's mouth with stockings; placed the child In other words, the child died practically on the very day
inside the box with head down and legs up; that she that the child was stuffed into the box on May 28, 1975.
covered the box with some sacks and boxes and left the
child in that condition inside the store room of the house of The demand for ransom did not convert the offense into
Ricardo Yap.[22] kidnapping with murder. The defendant was well aware that
the child would be suffocated to death in a few moments
When the defendant left the store room, the voice of the after she left. The demand for ransom is only a part of the
child, who was previously shouting, "was already slow and diabolic scheme of the defendant to murder the child, to
to make sure that his voice would not be heard I closed the conceal his body and then demand money before the dis-
door."[23] covery of the cadaver.
On the basis of the plea of guilt of the defendant and the There is treachery because the victim is only a 3-year old
evidence of the prosecution, the court convicted the child.[27] The commission of the offense was attended with
defendant with complex crime of serious illegal detention the aggravating circumstances of lack of respect due to the
with murder and imposed, among others, the extreme age of the victim, cruelty and abuse of confidence.
penalty of death.
"x x x. It is undisputed that the crime committed by the A conspiracy exists when two or more persons come to an
accused was robbery with homicide, and the killing of the agreement concerning the commission of a felony and
victim was done with the use of a gun. The heinous act decide to commit it, whether they act through the physical
was preceded by taking of the wallets, the watches and the volition of one or all, proceeding severally or collectively. [8]
money from the victim of the robbery. Whenever a It is also a settled rule that conspiracies need not be
homicide has been committed as a consequence, or on the established by direct evidence of acts charged but may and
occasion, of a robbery, all those who took part as principals generally must be proved by a number of indefinite acts,
in the robbery will also be held guilty as principals of the conditions, and circumstances which vary according to the
special complex crime of robbery with homicide (Pp v. purpose accomplished. The very existence of a conspiracy
Darwin Veloso y Militante, alias Carlito Villareal, accused- is generally a matter of inference deduced from certain acts
appellant, G.R. No. 32900, Feb. 25, 1982). In the case at of the persons accused, done in pursuance of an apparent
bar, evidence is strong and clear that Baltazar Beran did criminal or unlawful purpose in common between
not endeavor to prevent the homicide of the killing (sic) of them. The existence of the agreement, or joint assent of
Mike Chua by Dante Bartulay x x x."[6] the minds, need not be proved directly.[9]
The accused-appellant now faults the trial court for holding Confronted with the established fact of conspiracy to
inter alia that Beran should be held guilty of the homicide commit the robbery, the accused-appellant cannot plead
committed on the occasion of the robbery notwithstanding that he should not be held responsible for the murder on
that he was not the one who actually killed Chua; that he the ground that he did not conspire to commit it or that he
should have tried to prevent the killing of Chua but did not; had no opportunity to prevent its commission.
and that the aggravating circumstances of treachery,
evident premeditation, nighttime and use of a motor vehicle "The rule is that where the conspiracy to commit robbery
should not have been appreciated against him. was conclusively shown by the concurrent and coordinate
acts of the accused, and homicide was committed as a
The accused-appellant suggests that the case[7] cited by consequence or on the occasion of the robbery, all the
the lower court in convicting him is not applicable because accused are guilty of robo con homicidio whether or not
the crime involved therein was robbery with homicide they actually participated in the killing."[10]
committed by a band whereas the robbery in the instant
case was perpetrated only by two persons. The trial judge That rule was applied in People v. Puno,[11] where the
did err in this respect. Nevertheless, as the Solicitor accused and confederate Tenarife, in pursuance of a
General correctly points out, the offense, while not covered preconceived plan, boarded a jeep and held up its
by Article 296 of the Revised Penal Code, still comes under passengers, with Tenarife killing one of them after divesting
Article 294(1) which may also impose the death penalty him of his wallet and his watch. Puno himself robbed
"when by reason or on occasion of the robbery, the crime another passenger but did not participate in the shooting of
of homicide shall have been committed" even if cuadrilla is the deceased victim. Nonetheless he was held guilty of
not present. robbery with homicide as the killing was committed by
Tenarife in connection with the robbery which Puno and
Under this provision, it is enough to show conspiracy Tenarife had conspired to commit.
among the participants in the crime of robbery to render
each and every one of them liable for any homicide that "Generally, when robo con homicidio has been proven, all
may be committed by reason or on the occasion of such those who had taken part in the robbery are guilty of the
robbery. And in the instant case, evidence of such complex crime unless it appears that they endeavored to
conspiracy is not lacking. Indeed, it is not disputed that prevent the homicide (U.S. v. Macalalad, 9 Phil. 1;
Bartulay and Beran together went to the scene of the crime Decisions of Supreme Court of Spain dated Feb. 23 and
and lay in wait for Chua's truck; that they together April 30, 1972 and June 19, 1890; 3 Viada, Codigo Penal,
pretended to borrow a screwdriver from the victim; that 347, 354, 358)."[12]
be sentenced to death and the latter only to life
"It may be observed that, although Puno did not actually imprisonment. If any error has been committed with
take part in the killing of Oyong by Tenarife, his presence in respect to Laguardia's penalty - and the circumstances so
the jeepney was a crucial factor that emboldened his indicate - it is too late to correct it now as the same has
confederate in perpetrating that homicidal act with long since become final. By withdrawing his appeal,
impunity."[13] Laguardia may have benefited from the trial judge's
carelessness.
In People v. Veloso,[14] this Court held:
The trial court also does not clearly impute to Beran any
"x x x. Well entrenched is the rule that whenever a aggravating circumstance and merely hints at nighttime and
homicide has been committed as a consequence, or on the use of motor vehicle almost in passing. This is another
occasion, of a robbery, all those who took part as principals censurable flaw in the decision. It is no wonder that the
in the robbery will also be held guilty as principals of the Court itself is perplexed over the accused-appellant's
special complex crime of robbery with homicide, although assignment of error that the trial court had taken the said
they did not actually take part in the homicide, unless it several aggravating circumstances against him.
clearly appears that they endeavored to prevent the
homicide." In any event, it is clear that, as alleged in the amended
information, the crime committed by Beran was aggravated
That decision cited the earlier case of People v. by despoblado and justified the imposition on him of the
Mangulabnan,[15] where it was categorically declared: death penalty as prescribed by Article 294 of the Revised
Penal Code. The evidence shows that the accused lay in
"x x x in order to determine the existence of the crime of wait for the truck being driven by Chua at an isolated
robbery with homicide it is enough that a homicide would portion of Highway 36, choosing that particular spot where
result by reason or on the occasion of the robbery they could commit the crime they were planning without
(Decision of Supreme Court of Spain of Nov. 26, 1892, and disturbance or discovery and with easy opportunity for
Jan. 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267, escape.[16] The use of motor vehicles is also appreciated
and 259-260, respectively). This High Tribunal, speaking of because the conspirators drove away from the scene of the
the accessory character of the circumstances leading to the crime to facilitate their escape and also to prevent the other
homicide, has also held that it is immaterial that the death passengers of the truck, whom they took with them, from
would supervene by mere accident (Decision of Sept. 9, reporting the offense to the authorities.[17]
1886, Oct. 22, 1907, April 30, 1910 and July 14, 1917),
provided that the homicide be produced by reason or on Nighttime is rejected, however, because it was not
the occasion of robbery, inasmuch as it is only the result especially sought, as Chua's trip schedule and not the
obtained, without reference or distinction as to the discretion of the culprits determined the time of its
circumstances, causes, modes or persons intervening in commission. Evident premeditation is, of course, inherent
the commission of the crime, that has to be taken into in the crime of robbery and was not proved in the
consideration (Decision of Jan. 12, 1889 — see Cuello commission of the killing. As for treachery, there is no
Calon's Codigo Penal, pp. 501-502; Italics supplied)." evidence of its employment as none of the witnesses
actually saw the shooting of Chua, being all inside the
It is futile therefore for the accused-appellant to argue that panel when they heard the fatal shots.
