Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-34828-31 June 30, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WILFREDO TESORERO, defendant-appellant

Ramon Felipe, Jr., for appellant.

Acting Solicitor General C. T. Limacaoco Assistant Solicitor General G. C. Nakar, Jr. and Solicitor
Manuel C. Ciao for appellee.

ANTONIO, J:

Appellant Wilfredo Tesorero was convicted in four (4) criminal cases for the murder of Eduviges
Tapia and Apolonio Torrente in Criminal Cases Nos. 46 and 47, for the attempted murder of Zosimo
Tapanan in Criminal Case No. 48, and for the attempted murder with physical injuries of Amador
Teston. Appellant was then a member of the regular force of the Philippine Constabulary, detailed as
security guard to the then Liberal Party candidate for congressman in the Province of Catanduanes,
Salvador Rodulfo, during the 1969 elections. Prior to the shooting incident on November 12, 1969
which gave rise to the cases at bar, appellant had four meetings or confrontations with Amador
Teston, one of the victims of the incident in question. At that time, Teston was a member of the
Provincial Board of Catanduanes and a political leader of the opposite political faction. The first was
on September 20, 1969, when Board Member Teston was on his way from Baras to Virac,
Catanduanes to attend a conference with the Provincial Governor. Amador Teston was then riding in
a car driven by the deceased Apolonio Torrente. Upon reaching Barrio Libjo of the Municipality of
Baras, they were forced to stop because a topless jeep blocked their way. Inside the jeep was a PC
soldier who was then standing and pointing his gun to them. This particular soldier was Identified by
Amador Teston as appellant Wilfredo Tesorero. Amador Teston and his companions were only able
to proceed on their way when a bus loaded with uniformed soldiers accompanying congressional
candidate Salvador Rodulfo passed by, and it was only then when the topless jeep left to follow the
bus. Teston reported this incident to Lt. Rogelio Valentin of the 22nd PC Company of the
Catanduanes Command and requested for a constabulary esc ort for his return to Baras. Acting
upon such request, Lt. Aquino, Commanding Officer of the afore-mentioned PC Company,
designated Lt. Rogelio Valentin to head an escort unit, composed of Sgt. Cabrera, Sgt. Corpus and
Sgt. Suaviso, to accompany Teston. On their way to Baras and upon reaching Barrio Libjo, they met
again the same topless jeep, together with the bus of armed men escorting candidate Rodulfo. On
that occasion, appellant Tesorero again aimed his gun at Teston and shouted: "Mabuhay si
Rodulfo". The third occasion was on October 10, 1969, when Amador Teston, together with a team
of PC soldiers under Lt. Valentin, went to Sitio Nahulogan of Barrio Salvacion in Baras. Their
mission was to verify the reported presence of armed men on the upper embankment at Kilometer it
from Virac every time Board Member Teston passed by that road. When they arrived at the place,
they learned that among the armed men were appellant Wilfredo Tesorero and one Reynaldo
Villanueva, together with two other soldiers. Upon being informed that the group were hiding inside a
hut Lt. Valentin and his men surrounded the aforesaid hut but appellant Tesorero and Reynaldo
Villanueva were able to escape. Only their two companions were caught and brought to the PC
Provincial Headquarters. The fourth time was on October 20, 1969 when Lt. Valentin, together with
Sgt. Ocray, Sgt. Corpus and four enlisted men, were sent to Baras by their commanding Officer to
look for appellant Tesorero and Reynaldo Villanueva in view of reports that they were still in Baras,
although their details as security guards of congressional candidate Rodulfo had been terminated
since September 24, 1969. When they arrived in Baras, Lt. Valentin was taken aback when
appellant Tesorero suddenly pointed the muzzle of his Garand rifle at his head. Fortunately, Lt.
Valentin was able to persuade the appellant that since they belong to the same organization they
were not supposed to fight each other. Lt. Valentin reported this incident to the Provincial
Commander and who in turn relayed the report to the head of the unit to which appellant Wilfredo
Tesorero and Reynaldo Villanueva were assigned.

Meanwhile, Sgt. David Cabrera, who was then the Detachment Commander of the PC Unit at Baras,
received a message from the General of the Second PC Zone to be delivered to appellant Wilfredo
Tesorero and Reynaldo Villanueva, directing them to report to their mother unit because they were
already on AWOL. At around 6:00 p.m. of November 12,1969, upon learning that appellant was
staying in the house of Eduviges Tapia at Baras, Sgt. Cabrera, together with Sgt. Zosimo Tapanan,
Pfc. Pillogo, Pfc. Mendoza and one trainee, proceeded to the afore-mentioned place. When they
arrived in front of the house of Andres Tapia, they saw appellant Wilfredo Tesorero who immediately
surrendered to Sgt. Cabrera but pleaded that he should not be taken to the PC headquarters at
Virac but allowed instead to proceed directly to his mother unit in Manila. Sgt. Cabrera agreed to this
request and even assured appellant that he would escort him to the pier at Virac the following
morning. Apparently satisfied with these arrangements, appellant Tesorero then proposed that they
should have a drinking spree, to which Sgt. Cabrera agreed. Some of the men of Sgt. Cabrera even
contributed money to buy the alcoholic drinks. In the meantime, some civilians arrived in the house
of Andres Tapia and participated in the alcoholic binge. While the party was going on, Board
Member Teston, together with one Salvador Beraquit, a Liberal Party leader in Baras, and his driver,
Apolonio Torrente, also arrived. According to Teston, his cousin, Eduviges Tapia, had earlier gone to
his house to inform him of the presence of Wilfredo Tesorero in her house and of his desire to
surrender to him, and it was for that purpose that he went to the house of Tapia. Upon seeing
appellant, Teston introduced himself to him and they shook hands. Appellant Tesorero offered
Teston a drink consisting of a glass of Tanduay rum mixed with Coca-Cola which the latter accepted.
On that occasion, Teston informed appellant that he had nothing to fear because he (Teston) came
to know lately that they were relatives, and in acknowledgment of such relationship, Wilfredo
Tesorero kissed the hand of Teston. It was at this juncture when Sgt. Cabrera informed Teston that
he already had an agreement with appellant that he would escort him to the pier the following
morning. Appellant then asked the opinion of Teston on the matter, and the latter told appellant that
being his nephew, it was his opinion that because of the things that happened during the elections,
Tesorero should see first the Provincial Commander before leaving Catanduanes in order to clear
himself. Wilfredo Tesorero, however, disagreed. According to Sgt. Cabrera, one Alfredo Tanael, a
former non-commissioned officer of the army, intervened saying that according to army rules,
Tesorero cannot be compelled under the circumstances to report to the Provincial Commander, and
because of this, the conversation between Teston and Tesorero became heated. Teston then
shouted at Sgt. David Cabrera to take charge as he was leaving to attend the session of the Board
of Canvassers. Appellant, who had in the meantime gone to his room, came out and pushed
Salvador Beraquit towards Amador Teston. Almost simultaneously, appellant brought out his rifle
and commenced to fire at Teston. Teston ducked for cover but before he was able to do so, he
sustained gunshot wounds on his buttocks. Appellant continued firing at the people inside the house.
Apolonio Torrente, who was then sitting on a bench at the porch of the house, was shot mortally and
fell to the floor. Sgt. Zosimo Tapanan, who was then at that time seeking cover behind the door of
the kitchen, was also shot on the upper left thigh and fell as a result thereof to the floor. Eduviges
Tapia, who was then standing beside Sgt. Tapanan, was fatally shot. After firing his gun. Wilfredo
Tesorero jumped through the window of the house and ran away. Eduviges Tapia died on the spot,
while Apolonio Torrente died upon arrival at the Virac Provincial Hospital. Amador Teston, Sgt.
Zosimo Tapanan, Salvador Beraquit and Meliton Arcilla were brought to the hospital where they
were treated for various kinds of gunshot wounds.

Patrolman Sancho Lizaso who conducted an ocular inspection of the, scene of the crime, found four
(4) empty Garand rifle shells (Exhibits "M", "M-1" to "M-3") at the entrance of the bedroom where
appellant stood at the time he fired his Garand rifle; six (6) Garand clips containing eight (8) live
bullets each (Exhibits "N" "N-1" to "N-5") inside the bedroom, on top of a sewing machine, together
with a jacket with PC insignia and chevron Exhibit "O") having a hand grenade (Exhibits "P" and "P-
1") inside its pockets (Exhibit "O"). He saw blood stains on the floor of the dining room where the
body of the deceased Eduviges Tapia was found, and also blood stains on the sala and in the porch.
He found also three (3) bullet holes on the wall separating the sala from the porch. (Exhibit "2-A"), on
the wall leading to the dining room (Exhibit "2-B), and on the bamboo post (Exhibit "2-C"). According
to Sgt. Tapanan, no other person inside the house fired a gun, except appellant Tesorero.

Dr. Loreto Rojas, who conducted the autopsy of the deceased Eduviges Tapia, found that the cause
of death was hemorrhage, secondary to gunshot wound. As per his necropsy report (Exhibit "A"), the
deceased sustained the following gunshot wounds. (1) a perforating wound with lacerated border on
the deltoid muscle, right; (2) compound comminuted fracture of the whole upper third of the
humerus, right; (3) compound comminuted fracture of the 1st 2nd and 3rd ribs, right; and (4) a
perforating wound with point of entrance at the lateral side, measuring 1-1/2 cms. in diameter with
clean cut border over the upper lobe of the right lung, with point of exit at the medial aspect thereof,
circular in shape with lacerated border of 2 cms. in diameter. He found a bullet slug (Exhibit "D")
embedded in the thoracic vertebrae (Exhibit "B").

