TABLE OF CONTENTS

People vs. Barangan, G.r. no. 175480 People vs. Frondozo, G.r. no. 177164 People vs. De Leon, G.r no. 180762 People vs. Cervantes, G.r. no. 181494 People vs. Erguiza, G.r. no. 171348 Ubales vs. People, G.r. no. 175692 Nasi-Villar vs. People, G.r. no. 176169 People vs. Gumimba, G.r. no. 174056 People vs. Enoja, G.r. no. 102596 People vs. Mingming, G.r. no. 174195 People vs. Esqueda, G.r. no. 170222 People vs. Castro, G.r. no. 172874 People vs. Regalario, G.r. no. 174483 People vs. Lopez, G.r. no. 177302 People vs. De Leon, G.r. no. 179943 People vs. Sameniano, G.r. no. 183703 People vs. Tibo-Tan, G.r. no. 178301 People vs. Bohol, G.r. no. 178198 People vs. Dela Cruz, G.r. no. 168173 2 28 39 50 54 76 95 101 125 136 157 201 210 230 244 263 274 311 321

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CRIMINAL LAW 1
CRIMINAL LAW IN GENERAL Articles 1-2 FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY ARTICLES 3-5

CORPUS DELICTI
1. People vs. Barangan, G.r. no. 175480, October 2, 2007

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 175480 October 2, 2007

PEOPLE OF THE PHILIPPINES, petitioner-appellee, vs. CONRADO BARANGAN y GENERALAO, accused-appellant. DECISION CHICO-NAZARIO, J.: For review is the Decision1 of the Court of Appeals promulgated on 30 June 2006, in CA-G.R. CR. HC. No. 00198-MIN entitled, "People of the Philippines v. Conrado Generalao Barangan," affirming in toto, the Judgment2 dated 25 March 2002, of the Regional Trial Court (RTC), Branch 32, Surigao City, in Criminal Case No. 782. Accused-appellant Conrado Barangan3 y Generalao prays for the reversal of the appellate courts decision, affirming in toto the judgment of the trial court, finding
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him "guilty beyond reasonable doubt as a principal of the crime of rape under Article 266-A, paragraph (1), (a), of the Revised Penal Code, with the aggravating circumstance of dwelling,"4 and sentencing him to suffer the penalty of reclusion perpetua coupled with the accessory penalties and to indemnify the victim in "the sum of P50,000.00 and to pay P50,000.00 as moral damages,"5 plus the cost of suit. A thorough review of the records of the case at bar discloses the following: On 18 January 1999, accused-appellant was charged with the crime of rape before the RTC, Branch 32, Surigao City, for allegedly raping AAA,6 in an Information7 dated 11 December 1998. The accusatory portion thereof states: That on or about October 20, 1998 at 11:00 oclock in the evening, more or less in P1, Brgy. XXX, YYY, ZZZ, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with full freedom and intelligence, deliberate intent and with lewd design and with force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one AAA, a 15 year-old girl against her will much less her consent, thus causing damage and prejudice to the aforesaid AAA in such amount as may be proved during the trial. CONTRARY to Article 335 of the Revised Penal Code as amended by Republic Act 7659 and further amended by Republic Act 8353 with the aggravating circumstance of dwelling, the crime being committed inside the dwelling of the offended party. The case was docketed as Criminal Case No. 782. Upon arraignment, accused-appellant, duly assisted by counsel, pleaded "Not Guilty" to the crime charged. Thus, trial ensued, with the prosecution presenting four witnesses, namely: Dr. Benjamin Cabrera (Dr. Cabrera),8 Medical Officer, Rural Health Unit and Family Planning Center, WWW, ZZZ; Cesar Villacencio, the Punong Barangay of Baranggay XXX;9 Paciencia Salumayag, neighbor of the victim;10 AAA, the victim and the private complainant;11 and EEE, older sister of AAA, to establish accused-appellants culpability beyond reasonable doubt of the crime charged. On the other hand, to rebut the foregoing evidence, the defense offered the testimonies of accused-appellant;12 BBB, the younger sister of AAA;13 and Joseph Barangan, the son of accused-appellant.14 The Peoples version of the incident that precipitated this case, as established by the above-named prosecution witnesses, put forward the following antecedents: As testified to on the witness stand, AAA recounted her harrowing experience in the hands of accused-appellant:
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Prosecutor Servillas (conducted the direct examination): Q: Do you know Conrado Generalao Balagan [Barangan]? A: Yes, sir. Q: Do you know him? A: He is our neighbor. Q: How long he has been your neighbor? A: Five years. Q: How far is his house to your house? A: 40 meters more or less x x x. xxxx Q: Now, if this accused Conrado Generalao will be shown to you, can you identify him? A: Yes, sir. Q: Will you please look around? A: (Witness pointing to a person who upon being asked answered that his name is Conrado Generalao.) Q: By the way, how old are you last October 20, 1998? A: 15 years old. Q: Do you have proof that you are fifteen years old? A: Yes, sir. Q: What is your birth date? A: March 9, 1963. xxxx
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Prosecutor Servillas: Q: Do you recall where were you last October 20, 1998 at 11:00 oclock in the evening? A: I was in our house in barangay XXX, YYY, ZZZ. Q: Were you alone on that date? A: I was with my younger sister. Q: What about your mother where was she on that date? A: She died already. Q: What about your father? A: He is now in Bukidnon. Q: Now, who is the name of your sister with you on that date? A: BBB, ten years old. Q: On last October 20, how old was she? A: 9 years old. Q: Now, on that said date October 20, 1998 date and time what were you doing in your house? A: I was sleeping. Q: What about your sister? A: She was also sleeping. Q: Now, what happened while youif you recall while she was sleeping on said date and time? A: At first he entered our house. Q: Whom do you refer he?

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A: Conrado Barangan. xxxx Q: Now, this accused Conrado when he entered what did he do? A: He kept on touching my private organ. Q: What were you doing while he was touching your private parts? A: I woke up and then he immediately covered my mouth with his hand. Q: Now, what was his attire if any? A: He was only wearing a brief. Q: When he entered [your] house and started to touch your private parts what was your position in relation to you? A: He was kneeling (witness pointing his left hand to an imaginary object as if holding something). xxxx Q: Then after he covered your mouth what did you do next? A: While covering my mouth his other hand is holding my neck. Q: What happened next he held your neck and covered your mouth? A: Then he told me to keep quiet [or] I will kill you together with your sister. Q: What did you do when he told you that thing? A: I dont (sic) do anything. Q: Since you dont do anything? A: I could not do anything. Q: What did you next?

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A: Then he removed my panty, he kept on kissing my face and sucked my nipple. Q: What did he do next? A: Then he placed himself between my two legs. Q: After he placed his legs, himself to your two legs what did he do next? A: He removed his brief and he placed his. he inserted his penis to my private part. Q: Can you demonstrate to this court what was his position and how he placed to your private part? A: He was lying down. Q: Then when he inserted to your private part what did he do what was he doing? A: He make (sic) a push and pull motion against my private part. Q: Then what did you do when he made a push and pull motion to your private part? A: I observed that his semen ejaculated inside my private part. Q: Now, when he was making a push and pull to your vagina what did you do? A: Nothing. Q: Why did you not do anything? A: I could not shout I could not move because he placed himself between my two legs. Q: Now, what did you feel whether push and pull between your vagina? A: I felt pain. I felt pain and I was very ashamed of myself. Q: Because of the shame and pain when he pushed and pull to your vagina what did you feel?
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A: Very painful because he inserted his penis to my vagina to my private part. Q: How long he has been doing a push and pull? A: Quite a while. I could not determine how long its quite a while. Q: What about your sister? A: There was a typhoon and my sister was aslept (sic). Q: You said it was the accused who assaulted you how do (sic) you recognize it was a nighttime? A: He is a neighbor and I knew him very well. And I always see his face because I am familiar with him for quiet a long time. Q: After you feel the fluid (sic) the pain, what happened next? A: That is the time he went outside. But before he went outside I heard my sister, said, "ate." And he said, dont shout. Q: When she said, "ate", was she awakened or what? A: No, she was not awakened. She was half asleep. Q: Then after your sister said, ate, to you, what did your sister do to you? Court: What did Conrado do to you? A: He went down. Q: Where did he pass? A: At the door. Prosecutor Servillas: Q: What did you do when he went outside? A: I was not able to stood up (sic) and I could not stand up I feel the pain of my vagina. Q: Then what when you felt that your vagina was painful what did you do?
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A: After that I stood up and closed the door of the house. Q: What time was that when you closed the door of your house? A: It was about 12:00 oclock already. Q: What did you do when you closed the door? A: I returned to my bed, go back to my bed. Q: When did you wake up to your bed? A: About 6:30 oclock.15 Pacencia Salumayag, the neighbor of AAA, narrated what occurred on the morning of the next day. She stated that on the morning of 21 October 1998, at 7 oclo ck, AAA went to her house; that she observed AAA to be afraid of something; that upon further prodding, AAA asked her to accompany the former to the house of Vivian Silvano to ask him to go along with them to see the Punong Barangay; and that after entrusting AAA to the Punong Barangay, she went home. During cross-examination, the defense counsel elicited from the witness the statement that though she and accused-appellant were also neighbors, she actually did not like him; that when AAA went to see her, the former was crying. When asked on redirect examination if AAA had identified the person who allegedly committed the rape, the witness answered in the affirmative and proceeded to name accused-appellant as the perpetrator of the crime. Cesar Villacencio, the Punong Barangay of Barangay XXX, Municipality of YYY, Province of ZZZ, testified that, on 21 October 1998, around 7:30 in the morning, AAA, accompanied by Pacencia Salumayag and Vivian Silvano, reported to him the alleged rape that occurred the previous evening. In particular, he narrated that AAA identified her rapist to be Conrado Baranggan y Generalao, a resident of the same barangay; that he later summoned accused Baranggan to the Barangay Hall in order to fully investigate the alleged crime; and that he later turned over the suspect to the police due to the seriousness of the matter. On cross-examination, said witness further testified the behavior and appearance of AAA that she was crying and appeared to be weak. To further make out a case for the crime of rape, the prosecution presented Dr. Cabrera, Municipal Health Officer and Rural Health Physician, Rural Health Unit and Family Planning Center, WWW, ZZZ. Dr. Cabrera gave evidence as to the injuries sustained by AAA as a result of her alleged rape on the night of 20 October 1998. He testified that on 21 October 1998, around 6 oclock in the evening, the police brought
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AAA to his clinic to be examined by him; that he performed a medical examination on the person of AAA and thereafter, issued a Medical Certificate to attest to his findings. According to his testimony, his physical examination of AAA yielded the following findings: though the labia majora showed no physical signs of injury, there was a whitish mucoid discharge at its opening; on the inside of AAAs vagina, however, there was evidence of recent penetration by a hard and blunt object -- the hymen displayed a laceration or tearing at the 3 oclock position, as well as abrasions with blood clot at the 6 oclock position; and that the whitish mucoid discharge was seminal fluid. Dr. Cabrera then concluded that the injuries sustained by AAAs private part were the result of "sexual completion or sexual penetration."16 On crossexamination, Dr. Cabrera testified that he found no sign of physical injury on any other part of AAAs body. EEE, the older sister of AAA, was presented last to establish merely the date of birth and age of the latter. When the time came for the defense to controvert the evidence of the prosecution, a different version was laid out. Diametrically opposed to the version of the prosecution, accused-appellant did not deny that he had sexual intercourse with AAA. He claimed, however, that his sexual relations with the victim was consensual, they being sweethearts. He related that what occurred on the night of 20 October 1998 was a planned assignation between them. Particularly, he stated that A: I was taking a bath at the spring. Q: Where is that spring located? A: Very near to our house. Q: How far is that spring to the house of the private complainant AAA? A: About more or less 100 meters. Q: We may know also how far from your house to the house of AAA? A: The same distance, about 300 meters. Q: Are you referring to the distance between the house of AAA to your house? A: About the same distance.

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Q: We may know who was your companion in the spring in the morning of October 20, 1998? A: We happened to meet each other and she was washing clothes. Q: Aside from the two of you, there were other persons present? A: She was with her younger sister. Court: (to the witness) Q: Who was there in the spring? A: They were three of us, your honor. Q: Who were the three of you? A: BBB, AAA and me, your honor. Atty. Moleta: We may know if you have conversation with the private complainant in this case? A: We had a (sic) jokes. Q: And we may know what did you tell to AAA? A: I courted her. Q: How did you court AAA? A: I told her, since your manang is already dead, maybe I will ask you to be my wife. Q: And we may know what was her answer? A: She said she is very young. She even said, "since you are older and I am very young I think there is no age limit in terms of love." And so at that time I requested her that during night time I be allowed to visit her.

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Q: What was her response to your request? A: She said its up to you. Q: And we may know what was your last words with the private complainant in the morning of October 20, 1998? A: After taking a bath, I told her I will visit her and she said its up to you. Q: After that what happened? A: At 2:00 oclock in the afternoon, I went to the municipal building to secure the voters affidavit of my wife. I was entertained by the stories of my friends there, we talked about the problems regarding the death of my wife. Q: In the morning of October 20, 1998 while the two of you were conversing, we may know if you had agreed with her regarding the time of your visit to her house? A: I promised at nighttime. Q: Aside from the time we may know if there are other mattes that you agreed with the private complainant? A: That I will visit her at nighttime. She said just knock at the door if she is asleep. When I knocked the door, nobody opened it, so I just moved the door. Q: Mr. Baranggan, we may know where were you in the afternoon of October 20, 1998? A: In the municipal building. Q: Where did you proceed after going to the municipal building? A: Then I happened to talk with barangay captain Bebot Ecleo in his house. Court: Q: To whom did you talk? A: The friends of Bebot Ecleo, your honor. Atty. Moleta:
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Q: We may know at what time did you go home? A: From the house of Bebot Ecleo, I went home at 9:00 oclock in the evening. Q: And where did you proceed to your house? A: Towards my house and since I was able to remember our agreement so I went to her house. Q: What agreement are you referring to that you remember? A: To visit her. Q: To whom? A: AAA. Q: And we may know what happened? A: When I arrived at their house, I knocked at the door but nobody opened it. So I tried to move aside the door of the house and it was not locked, and then I saw her lying. Q: Mr. Baranggan, you said that the door of the house of AAA was not locked, do you know the reason why the same was not locked? Prosecutor Villaces: It calls for opinion, you honor. Court: It calls for opinion. Atty. Moleta: Your honor please, the accused in this case has personal knowledge why the same was not locked, your honor. Court: The witness testified that he was supposed to knock the door, there was no such agreement, there is no basis.
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Atty. Moleta: We believe, your honor, that this witness may have personal knowledge as to why the door was not locked. Court: There is no testimony to that effect previously. As matter of fact he said that when nobody opened the door, he just pushed it. Atty. Moleta: We will reform the question. Q: Mr. Baranggan, do you have any personal knowledge why the door of the house of the private complainant is not locked when you have gone to the house of the private complainant in the evening of October 20, 1998? Pros. Villaces: Already submitted, your honor. Court: Sustained. Atty. Moleta: Q: Can you estimate the consumed time when you knocked the door of the private complainant in the evening of October 20, 1998? A: At about 9:30 oclock more or less. Q: And when you opened the door, we may know who was the persons present inside? A: Only the two of them. Q: We may know who were these persons? A: AAA and BBB. Q: What were they doing when you entered the house?
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A: They were asleep. Q: We may know how did they position while they were sleeping? A: There were sleeping with their arms across their chest. Q: Were they sleeping together or lying together? A: They were lying together side by side. Q: We may know how far were they from each other? A: Very near, sir, about one foot distance. Q: Were they using a mat? A: Yes, sir, singular size. Q: How big is this single size mat? A: More than a meter wide and the distance from each other is less than a meter. Q: When you opened the door of the house of the private complainant, we may know what happened next? A: I touched her leg in order to awaken her? Q: We may know if she got awake? A: She stood up. Court: (to the witness) Q: Who stood up? A: AAA, your honor. Atty. Moleta: Q: We may know what did she say when she stood up?
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A: She said, "you are here?" Q: What was your answer? A: I said, "I have not forgotten our agreement thats why Im here." Q: We may know what happened next? A: I asked her "what about my request?" Q: We may know what was her response? A: She said "you really abided with our agreement." Q: And we may know what happened next? A: I placed my arms around her shoulder. Q: We may know what was her position when you placed your arm around in her shoulder? A: We were facing each other seated and placed my arm around her shoulder. Q: And we may know what happened next? A: So I kissed her because at that time I was already craving for sex. Q: Before you kissed the private complainant in this case, we may know if you have a conversation with her? A: A little conversation. Q: What was you conversation about? A: Regarding the life of the widower and I told her that I wanted a companion. Q: After you kissed the private complainant in this case, we may know what happened next? A: After kissing her on her face including her neck, I placed a kissed mark on her neck, and she said, "dont do it in my neck because it is noticeable."

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Q: When you kissed the private complainant in this case, we may know what was her reaction? A: She had no reaction. She just let me kissed her and she even stretched her neck. Q: After that what happened next? A: Since she does not want that a kissed mark be placed on her neck then I asked her, "where will I place the kissed mark." Q: And what was her answer? A: She said "in the hidden part." Q: And then we may know what happened next? A: And so I placed the kissed mark on her left breast. She even opened her blouse so I placed a kissed mark. Q: After kissing the private complainant in this case and after she opened her blouse, we may know where was her sister at that time? A: She was there sleeping. Q: How come that while you were kissing with the private complainant in this case, her sister BBB was not able to awaken? Pros. Villaces: It calls for opinion, your honor. Court: Sustained. Atty. Moleta: Q: Mr. Baranggan, you are aware of the presence of BBB, the sister of the private complainant, when you kissed the private complainant? Pros. Villaces:
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Leading, your honor. Atty. Moleta: Q: How did you kiss the private complainant that was not awakened the sister, BBB? Pros. Villaces: We object, your honor. Court: The witness may answer. A: Very silent. Atty. Moleta: Q: And after the private complainant in this case opened her blouse, we may know what happened next? A: When she opened her blouse, I embraced her and then I romanced with her on her breast and on her body/ Q: Then after that what happened? A: Then we laid down side by side. I requested her that I be allowed to perform the private act. Q: And what was her response to your request, if there was any? A: And she said, "you want to use me when I still have my underwear." Q: Whose underwear the private complainant are you referring to? A: Her underwear. Q: So, what did you do? A: After removing her underwear, I romanced with her, I kissed her private parts.

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Q: We may know who took her panty? A: She was the one who removed her underwear. Q: What have you observed with her companion BBB? A: She was not yet awakened at that time. Q: After that we may know what happened? A: After romancing her breast and her private parts, she held my head and then I kissed again her face. Q: After that what happened? A: After that we had sexual intercourse. Q: While you were already having sexual act with the private complainant, we may know what have you observed from her? A: Since I am a man, I asked her "why are you not a virgin anymore as if you have already delivered a child." That was really I asked her. Court: (to the witness) Q: What did she answer? A: She said "you have nothing to do with that." Atty. Moleta: Q: We may know what have you observed from her bodily reaction when you had a sexual intercourse with her? A: That she was not a virgin. After a while she wrapped her legs around my waist and that was the time that BBB was able to wake up. Q: Can you point to BBB if she is present in this courtroom? A: BBB is not here.

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Q: Was there a noise created when the private complainant I will reform the question, you honor. Why did you say that BBB was able to wake up? A: She was already woke up because she asked "Ate, who is your companion?" Q: When BBB said ate to whom was she referring to? A: Ate AAA. Q: We may know what was the answer or reaction of AAA? A: She said "keep quiet just go to sleep." She even covered her face with a blanket.17 BBB was presented as a hostile witness considering that she is the younger sister of AAA. During her testimony, BBB stated that on the date and time of the incident in question, she was inside their home a one-room nipa structure and was asleep on top of a mat on the floor; that she slept beside her "ate"; that they each had their own blanket; that during the night of the date in question, she woke up, as she had the urge to urinate, and she called out to her "ate" but the latter told her to keep quiet; that she fell asleep again without going to the bathroom; and that the following morning, her "ate" told her that during the night, the former was raped by accused-appellant. Joseph Baranggan, son of accused-appellant, was the third and last witness presented by the defense. During his direct examination, the witness testified that he knew the sisters AAA and BBB, for they were his neighbors; considering the proximity of their houses, the witness knew for a fact that the sisters were used to going out and returning well into the night; and that AAA was fond of male company and was actually the talk of the town. After trial, on 25 March 2002, the RTC promulgated its Judgment, the dispositive portion of which states: Wherefore, premises considered, the Court finds the accused, Conrado Generalao Baranggan, guilty beyond reasonable doubt as a principal of the crime of rape under Article 266-A, paragraph (1), (a), of the Revised Penal Code, with the aggravating circumstance of dwelling, and hereby sentences him to reclusion perpetua and its accessory penalties; and to pay the costs. The accused is ordered to pay to the victim, AAA, the sum of P50,000.00 as civil indemnity and the further sum of P50,000.00 as moral damages.18

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In adjudging accused-appellant guilty of the crime charged, the RTC gave credence to the evidence of the prosecution and declared that: Since it was admitted that the accused engaged in sexual intercourse with the complainant, the burden lay upon him to prove by clear and convincing proof that it was with her consent. This (sic) the accused failed to do to the satisfaction of the court. xxxx [E]ven assuming arguendo that the complainant had lovers and was no longer a virgin, this gave no license to the accused to force himself on a defenseless girl. The victim who was only fifteen years old was not shown to possess the shrewdness and callousness to concoct a story of rape. AAA appeared to be a simple country girl who would not endure physical examination and public trial if her story were untrue. She had absolutely no motive to testify falsely against the accused. Her testimony is entitled to full faith and credence (citation omitted).19 And in the end concluded that: It was satisfactorily established that the accused had carnal knowledge of his victim by means of force and intimidation and without the latters consent.20 On 2 May 2002, accused-appellant seasonably filed a Notice of Appeal21 before the RTC. Conformably with People v. Mateo,22 however, in a Resolution dated 20 September 2004,23 we directed the transfer of this case to the Court of Appeals for intermediate review. Affirming in toto the judgment of the RTC, the Court of Appeals confirmed accusedappellants conviction in a Decision dated 30 June 2006, in CA-G.R. CR. HC. No. 00198-MIN. The fallo of the Court of Appeals decision reads: WHEREFORE, all the foregoing considered, the appeal is hereby DISMISSED for lack of merit and the assailed Decision is hereby AFFIRMED in toto.24 The present case is again before us for our final disposition. Accused-appellant is still seeking the reversal of the decision of the RTC, as affirmed by the Court of Appeals, finding him guilty beyond reasonable doubt of the crime of rape on the lone assignment of error stating:

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THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE.25 Essentially, it is his contention that the evidence presented by the prosecution was not sufficient to establish the existence of the crime of rape. In his Brief, he avers that AAAs accusation of rape, vis--vis her lack of physical injuries and her reputation, do not establish occurrence of the crime of rape. Accused-appellant maintains the defense that the sexual intercourse that occurred on the date and time in question was a tryst between sweethearts. It is then his conclusion that the absence of external evidence of physical injuries on AAAs person, the latters loose morals or naughty reputation, in addition to the fact that they had a thing going between them, all point to reasonable doubt respecting his legal culpability of the crime charged. And there being reasonable doubt, his constitutionally guaranteed right to be presumed innocent was not overcome. On the other hand, the Office of the Solicitor General (OSG), for the People of the Philippines, asserts that accused-appellants claim of the "sweetheart defense" is tenuous at best. Having failed to present corroborating evidence to support such assertion, the claim was self-serving and merely an afterthought or a "desperate attempt to extricate himself from the bind brought about by his unmitigated lust towards an innocent and practically orphaned child."26 Respecting the claim of lack of external signs of physical injuries, the OSG avers that "[w]hether the victim suffered external injuries other than the violation done to her private parts is immaterial where the medical report proves that she sustained the injury which under the law qualifies as rape."27 Moreover, it argues that even though BBB was also in the room when the rape occurred, AAA could not call out to her for help, because accused-appellant threatened to kill both AAA and BBB if she (AAA) brought attention to what was going on. We find no merit in the petition. Article 266-A of the Revised Penal Code, defines and punishes the crime of rape, viz: Art. 266-A. Rape; When and How Committed. Rape is committed: 1) By a man who have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or otherwise unconscious;
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c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. The crime of rape is penalized by a sentence of reclusion perpetua under the terms of Article 266-B of the same law: Art. 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. In the case at bar, having weighed the evidence for the contending parties, we find no cogent reason to reverse the findings and conclusion of the RTC, as affirmed by the Court of Appeals. From a painstaking and meticulous review of the records, we find, and so hold, that the crime of rape was committed on the person of AAA, and that accused-appellant was the perpetrator of the crime that he had been charged with and convicted of. From the quoted provisions of Articles 266-A and 266-B of the Revised Penal Code, for conviction in the crime of rape, the following elements must be proved beyond reasonable doubt: 1) that the accused had carnal knowledge of the victim; and 2) that said act was accomplished (a) through the use of force or intimidation, or (b) when the victim is deprived of reason or otherwise unconscious, or (c) when the victim is twelve years of age or is demented. Basic is the principle in criminal law that the evidence presented must be sufficient to prove the corpus delicti the body or substance of the crime; and, in its primary sense, refers to the fact that a crime has been actually committed.28The corpus delicti is a compound fact composed of two things: 1) the existence of a certain act or result forming the basis of the criminal charge; and 2) the existence of a criminal agency as the cause of this act or result.29 In all criminal prosecutions, the burden is on the prosecution to prove the body or substance of the crime. In the case at bar, accused-appellant himself does not deny that he had sexual intercourse with AAA. His contention, however, is that his carnal knowledge of the victim on the date and time in question did not amount to the crime of rape because such coitus was consensual. The foregoing being an affirmative defense, accused-appellant now has the burden of proving the claim of consent to the sexual act. The evidence presented by the prosecution the testimony of AAA that accusedappellant raped her, coupled with the testimony of Dr. Cabrera narrating that the medical examination he conducted on AAA and the result of such examination
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attesting to her injuries were consistent with the penetration of the vagina by a hard object added to the admission by accused-appellant that he had sexual intercourse with AAA, fully buttresses the existence of the crime of rape. The burden of proof having shifted to accused-appellant, was he able to prove the non-existence of the two components of the corpus delicti? In his defense, accused-appellant advances the so-called "sweetheart theory." He admits the sexual encounter, but avers that it was consensual because of his alleged relationship with the victim. He bolsters his claim of consent by pointing to AAAs lack of external physical injuries along with her loose morals or naughty reputation. The "sweetheart theory" or "sweetheart defense" is an oft abused justification that rashly derides the intelligence of this Court and sorely tests our patience. 30 By asserting the existence of such a relationship, accused-appellant seeks to prove that AAA willingly participated in the sexual act. But she did not. Accused-appellant is but a neighbor. From the testimony of AAA, he was nothing more than an acquaintance. Therefore, contrary to his claim that such familiarity explains the mutual attraction that was spawned in a days time, this Courts estimation is that if at all there was attraction, it was merely one-sided from his end. Absent any other tangible and concrete evidence of a relationship beyond acquaintanceship or neighborly relations, we cannot give credence to accused-appellants self-serving claim of intimate association between him and AAA that would validate the sexual intercourse that occurred on the date and time in question. And even if it were true that they were sweethearts, a love affair does not justify rape, for the beloved cannot be sexually violated against her will.31 A man does not have an unbridled license to subject his beloved to his carnal desires.32 In his Brief, accused-appellant wants us to open our minds to the possibility of a oneday courtship that led to an irrepressible attraction and culminated in a late night tryst. Other than surmise and conjecture, nothing substantial or corporeal has been put forward by him. Lest it be forgotten, surmises and conjectures have no place in a judicial inquiry and are especially anathema in a criminal prosecution.33 In a criminal prosecution, a reasonable doubt can be created by many things; but to be sufficient to prevent conviction, it must arise from the evidence adduced or from the lack of evidence, and can arise from no other legitimate source.34 Absolute certainty is not demanded by law to convict an accused of any criminal charge; but quite surely, mere possibility is not the type of evidence that will amount to a speck of reasonable doubt that will engender an acquittal. In the instant case, accused-appellants assertion that due to the long standing familiarity between him and AAA, the one-day courtship during their chance encounter at the spring was possible. But that was just it only a possibility.
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Anent accused-appellants argument concerning the absence of external physical injuries on the person of AAA, suffice it to say that the absence of physical injuries on AAAs body does not, of itself, negate the latters testimony of rape, nor does it make her a willing partner in the sexual act in the case at bar. This Court is satisfied that the evidence elicited from Dr. Cabrera apropos the laceration and abrasion sustained by AAA on her hymen is consistent with a very recent sexual intercourse. The force used in the commission of rape need not be overpowering or absolutely irresistible.35 What is essential is simply that the force employed was sufficient to enable the offender to consummate the lewd purpose which the offender had in mind. In this case, there is no question that accused-appellant succeeded in his brutish objective. The threat made on the life of AAA and her sister BBB, coupled with accused-appellants strength, was more than enough to facilitate his bestial intentions. Worth noting further is the fact that accused-appellant has not shown any motive on the part of AAA, to accuse him falsely of the crime of rape. If accused-appellants defense was real that AAA willingly submitted to his embraces and voluntarily engaged in sexual intercourse with him it is very difficult for us to understand why AAA should, without much ado or prevarication, rush to her neighbor to ask to be accompanied to the Punong Barangay, crying that accused-appellant violated her. We agree with the RTC that it is quite unreal to suppose that AAA, a young country lass, with no apparent reason to bear false witness against accused-appellant, would tell such a nauseating story, seek police assistance, endure the humiliation of having someone examine her privates, and go through the rigors of a public trial, if indeed she had not been raped. As to accused-appellants civil liability, the RTC correctly awarded to AAA P50,000.00 as civil indemnity, andP50,000.00 as moral damages, but failed to award exemplary damages. Given the presence of the aggravating circumstance of dwelling, and in line with current jurisprudence, the additional award of P25,000.00 to AAA as exemplary damages is appropriate. In fine, the above-quoted excerpts from AAAs account of the rape that occurred on the night of 20 October 1998 is plain and forthright. The RTC, which had the exclusive opportunity to assess the truthfulness of her narration, was thoroughly convinced of her credibility. Let it be stated again that we have consistently deferred to the findings and conclusions made by a trial judge, principally because it is the latter who gets the opportunity to directly and intimately observe the witnesses and to determine, by their demeanor on the witness stand, the probative strength or weakness of what they declared. It must be stressed further that this case has previously undergone intermediate review by the Court of Appeals, which reached the same
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conclusion as the RTC. Our own thorough examination of the records necessitates us to concur. WHEREFORE, in light of the foregoing, the Decision of the Court of Appeals dated 30 June 2006 is AFFIRMEDwith MODIFICATION. Accused-appellant Conrado Barangan y Generalao is hereby found GUILTY of the crime ofRAPE and is hereby sentenced to suffer the penalty of Reclusion Perpetua. Accused-appellant is further ORDEREDto indemnify AAA in the following amounts: 1) Fifty Thousand Pesos (P50,000.00) as civil indemnity; 2) Fifty Thousand Pesos (P50,000.00) as moral damages; and 3) Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages. Costs de oficio. SO ORDERED. Ynares-Santiago, Chairperson, Martinez, Nachura, Reyes, JJ., concur.