he was inside the panel with the companions of Chua when
the latter was killed by Bartulay and could not have stopped Miguel Chua was only 32 years old at the time he was
the shooting. The undisputed fact is that the killing was killed and left a wife and three children aged, respectively,
committed on the occasion of the robbery which Beran and 11, 10 and 8, the youngest a daughter. To provide for his
Bartulay plotted and were carrying out together. In the family, he was willing to work even at night, not unaware
absence of clear evidence that he endeavored to prevent it, perhaps, given the condition of the times, of the dangers
Beran is as guilty of the homicide as Bartulay although it that lurked in the desolate routes he traveled, considering
was Bartulay who pulled the trigger. especially the sizable amounts of money he often
carried. If he was nonetheless undeterred, it was probably
Concerning the aggravating circumstances which the because, like the promising young man that he was, he had
accused-appellant insists should not have been taken a dream for the future. Tragically, that dream died with him
against him, the Court notes that no specific finding on the lonely stretch of road where greed lay in ambush
regarding such circumstances was made by the trial judge, with a gun.
who simply meted out the penalties without
explanation. The trial judge, notably, did not say why, after The indemnity for the death of Chua is increased to
finding both Beran and Laguardia guilty, the former should
P30,000.00. Funeral expenses amounted to and a certain Melvin Castillo (Melvin) had a drinking spree
P16,500.00.[18] As the victim was earning at the time of his outside the house of Rey located at No. 30-B Tacio Street,
death a monthly compensation of P2,500.00,[19] consisting La Loma, Quezon City. At about 2:00 in the morning of the
of salary and commission, or P30,000.00 annually, and same date, a car stopped in front of the three. Appellant
could have lived about 24 more years,[20] his total earnings was driving the car while Petronilla was seated beside him.
for the period would have amounted to P720,000.00. The Petronilla opened the car's window and asked Edwin if he
heirs are also entitled to this amount plus P10,000.00 moral knows Ramon and the latter's address at No. 25-C General
damages and P10,000.00 exemplary damages.[21] Tinio Street, La Loma, Quezon City. Edwin replied that he
did not know Ramon or his address. Thereafter, appellant
WHEREFORE, the appealed decision is AFFIRMED as and Petronilla left on board the car and proceeded to
MODIFIED but in view of the provisions of the new General Tinio Street, La Loma, Quezon City.[5]
Constitution, the death penalty is reduced to reclusion
perpetua. The accused-appellant shall also pay the civil At about 2:15 in the morning of the same date, the car
indemnity specified above, and costs. boarded by appellant and Petronilla stopped in front of
Ramon's house at No. 25-C General Tinio Street, La Loma,
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, Quezon City. After parking nearby, appellant and Petronilla
VS. ANGELO ZETA, ACCUSED-APPELLANT. alighted from the car and proceeded to Ramon's house.
Petronilla repeatedly called Ramon. Aleine (niece of
For review is the Decision dated 30 June 2006 of the Court Cristina Mercado, Ramon's common-law wife) was
of Appeals in CA-G.R. CR-H.C. No. 02054,[1] affirming in awakened by the repeated calls and opened the door.
toto the Decision[2] dated 29 November 2002 of the Quezon Petronilla requested Aleine to call Ramon. Aleine told
City Regional Trial Court (RTC), Branch 88, in Criminal Petronilla that she would wake up Ramon who was then
Case No. Q-95-63787, finding accused-appellant Angelo sleeping with Cristina at the second floor of the house.
Zeta and his wife, Petronilla Zeta (Petronilla), guilty of Aleine invited appellant and Petronilla inside the house but
murder. the two replied that they would just wait for Ramon outside.
Aleine proceeded to the second floor of the house and
The facts are as follows: knocked at the door of Ramon's room. Ramon woke up.
Subsequently, Aleine went downstairs and proceeded to
On 6 November 1995, an Information[3] was filed before the the dining table. While Ramon was walking down the stairs,
RTC charging appellant and Petronilla of Murder, thus: appellant suddenly entered the house and shot Ramon
That on or about the 28th day of October 1995, in Quezon several times on different parts of the body with a caliber
City, Philippines, the said accused, conspiring together, .45 Llama pistol. Upon seeing appellant shooting Ramon,
confederating with and mutually helping each other, with Aleine hid inside the restroom. When the gunshots ceased,
intent to kill, did then and there, willfully, unlawfully and Aleine went out of the restroom and saw Ramon sprawled
feloniously with evident premeditation, treachery, assault, and bloodied on the ground floor.[6]
attack and employ personal violence upon the person of
RAMON GARCIA y LOPEZ by then and there shooting the Edwin, Rey and Melvin were still drinking when they heard
latter with the use of a .45 cal. pistol hitting him on the the gunshots. They rushed to the direction of Ramon's
different parts of his body, thereby causing the instant and house. When they were nearing Ramon's house, Petronilla
immediate cause of his death, to the damage and prejudice suddenly stepped out of the main door of Ramon's house
of the heirs of said RAMON GARCIA Y LOPEZ. followed by appellant. Melvin uttered, "Mamamatay tao."
When arraigned on 20 December 1995, appellant and Petronilla merely looked at them and entered the car.
Petronilla, assisted by their respective counsels de parte, Appellant also proceeded inside the car and thereafter the
pleaded "Not Guilty" to the charge of murder.[4] Trial on the car sped away.[7]
merits thereafter ensued.
Subsequently, Aleine went out of the house and called for
The prosecution presented as witnesses Aleine Mercado help. Edwin, Rey and Melvin approached her. They carried
(Aleine), Dr. Maria Cristina Freyra (Dr. Freyra), Police Ramon and placed him inside a vehicle owned by a
Inspector Solomon Segundo (Inspector Segundo), Rey neighbor. While they were on their way to the Chinese
Jude Naverra (Rey), Edwin Ronk (Edwin), Francisco Garcia General Hospital, Ramon told Aleine that the one who shot
(Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and him was "asawa ni Nellie na kapitbahay namin sa Las
SPO2 Wakab Magundacan (SPO2 Magundacan). Their Piñas." Ramon died due to gunshot wounds while being
testimonies, taken together, bear the following: operated on at the Chinese General Hospital. Thereafter,
the police arrived at the crime scene and recovered several
On 28 October 1995, at around 12:00 midnight, Edwin, Rey empty bullet shells and slugs.[8]
.45 pistol which was extracted from Ramon's body; (16)
At about 10:55 the following morning, SPO2 Magundacan test bullets fired from the caliber .45 Llama pistol seized
received a report that a carnapped vehicle was parked from appellant;[24] (17) the caliber .45 Llama pistol with
along Lakandula Street, P. Tuazon Blvd., Quezon City. Serial Number C-27854 seized from appellant;[25] and (18)
SPO2 Magundacan proceeded thereat and saw appellant a calling card recovered from Ramon with the print label
about to board a car armed with a gun visibly tucked in his "Cristine Rent A Car," "Angelo D. Zeta" and with telephone
waist. SPO2 Magundacan approached appellant and asked numbers and addresses.[26]
him for a license and/or registration papers of the gun but
appellant did not show any. SP02 Magundacan also For its part, the defense presented the testimonies of
inquired from Petronilla, who was inside the car also armed appellant, Petronilla, and Annabelle Vergara (Annabelle) to
with a gun tucked in her waist, if she had a license but refute the foregoing allegations. Their version of the
Petronilla likewise failed to show any. Thus, SPO2 incident is as follows:
Magundacan brought appellant and Petronilla to Police
Precinct 8, Project 4, Quezon City, for investigation. On 27 October 1995, at about 10:00 in the evening,
Subsequently, appellant and Petronilla, upon the request of appellant, Petronilla and Annabelle (housemaid of the
the La Loma police, were turned over to the police station couple) were in the couple's house at Cainta, Rizal. [27]
for investigation as regards the killing of Ramon. Appellant Later, appellant took Petronilla's caliber .38 pistol and went
and Petronilla were thereafter charged with murder.[9] to his brother's (Jose Zeta, Jr.) house in Marikina arriving
therein at around 12:00 midnight. Jose was out of the
The prosecution also adduced documentary and object house so appellant waited for him. At about 2:30 in the
evidence to buttress the testimonies of its witnesses, to wit: morning of 28 October 1995, Jose arrived. Thereafter,
(1) death certificate of Ramon;[10] (2) sworn statement of appellant demanded from Jose the return of his three
Aleine;[11] (3) request for autopsy examination of Ramon's firearms, one of which is a caliber .45 pistol. Jose, however,
body;[12] (4) medico-legal report issued and signed by Dr. handed only the caliber .45 pistol to appellant. Appellant
Freyra stating that Ramon died due to gunshot wounds;[13] berated Jose for refusing to return the two other firearms.