Dr. Augusto Sta. Ana, who performed the autopsy on the body of the deceased Apolonio Torrente,
testified that Torrente died of internal hemorrhage secondary to gunshot wound (Exhibit "G"). The
gunshot wound had its entrance at the anterior portion of the abdomen 4 cms. above the umbilicus
and its exist at the posterior portion of the back. The small intestine, omentum and the abdominal
aorta were all perforated, while the spinal column was injured. According to Dr. Sta. Ana, the victim,
on the basis of the location and direction of the gunshot wounds, could have been shot frontally.
Meliton Arcilla, who was also near the other victims, suffered a gunshot wound on the little finger and
dorsal aspect of the left hand, abrasion on the left forearm and powder burns on the left hand, which
injuries required twenty (20) to twenty-five (25) days of medical treatment (Exhibit "H"). Salvador
Beraquit sustained gunshot wound and hematoma on the left lumbar region which required from
twenty (20) to twenty-five (25) days of medical treatment (Exhibit "I"). Zosimo Tapanan sustained a
gunshot wound on the left thigh and comminuted fracture of the proximal third, femur, left, which
lesion required four (4) to five (5) months treatment. And finally, Amador Teston sustained a gunshot
wound, through and through, over the gluteal region. His injuries required twenty (20) to twenty-five
(25) days of medical treatment.

On the basis of the foregoing, the trial court rendered judgment convicting appellant Wilfredo
Tesorero (a) of Murder in Criminal Case No. 46 for the death of Eduviges Tapia, imposing upon him
the penalty of life imprisonment and ordering him to indemnify the heirs of the said deceased in the
amount of P12,000.00; (b) of M under in Criminal Case No. 47 for the death of Apolonio Torrente,
sentencing him to suffer the penalty of life imprisonment and also ordering him to indemnify the heirs
of said deceased in the amount of P12,000.00; (c) of Attempted Murder in Criminal Case No. 48 for
the shooting of Zosimo Tapanan and sentencing him to an indeterminate penalty of from Two (2)
years, Ten (10) months and Twenty (20.) days of prision correccional as minimum, to Six (6) years,
One (1) month and Eleven (11) days of mayor as maximum; and (d) of Attempted Murder with
Physical Injuries in Criminal Case No. 49 for the shooting of Amador Teston, Meliton Arcilla and
Salvador Beraquit, and sentencing him to suffer an indeterminate penalty of from Four (4) years and
Two (2) months of prision correccional as minimum, to Eight (8) years and Twenty-one (21) days
of prision mayor as maximum. In all of the afore-mentioned cases, appellant was credited with the
full term of his preventive imprisonment, and to pay the costs.

The issue posed by appellant in this appeal is whether, on the basis of the evidence, the trial court
erred in holding appellant criminally responsible for the death of Eduviges Tapia and Apolonio
Torrente and for the injuries sustained by Zosimo Tapanan, Amador Teston, Meliton Arcilla and
Salvador Beraquit. Appellant contends that the aforementioned victims could have been slain or
injured by a person or persons other than by appellant. This argument is predicated on his averment
that (a) the diameter of the wound of entrance on the cadaver of the deceased Eduviges Tapia is 1
1/2 cms. or 0.59 inch, much bigger than the caliber of a Garand Cal. .30 rifle, which was the firearm
of appellant, coupled with the failure of the prosecution to submit in evidence the slug (Exhibit "D")
which creates the presumption that if said slug is produced, it would be adverse to the prosecution;
and (b) the absence of positive proof that the victims were all injured by bullets fired from the gun of
appellant, especially in view of the statement of with in their affidavits that during the incident there
were armed men who also Tired their guns.

The circumstance that the diameter of the wound of entrance found on the body of Eduviges Tapia
does not correspond with the diameter of a bullet from a .30 caliber Garand rifle, or that said wound
is much bigger than the diameter of a bullet that could have come from the Garand rifle of appellant,
does not necessarily preclude a finding that the said wound was caused by a bullet fired from the
rifle of appellant. The size of the wound of entrance may not necessarily correspond to the caliber of
the penetrating bullet, 1 as the bullet may be deformed and flattened before entering the skin, as in a
ricochet from a hard surface and leave a wound larger than the original missile, usually of an
irregularly and avoid or triangular shape. 2 The appearance of an entrance wound is influenced by
the distance of discharge, the type of weapon, the powder and the part of the body hit. Thus, "in the
case of high velocity projectiles, such as rifle bullets, the wounds produced in the body vary with the
distance from which the bullet is fired. When fired from less than three hundred (300) to four hundred
(400) yards, the force of impact is so great that the tissues may disintegrate and a large cavity is
formed." 3

According to the evidence of the prosecution, the bullet which fatally injured Eduviges Tapia passed
first thru the wall separating the room from the kitchen before hitting the victim. The slug, having
struck first a hard object, was, therefore, deformed. This would explain the circumstance that the
diameter of the wound of entrance is larger than the diameter of the original bullet. Equally untenable
is the contention of appellant that the non-production of the slug amounted to a willful suppression of
such evidence by the prosecution. The attendant circumstances do not support this assertion. It
must be noted that after Dr. Loreto Roxas extracted the slug from the body of the deceased, he
entrusted it to the care of his wife instead of delivering it to the police authorities. When the case was
called for preliminary investigation in the Office of the Provincial Fiscal, the slug could not be
produced by the police because it was allegedly misplaced by the wife of Dr. Roxas. It was only
during the hearing of the application of appellant for bail that the slug (Exhibit "D") was produced and
Identified by Dr. Roxas. According to the trial court, the slug was subsequently presented by the
defense counsel to appellant Tesorero during his direct examination of appellant to ascertain from
him whether or not the slug came from his Garand rifle. After appellant denied that the said slug
came from his rifle, nothing else was done by the defense, either to have it marked as their exhibit or
have it entrusted to the court for safekeeping. In the meantime, the private prosecutor requested
permission to take the slug for ballistic examination. When the trial was resumed, the slug could no
longer be located. Considering that in the course of the trial the afore-mentioned slug was, at one
time or another, in the possession of either the prosecution or the defense who had the opportunity
to present it as evidence but instead both failed, it is, therefore, not true that the prosecution has
deliberately suppressed the said evidence. At any event, no such unfavorable inference against the
prosecution could arise, considering that even if such evidence were submitted by the prosecution it
would only be corroborative or
cumulative, 4 for the principal evidence linking appellant with the death of Eduviges Tapia is the
testimony of the eyewitnesses. Thus, Sgt. Tapanan testified that he was positive that the appellant
fired more or less six (6,) to eight (8) shots, one of which passed thru the wall of the living room
before injuring fatally Eduviges Tapia, who was then standing beside him. The presence of a bullet
hole (Exhibit "L-4") on the wall leading to the dining room, as well as the trajectory of the bullet, in
relation to the position of the appellant vis-a-vis Tapia, when the former fired his gun. confirm
Tapanan's testimony.

We also find without factual basis appellant's contention that the death of Tapia and Torrente could
have been caused by the shots fired by other armed men who were then on the ground. Apart from
the circumstance that the same is a mere conjecture, said appellant admits that he heard those
shots only after he had already jumped out of the window and landed at the top of a jeep. At that
time, he had already fired his Garand rifle about four (4) times at Teston, then at Arcilla. Besides, it
would have been absurd for the bodyguards of Teston, assuming that they were then on the ground,
to have fired their guns indiscriminately at the house of Tapia, for that would have placed the life of
Teston himself in jeopardy. Such conjectures cannot prevail over the clear and positive evidence of
the prosecution that it was appellant alone who fired his gun at the people inside the house. Thus,
Sgt. Zosimo Tapanan categorically stated that it was appellant who shot Torrente and Tapia. Teston
clearly declared that it was only appellant who fired his gun at the victims. According to Reynaldo
Villarosa, he did not see any other person who fired his gun except the appellant. Two defense
witnesses, Sgt. David Cabrera and Andres Tejada admitted that it was appellant alone whom they
saw firing his gun on that occasion. Thus, defense witness Andres Tejada declared:

Q. What did the accused Wilfredo Tesorero do, if he did anything?

A I noticed that he was already holding a Garand rifle.

Q. What did he do with his Garand?

A. He shot Apolonio Torrente (t.s.n. p.176, March 18, 1971).

Having reached the conclusion that it was only appellant who fired his gun at the people inside the
house, it follows, as a necessary logical consequence, that he alone is responsible for the gunshot
wounds sustained by the other victims therein. Besides, he admitted that when he fired at Teston,
Beraquit was in the line of fire as he was standing between him and Teston and, therefore, could
have injured Beraquit when he was firing at Teston. He also admitted that he fired at Meliton Arcilla
after shooting Teston.

Finally, appellant contends that even assuming that he was responsible for the death of Eduviges
Tapia and Apolonio Torrente and for the injuries sustained by Zosimo Tapanan, Amador Teston,
Meliton Arcilla and Salvador Beraquit, still the trial court erred in not holding that said appellant acted
in legitimate self-defense. In order to invoke self-defense, the accused must first of all prove unlawful
aggression on the part of the person injured or killed by the aforesaid accused. 5 in the case at bar,
appellant failed to prove unlawful aggression on the part of any of the victims. The only possible
evidence of appellant on this matter is his uncorroborated testimony that when Board Member
Teston attempted to enter his room he pushed him and that was the time when Meliton Arcilla fired
at him "Point blank" from a distance of about two (2) meters. But this testimony is, however,
rendered implausible by the declaration of his own witness, Andres Tejada, who affirmed that it was
appellant who first fired at Teston, then at Torrente, and the testimony of defense witness Sgt. David
Cabrera that after Teston shouted to him to take charge, appellant grabbed his Garand rifle and shot
at everybody in the house. 6
We reiterate here the rule that in order for a plea of self-defense to prosper, it must be supported by
clear and convincing evidence. 7 When an accused admits that he is the author of the death of the
deceased, it is incumbent upon him, in order to avoid criminal liability, to prove the justifying
circumstance of self-defense to the satisfaction of the court ' To do so, he must rely on the strength
of his own evidence and not on the infirmity of that of the prosecution, for even if that were weak, it
could not be disbelieved after the accused himself had admitted the killing. 8

We do find merit, however, to the observation of the Solicitor General that the evidence of the
prosecution does not justify the application of the qualifying circumstance of treachery. As this Court
ruled in previous cases, 9 the circumstance "that an attack was sudden and unexpected to the
person assaulted did not constitute the element of alevosia necessary to raise a homicide to murder,
where it did not appear that the aggressor had consciously adopted a mode of attack intended to
facilitate the perpetration of the homicide without risk to himself." In the present case, there are
circumstances which negate the assumption that appellant employed means, method or forms of
execution which tend directly and specially to insure the commission of the crime and at the same
time eliminate or diminish the risk to his person from the defense which the other might do. In fact,
the witnesses for the prosecution admitted that the appellant and the victims started with apparently
cordial note before the incident in question. The decision to shoot or kill the victims was sudden,
brought about apparently by the insistence of Teston that appellant should clear himself first with the
Provincial Commander which led to a heated argument between the two. Absent the qualifying
circumstance of treachery, appellant should be held responsible only for the crimes of Homicide for
the death of Tapia and Torrente and Attempted homicide for the shooting of the other victims.