Footnotes
1

Penned by Court of Appeals Associate Justice Rodrigo F. Lim, Jr. with Associate Justices Teresita Dy-Liacco Flores and Sixto C. Marella, Jr., concurring; rollo, pp. 3-21.
2 3 4 5 6

Penned by Judge Diomedes M. Eviota; CA rollo, pp. 17-26. Also spelled as Baranggan in other records. Id. at 25-26. Id. at 26.

Per this Courts Resolution dated 19 September 2006 in A.M. No. 04-11-09SC, as well as our ruling inPeople v. Cabalquinto (G.R. No. 167693, 19 September 2006, 502 SCRA 419), pursuant to Republic Act No. 9262 or the "Anti-Violence Against Women and Their Children Act of 2004" and its implementing rules, the real name of the victims and their immediate family members other than the accused are to be withheld and fictitious initials are to be used instead. Likewise, the exact addresses of the victims are to be deleted.
7

CA rollo, pp. 6-7.

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8 9

TSN, 10 May 1999. TSN, 22 June 1999. Id. TSN, 27 September 1999. TSN, 3 July 2001. TSN, 15 January 2001. TSN, 21 May 2001. TSN, 27 September 1999, pp. 3-12. TSN, 10 May 1999, p. 15. TSN, 3 July 2001, pp. 6-18. CA rollo, pp. 25-26. Id. at 23-24. Id. at 25. Records, p. 104-A. G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640. CA rollo, p. 119. Rollo, p. 21. CA rollo, p. 67. Id. at 100-101. Id. at 102. R. Francisco, BASIC EVIDENCE, p. 38 of the Supplement (1999). 23 C.J.S. 264.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

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30 31 32 33

People v. Maglantay, 363 Phil. 615, 623 (1999). People v. Jimenez, 362 Phil. 222, 234 (1999). People v. Lozano, 357 Phil. 397, 407 (1998).

People v. Furugganan, G.R. Nos. 90191-96, 28 January 1991, 193 SCRA 471, 480.
34 35

People v. Calma, 356 Phil. 945, 974 (1998). People v. Villaflores, G.R. No. 66039, 8 June 1989, 174 SCRA 70, 78.

2. People vs. Frondozo, G.r. no. 177164, June 30, 2009

SECOND DIVISION
PEOPLE OF THE PHILIPPINES, Appellee, G.R. No. 177164 Present: QUISUMBING,J., Chairperson, YNARES-SANTIAGO,* CHICO-NAZARIO,* LEONARDO-DE CASTRO,* and BRION, JJ.

- versus -

Promulgated: RAMON FRONDOZO y DALIDA, Appellant. June 30, 2009 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:
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On appeal is the Decision[1] dated January 31, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 01582, affirming the Decision[2] dated August 3, 2005 of the Regional Trial Court (RTC) of Caloocan City, Branch 120 in Criminal Case No. C-67810. The trial court found appellant Ramon Frondozo y Dalida guilty of violation of Section 5,[3] Article II of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.[4] The information charging Frondozo with violation of Section 5, Article II of Rep. Act No. 9165, reads:
xxxx That on or about the 27th day of March, 2003 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused without authority of law, did then and there wilfully, unlawfully and feloniously sell and deliver to PO1 ABNER BUTAY who posed, as buyer [of] METHAMPHETAMINE HYDROCHLORIDE (SHABU) weighing 0.02 gram drug, without the corresponding license or prescription therefore, knowing the same to be [s]uch. CONTRARY TO LAW.[5] xxxx

On his arraignment, Frondozo pleaded not guilty. As found by the RTC and confirmed by the Court of Appeals, the testimonies of (1) PO1 Abner Butay, police operative of Caloocan City Hall North Detachment who acted as poseur-buyer; (2) P/Insp. Albert Arturo, forensic chemist of NPD Crime Laboratory; and (3) P/Insp. Richard Ang, then police investigator of the Caloocan City Hall North Detachment, establish the following facts: On March 27, 2003, acting on information from a police asset about the drug activities of Frondozo, a team was organized by Major Mario M. Dapilloza, composed of PO2 Hector Ortencio, PO2 Michael Conrad Martin Miranda, PO1 Roderick Medrano and PO1 Abner Butay to conduct surveillance and buybust operation to entrap Frondozo. PO1 Butay testified that he came late during the briefing so it was PO1 Medrano who relayed to him that he was designated as
29 | P a g e

poseur-buyer and the P100 buy-bust money was given to him. They agreed that he will remove his cap as a signal to indicate that their mission was accomplished. [6] Guided by the informants sketch of Frondozos house and a tip that he is the only male residing there,[7] the team proceeded to the site of operation before midnight of the same day. They positioned themselves strategically in different positions where they could see PO1 Butay. Thereafter, PO1 Butay approached Frondozos house and knocked at the door several times. When a man came out, PO1 Butay told him pakuha. The man asked, magkano? and he replied piso lang. The man said, sandali lang then went back inside the house. Moments later, the man returned and handed a plastic sachet to PO1 Butay. PO1 Butay examined its content and was satisfied that the plastic sachet contained shabu. PO1 Butay then handed the man the P100 buy-bust money and put the plastic sachet of shabu inside his pocket. PO1 Butay then removed his baseball cap as pre-arranged to signal to his teammates that the sale was already consummated. He introduced himself to the man and stated pulis ako pare and showed him his badge. He frisked the mans body and found two arrows with sling, one fan knife (balisong) and the P100 buy-bust money from the mans hand. PO1 Butay testified that his teammates never went inside the house.[8] Together with the members of the team, PO1 Butay brought the man, who was later on identified as Frondozo, to the police station. The specimen and the items seized from Frondozos body were turned over to P/Insp. Richard Ang who marked the specimen RFD-01 and prepared the request for laboratory examination. P/Insp. Albert Arturo made a laboratory examination of the contents of the plastic sachet. Based on the physical, chemical and chromatographic examinations he conducted, it was found that the specimen yielded positive results for the presence of methamphetamine hydrochloride or shabu.[9] During trial, PO1 Butay positively identified Frondozo as the man who sold him the prohibited drug. He also identified Exhibit D-4 marked as RFD-01 as the shabu he bought from Frondozo.[10]

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Thereafter, P/Insp. Ang presented in court the P100 bill used in the buy-bust operation against Frondozo. He also testified that he entered the serial number of the buy-bust money in their logbook at their station. He said he attached the referral slip, pre-operational report and the booking sheet arrest report to the case envelope but he no longer has access to it since he is now assigned in Malabon. P/Insp. Ang further testified that there was a coordination sheet faxed to the Philippine Drug Enforcement Agency (PDEA). However, he was not able to present the documents in court since he did not receive any subpoena and the scheduled hearing was relayed to him only through a text message.[11] In his defense, Frondozo denied the accusations against him. He testified that on March 27, 2003 at about 10:00 p.m., a group of police officers arrived at his residence in Brgy. Pag-asa, Camarin, Caloocan City. He was then washing clothes while his wife was inside the house since the latter could not do the chore due to her menstruation. He asked the police officers what they wanted and was in turn asked by PO2 Miranda if he knew a certain alias Monching. When he admitted that he was Monching, he said that he was instructed to face the wall and was frisked. According to Frondozo, he was ordered to turn over the shabu which they accused him of keeping. Despite his denial of the accusation, he was still handcuffed, arrested and made to board a vehicle. Frondozo further averred that PO1 Butay, PO2 Ortencio and PO1 Medrano entered and searched his house. He claimed that the police officers found the fan knife on the table and the two arrows with sling under the sink.[12] Frondozo further narrated that he was thereafter brought to the Mini City Hall Annex Police Station. While in the detention cell, PO1 Butay confronted and accused him of stealing his 13 fighting cocks.[13] He denied stealing the fighting cocks but PO1 Butay refused to believe him. He claimed that PO1 Butay laughed when he told him tarantado ka and insisted even more that he stole the fighting cocks. Frondozo admitted knowing PO1 Butays caretaker, alias July, who lives about 50 meters away from his house, but maintained that prior to his arrest he never knew PO1 Butay or any of the police officers who apprehended him. He came to know their names only at the precinct.[14] Moreover, Frondozo claimed that PO1 Butay extorted money from him. While in the detention cell, PO1 Butay told him to pay P50,000 for his release but
31 | P a g e

the amount was later reduced to P20,000.[15] He said he was unable to pay since he has not yet received his salary. He further claimed that he only learned of the case filed against him after he was transferred to the City Jail. He also claimed he has never seen shabu in his entire life.[16] On August 3, 2005, the court a quo convicted Frondozo. The dispositive portion of the decision reads:
WHEREFORE, from the foregoing, this Court finds accused RAMON FRONDOZO Y DALIDA, GUILTY beyond reasonable doubt for Violation of Section 5, Article II of RA 9165 and hereby imposes upon him the penalty of Life Imprisonment and a fine of Five Hundred Thousand Pesos without subsidiary imprisonment. SO ORDERED.[17]

On January 31, 2007, the appellate court affirmed in toto the court a quos decision. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, premises considered, appeal is hereby DISMISSED for lack of merit and RAMON FRONDOZO y DALIDA should be made to suffer the penalty correctly imposed by the trial court. SO ORDERED.[18]

Aggrieved, Frondozo filed the instant appeal. On July 4, 2007, we accepted the appeal and required Frondozo and the Office of the Solicitor General (OSG) to file their respective supplemental briefs if they so desire. Both parties, however, opted to file Manifestations in lieu of Supplemental Briefs, and adopted their respective briefs filed before the Court of Appeals.[19] In his brief, Frondozo alleges that:
I. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES.
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II. THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SECTION 5, ARTICLE II, R.A. NO. 9165.[20]

This appeal hangs mainly on the alleged lack of credibility of the prosecutions witnesses and the frame-up theory. Frondozo insists that no buy-bust operation was conducted and instead, he was a victim of a frame-up. He claims that PO1 Butay framed him because PO1 Butay suspected him of stealing his fighting cocks three months before his arrest. He also accuses PO1 Butay of extorting P50,000 from him for his liberty.[21] Furthermore, Frondozo assails the credibility of PO1 Butay (poseurbuyer). He contends that the following details cast doubt on the veracity of the alleged buy-bust operation: (1) PO1 Butay claimed to have no knowledge whether the buy-bust money had been dusted with fluorescent powder; [22] (2) he cannot recall whether the plastic sachet of shabu was properly marked;[23] and (3) he cannot recall the serial number of the buy-bust money.[24] Frondozo also asserts that the prosecution not only failed to present as evidence the dispatch book where the serial number of the buy-bust money was supposedly entered,[25] the prosecution also failed to present evidence showing that the police officers previously coordinated with PDEA regarding the buy-bust operation launched against him.[26] Further, he doubts the identity of the shabu because it was marked only after it was turned over to P/Insp. Ang and not immediately after seizure as a standard procedure in anti-narcotics operation.[27] Given these circumstances, Frondozo insists that the presumption of regularity in the performance of official duty, by itself, could not sustain his conviction, let alone prevail over the constitutionally guaranteed presumption of innocence in his favor.[28] The OSG, on the other hand, submits that Frondozos guilt had been proven beyond reasonable doubt. The OSG insists that the evidence on record shows that Frondozo was caught in flagrante delicto. They maintain that Frondozos defense
33 | P a g e

of frame-up and extortion deserves scant consideration since it was unsubstantiated by any evidence other than his self-serving testimony. The OSG further asserts that while the specimen was marked only after it was turned-over to P/Insp. Ang, such fact did not vitiate the identity and chain of custody of the specimen sold by Frondozo. Likewise, the OSG insists that the lack of documents showing that there was prior coordination with PDEA is immaterial because what is more important is that Frondozo was arrested in a valid buy-bust operation.[29] Finally, the OSG maintains that in the absence of proof to the contrary, the police officers enjoy the presumption of regularity in the performance of their official duties.[30] The appeal is meritorious. Jurisprudence clearly sets the essential elements to be established in the prosecution for illegal sale of dangerous drugs, viz.: (1) the transaction or sale took place, (2) thecorpus delicti or the illicit drug was presented as evidence, and (3) the buyer and seller were identified.[31] What is material in the prosecution for illegal sale of dangerous drugs is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.[32] Prosecutions for illegal sale of prohibited drugs necessitate that the elemental act of possession of prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Therefore, it is essential that the identity of the prohibited drug be established beyond doubt.[33] To establish the identity of the shabu seized from Frondozo, the procedures laid down in Rep. Act No. 9165 should be complied with. Section 21 of the Implementing Rules and Regulations of Rep. Act No. 9165 clearly outlines the post-seizure procedure in taking custody of seized drugs. It states:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
34 | P a g e

such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis supplied.]

In this case, the arresting officers failed to strictly comply with the procedures for the custody and disposition of confiscated dangerous drugs as prescribed by Rep. Act No. 9165. The arresting officers did not mark the shabu immediately after they arrested Frondozo. Further, while there was testimony regarding the marking of the shabu after it was turned over to the police investigator, no evidence was presented to prove that the marking thereof was done in the presence of Frondozo. Also, fatal in the prosecutions case is the failure of the arresting officers to take a photograph and make an inventory of the confiscated materials in the presence of Frondozo. Likewise, there was no mention that any representative from the media, DOJ or any elected public official had been present during the inventory or that any of these persons had been required to sign the copies of the inventory. Clearly, none of the statutory safeguards mandated by Rep. Act No. 9165 was observed. Hence, the failure of the buy-bust team to comply with the procedure in the custody of the seized drugs raises doubt as to its origins. Nevertheless, while the seized drugs may be admitted in evidence, it does not necessarily follow that the same should be given evidentiary weight if the procedures provided by Rep. Act No. 9165 were not complied with. The admissibility of the seized dangerous drugs in evidence should not be equated with its probative value in proving the corpus delicti. The admissibility of evidence depends on its relevance and competence while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade.[34] Finally, the presumption of regularity in the performance of official duty relied upon by the lower courts cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt. As a rule, the testimony of police officers who apprehended Frondozo is accorded full faith and
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credit because of the presumption that they have performed their duties regularly. However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed.[35] All told, the corpus delicti in this case does not exist. WHEREFORE, the assailed Decision dated January 31, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 01582 is REVERSED and SET ASIDE. Appellant RAMON FRONDOZO y DALIDA is ACQUITTED of the crime charged on the ground of reasonable doubt and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The Director of the Bureau of Corrections is ORDERED to implement this decision forthwith and to INFORM this Court, within five (5) days from receipt thereof, of the date appellant was actually released from confinement. SO ORDERED.

LEONARDO A. QUISUMBING Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice

MINITA V. CHICO-NAZARIO
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TERESITA J. LEONARDO-DE CASTRO

Associate Justice

Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

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* *

Designated member of the Second Division per Special Order No. 645. Designated member of the Second Division per Special Order No. 658. * Designated member of the Second Division per Special Order No. 635. [1] Rollo, pp. 2-12. Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Noel G. Tijam and Sesinando E. Villon concurring. [2] CA rollo, pp. 14-24. Penned by Judge Victorino S. Alvaro. [3] SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals .The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case. For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemical trade, the maximum penalty shall be imposed in every case. If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed. The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a financier of any of the illegal activities prescribed in this Section. The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a protector/coddler of any viola tor of the provisions under this Section. [4] AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES, approved on June 7, 2002. [5] . Records, p. 1. [6] TSN, April 20, 2004, pp. 3-7. [7] Id. at 9-10. [8] Id. at 37. [9] Records, p. 76. [10] TSN, April 20, 2004, pp. 16-19. [11] TSN, July 5, 2004, pp. 3-7. [12] TSN, January 27, 2005, pp. 15-17; TSN, March 3, 2005, pp. 2-4, 6-7. [13] TSN, March 3, 2005, pp. 8 & 17. [14] TSN, January 27, 2005, pp. 13-15, 17-18; TSN, March 3, 2005, pp. 8, 17-19. [15] TSN, March 3, 2005, pp. 10-11, 23-25 & 27. [16] Id. at 15-16. [17] CA rollo, p. 24. [18] Rollo, p. 12. [19] Id. at 19-20, 22-23. [20] CA rollo, p. 42. [21] TSN, March 3, 2005, pp. 17 & 25. [22] CA rollo, p. 43. [23] Id. at 44. [24] Id. at 43-44.

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[25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35]

Id. at 43. Id. at 45. Id. at 44-45. Id. at 46. Id. at 73, 79-80. Id. at 80. People v. Bandang, G.R. No. 151314, June 3, 2004, 430 SCRA 570, 579. People v. Dela Cruz, G.R. No. 181545, October 8, 2008, p. 8. Malillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619, 631-632. People v. Magat, G.R. No. 179939, September 29, 2008, pp. 12-13. People v. Dela Cruz, supra note 32, at 13.

3.

People vs. De leon, G.r no. 180762, March 4, 2009 THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 180762 Present: Ynares-Santiago, J. (Chairperson), Carpio,* Chico-Nazario, Nachura, and Peralta, JJ. Promulgated: March 4, 2009

- versus -

CARLITO DE LEON, BIEN DE LEON, CORNELIO AKA NELIO CABILDO and FILOTEO DE LEON, Appellants.

x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:

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This is an appeal from the Decision[1] of the Court of Appeals dated May 21, 2007 in CA-G.R. CR No. 26390 which affirmed with modification the Decision of the Regional Trial Court of Nueva Ecija, Branch 35[2] finding herein appellants guilty beyond reasonable doubt of the crime of arson and sentencing them to suffer the penalty ofreclusion perpetua and to pay the heirs of the private complainant P2,000.00 as temperate damages and P20,000.00 as exemplary damages. On June 14, 1989, an Information[3] was filed charging Gaudencio Legaspi, Carlito de Leon, Bien de Leon, Cornelio Cabildo and Filoteo de Leon with the crime of arson. The accusatory portion of the Information reads:
That on or about the 5th day of April, 1986, in the Municipality of Pearanda, Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually aiding and helping one another, did then and there, wilfully, unlawfully and feloniously burn or set on fire the house of one RAFAEL MERCADO, an inhabited house or dwelling, to the damage and prejudice of said Rafael Mercado in an amount that may be awarded to him under the Civil Code of the Philippines. CONTRARY TO LAW.[4]

Gaudencio Legaspi died on February 5, 1987 prior to his arraignment.[5] Appellants Bien de Leon,[6] Carlito de Leon,[7] Filoteo de Leon[8] and Nelio Cabildo[9] were subsequently arraigned and they all pleaded not guilty to the charge. The facts of the case are as follows: At around 8:30 in the evening of April 5, 1986, Aquilina Mercado Rint (Aquilina) and her sister Leonisa Mercado (Leonisa), together with their nephew Narciso Mercado Jr., (Junior) were inside a hut owned by their father Rafael Mercado[10] (Rafael) located on a tumana in Polillo, San Josef, Pearanda, Nueva Ecija. The loud and insistent barking of their dog prompted Aquilina to peep through the window and saw five men approaching the premises whom she recognized as Gaudencio Legaspi and herein appellants. Aquilina and Leonisa

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hurriedly went out of the hut and hid behind a pile of wood nearby while Junior was dispatched to call for help. From their hiding place, they saw appellants surround the hut[11] and set to fire the cogon roofing.[12] While the hut was burning, Leonisa grabbed a flashlight from her sister and focused the same at the group in order to see them more clearly. Upon seeing a light focused on them, Gaudencio ordered the others to leave and the men immediately fled the premises.[13] By the time Junior arrived with his uncles, the hut was already razed to the ground. On April 6, 1986, Police Officer Lucio Mercado (Lucio) conducted an investigation at the scene of the crime and saw a big wood still on fire. A certain Julio took pictures of the remains of the hut.[14] Aquilina and Leonisa valued the hut at P3,000.00 and claimed that a pair of earrings, some beddings, rice, P1,500.00 in cash and plenty of wood were also lost in the fire.[15] They also testified that prior to the incident, appellants had been to the premises, destroyed the plants, the fence and a hut which was first built therein. Appellants likewise physically attacked their father and issued threats that if he would not give up his claim on the land, something untoward would happen to him; and that their father Rafael filed several cases for Malicious Mischief, Forcible Entry and Serious Physical Injuries against appellants. Appellants denied the charge against them. Carlito alleged that on the day of the alleged incident, he was working in Cavite where he had been staying for a year with his family; that his uncle Gaudencio was originally in possession of the tumana contrary to Rafaels claims; that his uncle used to plant vegetables and make charcoal therein until 1975 when he took over upon the latters request; and that when Gaudencio passed away in 1987, he applied for a patent over the tumana with the Bureau of Lands.[16] Carlito also alleged that there was actually no structure on the premises because Rafaels attempt to build a hut was foiled by his helper, herein appellant Nelio.[17] On cross-examination however, he admitted that on March 12, 1986, he destroyed the first hut constructed by Rafael on the subject tumana when the
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prosecution confronted him with evidence which showed that he was found guilty of Malicious Mischief in Criminal Case No. 1985 filed against him by Rafael before the Municipal Trial Court of Pearanda.[18] Nelio testified that on the day of the incident, the appellants were in their respective homes and could not have gone to the tumana to commit the crime as charged; that the burnt parts depicted in the pictures presented by the prosecution were actually parts of tree trunks turned to charcoal; and that the cogon and bamboo shown in the pictures were materials brought by Rafael into the landholding during the latters unsuccessful attempt to build a hut on the tumana.[19] Bien also vehemently denied the charges against him and attributed the same to complainants desire to grab the tumana which rightfully belongs to his mother. He testified that since 1982, he has been living in Rizal, Nueva Ecija which is about 35 kilometers away from Pearanda.[20] For his part, Filoteo corroborated the claims made by his co-appellants.[21] On December 14, 2001, the trial court rendered its decision, thus:
In the light of the foregoing, the prosecution had established the guilt of all the accused Carlito de Leon, Bien de Leon, Cornelio aka Nelio Cabildo and Filoteo de Leon beyond reasonable doubt for the crime of arson, and they are hereby sentenced to an indeterminate prison term of 10 years and 1 day of prision mayor, as minimum, to 14 years and one (1) day of reclusion temporal, as maximum, and to pay jointly and severally the heirs of Rafael Mercado the sum of P3,000.00 representing the value of the burned hut. SO ORDERED.[22]

Appellants appealed before the Court of Appeals which rendered the herein assailed Decision affirming with modification the decision of the court a quo, thus:
WHEREFORE, the appealed Decision is hereby AFFIRMED with MODIFICATION. Accused-appellants Carlito de Leon, Bien de Leon, Cornelio Cabildo and Filoteo de Leon are hereby sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of private complainant Rafael Mercado the sum of Php2,000 as temperate damages and Php20,000 as exemplary damages. Costs against accused-appellants.
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SO ORDERED.[23]

Hence, this appeal. Section 3 of Presidential Decree No. 1613[24] amending the law on arson provides:
Sec. 3. Other Cases of Arson. The penalty of reclusion temporal to reclusion perpetua shall be imposed if the property burned is any of the following: 1. 2. xxxx xxx Any inhabited house or dwelling;

Section 4 of the same law provides that if the crime of arson was committed by a syndicate, i.e., if it is planned or carried out by a group of three or more persons, the penalty shall be imposed in its maximum period. Under the following provision, the elements of arson are: (a) there is intentional burning; and, (b) what is intentionally burned is an inhabited house or dwelling. The appellate court correctly found that the prosecution was able to prove beyond reasonable doubt the presence of the two essential elements of the offense. Although intent may be an ingredient of the crime of arson, it may be inferred from the acts of the accused. There is a presumption that one intends the natural consequences of his act; and when it is shown that one has deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful intent.[25] If there is an eyewitness to the crime of arson, he can give in detail the acts of the accused. When this is done the only substantial issue is the credibility of the witness.[26] In the instant case, both the trial court and the Court of Appeals, found the testimonies of witnesses Aquilina and Leonisa worthy of credence, thus:

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The inconsistencies and contradictions presented in the case at bench do not detract from the fact that Rafaels house was intentionally burned by accusedappellants who were positively identified by witnesses Aquilina and Leonisa. In the face of these positive declarations, accused-appellants puerile attempt to discredit them crumples into dust. [27]

It is well-entrenched in this jurisdiction that factual findings of the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would have affected the result of the case. Having seen and heard the witnesses themselves and observed their behavior and manner of testifying, the trial judge was in a better position to determine their credibility. [28] The testimony of Aquilina that she witnessed the burning of her fathers hut by appellants is positive and categorical, thus:
ATTY. BAUTO: Q. A. Q. A. Q. A. Where were you when according to you they burned the house of your father? that house where you were residing? I was in the tumana, sir. In the house or outside the house? Outside of the house, sir. Why were you outside of the house? When they were arriving or entering the premises of the house of my father or the tumana, our dog barked and we peeped thru the window, sir. What did you see? We saw that men are coming, sir. How many men are coming? Five men, sir. Were you able to recognize them when they were approaching the house? Yes sir we recognize them. What did you do? We went outside of the house, sir. Where did you go?

Q. A. Q. A. Q. A. Q. A. Q.
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A. Q. A. Q. A. Q. A.

We hid ourselves behind the files (sic) of wood, sir. How far is that file (sic) of wood from the house of your father? More or less seven meters, sir. Why did you, in the first place, go out of the house when you saw them coming? Because we wanted to hide, sir. Why were you apprehensive? Because they were our adversary, sir. (Kalaban po namin sila.) xxxx

Q. A.

Who were with you when you went out of the house? Only my sister Leonisa because I already instructed my nephew to go to our house when we noticed them coming and I instructed him to fetch my brothers, sir. When you were already behind the files (sic) of wood what happened next? They surrounded our house and they lighted it up with match, sir. (Pinaikutan po nila ang aming bahay at sinilaban.) Who first lighted a match for purposes of burning the house? Gaudencio Legaspi, sir. And what did the others do after Gaudencio Legaspi lighted a match? They also lighted their matches, sir.