(5) anatomical sketch of a human body signed by Dr. Irked, Jose drew a gun. Appellant also drew the caliber .45
Freyra indicating the location of the gunshot wounds on pistol and shot Jose four times. Jose fell down on the
Ramon's body;[14] (6) physical science report stating that a ground. Afterwards, appellant left the house, took Jose's
paraffin test was conducted on both hands of Ramon and car which was parked near the house, and proceeded to
they were found negative for gunpowder nitrates; [15] (7) Police Precinct 8, Project 4, Quezon City, where he waited
handwritten sketch made by Edwin depicting the streets of for a certain Tony Tolentino whom he claims to be a
Tacio and General Tinio;[16] (8) request for ballistic policeman assigned at the Southern Police District. At
examination of the object evidence recovered from the about 9:00 in the morning of 28 October 1995, the
crime scene;[17] (9) ballistic report issued and signed by policeman on duty at Precinct 8 informed appellant that the
Inspector Segundo stating that the bullet extracted from latter's car parked inside the precinct was a carnapped
Ramon's body and other bullets recovered from the crime vehicle. The policemen searched the car and found several
scene were similar to the bullets of the caliber .45 Llama guns including the caliber .45 and the caliber .38. Appellant
pistol seized from appellant;[18] (10) certification from the was thereupon detained and charged with illegal
Personnel Division of the Philippine Long Distance possession of firearms and carnapping.[28]
Telephone Company (PLDT) affirming that Ramon was its
regular employee from 14 February 1981 up to 27 October At about 10:00 in the morning of 28 October 1995,
1995 and that he was receiving a monthly salary of Petronilla received a telephone call informing her that
P13,687.00 plus other benefits;[19] (11) summary of appellant was at Police Precinct 8, Project 4, Quezon City.
expenses and receipts for the wake of Ramon;[20] (12) joint She immediately proceeded thereat and presented
affidavit of SPO2 Magundacan and a certain PO2 Ronald documents relative to her ownership and license of the
Zamora;[21] (13) photographs showing the spot where caliber .38 seized from appellant. Thereafter, she went
appellant and Petronilla stood while waiting for Ramon, the home at about 11:00 in the evening.[29]
stairs where Ramon walked down shortly before he was
shot several times by appellant, the area inside Ramon's On 2 November 1995, Petronilla visited appellant at
house where appellant positioned himself while shooting at Precinct 8. During the visit, Aleine arrived at Precinct 8 and
Ramon, and the location where Ramon fell down after he pointed to appellant and Petronilla. Subsequently, appellant
was shot several times by appellant;[22] (14) nine empty and Petronilla were informed by the police that they were
shells and seven deformed slugs fired from a caliber .45 suspects in the killing of Ramon. Thereafter, they were
pistol which were recovered by SPO1 Villarin from the charged with murder.[30]
crime scene;[23] (15) a deformed slug fired from a caliber
After trial, the RTC rendered a Decision on 29 November the Rules of Court.
2002 convicting appellant and Petronilla of murder. It held
that appellant and Petronilla conspired in killing Ramon. It Consequently, after discussion with accused-appellant
also ruled that Ramon's killing was attended by the PETRONILLA ZETA, the undersigned counsel informed her
aggravating circumstances of evident premeditation and that he is now constrained to withdraw his appearance in
nocturnity. In conclusion, it imposed the death penalty on the above-entitled appealed case.
appellant while Petronilla was merely sentenced to
reclusion perpetua "owing to her being a mother and her Upon being informed of the health predicament of the
lesser degree of participation in the killing of Ramon." The undersigned counsel and after being enlightened about the
fallo of the decision reads: weakness of the appeal, accused-appellant PETRONILLA
Accordingly, based on the evidence presented by the ZETA willfully and voluntarily decided to WITHDRAW the
prosecution and the defense and finding both accused appeal and do hereby signify to the Honorable Court that
guilty beyond reasonable doubt of the crime of MURDER she is no longer interested in the further prosecution of her
attended by the aggravating circumstances of evident appeal. She, likewise, has no objection to the withdrawal of
premeditation and nocturnity without being offset by any the appearance of Atty. Alfredo E. Anasco, as her counsel
mitigating circumstances, the accused Angelo Zeta is in the above-entitled case.
hereby sentenced to death by lethal injection. The wife and
co-accused Petronilla Zeta, although a co-conspirator in the WHEREFORE, it is respectfully prayed that the above-
commission of the offense charged, is hereby sentenced to entitled appeal be ordered withdrawn and the MOTION TO
RECLUSION PERPETUA owing to her being a mother and WITHDRAW APPEAL be GRANTED, and the withdrawal of
her lesser degree of participation in the act of murder. appearance of counsel be given due course.
Q. On October 28, 1995, at about 2:15 in the morning, do A. She told me to call for my Tito Ramon.
you remember if there was an unusual incident that Q. What did you do after she asked you to call Mr. Ramon
happened? Garcia?
A. Yes, sir. A. I told her to enter before I call my Tito Ramon but they
Q. Will you please tell the Court briefly what that unusual answered that they will remain outside.
incident was? Q. And so after they refused to enter the house, what did
A. Tito Ramon Garcia was shot, Sir. you do as they were asking you to call Mr. Ramon
Garcia?
Q. And who is this Tito Ramon Garcia that you are talking
about? A. I told them to wait and then I went upstairs.
Q. A while ago you mentioned that you have been living A. I knocked at the door to wake up my Tito Ramon.
with your auntie and Tito Ramon Garcia in Gen. Tinio, xxxx
La Loma, Quezon City. Will you please describe before Q. And was your Tito Ramon able to wake up?
the Honorable Court the residence or your house at
A. When I felt that they were awakened, I went
that time where you were living with your auntie and
downstairs.
Tito Ramon Garcia?
Q. Where in particular downstairs did you go?
A. It is a small house we were living in. It has a
A. Near our dining table, sir.
mezzanine and it measures 4 x 3 meters, sir.
xxxx
Q. How long was it from the door? How far was it from the A. I knocked at the door of the owner of the house to ask
door? for help.[40]
Q. And what happened as you stood by downstairs? It should be emphasized that the testimony of a single
witness, if positive and credible, as in the case of Aleine, is
A. While Tito Ramon was going down, sir, Angelo Zeta
sufficient to support a conviction even in the charge of
suddenly entered our house and immediately shot him
murder.[41]
several times.
Q. How far were you from Mr. Angelo Zeta when you saw
Appellant's argument that Aleine's testimony identifying him
him?
as the one who shot Ramon is not morally certain because
I withdraw that. she saw only the side portion of his face and the color of
How far were you from Mr. Angelo Zeta when you saw the shirt he wore during the incident, deserves scant
him suddenly entered the house and shot Mr. Ramon consideration. A person can still be properly identified and
Garcia? recognized even by merely looking at the side portion of his
A. Less than one meter, sir. face. To be sure, Aleine recognized and identified appellant
in the police line-up and during trial as the one who shot
x x x x.