WHEREFORE, in view of the foregoing, We affirm the judgment with the following modifications:

(a) In Criminal Case No. 46, from Murder to Homicide as defined under Article 249 of the Revised
Penal Code, with no aggravating nor mitigating circumstance, the penalty to be likewise reduced to
an indeterminate sentence of imprisonment from EIGHT (8) YEARS and ONE (1) DAY of prision
mayor as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY
of reclusion temporal as maximum, to indemnify the heirs of Eduviges Tapia in the amount of
P12,000.00 and to pay the costs;

(b) In Criminal Case No. 47, from Murder to Homicide as defined under Article 249 of the Revised
Penal Code, with no aggravating nor mitigating circumstance, the penalty to be likewise reduced to
an indeterminate sentence of imprisonment from EIGHT (8) YEARS and ONE (1) DAY of prision
mayor as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY
of reclusion temporal as maximum, to indemnify the heirs of Apolonio Torrente in the amount of
P12,000.00 and to pay the costs

(c) In Criminal Case No. 48, from Attempted Murder to Attempted Homicide as defined and punished
under Article 249, in relation to Article 51, of the Revised Penal Code, with no mitigating nor
aggravating circumstance, the penalty to be likewise reduced to an indeterminate sentence of
imprisonment from THREE (3) MONTHS and ONE (1) DAY of arresto mayor as minimum, to TWO
(2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correccional as maximum, and to pay
the costs: and

(d) In Criminal Case No. 49, from Attempted Murder with Physical Injuries to Attempted Homicide as
defined and punished under Article 249, in relation to Articles 48 and 51 of the Revised Penal Code,
the penalty to be likewise reduced to an indeterminate sentence of imprisonment from FIVE (5)
MONTHS and ONE (1) DAY of arresto mayor as minimum, to FOUR (4) YEARS, TWO (2) MONTHS
and ONE (1) DAY of prision correccional as maximum, and to pay the costs.
In all of the afore-mentioned cases, the appellant should be credited with the full term of his
preventive imprisonment.

Fernando (Chairman), Barredo, Aquino and Martin, JJ., concur.

Concepcion, Jr., J., is on leave.

Footnotes

1 The size of the wound of entrance may correspond somewhat to the caliber of the
penetrating bullet, but the correspondence is not close enough to allow the examiner
to use the diameter of the skin perforation as a reliable criterion for estimating the
size of the bullet. In a particular case factors may be introduced which may lead to
erroneous conclusions. After the passage of the bullet,, the resilient skin may return
to its original condition, and by the contraction of muscular and elastic elements in
the dermis of the wound of entrance may be actually smaller than the caliber of the
projectile. On the other hand the bullet may be deformed and flattened before striking
the skin, as in a ricochet from a hard flat surface, and leave a wound of entrance
larger than the original missile, usually of an irregularly avoid or triangular shape. The
same effect is produced in a re-entrance wound. Sometimes a bullet may strike an
object and tumble, hitting the body side on, in which case an elongated wound of
entrance like a keyhole will be produced." * * * (pathology and Toxicology - Gonzales,
Vance, Helpern and Umberger Legal Medicine, Second Edition. pp. 400-402).

2 Ibid, p. 400.

3 In the case of high-velocity projectiles such as rifle bullets, the wounds produced in
the body vary with the distance from which the rifle is fired. When fired from less than
three to four hundred yards the force of impact is so great that the tissues may
disintegrate and a large cavity is formed. This may take place even when only soft
tissues are hit. If bone is hit, the bone may fragment and the pieces cause still further
destruction. In addition to this bursting of the tissues, the bullet itself may burst, the
general effects produced being those usually associated with dum-dum bullets. At
medium ranges the bullet is steady in its flight and tends to pass clean through the
tissues, leaving two small holes, whilst at a range over a thousand yards large
lacerated wounds are produced."(Ke Forensic Medicine, Fifth Edition, p. 141).

4 People v. Tuzon, 56 Phil. 649; Nicolas v. Nicolas, 62 Phil. 70.

5 People v. Apolinario, et al., 58 Phil. 586.

6 T.S.N., March 18, 1971, p. 151.

7 People v. Berio, 59 Phil. 533.

8 People v. Ansoyon, 75 Phil. 772, 775, 777.

9 People v. Tumaob, 83 Phil. 738, 742, People v. Dadis, 18 SCRA 699.

 2. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-30449 October 31, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO GARCIA Y CABARSE alias "TONY MANOK" and REYNALDO ARVISO V
REBELLEZA alias "RENE BISUGO," defendants-appellants.

Wenceslao B. Trinidad for appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and Solicitor Adolfo
J. Diaz for appellee.

ABAD SANTOS, J.:

This is an appeal from the decision of April 17, 1969 by the Circuit Criminal Court at Pasig, Rizal,
which found the accused guilty of murder and sentenced them to the death penalty.

The legal verdict hinges on the testimony of the lone eyewitness for the prosecution, Mrs. Corazon
Dioquino Paterno, sister of the deceased, Apolonio Dioquino, Jr. She testified that at the time of the
incident, she resided at Ventanilla Street, Pasay City. She lived at Pasay City for about five months
before moving to another dwelling at Timog Avenue, Quezon City. While residing at Pasay City, she
conceived a child and during this period, it was not unusual for her, accompanied by her husband, to
step out of the house in the wee hours of the morning. They set out on these irregular walks about
five times.

During her residence at Pasay City, her brother Apolonio visited her family for about twenty times.
Sometimes her brother would stay instead at their parents' house at Muntinlupa, Rizal. He usually
spent his weekends in his residence at Bo. Balubad, Porac, Pampanga. Apolonio and her husband
were very close to each other; whenever Apolonio paid them a visit, he usually slept in the house
and sought their help on various problems.

Before the incident which gave rise to this case, Corazon's husband informed her that he saw
Apolonio engaged in a drinking spree with his gang in front of an establishment known as Bill's Place
at M. de la Cruz Street. Pasay City. In her sworn statement before the Pasay City Police executed
on November 3, 1968, Corazon surmised that her husband must have been painting the town red
("nag good time") in that same place. Upon learning this information from her husband, Corazon
obtained permission to leave the house at 3:00 a.m. so she could fetch her brother. At that time, she
had not been aware that Apolonio was in Pasay City; she had been of the belief that he was with his
family in Pampanga. She went to fetch him because she wanted him to escape the untoward
influence of his gang. In explaining the rationale for her noctural mission, she employed in her sworn
statement the following language: "Dahil itong si Junior ay meron na kaming nabalitaan na naaakay
ng barkada niya sa paggawa ng hindi mabuti."
On her way, as she rounded the corner of P.C. Santos Street, Corazon saw her brother fleeing a
group of about seven persons, including the two accused, Antonio Garcia and Reynaldo Arviso. She
recognized the two accused because they were former gangmates of her brother; in fact, she knew
them before the incident by their aliases of "Tony Manok" and "Rene Bisugo, " respectively.

Corazon saw that the chase was led by the two accused, with Antonio carrying a long sharp
instrument. Later, in the course of giving her sworn statement before the Pasay City Police on ,
November 3, 1968, Corazon positively Identified Antonio and Reynaldo, who were then at the office
of the General Investigation Section, Secret Service Division, Pasay City Police Department. She
also stated that if she saw the other members of the group again, perhaps she could likewise Identify
them. At the trial, Corazon likewise pointed out the two accused. During the incident, she exerted
efforts to Identify the other group members, taking care to conceal herself as she did so. She heard
a gunshot which caused her to seek cover.

When she ventured to look from where she was hiding, about 20 meters away, she saw the group
catch up with her brother and maltreat him. Some beat him with pieces of wood, others boxed him.
Immediately afterwards, the group scampered away in different directions. Antonio was left behind.
He was sitting astride the prostrate figure of Apolonio, stabbing the latter in the back with his long
knife. Corazon was not able to observe where Antonio later fled, for she could hardly bear to witness
the scene.

When Corazon mustered the courage to approach her brother, she saw that he was bathed in a pool
of his own blood. The incident threw her in a state of nervous confusion, and she resolved to report
the incident to her younger sister, who lived at Lakandula Street, Pasay City. Her sister in turn
decided to break the news to their father at Muntinlupa.

Subsequently, Corazon learned that the police authorities were searching for her brother's
gangmates for having killed him. She also learned that the suspects were in hiding. On the same
day — October 19, 1968 — accompanied by her family, she went at 2:00 p.m. to the Police
Department to inquire about her brother's corpse. They were directed to the Funeraria Popular,
where an autopsy was held. Sometime later, on November 1, 1968, she transferred residence to
Quezon City.

Dr. Mariano Cueva, Jr. testified that he conducted a post-mortem examination on the cadaver of the
decedent Apolonio, and that he prepared the corresponding Necropsy Report. Dr. Cueva found that
the deceased suffered 22 stab wounds in the different portions of his hips; in the front portion of the
chest and neck; in the back portion of the torso; and in the right hand. He testified that the wounds
sustained by the deceased brought about a massive hemorrhage which caused death. He also
testified that it is possible that the instrument marked as Exhibit "B" could have been used in inflicting
the multiple stab wounds sustained by the deceased, except the stab wounds on the neck.