Q. A.

Q. A. Q. A.

COURT: Q. A. You mean the five had their matches at the time? Yes, sir. xxxx Q. A. What portion of the house was lighted first? The cogon roofing of the hut, sir. That was the portion that could be easily burned.[29]

Positive identification, where categorical and consistent, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing proof, are negative and self-serving evidence undeserving of weight in law. The
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appellants had not shown that it was physically impossible for them to be present at the time and place of the crime.[30] Thus, we find no reason to disturb the trial courts reliance on the testimony of the prosecution witnesses. Findings and conclusions of trial courts on the credibility of witnesses enjoy, as a rule, a badge of respect, for trial courts have the advantage of observing the demeanor of witnesses as they testify. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath all of which are useful aids for an accurate determination of a witness honesty and sincerity.[31] Proof of the corpus delicti is indispensable in the prosecution of arson, as in all kinds of criminal offenses. Corpus delicti means the substance of the crime; it is the fact that a crime has actually been committed. In arson, the corpus delicti is generally satisfied by proof of the bare occurrence of the fire, e.g., the charred remains of a house burned down and of its having been intentionally caused. Even the uncorroborated testimony of a single eyewitness, if credible, may be enough to prove the corpus delicti and to warrant conviction.[32] The corpus delicti has been satisfactorily proven in the instant case. The appellate court correctly imposed the penalty in its maximum period, i.e., reclusion perpetua considering the presence of the special aggravating circumstance. The crime was committed by a syndicate since it was carried out by a group of three or more persons. On the matter of damages, the appellate court likewise correctly awarded temperate damages in the amount of P2,000.00. In view of the presence of the special aggravating circumstance, exemplary damages in the amount of P20,000.00 is likewise appropriate. WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 26390, finding appellants Carlito de Leon, Bien de Leon, Cornelio Cabildo and Filoteo de Leon guilty beyond reasonable doubt of the crime of arson, sentencing them to suffer the penalty reclusion perpetua and
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ordering them to pay the heirs of private complainant Rafael Mercado P2,000.00 as temperate damages and P20,000.00 as exemplary damages, is AFFIRMED. SO ORDERED.

CONSUELO YNARES-SANTIAGO Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

DIOSDADO M. PERALTA Associate Justice

ATTESTATION
I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

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Justice Division

CONSUELO YNARES-SANTIAGO Associate Chairperson,

Third

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CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

In lieu of Associate Justice Ma. Alicia Austria-Martinez, per Special Order No. 568 dated February 12, 2009. Rollo, pp. 2-22; penned by Associate Justice Japar B. Dimaampao and concurred in by Presiding Justice Ruben T. Reyes (now retired Associate Justice of the Supreme Court) and Associate Justice Mario L. Guaria III. [2] CA rollo, pp. 51-55; penned by Judge Dorentino Z. Floresta. [3] Records, p. 71. [4] Id. [5] Id. at 119. [6] Arraigned on April 19, 1990; see records, p. 136. [7] Arraigned on May 9, 1990; see records, p. 140. [8] Id. [9] Arraigned on July 10, 1990; see records, p. 162. [10] Died on February 23, 1988; Certification dated January 22, 1990 from the Office of the Local Civil Registrar of Pearanda, Nueva Ecija. Records, p. 117. [11] TSN, April 4, 1995, p. 4. [12] TSN, May 4, 1993, p. 9; TSN, April 4, 1995, p. 5. [13] Id. at 10; Id. at 6-7. [14] Id. at 14; Id. at 7. [15] Id. [16] TSN, August 22, 1995, pp. 4-5. [17] Id. at 10. [18] Records, p. 54. [19] TSN, October 24, 1995, pp. 5-6. [20] TSN, March 26, 1996, pp. 2-3; 5. [21] Id. at 5-6.
[1]

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[22] [23]

CA rollo, p. 55. Rollo, pp. 21-22. [24] March 7, 1979. [25] People v. Soriano, G.R. No. 142565, July 29, 2003, 407 SCRA 367, 373, citing Curtis, A Treaty on the Law of Arson (1st ed., 1986), Sec. 283, p. 303. [26] Id., Sec. 287, p. 307. [27] Rollo, p. 16. [28] People v. Clidoro, G.R. No. 143004, April 9, 2003, 401 SCRA 149, 154. [29] TSN, May 4, 1993, pp. 7-9. [30] People v. Dela Pena, Jr., G.R. No. 183567, January 19, 2009. [31] Id. [32] People v. Gonzalez, G.R. No. 180448, July 28, 2008.

EQUIPOSE RULE 1. People vs. Cervantes, G.r. no. 181494, March 17, 2009
Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 181494 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

MONALYN CERVANTES y SOLAR, Promulgated: Accused-Appellant. March 17, 2009 x-----------------------------------------------------------------------------------------x

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DECISION VELASCO, JR., J.:

This is an appeal from the Decision dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00476 which affirmed the April 23, 2004 Decision in Criminal Case No. 00-181929 of the Regional Trial Court (RTC), Branch 53 in Manila. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of violation of Section 15, Article III of Republic Act No. (RA) 6425 or the Dangerous Drugs Act of 1972, as amended. The records show the following facts: In an Information dated April 7, 2000, accused-appellant and three others were charged with violation of Sec. 15, Art. III of RA 6425 (selling or distributing a regulated drug), allegedly committed as follows:
That, on or about April 5, 2000, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused ISIDRO ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES] y SOLAR @ Mona, WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard, conspiring, confederating and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully and feloniously, for the amount of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to a poseur-buyer, FOUR HUNDRED SEVENTY THREE POINT SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE [HYDROCHLORIDE], commonly known as shabu, a regulated drug, without authority of law or the corresponding license therefor. CONTRARY TO LAW.[1]

Accused-appellant and her co-accused pleaded not guilty to the charge. In the ensuing trial, the prosecution presented in evidence the oral testimonies of
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William Todavia, PO3 Reynaldo Ramos of the Philippine National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna Tria, a forensic chemical officer of the same regional office. The Peoples version of the incident, as summarized by the CA in th e decision now on appeal, is as follows: On April 5, 2000, the Regional Special Operations Group IV (RSOG-IV), based at Camp Vicente Lim in Calamba, Laguna, received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson operating in Cavite. Acting on this bit of information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and PO2 Emerson Balosbalos arranged a buybust operation to be conducted at Argusons rest house in Barangay Lambingan, Tanza, Cavite.[2] Upon arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as poseur-buyers, were introduced by the DPA to Arguson as the buyers of PhP 500,000 worth of shabu, simultaneously showing him a bundle of money. Since Arguson did not have enough supply of shabu in the premises, he instructed the would-be-buyers to follow him to Pasay City. For the purpose, he hired a vehicle owned by Todavia. At about three oclock in the afternoon of that day, in front of the McDonalds branch in P. Ocampo St., Pasay City,[3] Arguson instructed the wouldbe-buyers to wait for someone who will come out from the nearby Estrella St. Very much later, accused-appellant emerged from Estrella St. and approached PO3 Ramos to check if he still had the money. After being shown the money bundle, accused-appellant left, only to return a few minutes later this time with Arguson, Wilson Del Monte, who was holding a black plastic bag, and Richard Requiz. Arguson then took from Del Monte the bag, later found to contain 473.76 grams of shabu packed in six small self-sealing transparent bags, and handed it to PO2 Balosbalos, who in turn gave him the bundle of boodle money. Finally, PO3 Ramos gave the pre-arranged signal to indicate the consummation of the drug deal and introduced himself as policeman. Accused-appellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim. The black plastic bag containing the six small self-sealing bags of white crystalline substance was likewise taken to Camp Vicente Lim where PO3 Ramos
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prepared the booking sheets and arrest reports and the request for a qualitative analysis of the seized items. Regional Crime Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then conducted the standard physical and chemical examinations on the specimen referred to her. On April 6, 2000, C/I Geronimo prepared and completed Chemistry Report No. D-115800 on the crystalline substance. Per her report, the substance tested positive for methamphetamine hydrochloride or shabu. Apart from the witnesses affidavits and other documents, t he prosecution, in the hearing of March 4, 2002, offered in evidence the following exhibits,[4] inclusive of its sub markings, which, as may be expected, were objected to by the defense: (a) Exhibit B Chemistry Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit C Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory Service, requesting for qualitative analysis of the contents of the six transparent plastic bags; (c) Exhibits D and D-1 to D-6 Black plastic bag with markings; and six (6) self-sealing transparent bags allegedly containing the confiscated shabu; and (d) Exhibit F Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses. The CA decision likewise summarized the defenses account of what purportedly transpired, to wit:
Accused-appellant testified that after she did laundry works at her house in Estrella Street near F.B. Harrison on April 4, 2000, her youngest child asked her to go to [McDonalds], Vito Cruz branch, to buy ice cream. When they arrived thereat at about 4:30 in the afternoon, there was a commotion going on in front of the restaurant. She then saw a woman who alighted from a nearby van and pointed her out to her companions, one of whom [was] an old man boarded her inside the van causing her to lose hold of her child. Thereafter, two (2) younger male persons, whom she later came to know as DEL MONTE and REQUIZ, were also boarded into the same van. They were taken to a cemetery where another vehicle came and took them to Camp Vicente Lim, where she allegedly met ARGUSON for the first time.

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On the other hand, accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day in question, while he was watching a vehicle near [McDonalds], Vito Cruz branch, a commotion happened near his post. As he moved backward from where he stood, he was suddenly approached by a policeman who arrested him and boarded him inside a vehicle together with CERVANTES and REQUIZ, whom he did not know prior to that incident. For his part, accused REQUIZ testified that on the date and time in question, he was riding a borrowed bicycle on his way to the Cultural Center, passing by F.B. Harrison St., when he bumped a parked van, wherefrom a man alighted and cursed him, saying pulis ako wag kang aalis dyan[!] The man left and when he returned, accused CERVANTES was with him. Thereafter, he was boarded into the van together with the other accused.[5]

While not stated in the CA decision, Del Monte testified

2. People

vs. Erguiza, G.r. no. 171348, November 26, 2008

Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 171348 Present: PUNO,* C.J. YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and REYES, JJ.

- versus -

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LARRY ERGUIZA, Promulgated: Accused-Appellant. November 26, 2008 x----------------------------------------------------------x

DECISION
AUSTRIA-MARTINEZ, J.:

The Court is confronted with another case of rape. The victim, a 13-year-old girl. And although the Court may be moved by compassion and sympathy, the Court, as a court of law, is duty-bound to apply the law. Basic is the rule that for conviction of a crime, the evidence required is proof beyond reasonable doubt -conviction with moral certainty. For review before this Court is the November 18, 2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR H. C. No. 00763 which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of San Carlos City, Pangasinan, Branch 57, finding Larry Erguiza (appellant) guilty of one count of rape and sentencing him to suffer the penalty of reclusion perpetua. The Information, dated April 10, 2000, in Criminal Case No. SCC 3282 reads as follows:
That on or about 5:00 oclock in the afternoon of January 5, 2000, at the back of the Bical Norte Elementary School, municipality of Bayambang, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a kitchen knife, by means of force and intimidation, did then and there, willfully, unlawfully, and feloniously have sexual intercourse with AAA[3], a minor of 13 years old, against her will and consent and to her damage and prejudice.[4]

When arraigned, appellant pleaded not guilty.[5] Thereafter trial ensued. The prosecution presented four witnesses, namely: private complainant (AAA), her mother BBB and father CCC, and Dr. James Sison. The defense
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presented five witnesses, namely: Joy Agbuya, Juanito Macaraeg, Angeles, Albina Erguiza, and appellant.

Juanita

On November 27, 2000, the RTC found appellant guilty of the crime of rape, the dispositive portion of which reads as follows:
In view whereof, the Court finds the accused LARRY C. ERGUIZA guilty of RAPE under Article 266-a paragraph 1(a) in relation to Article 266-b of R.A. 8353 and R.A. 7659 and sentences (sic) to suffer the penalty of reclusion perpetua and to pay the offended party, AAA P50,000 as civil indemnity, P50,000 as moral damages, P50,000 as exemplary damages, to give support to AAA's offspring and to pay the costs. SO ORDERED.[6]

On appeal, the CA aptly summarized the respective versions of the parties, based on the evidence presented before the trial court, thus:
PROSECUTION'S VERSION: On January 5, 2000, at around 4:00 o'clock in the afternoon, AAA, a thirteen-year old first year high school student, together with her friends, siblings Joy and Ricky Agbuya, went to the mango orchard located at the back of ZZZ Elementary School to gather fallen mangoes.[7] When they were bound for home at around 5:00 o'clock in the afternoon , AAAs short pants got hooked on the fence. AAA asked Joy and Ricky to wait for her but they ran away and left her.[8] While AAA was trying to unhook her short pants, Larry suddenly grabbed and pulled her. Poking a knife at her neck, Larry threatened to hurt her if she would make a noise.[9] Accused-appellant dragged AAA towards a place where a tamarind tree and other thorny plants grow. Then Larry removed his maong pants and forced AAA to lie down on the grassy ground. Thereafter, he removed her short pants and panty, mounted himself on top of her and inserted his penis into her private parts and made push and pull movements. He likewise raised AAAs sando and mashed her breast. AAA felt pain when accused-appellant entered her and she felt something sticky in her private part after Larry made the push and pull movements.[10] Larry told AAA not to tell anybody about the incident otherwise he would kill her and all the members of her family and then he ran away.[11]
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AAA lingered for a while at the place and kept crying. Having spent her tears, she wore her panty and short pants and proceeded to the adjacent store of her Aunt Beth who was asleep. After staying for some time at the store, AAA decided to come (sic) home. Upon reaching home, she directly went to bed. Fearing Larry's threat, AAA kept mum on the incident.[12] On April 7, 2000, BBB brought her daughter AAA to her grandmother (BBB's mother), a hilot residing in XXX, Tarlac, to consult her on the unusual palpitation on the mid-portion of AAA's throat and the absence of her monthly period.[13] After examining AAA, her grandmother told BBB that her daughter was pregnant. BBB asked AAA who was the father of her unborn child but AAA refused to talk. After much prodding, and in the presence of her Uncle, Rudy Domingo, AAA finally revealed that she was raped by accused-appellant.[14] On April 8, 2000, AAA, accompanied by her mother and uncle, went to the police headquarters in YYY, Pangasinan to report the incident.[15] Then the police brought her to YYY DistrictHospital[16] where Dr. James Sison, Medical Officer III of said hospital conducted the examination on Michelle. Dr. Sison made the following findings: Q. x x x No extragenital injuries noted. Complete healed hymenal laceration 11:00 o'clock. x x x. In layman's term, Dr. Sison found no physical injury from the breast, the body except the genital area wherein he found a significant laceration complete (sic) healed over 11:00 o'clock.[17] Dr. Sison also testified that a single sexual intercourse could make a woman pregnant. BBB testified that her daughter AAA stopped going to school after she was raped and that no amount of money could bring back the lost reputation of her daughter. CCC (AAA's father), testified that on May 2, 2000, the family of accusedappellant went to their house and initially offered P50,000 and later P150,000; that in January 5, 2000, while they were repairing his house for the wedding reception[18], Larry left at around 4:00 o'clock p.m. DEFENSE'S VERSION On January 5, 2000, Larry Erguiza helped in the repair of CCC's[19] house from 8:00 o'clock in the morning up to 5:00 o'clock in the afternoon. When he reached home at around 5:00 pm, his mother Albina Erguiza instructed him to fetch a hilot as his wife Josie was already experiencing labor pains. He proceeded to fetch the hilot Juanita Angeles and stayed in their house until his wife delivered a baby at around 3:00 o'clock in the morning of January 6, 2000.[20]

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Juanita Angeles corroborated Larry's testimony that he indeed fetched her at around 5:10 pm on January 5, 2000 to attend to his wife who was experiencing labor pains and who delivered a baby at about 3:00 a.m. of January 6, 2000; and that Larry never left his wife's side until the latter gave birth. Albina, mother of the accused-appellant, testified that AAA is the daughter of her balae Spouses CCC and BBB; that her son Larry, her husband and two others left CCC and BBB's residence at about 5:00 o'clock in the afternoon on January 5, 2000; that she went to Spouses CCC and BBB to talk about the charge of rape against her son; that Spouses CCC and BBB were asking forP1,000,000.00 which was later reduced to P250,000.00 and that she made a counter-offer of P5,000.00.[21] Joy Agbuya testified that she and AAA were at the mango orchard of Juanito Macaraeg on January 5, 2000; that she never left AAA when her short pants got hooked; that they went together to the store of Auntie Beth where they parted.[22] Juanito Macaraeg, the mango orchard caretaker, testified that the house of Larry was a walking distance of about three minutes from the mango orchard; that if one runs fast, it would only take a minute to reach his house; and that he could not recall having seen Larry in the orchard.[23] (Emphasis supplied)

In its Decision dated November 18, 2005, the CA affirmed the decision of the RTC, but modified the amount of the award of exemplary damages and costs as follows:
WHEREFORE, in view of all the foregoing circumstances, the Decision of the Regional Trial Court of San Carlos (Pangasinan), Branch 57 dated November 27, 2000 in Criminal Case No. SCC-3282 is AFFIRMED with MODIFICATION. Accused-appellant Larry Erguiza is held GUILTY of Rape and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the victim AAA P50,000.00 as civil indemnity; P50,000.00 as moral damages, and P25,000.00 as exemplary damages and to give support to AAAs offspring. SO ORDERED.[24]

Hence, herein appeal. In his appeal Brief,[25] appellant raises the following errors:

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1. THE COURT A QUO GRAVLEY ERRED IN GIVING CREDENCE TO THE INCREDIBLE, THUS UNBELIEVABLE TESTIMONY OF PRIVATE COMPLAINANT AAA. 2. THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED APPELLANT OF THE CRIME OF RAPE DESPITE THE FACT THAT THE PROSECTUION EVIDENCE FAILED TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT. 3. THE COURT A QUO GRAVELY ERRED IN NOT APPRECIATING ACCUSED-APPELLANT'S DEFENSE OF ALIBI CORROBORATED BY THE WITNESSES PRESENTED BY THE DEFENSE.[26]

The appeal is meritorious. The prosecution's evidence does not pass the test of moral certainty. This Court has ruled that in the review of rape cases, the Court is guided by the following precepts: (a) an accusation of rape can be made with facility, but it is more difficult for the accused, though innocent, to disprove it; (b) the complainant's testimony must be scrutinized with extreme caution since, by the very nature of the crime, only two persons are normally involved; and (c) if the complainant's testimony is convincingly credible, the accused may be convicted of the crime.[27] In the case at bar, the CA upheld the conclusion of the RTC in finding the complainant credible, to wit:
The testimonies of victims who are young and of tender age, like AAA, deserve full credence and should not be dismissed as mere fabrication especially where they have absolutely no motive to testify against the accused-appellant as in this case. Larry even admitted that AAA had no ill motive for charging him with rape. The Supreme Court in several cases, ruled that full credence is accorded the testimony of a rape victim who has shown no ill motive to testify against the accused. This being so, the trial court did not err in giving full credence to AAA's testimony.[28]

This Court does not agree with the CA. The Court is not unmindful of the general rule that findings of the trial court regarding credibility of witnesses are accorded great respect and even finality on appeal.[29] However, this principle does not preclude a reevaluation of the evidence
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to determine whether material facts or circumstances have been overlooked or misinterpreted by the trial court.[30] In the past, this Court has not hesitated to reverse a judgment of conviction, where there were strong indications pointing to the possibility that the rape charge was false.[31] Generally, when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed. And so long as her testimony meets the test of credibility and unless the same is controverted by competent physical and testimonial evidence, the accused may be convicted on the basis thereof.[32] After a judicious examination of the records of the case, the Court finds that there is testimonial evidence that contradicts the findings of the RTC and CA on the basis of which no conviction beyond reasonable doubt could arise. It is the unrebutted testimony of a credible defense witness. The testimony of Joy Agbuya (Joy) casts doubt as to the possibility of rape having taken place as narrated by complainant. In addition, the testimony of a disinterested defense witness, Juanita Angeles (Juanita) corroborated the alibi of appellant. Before dwelling on the testimonies of Juanita and Joy, the Court shall first scrutinize the testimonial evidence presented by the prosecution and the defense. Aside from the testimony of complainant, the prosecution presented the following witnesses: Dr. James Sison, BBB, and CCC. The pertinent portions of their testimonies may be summarized as follows: Dr. James Sison testified that he conducted the medical examination of complainant. His diagnosis was that there was a significant laceration completely healed at the 11:00 o'clock position.[33] However, Dr. Sison testified that his findings were not conclusive, but were rather suggestive that complainant was raped. Furthermore, as to the question of paternity of the child of complainant, Dr. Sison suggested doing a DNA match.[34] BBB testified the she brought AAA to her grandmother, a hilot residing in XXX, Tarlac, to consult her on the unusual palpitation on the mid-portion of complainant's throat and the absence of her monthly period.[35] After examining
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complainant, the hilot told BBB that her daughter was pregnant. AAA later revealed that she was raped by appellant.[36] BBB further testified that she accompanied AAA to the police headquarters in YYY, Pangasinan to report the incident.[37] Afterwards, the police brought complainant [38] toYYY District Hospital where Dr. James Sison, Medical Officer III of said hospital, conducted the examination on complainant. On cross-examination, BBB testified that the family of appellant offered her money to settle the case.[39] CCC, the father of AAA, was the lone rebuttal witness of the prosecution. In order to rebut the allegation made by appellant's family that the present case was filed because appellant's family did a poor job in preparing for the wedding of CCC's daughter DDD and apellant's brother Carlito, CCC testified that on the contrary, the wedding went smoothly.[40] CCC further claimed that the family of appellant knelt before him crying and offered money to settle the case.[41] Moreover, CCC testified that appellant left his house at 4:00 p.m. on January 5, 2000. On the other hand, the defense presented four witnesses, namely: Juanito Macaraeg (Macaraeg), Albina Erguiza (Albina), Juanita and Joy. Macaraeg, the caretaker of the mango orchard, testified that he did not see appellant on any occasion in the orchard.[42] More specifically, Macaraeg emphasized that he did not see appellant on January 5, 2000.[43] However, on cross-examination, he testified that the house of appellant is only a three-minute walk from the mango orchard and probably a minute if one walks fast.[44] Albina, the mother of appellant, testified that on January 5, 2000, she was with appellant at the house of CCC and BBB preparing for the wedding of CCC's daughter DDD and appellant's brother Carlito. She said that they left the house of CCC at around 5:00 p.m.[45] Albina narrated that when they arrived home, at around 5:02 or 5:03 p.m., she sent appellant to fetch a hilot, as the wife of appellant was having some labor pains.[46] She said that appellant and the hilot arrived at around 5:30 p.m.[47] According to Albinaappellant never left their house.[48]
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On the day of the wedding, Albina testified that she had an altercation with BBB regarding the bills and that they never resolved their quarrel.[49] She spoke to BBB and CCC because she learned that they were falsely accusing appellant of raping AAA.[50] After talking to BBB and CCC, she and her husband confronted appellant and asked if he had raped complainant, which appellant denied.[51] Albina claimed that CCC and BBB were demanding P1,000,000.00 and that they later reduced it to P250,000.00.[52] Albinasaid that she offered P5,000.00 to BBB and CCC only to preserve their relationship as in-laws and for peace.[53] In sum, with the exception of the claim of AAA that she was raped by appellant, other evidence presented by the prosecution did not identify appellant as the perpetrator of the crime. Moreover, the testimonies of the witnesses for both the prosecution and the defense conflict on certain points, more notably the claim by BBB and CCC that the family of appellant offered to settle the case. This, however, was denied by Albina, who claimed that it was BBB and CCC who demanded P1,000,000.00. The offer of compromise allegedly made by Albina is critical to the case at bar in light of law and jurisprudence that an offer of compromise in a criminal case may be received in evidence as an implied admission of guilt. [54] In the case at bar, the offer of compromise was first testified to by BBB on cross-examination, to wit:
Q. A. Is it not a fact that there was an offer by you to the mother of the accused that they pay you 1 million and you have reduced it to P250,000.00? No, sir, it was they who were the ones offering for settlement, but we never offer them any settlement, sir.[55]

On rebuttal, CCC corroborated the testimony of BBB that the family of appellant offered to settle the case, to wit:
Q. And according to Larry Erguiza as well as his witnesses they told the Honorable Court that you and your wife are demanding from Larry Erguiza and his parents the amount of one million pesos so that you will not file this case against the accused, what can you say about that? There is no truth about that, sir.

A.

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Q. A.

And what is the truth about it? It was they who went to my house, they even knelt before me crying and they were offering money, sir.[56]

However, Albina, the mother of appellant, denied the foregoing allegations, to wit:
Q. A. What happened when you went to the house of BBB and CCC talking with them about their problem of the alleged rape on AAA, their daughter? They were asking for a settlement price for one million pesos but we have no money, sir. What did you do when they were asking one million pesos from you? We told them that we do not have that money until they reduced the price to P250,000.00 but we have no money because we are poor, sir. Were you around when BBB testified to the witness stand? I was here, sir. Did you hear what BBB said that you were the one offering money? Yes, sir, I was here and I heard that. What can you say to that allegation of BBB? That is not true, sir. She was saying that we were the ones offering money for one million to them but she was telling a lie, it was they who were asking for one million pesos, sir. What is your proof that is was they who are demanding the amount of one million and reduced that to two hundred fifty thousand (P250,000.00)? We already left because we cannot afford to give that much, sir. Aside from the fact that you do not have money, was there any reason or what was your other reason in going there? Our reason in talking to them was that when Larry said that he did not commit the alleged rape and so we went there to talk to them so that we could preserve our relationship as in-laws even if it is for the sake of peace we could try our best to cope up even P5,000.00 just for the sake of peace because our intention in going to their house was to extract the truth, sir.[57]

Q. A.

Q. A. Q. A. Q. A.

Q. A. Q. A.

On cross-examination, appellant gave the following statements:

Q. Before the filing of this case with this Honorable Court, your parents and you were pleading to the parents of AAA not to continue anymore the case, is it not? Yes, sir, so that the case will not be filed and our relationship will not be destroyed, sir.

A.
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Q. A. Q. A.

In fact you asked your parents to do so, is it not? No, sir. They were the ones who went to the house of AAA, sir. But the family of AAA did not agree to the pleadings of your parents that the case be not filed anymore, is it not? They will agree if we will pay then 1 million, but we do not have 1 million, sir. Did you offer them 1 million? No, sir. They were the ones who told that to us.[58] (Emphasis Supplied)

Q. A.

The alleged offer of the parents of appellant to settle the case cannot be used against appellant as evidence of his guilt. Appellant testified that he did not ask his parents to settle the case. Moreover, appellant was not present when the offer to settle was allegedly made. An offer of compromise from an unauthorized person cannot amount to an admission of the party himself.[59] Although the Court has held in some cases that an attempt of the parents of the accused to settle the case is an implied admission of guilt,[60] we believe that the better rule is that for a compromise to amount to an implied admission of guilt, the accused should have been present or at least authorized the proposed compromise.[61] Moreover, it has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution.[62] In addition, the Court, in weighing the evidence presented, may give less weight to the testimonies of Albina, on the one hand, and BBB and CCC, on the other, as they are related to the appellant and the victim, respectively[63] Their testimonies relating to the offer of settlement simply contradict each other. As a matter of fact, even the lower courts did not consider the alleged offer of settlement in resolving the case. Thus, the Court now considers the testimonies of Juanita and Joy. Testimony of Juanita Angeles

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Juanita, a hilot, testified that appellant fetched her at around 5:10 in the afternoon of January 5, 2000.[64] She asserted that they arrived at the house of appellant at 5:30 p.m. She said that appellant's wife gave birth at dawn at 3:00 a.m. of January 6, 2000.[65] Juanita said that appellant was with her the entire time and never left the house.[66] Testimony of Joy Agbuya For a better perspective on the testimony of Joy, it is necessary to repeat the testimony of AAA. AAA testified that on January 5, 2000, she was accompanied by 12-year-old Joy and the latter's brother Ricky Agbuya (Ricky) to the mango orchard at the back of the elementary school to pick fallen mangoes. Further, complainant claims that she was left behind by Joy and Ricky when her shorts got hooked to the fence and that while she was unhooking her pants from the fence, appellant grabbed her and raped her.[67] This was however contradicted by Joy, to wit:
Q. How many times did you go to the mango orchard of Juanito Macaraeg? A. Three (3) times, sir. Q. A. Q. A. Q. A. Q. When you usually go to the mango orchard of Juanito Macaraeg, where did you met [sic] with AAA? In their house, I dropped by her house, sir. Was there an occasion wherein you brought your brother Ricky when you went with AAA to the mango orchard of Juanito Macaraeg? No, sir. Are we made to understand that Ricky, your brother did not go even once to the mango orchard of Maning Macaraeg? Yes, sir. According to AAA in her sworn statement she stated that in [sic] January 5, 2000 you were with your brother Ricky and AAA in going to the mango orchard, what can you say about that? What she is saying is not true. I was not with my brother, sir. I did not tug him along with me.

A.

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Q.