Ramon. Experience dictates that precisely because of the
Q. Where was Petronilla Zeta at that time that the
unusual acts of violence committed right before their eyes,
shooting occurred?
witnesses can remember with a high degree of reliability
A. She was outside the door, sir. the identity of criminals at any given time.[42] A startling or
xxxx frightful experience creates an indelible impression in the
Q. What did you do as you were standing and while Mr. mind that can be recalled vividly.[43] It bears stressing that
Angelo Zeta was shooting Mr. Ramon Garcia inside Aleine was less than one meter away from appellant when
the house? the latter shot Ramon. The crime scene was also well-
lighted during the incident because there was a fluorescent
A. When I heard two shots, I run to the C.R. or comfort
bulb inside the house.[44]
room.
A. Until the shots had stopped Until the firing had Court of Appeals found their testimonies to be credible and
stopped, sir. trustworthy. The rule is that the findings of the trial court, its
calibration of the testimonies of the witnesses and its
Q. And you sensed that the firing had stopped, what did
assessment of the probative weight thereof, as well as its
you do?
conclusions anchored on said findings are accorded
A. I slowly opened the door to take a look if Angelo Zeta
respect if not conclusive effect. This is more true if such
and companion were still there.
findings were affirmed by the appellate court. When the trial
Q. And what did you see? court's findings have been affirmed by the appellate court,
A. They were no longer there, sir. said findings are generally binding upon this Court. [45]
Q. And you saw that they have guns, what did you do?
Anent the second and third issues, appellant contends that
A. I went out of the C.R. and I returned to the place where
his conviction is unwarranted based on the following
I was before where I was previously standing.
reasons: (1) the prosecution failed to establish any possible
Q. And what did you see when you reached that portion
motive for the appellant to kill Ramon; (2) there is an
that you are talking about?
inconsistency in the testimony of the prosecution witnesses
A. I saw Tito Ramon lying frustrate and blooded. regarding the type and color of the car boarded by
Q And what did you do when you see (sic) him on that appellant and Petronilla before and after the incident.
particular condition? Edwin testified that appellant and Petronilla left the scene
A. I peeped at the door to find out if Angelo Zeta and on board a gold-colored Mitsubishi Lancer; while SPO2
companion were still there. Magundacan narrated that he apprehended appellant while
the latter was about to board a blue Toyota Corona
Q. And what did you see?
Macho; (3) Jose could have been the one who fatally shot
A. They were no longer there.
Ramon and appellant could have been mistakenly
Q. And what did you do after that? identified as Jose because they have the same physical
appearance and facial features; (4) if appellant was indeed
the one who shot Ramon, he could have immediately slugs recovered from the crime scene were found to have
confessed such crime to the police just like what he did the same characteristics as those of the bullets of
after killing Jose; and (5) there is no proof that appellant is appellant's caliber .45 Llama pistol. Further, there is no
the husband of a certain "Mely." Ramon's dying declaration testimonial or documentary proof showing that it was Jose
to Aleine was that it was the husband of "Mely," his former who shot Ramon. Appellant himself testified that he met
neighbor in Las Pinas, who shot him. Further, Petronilla's Jose in the latter's house in Marikina at about 2:30 in the
nickname could either be "Nellie" or "Nelia" and not "Mely" morning of 28 October 1995. On the other hand, the
as referred to by Ramon.[46] shooting of Ramon at La Loma, Quezon City occurred at
about 2:15 in the morning of the same date. Hence, it was
Lack of motive does not preclude conviction when the impossible for Jose to be at La Loma, Quezon City and to
crime and the participation of the accused in the crime are have shot Ramon at such time and place.
definitely shown, particularly when we consider that it is a
matter of judicial knowledge that persons have killed or It is insignificant whether Petronilla was referred to by
committed serious offenses for no reason at all. Motive Ramon in his dying declaration as "Mely" or "Nellie." As
gains importance only when the identity of the culprit is correctly observed by the Court of Appeals, Ramon
doubtful.[47] Where a reliable eyewitness has fully and sustained twelve gunshot wounds and was catching his
satisfactorily identified the accused as the perpetrator of the breath when he uttered the name or nickname of Petronilla
felony, motive becomes immaterial to the successful as the wife of appellant. Thus, understandably, he could
prosecution of a criminal case.[48] It is obvious from the not have spoken clearly in such a difficult situation.
records that Aleine positively and categorically identified Moreover, Ramon referred to "Nellie" or "Mely" as his
appellant as the person who shot Ramon during the former neighbor in Las Piñas. Likewise, appellant and
incident. Her testimony was corroborated on relevant points Petronilla admitted that Ramon was their former neighbor in
by Edwin and Rey. Las Piñas.[53]
There is no inconsistency in the testimonies of the We now go to the propriety of the penalty imposed and the
prosecution witnesses regarding the car boarded by damages awarded by the RTC which the Court of Appeals
appellant and Petronilla in leaving the crime scene and, affirmed.
subsequently, at the time they were apprehended. Edwin
testified that appellant and Petronilla left the scene after the The RTC held that the killing of Ramon qualifies as murder
incident which was between 2:15 and 2:30 in the morning because of the presence of the aggravating circumstances
on board a gold-colored Mitsubishi Lancer.[49] SPO2 of evident premeditation and nighttime or nocturnity. It is a
Magundacan told the court that he apprehended appellant rule of evidence that aggravating circumstances must be
at around 10:55 in the morning of the same day while the proven as clearly as the crime itself.[54]
latter was about to board a blue Toyota Corona Macho.[50]
In his affidavit attached to the records, Jan Ryan Zeta, son Evident premeditation qualifies the killing of a person to
of Jose, narrated that Jose was shot by appellant at about murder if the following elements are present: (1) the time
4:00 in the morning of the same date.[51] Appellant admitted when the offender determined to commit the crime; (2) an
that after shooting Jose on the early morning of 28 October act manifestly indicating that the culprit clung to his resolve;
1995, he took the latter's Toyota Corona Macho and left. [52] and (3) a sufficient interval of time between the
Thus, it is probable that after leaving the crime scene at La determination or conception and the execution of the crime
Loma on board a gold Mitsubishi Lancer at about 2:15 or to allow him to reflect upon the consequence of his act and
2:30 in the morning, appellant and Petronilla then to allow his conscience to overcome the resolution of his
proceeded to Marikina and took Jose's blue Toyota Corona will if he desired to hearken to its warning.[55]
Macho. This explains why the car of appellant and
Petronilla used in leaving the crime scene was different The first two elements of evident premeditation are present
from that which they used at the time of their apprehension. in the case at bar.
Appellant's theory of alibi that it was physically impossible The time manifesting Petronilla and appellant's
for him to be at the crime scene in La Loma when the determination to kill Ramon was when they, at about 2:00
incident occurred because he was in Marikina, and that in the morning of 28 October 1995, repeatedly asked Edwin
Jose could have been the one who fatally shot Ramon is about Ramon and the latter's address, and when they
flimsy and cannot prevail over the positive and credible subsequently proceeded to the house of Ramon.
testimony of Aleine. Appellant was mistakenly identified as
Jose because they have the same physical appearance The fact that appellant and Petronilla waited for Ramon,
and facial feature. In addition, the empty bullet shells and and appellant's subsequent act of shooting him at around
2:15-2:30 in the morning of 28 October 1995 indicate that It has been established that Ramon, still groggy after
they had clung to their determination to kill Ramon. having been awakened by Aleine, was walking down the
stairs when appellant suddenly shot him. The suddenness
The third element of evident premeditation, however, is and unexpectedness of the appellant's attack rendered
lacking in the instant case. The span of thirty minutes or Ramon defenseless and without means of escape.