Both the accused took refuge in the defense of alibi. Antonio Garcia claimed that at that time of the
incident — starting with the chase and ending with the victim's death — in the morning of October
19, 1968, he was at a place called Pacita's Canteen which adjoins Bill's Place at M, de la Cruz
Street. Reynaldo Arviso claimed that in the evening of the preceding night (October 18, 1968) he
went on a drinking spree with his friends at Pacita's Canteen. He went home at 10:30 p.m. and slept
up to 7:00 a.m. of October 19, 1968. From 7:00 a.m. of that day, he performed his duties as a bus
conductor by calling for passengers near Pacita's Canteen.

The trial court pinpointed the issue as revolving around the Identity of the persons who participated
in the killing of the deceased. it banked on the testimony of the witness, Corazon Dioquino, who
positively Identified the accused as participants in the attack. Noting that "the defense did not even
attempt to present any evil motive on the part of the witness," the court concluded that "the two
accused took part in the perpetuation of the crime charged." It gave short shrift to the defense of alibi
presented by the two accused, noting that, by their own admission, the two accused were residents
of the vicinity of the crime.

In respect of the circumstances attending the crime it said:

But considering the aggravating circumstances of nighttime; superior strength; and

treachery, which three aggravating circumstances had been sufficiently established
by the prosecution, the same cannot be offset by said voluntary surrender to a
person in authority of his agent, plus the uncontested fact that deceased, Apolonio
Dioquino, Jr. suffered no less than 22 stab wounds, convincing evidence of the
apparent criminal perversity of the accused, the court, therefore, has no alternative
but to impose the supreme penalty.

And rendered judgment as follows:

IN VIEW OF THE FOREGOING, the Court finds the accused, Antonio Garcia v
Cabarse and Reynaldo Arviso y Rebelleza, GUILTY, beyond reasonable doubt, of
the crime of Murder under Article 248, of the Revised Penal Code, as charged under
Article 248, of the Revised Penal Code, as charged in the information, and
considering the aggravating circumstances surrounding the commission of the crime,
each one of them is hereby sentenced to suffer the penalty of DEATH.

The two accused are further ordered to indemnify, the heirs of the deceased,
Apolonio Dioquino, Jr. in the amount of TWELVE 'THOUSAND (P12,000,00)
PESOS, jointly and severally and to pay their proportionate share of the costs.

In their Brief, the accused contended that the lower court erred: in not considering nighttime and
superior strength as absorbed in treachery: in finding nighttime as an aggravating circumstance
despite absolute absence of evidence that nighttime was purposely sought to insure the execution of
the crime; in finding superior strength as an aggravating circumstance despite absence of evidence
to sustain such a finding; in finding treachery as an aggravating circumstance despite absence of
evidence to that effect; in not stating the qualifying circumstance of the alleged crime; in holding that
the accused Reynaldo Arviso stabbed and hit the victim when there is no evidence as to the
participation of the said accused Arviso in the execution of the alleged crime; and in failing to
consider the material inconsistencies, prejudice and other circumstances in the uncorroborated
testimony of the only eyewitness, rendering said testimony not worthy of belief.

The assignment of errors by the accused is anchored on their attempt to discredit the lone
eyewitness for the prosecution, a function which, if successfully undertaken, would totally obliterate
the nexus between the accused and the crime. The defense vigorously maintained that the
testimony of the only eyewitness is a fabrication, and that she was in fact absent from the scene
which she described in both her sworn statement and in her testimony at the trial.

The defense asserted that Corazon Dioquino's testimony was riddled by material inconsistencies.
The defense sought to capitalize on the discrepancy of a sketch made by Corazon and the sketch
made by Pasay City Electrical Engineer Jaime Arriola. Corazon's sketch shows Juan Sumulong
Elementary School to be right in front of P.C. Santos Street; while Arriola's sketch shows that the
school is about 135 meters from the corner of the street. The defense contended that the
discrepancy was a deliberate falsehood on the part of the witness,
Corazon testified that she was near the corner of P.C. Santos Street when she saw her brother
under chase in front of the school, and that she met the group in front of the school in a matter of five
seconds, more or less. The defense assailed her testimony on this point as incredible on the ground
that the distance between the point where she saw her brother being chased, up to the point where
she met them, is 135 meters, and no human being can cover that distance in five seconds.
Moreover, Corazon testified that she was 20 meters away from the place where the accused caught
up with her brother. Again, the defense criticized her testimony in this respect by pointing out that the
true distance is 175 meters.

The defense insisted that Corazon's sketch of the locale of the crime (Exhibit "1") constitutes "the
high point of falsity of her testimony." The defense sought to substantiate this claim by arguing that
from her sketch, it appears that she never crossed paths with her brother or his pursuers. The
witness testified that she saw her brother at the point which is four to five meters from the corner of
P.C. Santos Street. Yet she also testified that she saw the incident from 20 meters. The witness
claimed she hid after hearing the shot at a point which is 170 meters from the scene of the crime.
The defense argued that she could not have covered the distance in such a short time, and that this
belies her claim that she was only 20 meters from the scene of the crime. The defense pointed out
that Arriola's sketch (Exhibit "2") shows that the school is 135 meters from the scene of the crime,
and the point where the witness claimed she viewed the crime is 170 meters from the scene of the
crime thus giving the lie to her claim that she was 20 meters away.

The alleged inconsistencies in Corazon's testimony — which the defense makes much of — are not
irreconcilable with the physical facts, At the outset, it should not be overlooked that Corazon was
testifying as an eyewitness to the traumatic incident by which her brother met a violent death at the
hands of a mob. Naturally, Corazon can not be expected to deliver a testimony which passes
microscopic scrutiny and scrupulous armchair analysis of the facts, conducted under circumstances
far removed from the turbulence and emotional color of the event as it actually transpired. Al
contrario, if Corazon's testimony were meticulously accurate with respect to distance covered and
the time taken to negotiate it, an impartial observer would wonder whether such exactitude were not
the product of previous rehearsal, if not of fabrication. In times of stress, the human mind is
frequently overpowered by the ebb and flow of emotions in turmoil; and it is only judicious to take
into consideration the natural manifestations of human conduct, when the physical senses are
subdued by the psychological state of the individual.

Corazon was a resident of Pasay City for only about five months. She testified that she is not familiar
with the streets along M. de la Cruz Street. Moreover, Corazon did not categorically testify that she
covered the distance of 135 meters in five seconds. Mole accurately, she testified that she walked
for a period of from five to ten seconds, more or less. Put in this way, the period was sufficient to
allow her to negotiate the distance. Moreover, Corazon did not stay rooted to one spot while the
incident was taking place, but surreptitiously edged her way up to Magtibay Street, which is closer to
the place of the killing.

The defense also claims that the delay which Corazon allowed to transpire, before reporting the
crime to the authorities and giving her sworn statement (on November 3, 1968), is indicative of
fabrication. The killing took place before dawn of October 19, 1968, In the afternoon of the same
day, Corazon and her family went to the Police Department to inquire about the remains of her
brother. Corazon already knew that the police were taking steps to round up the killers. She incurred
no fault in waiting until the culprits were arrested before confronting them and giving her statement. It
would have been the better part of legal procedure if she had given her statement earlier; but since
she was only a 22-year old housekeeper at that tune, she can not be held to a higher standard of
discretion.
The defense further contends that the failure to present Corazon's husband in court indicates that
Corazon was not actually at the scene of the crime at 3:00 o'clock in the morning. It the defense felt
that the husband had a contribution to make in the cause of truth, there was nothing which
prevented them from compelling his process by summons. This they failed to do; and their omission
should not be taken to reflect adversely on the prosecution, who evidently believed that the
husband's testimony was unnecessary,

Finally, the defense claims that it was unnatural for Corazon, after viewing her brother's body, to
proceed to her sister's house one kilometer away, instead of returning to her own house, which was
just a block or so away. It is not unnatural for a witness to a gruesome event, to choose to confer
with a person bound to her by ties of consanguinity, even if such a conference necessitates that she
traverse a longer distance. The exercise of judgment, on the spot, should not be gauged by reason
applied in hindsight with a metrical yard stick.

The next major burden which the defense undertook to assume was to contend that the accused
Reynaldo Arviso is innocent because there is no evidence as to his participation in the execution of
the crime. It is claimed that there is absolute absence of evidence to show that Reynaldo was a
direct participant and that the only evidence against him is that he was seen pursuing the victim.
However, the finding of Reynaldo's guilt stems, not from his direct participation in the criminal
execution, but from his participation in the conspiracy to kill the deceased. His participation in the
conspiracy is supported by Corazon's testimony that he and Antonio were the leaders of the pack
following closely at the heels of the victim.

It is well established that conspiracy may be inferred from the acts of the accused themselves, when
such acts point to a joint purpose and design. A concerted assault upon the victim by the defendants
may indicate conspiracy. (PP v. Monroy & Idica, L-11177, Oct. 30, 1958, 104 Phil. 759). Conspiracy
exists if, at the time of the commission of the offense, the defendants had the same criminal purpose
and were united in its execution. (PP v. Datu Dima Binahasing, L-4837, April 28, 1956, 98 Phil. 902).
Those who are members of the band of malefactors by which a murder is committed and are present
at the time and place of the commission of the crime, thus contributing by their presence to augment
the power of the band and to aid in the successful realization of the crime, are guilty as principals
even if they took no part in the material act of killing the deceased. (US v. Abelinde, No. 945, Dec.
10, 1902, 1 Phil. 568; People v. Carunungan, L-13283, Sept. 30, 1960, 109 Phil. 534). To establish
conspiracy, it is not essential that there be proof as to previous agreement to commit a crime. It is
sufficient that the malefactors have acted in concert, pursuant to the same objective. (PP vs. San
Luis, L-2365, May 29, 1950, 86 Phil. 485).