A. Q. A. Q. A. Q. A.

It is also said by AAA that you left her behind in mango orchard when her pants was hooked, what you say about that? No, sir I waited for her.

the can

Are we made to understand Madam Witness, that there was no instance or never that happened that you left her in the mango orchard alone? No, sir, I waited for her and both of us went home together, sir. Going back to the occasion wherein you were with AAA, who were with you in going back home? Just the two (2) of us, sir. In your way home, where did you part or separate with each other? In front of the store of auntie Beth, sir.[68]

xxxx Q. A. Q. A. Is AAA your bestfriend? Yes, sir. Since you said that AAA is your bestfriend was there an occasion wherein she told you that she was raped? None, sir.[69] (Emphasis and underscoring supplied)

On cross-examination, Prosecutor Ely Reintar elicited the following statements from Joy:
Q. A. Q. A. Q. A. Q. A. Q. A. In the year 2000, when was the last time that you talked to AAA? April, sir. After April, you did not talk to AAA anymore? No more, sir. Your friendship was severed? Yes, sir. Will you please tell the Honorable Court why your friendship became severed? Because she quarreled with me, sir. And because you quarreled, that is the reason why you are now testifying against her? Yes, sir.[70]

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On re-direct examination, Joy clarified, thus: Q. Madam Witness, you said that you have a quarrel with the private complainant, AAA, will you please tell this Honorable Court what is the reason or cause of your quarrel with AAA? Because they wanted me to say another statement that I left AAA behind, sir.[71] (Emphasis supplied)

A.

On re-cross examination, Joy gave the following answers to the questions of Prosecutor Reintar:
Q. You said that the reason for your quarrel is that they wanted you to change your statement, that you left behind AAA, who are those they, that you are referring to?

INTERPRETER No answer. Witness I, sir. PROS. REINTAR Q. Who told you to change your statement that you left AAA behind? A. Because they are saying that I will change my statement that I left AAA but I did not sir. Q. A. Q. A. Who are these who are telling that? They, sir. Will you please mention them? BBB, only her, sir.[72]

The testimony of 12-year-old Joy makes it impossible for the appellant to have raped AAA the way complainant narrated it, to wit:
Q. You try to understand clearly the question, Madam Witness, and may I repeat that, at the time of the rape when according to you, you were the one raped, where were Joy and Ricky Agbuya? They left ahead of me because my short pants was hooked at the fence so I was left behind, sir. Were you able to remove the pants of yours at the fence? I was removing it sir, when he suddenly grabbed me.

A.

Q. A.

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Q. A.

And who is this person you are referring to as the one who grabbed you? Larry Erguiza, sir.[73]

Put simply, complainant could not have been raped because Joy waited for complainant when the latters shorts got hooked to the fence a nd thereafter both went home together. The Court finds no cogent reason for Joy to lie and say that she had waited for complainant and that they both went home together. She had nothing to gain for lying under oath. Moreover, the records are bereft of any showing or claim that Joy was related to or was a close friend of appellant or his family. On the contrary, Joy considers herself the best-friend and playmate of complainant.[74] When Prosecutor Reintar questioned her as to her understanding of the oath she took, Joy answered, That I will swear to God, sir. x x x The truth, sir.[75] Furthermore, Joy did not succumb to pressure even as she was being conscientiously examined by Prosecutor Reintar. Joy boldly testified that BBB, the mother of complainant, was forcing her to change her statement. The testimony of Joy clearly lays down the following facts which are damaging to the case of the prosecution: first, that Joy did not leave behind AAA when the latters shorts got hooked to the fence; and secondly, that Joy and AAA left the orchard, went home together and separated at their Aunt Beth's house, indicating that no untoward incident, much less rape, was committed by appellant at the time and place that complainant had testified on. Necessarily, either Joy or AAA lied under oath. It was thus critical for the prosecution to show that Joy gave false statements. Unfortunately for AAA, the prosecution miserably failed to rebut Joys testimony. Neither complainant nor Ricky, BBB or any other witness was called to the witness stand to refute Joys testimony. True, it is up to the prosecution to determine who to present as witnesses.[76] However, considering that the testimony of Joy critically damaged the case of the prosecution, it behooved the prosecution to present evidence to rebut the defense evidence. Witnesses such as Ricky, AAA and BBB should have been presented by the prosecution to demolish Joy's testimony. The testimony of Ricky is particularly significant, especially since
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AAA claimed that he was with her and his sister Joy at the mango orchard on the day of the alleged rape incident. The failure on the part of the prosecution to present Ricky or AAA bolsters the defense evidence, that no rape happened on the date and time claimed by AAA. The prosecution presented CCC, the father of complainant, as it's lone rebuttal witness.[77] However, the testimony of CCC covered facts and issues not related to the testimony of Joy. The testimony of CCC merely rebutted the allegation made by appellant's family that the present case was filed because appellant's family did a poor job of preparing for the wedding of CCC's daughter DDD and apellant's brother Carlito. To this, CCC testified that on the contrary, the wedding went smoothly.[78] Furthermore, CCC claimed that the family of appellant knelt before him crying and offered money to settle the case.[79] In addition, CCC testified that appellant left his house at 4:00 p.m. on January 5, 2000. Thus, the testimony of CCC did not in any way rebut the testimony of Joy. Further, Joy testified that during the three times she went with AAA to the mango orchard, the time was 1:00 p.m.[80] However, AAA testified that she went to the mango orchard with Joy at 4:00 p.m.[81] The variance in the testimonies of Joy and AAA as to the time they went to the mango orchard on the day of the alleged rape incident may be disregarded as they are de minimis in nature and do not relate to the commission of the crime. There is a common point uniting the testimonies of both Joy and AAA; that is, that both referred to the day when AAAs short got hooked to the fence. Moreover, assuming arguendo that the variance between the testimonies of AAA and Joy as to the time they were together at the mango orchard is an indicia that AAA may have been raped by appellant on a different day, not on January 5, 2000, to still impute to appellant the crime of rape is not plausible. The Court is not unmindful of the rule that the exact date of the commission of the crime of rape is extraneous to and is not an element of the offense, such that any inconsistency or discrepancy as to the same is irrelevant and is not to be taken as a ground for acquittal.[82] Such, however, finds no application to the case at bar. AAA and Joy may differ in their testimonies as to the time they were at the mango orchard, but there could be no mistake as to the actual day when AAA was
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supposed to have been raped; it was the day when AAA's shorts got hooked to the fence at the mango orchard. The RTC and CA unwittingly brushed aside the testimonies of Juanita and Joy and gave full credence to the testimony of AAA. As a matter of fact, their probative weight were not considered or evaluated in the text of the lower courts' decision. As mentioned earlier, the prosecution could have rebutted the testimony of Joy, but for some reason or oversight, it chose not to do so. Consequently, in view of the unrebutted testimony of Joy, appellants defense of alibi and denial assumes considerable weight. It is at this point that the issue as to the time that the rape was committed plays a significant factor in determining the guilt or innocence of appellant. This Court must therefore address this issue for a thorough evaluation of the case. The Court takes note that Macaraeg, the caretaker of the orchard, testified that appellant's house was only a minute away from the orchard if one would run. As earlier mentioned, CCC testified that appellant left CCC's house at 4:00 p.m. on January 5, 2000, contrary to the testimony of Albina that she and appellant left at 5:00 p.m. AAA declared that the alleged rape took place after 5:00 p.m.
Q. A. Q. A. Q. A. So at 4:00 o'clock you were at the house and you left and proceeded at the back of the school to pick mangoes? Yes, sir. That was already around 5:00 o'clock? Yes, sir. I asked my companion Joy. What did you ask of her? She was wearing a wristwatch and I asked Joy what time is it and when I looked at her wristwatch, it was already 5:00 o'clock, sir.[83] (Emphasis Supplied)

Moreover, on cross-examination, AAA gave the following statements, to wit:

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Q. A. Q. A.

So it is almost 5:00 p.m. When you went to the mango orchard with Joy Agbuya and Ricky Agbuya? What I only know was that, it was already about 5:00 o'clock then, sir. How many minutes did you consume in getting mangoes? When we went there, we were not able to get some mango and when I asked sir what was the time then and when I looked at the wristwatch, it was already 5:00 o'clock, sir.[84] (Emphasis Supplied)

The testimony of Joy makes it impossible for AAA to have been raped at 4:00 p.m. or 5:00 p.m. or any time thereafter since it was not rebutted that Joy never left complainant at the mango orchard even when AAA's shorts got hooked to the fence, and both went home together without any other untoward incident. This Court is not unmindful of the doctrine that for alibi to succeed as a defense, appellant must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime.[85] In the case at bar, although the orchard is just a minute away from the house of appellant, in view of the testimony of the hilot Juanita that appellant was with her from 5:10 p.m. and never left his house from that time until his wife gave birth at 3:00 a.m.; and the testimony of Joy that she never left AAA in the orchard and that they both went home together, the defense of alibi assumes significance or strength when it is amply corroborated by a credible witness. [86] Thus, the Court finds that appellant's alibi is substantiated by clear and convincing evidence. What needs to be stressed is that a conviction in a criminal case must be supported by proof beyond reasonable doubt -- moral certainty that the accused is guilty.[87] The conflicting testimonies of Joy and complainant, and the testimony of Juanita that corroborated appellants alibi preclude the Court from convicting appellant of rape with moral certainty. Faced with two conflicting versions, the Court is guided by the equipoise rule.[88] Thus, where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence
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of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[89] The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused.[90] It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion.[91] What is required of it is to justify the conviction of the accused with moral certainty.[92] Upon the prosecution's failure to meet this test, acquittal becomes the constitutional duty of the Court, lest its mind be tortured with the thought that it has imprisoned an innocent man for the rest of his life.[93] WHEREFORE, the Decision dated November 18, 2005 of the Court of Appeals in CA-G.R. CR H. C. No. 00763 is REVERSED and SET ASIDE. Larry Erguiza isACQUITTED and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

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CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MINITA V. CHICO-NAZARIO Associate Justice

RUBEN T. REYES Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

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* [1]

[2] [3]

[4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18]

[19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38]

In lieu of Justice Antonio Eduardo B. Nachura, per Raffle dated October 13, 2008. Penned by Associate Justice Regalado E. Maambong with the concurrence of Associate Justice Rodrigo V. Cosico and Associate Justice Lucenito N. Tagle; rollo pp. 3-19. CA rollo, pp. 23-28. The Supreme Court took note of the legal mandate on the utmost confidentiality of proceedings involving violence against women and children set forth in Sec. 29 of Republic Act No. 7610, otherwise known as, Anti-Violence Against Women and Their Children Act of 2004; and Sec. 40 of A.M. No. 04-1011-SC, known as, Rule on Violence Against Women and Their Children effective November 15, 2004. Hence, in People v. San Antonio, Jr., G.R. No. 176633, September 5, 2007, 532 SCRA 411, citing the case of People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, this Court resolved to withhold the real name of the victim-survivor and to use fictitious initials instead to represent her in its decisions. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well as those of their immediate family or household members, shall not be disclosed. The names of such victims, and their immediate family members other than the accused, shall appear as AAA, BBB, CCC, and so on. Addresses shall appear as xxx as in No. xxx Street, xxx District, City of x x x. CA rollo, p. 6. Records, p. 30. CA rollo, p. 69. TSN, July 12, 2000, pp. 3-5. TSN, July 12, 2000, pp. 6-7; TSN, July, 13, 2000, p.14. TSN, July 12, 2000, pp. 8-9; TSN, July 13, 2000, pp. 14-15. TSN, July 12, 2000, pp. 9-11; TSN July 19, 2000, pp. 4-5. TSN, July 12, 2000, pp. 11-12. TSN, July 12, 2000, p. 13. TSN, July 26, 2000, p. 5 TSN, July 12, 2000, p. 15 TSN, July 12, 2000, pp. 16-17. TSN, July 12, 2000, p.18. TSN, July 25, 2000, p.6. CCC's daughter DDD (from his first marriage) got married to Larry Erguiza's brother Carlito on January 20, 2000, fifteen days after the rape incident. TSN, September 12, 2000, pp. 4-5. TSN, August 28, 2000, pp. 3-7. TSN, August 3, 2000, pp. 4-5; TSN, August 22, 2000, pp. 3-15. TSN, August 1, 2000, p. 9. TSN, August 2, 2000, pp. 8 and 11. Rollo, p. 18. CA rollo, pp. 43-62. CA rollo, p. 45. People v. Gonzales, G.R. No. 141599, June 29, 2004, 433 SCRA 102, 108. Rollo, pp. 15. People v. Palma, G.R. Nos. 130206-08, June 17, 1999, 308 SCRA 466. People v. Domogoy, G.R. No. 116738, March 22, 1999, 305 SCRA 75. People v. Medel, G.R. No. 123803, February 26, 1998, 286 SCRA 567. People v. Banela, G.R. No. 124973, January 18, 1999, 301 SCRA 84, 87. TSN, July 25, 2000, p. 6. TSN, July 25, 2000, p. 11. TSN, July 26, 2000, p. 5. TSN, July 26, 2000, p. 7. TSN, July 12, 2000, pp. 16-17. TSN, July 12, 2000, p. 18.

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[39] [40] [41] [42] [43] [44] [45] [46] [47] [48] [49] [50] [51] [52] [53] [54] [55] [56] [57] [58] [59] [60]

[61] [62] [63]

[64] [65] [66] [67] [68] [69] [70] [71] [72] [73] [74] [75] [76] [77] [78] [79] [80] [81] [82] [83] [84] [85] [86] [87] [88] [89] [90] [91] [92]

TSN, July, 27, 2000, p. 9. TSN, September 12, 2000, p. 10. TSN, September 12, 2000, p. 10. TSN, August 2, 2000. p. 8. TSN, August 2, 2000, pp. 6-7. TSN, August 2, 2000, p. 11. TSN, August 2, 2000, p. 8. TSN, August 2, 2000, p. 8. TSN, August 2, 2000, p. 9. TSN, August 2, 2000, p. 9. TSN, August 22, 2000, pp. 11-12. TSN, August 22, 2000, p. 12. TSN, August 22, 2000, p. 13. TSN, August 22, 2000, p. 13. TSN, August 22, 2000, p. 14. RULES OF COURT, Rule 130, Section 24. TSN, July 27, 2000, p. 9. TSN, September 12, 2000, p. 10. TSN, August 22, 2000, pp. 13-15. TSN, September 7, 2000, pp. 13-14. Wigmore, RULES ON EVIDENCE, Section 1061, p. 30. People v. Manzano, No. L- 38449, November 25, 1982, 118 SCRA 705; People v. Manuel, G.R. No. 57061, May 9, 1988, 161 SCRA 235, 244-245. People v. Bangcado, G.R. No. 132330, November 28, 2000, 346 SCRA 189. People v. Godoy, G.R. Nos. 115908-09, December 6, 1995, 250 SCRA 676. See People v. Martinez, G.R. No. 124892, January 30, 2001, 350 SCRA 537, People v. Abendan, G.R. Nos. 132026-27, June 28, 2001, 360 SCRA 106. TSN, August 3, 2000, p. 4. TSN, August 3, 2000, p. 5. TSN, August 3, 2000, p. 7. TSN, July 12, 2000, pp. 5-12. TSN, August 1, 2000, pp. 8-9. TSN, August 1, 2000, p.10. TSN, August 1, 2000, p. 19. TSN, August 2, 2000, p. 2. TSN, August 2, 2000, p. 3. TSN, July 12, 2000, pp. 8-9. TSN, August 1, 2000, p.10. TSN, August 1, 2000, p. 13. People v. Ruedas, G.R.No. 83372, February 27, 1991, 194 SCRA 553. TSN, September 12, 2000, pp. 2-16. TSN, September 12, 2000, p. 10. TSN, September 12, 2000, p. 10. TSN, August 1, 2000, pp. 16-17. TSN, July 12, 2000. p. 5. People v. Lantano, G.R. No 176734, January 28, 2008, 542 SCRA 640. TSN, July 12, 2000, pp. 5-6. TSN, July 13, 2000, p. 13. People v. Obrique, G.R. No 146859, January 20, 2004, 420 SCRA 304. People v. Amestuzo, G.R. No. 104383, July 12, 2001, 361 SCRA 184. People v. Bautista, G.R. No. 123557, February 4, 2002, 376 SCRA 18. Tin v. People, G.R. No. 126480, August 10, 2001, 362 SCRA 594. People v. Agustin, 316 Phil. 828, 832 (1995). People v. Lagmay, G.R. No. 125310, April 21, 1999, 306 SCRA 157. People v. Fernandez, G.R. Nos. 139341-45, July 25, 2002, 385 SCRA 224, 232. RULES OF COURT, Rule 133, Section 2.

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[93]

People v. Aballe, G.R. No. 133997, May 17, 2001, 357 SCRA 802.

3. Ubales vs. People, G.r. no. 175692, October 29, 2008

THIRD DIVISION

ANGEL UBALES y VELEZ, Petitioner,

G.R. No. 175692 Present: YNARES-SANTIAGO, J., Chairperson, CARPIO,* AZCUNA,** CHICO-NAZARIO, and BRION,*** JJ.

- versus -

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. October 29, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

While the correctness of a Decision is not impaired solely by the fact that the writer took over from a colleague who had earlier presided at trial, it is the bounden duty of appellate courts to even more closely examine the testimonies of the witnesses whose deportment the writer was not able to observe.
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This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision[1] of the Court of Appeals in CA-G.R. CR No. 28813 dated 30 November 2006. The Court of Appeals affirmed with modification the Decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 01-196713 finding petitioner Angel Ubales y Velez (Ubales) guilty of the crime of homicide. On 30 October 2001, the Assistant City Prosecutor filed an Information against petitioner Ubales for the crime of homicide allegedly committed as follows:
That on or about October 17, 2001, in the City of Manila, Philippines, the said accused, armed with a .38 caliber paltik revolver marked Smith and Wesson, did then and there willfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon one MARK TANGLAW SANTOS y ORPIANA by then and there shooting the latter on the head, thereby inflicting upon him mortal gun shot wound which was the direct and immediate cause of his death thereafter.[2]

On the same date, the Executive Judge issued an Order of Release in view of a personal bail bond filed by Ubales. On 19 November 2001, petitioner Ubales, assisted by counsel, pleaded not guilty of the offense charged. The prosecution presented as witnesses Eduardo Galvan, SPO1 Eduardo E. Ko, Laila Cherry Cruz, SPO2 Rosales M. Fernandez, P/Chief Inspector Carlos G. Mendez, and Efigenia Santos. The prosecution also presented as evidence Medico Legal Report No. W-737-2001 and the receipt of the funeral expenses incurred. Laila Cherry Cruz, the sister of Mark Santos, testified that on 16 October 2001, at about 8 p.m., petitioner Ubales and the deceased Mark Santos (Mark) were drinking liquor in front of the victims house at 4334 Interior 5 Albina Street, Sta. Mesa, Manila. They were with a group which included a certain Jon-Jon, Solo Perez, and Jojo Santos. In the course of their carousal, Ubales and Mark engaged in an argument about the former calling the latters cousin a homosexual. Mark told Ubales not to meddle because he (Ubales) did not know what was happening within his (Marks) family. The argument was soon apparently resolved, with Ubales patting the shoulders of Mark.
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The carousal ended at 1 a.m. the following day. Mark and Ubales went inside the house. Ubales asked permission from Laila Cruz to use their comfort room. Before Ubales went inside the comfort room, Laila Cruz saw Ubales place his gun with black stripes on top of the dining table. Mark asked permission from his mother to bring Ubales to his house in J.P. Laurel Street and also asked for money so that they could eat lugaw on their way there. Mark and Ubales then left. Eduardo Galvan (Galvan), a 65-year old balut vendor and the best friend of the deceased Mark Santos, testified that at 3 a.m. in the morning of 17 October 2001, while he was selling balut near the Malacaang area, he saw Mark and Ubales quarreling around a meter away from him. The argument lasted for about three minutes, culminating with Ubales taking out his gun and shooting Mark on the head. Galvan is certain about this, as he was still only one meter away from Mark and Ubales when the former shot the latter, and the place was wellilluminated. When Mark fell, Ubales ran towards Atienza Street. Galvan also testified that he was an acquaintance of Ubales for about five months prior to the incident. SPO1 Eduardo Ko testified that he was assigned as the night-shift investigator of the Homicide Section of the Western Police District (WPD) when he received a report at around 3:55 a.m. of 17 October 2001 that a body was found at Jose P. Laurel St. corner Matienza St., San Miguel, Manila. Upon arrival thereat, he, together with SPO1 Benito Cabatbat, saw Marks body, which had no injury other than a gunshot wound on the forehead, lying on its left side. The gunshot appeared to have been fired at close range because it had powder burns around the entry of the wound. They proceeded to interview people at the scene, during which time a barangay official named Abraham Sison turned over a .38 Caliber snub nose paltik revolver with three live bullets and one empty shell. The gun was recovered several meters away from where the victims body was found. SPO2 Rosales Fernandez testified that at around 3 p.m. of 25 October 2001, while he was at home, Laila Cruz approached him and asked for his assistance in apprehending Ubales who was spotted near the Malacaang area. SPO2 Fernandez reported to the Homicide Section of the WPD that a murder suspect was seen in the vicinity of Malacaang. SPO2 Fernandez and Laila Cruz then proceeded to J. P. Laurel Street, where Laila Cruz pointed at the person she identified to be the one who killed her brother. SPO2 Fernandez, introducing himself as a police officer, approached Ubales. SPO2 Fernandez found out that Ubales was a former member of the Philippine National Police (PNP) Special Action Force. He apprised Ubales of his rights and invited him to go to the PNP Field Force for proper
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investigation. Ubales told SPO2 Fernandez that he would voluntarily join him to prove to him that he was not in hiding. Before going to the PNP Field Force, SPO2 Fernandez and Ubales went to the Philippine General Hospital in order to have Ubales undergo a medical examination. SPO2 Fernandez and Ubales proceeded to the PNP Malacaang Field Force to coordinate with them, since the latter made the initial investigation of the shooting incident. At the Malacaang Field Force, Ubales was brought to the Homicide Section for investigation and description. SPO2 Fernandez admitted during cross examination that the arrest of Ubales came before witness Galvan appeared and executed a sworn statement. P/Chief Inspector Carlos G. Mendez, a forensic firearm examiner, testified that on 5 November 2001, he received a .38 caliber paltik revolver with three bullets and one empty shell from Desk Officer PO2 Lopez. He examined it by firing the same. The gun was marked as Exhibit H. Laila Cruz then testified that said gun was the same one she saw Mark place on the dining table the night before her brother was killed. The prosecution and the defense stipulated that the cause of death of Mark was a gunshot wound, frontal region, measuring 0.5 x 0.4 cm, 3 cm right of the anterior midline, with a uniform collar measuring 0.2 and an area of tattooing measuring 6x5 cm, directed posteriorward, downward and medialward, fracturing the frontal bone, lacerating both cerebral hemisphere of the brain, with a deformed slug recovered at the cerebellum as stated in the Crime Laboratory report prepared and signed by Dr. Romeo Salen, the medico-legal officer of OIC WPDCLO, documented as Medico-Legal Report No. W-737-2001. After the prosecution rested its case, Ubales filed a Motion to File Demurrer to Evidence on the ground that the prosecution presented insufficient evidence to destroy the presumption of innocence of the accused. The trial court denied the Motion and accordingly set the hearing for presentation of the evidence of the defense. Ubales testified that on 16 October 2001, at around 6 or 7 p.m., he went to the home of his friend Guido Almosera on Uli-Uli Street, where he saw Joseph Karunungan, Rico Sison, Eric Marquez and Henry Ponce. The group was initially engaged in light conversation until Guido Almosera brought out some liquor while they were playing the guitar. Ubales stayed with the group until 10 p.m., when he left for Sta. Mesa to go to the house of a certain Alex to meet a man named Boy. He arrived at Alexs house at around 11 p.m., but left
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immediately when he learned that Boy was already asleep. Along the way, he saw Mark who had been having a drinking spree with other persons. He decided to join the group for a while before returning home. At around 12 midnight, Ubales bade leave to go home. Mark went along with him to the place where he could get a ride home. They parted ways and Ubales got on a jeep which he rode to J.P. Laurel Street. He stopped by a 7-Eleven convenience store and bought something to eat before proceeding home. On the way home, Ubales saw the group of Guido Almosera still having drinks. He decided to join them again until around 1 a.m. of 17 October 2001. Ubales testified that although he is a former policeman, he no longer had a gun and that his sidearm is in the custody of the WPD. He stated further that he was arrested without a warrant. The defense also presented the testimonies of Guido Almosera and Henry Norman Ponce. Both witnesses essentially corroborated the testimony of Ubales that he was with their group from 7 p.m. to 10 p.m. on 16 October 2001 and then from around 12:30 a.m. to 2 a.m. of 17 October 2001. Ubales sister, Irene Riparip, testified that her brother was at their home until around 7:00 p.m. on 16 October 2001, and he returned around 1 a.m. in the morning of 17 October 2001. She stated that Ubales did not leave the house after he returned because she stayed awake until 4 a.m. On 20 July 2004, the Regional Trial Court rendered its Decision finding Angel Ubales guilty of the crime of homicide, as follows:
WHEREFORE, the prosecution having established the guilt of the accused beyond reasonable doubt, judgment is hereby rendered CONVICTING the accused as principal in the crime of homicide and he is sentenced to suffer the indeterminate penalty of ten (10) years of Prision Mayor as minimum, to fourteen (14) years, eight (8) months and one (1) day medium of Reclusion Temporal, as maximum. The accused is also ordered to pay the heirs of the offended party the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P8,000.00 as actual damages.[3]

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On 28 July 2004, the trial court issued an Order giving provisional liberty to Ubales provided the bonding company agrees to the extension of the bond. On 30 July 2004, the bonding company manifested its assent to continue its undertaking as bondsman for Ubales during the pendency of his appeal. Ubales appealed to the Court of Appeals. The case was docketed thereon as CA-G.R. CR No. 28813. On 30 November 2006, the Court of Appeals rendered its Decision affirming with modification the Decision of the Regional Trial Court, as follows:
WHEREFORE, premises considered, the Decision of the Regional Trial Court of Manila, Branch 33 in Criminal Case No. 01-196713 finding the accusedappellant Angel Ubales y Velez guilty of the crime of Homicide is AFFIRMED with MODIFICATION. The heirs of the victim Mark Tanglaw Santos are further awarded the amount of P25,000.00 as temperate damages.[4]

Hence, this Petition, where Ubales presents the following issues for our consideration:
I WHETHER OR NOT THE EVIDENCE FOR THE PROSECUTION PROVES THAT PETITIONER COMMITTED THE CRIME CHARGED BEYOND REASONABLE DOUBT. II WHETHER OR NOT THE ADDITIONAL AWARD OF TWENTY-FIVE THOUSAND PESOS (PHP25,000.00) AS TEMPERATE DAMAGES IS IN ACCORD WITH LAW AND THE RELEVANT DECISIONS OF THE HONORABLE SUPREME COURT.[5]

Petitioner Ubales claims that the prosecution has failed to prove his guilt beyond reasonable doubt, and the Court of Appeals had erred in giving credence to Galvans testimony which allegedly defies common experience. After a meticulous review of the records of the case at bar, we are constrained to agree with petitioner Ubales. Petitioner Ubales was arrested on 25 October 2001, eight days after Marks body was found. Ubales arrest was made by SPO2 Rosales Fernandez at the insistence of Laila Cruz, who approached SPO2 Fernandez for assistance in apprehending Ubales. Up to the time of this arrest, the only piece of evidence which remotely links Ubales to the killing of Mark Santos is the recovery of a gun resembling a gun allegedly seen by Laila Cruz in his (Ubales) possession the night
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Mark was killed. This gun found several meters away from where Marks body was found but was never identified as the gun where the bullet that killed Mark came from. All that the forensic firearm examiner testified to about this gun was that this is a .38 caliber paltik revolver with three bullets and one empty shell. The slug found in the head of Mark was never subjected to a ballistic examination, either. It was at this point, when Angel Ubales had already been arrested despite the lack of evidence clearly linking him to the crime, that Mark Santos best friend, balut vendor Eduardo Galvan, appeared and executed a sworn statement that he was an eyewitness to the killing of Mark Santos. He proceeded to identify Angel Ubales without the benefit of a police line-up. Thereafter, he became the star witness in the prosecution of Angel Ubales. In order to illuminate the analysis of Eduardo Galvans testimony against Angel Ubales, we reproduce its relevant portions as follows:
Q: A: Q: A: Q: A: On October 17, 2001 at about 3:00 in the morning, did you sell your balut? Yes, sir. At that time in what place were you? Near Malacaang. What is the name of the street? I forgot the name of the street.

ATTY. MORALES: Q: Cant you recall the name of the street? WITNESS: A: Yes, sir. Q: A: Q: A: Q: A: Q:
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You said the street near Malacaang? Yes, sir. Now while selling balut near an incident? Yes, sir. What is that incident? A quarrel. Who was quarrelling at that time? Malacaang, have you witnessed

A: Q: A: Q: A: Q: A: Q: A:

Angel. And who? Mark. What is the surname of Mark? I forgot the surname but the name is Mark. How about Angel, what is the surname of Angel? I cannot recall the surname. If Angel is inside the courtroom will you please go down and him and point to him? (witness tap shoulder of a person who when asked his name Angel Ubales) approach answered

Q: A: Q: A: Q: A: Q: A:

Now you said there was a quarrel between Angel and Mark. Where were you when you saw them quarreling, how far were you from them? About one (1) meter more or less. How long did they quarrel? About three (3) minutes. After three (3) minutes what happened? Angel suddenly drew something. What is that something that Angel drew? Gun, sir, a shining gun.