half an hour from the time appellant and Petronilla showed Appellant admitted that he was a member of a gun club and
their determination to kill Ramon (2:00 in the morning of 28 was proficient in using his caliber .45 Llama pistol. [61] In
October 1995) up to the time appellant shot to death fact, he was good at shooting a moving target during his
Ramon (2:15-2:30 in the morning of 28 October 1995) practice.[62] He also stated that he owned five firearms.[63]
could not have afforded them full opportunity for meditation Evidently, appellant took advantage of his experience and
and reflection on the consequences of the crime they skill in practice shooting and in guns to exact the death of
committed.[56] We have held that the lapse of thirty minutes Ramon. There is no doubt that appellant's use of a caliber
between the determination to commit a crime and the .45 Llama pistol, as well as his act of positioning himself in
execution thereof is insufficient for a full meditation on the a shooting stance and of shooting Ramon several times on
consequences of the act.[57] the chest area and on other parts of body, were obviously
adopted by him to prevent Ramon from retaliating or
The essence of premeditation is that the execution of the escaping. Considering that Ramon was unarmed, groggy
criminal act must be preceded by cool thought and from sleep, and was casually walking down narrow stairs
reflection on the resolution to carry out the criminal intent unmindful of the danger that lurked behind, there was
during a space of time sufficient to arrive at a calm absolutely no way for him to defend himself or escape.
judgment. To justify the inference of deliberate
premeditation, there must be a period sufficient in a judicial As regards the appreciation by the RTC of the aggravating
sense to afford full opportunity for meditation and reflection circumstance of nocturnity, it should be underscored that
and to allow the conscience of the actor to overcome the nocturnity or nighttime is, by and of itself, not an
resolution of his will if he desires to hearken to its warning. aggravating circumstance. It becomes so only when (1) it
Where no sufficient lapse of time is appreciable from the was especially sought by the offender; or (2) it was taken
determination to commit the crime until its execution, advantage of by him; or (3) it facilitated the commission of
evident premeditation cannot be appreciated. [58] the crime by ensuring the offender's immunity from
capture.[64]
Nonetheless, we find that treachery attended the killing of
Ramon. Although the crime in the instant case was committed
between 2:15 and 2:30 in the morning, no evidence was
There is treachery when the offender commits any of the presented showing that nighttime was especially and
crimes against a person, employing means, methods or purposely sought by appellant to facilitate the commission
forms in the execution thereof which tend directly and of the crime, or that it was availed of for the purpose of
specially to ensure its execution, without risk to himself impunity. Moreover, the crime scene was well-lighted by a
arising from any defensive or retaliatory act which the fluorescent bulb. We have held that nocturnity is not
victim might make.[59] The essence of treachery is a aggravating where the place of the commission of the crime
deliberate and sudden attack that renders the victim unable was well-illuminated.[65]
and unprepared to defend himself by reason of the
suddenness and severity of the attack. Two essential Even if we were to assume that nocturnity was present in
elements are required in order that treachery can be the case at bar, this cannot still be appreciated in view of
appreciated: (1) the employment of means, methods or the presence of treachery that attended the killing of
manner of execution that would ensure the offender's Ramon. Nighttime cannot be considered an aggravating
safety from any retaliatory act on the part of the offended circumstance separate from treachery, since nighttime is
party who has, thus, no opportunity for self-defense or absorbed in treachery.[66]
retaliation; and (2) a deliberate or conscious choice of
means, methods or manner of execution. Further, this Accordingly, the death penalty imposed by the RTC on
aggravating circumstance must be alleged in the appellant should be modified. Article 248 of the Revised
information and duly proven.[60] Penal Code states that murder is punishable by reclusion
perpetua to death. Article 63 of the same Code provides
In the case at bar, treachery was alleged in the information that if the penalty is composed of two indivisible penalties,
and all its elements were duly established by the as in the instant case, and there are no aggravating or
prosecution. mitigating circumstances, the lesser penalty shall be
applied. Since there is no mitigating or aggravating
circumstance in the instant case, and treachery cannot be At about 7:00 o'clock in the evening of March 21, 1985,
considered as an aggravating circumstance as it was Roberto Tejada left their house at Burgos Street,
already considered as a qualifying circumstance, the lesser Poblacion, Balingao, Pangasinan to go to the house of
penalty of reclusion perpetua should be imposed.[67] Isidro Salazar to watch television. At around 11:00 P. M.,
while Ernesto, the father of Roberto, was resting, he heard
The award of damages and its corresponding amount two gunshots. Thereafter, he heard Roberto cry out in a
rendered by the RTC should also be modified in line with loud voice saying that he had been shot. He saw Roberto
current jurisprudence. ten (10) meters away so he switched on the lights of their
house. Aside from Ernesto and his wife, his children
In addition to the civil indemnity of P50,000.00 for Ramon's Ermalyn and Julius were also in the house. They went
death, the award of moral damages amounting to down to meet Roberto who was crying and they called for
P50,000.00 is also proper since it is mandatory in murder help from the neighbors. The neighbors responded by
cases, without need of proof and allegation other than the turning on their lights and the street lights and coming down
death of the victim.[68] from their houses. After meeting Roberto, Ernesto and
Julius saw Lito Vino and Jessie Salazar riding a bicycle
The heirs of Ramon are also entitled to exemplary coming from the south. Vino was the one driving the bicycle
damages in the amount of P25,000.00, since the qualifying while Salazar was carrying an armalite. Upon reaching
circumstance of treachery was firmly established.[69] Ernesto's house, they stopped to watch Roberto. Salazar
pointed his armalite at Ernesto and his companions.
The amount of actual damages should be reduced from Thereafter, the two left.
P146,000.00 to P115,473.00 per computation of the official
receipts attached to the records.[70] Roberto was brought to the Sacred Heart Hospital of
Urdaneta. PC/Col. Bernardo Cacananta took his ante-
WHEREFORE, after due deliberation, the Decision of the mortem statement. In the said statement which the victim
Court of Appeals dated 30 June 2006 in CA-G.R. CR-H.C. signed with his own blood, Jessie Salazar was identified as
No. 02054 is hereby AFFIRMED with the following his assailant.
MODIFICATIONS: (1) the penalty of death imposed on
appellant is lowered to reclusion perpetua; (2) appellant is The autopsy report of his body shows the following -
ordered to pay the heirs of Ramon Garcia the amounts of
P50,000.00 as moral damages and P25,000.00 as "Gunshot wound
exemplary damages; (3) the award of actual damages is POE Sub Scapular-5-6- ICA. Pal
reduced to P115,473.00; and (4) the indemnity for
1 & 2 cm. diameter left.
Ramon's loss of earning capacity is increased to
P2,354,163.99. The award of civil indemnity in the amount Slug found sub cutaneously,
Appellant's caliber .45 Llama pistol with Serial Number C- CAUSE OF DEATH
27854 is hereby confiscated in favor of the Government.
Tension Hemathorax”[1]
2. THAT "AIDING THE ESCAPE OF THE facts. It is thus clear that petitioner actively assisted Salazar
PRINCIPAL" TO BE CONSIDERED SUFFICIENT IN LAW in his escape. Petitioner's liability is that of an accessory.
In the present case, the commission of the crime of murder We may visualize another situation as when the principal
and the responsibility of the petitioner as an accessory was died or escaped before he could be tried and sentenced.
Should the accessory be acquitted thereby even if the Razon in an Information[3] dated October 19, 1992, as
commission of the offense and the responsibility of the follows:
accused as an accessory was duly proven? The answer is “That on or about October 17, 1992 in Valenzuela, Metro
no, he should be held criminally liable as an accessory. Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring
Although in this case involving Vino the evidence tended to together and mutually helping one another, without any
show that the assailant was Salazar, as two witnesses saw justifiable cause, with treachery and evident premeditation
him with a rifle aboard the bicycle driven by Vino, in the and with abuse of superior strenght (sic) and with
separate trial of the case of Salazar, as above discussed, deliberate intent to kill, did then and there willfully,
he was acquitted as the trial court was not persuaded that unlawfully and feloniously attack, assault and stab
he was positively identified to be the man with the gun repeatedly with a pointed weapon on the different parts of
riding on the bicycle driven by Vino. In the trial of the case the body one ANDRE MAR MASANGKAY y ABLOLA,
against Vino, wherein he did not even adduce evidence in thereby inflicting upon the latter serious physical injuries
his defense, his liability as such an accessory was which directly caused his death.”
established beyond reasonable doubt in that he assisted in
During arraignment, Appellants Ortega and Garcia,
the escape of the assailant from the scene of the crime.
assisted by counsel de oficio,[4] pleaded not guilty to the
The identity of the assailant is of no material significance
charge.[5] Accused “John Doe” was then at large.[6] After
for the purpose of the prosecution the accessory. Even if
trial in due course, the court a quo promulgated the
the assailant can not be identified the responsibility of Vino
questioned Decision. The dispositive portion reads: [7]
as an accessory is indubitable.