Conspiracy need not be established by direct evidence of acts charged, but may and generally must
be proven by a number of indefinite acts, conditions and circumstances which vary according to the
purpose to be accomplished. If it be proved that two or more persons aimed by their acts towards
accomplishment of the same unlawful object, each doing a part. so that their acts, though apparently
independent, were in fact connected and cooperative, indicating a closeness of personal association
and concurrence of sentiment, a conspiracy maybe inferred though no actual meeting among them
to concert is proven (PP v. Colman L-6652-54, Feb. 28, 1958, 103 Phil. 6). A conspiracy may be
entered into after the commencement of overt acts leading to the consummation of the crime. (PP v.
Barredo, L-2728, Dec. 29, 1950, 87 Phil. 800). Conspiracy implies concert of design and not
participation in every detail of execution (PP v. Carbonel, L-24177, March 15, 1926, 48 Phil. 868; PP
v. Danan, L-1766, March 31, 1949, 83 Phil. 252).

When a group of seven men, more or less, give chase to a single unarmed individual running for his
life, and they overtake him and inflict wounds on his body by means of shooting, stabbing, and
hitting with pieces of wood, there is conspiracy to kill; and it does not detract from their status as
conspirators that there is no evidence of previous agreement, it being sufficient that their wills have
concurred and they labored to achieve the same end.

The defense submits that the failure of the lower court to specify the qualifying circumstance in the
crime of murder is violative of the Constitution and the Rules of Court. We find no such infirmity.
Since the principle concerned is "readily understood from the facts, the conclusion and the penalty
posed., an express specification of the statute or exposition of the law is not necessary." (People vs.
Silo, L-7916, May 25, 1956, 99 Phil. 216). In the absence of a specification by the trial court, the
defense surmised that the qualifying circumstance in this case is evident premeditation: but the
defense argued that evident premeditation was not shown. We agree. Under normal conditions,
conspiracy generally presupposes premeditation. But in the case of implied conspiracy, evident
premeditation may not be appreciated, in the absence of proof as to how and when the plan to kill
the victim was hatched or what time elapsed before it was carried out, so that it can not be
determined if the accused had "sufficient time between its inception and its fulfillment
dispassionately to consider and accept the consequences." There should be a showing that the
accused had the opportunity for reflection and persisted in executing his criminal design. (PP v.
Custodia, L-7442, October 24,1955, 97 Phil. 698; PP v. Mendoza and Sinu-ag, L-4146 and L-4147,
March 28, 1952, 91 Phil. 58; PP v. Yturiaga, L-2816, May 31, 1950, 86 Phil. 534; PP v. Lozada, No.
46998, Nov. 16, 1940, 70 Phil. 525; PP v. Upao Moro, L-6771, May 28, 1957, Phil. 101 Phil. 1226;
PP v. Sakam, No. 41566, Dec. 7, 1934, 61 Phil. 27: PP v. Peralta, L-19069, Oct. 29, 1968, 25 SCRA
759; PP v. Pareja, L-21937, Nov. 29, 1969, 30 SCRA 693).

Even in the absence of evident premeditation, the crime of murder in this case might still be qualified
by treachery, which is alleged in the information. But the defense argued that treachery was not
present. We are so convinced. It is an elementary axiom that treachery can in no way be presumed
but must be fully proven. (US v. Asilo, No. 1957, Jan. 30, 1905, 4 Phil, 175; US v. Arciga, No. 1129,
April 6, 1903, 2 Phil. 110; PP v. Durante, No. 31101, Aug. 23, 1929, 53 Phil. 363; PP v. Pelago, L-
24884, Aug. 31, 1968, 24 SCRA 1027), Where the manner of the attack was not proven, the
defendant should be given the benefit of the doubt, and the crime should be considered homicide
only. (Carpio, 83 Phil. 509; Amansec, So Phil, 424).

In People vs. Metran (L-4205, July 27, 1951, 89 Phil. 543). the aggravating circumstances of aid of
armed men, abuse of superiority, and nocturnity, were considered as constituting treachery, which
qualified the crime as murder, since there was no direct evidence as to the manner of the attack.
However, in this case we believe that the correct qualifying circumstance is not treachery, but abuse
of superiority. Here we are confronted with a helpless victim killed by assailants superior to him in
arms and in numbers. But the attack was not sudden nor unexpected, and the element of surprise
was lacking. The victim could have made a defense; hence, the assault involved some risk to the
assailants. There being no showing when the intent to kill was formed, it can not be said that
treachery has been proven. We believe the correct rule is found in People vs. Proceso Bustos (No.
17763, July 23, 1923, 45 Phil. 9), where alevosia was not appreciated because it was deemed
included in abuse of superiority.

We find that abuse of superiority attended the offense, following a long line of cases which made this
finding on parallel facts Our jurisprudence is exemplified by the holding that where four persons
attacked an unarmed victim but there was no proof as to how the attack commenced and treachery
was not proven, the fact that there were four assailants would constitute abuse of superiority.
(People vs. Lasada, No. 6742, Jan. 26, 1912, 21 Phil. 287; US v. Banagale, No. 7870, Jan. 10,
1913, 24 Phil. 69). However, the information does not allege the qualifying circumstance of abuse of
superiority; hence, this circumstance can only be Created as generic aggravating. (People v. Acusar,
L-1798, Dee. 29, 1948, 82 Phil. 490; People v. Beje, L-8245, July 19, 1956, 99 Phil. 1052; People v.
Bautista, L-23303, May 20, 1969, 28 SCRA 184).
The offense took place at 3:00 o'clock in the morning. It may therefore be said that it was committed
at night, which covers the period from sunset to sunrise, according to the New Civil Code, Article 13.
Is this basis for finding that nocturnity is aggravating? The Revised Penal Code, Article 14, provides
that it is an aggravating circumstance when the crime is committed in the nighttime, whenever
nocturnity may facilitate the commission of the offense. There are two tests for nocturnity as an
aggravating circumstance: the objective test, under which nocturnity is aggravating because it
facilitates the commission of the offense; and the subjective test, under which nocturnity is
aggravating because it was purposely sought by the offender. These two tests should be applied in
the alternative.

In this case, the subjective test is not passed because there is no showing that the accused
purposely sought the cover of night time. Next, we proceed and apply the objective test, to
determine whether nocturnity facilitated the killing of the victim. A group of men were engaged in a
drinking spree, in the course of which one of them fled, chased by seven others. The criminal assault
on the victim at 3:00 a.m. was invited by nocturnal cover, which handicapped the view of
eyewitnesses and encouraged impunity by persuading the malefactors that it would be difficult to
determine their Identity because of the darkness and the relative scarcity of people in the streets.
There circumstances combine to pass the objective test, and e find that nocturnity is aggravating
because it facilitated the commission of the offense. Nocturnity enticed those with the lust to kill to
follow their impulses with the false courage born out of the belief that they could not be readily
Identified.

The information alleges that the crime of murder was attended by the two qualifying circumstances
of treachery and evident premeditation. Neither of these qualifying circumstances was proved;
hence, the killing can not be qualified into murder, and constitutes instead the crime of homicide,
which is punished by reclusion temporal. It is not controverted that the accused voluntarily
surrendered to the authorities; they are therefore entitled to the mitigating circumstance of voluntary
surrender. This lone mitigating circumstance offset by the two generic aggravating circumstances of
abuse of superiority and nocturnity, produces the result that in the crime of homicide, one
aggravating circumstance remains.

WHEREFORE, the judgment of the court a quo is hereby modified in that the two accused, Antonio
Garcia y Cabarse and Reynaldo Arviso y Rebelleza, are sentenced to undergo an indeterminate
imprisonment of 10 years as minimum to 18 years as maximum, but in all other respects affirmed.

SO ORDERED.

Fernando, C.J., Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr., Santos Fernandez, Guerrero,
De Castro and -Melencio-Herrera, JJ., concur.

Teehankee J., took no part.

 3. Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 102954 October 14, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFREDO HANGAD, ALLAN ALULOD, RENE REYES, LEOPOLDO BALANGUE and RODELIO
VIDAL, accused-appellants.

The Solicitor General for plaintiff-appellee.

Agustin M. Rocamora and Wilson L. Dimaculangan for accused-appellants.

DAVIDE, JR., J.:

Accused appealed from the decision of Branch 50 of the Regional Trial Court of Palawan in Criminal
Case No. 8816, promulgated on 8 August 1991,1 finding all of them guilty of the murder of Decoroso
Cajes in the evening of 14 November 1989 at Parola Beach in the city of Puerto Princesa, and
sentencing each of them to suffer the penalty of reclusion perpetua and to pay, jointly and severally,
the heirs of Decoroso Cajes the sums of P50,000.00 as indemnity for his death and P50,000.00 as
moral damages.

The crime was allegedly committed on 14 November 1989 but the Information charging them of
murder was filed only on 28 June 1990.2 The basis of the filing of the Information were the sworn
statements of witnesses Lloyd Mahinay and Ernesto Rosales taken by Police Sgt. Crisanto
Pantollano on 26 February 19903 and the paraffin test results finding Lloyd Mahinay and the accused
positive for nitrates.4 The Information alleges the qualifying circumstances of treachery and evident
premeditation.

A plea of guilty was entered by each of the accused during their arraignment on 25 September
1990.5 Thereafter, trial on the merits ensued.