ATTY. GARENA: May we put on record that witness is demonstrating his hand gun pointing upward. ATTY. MORALES: Q: From where did he pull the gun? WITNESS: A: From his right waist and shot. Q: After Angel pulled out a gun what did he do?

pulling a

COURT: He said he fired. ATTY. MORALES: What did he do with the gun when he pulled it out from his waist?
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A: Q: A: Q: A: Q: A: Q: A:

Shot and hit the victim. Whom he shot? Mark. What part of the body was hit by the bullet? Forehead. How many times was Mark shot by Ubales? Only once. What happened to Mark after he was shot? He fell to the ground.

ATTY. MORALES: Q: How far were you from these two (2) people Angel and Mark when Angel shot Mark? WITNESS: A: Only one (1) meter away, I was near the flower box. Q: A: Q: A: Q: A: Q: A: Q: A: You said that it was 3:00 oclock in the morning when the incident happened? Yes, sir. And what is the condition of the place, what (sic) it dark or bright? It was lighted. Why (sic) is the place? There was a light there. What kind of light was there? There is an electric bulb. How far were these two people referring Angel Ubales when Angel Ubales shot Mark? About one (1) meter away. to Mark and

COURT: Q: Facing each other? WITNESS: A: Yes, Your Honor. ATTY. MORALES: Q: How about the light, how far is the light from Mark Ubales?
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A: Q: A:

About one (1) arm length. You said that after Ubales shot Mark he fell down, what happened to Ubales? He ran away.[6] (Emphasis supplied.)

In the assessment of the testimonies of witnesses, this Court is guided by the rule that for evidence to be believed, it must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of juridical cognizance.[7] Since the alleged eyewitness was the best friend and acquaintance of the victim since childhood, Galvans testimony pointing to the accused as the perpetrator must be subjected to a rigid test which should demonstrate beyond cavil his truthfulness, honesty and rectitude as actual eyewitness to the perpetration of the criminal act.[8] Galvans account is nowhere probable under the circumstances. As argued by the defense, there can be only two ways by which Galvan could have witnessed the altercation based on his testimony that he saw the whole thing within one meter from him. First, Galvan walked towards the protagonists and stopped within one meter from them during their three minutes of altercation. Second, Galvan was already at the place where he saw the protagonists, who walked towards him, and stopped within one meter from him to engage in their quarrel. Upon further inquiry from Judge Romulo Lopez, the judge who had heard the testimony of Galvan, but not the one who penned the RTC Decision, we learned from Galvan that it was the first of the two options: he was walking from the checkpoint at Malacaang towards Legarda Street before the incident. At the onset, we can easily see that Galvans version of the facts raises very serious questions. Why would Eduardo Galvan, a 65-year old man, stop one meter away from two quarreling men at the very dangerous hour of 3 a.m. and stay there to watch for three minutes as if what he was witnessing is a movie scene? How come neither Angel Ubales, nor Galvans best friend, Mark, acknowledge Galvans presence for the entire three minutes that they were all were barely one meter from each other, and in a well-illuminated place at that? After Angel Ubales ran away following his shooting of Mark, why did Galvan simply leave his bloodied best
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friend to die on the pavement? We should take note that Eduardo Galvan could not claim to be afraid at this point, as he had already seen Angel Ubales flee. Furthermore, since it took an hour after the killing before the presence of the dead body of Mark Santos was reported to the police, it can fairly be assumed that if Galvans version of the facts were true, there were no other people at the scene of the crime. Why was Galvan selling balut at a place with no pedestrian traffic at 3 a.m.? In reading Eduardo Galvans testimony, it is hard to ignore how he seemed not to remember a lot of things about the places involved in his testimony:
COURT: Q: A: How far is the place of the incident from the house of Mark? I cannot estimate how far is the place of the incident and the house of Mark. When you sell ballot, what time do you start? From 8:00 oclock in the evening up to 3:00 oclock in the morning. How do you conduct your vending of balot? I sell. Where do you get your balot? It was only delivered to me. Where? In the house of my friend. Where is that house of your friend located? Palawan St. Where is that Palawan St. Balik Balik. From Palawan St. to Balic-balic, you start selling from 8:00 oclock in the evening, how many balot have you sold? About thirty (30) pieces. From your house how far was that place of the incident? I cannot estimate.

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

ATTY. GARENA: How many blocks from your house?

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A: Q: A:

I cannot estimate, I just walk and walk. On October 17, 2001 when was the first time on October 17, 2001 you saw Mark the victim? In the evening.

COURT What time? A: About 3:00 oclock in the morning. ATTY. GARENA: That was the first time you saw Mark? A: 3:00 oclock in the morning. Q: A: Q: A: Q: A: From where did you get the balot that night? I do not know the owner of the balot, it was just delivered to me. From your friend? Yes, sir. What is the name of your friend? I cannot remember, sir.

COURT: Do you remember the place where this friend of yours resides when you took the balot that night? A: I cannot remember. Q: A: Q: A: Q: A: Q: A: Q: A: Q:
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How many balot? 40 pieces of balot. And you started selling from 8:00 oclock in the evening to 3:00 oclock in the morning? Yes, your Honor. How many pieces have you sold when the incident occurred? About 15 pieces. Describe the vicinity of the place where you took the balot? I cannot remember. Prior to that night when you took 40 pieces of balot, you have been frequenting the place because you used to get your balot there? The balot was delivered to me. By your friend?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q:
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Yes, your Honor. So you are changing your previous statement that you took the balot from the place of your friend? When I went to the place. Since when you started selling balot which you get from that place? About one year. Now Mr. Witness, you said you know Mark the victim since childhood, is that correct? Yes, sir. How about the parents of Mark, do you know them? Yes, sir. How about the sisters and brothers, do you know them? Yes, sir. What is the name of Marks father? I dont know but I know his face. How about the mother? Also I know her by face. How many brothers has this Mark? I do not know Your Honor. You also do not know if he has sister? He has sister how many I do not know Your Honor. When you know Mark since childhood, do you know if he is attending school? Yes, Your Honor. Where? I do not know the school. You also do not know what he finished? I do not know. Mr. Witness, on October 17, 2001 at about 3:30 in the morning prior to that time where have you been? I came from Legarda. Did you pass by Mendiola?

A: Q: A: Q: A: Q: A: Q: A: Q:

Yes, sir. In Mendiola that is the time you are vending balot? Yes, sir. You usually shout balot? Yes, sir. That is from Mendiola to Malacaang? Yes, sir. What time you were in Mendiola at that time? I cannot tell the time I was just walking. Were there still so many people in Mendiola at that time?

COURT He do not know the exact place. ATTY. GERANA: That is why I am asking leading question to the witness Your Honor. COURT: Do you know the gate of Malacaang? A: Yes, Your Honor. Q: A: Q: A: Q: A: Q: A: What gate is nearer to the place where Mark was shot? I cannot remember the gate. There are schools along Mendiola proceeding towards gate 1 or gate (sic). Which school is near to the place where Mark was shot? I cannot remember because it was night time. But you used to sell balot along Mendiola going to the gate of Malacaang? Yes, Your Honor. So you are familiar with the schools along Mendiola? I do not know the schools.

ATTY. GERENA: Do you know St. Jude Church? A: No, sir. Q: You also do not know the hospital in front or opposite St. Jude church?

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A: Q: A: Q: A:

No, sir. Facing Malacaang, do you know the first street by the right side facing Malacaang? Gate 1. I am asking you facing the gate of Malacaang, do you know the first street in the right when you are standing at Mendiola? No, sir.[9]

The original judge himself, Judge Romulo Lopez, does not seem impressed with the testimony of Eduardo Galvan. Judge Romulo Lopez asked several clarificatory questions in order to test Galvans credibility, and Galvan failed the test miserably. Eduardo Galvan repeatedly changed his answer on whether he told anyone about the incident before he executed his statement with the police station:
COURT: Q: Under what circumstance were you able or you were make to execute your statement? I went to the police station myself. What what (sic) reason do you have when you voluntarily went to the police station? Because I was bothered by my conscience. That was the first time you narrated? Yes, Your Honor. So you are impressing the Court that from the time you saw Mark due to the shooting fall to the ground you did not relay the story you saw to any person? None, Your Honor. Despite the fact that you were neighbor of Mark and his family you did not relay the incident to Marks parents? On the following day I narrated it to them the incident.

A: Q:

A: Q: A: Q:

A: Q:

A:

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Q:

The following day you were not brought by Marks parents to the police station to give your statement? No, Your Honor. There was a wake following that in the residence of Mark? No, Your Honor. Where was the wake held? The wake was held at the Arlington. Did you attend the wake? Yes, Your Honor. Did you talk to a member of Marks family in the wake? No, Your Honor.[10]

A: Q: A: Q: A: Q: A: Q: A:

Upon reading Galvans testimony, we do not find the same sufficient to prove Ubales guilt beyond any reasonable doubt. While the correctness of a Decision is not impaired solely by the fact that the writer took over from a colleague who had earlier presided at trial, it is the bounden duty of appellate courts to even more closely examine the testimonies of the witnesses whose deportment the writer was not able to observe. The prosecution seeks to establish Ubales motive in killing Mark by the alleged altercation between the two during their drinking spree. However, as testified by Laila Cruz herself, the argument was soon apparently resolved, with Ubales patting the shoulders of Mark Santos. Furthermore, in both versions of the facts, Mark had been gracious enough to accompany Ubales after their carousal, clearly showing that whatever misunderstanding they had during their drinking spree was already resolved. If Galvans version of the facts is to be believed, Ubales and Mark had even been together for a several hours more before Mark was killed. We have ruled that though the general rule is that motive is not essential to a conviction especially where the identity of the assailant is duly established by other competent evidence or is not disputed, the absence of such motive is important in ascertaining the truth as between two antagonistic theories or versions of the killing.[11] Proof as to motive is essential when the evidence on the commission of the crime is purely
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circumstantial or inconclusive.[12] Verily, the dominating rule is that, with respect to the credibility of witnesses, this Court has always accorded the highest degree of respect to the findings of the trial court, unless there is proof of misappreciation of evidence which is precisely the situation in the case at bar. We also take note of petitioner Ubales stance when he was confronted by Laila Cruz and SPO2 Fernandez. Ubales told SPO2 Fernandez that he would voluntarily join him to prove to him that he was not in hiding. Ubales then cooperated fully with SPO2 Fernandez, allowing himself to undergo a medical examination, which apparently yielded nothing as the findings thereof was not presented as evidence, and going with the SPO2 Fernandez to the PNP Malacaang Field Force. Flight evidences guilt and guilty conscience: the wicked flee, even when no man pursues, but the righteous stand fast as bold as a lion. [13] In all, we find it hard to lend credence to the testimony of the lone alleged eyewitness. We have said that it is better to acquit ten guilty individuals than to convict one innocent person.[14] Every circumstance against guilt and in favor of innocence must be considered.[15] Where the evidence admits of two interpretations, one of which is consistent with guilt, and the other with innocence, the accused must be given the benefit of doubt and should be acquitted.[16] In the instant case, while it is possible that the accused has committed the crime, there is also the possibility, based on the evidence presented, that he has not. He should be deemed to have not for failure to meet the test of moral certainty. Finally, an accused should not be convicted by reason of the weakness of his alibi. It is fundamental that the prosecution must prove its case beyond reasonable doubt and must not rely on the weakness of the evidence of the defense.[17] Since there are very serious doubts in the testimony of the lone eyewitness to the killing of Mark Santos, we have no choice but to acquit petitioner Angel Ubales on the ground of reasonable doubt. Having ruled that the prosecution has failed to prove the guilt of petitioner beyond a reasonable doubt, the second issue, which relates to the temperate damages which petitioner would have been liable for had he been found guilty, is now mooted. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 28813 dated 30 November 2006 is REVERSED and SET ASIDE. Petitioner Angel Ubales y Velez is hereby ACQUITTED of the crime of homicide on account of reasonable doubt. SO ORDERED.
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MINITA V. CHICO-NAZARIO Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

ANTONIO T. CARPIO Associate Justice

ADOLFO S. AZCUNA Associate Justice

ARTURO D. BRION Associate Justice

ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

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CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Acting Chief Justice

**

***

Per Special Order No. 531, dated 20 October 2008, signed by Acting Chief Justice Leonardo A. Quisumbing, designating Associate Justice Antonio T. Carpio to replace Associate Justice Ma. Alicia Austria-Martinez, who is on leave. Per Special Order No. 521, dated 29 September 2008, signed by Chief Justice Reynato S. Puno, designating Associate Justice Adolfo S. Azcuna to replace Associate Justice Ruben T. Reyes, who is on official leave. Associate Justice Arturo D. Brion was designated to sit as additional member replacing Associate Justice Antonio Eduardo B. Nachura per Raffle dated 22 October 2008. Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Andres Reyes, Jr. and Hakim S. Abdulwahid concurring. Rollo, pp. 18-40. Records, p. 1. Id. at 45. Id. at 39. Id. at 96. TSN, 22 January 2002, pp. 4-9. People v. Mala, 458 Phil. 180, 193 (2003). People v. Delmendo, 196 Phil. 121, 140 (198). TSN, 22 January 2002, pp. 14-22. Id. at 23-25. People v. Boholst- Caballero, 158 Phil. 827, 840 (1974). People v. Aniel, 185 Phil. 122, 132-133 (1980). People v. Acosta, Sr., 444 Phil. 385, 415 (2003), citing People v. Rabanal, 402 Phil. 709, 717 (2001); People v. Gregorio, 325 Phil. 689, 706 (1996). Reyes v. Court of Appeals, 335 Phil. 206, 217 (1997). People v. Clores, 210 Phil. 51, 59 (1983). People v. Mijares, 358 Phil. 154, 166 (1998). People v. Tabayoyong, 192 Phil. 234, 256-257 (1981).

[1]

B.
[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13]

[14] [15] [16] [17]

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EX POST FACTO LAW

1. Nasi-Villar vs. People, G.r. 176169, November 14, 2008
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 176169 November 14, 2008

ROSARIO NASI-VILLAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION TINGA, J.: This is a Petition for Review1 under Rule 45 of the Rules of Court filed by petitioner Rosario Nasi-Villar assailing the Decision2 dated 27 June 2005 and Resolution3 dated 28 November 2006 of the Court of Appeals. This case originated from an Information4 for Illegal Recruitment as defined under Sections 6 and 7 of Republic Act (R.A.) No. 80425 filed by the Office of the Provincial Prosecutor of Davao del Sur on 5 October 1998 for acts committed by petitioner and one Dolores Placa in or about January 1993. The Information reads: That on [sic] or about the month of [January 1993], in the Municipality of Sta. Cruz, Province of Davao del Sur, Philippines and within the jurisdiction of the Honorable Court, the aforenamed accused, conspiring together, confederating with and mutually helping one another through fraudulent representation and deceitful machination, did then and there [willfully], unlawfully and feloniously recruit Nila Panilag for employment abroad[,] demand and receive the amount ofP6,500.00 Philippine Currency [sic] as placement fee[,] the said accused being a non-licensee or non-holder of authority to engage in the recruitment of workers abroad to the damage and prejudice of the herein offended party.
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CONTRARY TO LAW.6 On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br. 18, Digos City, Davao del Sur found the evidence presented by the prosecution to be more credible than that presented by the defense and thus held petitioner liable for the offense of illegal recruitment under the Labor Code, as amended.7 The dispositive portion of the decision reads: WHEREFORE, premises considered, the Court hereby finds accused ROSARIO NASI-VILLAR GUILTY BEYOND REASONABLE DOUBT of Illegal Recruitment and, in accordance with the penalty set forth under the Labor Code, as amended, said accused is hereby sentenced to an indeterminate penalty ranging from FOUR YEARS as minimum to FIVE YEARS as maximum. On the civil aspect of the case, there being no substantial proof presented to justify a grant of civil damages, this Court makes no pronouncement thereon. With respect to accused Ma. Dolores Placa, who is still at large, the records of this case are hereby sent to the archives to be retrieved in the event that said accused would be apprehended. Issue an alias warrant of arrest for the apprehension of said accused. SO ORDERED.8 Petitioner appealed to the Court of Appeals raising as sole issue the alleged error by the trial court in finding her guilty of illegal recruitment on the basis of the trial court's appreciation of the evidence presented by the prosecution. The Court of Appeals, in its Decision dated 27 June 2005,9 following the principle that an appeal in a criminal case throws the whole case wide open for review, noted that the criminal acts alleged to have been committed happened sometime in 1993. However, R.A. No. 8042, under which petitioner was charged, was approved only on 7 June 1995 and took effect on 15 July 1995. Thus, the Court of Appeals declared that petitioner should have been charged under the Labor Code, in particular Art. 13(b) thereof, and not under R.A. No. 8042. Accordingly, it made its findings on the basis of the provisions of the Labor Code and found petitioner liable under Art. 38, in relation to Art. 13(b), and Art. 39 of the Labor Code. The appellate court affirmed with modification the decision of the RTC, decreeing in the dispositive portion, thus: WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court, 11th Judicial Region, Br. 18, City of Digos, Province of
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Davao del Sur, finding Rosario Nasi-Villar guilty beyond reasonable doubt o the crime of Illegal Recruitment is AFFIRMED withMODIFICATION in that Rosario Nasi-Villar is ORDERED to pay Nila Panilag the sum ofP10,000.00 as temperate damages. SO ORDERED.10 On 28 November 2006, the appellate court denied petitioner's motion for reconsideration.11 Hence, petitioner filed the instant petition for review. Petitioner alleges that the Court of Appeals erred in failing to consider that R.A. No. 8042 cannot be given retroactive effect and that the decision of the RTC constitutes a violation of the constitutional prohibition against ex post facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the crime was allegedly committed, petitioner argues that law cannot be used as the basis of filing a criminal action for illegal recruitment. What was applicable in 1993 is the Labor Code, where under Art. 38, in relation to Art. 39, the violation of the Code is penalized with imprisonment of not less than four (4) years nor more than eight (8) years or a fine of not less than P20,000.00 and not more than P100,000.00 or both. On the other hand, Sec. 7(c) of R.A. No. 8042 penalizes illegal recruitment with a penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine not less than P200,000.00 nor more than P500,000.00. Thus, the penalty of imprisonment provided in the Labor Code was raised or increased by R.A. No. 8042. Petitioner concludes that the charge and conviction of an offense carrying a penalty higher than that provided by the law at the time of its commission constitutes a violation of the prohibition against ex post facto law and the retroactive application of R.A. No. 8042. In its Comment12 dated 7 September 2007, the Office of the Solicitor General (OSG) argues that the Court of Appeals' conviction of petitioner under the Labor Code is correct. While conceding that there was an erroneous designation of the law violated by petitioner, the OSG stresses that the designation of the offense in the Information is not determinative of the nature and character of the crime charged against her but the acts alleged in the Information. The allegations in the Information clearly charge petitioner with illegal recruitment as defined in Art. 38, in relation to Art. 13(b) of the Labor Code, and penalized under Art. 39(c) of the same Code. The evidence on record substantiates the charge to a moral certainty. Thus, while there was an erroneous specification of the law violated by petitioner in the Information, the CA was correct in affirming the RTC's imposition of the penalty for simple illegal recruitment under the Labor Code, the OSG concludes.
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The petition is denied. We find no reversible error in the decision arrived at by the Court of Appeals. In Gabriel v. Court of Appeals,13 we held that the real nature of the crime charged is determined, not from the caption or preamble of the information nor from the specification of the law alleged to have been violatedthese being conclusions of law but by the actual recital of facts in the complaint or information. What controls is not the designation but the description of the offense charged. From a legal point of view, and in a very real sense, it is of no concern to the accused what the technical name of the crime of which he stands charged is. If the accused performed the acts alleged in the body of the information, in the manner stated, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute.14 In the case at bar, the prosecution established beyond reasonable doubt that petitioner had performed the acts constituting the offense defined in Art. 38, in relation to Art. 13(b) and punished by Art. 39 of the Labor Code, as alleged in the body of the Information. To prove illegal recruitment, two elements must be shown, namely: (1) the person charged with the crime must have undertaken recruitment activities, or any of the activities enumerated in Article 34 of the Labor Code, as amended; and (2) said person does not have a license or authority to do so.15 Art. 13(b) defines "recruitment and placement" as "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising, or advertising for employment, locally or abroad, whether for profit or not; Provided that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons, is considered engaged in recruitment and placement." The trial court found these two elements had been proven in the case at bar. Petitioner has not offered any argument or proof that countervails such findings. The basic rule is that a criminal act is punishable under the law in force at the time of its commission. Thus, petitioner can only be charged and found guilty under the Labor Code which was in force in 1993 when the acts attributed to her were committed. Petitioner was charged in 1998 under an Information that erroneously designated the offense as covered by R.A. No. 8042, but alleged in its body acts which are punishable under the Labor Code. As it was proven that petitioner had committed the acts she was charged with, she was properly convicted under the Labor Code, and not under R.A. No. 8042. There is no violation of the prohibition against ex post facto law nor a retroactive application of R.A. No. 8042, as alleged by petitioner. An ex post facto law is one which, among others, aggravates a crime or makes it greater than it was when committed or changes the punishment and inflicts a greater punishment than the law
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annexed to the crime when committed.16 Penal laws and laws which, while not penal in nature, nonetheless have provisions defining offenses and prescribing penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect, except when they are favorable to the accused.17 R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a new definition of the crime of illegal recruitment and provided for its higher penalty. There is no indication in R.A. No. 8042 that said law, including the penalties provided therein, would take effect retroactively. A law can never be considered ex post facto as long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment.18 Neither did the trial court nor the appellate court give R.A. No. 8042 a retroactive application since both courts passed upon petitioner's case only under the aegis of the Labor Code. The proceedings before the trial court and the appellate court did not violate the prohibition against ex post facto law nor involved a retroactive application of R.A. No. 8042 in any way. WHEREFORE, the petition is DENIED. The assailed Decision dated 27 June 2005 and Resolution dated 28 November 2006 of the Court of Appeals are AFFIRMED. SO ORDERED. DANTE O. TINGA Associate Justice

WE CONCUR:
LEONARDO A. QUISUMBING Acting Chief Justice Chairperson CONCHITA CARPIO MORALES Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

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Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. LEONARDO A. QUISUMBING Acting Chief Justice

Footnotes
1 2 3 4 5

Rollo, pp. 21-36. Id. at 87-108. Id. at 117-120. Id. at 37-38.

Migrant Workers and Overseas Filipinos Act of 1995, which amended the overseas employment provisions of the Labor Code, gave a new definition of the crime of illegal recruitment and increased the penalty therefore.
6 7 8 9

Rollo, p. 37. Id. at 39-54. Decision penned by Judge Marivic Trabajo Daray. Id. at 53. Supra note 2. Id at. 106. Supra note 3. Id. at 174-192. G.R. No. 128474, 6 October 2004, 440 SCRA 136, 150. United States v. Lim San, 17 Phil. 273, 279 (1910).

10 11 12 13 14

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15 16

People v. Seoron, 334 Phil. 932, 937-938 (1997).

Benedicto v. Court of Appeals, 416 Phil. 722, 748 (2001), citing In Re: Kay Villegas Kami Inc., 35 SCRA 429, 431(1970) citing Calder v. Bull (1798), 3 Dall. 386, Makin v. Wolfe, 2 Phil. 74 (1903).
17 18

Benedicto v. Court of Appeals, 416 Phil. 722, 749 (2001). I.A. Cruz, Constitutional Law (1993 ed.), p. 253.

IMPOSSIBLE CRIME
1. People vs. Gumimba, G.r. no. 174056, February 27, 2007

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 174056 February 27, 2007 [Formerly G.R. No. 138257] THE PEOPLE OF THE PHILIPPINES, Appellee vs. ROGELIO GUMIMBA y MORADANTE alias ROWING and RONTE ABABO (acquitted), Appellants, DECISION TINGA, J.: For review before the Court is the Decision1 of the Court of Appeals (CA) dated 26 April 2006, affirming with modification the Decision2 of the Regional Trial Court (RTC), Ozamiz City, Branch 15,3 dated 10 March 1999, finding appellant guilty beyond reasonable doubt of the crime of rape with homicide.

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In an Information4 dated 17 April 1997, appellant Rogelio Gumimba y Morandante alias Rowing and co-accused Ronie Abapo (Abapo) were charged before the RTC, with the crime of rape with homicide of an eight (8)-year old child, thus: That on or about April 8, 1997, in Barangay Pantaon, Ozamiz City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with each other, did then and there willfully, unlawfully and feloniously and by means of force, violence and intimidation, to wit: by then and there pinning down one [AAA],5 a minor, 8 years of age, and succeeded in having carnal knowledge with her and as a result thereof she suffered 612 o'clock lacerated wounds of [sic] the vagina as well as fatal stab wounds on the different parts of her body and which were the direct cause of her death thereafter. CONTRARY to Article 335 in relation with Article 249 of the Revised Penal Code. On 16 May 1997, appellant and Abapo both entered a plea of not guilty on arraignment.6 Thereafter, the case proceeded to trial with the prosecution first presenting two witnesses: (1) Emelio Magallano, President of Purok I, Barangay Pantaon, Ozamiz City; and (2) Sofronio Araas, a Civilian Volunteer Officer (CVO) of the same barangay. Magallano and Araas testified that at around 9 o'clock in the evening of 10 April 1997, appellant went to Magallano's home and confessed to him that he alone and by himself raped and killed his (appellant's) niece, AAA, in Purok Pantaon, Ozamiz City. Subsequently, Magallano accompanied appellant to the residence of Araas where he reiterated his confession. That same night, Magallano, Araas, appellant and family members of the witnesses proceeded to the home of Barangay Captain Santiago Acapulco, Jr. who conducted an investigation. Appellant repeated his narration and confessed to the barangay captain that he had raped and killed the victim, and that he was alone when he committed the crime. As a result thereof, Acapulco, Jr., in the company of the others, brought appellant to the Ozamiz City Hall and turned him over to the police authorities.7 However, appellant manifested though counsel (before the court) at the following hearing on 22 May 1997 that he would like to change his earlier plea of not guilty to a plea of guilty.8 The RTC ordered appellant's re-arraignment and the latter accordingly entered a plea of guilty.9 The court conducted an inquiry to ascertain the voluntariness of appellant's plea and his full comprehension of the consequences thereof. Prosecution was likewise charged to establish the guilt and degree of culpability of appellant.10 In accordance with the court's directive, the prosecution continued with the presentation of its evidence in chief. It presented Dr. Pedrita Rosauro, the physician who conducted the autopsy on the body of the victim, and who testified that the victim was raped before she was killed. The examination by Dr. Rosauro revealed that AAA sustained four (4) stab wounds in front, two (2) stab wounds in her back and one (1) lacerated wound each on her neck and on her middle upper extremity. Furthermore, she found 6 and 12 o'clock laceration wounds on the external genital organ of the victim.11