“WHEREFORE, finding accused Benjamin Ortega, Jr. y
Conje and Manuel Garcia y Rivera [g]uilty beyond
WHEREFORE, the motion for reconsideration is denied
reasonable doubt of the crime charged, the Court hereby
and this denial is FINAL.
sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
G.R. No. 116736, July 24, 1997
Q Mr. Witness, who were the companions of said (At this juncture, the witness demonstrating.)
persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in
drinking in said place? Andrew Masangkay was lying down on a canal with his
A The other companions in the drinking session were face up, then Benjamin Ortega, Jr. was ‘nakakabayo’ and
Ariel Caranto y Ducay, Roberto San Andres and Romeo with his right hand with closed fist holding the weapon, he
Ortega. was thrusting this weapon on the body of the victim, he was
making downward and upward motion thrust.
Q What about this victim, Andrew Masangkay, where
was he at that time? ATTY. ALTUNA: (To the witness)
A Also the victim, Andrew Masangkay, he was also
there. Q How many times did Benjamin Ortega, Jr. stabbed
Andrew Masangkay?
Q You said that the two accused, Manuel Garcia and A I cannot count the number of times.”
Benjamin Ortega, Jr. arrived drunk and joined the group?
It should be noted that Victim Masangkay was a six-footer,
A Yes, sir.
whereas Appellant Ortega, Jr. was only five feet and five
inches tall.[27] There was no testimony as to how the attack
Q What happened next?
was initiated. The accused and the victim were already
A While we were there together and we were drinking ...
grappling when Quitlong arrived. Nothing in the foregoing
(interrupted by Atty. Altuna)
testimony and circumstances can be interpreted as abuse
of superior strength. Hence, Ortega is liable only for
Q Who is that ‘we’?
homicide, not murder.
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel
Caranto, Romeo Ortega, Roberto San Andres, myself and
Second Issue: Liability of Appellant Manuel Garcia
Andrew Masangkay. Andrew Masangkay answer to a call
of nature and went to the back portion of the house, and
Appellants argue that the finding of conspiracy by the trial
Benjamin Ortega, Jr. followed him where he was.
court “is based on mere assumption and conjecture x x
x.”[28] Allegedly, the medico-legal finding that the large
Q What happened next?
airway was “filled with muddy particles indicating that the
A And afterwards we heard a shout and the shout said
victim was alive when the victim inhaled the muddy
‘Huwag, tulungan n’yo ako’.
particles” did not necessarily mean that such muddy
particles entered the body of the victim while he was still
Q From whom did you hear this utterance?
alive. The Sinumpaang Salaysay of Quitlong stated,
“Nilubayan lang nang saksak nang mapatay na si Andrew
ni Benjamin Ortega, Jr.” Thus, the prosecution evidence Q Second point?
shows Masangkay was already “dead” when he was lifted A The heart is pale with some multiple petechial
and dumped into the well. Hence, Garcia could be held hemorrhages at the anterior surface.
liable only as an accessory.[29]
Q And this may [be] due to stab wounds or asphyxia?
We do not agree with the above contention. Article 4, par. A These are the effects or due to asphyxia or decreased
1, of the Revised Penal Code states that criminal liability amount of blood going to the heart.
shall be incurred by “any person committing a felony
(delito) although the wrongful act done be different from Q This asphyxia are you referring to is the drowning?
that which he intended.” The essential requisites for the A Yes, sir.
application of this provision are that (a) the intended act is
felonious; (b) the resulting act is likewise a felony; and (c) Q Next point is the lungs?
the unintended albeit graver wrong was primarily caused by A The lungs is also filled with multiple petechial
the actor’s wrongful acts. In assisting Appellant Ortega, Jr. hemorrhages.
carry the body of Masangkay to the well, Appellant Garcia
was committing a felony. The offense was that of Q What could have caused this injury of the lungs?
concealing the body of the crime to prevent its discovery, A This is due to asphyxia or the loss of blood.
i.e. that of being an accessory in the crime of homicide. [30]
Although Appellant Garcia may have been unaware that Q Are you saying that the lungs have been filled with
the victim was still alive when he assisted Ortega in water or muddy particles?
throwing the body into the well, he is still liable for the direct A Yes, sir.
and natural consequence of his felonious act, even if the
resulting offense is worse than that intended. Q And, precisely, you are now testifying that due to stab
wounds or asphyxia, the lungs have been damaged per
True, Appellant Garcia merely assisted in concealing the your Report?
body of the victim. But the autopsy conducted by the NBI
medico-legal officer showed that the victim at that time was A Yes, sir.
still alive, and that he died subsequently of drowning.[31]
That drowning was the immediate cause of death was Q Continuing this brain and other visceral organs, pale.
medically demonstrated by the muddy particles found in the What is this?
victim’s airway, lungs and stomach.[32] This is evident from A The paleness of the brain and other visceral organs is
the expert testimony given by the medico-legal officer, due to loss of blood.
quoted below:[33]
ATTY. ALTUNA: Q And, of course, loss of blood could be attributed to the
stab wound which is number 13?
“Q Will you please explain this in simple language the last A Yes, sir.
portion of Exhibit N, beginning with ‘tracheo-bronchial tree’,
that is sentence immediately after paragraph 10, 2.5 cms. Q And the last one, under the particular point
Will you please explain this? ‘hemothorax’?
A The trancheo-bronchial tree is filled with muddy A It indicates at the right side. There are around 1,400 cc
particles. of blood that accumulate at the thoraxic cavity and this was
admixed with granular materials?
Q I ask you a question on this. Could the victim have
possibly get this particular material? Q And what cause the admixing with granular materials
A No, sir. on said particular portion of the body?
A Could be muddy particles.
Q What do you mean by no?
A A person should be alive so that the muddy particles Q Due to the taking of maddy (sic) materials as affected
could be inhaled. by asphyxia? Am I correct?
A It’s due to stab wounds those muddy particles which
Q So, in short, you are telling or saying to us that if there set-in thru the stab wounds.
is no inhaling or the taking or receiving of muddy particles
at that time, the person is still alive? Q So, because of the opening of the stab wounds, the
A Yes, sir. muddy particles now came in, in that particular portion of
the body and caused admixing of granular materials? covered by Article 4, par. 1, of the Revised Penal Code.
A Yes, sir. Under this paragraph, a person may be convicted of
homicide although he had no original intent to kill.[35]
Q Continuing with your report, particularly, the last two
portions, will you please explain the same? In spite of the evidence showing that Appellant Garcia
A The hemoperitoneum there are 900 cc of blood that could be held liable as principal in the crime of homicide,
accumulated inside the abdomen. there are, however, two legal obstacles barring his
conviction, even as an accessory – as prayed for by
Q And what could have cause the same? appellants’ counsel himself.
A [T]he stab wound of the abdomen.
First. The Information accused Appellant Garcia (and
Q The last one, stomach 1/2 filled with muddy particles. Appellant Ortega) of “attack[ing], assault[ing], and
Please explain the same? stab[bing] repeatedly with a pointed weapon on the
A The victim could have taken these when he was different parts of the body one ANDRE MAR MASANGKAY
submerged in water. y ABLOLA” The prosecution’s evidence itself shows that
Garcia had nothing to do with the stabbing which was
Q What is the take in? solely perpetrated by Appellant Ortega. His responsibility
A Muddy particles. relates only to the attempted concealment of the crime and
the resulting drowning of Victim Masangkay. The hornbook
Q And he was still alive at that time? doctrine in our jurisdiction is that an accused cannot be
A Yes, sir.” (Underscoring supplied) 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
A Filipino authority on forensic medicine opines that any of
charged in the complaint or information would be a violation
the following medical findings may show that drowning is
of this constitutional right.[36] Section 14, par. 2, of the 1987
the cause of death:[34]
Constitution explicitly guarantees the following:
“1. The presence of materials or foreign bodies in the
“(2) In all criminal prosecutions, the accused shall be
hands of the victim. The clenching of the hands is a
presumed innocent until the contrary is proved, and shall
manifestation of cadaveric spasm in the effort of the victim
enjoy the right to be heard by himself and counsel, to be
to save himself from drowning.