To establish its case, the prosecution presented Lloyd Mahinay and Ramon Pangilinan whose
testimonies disclosed the following facts:

At 10:00 in the evening of 14 November 1989 while Lloyd Mahinay, a resident of Parola Beach,
Barangay Bagong Silang, Puerto Princesa City, was on his way home, he met a group of five
persons. One of them poked a gun at him and asked him his name while the other four surrounded
him.. He did not know the name of the gunwielder but he could see his face and estimate his height
as the place was "not so dark because there was also moonlight." Then another person arrived and
when he was about five meters away from Lloyd, three members of the group met this other person.
Two of these three men held the newcomer while the third poked a gun at him. He tried to struggle
and one of the five persons shouted "Paputukan mo." Another person from the group raised his
hand and struck the man and the latter fell to the ground. The man was then shot. At this juncture,
Lloyd tried to wrestle with the person who was pointing a gun at him but the gun fired towards the
ground and the five panicked and ran away. Lloyd also panicked and ran towards the water and then
to the place where he was waylaid by a group of five men. He and his companion then returned to
the place where he was waylaid to find out what happened to the other person. When Lloyd and his
companion reached that place, they found the other person lying on the ground. He turned out to be
his co-worker, Decoroso was held by the two men and he purportedly asked those who escorted
him, "Ano ba ito, wala naman aking kasalan sa inyo?" They then brought Decroso to the hospital and
laid him down on the bed, but the doctor who examined him told them that he was already dead. 6

Per the Post-Mortem Findings7 of Dr. Manuel R. Bilog, Assistant Head Health Officer of the City of
Puerto Princesa, Decroso Cajes sustained the following injuries:

= Abrasion with peripheral hematoma, upper lid (left) about 1" long,
penetrated the whole thickness of the mascular tissues

= Gun Shot wound — mid occiput, with powder burns, circular, with
penetration to the Cranium (skull) producing worn-out brain tissues.
Buller slug lodged & recovered about 2" below the wound of the
entrance underneath the skin.

The cause of death was "shock; hemorrhage, massive, intra and extra-cerebral; gunshot wound."

Lloyd did not know the names of the five persons until 9 October 1990 when he testified; but since
he stated that he can recognize their faces, he was asked to identify them in court. So, he went
down form the witness box and approached and tapped the shoulder of a person in the courtroom
who gave his name as Leopoldo Balangue. Lloyd identified Balangue as the person who poked a
gun at him.8 He also pointed to four other persons in the courtroom as the companions of Balangue.
They gave their names as Rene Reyes, Rodelio Vital, Alfredo Hangad and Allan Alulod. When told
to point to the person who allegedly shot Decoroso Cajes, Lloyd touched the shoulder of Roselio
Vidal.9

Ramon Pangilinan, a security guard, testified that at about 10:00 o'clock in the evening of 14
November 1989, while he was at his store near the Parola Beach, he heard "some voices in the
cottage at the beach." At 10:30 o'clock, he saw a group of about four persons going out of the Parola
Beach toward the poblacion. Not so long thereafter, the group of Decoroso Cajes followed the first
group. Then he heard "a burst of firearm," but he did not mind it. Later, a commotion occurred and
he learned that Decoroso had been shot. That same evening he was interrogated by the police
regarding the incident and he told the police that he "saw them (the first group) going out the parola
beach" 10but he could not identify any of them. 11

The defense presented a totally different account of what occurred on the night of the incident. The
trial court summarized the version of the defense as culled from its witnesses as follows:

. . . the accused who are all students of PNAC-RIFT denied the accusation against
them and maintained that at the time of the incident in question, they were all
sleeping at the cottage of a certain Mrs. Abian whose son Eugene was their
classmate at PNAC-RIFT, Puerto Princesa City.

Thus, at around three o'clock in the afternoon on November 14, 1989, Rene Reyes
and some of his classmates, including all the accused, went to the house of Eugene
Abian at the Parola Beach to help the latter and his mother in cooking since it was
 the birthday of Eugene. Two hours later, some more guests arrived and the birthday
party started. After partaking of the food, the guests were served beer and the
drinking started at around 7:00 p.m. Beer flowed that night up to about 9:00 p.m.
when Rene and his classmates decided to rest already as they were very tired. Upon
the suggestion of Mrs. Abian, they all slept an spent the night at the latter's cottage at
the Parola Beach.

At around 12:00 midnight, Rene was awakened by one of his classmates so that they
could bring Eugene to the hospital as the latter's mouth was frothing. Together with
Allan Ramos, Ramon Aballa and the driver of the trycicle, Rene brought Eugene to
the hospital. On their way to the hospital from the Parola Beach, they noticed a
person sprawled on the ground along the road. But since they were in a hurry to
bring Eugene to the hospital, they just evaded the said person. After having Eugene
treated at the hospital, Rene Reyes, Tsn: pp. 3-8, Oct. 22, 1990).

Lito Montero, a neighbor of Eugene Abian was the one who drove the trycicle that
brought the latter to the hospital. He said they indeed noticed the person sprawled on
the ground in the middle of the road about 90 to 100 meters away from the Parola
Beach, but they just evaded him. (Testimony of Rene Reyes, Tsn: pp. 2-7, Oct. 23,
1990). He added that he did not hear any sound of a gunfire on the night of
November 14, 1989 as he was then sleeping and was only awakened in order to
drive the tricycle.

Accused Rodelio Vidal, Allan Alulod and Leopoldo Balangue likewise testified in
Court and corroborated substantially the testimony of accused Rene Reyes.
(Testimony of Rodelio Vidal, Allan Alulod and Leopoldo Balangue, Tan: pp. 4-23,
October 26, 1990) Accused Alfredo Hangad likewise corroborated substantially the
testimonies of all his co-accused in the instant case. He further testified that during
the said party, he and his companions exploded firecrackers. Moreover, in the
afternoon of November 14, 1989 before going to Eugene's place at Parola Beach, he
and his classmates were made to scatter fertilizer in the fishpond by the use of their
hands. (Testimony of Alfredo Hangad, Tsn: pp. 4-14, November 7, 1990).

Dr. Manuel Bilog who conducted the autopsy on the deceased Decoroso Cajes, also
testified on his autopsy report and as to the trajectory of the bullet. (Testimony of Dr.
Manuel Bilog, Tsn: pp. 26-28 Nov. 7, 1990).

The forensic chemist of the National Bureau of Investigation Aida

Viloria-Magsipoc was the one who conducted the paraffin examination on all the
accused and witness Lloyd Mahinay. The former presented in Court copies of her
Chemistry Reports finding all the accused and prosecution witness Lloyd Mahinay
Positive for gunpowder nitrates. (Testimony of Aida Viloria Magsipoc, Tsn: pp. 2-21,
Feb. 5, 1991) 12

The trial court, believed that the prosecution's lone eyewitness, Lloyd Mahinay, had positively
identified those who attacked him and assaulted and killed Decroso Cajes. It also found that the
findings of the National Bureau of Investigation (NBI) not only sufficiently corroborated Mahinay's
identification of the accused, they also "furnished concrete evidence that all the 5 accused were
together at the time the victim was shot and killed in the evening of November 14, 1989 at Barangay
Bagong Silang, Puerto Princesa." 13 Treachery, the trial court further ruled, attended the killing
because the victim was "unarmed" and was "suddenly and unexpectedly attacked." In addition, it
found that conspiracy existed among the accused who "were animated by a joint purpose or, design,
concerted act and community of interest," and at the same time it noted that they "were boisterous
and most likely under the influence of liquor having come from a birthday party with 2 of them armed
with handguns [and] were disposed to commit trouble on that particular evening in question. . . .
[T]hey accosted for no apparent reason any person they first met on the way." 14 The generic
aggravating circumstances of abuse of superior strength and nighttime were considered against the
accused but they were credited with the alternative circumstance of intoxication which was deemed
not habitual. 15

On the other hand, the trial court rejected the accused's version of that incident because having
been positively identified, their defense of alibi fails. Moreover, they were unable to give a plausible
explanation for the presence of gunpowder nitrates on their hands. Considering the testimony of the
NBI chemist that nitrates from gunpowder are different from nitrates produced by firecrackers and
fertilizers, 16 their claim that they handled fertilizers before the party and lighted firecrackers in the
evening of the incident cannot be given any weight.

In their Notice of Appeal 17 filed on 3 September 1991, after their motion for reconsideration was
denied by the trial court in its Order of 30 August
1991, 18 the accused informed the court that they were appealing the decision to the Court of
Appeals. The records of the case were, however, forwarded to this Court in view of the penalty
imposed. We accepted the appeal in the Resolution of 3 February 1992.

In their Appellants' Brief filed on 20 November 1992, the accused contend that the trial court erred in:
(a) convicting them despite the failure of the prosecution to present the quantum of evidence
required by the Constitution to secure a conviction beyond reasonable doubt; (b) interpreting the
testimony of the NBI chemist regarding the presence of nitrates as conclusive evidence; (c) giving
credence to the lone testimony of the single prosecution witness which was self-serving, biased, and
gutted by doubt-inducing inconsistencies; and (d) interpreting the true but legally considered weak
defense of alibi as an absolute principle — even in the absence of sufficient prosecution evidence. 19

The accused maintain that the evidence of the prosecution was not sufficient to convict them. To
them, the positive identification made by the prosecution's lone eyewitness is questionable for it
followed the "almost ritualistic procedure where the prosecution witnesses are simply made to point
out the accused on the basis of a simple 'if I see him I can identify him declaration,' and which
accused are required to sit on an area was conspicuously reserved for them where they can be
easily tagged." They likened this procedure to a mock police line-up. Moreover, they characterize the
testimony of LIoyd Mahinay as self-serving and biased. His error in positively identifying in court the
person who allegedly poked a gun at him and his initial failure to recognize his co-worker, Decoroso
Cajes, even while he was able to identify the accused with certainty exemplify the doubt surrounding
Lloyd's ability to positively identify the real killer or killers.

They further contend that "while the NBI chemist was presented as an expert in her field of
expertise, she is by no means an expert of renown whose probity is beyond question." Her testimony
concerning specks and smudges of nitrates on their hands was ambiguous. They argue that if
Rodelio Vidal was indeed the gunman who shot and killed Decoroso Cajes, he should have had
more smudges on his hands than Lloyd Mahinay, which was not the case. The official reports
themselves do not make a categorical finding that the nitrates came from gunpowder but only state
that the subjects were positive of nitrates.