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Before resting its case, the prosecution presented appellant as witness against his co-accused Abapo. Appellant testified that he and Abapo raped and killed the victim. He likewise explained that he had previously confessed to Magallano, Araas and Acapulco that he alone committed the crime in the hope that the parents of the victim, who were relatives of his, might take pity on him.12 In his defense, Abapo testified that at the time the crime was allegedly committed, he was with his mother and three (3) siblings at the Labo River, about two (2) kilometers away from Barangay Pantaon, washing their clothes.13 In support thereof, Abapo presented his mother Virgencita Abapo, Elisa Carreon and Raymundo Orot, all of whom corroborated his alibi.14 The defense also presented witness Araas who reiterated his earlier testimony that appellant confessed to him that he alone was responsible for the raping and killing of the victim.15Finally, Eugenio Bucog, a teacher at Capucao Elementary School, was presented to demonstrate Abapo's good character when he was his student.16 On 10 March 1999, the RTC promulgated its Decision. On the basis of appellant's plea of guilty, the RTC found him guilty beyond reasonable doubt of the crime as charged. Appellant was sentenced to suffer the death penalty and ordered to indemnify the heirs of the victim in the amounts of P50,000.00 as indemnity for the life of the victim,P30,000.00 as moral damages, and costs.17 On the other hand, the trial court acquitted Abapo on the ground that his guilt was not established beyond reasonable doubt. Except for the lone testimony of appellant, the RTC held that no other evidence was adduced to prove the participation of Abapo. Moreover, the court a quo found that appellant's testimony implicating Abapo was not worthy of credence coming as it did from a polluted source.18 With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. Pursuant to this Court's decision in People v. Mateo,19 the case was transferred to the Court of Appeals. On 26 April 2006, the appellate court rendered its Decision20 affirming the appellant's conviction, but with modification as to damages awarded to the heirs of the victim. The dispositive portion of the said Decision states: "WHEREFORE, premises considered, the instant Appeal is DISMISSED for lack of merit. The Decision dated March 10, 1999 of the Regional Trial Court, Branch 15, of Ozami[s] City, is hereby AFFIRMED with the MODIFICATION that the amount of civil indemnity ex delicto is hereby increased from P50,000.00 to P100,000.00, including the award of moral damages from P30,000.00 to P50,000.00. Conformably with the ruling of the Supreme Court in People of the Philippines v. Efren Mateo, We refrain from entering judgment, and the Division Clerk of Court is hereby directed to elevate the entire records of the case to the Honorable Supreme Court for its final disposition. SO ORDERED."21 On 3 October 2006, the Court issued an order requiring the parties to simultaneously submit supplemental briefs within thirty (30) days from notice should they so desire.22 On 21 November
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and 24 November 2006, appellant and appellee filed similar manifestations that they are adopting the briefs they filed before the Court of Appeals.23 Thus, appellant raises the following errors in this petition for review: I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT ON THE BASIS OF HIS IMPROVIDENT PLEA OF GUILTY AND HIS ALLEGED SEPARATE CONFESSIONS TO ONE EM[I]LIO MAGALLANO, AND ONE SOFRONIO ARAAS, THE LATTER BEING HEARSAY AND WITHOUT PROBATIVE VALUE WHATSOEVER. II THE COURT A QUO LIKEWISE ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE LATTER'S GUILT BEYOND REASONABLE DOUBT, AND THE ACCUSED-APPELLANT OWNING UP ONLY TO THE CRIME OF SIMPLE RAPE.24 The ultimate issue is whether appellant's guilt was established by evidence beyond reasonable doubt. It must be conceded at the outset that the trial court failed in its duty to conduct the prescribed "searching inquiry" into the voluntariness of appellant's plea of guilty and full comprehension thereof. Consequently, appellant's plea of guilty was made improvidently and it is rendered inefficacious.25 Nevertheless, the Court must rule against appellant as the evidence on record is ample to sustain the judgment of conviction independent from his plea of guilty. The crime of rape with homicide is punishable with death under Article 335 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, which provides: Article 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape is punishable by reclusion perpetua. xxxx When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
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xxxx The Information, to which appellant pleaded guilty, alleged that homicide was committed by reason or on the occasion of the rape of AAA. This, if proven, would warrant the penalty of death at that time.26 Accordingly, a plea of guilty to such charges calls into play the provisions of Section 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure, thus Sec. 3. Plea of guilty to capital offense; reception of evidence. - When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf. Based on this rule, when a plea of guilty to a capital offense is entered, there are three (3) conditions that the trial court must observe to obviate an improvident plea of guilty by the accused: (1) it must conduct a searching inquiry into the voluntariness and full comprehension by the accused of the consequences of his plea; (2) it must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) it must ask the accused whether he desires to present evidence on his behalf, and allow him to do so if he so desires. 27 There is no hard and fast rule as to how a judge may conduct a "searching inquiry," or as to the number and character of questions he may ask the accused, or as to the earnestness with which he may conduct it, since each case must be measured according to its individual merit.28 However, the logic behind the rule is that courts must proceed with caution where the imposable penalty is death for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty.29 An improvident plea of guilty on the part of the accused when capital crimes are involved should be avoided since he might be admitting his guilt before the court and thus forfeit his life and liberty without having fully comprehended the meaning and import and consequences of his plea.30 Moreover, the requirement of taking further evidence would aid this Court on appellate review in determining the propriety or impropriety of the plea.31 In the instant case, when the accused entered a plea of guilty at his re-arraignment, it is evident that the RTC did not strictly observe the requirements under Section 3, Rule 116 above. A mere warning that the accused faces the supreme penalty of death is insufficient.32 Such procedure falls short of the exacting guidelines in the conduct of a "searching inquiry," as follows: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge's intimidating robes.
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(2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socioeconomic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused of the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. (5) Inquire if the accused knows the crime with which he is charged and to fully explain to him the elements of the crime which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. (6) All questions posed to the accused should be in a language known and understood by the latter. (7) The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details.33 An examination of the records of the proceedings will illustrate the court's treatment of appellant's change of plea,viz: Atty. Cagaanan: Considering the voluntary plea of guilty of the accused[,] we pray that the mitigating circumstance to prove his plea of guilty be appreciated in favor of the accused. We likewise pray that another mitigating [circumstance] of voluntary surrender be appreciated in his favor. Pros. Edmilao: Considering the gravity of the crime, may we ask your Honor that we will present evidence inorder [sic] that it will give also justice to the victim. Court: Present evidence to prove gravity of the crime.

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Pros. Edmilao: Our first witness is the ABC president. Court: What matter will Santiago Acapulco testify? Court: Was there cruelty done by the accused in picking [sic] the life of the minor girl? xxxx Pros. Edmilao: May we ask that we will present her [sic] in the next hearing. Court: The court will call the accused to the witness stand. xxxx (The witness after having administered an oath, took the witness stand and declared that he is: ROGELIO GUMIMBA 20 years old Single Occupation- duck raising Resident of Capucao, Ozamiz City) xxxx Court: The court will allow the prosecutor or the defense to profound [sic] question [sic] on the matter and the accused understand [sic] and fully comprehend [sic] the consequence of his plea of guilty. xxxx
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Pros. Edmilao: Q Mr. Rogelio Gumimba[,] are you the same accused in this case in Crim. Case No. RTC 2074? A Yes, sir. Q Now the victim in this case is [AAA], a minor, 8 years of age[.] Since you have admitted this in what particular place wherein [sic] you raped and slew [AAA]? A Purok Pantaon, Ozamiz City. Q How far is that place wherein you slew and raped [AAA] from her house? A Very near, sir. Q Can you estimate how many meters? A One meter, sir. Q Was it committed inside or outside the house? A Outside. Q In what particular place of the house[:] in front, at the side or at the back? A At the back of the house of the victim. Q Will you please tell the court, how did you do it, will you please narrate. A I raped her by tying her hand, then I killed her. Q Before you raped and killed [AAA], where did you get her? A I saw her roaming around. Q In committing the crime, were you alone? Atty. Anonat: Objection Court: Sustained. Pros. Edmilao:
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You stated that you pushed her and even tied her hand and raped her and stabbed her, were you the one alone [sic]? Atty. Anonat: Objection Court: Sustained. Court: Q When you said you raped her, you mean you inserted your penis inside the vagina of [AAA]? A No, Your Honor. Q When you said you raped her, what do you mean? A I was drank [sic] at that time. Q And you said you tied [AAA], what did you use in tying her? A Banana skin. Q How did you tie [AAA]? A I tied both her hands. Q The hands of [AAA], you placed at the back? A In front of her. Q After tying her [,] what did you do to her? A After that I went home. Q You did not stab [AAA]? A I stabbed her, Your Honor. Q What weapon did you use in stabbing her? A A long bolo. Q You mean you were bringing [a] long bolo at that time?
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A Yes, Your Honor. Q After stabbing her, what did you do to her? A No more, Your Honor. Q How many times did you stab [AAA]? A I could not count how many stab wounds I inflicted to [sic] her. Q But you will agree that you have stabbed her many times? A I could no longer count how many stab wounds, Your Honor. Q When you were arraigned, you pleaded guilty, do you understand the consequence of your pleading guilty? A I do not know Your Honor [,] the consequence. Q You pleaded guilty to the offense of rape with homicide, did you understand? A Yes, Your Honor, I understand. Q That by your pleading guilty to the offense you will be sentenced to die? A Yes, I am aware. Q Your act of pleading guilty to the offense charged is your voluntary will? A Yes, I admitted that crime, but we were two. Q You mean to say there were two of you who raped [AAA]? A Yes, your Honor. Q Before raping her, was [AAA] wearing clothes? A Yes, Your Honor. Q Was [AAA] wearing [a] panty before you raped her? A Yes, Your Honor. Q Did you remove her panty before raping her? A No, You Honor, I did not.
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Q How did you rape [AAA]? A I have sexed [sic] with her. Q What do you mean by I "remedio" her, you mean you have inserted your penis into the vagina of [AAA]? A No, Your Honor, my penis did not penetrate into the vagina of [AAA]. Q Why your penis did [sic] not able to penetrate into the vagina of [AAA]? A The vagina of [AAA] is very small. Q Can you tell this Court how tall was [AAA]? A (The witness demonstrated that from the floor about 3 feet high was the height of [AAA]) Q If you are standing and [AAA] is also standing side by side with you, up to what part of your body is the height of [AAA]? A Up to my waist line. Atty. Cagaanan: Q When you pleaded guilty [,] was it in your own free will? A Yes, sir. Q Were you not forced or coerced by anybody with this crime? A No, sir.34 The inefficacious plea of guilty notwithstanding, the totality of the evidence for the prosecution undeniably establishes appellant's guilt beyond reasonable doubt of the crime of rape with homicide. Apart from his testimony upon changing his plea to a plea of guilty, appellant gave a subsequent testimony when he was presented by the prosecution as a witness against his coaccused. This second testimony which constitutes another judicial confession, replete with details and made consciously as it was, cured the deficiencies which made his earlier plea of guilty improvident. The latter testimony left no room for doubt as to the voluntariness and comprehension on appellant's part of his change of plea, as well as completed his narration of how he raped and killed the victim. The pertinent portions of the second testimony follow, thus: Pros. Jose A. Edmilao: Q While you were gathering firewoods [sic] and Ronie Abapo was pasturing carabao, do you recall of any untoward incident that happened?
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A We raped and killed. Q Whom did you rape and kill? A [AAA]. Q And when you said [AAA], who was then your companion, because you said we? A Ronie Abapo. xxxx Q While she [AAA] was there gathering oranges, you mean to say you were close to the place [AAA] was? A I, together with Ronie Abapo go [sic] near to the place [AAA] was. Q When you were already near at [sic] the place where [AAA] was climbing, was she still up there at the orange tree? A She already came down. Q When she came down, what followed next then? A We held her hands. Q Who held her hands? A The two of us. Q You mean one hand was held by you and the other hand was held by Ronie Abapo? Atty. Anonat: Objection, leading. Pros. Edmilao: Q You said that you were holding the hands of [AAA], how did you do it? A We held her hands and tied it [sic] with banana skin. Q Who tied the hands of [AAA]? A Both of us.

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Q After tying the hands of [AAA][,] with banana stalk where did you place her? A We brought her to the [sic] grassy place. Q What happened then after [AAA] was brought to the [sic] grassy place? A We killed her. Q Before you killed her, what did you do to her? A We raped her. Q Who raped her first? A It was Ronie Abapo, then followed by me. Q How did you rape her? A We undress[sed] her. Q What was she wearing at that time? A She wore a dress. Q What about Ronie Abapo? A He did not undress. Q How did you let your penis out? A I removed my t-shirt. Q How about your pants? A I also removed my pants. Q What was then the reaction of [AAA], when you first tied her hand? A She did not cry, because we covered her mouth. Q Who covered her mouth? You or Ronie? A Ronie. Q What [sic] you said that it was Ronie Abapo, what did you do then when he was on [sic] the act of raping her?
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A I was just near to [sic] them. Q The after Ronie Abapo, what did you do then? A He told me that you will be the next [sic]. Q So when he told you that you will be the next [sic], what did you do next? A I also raped her. Q Again, when you said you raped her, you inserted your penis into the vagina of [AAA]? A It did not enter [sic]. Q Why? A It did not penetrate, because I was afraid. Q But your penis erected [sic]? A No, Your Honor. Q You said that Ronie was the first to have sexual intercourse, was he able to insert his penis into the vagina of [AAA]? A No, sir, because he was watching, if there was person [sic] around. Q Were you able to see the penis of Ronie inserted into the vagina of [AAA]? A I have [sic] not seen. xxxx Q You said that you and Ronie Abapo raped [AAA], what do you mean or what do you understand by the word rape? A We undressed her. Q Why did you undress her? A We undressed her, because we want [sic] to do something to her. Q What is that something that you want [sic] top do to [AAA]? A We raped her.

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Q When you said we raped her, you mean, you inserted your penis inside the vagina of [AAA]? A No, sir. Q But you tried to insert your penis inside the vagina? A Yes, sir. Q And your penis touched the vagina of [AAA]? A Yes, sir. Q Only your penis was not able to enter the vagina because [AAA] is [sic] still a small girl? A Yes, sir. Q After trying to insert your penis after Ronie Abapo, what did you do to [AAA]? A I walked away, but he called me. Q Who called you? A Ronie Abapo. Q Why did he call you? A He asked me, what to do with [AAA]. It might be that she will tell us to somebody [sic], we will kill her. Q What did you do? A I did not answer. Q And what was your answer? A Because he keep [sic] on persuading me. Q How did he persuade you? A He persuaded me because we might be caught. Q And what did he tell you to do? A That we will kill [AAA]. Q How did he tell you that?
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A Rowing[,] we will kill her. Q And what was your reply? A I refused. Q When you refused, what did he do then? A He keep [sic] on persuading me. Q And what did eventually came [sic] to your mind? A Evil came to my mind, so we killed her. Q How did you kill her? A We stabbed her. Q What weapon you used [sic] when you killed her? A A long bolo. Q Whose [sic] the owner of that long bolo? A Mine, but Ronie Abapo used it. Q Who was the first one to use it? A Ronie Abapo. Q But the bolo was in your hands, how did [sic] he be able to use it? A I put it on the ground and he got it. Q You said that he made the first struck [sic]. Where was [AAA] first hit? A In the stomach. Q How many times did Ronie Abapo strike her with the use of that bolo? A I cannot remember anymore. Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit? A At the left side.

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Q How about you, did you made [sic] the following stab to [AAA]? A I was hesitant to stab, but eventually I stabbed her. Q How many times? A Only one. Q What part of her body was she hit? A At the stomach. Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo and also stabbed [AAA]? A Yes, sir. Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her? A He [sic] was already dead. Q Why did you stab her, when she was already dead? A I just stabbed her, because I thought that she was still alive. xxxx Q Do you know where is [sic] the bolo used in stabbing [AAA]? A No, sir. Q After killing [AAA], where did you place the bolo? A In our place. Q It [sic] it there in your home? A Already taken. Q Who got? A The barangay captain. Q Now, did you tell to [sic] anybody regarding the raping and killing of [AAA] aside from here in Court?

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A I have already told. Q Who was the person whom you talked about [sic]? A My neighbor. Q Whose [sic] the name of that neighbor? A Emilio Magallano. Q After Emilio Magallano[,] to whom did you report? A Sofronio Aranas. Q Who else? A Rico Magallano. Q Who else? A The wife of Panyong. Q In the reporting [sic] this matter[,] were you together with Ronie Abapo telling these persons that you raped [AAA]? A I was alone. Q And did you tell her that you were two in killing and raping with Ronie Abapo? A No, sir. Q Why not? A According to Emilio that the mother of the victim might be [sic] pity enough to me, because I am related to them. Q When you reported to these persons you have mentioned, did you also tell them that you were together with Ronie Abapo in killing and raping? A No, sir.35 While the trial court found appellant's second testimony insofar as it implicated his co-accused to be unworthy of credence, there is absolutely nothing on record which militates against its use as basis for establishing appellant's guilt. In fact, in his Brief, appellant submits that he must be convicted of simple rape alone and not rape with homicide. Thus, he admits in writing, albeit implicitly, that he raped the victim.
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Convictions based on an improvident plea of guilt are set aside only if such plea is the sole basis of the judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained, because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged.36 Thus, as we have ruled in People v. Derilo:37 While it may be argued that appellant entered an improvident plea of guilty when re-arraigned, we find no need, however, to remand the case to the lower court for further reception of evidence. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of improvidence thereof and when such plea is the sole basis of the condemnatory judgment. However, where the trial court receives evidence to determine precisely whether or not the accused has erred in admitting his guilt, the manner in which the plea of guilty is made (improvidently or not) loses legal significance, for the simple reason that the conviction is based on evidence proving the commission by the accused of the offense charged. Thus, even without considering the plea of guilty of appellant, he may still be convicted if there is adequate evidence on record on which to predicate his conviction. x x x x Here, the prosecution was able to establish, through the separate testimonies of appellant, that at around 1:00 o'clock in the afternoon of 8 April 1997, appellant was gathering firewood not far from the house of the victim AAA in Barangay Pantaon, Ozamiz City. He met co-accused Ronie Abapo who was then pasturing his carabao also within the vicinity of the victim's home. They spotted the victim picking oranges with her three (3)-year old brother at the back of their house and together approached her from behind, tied her hands with banana skin and dragged her to a grassy place.38 Abapo raped the victim first.39 Thereafter, appellant followed suit.40 Once they had finished with their dastardly acts, they stabbed and killed the victim with a long bolo which belonged to appellant.41 Through the testimony of the physician who conducted the autopsy on AAA's body, it was established that the victim had 6 and 12 o'clock lacerations on her external genital organ. Thus, it is clear that the rape was consummated. Appellant challenges the testimonies of the witnesses Magallano and Araas on what appellant had confessed to or told them for being hearsay. The challenge fails. The testimonies, it should be conceded, cannot serve as a proof of extrajudicial confession for an extrajudicial confession has to be in writing, among others, to be admissible in evidence.42 That is why the testimonies are of use in the case as corroborative evidence only. Such utility, however, cannot be defeated by the hearsay rule. The testimonies covered are independently relevant statements which are not barred by the hearsay rule.
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Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply. The statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.43

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Moreover, where, as in the case at bar, there is no evidence to show any dubious reason or improper motive for a prosecution witness to bear false testimony against the accused or falsely implicate him in a crime, his or her testimony should be given full faith and credit.44 Next, we address appellant's contention that he can only be convicted of simple rape, as this is the only crime to which he has owned up. Arguing that the victim may have already been dead after his co-accused had allegedly hacked her first, appellant theorizes that he, at most, would be guilty of an impossible crime. Appellant is clutching at straws. It is extremely doubtful that appellant could have known positively that the victim was already dead when he struck her. The proposition not only completely contradicts his judicial confession, it is also speculative as to cause of death. In light of the particular circumstances of the event, appellant's mere conjecture that AAA had already expired by the time he hacked her cannot be sufficient to support his assertion of an impossible crime. An examination of the testimony is again called for, thus: Pros. Edmilao: Q You said that he (Abapo) made the first strike, where was [AAA] first hit? A In the stomach. Q How many times did Ronie Abapo strike her with the use of that bolo? A I cannot remember anymore. Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit? A At the left side. Q How about you, did you made [sic] the following stab to [AAA]? A I was hesitant to stab, but eventually I stabbed her. Q How many times? A Only one. Q What part of her body was she hit? A At the stomach. Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo and also stabbed AAA? A Yes, sir.
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Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her? A He [sic] was already dead. Q Why did you stab her, when she was already dead? A I just stabbed her, because I thought that she was still alive.45 Thus, the finding of guilt as pronounced by the RTC and the Court of Appeals should be sustained. However, with the passage of R.A. No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the penalty of death can no longer be imposed. Accordingly, the penalty imposed upon appellant is reduced from death to reclusion perpetua without eligibility for parole.46 With respect to the civil liability of appellant, we modify the award in light of prevailing jurisprudence. Accordingly, appellant is ordered to indemnify the heirs of AAA in the amount of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages and P100,000.00 as exemplary damages.47 WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 00193 is AFFIRMED WITH MODIFICATION. Appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the heirs of the victim, AAA, in the amounts of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages, and P100,000.00 as exemplary damages, plus costs. SO ORDERED. DANTE O. TINGA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice CONSUELO YNARESSANTIAGO Asscociate Justice

LEONARDO A. QUISUMBING Associate Justice

ANGELINA SANDOVALGUTIERREZ Associate Justice

ANTONIO T. CARPIO Asscociate Justice

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MA. ALICIA AUSTRIA-MARTINEZ Associate Justice (On Leave) CONCHITA CARPIO MORALES Associate Justice (On Official Leave) ADOLFO S. AZCUNA Associate Justice CANCIO C. GARCIA Associate Justice

RENATO C. CORONA Asscociate Justice (On Leave) ROMEO J. CALLEJO, SR. Asscociate Justice

MINITA V. CHICO-NAZARIO Asscociate Justice PRESBITERO J. VELASCO, JR. Asscociate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes
1

Rollo, pp. 4-19. Penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Teresita Dy-Liacco Flores and Rodrigo F. Lim, Jr.
2

CA rollo, pp. 25-28. Presided by Judge Pedro L. Suan. CA rollo, p. 12.

The real name of the victim is withheld per R.A. No. 7610 and R.A. No. 9262. See People v. Cabalquinto, G.R. No. 167693, 19 September 2006.
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TSN, 16 May 1997, pp. 3-4. Id. at 7-11, 15-19; See also Exhibits "1-C" and "2-C." TSN, 22 May 1997, p. 1. Id. at 1-2. Id. Records, p. 26; Exhibit "A." Records, dorsal side of p. 26; Exhibit "A-10." TSN, 26 September 1997, pp. 4-5. TSN, 16 February 1998, pp. 21-23. TSN, 16 February 1998, 19 February 1998. TSN, 3 November 1997, p. 3. TSN, 13 February 1998, pp. 2-3. Supra note 2. Id. at 27. G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640. Rollo, pp. 4-19. Id. at 18-19. Id. at 20. Id. at 21-24. Id. at 9. See People v. Tonyacao, G.R. Nos. 134531-32, 7 July 2004, 433 SCRA 513.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

See R.A. No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines," which was signed into law on 24 June 2006.
27

People v. Espidol, G.R. No. 150033, 12 November 2004, 442 SCRA 360, 372 citing People v. Bello, G.R. Nos. 130411-14, 13 October 1999, 316 SCRA 804, 811.

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28

People v. Apatay, G.R. No. 147965, 7 July 2004, 433 SCRA 658, 663; People v. Segnar, Jr., G.R. No. 133380, 18 February 2004, 423 SCRA 206, 211 citing People v. Dayot, G.R. No. 88281, 20 July 1990, 187 SCRA 637, 643.
29

People v. Tonyacao, supra note 25 at 521; People v. Daniela, 449 Phil. 547, 561 (2003) citing People v. Arizapa, 328 SCRA 214 (2000).
30

People v. Daniela, supra. People v. Tonyacao, supra note 25; People v. Pastor, 428 Phil. 976 (2002).

31

32

People v. Nadera, Jr., 381 Phil. 484 (2000); People v. Tonyacao, supra note 25 at 522 citing People v. Principe, 381 SCRA 642, 649 (2002), People v. Molina, 372 SCRA 378, 387 (2001), People v. Alborida, 359 SCRA 495 (2001), People v. Hermoso, 343 SCRA 567, 576 (2000).
33

People v. Tonyacao, supra note 25 at 522-523; People v. Pastor, supra note 31 at 987 citing People v. Aranzado, 418 Phil. 125 (2001); People v. Chua, 418 Phil. 565 (2001); People v. Alicando, 321 Phil. 657 (1995); People v. Albert, 321 Phil. 500 (1995).
34

Emphasis supplied. TSN, 22 May 1997, pp. 2-8. TSN, 16 September 1997, pp. 8-17.

35

36

People v. Nadera, 381 Phil. 484 (2000). See also People v. Lakindanum, 364 Phil. 69 (1999); People v. Molina, 423 Phil. 637 (2001); People v. Murillo, G.R. No. 134583, 14 July 2004, 434 SCRA 342.
37

338 Phil. 350, 374 (1997). See also People v. Ostia, 446 Phil. 181 (2003); People v. Nismal, 199 Phil. 649 (1982); People v. Petalcorin, G.R. No. 65376, 29 December 1989, 180 SCRA 685.
38

TSN, 16 September 1997, pp. 7-10. Id. at 10. Id. Id. at 14-16.

39

40

41

42

People v. Porio, 427 Phil. 82, 93 (2002) citing People v. Gallardo, 323 SCRA 219, 2000; People v. Bacor, 306 SCRA 522 (1999). See People v. Oranza, 434 Phil. 417 (2002); People v. Valdez, 395 Phil. 207 (2000); People v. Base, 385 Phil. 803 (2000); People v. Lumandong, 384 Phil. 390 (2000); People v. Calvo, Jr., 336 Phil. 655 (1997).

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43

People v. Lobrigas, 442 SCRA 382, 392 (2002) citing People v. Velasquez, 352 SCRA 455 (2001).
44

Roca v. Court of Appeals, 403 Phil. 326 (2001); People v. Conde, 386 Phil. 859 (2000) citing People v. Cristobal, 322 Phil. 551 (1996); and People v. Villanueva, 363 Phil. 17 (1999).
45

Emphasis supplied. TSN, 11 September 1997, pp. 15-16. People v. Teodoro. G.R. No. 170473, 12 October 2006. People v. Apatay, supra note 28.