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
2. Increase in volume (emphysema aquosum) and
the witnesses face to face, and to have compulsory
edema of the lungs (edema aquosum).
process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after
3. Presence of water and fluid in the stomach contents
arraignment, trial may proceed notwithstanding the
corresponding to the medium where the body was
absence of the accused provided that he has been duly
recovered.
notified and his failure to appear is unjustifiable.”
(Underscoring supplied)
4. Presence of froth, foam or foreign bodies in the air
passage found in the medium where the victim was found. In People vs. Pailano,[37] this Court ruled that there can be
no conviction for rape on a woman “deprived of reason or
5. Presence of water in the middle ear.” otherwise unconscious” where the information charged the
accused of sexual assault “by using force or intimidation,”
The third and fourth findings were present in the case of
thus:
Victim Masangkay. It was proven that his airpassage, or
“The criminal complaint in this case alleged the commission
specifically his tracheo-bronchial tree, was filled with muddy
of the crime through the first method although the
particles which were residues at the bottom of the well.
prosecution sought to establish at the trial that the
Even his stomach was half-filled with such muddy particles.
complainant was a mental retardate. Its purpose in doing
The unrebutted testimony of the medico-legal officer that all
so is not clear. But whatever it was, it has not succeeded.
these muddy particles were ingested when the victim was
still alive proved that the victim died of drowning inside the
If the prosecution was seeking to convict the accused-
well.
appellant on the ground that he violated Anita while she
was deprived of reason or unconscious, such conviction
The drowning was the direct, natural and logical
could not have been possible under the criminal complaint
consequence of the felony that Appellant Garcia had
as worded. This described the offense as having been
intended to commit; it exemplifies praeter intentionem
committed by ‘Antonio Pailano, being then provided with a not be imposed upon those who are such with respect to
scythe, by means of violence and intimidation, (who) did, their spouses, ascendants, descendants, legitimate,
then and there, wilfully, unlawfully and feloniously have natural, and adopted brothers and sisters, or relatives by
carnal knowledge of the complainant, Anita Ibañez, 15 affinity within the same degrees with the single exception of
years of age, against her will.’ No mention was made of the accessories falling within the provisions of paragraph 1 of
second circumstance. the next preceding article.”
Conviction of the accused-appellant on the finding that he On the other hand, “the next preceding article” provides:
had raped Anita while she was unconscious or otherwise
deprived of reason -- and not through force and “ART. 19. Accessories. – Accessories are those who,
intimidation, which was the method alleged -- would have having knowledge of the commission of the crime, and
violated his right to be informed of the nature and cause of without having participated therein, either as principals or
the accusation against him.[Article IV, Sec. 19, Constitution accomplices, take part subsequent to its commission in any
of 1973; now Article III, Sec. 14(2)] This right is of the following manners:
safeguarded by the Constitution to every accused so he
can prepare an adequate defense against the charge 1. By profiting themselves or assisting the offender to profit
against him. Convicting him of a ground not alleged while by the effects of the crime.
he is concentrating his defense against the ground alleged
would plainly be unfair and underhanded. This right was, of 2. By concealing or destroying the body of the crime, or the
course, available to the herein accused-appellant. effects or instruments thereof, in order to prevent its
discovery.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a
person charged with rape could not be found guilty of 3. By harboring, concealing, or assisting in the escape of
qualified seduction, which had not been alleged in the the principal of the crime, provided the accessory acts with
criminal complaint against him. In the case of People vs. abuse of his public functions or whenever the author of the
Montes, [fn: 122 SCRA 409] the Court did not permit the crime is guilty of treason, parricide, murder, or an attempt
conviction for homicide of a person held responsible for the to take the life of the Chief Executive, or is known to be
suicide of the woman he was supposed to have raped, as habitually guilty of some other crime.”
the crime he was accused of -- and acquitted -- was not
homicide but rape. More to the point is Tubb v. People of Appellant Garcia, being a covered relative by affinity of the
the Philippines, [fn: 101 Phil. 114] where the accused was principal accused, Benjamin Ortega, Jr., is legally entitled
charged with the misappropriation of funds held by him in to the aforequoted exempting provision of the Revised
trust with the obligation to return the same under Article Penal Code. This Court is thus mandated by law to acquit
315, paragraph 1(b) of the Revised Penal Code, but was him.
convicted of swindling by means of false pretenses, under
paragraph 2(b) of the said Article, which was not alleged in Penalty and Damages
the information. The Court said such conviction would
violate the Bill of Rights.” The award of actual damages should be reduced to
P31,790.00 from P35,000.00. The former amount was
By parity of reasoning, Appellant Garcia cannot be
proven both by documentary evidence and by the
convicted of homicide through drowning in an information
testimony of Melba Lozano, a sister of the victim. [40] Of the
that charges murder by means of stabbing.
expenses alleged to have been incurred, the Court can
give credence only to those that are supported by receipts
Second. Although the prosecution was able to prove that
and appear to have been genuinely incurred in connection
Appellant Garcia assisted in “concealing x x x the body of
with the death of the victim.[41] However, in line with current
the crime, x x x in order to prevent its discovery,” he can
jurisprudence,[42] Appellant Ortega shall also indemnify the
neither be convicted as an accessory after the fact defined
heirs of the deceased in the sum of P50,000.00. Indemnity
under Article 19, par. 2, of the Revised Penal Code. The
requires no proof other than the fact of death and
records show that Appellant Garcia is a brother-in-law of
appellant’s responsibility therefor.[43]
Appellant Ortega,[38] the latter’s sister, Maritess, being his
wife.[39] Such relationship exempts Appellant Garcia from
The penalty for homicide is reclusion temporal under Article
criminal liability as provided by Article 20 of the Revised
249 of the Revised Penal Code, which is imposable in its
Penal Code:
medium period, absent any aggravating or mitigating
circumstance, as in the case of Appellant Ortega. Because
“ART. 20. Accessories who are exempt from criminal
he is entitled to the benefits of the Indeterminate Sentence
liability. -- The penalties prescribed for accessories shall
Law, the minimum term shall be one degree lower, that is, "WHEREFORE, the prosecution having proved the guilt of
prision mayor. the accused for violation of Presidential Decree No. 1612
beyond reasonable doubt, the accused Norma Dizon-
WHEREFORE, premises considered, the joint appeal is Pamintuan is hereby sentenced to suffer an indeterminate
PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is penalty of imprisonment from FOURTEEN (14) YEARS of
found GUILTY of homicide and sentenced to ten (10) years prision mayor to NINETEEN (19) YEARS of reclusion
of prision mayor medium, as minimum, to fourteen (14) temporal.
years, eight (8) months and one (1) day of reclusion
No civil liability in view of the recovery of the items, subject-
temporal medium, as maximum. Appellant Ortega, Jr. is
matter of this case.
also ORDERED to pay the heirs of the victim P50,000.00
With costs."[4]
as indemnity and P31,790.00 as actual damages. Appellant
Manuel Garcia is ACQUITTED. His immediate release from
The evidence of the prosecution is summarized by the trial
confinement is ORDERED unless he is detained for some
court as follows:
other valid cause.