Finally, they stress that the weakness of the defense of alibi does not relieve the prosecution of its
burden of proving their guilt beyond reasonable doubt. Where the prosecution's evidence is weak,
the alibi of the defendant assumes importance.
The determination of the accused's guilt or innocence in this case hinges on the credibility of the
prosecution's lone eyewitness, Lloyd Mahinay.

It is a settled doctrine that when the issue of credibility of witnesses is involved, appellate courts will
generally not disturb the findings of the trial considering that the latter is in a better position to decide
the question since it had heard the witnesses and observed their deportment and manner of
testifying during trial, unless certain facto or circumstances of weight have been overlooked,
misunderstood or misapplied which, if considered, might affect the result of the case. 20

We have likewise consistently held that the testimony of a single witness, when credible and
trustworthy, is sufficient to convict. 21

Our painstaking examination of the records and evaluation of the evidence leads us to no other
conclusion than that the trial court overlooked or failed to appreciate vital facts and circumstances
which cast doubt on the identification by Lloyd Mahinay of the accused as the murderers of
Decoroso Cajes.

Firstly, Lloyd admitted that the place was not well-lit and that, although there was light coming from
the moon, he could not recognize his co-worker, Decoroso Cajes, the victim, whom he claimed was
only five meters away Thus:

Q How far was the deceased from you when he was first accosted by
the 3 other persons?

A More or less this distance. (Witness pointing to the place he is

sitting to the post which the parties estimated to be 5 meters away)

Q From 5 meters away you could not recognize the deceased who
was working with you in the same place for one year that is why you
recognized him only through his voice?)

A Yes, sir.

Q Why could you not recognize a person you have known for one
year because you have worked together in the distance of 5 meters?

ATTY. ROCAMORA:

May we make it, of record that the question has been interpreted by
the Honorable Court several time and witness has not answered the
same.

A Because with that distance without the light you cannot readily
recognize the person but if a person is near you can identify.

Q You mean to tell the Honorable Court that despite the fact that you
said the moon was very bright you cannot recognize a person you
have known for one year from 5 meters away, is that what you want
the court to believe?

A I cannot, sir. 22
There is no evidence that Decoroso Cajes moved closer than five meters from Lloyd and vice-versa.
If he could not identify his co-worker at distance of five meters except through the latter's voice, then
indeed the place was poorly lit, in which case Lloyd could not reasonably be expected to see a gun
much smaller than Decoroso, being poked and then fired at the latter. Moreover, considering that
Lloyd himself was attacked and assaulted with one person holding him and another poking a gun at
him, his attention would be focused at that time on his two attackers and on his own safety and
survival. What is more logical under the circumstances is that since, as he claimed, he heard the
sound of a gunshot and he was aware that Decoroso died from a gunshot wound, he merely inferred
that there was a gun and that it was fired at Decoroso.

Secondly, if indeed Lloyd was able to recognize the faces of the accused, it is highly unlikely that he
would make a mistake in identifying the person who reportedly pointed a gun at him and from whom
he tried to wrestle it. Yet, we note that on direct examination he tapped the shoulder of the
accused Leopoldo Balangue to confirm to the court that Balangue was the person in question, but on
cross-examination, he pointed to accused Alfredo Hangad as the person who pointed the gun at
him. Thus, on cross-examination:

Q Who among the 5 accused you identified were the ones who held
you?

A This is the one who hold me, at the other side, (pointing to the
person who gave his name as Allan Alulod) and this person is the
one who was holding the gun (witness pointing to the person who
gave his name as Alfredo Hangad when asked). 23

No attempt was made by the prosecution to reconcile Lloyd's conflicting testimony on this very vital
point. He did not say that he inadvertently, tapped Leopoldo Balangue on the shoulder during the
direct examination or that he erred in pointing at Vidal. It was the trial court which opined in its
decision that Lloyd "later corrected himself and pointed to Alfredo Hangad" 24 To us, it is not a simple
case of correction. The tapping of Leopoldo Balangue expressed a thousand words of certainty,
bordering on infallibility, that no one else except Leopoldo poked a gun at him. If subsequently, Lloyd
knowingly changed his testimony without even giving the courtesy of an explanation, his alleged
positive identification the person who poked the gun at him is placed in serious doubt, nay,
altogether discredited. The inevitable conclusion is that he was in fact unable to recognize the man
either by face by name and that his dramatic courtroom identification was contrived.

Thirdly, his testimony given in court on 9 October 1990 that he did not know the names of the
accused until that day is inconsistent with, his sworn statement taken on 26 February 1990, 25 where
he solemnly admitted that he learned their names when they were taken to the NBI. Thus:

06. — T: Nakilala mo ba kung sino-sino and mga taong nakaaway

ninyo ng mga sandaling Iyon?

S: Noong una po ay nakikilala ko lang sila sa kanilang taas at

pangangatawan ngunit ng sila ay damputin ng mga Pulis at dalhin sa
NBI ay nakilala ko sila na sina Allan Alulod, Alfredo Hangad, Rodelio
Vidal, Rene Reyes at Leopoldo Balangue.

We also wish to point out that in that same statement of Lloyd, the name Alfredo Hangad is written in
ball pen in bold letters over the typewritten name Noel Hernandez, and the name Rene Reyes is
written also in ball pen in bold letters over the typewritten name Renato Balangue. Since the sworn
statement is supposed to be that of Lloyd Mahinay, they should have been initialed by him to show
that he either made or authorized the superimpositions on those very substantive matters, viz., the
names of two of the assailants. But both superimpositions are not initialed by any person. These
unexplained superimpositions cast a heavy on the truthfulness of Lloyd Mahinay's testimony. They
even strongly suggest that it was the investigator himself who provided the names of the alleged
assailants and fed them to the mouth of Lloyd and thereafter "corrected" the two names on the
statement to conform to the paraffin test results of Alfredo Hangad and Rene Reyes.

Furthermore, it is obvious to us that Lloyd Mahinay had a motive to point to any of the accused as
the gunman. He himself was a primary suspect because he was found positive for nitrates. To him, it
became a matter of survival. His answers on cross-examination on this point are revealing:

Q And it, took you 3 months to give your statement to the police
regarding this alleged incident ?

A Yes, sir.

Q And you gave your statement to the police because you wanted to
explain why powder burns were found in your hands, is that correct,
Mr. Witness?

A Yes sir.

Q That is why in the statement you specifically explained why you got
powder burns in your hands?

A Yes sir.

Q But during the month of November you did not go to the police and
have your statement taken, Mr. Witness?

A I did not, sir.

Q During the month of December you did not go to the police and
have your statement taken?

A No, sir.

Q During the month of January you did not go to the police to have
your statement taken?

A I did not, sir.

Q It, was only in February after the report on the paraffin test showed
that you have a lot of powder burns in both hands that you went to
the police to have your statement taken?

A Yes, sir. 26

According to the findings of defense witness Aida Viloria-Magsipoc, Supervising Forensic Chemist in
the Forensic Chemistry Section of the NBI, the paraffin tests of the left and right hands of Lloyd
Mahinay showed that he was also positive for nitrates with specks located as follows:
 LEFT HAND:

1. One (1) speck, proximal third, first metacarpal;

2. One (1) speck, middle third, third metacarpal;
3. One (1) speck, proximal third, third metacarpal.

RIGHT HAND:

1 One (1) speck, middle third, distal phalange, thumb;

2. One (1) speck, distal third, proximal phalange, thumb;
3. One (1) speck, middle third, proximal phalange, thumb;
4. One (1) speck, distal third, first metacarpal;
5. One (1) speck, distal, third, second metacarpal;
6. One (1) speck, distal third, proximal phalange, index finger;
7. One (1) speck, distal third, third metacarpal.27

and that the nitrates so found are from gunpowder. 28 She further declared that based on the number
of nitrates specks and their distribution on the hands of the subjects, Lloyd Mahinay had "the greater
possibility of firing the firearm" than accused Rene Reyes, 29 Allan Alulod, 30 Leopoldo
Balangue, 31 Rodelio
Vidal 32 and Alfredo Hangad.33 As testified by Lloyd Mahinay, he grappled for the Possession of the
gun pointed at him by one of the five persons who waylaid him, and that in the process a shot was
fired therefrom toward the ground. It is not clear who pulled the trigger since there is neither an
admission nor a denial from Lloyd that he did but definitely there was such a shot fired from the gun
as admitted by Lloyd himself and confirmed by the result of the paraffin on him.

That the evidence clearly indicate that the gun Lloyd grappled for was fired is crucial to us in the
further assessment of the reliability of Lloyd's testimony. He testified that it was Rodelio Vidal who
shot Decoroso Cajes and that two shots from two different guns, one which was poked at him and
the other poked at Decoroso were actually fired. As earlier adverted to, however, prosecution
witness Ramon Pangilinan testified that, two groups of persons passed by near his store at Parola
Beach going toward the poblacion, and that not so long after he "heard a burst of a firearm." 34 From
his testimony, it is apparent that only one burst of gunfire or one shot was fired from a gun. If we are
to give credence to the testimony of Lloyd Mahinay, this shot could be the one fired from the gun
poked at him when he allegedly grappled for its possession. And since we seriously doubt that Lloyd
actually saw Vidal fire the gun at Decoroso Cajes, the only scenario that opens itself to us or which
we could reasonably reconstruct is that Lloyd himself was with that group and the other, unidentified
group in this way — someone from the latter confronted Lloyd with a gun; a rumble ensued
thereafter between the two groups; there was a mad scramble for the possession of the firearm;
Decoroso was hit by one from the other group and fell to the ground; and at that particular instance,
any of the protagonists for the possession of the firearm must have accidentally pulled the trigger
and off went one bullet which hit Decoroso; all panicked and ran away.