46

47

2. People Enoja, G.r no. 102596, December 17, 1999

SECOND DIVISION

[G.R. No. 102596. December 17, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICASIO ENOJA @ Nick, JOSE ENOJA @ Moros, ANTONIO GALUPAR @ Tony, RONNIE ENOJA @ Bud-oy, and YOLLY ARMADA, accused-appellants. DECISION
QUISUMBING, J.:

This is an appeal from the decision dated October 31, 1990, of the Regional Trial Court, Iloilo City, Branch 26, in Criminal Case No. 31550, convicting accused-appellants Nicasio Enoja @ Nick, Jose Enoja @ Moros, Antonio Galupar @ Tony, Ronnie Enoja @ Bud-oy, and Yolly Armada of the crime of murder, and sentencing them as follows: ...Nicasio Enoja @ Nick, Jose Enoja @ Moros, and Antonio Galupar alias Tony, each to suffer the penalty of reclusion perpetua; Yolly Armada to suffer an
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indeterminate prison sentence ranging from ten (10) years and one (1) day of prision mayor as minimum to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum, and Ronnie Enoja alias Bud-oy to suffer indeterminate prison sentence ranging from six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum and all the said accused, to pay, jointly and severally, the heirs of the deceased Siegfred Insular the sum of P30,000.00 for his death and P19,200.00 as actual damages representing expenses, without subsidiary imprisonment in case of insolvency together with all the accessory penalties provided for by law and to pay the costs.[1] The five appellants, all farmers and residents of Barangay Caraudan, Janiuay, Iloilo, are related to each other. Jose Enoja @ Moros, Ronnie Enoja @ Budoy, and Yolly Armada, are the brother, son and first cousin, respectively, of appellant Nicasio Enoja, while Antonio Galupar is a kumpadre. Three other accused, Joel Enoja @ Mike, Melvin Castor, and Antonio Enoja, remain at-large. The victim, Siegfred G. Insular, was a suspected commander of the New Peoples Army (NPA). A day before the incident, the house of Romulo Enoja, brother of the Enojas, was allegedly sprayed with bullets by the NPA, killing Romulos daughter and son. Before that, the house of Catelina Enoja, mother of the Enojas, at Barangay Caraudan, was allegedly burned by the NPA. The facts are not in dispute. In their consolidated brief, appellants adopted the factual findings of the trial court, as follows:[2] x x x [I]n the afternoon of July 2, 1987, at around 4:30 oclock, while Siegfred Insular and his wife, Paterna, were on their way home from the market walking along the ricefield at Barangay Caraudan, Janiuay, Iloilo, they saw Yolly Armada with a long firearm in hand, walking on the other side of the field towards the same direction where the couple were going. Paterna did not at first recognize Yolly Armada as the man on the other side of the ricefield, and so, she called the attention of her husband saying that the man was carrying a firearm. Recognizing the man, however, Siegfred told his wife: never mind, he is Yolly Armada. The spouses Insular and Yolly Armada continued walking until they met ways in front of the ricemill of Teodoro Salamanca near the chapel. Siegfred greeted Armada by nodding his head to which Armada responded by also nodding his head. Siegfred then said We will leave but as he and his wife were about to proceed on their way, Armada blocked the couple and pointed his firearm to Siegfred with the barrel of the gun touching the left side of the body
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of the latter. Suddenly, Armada fired his gun and as Siegfred turned his back to run, Armada fired successive shots at him causing him to fall to the ground, wounded. Almost simultaneously, several armed men appeared and took turns in firing at Siegfred. Among these armed men were Nicasio Enoja alias Nick, Jose Enoja alias Moros, Antonio Galupar alias Tony, and Ronnie Enoja alias Budoy. The body of the victim jerked as the accused took turns in shooting him. After shooting Siegfred Insular, the accused turned to his wife, Paterna, and attempted to shoot her but Paterna Insular hugged Teodoro Salamanca who was then and there present, thus prompting the latter to shout to the accused: do not include the girl. The accused heeded the plea of Teodoro Salamanca and refrained from shooting Paterna Insular. Jose Enoja then turned to his brother Antonio Enoja and fired at the latter hitting him on the thigh. Thereafter, Jose Enoja approached Siegfred Insular who was then lying on the ground and placed the gun he used in shooting his brother, Antonio, near the hand of Siegfred Insular. Then Jose Enoja placed some live bullets into the pocket of Siegfred Insular. Jose Enoja called for a hammock and, in no time at all, there was a hammock brought to the place where Antonio Enoja was loaded and, thereafter, brought to the hospital. The body of Siegfred Insular was, however, left lying on the ground at the scene of the incident. Nicasio Enoja announced that they would bring Paterna Insular and Teodoro Salamanca to the ricefield where they would be made to spend the night but Paterna pleaded to Nicasio Enoja to just bring them to the house of Patria Alcantara about five meters away from the scene of the incident. The accused granted the request of Paterna and brought her and Teodoro Salamanca to the house of Patria Alcantara where they were told to stay with the warning not to get out or they would be shot. It was only the following morning, after policemen and PC soldiers had arrived that Paterna and Salamanca were able to go out of the house of Alcantara. The shooting incident reached the police station of Janiuay, Iloilo upon the report of one Alfredo Galupar, and so, a joint PC-INP team under P.C. Lt. Pangina and police station commander, Sgt. Reynaldo Sorogon went to Barangay Caraudan and conducted investigation of the incident. That was already around 8:00 oclock in the morning of July 3, 1987. The policemen were able to recovery several empty shells of different caliber of firearms from the crime scene. One short
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homemade firearm caliber .30, with one empty shell inside the chamber was likewise found and recovered from the ground near the left arm of the victim. On March 11, 1988, Provincial Fiscal Vicente E. Aragona filed an Information[3] for murder against appellants and their three companions who were still at-large. The
Information alleged:

The undersigned Provincial Fiscal accuses NICASIO ENOJA alias Nick, JOSE ENOJA alias Moros, ANTONIO GALUPAR alias Tony, RONNIE ENOJA alias Bud-oy and YOLLY ARMADA of the crime of Murder committed as follows: That on or about July 2, 1987, in the Municipality of Janiuay, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another with JOEL ENOJA alias Mike, MELVIN CASTOR and ANTONIO ENOJA, who are still at large, armed with firearms and taking advantage of superior strength to better realize their purpose, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one SIEGFRED INSULAR with said weapon with which they were then provided, thereby inflicting upon the latter gunshot wounds on the vital parts of his body which caused his death thereafter. CONTRARY TO LAW. On August 5, 1988, appellants were arraigned and entered their respective pleas of not guilty. During trial, the prosecution presented the following witnesses: Teodoro Salamanca, an eyewitness to the shooting; Paterna Insular, widow of Siegred; Dr. Tito D. Doromal, medico-legal officer who did the autopsy; Pfc. Juan O. Gaon, and Pfc. Moises C. Reiteracion, Integrated National Police officers who responded to the shooting incident. Dr. Doromal testified that the victim suffered five (5) gunshot wounds in the head and neck area, six (6) gunshot wounds in the thoraco-abdominal regions, and two (2) gunshot wounds in the extremities. The cause of death was maceration of the brain, secondary to gunshot wounds.[4] Pfc. Juan O. Gaon stated that he entered the incident in the police blotter.[5] Pfc. Moises C. Reiteracion said he was part of the team which responded to the report of the shooting incident. The team found the body of the victim still
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lying on the same spot the following morning. They recovered empty shells of different calibers and a homemade short firearm near the left arm of the victim.[6] Pfc. Reiteracion and two companions brought the body of the victim to the funeral home.[7] For the defense, appellants presented Atty. David Tubongbanua, 4th Assistant Provincial Prosecutor of Iloilo, who recommended the dismissal of the case but was overturned by the Provincial Fiscal. Appellants themselves testified and, except for Armada, interposed the defense of denial and alibi. Appellant Armada pleaded self-defense in shooting Siegfred. He claimed that while he was on his way from Barangay Quipot to Caraudan, to attend the wake of his niece and nephew, he heard gunshots near the chapel. When he went to the place, he saw Galupar lying wounded on the ground, shot by Siegfred. Siegfred then attempted to shoot Armada, but the latter beat him to the draw. Armada fired successive shots at Insular with his M-2 automatic carbine. He did not see Paterna in the vicinity. After the shooting, Salamanca, Nicasio and Arnold came out of the rice mill. Salamanca asked what happened and Armada answered that Siegfred shot Antonio and so, he shot Siegfred. Armada then left and surrendered to the PC station at Jibolo, Janiuay, Iloilo City.[8] The other appellants admitted being in the vicinity of the crime, but categorically denied any participation in the shooting. Nicasio claimed that he was with his son, Arnold, and Salamanca inside the latters ricemill, milling palay when the shooting occurred.[9] However, Salamanca testified that at the time of the incident, there was no palay milling going on.[10] Ronnie testified that he was doing household chores in their house at Barangay Caraudan, where his brother Rowel and sister Annelyn were lying in state, when he heard explosions coming from the direction of the ricemill.[11] Shortly thereafter, Arnold
arrived and told them that Antonio was shot by Siegfred and requested that a hammock be brought to the scene so that Antonio could be brought to the hospital. Ronnie, Jose, and Jonathan Lazo, Ronnies first cousin, immediately brought the hammock to the scene of the incident.[12] Ronnie thereafter saw Paterna arrive and cry upon seeing her slain husband. Ronnie and his companions placed Antonio in the hammock, boarded him in a tricycle, and rushed him to the hospital.[13] On the way, Ronnie heard explosions and when he looked back, he saw his uncle Joel Enoja alias Mike and his friend, Melvin, shooting the prostrate body of Siegfred.[14]

Jose testified that he was at his house, about 300 meters from the scene of the crime. He was weeding in his yard when he heard gunfire. After a short while, Arnold arrived and asked him to bring a hammock to the scene of the incident.[15] Galupar related that he had just finished plowing his farm and was resting in his house in Barangay Caraudan when he heard explosions. He remained at home
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the whole night and only learned of the death of Siegfred the following morning. He claimed that he was implicated in the case because he refused to act as witness for the prosecution.[16] On October 31, 1990, the trial court rendered a decision [17] finding appellants guilty as charged. The trial court did not give credence to Armadas claim of self defense inasmuch as policemen recovered several empty bullet shells from firearms of different calibers at the scene of the crime. The short homemade firearm found near the left arm of the victim could not have been used by the victim since it only had one empty shell in its chamber, not to mention that the victim was right-handed. Lastly, the trial court found it highly suspicious that Antonio, who was allegedly shot by the victim and who could have corroborated Armadas story of self-defense, went into hiding and had not surfaced up to the present. In this appeal, in their joint brief,[18] appellants raise the following errors: I. THE LOWER COURT ERRED IN FINDING CONSPIRACY; II. THE LOWER COURT ERRED IN FINDING THE ACCUSEDAPPELLANTS GUILTY; III. ASSUMING THEM GUILTY, THE LOWER COURT ERRED, EXCEPT FOR APPELLANT YOLLY ARMADA, IN NOT FINDING THAT THE OFFENSE COMMITTED WAS ONLY AN IMPOSSIBLE CRIME. The records show that appellant Antonio Galupar died pending appeal. Pursuant to our ruling in People v. Bayotas, 236 SCRA 239, the death of appellant Galupar pending appeal extinguished his criminal liability as well as his civil liability ex delicto in senso strictiore. Appellant Yolly Armada escaped from the New Bilibid Prison on September 25, 1996.[19] As a result, his appeal was dismissed and the judgment against him became final and executory. Entry of judgment was made on January 9, 1997.[20] In the meantime, appellant Jose Enoja jumped bail, which also resulted in the dismissal of his appeal. Judgment against him became final and executory, and entry of judgment was made on March 21, 1997.[21] An appellant who escapes or refuses to surrender to the proper authorities is deemed to have abandoned his appeal,[22] hence, the judgment against him becomes a final and executory. Nonetheless, the appeal proceeds as to the remaining appellants, Nicasio Enoja and Ronnie Enoja, who are now detained at the New Bilibid Prison,
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Muntinlupa City. Our present review, therefore, concerns only these two appellants. Appellants assail the trial courts finding of conspiracy by pointing out alleged inconsistencies in the testimonies of the prosecution witnesses Salamanca and Paterna. Appellants contend that while Salamanca testified that it was only after Armada shot the victim that the other appellants came one after the other and fired at the victim, Paterna testified that appellants fired successive shots at the victim, implying that all appellants were already in the crime scene when Armada fired at Siegfred. However, close perusal of the pertinent transcript of stenographic notes (TSN) shows no inconsistencies in the two testimonies. Paterna actually testified that after Armada fired at her husband, the other appellants arrived one after the other (nag -arabot abot),[23] and continued to fire at the prostrate body of her husband. The two testimonies constitute cumulative evidence on who participated in the shooting of Siegfred. Both witnesses pointed to all five accused-appellants. On the matter of conspiracy, we have consistently held that conspiracy need not be shown by direct proof of an agreement by the parties to commit the crime. The conduct of the malefactors before, during or after the commission of the crime is sufficient to prove their conspiracy. Once proved, the act of one becomes the act of all. All shall be answerable as co-principals regardless of the extent or degree of their participation.[24] In this case, circumstances indubitably show that appellants acted concertedly to kill Siegfred. First, after appellant Armada fired at the victim incapacitating the latter, the other accused arrived almost simultaneously and took turns in shooting the victim. The successive shots riddled the victims body with bullets. Several empty cartridges from guns of different calibers found in the scene and the numerous wounds of the victim indicate plurality of assailants.[25] Second, appellant Jose Enoja thereafter fired a shot at the thigh of his brother Antonio to make it appear that the shooting was in self-defense. Third, Jose planted a short firearm near the body of the victim and placed bullets in the pocket of the victim. Fourth, strangely after Antonio was brought to the hospital, he conveniently disappeared and could no longer be located by the authorities. The aforementioned acts of the appellants clearly point to their common purpose, concert of action, and community of interest.[26] Appellants suggest that since Paterna was crying at the time of the shooting, she could not have clearly witnessed the commission of the crime. This contention is disingenuous, to say the least. Paternas crying does not impair her credibility. Witnesses of startling occurrences react differently depending upon their situation and state of mind, and there is no standard form of human behavioral
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response when one is confronted with a strange, startling or frightful experience. [27] Her powers of observation could even be heightened by the startling event to imprint
the details in her memory. We have gone over the records and find her testimony clear, credible and consistent with the testimony of Salamanca.

Appellants further insist that the trial court erred in finding that treachery accompanied the killing, considering that the victim was already forewarned of the impending danger when he saw appellant Armada carrying a firearm. Appellants contend that for treachery to exist, the offended party is completely denied of the opportunity to defend himself, but it is not so in this case. As the Solicitor General correctly pointed out, there was nothing in the behavior of Armada that could have forewarned the victim of an impending danger. Both the victim and Armada knew each other. Armada even acknowledged the greeting of the victim. The latter was walking along the ricefield with his wife[28] when he was suddenly gunned down by the appellants. The victim gave no provocation for the attack. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person attacked.[29] Clearly, the qualifying circumstance of treachery is present in this case. Considering the number of the armed assailants against the lone unarmed victim, there was also abuse of superior strength. Since treachery absorbs the aggravating circumstance of abuse of superior strength this aggravating circumstance need not be appreciated separately.[30] As an alternative defense, appellants present the theory that even assuming they participated in the killing of Siegfred, they should only be held liable for the commission of an impossible crime under Article 4, Par. 2 of the Revised Penal Code, penalized under Article 59 thereof.[31] Appellants theorize that the shots fired by Armada already resulted in the death of the victim, and hence, their subsequent shooting of the victim merely constitutes the impossible crime of killing an already dead person. The proposition not only completely contradicts their defense of alibi and denial, it is also speculative as to cause of death. The defense of impossible crime is irreconcilable with alibi. Appellants Nicasio and Ronnie Enoja claim that they were elsewhere during the offense. For alibi to prosper as a defense, the accused must show that he was so far away that he could not have been physically present at the place of the crime, or its immediate vicinity at the time of its commission [32] and that his presence elsewhere renders it impossible for him to be the guilty party. [33] In this case, Nicasio admitted he was within the vicinity of the crime but presented the lame excuse that he was inside Salamancas rice mill at the time of the
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shooting. His son, Arnold, corroborated this testimony. But it was put in doubt by the testimony of Salamanca, who stated that no milling of palay in his ricemill was going on at the time of the shooting. Alibi, especially when it is corroborated mainly by relatives and friends of the accused, is held by this Court with extreme suspicion for alibi is easy to fabricate and concoct. [34] Both Paterna and Salamanca positively identified Nicasio Enoja as one of those who took part in the shooting incident. Paterna categorically pointed to Ronnie Enoja as the person who shot her husband in the right eye.[35] Appellants could not attribute any motive against these witnesses to falsely testify against them. In the light of positive identification by witnesses who have no motive to falsely testify, the feeble defense of alibi cannot prevail over the clear and positive identification of the accused as the perpetrators of the crime.[36] At the time of the commission of the crime, on July 2, 1987, the penalty for murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death.[37] There being no mitigating nor aggravating circumstance, with respect to Nicasio Enojas culpability, the trial court correctly imposed the penalty for murder in its medium period,[38] which is reclusion perpetua. With respect to appellant Ronnie Enoja, who was born on February 21, 1970, and was below 18 at the time of the commission of the crime, the trial court correctly appreciated the privileged mitigating circumstance of minority. Thus, the penalty next lower in degree was imposed on him in its proper period pursuant to Article 68, second paragraph of the Revised Penal Code, which is prision mayor maximum to reclusion temporalmedium. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed upon appellant Ronnie Enoja shall be taken from the medium period of the imposable penalty, which is reclusion temporal minimum or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months, while the minimum shall be taken from the penalty next lower in degree, which is prision correccional maximum to prision mayor medium or four (4) years and two (2) months to ten (10) years. Consequently, the trial court correctly imposed upon Ronnie Enoja the indeterminate sentence of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum. Pursuant to prevailing jurisprudence, the award of P30,000.00 as indemnity should be increased to P50,000.00. However, the award of actual damages in the amount of P19,000.00 should be deleted. Credence can only be given to claims, which are duly supported by receipts.[39] The testimony alone of the widow, that her
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sister-in-law incurred about P20,000.00 expenses in connection with the death of the victim, is insufficient basis to award actual damages. WHEREFORE, the decision of the Regional Trial Court of Iloilo City, Branch 26, in Criminal Case No. 31550, convicting accused-appellants Nicasio Enoja @ Nick and Ronnie Enoja @ Bud-oy of the crime of Murder is hereby AFFIRMED, with the MODIFICATION that accused-appellants are ordered to pay the heirs of the victim, jointly and severally, the amount of P50,000.00 as indemnity. The award of P19,200.00 as actual damages is deleted. Costs against appellants. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1] [2] [3] [4] [5] [6] [7] [8] [9]

Rollo, p. 81. Id. at 48-49. Records, p. 1. TSN, January 9, 1989, p. 3. TSN, July 3, 1989, pp. 3-4.5 Id. at 5-8. Id. at 11. TSN, July 18, 1990, pp. 4-10. TSN, November 22, 1989, pp. 3-7; TSN, December 15, 1989, pp. 5-6. TSN, October 19, 1988, pp. 24-25. TSN, November 22, 1989, pp. 27-28. Id. at 29-30. Id. at 31. Id. at 33. TSN, February 9, 1990, pp. 3-5. TSN, June 20, 1990, pp. 10-12. Records, pp. 225-237. Rollo, p. 47.

[10] [11] [12] [13] [14] [15] [16] [17] [18] [19]

Letter dated October 17, 1996 from Action Officer Homobono Lachica, Jr., of the Bureau of Corrections, Muntinlupa City, Rollo, p. 167. 134 | P a g e

[20] [21] [22] [23] [24]

Id. at 198. Id. at 192. People v. Quiritan, 197 SCRA 32, 35 (1991); People v. Codilla, 224 SCRA 104 (1993). TSN, November 23, 1988, p. 14.

People v. Cantere, G.R. No. 127575, March 3, 1999, p. 12, citing People v. Hayahay, 279 SCRA 567 (1997).
[25] [26]

People v. Caritativo, 256 SCRA 1 (1996). People v. Andres, G.R. No. 122735, September 25, 1998, p. 23.

[27] People v. Matubis, G.R. No. 109774, March 27, 1998, p. 9, citing People v. Paynor, 261 SCRA 615 (1996). [28] [29]

TSN, November 23, 1988, p. 7.

People v. Noay, G.R. No. 122102, September 25, 1998, p.14; People v. Cogonon, 262 SCRA 693 (1996).
[30] [31]

People v. Gutierrez, Jr., G.R. No. 116281, February 8, 1999, p. 23. Art. 4, No. 2 of the Revised Penal Code:

Art. 4. Criminal liability. - Criminal liability shall be incurred: x x x 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.
[32] [33]

People v. Caete, G.R. No. 120495, March 12, 1998, pp. 10-11.

Id. at 10; People v. Villaruel, 261 SCRA 386, 396 (1996); People v. Acob, 246 SCRA 715, 723 (1995).
[34] People v. Cantere, G.R. No. 127575, March 3, 1999, p. 10. [35] [36] [37]

TSN, November 23, 1988, p. 16. Id. at 11.

As amended by R.A. No. 7659, which took effect on December 31, 1993, murder is now punishable with reclusion perpetua to death.
[38] [39]

Article 64, Revised Penal Code. People v. Guillermo, G.R. No. 113787, January 28, 1999, p. 17.

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ARTICLE 6 CONSUMATED, FRUSTRATED, AND ATTEMPTED FELONIES STAGES OF EXECUTION

A. Attempted Stage
1. People vs. Mingming, G.r. no.174195, December 10, 2008
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 174195 December 10, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CATALINO MINGMING y DISCALSO, accused-appellant. DECISION BRION, J.: The subject of this mandatory appeal is the Decision dated July 28, 2005 of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 001491 which affirmed with modification the decision dated March 22, 2004 of the Regional Trial Court (RTC), Branch 128, Caloocan City, in Criminal Case Nos. C-54195, C-54196, and C54197.2 The RTC convicted accused-appellant Catalino Mingming y Discalso3 (Catalino) of three (3) counts of statutory rape and imposed on him the penalty of reclusion perpetua for each count. The Informations (all dated July 6, 1998) under which he was prosecuted read: Criminal Case No. C-54195 That sometime on (sic) May, 1998 in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully (sic), unlawfully and feloniously succeeded in
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sexually abusing or having sexual intercourse with one AAA, a virgin, and 10 years of age. Contrary to Law. Criminal Case No. C-54196 That on or about the 29th day of June, 1998 in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully (sic), unlawfully and feloniously succeeded in sexually abusing or having sexual intercourse with one AAA, a virgin, and 10 years of age. Contrary to Law. and, Criminal Case No. C-54197 That on or about the 29th of June, 1998 in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully (sic), unlawfully and feloniously succeeded in sexually abusing or having sexual intercourse with one AAA, a virgin and 10 years of age. Contrary to Law. Catalino was arraigned on September 1, 1998 with the assistance of counsel and pleaded "not guilty" to the charges. At the trial on the merits, the prosecution presented testimonial4 and documentary5 evidence, while the defense relied on denial and alibi testified to by the accused himself. ANTECEDENT FACTS Ten-year old AAA6 and her younger brother, CCC, were residents of Barangay Deparo, Caloocan City. They lived in the house of Alfonso Obispo (Alfonso) to whom their father entrusted their care. Catalino was their neighbor. Sometime in May 1998 at noontime, AAA answered the call of nature outside Alfonso's house.7 She went to a vacant lot behind a Petron gas station located away from Alfonsos house. While there, Catalino appeared, grabbed and pulled her
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right ankle, causing her to fall to the ground. AAA tried to break away but Catalino clung to her ankle and pulled her to a portion of the lot with tall grasses where he laid her down on bundles of wood (pahigang kahoy). To subdue her, Catalino covered her mouth and poked a kitchen knife at her neck, at the same time undressing her by removing her shorts and panty. Thereafter, he removed his own shorts, placed himself on top of AAA, and proceeded to have sexual intercourse with her by inserting his penis into her vagina. During the sexual intercourse, Catalino held AAA's hands to prevent her from pushing him. Done with the act, he threatened her, "Huwag kang magsusumbong, papatayin ko kayo."8 AAA went home and kept what transpired to herself. The incident was repeated in the morning of June 29, 1998 when Catalino tricked AAA into going to his house, ostensibly to get money for cigarettes he had ordered AAA to buy. Catalino followed her and there, pulled her and again threatened her with a knife.9 He then undressed her and himself, and proceeded to have sexual intercourse with her. The sexual abuse was repeated on the same day before AAA went home. This time, AAA reported the incidents to the Obispos. Alfonso, his son (Joel Obispo)10 and AAA reported the rapes to then Barangay Executive Officer Humphrey Durana,11 who endorsed the report to the police. SPO1 Emilio E. Mabalot12 conducted the police investigation and thereafter referred AAA to Dr. Anthony Llamas, a Philippine National Police medico-legal officer, for medical examination. The genital examination disclosed a deep-healed laceration at the 6 oclock position of her hymen indicating that she was no longer a virgin. The Initial Laboratory Report13 dated July 2, 1998 states: GENITAL: ... On separating the same disclosed a congested posterior fourchette and a membranous-type hymen with a deep healed laceration at the 6[o]' clock position. External vaginal orifice admits the tip of the examiner's smallest finger. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of physical trauma.14
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BBB,15 the mother of AAA, learned that her daughter had been sexually molested when she received a letter from the Department of Social Welfare and Development, Caloocan City. She allegedly suffered mental anguish for what happened to AAA and also incurred expenses in filing cases against Catalino. Catalino denied raping AAA although he admitted knowing her.16 He claimed that he seldom saw her since he went to work early and came home late.17 He further claimed that at the time of the alleged first incident, AAA had been with her father and only returned to the Obispos on June 20, 1998.18 He also claimed that the cases were filed against him because he refused to lend the P3,000.00 that the Obispos needed for their rental payment.19 In fact, Joel Obispo even remarked to him that "Madamot ka, may mangyayari sa inyo." It was after that incident that Alfonso and Joel had him arrested on the charge of raping AAA. They brought him to the barangay office where atanod boxed him to force him to admit the rape.20 The RTC rejected Catalino's defenses of denial and alibi and found him guilty of three counts of rape. On appeal,21 the CA affirmed Catalino's conviction with a modification on the award of damages.22 The dispositive portion of the appellate court's decision states: WHEREFORE, premises considered, the decision of the court a quo finding Catalino Mingming y Discalso guilty of three (3) counts of Statutory rape is AFFIRMED with the MODIFICATION that the accusedappellant is sentenced to suffer the penalty of three (3) reclusion perpetua to be served successively and that the accused-appellant is ordered to pay the victim, for each count of rape, the amount of P50,000.00 as civil indemnity and P25,000.00 as exemplary damages, in addition to the P50,000.00 moral damages awarded by the trial court. Costs against the accused-appellant. SO ORDERED.23 The CA affirmed the RTC decision on the basis of AAA's testimony which it found credible. The CA, in this regard, said: The testimony of AAA is positive while that of the accused is negative. The positive prevails over the negative. Being a ten-year old minor, AAA, a victim of sexual assault, is credible. She has not yet absorbed the wiles of the world. Her testimony, considering her very young age, was straightforward and candid. It is sufficient to convict the accused.
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xxxxxxxxx .... The spontaneity with which the victim has detailed the incidents of rape, the tears she has shed at the stand while recounting her experience, and her consistency almost throughout her account dispel any insinuation of a rehearsed testimony. The eloquent testimony of the victim coupled with the medical findings attesting to her non-virgin state, should be enough to confirm the truth of her charges.24 At the same time, the CA disbelieved Catalinos defense that AAA had ill motives and was influenced by Joel Obispo who bore a grudge against Catalino. The CA took note that it was AAA herself who caused the filing of the cases against him.25 Similarly, the CA discredited the defense's argument that the absence of injuries negated the commission of rape; to the CA, the physical evidence, as established from the medical findings of Dr. Llamas, corroborated her testimony that she had been raped.26 The CA noted that rape can be established even in the absence of external signs or physical injuries or a medical finding relating to such fact as these are not indispensable requisites in proving a crime of rape .27 Catalino filed the present petition after the CA denied his motion for reconsideration in its Resolution dated May 8, 2006. ASSIGNMENT OF ERRORS Catalino argues that the CA committed the following errors: 1. giving credence to the speculative, incredible, and inconsistent testimony of the private complainant; and 2. finding him guilty beyond reasonable doubt of the crime charged. Jointly discussing these issues in his Brief,28 Catalino highlights the errors committed by both the CA and the RTC in believing AAA's testimony. He phrased this argument in the following terms:29 In prosecution for rape, the testimony of the victim is generally scrutinized with great caution for the crime is usually known to her and the rapist (People vs. Ibay, 312 SCRA 153). In the case at bar, the private complainant's testimony is not convincing.

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He advances the view that AAA's testimony suffered from serious flaws that should generate disbelief for being contrary to human experience. Catalino further submits that: AAA's failure to report the rape; her lack of physical injuries; her testimony that he was holding a knife on one hand, and at the same time covering her mouth with the other while he was undressing her; and that she even went to his house after the first incident all demonstrate the incredibility of her testimony. Catalino posits that the rape charges against him were concocted by AAA because she was mad at him.30 He particularly emphasizes that the medical findings of Dr. Llamas showed that a mere three (3) days after the alleged rape, the laceration found in AAA's genital organ was already healed,31 thus medically giving lie to the rape charge. Catalino finally avers that his defenses of denial and alibi have been amply established and should not be disregarded given that the private complainants credibility is doubtful. The Office of the Solicitor General maintains the correctness of Catalino's conviction as the prosecutions evidence -- premised on the credible testimony of AAA -- established his guilt beyond reasonable doubt on all three counts of statutory rape. OUR RULING We affirm Catalinos conviction in Criminal Cases No. C-54195 and No. C54196 but acquit him in Criminal Case No. C-54197. In undertaking this appellate review, we shall be guided by the outlined considerations and by the principle that an appeal opens the entire case for review.32 First, the accused enjoys the constitutional presumption of innocence until final conviction; conviction requires no less than evidence sufficient to arrive at a moral certainty of guilt, not only with respect to the existence of a crime, but, more importantly, of the identity of the accused as the author of the crime. Second, the prosecution's case must rise and fall on its own merits and cannot draw its strength from the weakness of the defense. Third, in rape cases, since the conviction of the accused is usually based on the accusation and testimony of the victim-complainant, her testimony should be
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scrutinized with utmost caution and must show clearly and definitely the commission of the rape and the identity of its perpetrator. Fourth, the assessment of the credibility of the prosecution witnesses, in general, and of the rape complainant, in particular, is a duty firmly lodged on the trial judge owing to his unique position; he sees, perceives and appreciates details in the case that an appellate reviewing court is realistically deprived of. Accordingly, utmost credit is given to the trial judge's findings in the absence of any showing that he misappreciated, misapprehended, or overlooked any evidentiary fact or circumstance material to the outcome of the case. Lastly, Catalino was charged with and convicted of three counts of statutory rape that, although tried jointly, must be treated and viewed as separate and distinct from each other. Thus, the elements of the offense must be proven for each count of rape, save only for the element of age which runs commonly for the three counts. Statutory rape is committed by sexual intercourse with a woman below twelve years of age regardless of her consent, or the lack of it, to the sexual act.33 Proof of force, intimidation or consent is unnecessary; they are not elements of statutory rape;the absence of free consent is conclusively presumed when the victim is below the age of twelve.34 At that age, the law presumes that the victim does not possess discernment and is incapable of giving intelligent consent to the sexual act.35 Thus, to convict an accused of the crime of statutory rape, the prosecution carries the burden of proving: (1) the age of the complainant; (2) the identity of the accused; and (3) the sexual intercourse between the accused and the complainant. The prosecution presented proof of the presence of the required elements. The age of AAA, who was only 10 years old at the time of the incidents complained of, is shown by her Birth Certificate; she was born on May 3, 198836 while the alleged rapes were committed in May and June 1998. On the other hand, the prosecution established Catalinos identification as the perpetrator through the victims positive identification in court.37 AAA categorically testified to the act of sexual intercourse, identifying the perpetrator in the process. By established jurisprudence, sexual intercourse is shown by proof of entry or the introduction of the male organ into the female organ; rape is consummated by the mere "touching" or "entry" of the penis into the labia majora or the labia minora of the pudendum of the victims genitalia.38 The required physical act and its surrounding details were described by AAA when she testified as quoted below.
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On the first rape in May 1998, she stated: Q When Taling pulled you in the grassy portion at the back of the Petron, what did he do next? A Q A Q A xxx Q You said that Taling removed his shorts, after Taling removed his shorts, what did he do next? A Q A He inserted his penis, sir. Where did he insert his penis? He inserted his penis into my vagina. Taling undress[ed] me, sir. What were you wearing then? I was wearing short[s] and T-shirt. Did he remove all your clothings? Yes, sir. [TSN, January 26, 1999, p. 7]

Q And when he inserted his penis into your vagina, what is your position then? A Q A I was lying, sir. And when he inserted his penis into your vagina, how did you feel? It was painful, sir.[Id., p. 8]

On the second rape committed on June 29, 1998, AAA averred: Q A Q

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And when he pulled you inside his house, what happened next? He did something bad to me. Will you tell us what was bad that he did to you?