G.R. No. 111426, July 11, 1994 "Teodoro Encarnacion, Undersecretary, Department of
Public Works and Highways testified that he has just
NORMA DIZON-PAMINTUAN, PETITIONER, VS. arrived at his residence located at Better Living
PEOPLE OF THE PHILIPPINES, RESPONDENT. Subdivision, Parañaque at around 9:45 p.m. of February
12, 1988 coming from the Airport and immediately
The chief issue presented for our determination in this proceeded inside the house, leaving behind his driver and
petition for review under Rule 45 of the Rules of Court is two housemaids outside to pick-up his personal belongings
the correctness of the decision of 29 March 1993 of the from his case. It was at this point that five unidentified
Court of Appeals in CA-G.R. CR No. 11024[1] which masked armed persons appeared from the grassy portion
affirmed the decision of Branch 20 of the Regional Trial of the lot beside the house and poked their guns to his
Court of Manila in Criminal Case No. 88-64954[2] finding the driver and two helpers and dragged them inside his house.
petitioner guilty of the violation of the Anti-Fencing Law That the men pointed a gun at him and was made to lie
(P.D. No. 1612) but set aside the penalty imposed and face down on the floor. The other occupants, namely his
ordered the trial court to receive additional evidence on the wife, the maids and his driver were likewise made to lie on
"correct valuation" of the pieces of jewelry involved for the the floor. Thereafter, the robbers ransacked the house and
sole purpose of determining the penalty to be imposed. took away jewelries and other personal properties including
cash. After the intruders left the house he reported the
The information in Criminal Case No. 88-64954 charged matter immediately to the police. He was then interviewed
the petitioner with the violation of the Anti-Fencing Law in by the Parañaque police and was informed that an
that operation group would be assigned to the case.
"The prosecution was able to prove by evidence that the The fact that a crime of robbery has been committed on
recovered items were part of the loot and such recovered February 12, 1988 is established by the testimony of
items belong to the spouses Encarnacion, the herein private complainant Teodoro T. Encarnacion who
private complainants. That such items were recovered by immediately reported the same to Parañaque Police Station
the Police Officers from the stall being tended by the of the Southern Police District (TSN, Hearings of October 3,
accused at that time. Of importance, is that the law 1988, November 9, 1988 and January 11, 1989; Exh. A)
and submitted a list and sketches of the jewelries robbed, "I. PUBLIC RESPONDENT COURT OF APPEALS
among other things, from their residence located at Better MANIFESTLY ERRED IN AFFIRMING THE DECISION OF
Living Subdivision, Parañaque, Metro Manila (Exh. C, C-1 PUBLIC RESPONDENT JUDGE CAÑEBA, IN BLATANT
to C-4 and D). DISREGARD OF APPLICABLE LAW AND WELL-
ESTABLISHED JURISPRUDENCE.
The second element is likewise established by convincing
evidence. On February 24, 1988, accused-appellant was
II. PUBLIC RESPONDENT COURT OF APPEALS
found selling the jewelries (Exhs. C-2, C-3 and C-4) which
MANIFESTLY ERRED IN REMANDING THE CASE TO
was displayed in a showcase in a stall located at Florentino
THE COURT A QUO FOR RECEPTION OF EVIDENCE
Street, Sta. Cruz, Manila. [Testimonies of Teodoro
FOR THE PURPOSE OF DETERMINING THE CORRECT
Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of
PENALTY TO BE IMPOSED."[12]
February 13, 1989) and Pfc. Emmanuel Sanchez (TSN,
Hearing of June 4, 1989)].
On 23 February 1994, after the public respondents had
On the element of knowledge that the items are derived
filed their Comment and the petitioner her Reply to the
from the proceeds of the crime of robbery and of intent to
Comment, this Court gave due course to the petition and
gain for herself or for another, the Anti-Fencing Law
required the parties to submit their respective memoranda,
provides:
which they subsequently complied with.
possesses, keeps, acquires, conceals, sells or disposes, or "[m]ere possession of any good, article, item, object, or
buys and sells, or in any manner deals in any article, item, anything of value which has been the subject of robbery or
object or anything of value, which has been derived from thievery shall be prima facie evidence of fencing," it follows
the proceeds of the said crime; that the petitioner is presumed to have knowledge of the
fact that the items found in her possession were the
3. The accused knows or should have known that the said
proceeds of robbery or theft. The presumption is
article, item, object or anything of value has been derived
reasonable for no other natural or logical inference can
from the proceeds of the crime of robbery or theft; and
arise from the established fact of her possession of the
4. There is, on the part of the accused, intent to gain for proceeds of the crime of robbery or theft. This presumption
himself or for another. does not offend the presumption of innocence enshrined in
the fundamental law.[20] In the early case of United States
In the instant case, there is no doubt that the first, second, vs. Luling,[21] this Court held:
and fourth elements were duly established. A robbery was
committed on 12 February 1988 in the house of the private "It has been frequently decided, in case of statutory crimes,
complainants who afterwards reported the incident to the that no constitutional provision is violated by a statute
Parañaque Police, the Western Police District, the NBI, and providing that proof by the state of some material fact or
the CIS, and submitted a list of the lost items and sketches facts shall constitute prima facie evidence of guilt, and that
of the jewelry taken from them (Exhibits "C" and "D"). Three then the burden is shifted to the defendant for the purpose
of these items stolen, viz., (a) a pair of earrings and ring of showing that such act or acts are innocent and are
studded with diamonds worth P75,000.00 (Exhibit "C-2"); committed without unlawful intention. (Commonwealth vs.
(b) one set of earrings worth P15,000.00 (Exhibit "C-3"); Minor, 88 Ky., 422.)
and (c) a chain with crucifix worth P3,000.00 (Exhibit "C-
In some of the States, as well as in England, there exist
4"), were displayed for sale at a stall tended to by the
what are known as common law offenses. In the Philippine
petitioner in Florentino Torres Street, Sta. Cruz, Manila.
Islands no act is a crime unless it is made so by statute.
The public display of the articles for sale clearly manifested
The state having the right to declare what acts are criminal,
an intent to gain on the part of the petitioner.
within certain well defined limitations, has a right to specify
what act or acts shall constitute a crime, as well as what
The more crucial issue to be resolved is whether the
proof shall constitute prima facie evidence of guilt, and then
prosecution proved the existence of the third element: that
to put upon the defendant the burden of showing that such
the accused knew or should have known that the items
act or acts are innocent and are not committed with any
recovered from her were the proceeds of the crime of
criminal intent or intention."
robbery or theft.
He likewise denied having talked to Manuelito Mendez over We resolve the issue in favor of petitioner.
the phone on the day of the delivery of the stolen items and
could not have accepted the said items personally for "Fencing, as defined in Section 2 of P.D. No. 1612 is `the
everytime (sic) goods are delivered to his store, the same act of any person who, with intent to gain for himself or for
are being accepted by his staff. It is not possible for him to another, shall buy, receive, possess, keep, acquire,
be at his office at about 7:00 to 8:00 o'clock in the morning, conceal, sell or dispose of, or shall buy and sell, or in any
because he usually reported to his office at 9:00 o'clock. In manner deal in any article, item, object or anything of value
connection with this case, he executed a counter-affidavit which he knows, or should be known to him, to have been
(Exhibits 2 and 2-a).[1] derived from the proceeds of the crime of robbery or
theft.'"[3]
On August 5, 1996, the trial court rendered decision, the
dispositive portion of which reads:
"Robbery is the taking of personal property belonging to
"WHEREFORE, premises considered, the accused
another, with intent to gain, by means of violence against or
RAMON C. TAN is hereby found guilty beyond reasonable
intimidation of any person, or using force upon things." [4]
doubt of violating the Anti-Fencing Law of 1979, otherwise
known as Presidential Decree No. 1612, and sentences
The crime of theft is committed if the taking is without
him to suffer the penalty of imprisonment of SIX (6) YEARS
violence against or intimidation of persons nor force upon
and ONE (1) DAY to TEN (10) YEARS of prision mayor and
things.[5]
to indemnify Rosita Lim the value of the stolen
merchandise purchased by him in the sum of P18,000.00.
"The law on fencing does not require the accused to have
participated in the criminal design to commit, or to have
"Costs against the accused.
been in any wise involved in the commission of, the crime
of robbery or theft."[6]
"SO ORDERED.