If there was murder in the hearts of any of the accused, assuming that they did compose the other
group, we find it hard to believe that Lloyd was not shot at but was just asked for his name when he
was the first one to be waylaid, held by one and poked with a gun by another. The trial court did
surmise or speculate on why the killing of Decoroso happened:

As the Court appreciates the evidence, the Court can only surmised [sic] that the
unfortunate incident happened by reason of youthful exuberance. The 5 accused
mostly in their late teens and another in his early twenties were students and
definitely do not belong to the bad elements in town. Their attendance in the birthday
 celebration of their co-student where food and drinks flowed freely and made some
or all of them affected by alcohol. In their youthful zest for thrill and excitement and
uninhibited by alcohol, they set out to try and prove their manly ego around as they
were with two handguns.

Conviction, however, cannot lie on mere surmises or speculation.

All told, the guilt of the accused has not been proven beyond reasonable doubt. Our minds cannot
rest easy upon a conviction of the accused on the basis of the doubtful testimony of the lone
eyewitness, Lloyd Mahinay.

WHEREFORE, the appealed decision of Branch 50 of the Regional Trial Court of Palawan in
Criminal Case No. 8816 is REVERSED and the accused-appellants ALFREDO HANGAD, ALLAN
ALULOD, RENE REYES, LEOPOLDO BALANGUE and RODELIO VIDAL are ACQUITTED with
costs de oficio.

SO ORDERED.

Cruz, Bellosillo and Quiason, JJ., concur.

Griño-Aquino, J., is on leave.

# Footnotes

1 Original Records (OR), 167-175; Rollo, 16-24. Per Judge Angel R. Miclat.

2 OR, 1.

3 OR, 2-3.

4 Id., 15-20-a.

5 Id., 25.

6 TSN, 9 October 1990, 6-8; 11-21.

7 Exhibit "A"; OR, 46.

8 TSN, 9 October 1990, 9-10.

9 Id., 14.

10 TSN, 15 October 1990, 5-6.

11 Id., 10.

12 OR, 168-169; Rollo, 17-18.

13 Id., 172; Id., 21.

14 OR, 170-171; Rollo, 20-21.

15 Id., 175; Id., 24.

16 Id., 173; id., 22.

17 OR, 225.

18 Id., 223.

19 Rollo, 65.

20 See People vs. Pascual, 208 SCRA 393 [1992]; People vs. Simon, 209 SCRA
148 [1992]; People vs. Florida 214 SCRA 227 [1992]; People vs. Matrimonio, 215
SCRA 613 [1992].

21 See People vs. Lee, 204 SCRA 900 [1991]; People vs. Dela Cruz, 207 SCRA 632
[1992]; People vs. Francisco, 213 SCRA 746 [1992].

22 TSN, 9 October 1990, 31-32.

23 TSN, 9 October 1990, 44-45.

24 OR, 168.

25 Marked as Exhibit "C" and also as Exhibit "2". This document is typewritten and
was subscribed and sworn to on 26 February 1990 before Assistant City Prosecutor
Nelia Yap-Fernandez of Puerto Princesa City; OR, 2.

26 TSN, 9 October 1990, 28-29.

27 Exhibit "3"-Hangad; Exhibit "6"-all accused; OR, 15.

28 TSN, 5 February 1991, 9-10.

29 Id., 15-16.

30 Id., 17-18.

31 Id., 19-20.

32 Id., 21.

33 Id., 24.

34 TSN, 15 October 1990, 3-4.

 4. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18733 July 31, 1962

FELIPE B. PAREJA, petitioner,

vs.
THE HON. AMADOR E. GOMEZ, Judge of the Court of First Instance of Cebu and the PEOPLE
OF THE PHILIPPINES, respondents.

Jose L. Africa, Manuel Zosa, Amadeo D. Seno, V. del Rosario, M. M. Florido and A. B. Pareja for
petitioner.
Office of the Solicitor General for respondents.

CONCEPCION, J.:

This is an original action for certiorari to annul certain orders of the Court of First Instance of Cebu
and secure an order for the release of petitioner Felipe B. Pareja.

The essential facts are not disputed. Petitioner Pareja is accused in the Court of First Instance of
Cebu, together with Cesario Orongan, Avelino Monzolin and Gaspar Mesa, of the crime of murder.
In the information, dated July 24, 1961, it is alleged:

That on or about the 3rd day of July, 1961, at about 6:30 in the evening, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the accused, conspiring,
confederating with and mutually helping one another, with intent to kill one Attorney
ANTONIO ABAD TORMIS, did then and there wilfully, feloniously and criminally shot Antonio
Abad Tormis suddenly and unexpectedly three times with a .32 Caliber revolver thus causing
the following injuries:

1. Wound, gunshot, penetrating skin, subcutaneous tissue, pe toralis major and minor
muscles, external and internal intercostal muscles of the 3rd right intercostal space, at an
area 5 cms. from the right border of the anterior median line, upper lobe of the right lung,
pericardium, proximal portion of the ascending aorta, left ventricle of the heart, to the 5th left
rib with comminuted fracture, to the muscles of the left side of the chest and up to the
subcutaneous tissue. There was no point of exit. Diameter of the wound of the muscle of the
left ventricle was 1.2 cms.

2. Wound, gunshot, penetrating skin, subcutaneous tissue, muscles of the middle third, right
arm, with comminuted fracture of the right humerus.

3. Wound, gunshot, penetrating skin, muscle of the posterior aspect of the chest, with
comminuted fracture of the 7th rib, middle lobe of the right lung, thoracic aorta, diaphragm,
stomach, lower lobe of the left lung, internal and external intercostal muscle of the left 8th
intercostal space, muscles and subcutaneous tissue. There was no point of exit; as a result
of which injuries, Antonio Abad Tormis died almost instantaneously; with the attendant
qualifying circumstance of treachery, and the aggravating circumstances of: (1) evident
premeditation; (2) nocturnity; (3) taking advantage of superior strength of employing means
 to weaken the defense; (4) with the aid of armed men or persons who insure or afford
impunity; and (5) in consideration of a prize, reward, or promise.

Contrary to Art. 248 par. 1 in relation to Art. 14 pars. 6, 8, 11, 13, and 15 of the Revised
Penal Code.

Cebu City, Philippines, July 24, 1961.

NO BAIL BOND RECOMMENDED.

(Sgd.) JESUS B. ABELEDA

Acting City Fiscal

Upon his arrest and detention, counsel for Pareja moved that he be provisionally released on bail.
The prosecution objected thereto, alleging that petitioner is charged with a capital offense and that
the evidence of his guilt is strong. Thereupon, it introduced evidence establishing the following facts:

Tormis died in Cebu City on July 3, 1961, in consequence of three (3) gunshot wounds then inflicted
upon him. The three (3) slugs found in his body were fired from a colt revolver, marked Exhibit B,
which was found in one of the safes of petitioner as City Treasurer of Cebu City, where his office as
such was searched by peace officers on July 11-12, 1961, upon the authority of a search warrant
duly secured therefor, on the basis of information furnished by Gaspar Mesa, Cesario Orongan and
Avelino Monzolin, to the effect that Orongan had killed Tormis upon the request of Monzolin acting
on behalf of Pareja, who supplied said Exhibit B.

Respondent Judge held that, unimpeached, these facts would warrant a conviction, in view of which
the application for bail was denied. A motion for reconsideration of the order to this effect, likewise,
failed. Hence, the present action for certiorari.

Petitioner maintains that in not permitting him to be released on bail, respondent Judge had acted
with grave abuse of discretion mainly upon the following grounds, namely: (a) that the evidence
against him (excluding the admissions allegedly made by Mesa, Orongan and Monzolin, which —
insofar as the incident under consideration is concerned — were disregarded by respondent Judge)
is purely circumstantial and does not satisfy the requirements of section 98 of Rule 123 of the Rules
of Court; (b) that petitioner could not, in all probability, be sentenced to the extreme penalty, for he
had voluntarily surrendered himself to the authorities, and even the self-confessed triggerman had
been sentenced to life imprisonment; and (c) that petitioner's conduct, social standing and other
personal circumstances indicate non-probability of flight.

Despite the well-written petition and memorandum filed by counsel for the petitioner, whose
actuations in the lower court merited the well-earned commendation of no less than respondent
Judge, we cannot see our way clear to granting the writ prayed for. Although relevant to the issue
whether the evidence on record is strong or not, the aforementioned provision of the Rules of Court,
reading:

SEC. 98. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient

for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and
 (c) The combination of all the circumstances is such as to produce a conviction beyond a
reasonable doubt.

is not decisive in the case at bar. This section governs the quantum of evidence essential for
"conviction", for which guilt must be established "beyond reasonable doubt", whereas to forfeit the
constitutional right to bail in capital offenses, it is enough that the evidence of guilt be "strong".

Besides, the alleged voluntary surrender on the part of petitioner is not necessarily, not even,
generally, sufficient to offset the five (5) aggravating circumstances alleged in the information. The
penalty meted out to Cesario Orongan is understandable, in view of the fact that two (2) mitigating
circumstances, one of which was his plea of guilty, were considered in his favor. It is lot claimed that
petitioner has entered or will enter such plea.

Moreover, the scant data on record permits the Court to do no more than speculate on the
probability or non-probability of flight on the part of petitioner herein.

Again, the case of Montano vs. Ocampo, G.R. No. L-6352 (January 29, 1953) relied upon by
petitioner herein is not in point. To begin with, the evidence available in said case is not comparable
to that introduced by the prosecution in the case at bar. Secondly, there were in the Montano case
strong indications that certain proceedings therein took place under circumstances amounting to a
denial of due process, and even suggesting bias or prejudice against the accused, if not persecution
for political reasons. Upon the other hand, in the present case, the record abundantly shows the
fairness and impartiality of respondent Judge, aside from the ample opportunity by him given to both
parties for the proper elucidation of the issue raised by petitioner.

In any event, the facts and circumstances obtaining in this case are such that reasonable men may
honestly disagree on the question whether petitioner should be released or not on bail. As a
consequence, it cannot be said that respondent Judge had abused his discretion, much less gravely,
in issuing the orders complained of.

WHEREFORE, the writ prayed for is denied and the petition herein dismissed, with costs against
petitioner. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
Reyes, J.B.L., J., took no part.