A Q A Q A Q A Q A xxx Q A

He again raped me, sir. When you said he again raped you, what do you mean rape? He undressed me, sir. And what were you wearing then? I was wearing T-shirt and shorts. And what clothing did he remove[d] from you? My shorts and panty. And after he removed your shorts and panty what did he do next? He also undressed himself.

After removing his shorts, what did he do next? He inserted his penis, sir. [Id., p. 15]

Fiscal Ralar to Witness Q A Where did he insert his penis? [In]to my vagina. [Id., p. 16]

Catalinos plea for exoneration Catalino mainly argues that AAAs testimony is not believable. Arrayed against each other, however, his version of events do not measure up to the same level of credibility that AAAs version has attained for being sincere, consistent, and fully in accord with common human experience. First, Catalino attacks AAAs testimony for her delay in reporting the rape. This imputed delay, however, can only refer to the rape that occurred in May 1998; she reported the rapes of June 29, 1998 on the same day they were committed. In any case, we do not believe that delay in reporting a rape should directly and immediately translate to the conclusion that the reported rape did not take place;
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there can be no hard and fast rule to determine when a delay in reporting a rape can have the effect of affecting the victims credibility. The heavy psychological and social toll alone that a rape accusation exacts on the rape victim already speaks against the view that a delay puts the veracity of a charge of rape in doubt. The effects of threats and the fear that they induce must also be factored in. At least one study shows that the decisive factor for non-reporting and the failure to prosecute a rape is the lack of support - familial, institutional and societal - for the rape victim, given the unfavorable socio-cultural and policy environment.39 All these, to our mind, speak for themselves in negating the conclusion that a delay in reporting a rape is per se sufficient basis to disbelieve an allegation of rape. The more reasonable approach is to take the delay into account but to disregard it if there are justifiable explanations for the victims prolonged silence. In the present case, it appears that AAA was ready to suffer the first rape in silence had it not been from the succeeding sexual attacks that forced her to seek the Obispos assistance. This was apparent from her testimony when she declared:40 Fiscal Ralar to Witness -Q Before Taling left when (sic) he sexually abused you at the back of Petron, did he threaten you? A Q A xxx Q A Q Why did you not tell your lolo Alfonso what Taling did to you? I was afraid. To whom are you afraid? Yes, sir. How did he threaten you? He told me that he will kill us.

Taling. Q A
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Why were you afraid? Because he threatened us sir. [TSN, January 26, 1999, p. 11]

Thus, due to the threats, she remained silent and only broke it when the accused repeated the sexual attack. Apparently, the subsequent attacks brought her silence to the breaking point, forcing her to come out in the open to prevent and avoid further repetitions. Second, Catalinos second argument focuses on what he saw as incompability between the physical (medical) evidence and AAAs testimony since she had healed lacerations when she was medically examined on July 2, 1998 or 4 days after the June 29, 1998 incidents. This argument assumes that the healed laceration pertains to the June 29, 1998 attacks and forgets that before us are three incidents of rape, the first one occurring at least a month earlier (in May 1998). Additionally, the absence of fresh lacerations in the victims hymen does not negate sexual intercourse, nor does it prove that she was not raped;41 a hymenal laceration or its absence is merely corroborative evidence that is not indispensable to a finding of rape. In the words of the Solicitor General, whether the private complainant sustained injuries other than that noted on her hymen by reason of the commission of the crimes is a collateral matter.42 It had nothing to do with proving the elements of the crime.43 What is essential is proof of carnal knowledge between the accused and the victim, i.e., that there be at least penile contact with the latters labia even without the laceration of her hymen.44 Ultimately, a conviction for rape rests on the complainants testimony on the details of the crime. If her testimony meets the test of credibility, that alone is sufficient to convict the accused.45 Third, AAAs presence in Catalinos house (where the second and third rapes allegedly took place) on June 29, 1998 despite having suffered an earlier rape, has to be viewed in the larger context of Catalinos relationship with AAA in order to be fully understood as a circumstance that should not adversely affect AAAs credibility. AAAs testimony shows that even before the first rape incident, she was already afraid of Catalino who was a frequent visitor of the Obispos being a drinking buddy of Joel Obispo.46 She became afraid of him when he got mad at her for not obeying his orders to buy liquor.47 This fear reached the point when she could no longer obey his orders because she was already "too afraid" of him.48 This fear was further heightened when he threatened to kill them after the first rape.49 It was under these circumstances that the rapes of June 29, 1998 took place. AAA testified that in the morning of that day, she passed by Catalinos house and she
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saw him there doing nothing.50 At around 8 a.m. of that same day, she and her little brother were alone in the Obispo house when Catalino came on the pretext of asking her to buy cigarettes for him. At the same time, he asked her to get the money (for the cigarettes) at his house.51Despite her fears (Kinabahan po ako!), she did as she was told. It was while at Catalinos house that she was attacked. These facts sufficiently explain why AAA was at Catalinos house in the morning of June 29, 1998. Plainly and simply, she was a defenseless young girl subdued into obedience and submission by a very much older man who had lust in his heart and his loins. The age disparity alone AAAs 10 years and Catalinos 50 years speaks volumes about this power relationship and how it facilitated the sexual attacks that took place. Fourth, Catalino tries to impress upon this Court that AAA filed a rape case because she was mad at him. This argument, however, is not supported by evidence on record and is in fact contradicted by Catalinos own testimony that he had little interaction with AAA because he was always at work.52 In the normal course of things, anger happens or is aroused by a specific reason; such reason will hardly exist if one has very little interaction with another. Catalinos failure to effectively cite an ill motive for AAAs charges, to our mind, all the more strengthens AAAs credibility and the validity of her charges. Catalino also contradicts himself when he claimed that the grudge Joel Obispo bore against him is the reason for the rape charges laid; later in his testimony, he admitted that he did not know of any person who would convince AAA to accuse him of rape.53 Separately from this contradiction, we simply cannot believe that a woman in her right mind would lend her name and concoct a story of repeated rapes to serve the ends of another persons grudge. Even at her young age, AAA knew that the rapes she suffered carry a stigma of shame. For her to come out in the open and publicly describe her experience at a trial can only be taken as a badge of her sincerity and the truth of her charges. As we held in People v. Dimaano:54 The revelation of an innocent child whose chastity has been abused deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is an eloquent testament to the truth of her complaint. In so testifying, she could only have been impelled to tell the truth, especially in the absence of proof of ill motive. Denial and alibi
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Our judicial experience teaches us that denial and alibi are the common defenses used in rape cases. Sexual abuse is denied on the allegation that the accused was somewhere else and could not have physically committed the crime. We have always held that these two defenses are inherently weak and must be supported by clear and convincing evidence in order to be believed. Moreover, being negative defenses, they cannot prevail over the positive testimony of the complainant.55 For alibi to prosper it is not enough for the defendant to prove that he was somewhere else when the crime was committed; he must likewise demonstrate that it was physically impossible for him to have been at the scene of the crime at the time.56 Alibi necessarily fails when there is positive evidence of the physical presence of the accused at the crime scene. As the evidence stands, AAA has shown that Catalino was a neighbor whom she knew because he was a regular visitor of the Obispos and a "drinking buddy" of Joel Obispo;57 that Catalino was the one who raped her at a vacant lot at noontime in May 1998;58 and it was Catalino who again sexually assaulted her at his (Catalinos) house in the morning of June 29, 1998.59AAAs identification of Catalino as the rapist was positive, clear and categorical. As against these assertions is Catalino's alibi that he was in Sangandaan, Caloocan City (his place of work) at the time of the rape.60 We take judicial notice that Quezon City and Caloocan City are directly adjoining cities whose distance from one another does not render it impossible for Catalino to have been at the scene of the rape in the May 1998 rape. We agree, too, with the CAs finding that, even granting he was at work on June 29, 1998, his alibi that he was in Sangandaan, Caloocan City cannot be given merit because Sangandaan is within the vicinity of the crime scene. He could have easily been at the scene of the crime at the time of its commission.61 We likewise give little weight to his claim that he was at work during the June 29, 1998 incidents. This is an uncorroborated claim as he even failed to show by evidence that he was in fact employed.62 Criminal liability From the evidence presented, we hold that the prosecution amply established the age of the victim. She was ten years old on the dates of the rapes charged as evidenced by her Birth Certificate. The prosecution likewise adduced sufficient evidence showing the sexual intercourse between Catalino and AAA on the first and second rapes (i.e., one in May 1998 and another on June 29, 1998). We see no reason to doubt the sincerity
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of AAAs testimony regarding Catalinos sexual attacks. As we have ruled in not a few cases, when a woman, more so if she is a minor, says she has been raped, she says, in effect, all that is necessary to prove that rape was committed.63 Courts usually give greater weight to the testimony of a girl who is a victim of sexual assault, especially a minor, because no woman would be willing to undergo a public trial and put up with the shame, humiliation and dishonor of exposing her own degradation; she does so only in her desire to rectify an injustice and to punish the offender.64 However, we find no evidence of sexual intercourse or penile penetration with respect to the third rape. We stress in this regard that Catalino stands charged and convicted of rape in three criminal cases. For each of these cases, the prosecution must present evidence sufficient to overturn the constitutional presumption of innocence that the accused enjoys as a matter of right. A finding of rape is a conclusion of law that must be supported by clear and convincing evidence of the facts constituting the elements of the crime. Thus, the prosecution must adduce evidence of sexual intercourse in each of the rapes charged. In the present case, the testimony of AAA on the second and third rape charges immediately followed each other. When the prosecution asked the complainant, what she meant by the word rape, she merely replied that she was "undressed" by Catalino. Follow-up questions had to be asked by the prosecutor to establish that there was penile penetration of Catalino's male organ into AAAs vagina during the second rape, while no such questions were asked with respect to the third rape.65 AAAs testimony with respect to the third rape charge merely stated: Q A How many times did accused Taling rape you on June 29, 1998? Two times, sir. [TSN, January 26, 1999, pp. 16-17]

Fiscal Ralar to Witness Q A Q A In what place did he rape you for the second time? In his house, sir. At what time did the accused rape you for the second time? Also at that time sir. [Id., p. 17]

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In People v. Contreras,66 the absence of conclusive proof of the carnal knowledge that there was introduction of the accuseds male organ to the complainants vagina -- led to the acquittal of the accused in one count of rape. Viewed in this light, we find Catalino's acquittal on the third rape charge to be in order. In making this conclusion, we are keenly aware that without proof of penetration, the crime committed may still constitute attempted rape or acts of lasciviousness.67 Attempted rape, however, requires that the offender commence the commission of rape directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance.68 The prosecution must, therefore, establish the following elements of an attempted felony: 1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offenders act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.69 The evidence on record does not show that the above elements are present, The detailed acts of execution showing an attempt to rape are simply lacking. Thus, we cannot hold Catalino liable for attempted rape. In the same manner, neither can we hold him liable for acts of lasciviousness under Article 336 of the Revised Penal Code, as amended. This crime requires proof of the existence of the following elements: 1. That the offender commits any act of lasciviousness or lewdness. 2. That it is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or

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c. When the offended party is under 12 years of age. 3. That the offended party is another person of either sex.70 While the second and third elements of the offense are sufficiently established, the element of lascivious conduct or lewd act on the part of the accused is not supported by the available evidence. Hence, we cannot conclude that Catalino committed acts of lasciviousness as defined and penalized under the Revised Penal Code. The Proper Penalty Statutory rape is penalized under Article 266-A(1), paragraph (d) of the Revised Penal Code, as amended by Republic Act No. 8353 or the Anti-Rape Law of 1997. The crime carries the penalty of reclusion perpetua unless attended by the qualifying circumstances defined under Article 266-B. In the present case, evidence confirms the use of deadly weapon (a knife) during the commission of the offense, this should be a qualifying circumstance that would raise the imposable penalty to reclusion perpetua to death. We cannot, however, recognize this circumstance as qualifying. When the law or rules specify certain circumstances that can aggravate an offense, or circumstances that would attach to the offense a greater penalty than that ordinarily prescribed, such circumstances must be both alleged and proved to justify the imposition of the increased penalty.71 When a circumstance is not so alleged, it cannot affect the penalty and the corresponding civil liabilities in line with our ruling in People v. Nuguid72 and People v. Sagarino.73 On the basis of this analysis of the applicable law, we find that the CA and the RTC correctly imposed the penalty of reclusion perpetua for each of the first and second rapes. We also sustain the awards of civil indemnity, moral damages and exemplary damages in the two cases in accordance with prevailing jurisprudence on the matter.74 Civil indemnity is awarded upon the finding of rape.75 Similarly, moral damages are awarded to rape complainants without need of pleading or proof of its basis; the law assumes that a rape complainant actually suffered moral injuries entitling her to the award.76 Exemplary damages, on the other hand, are awarded in rape cases to serve as deterrent against the commission of this bestial offense.77 Catalinos acquittal of the third rape charged necessarily carries the deletion of the accompanying awards of civil indemnity and damages made by the lower courts.
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WHEREFORE, premises considered, we hereby AFFIRM the decision dated July 28, 2005 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00149 insofar as it finds Catalino Mingming y Discalso guilty of statutory rapes in Criminal Cases No. C-54195 and No. C-54196. We REVERSE and SET ASIDE his conviction in Criminal Case No. C-54197. SO ORDERED. ARTURO D. BRION Associate Justice

WE CONCUR: LEONARDO A. QUISUMBING Associate Justice Chairperson CONCHITA CARPIO MORALES Associate Justice DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Associate Justice Chairperson

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CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Rollo, pp. 3-16; penned by Associate Justice Amelita G. Tolentino of the Ninth Division with Associate Justice Roberto A. Barrios (deceased) and Associate Justice Vicente S.E. Veloso, concurring.
2

Penned by Judge Silvestre H. Bello; CA rollo, pp. 17-23; the RTC ordered the accused-appellant to pay for each count of rape the amount of P50,000.00 as civil indemnity, and P25,000 as exemplary damages in addition to the award of P50,000.00 as moral damages.
3

Also referred to as "Taling" in the records.

During the trial, the prosecution presented five (5) witnesses, namely: (1) AAA; (2) BBB, the complainant's mother; (3) BarangayExecutive Officer Durana; (4) SPO1 Mabalot; and (5) Dr. Jonathan Seranillo, before resting its case.
5

The documentary pieces of evidence and their respective submarkings are: (1) Birth Certificate of AAA (Exh. "A"); (2) Sinumpaang Salaysay dated July 3, 1998 of AAA (Exh. "B"); (3) Referral Slip sent by the Chief Caloocan City Police Station, Sub Station 5, Isaias C. Antonio, to the Office of the City Prosecutor, Caloocan City; (4) Joint Affidavit dated July 3, 1998 of SPO1 Mabalot and Barangay Executive Officer Durana; (5)Entry in the Barangay Blotter dated July 1, 1998 (Exh. "E"); (6) Mission Order dated November 12, 1999 (Exh. "F"); and (7) Medico-legal Report dated July 2, 1998 (Initial Laboratory Report) prepared by Dr. Llamas (Exh. "G").
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The real name of the victim as well as those of her immediate family members is withheld per Republic Act (R.A.) No. 7610 (An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes) and R.A. No. 9262 (An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefore, and for Other Purposes).
7

TSN, January 26, 1999, p. 6, and February 1, 1999, p. 8. TSN, February 1, 1999, p. 14. Id., p. 17. Also referred to as "Boy" in the records. TSN, July 5, 1999, pp. 1-10; and TSN, July 12, 1999, pp. 2-3. TSN, June 14, 1999, pp. 2-8. Records, p. 160.

10

11

12

13

14

Dr. Jonathan Seranillo, a Philippine National Police medico-legal officer took the witness stand to testify on the medico-legal report prepared by Dr. Llamas; TSN, November 22, 1999, p. 3.
15

TSN, July 5, 1999, pp. 10-18. TSN, July 9, 2001, p. 5. Id., pp. 8 and 16. Id., p. 10. Id., p. 12. Id., p. 14.

16

17

18

19

20

21

Previously made to this Court, but we transferred the case to the CA for intermediate review via our Resolution dated September 22, 2004, pursuant to People v. Mateo, G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
22

Resolution dated September 22, 2004; rollo, p. 29. Rollo, pp. 15-16.

23

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24

Id., pp. 11-12. Id., p. 14. Ibid. Ibid. Brief for the Accused-Appellant; CA rollo, pp. 32-42. Id., p. 37. TSN, February 1, 1999, p. 7. See Supplemental Brief; rollo, pp. 27-32.

25

26

27

28

29

30

31

32

People v. Tonyacao, G.R. Nos. 134531-52, July 7, 2004, 433 SCRA 513, 521; People v. Castillo, G.R. No. 132895, March 10, 2004, 425 SCRA 136, 159; People v. Arves, G.R. Nos. 134628-30, October 13, 2000, 343 SCRA 123, 138; and People v. Castillo, G.R. Nos. 131592-93, February 15, 2000, 325 SCRA 613, 619.
33

People v. Jalosjos, G.R. Nos. 132875-76, November 16, 2001, 369 SCRA 179, 219. People v. Escultor, G.R. Nos. 149366-67, May 27, 2004, 429 SCRA 651, 667. People v. Jalosjos, supra note 33, p. 219. Record, p. 152. TSN, January 26, 1999, p. 5. People v. Aguiluz, G.R. No. 133480, March 15, 2001, 354 SCRA 465, 472.

34

35

36

37

38

39

Justice and Healing: Twin Imperatives for the Twin Laws Against Rape by Atty. Soliman M. Santos, Jr., Merci Llarinas-Angeles, and Roberto M. Ador, Philippine Legislators Committee on Population and Development Foundation, Inc. http://www.childprotection.org.ph as of September 30, 2008.
40

TSN, January 26, 1999, pp. 10-11. People v. Aguiluz, supra note 38, p. 472. Brief for the Plaintiff-Appellee, pp. 9-10. Id., p. 10.

41

42

43

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44

People v. Aguiluz, supra note 38, p. 472 Ibid. TSN, February 1, 1999, pp. 5-6. Id., p. 6. Id., p. 7. TSN, January 26, 1999, p. 11, and TSN, February 1, 1999, p. 14. TSN, January 26, 1999, pp. 5-6. Id., pp. 12-13. TSN, July 9, 2001, p. 17. Id., pp. 12 and 17. G.R. No. 168168, September 14, 2005, 469 SCRA 647, 658. People v. Bon, G.R. No. 166401, October 20, 2006, 506 SCRA 168, 185. Id., pp. 185-186. TSN, February 1, 1999, p. 6. TSN, January 26, 1999, p. 6. Id., pp. 12 and 15. TSN, July 9, 2001, p. 24. CA Decision dated July 28, 2005, p. 10. TSN, July 9, 2001, pp. 24-25. People v. De Guzman, G.R. Nos. 140333-34, December 11, 2001, 372 SCRA 95, 109. Id., pp. 109-110. TSN, January 26, 1999, p. 15. G.R. Nos. 137123-34, August 23, 2000, 338 SCRA 622, 640.

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

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67

People v. Abanilla, G.R. Nos. 148673-75, October 17, 2003, 413 SCRA 654, 666. Ibid. People v. Contreras, supra note 66, p. 644. Id., p. 646. People v. Nuguid, G.R. No. 148991, January 21, 2004, 420 SCRA 533, 559. Ibid. G.R. Nos. 135356-58, September 4, 2001, 364 SCRA 438, 449.

68

69

70

71

72

73

74

People v. Limos, G.R. Nos. 122114-17, January 20, 2004, 420 SCRA 183, 205; SEE: People v. Morio, G.R. No. 176265, April 30, 2008; and People v. Jusayan, 428 SCRA 228 (2004).
75

People v. Jalosjos, supra note 33, p. 220. People v. Dimaano, supra note 56, p. 670. People v. Sagarino, supra note 73, p. 450.

76

77

B. FRUSTRATED STAGE
1. People vs. Esqueda, G.r. no. 170222, June 18, 2009
THIRD DIVISION EDGAR ESQUEDA, Petitioner, Present: YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ. G.R. No. 170222

- versus -

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PEOPLE OF THEPHILIPPINES, Respondent.

Promulgated: June 18, 2009

x--------------------------------------------------x

DECISION

PERALTA, J.: This is a Petition for Review on Certiorari of the Decision[1] dated August 19, 2004 and the Resolution[2] dated April 26, 2005 of the Court of Appeals (CA) in CA-G.R. CR No. 26235, affirming the trial court's judgment finding Edgar Esqueda guilty beyond reasonable doubt of the crime of frustrated homicide.

Edgar Esqueda and one John Doe were charged with two (2) counts of Frustrated Murder in two (2) separate Amended Informations, which read: In Criminal Case No. 14609

That on or about 11:30 o'clock in the evening of March 3, 1999, at Nagbinlod, Sta. Catalina, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with one John Doe, conspiring, confederating and helping one another, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one VENANCIA ALISER with the use of a knife with which the said accused were then armed and provided, thereby inflicting upon the said victim multiple injuries, thus performing all the acts of execution which would have produce (sic) the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the perpetrators, that is, by the timely and able medical attendance rendered to said Venancia Aliser which prevented her death.

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Contrary to Article 248, in relation to Articles 6 and 5, of the Revised Penal Code.[3]

In Criminal Case No. 14612

That on or about 11:30 o'clock in the evening of March 3, 1999, at Nagbinlod, Sta. Catalina, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with one John Doe, conspiring, confederating and helping one another, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and stab one GAUDENCIO QUINIQUITO with the use of a knife with which the said accused were then armed and provided, thereby inflicting upon the said victim multiple injuries, thus performing all the acts of execution which would have produce (sic) the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the perpetrators, that is, by the timely and able medical attendance rendered to said GAUDENCIO QUINIQUITO which prevented his death. Contrary to Article 248, in relation to Articles 6 and 5, of the Revised Penal Code.[4]

Accused Edgar entered a plea of not guilty. Accused John Doe remains atlarge.

During the pre-trial, the parties admitted the identities of the accused and of the private offended parties, the jurisdiction of the court and that the accused and the private offended parties were all residents of Nagbinlod, Sta. Catalina, Negros Oriental. Since the evidence to be presented were common to both cases, the parties through their respective counsels agreed to a joint trial.[5]

The prosecution presented the testimonies of Venancia Aliser, Gaudencio Quiniquito and Dr. Fidencio G. Aurelia, hospital chief of the Bayawan District Hospital. The evidence of the prosecution tends to establish the following course of events:
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Venancia Aliser (Venancia) and Gaudencio Quiniquito (Gaudencio) are livein partners, living at Sitio Nagbinlod, Sta. Catalina, Negros Oriental, together with their children from their first marriages. They were already in bed when, at around 11:30 o'clock in the evening of March 3, 1999, Gaudencio was awakened by a voice coming from the outside of their house calling his live-in partner and asking for a drink. He immediately awakened his live-in partner. While inside the house, Venancia asked the person outside to identify himself. In response, the voice replied that he and his companions are men of Sgt. Torres conducting a roving patrol. When Venancia asked how many they were, the person replied that they are many and with them is Toto Vibar, the son of their Barangay Captain. Venancia directed Gaudencio to light a lamp. After lighting the lamp, Gaudencio proceeded to open the door and went out, while Venancia tailed him and stayed by the door. Outside, at the porch, they found a person sitting on a bamboo bench whom they could not identify, while a person whom they identified as Edgar Esqueda (petitioner herein) was standing at the side of the door leading to the porch. Suddenly, the unidentified man stood up and stabbed Gaudencio hitting him on the chest. When Venancia saw the stabbing, she shouted watch out Dong! and she turned her back to run away but was stabbed by petitioner. She then fell to the ground, but petitioner continued stabbing her on different parts of her body. Gaudencio lost his consciousness. Their children brought them to the crossing in Nagbinlod and they were brought to the Bayawan District Hospital by a barangay councilman. Dr. Patrocinio Garupa was the attending physician who treated them. The medical certificate of Gaudencio showed that he sustained a perforating stab wound at the left anterior chest, stab wounds at the neck, left arm and left part of the axillary area.[6] Venancia's certificate showed that she suffered from multiple stab and incised wounds.[7] SPO1 Jamandron conducted his initial investigation at the hospital by interrogating Venancia and Gaudencio. The offended parties were referred to the Negros Oriental Provincial Hospital, where they were confined for more than a week.
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The defense, on the other hand, presented the testimonies of Claudio Babor, Domingo Dimol, SPO4 Hermenegildo Cadungog, SPO1 Winefredo Jamandron, Viviana Namoco and the accused Esqueda. The evidence of the defense was intended to establish the following: On March 3, 1999, from 8 o'clock in the evening to 2 o'clock in the morning of March 4, 1999, petitioner was trawl-fishing in the sea of Cawitan, Sta. Catalina. Claudio Babor testified that he was also trawl- fishing at the same time. He and petitioner, together with their respective companions, were on different boats, which were side by side. Both were able to catch Atayatay and Tulakhang. Domingo Dimol was at the beach of Cawitan, Sta. Catalina. He stayed there from 8 oclock in the evening of March 3, 1999 until 2 o'clock in the morning of the following day waiting for petitioner and Claudio to buy fish from them. At 2 o'clock in the morning, petitioner came ashore and Domingo bought fish from him. Viviana was at the seashore of Cawitan, Sta. Catalina from 8 o'clock in the evening of March 3, 1999 until 2 o'clock in the morning of March 4, 1999. She, together with twenty other persons, helped the group of petitioner in pulling the rope of the fishing net. Petitioner was manning the rudder. She said that there were two fishing groups. At 2 o'clock in the morning, they all went home and petitioner gave her fish for free. SPO1 Jamandron conducted the initial investigation in the morning of March 4, 1999 at the Bayawan Emergency Hospital where Gaudencio and Venancia were confined. His investigation revealed that Gaudencio and Venancia could not identify their assailants. He also testified that Gaudencio and Venancia

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were both conscious, but were in pain during the investigation. He recorded the result of his investigation in the police blotter. Petitioner denied having committed the crime imputed against him. On December 12, 2001, the Regional Trial Court (RTC) of Dumaguete City, Branch 33, rendered a Decision[8] acquitting the petitioner in Criminal Case No. 14612 and convicting him in Criminal Case No. 14609. The dispositive portion of the Decision is as follows:
WHEREFORE, from the foregoing considerations, this Court finds accused, Edgar Esqueda, guilty beyond reasonable doubt of the crime of frustrated homicide in Criminal Case No. 14609. Since there is (sic) no mitigating and aggravating circumstances to offset each other and after applying the Indeterminate Sentence Law, accused Edgar Esqueda is hereby sentenced to suffer the penalty of imprisonment of two (2) years, six (6) months and twenty (20) days of prision correccional, as minimum, to eight (8) years, four (4) months and ten (10) days of prision mayor medium, as maximum. Since the complainant, Venancia Aliser, was not able to produce evidence as to how much she spent for her hospitalization nor presented evidence to prove other damages, this Court is constrained not to award her damages. Since the element of conspiracy had not been sufficiently established by the prosecution and as had been admitted that it was the unknown person who stabbed Gaudencio Quiniquito, accused Edgar Esqueda is hereby acquitted in Criminal Case No. 14612.

Petitioner filed a Notice of Appeal[9] and the records of the case were transmitted to the CA. The CA rendered a Decision[10] dated August 19, 2004 dismissing the appeal and affirming the decision of the RTC. The dispositive portion of the decision states:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the appeal filed in this case and AFFIRMING the decision dated December 12, 2001 of the RTC of Dumaguete City in Criminal Case No. 14609.
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Hence, this petition assigning the following error:

WHETHER THE TRIAL COURT GRAVELY ERRED IN FINDING THE PETITONER GUILTY BEYOND REASONABLE DOUBT OF FRUSTRATED HOMICIDE AND IN TOTALLY DISREGARDING HIS DEFENSE.

Petitioner's defense is anchored on alibi and denial. His witnesses, Claudio, Domingo and Viviana, aver that during the time of the incident, petitioner was out at sea fishing. Petitioner, when called to the witness stand, denied having committed the crime.

Further, in his petition, petitioner alleges that Venancia may have had a motive in falsely accusing him of crime. Furthermore, the private offended parties failed to identify the perpetrators during the initial investigation. Petitioner averred that the private offended parties should have informed the authorities of the identities of their assailant during the initial investigation. He insisted that the trial court erred in totally disregarding his defense, which resulted in his conviction. In its Comment to the Petition, respondent, through the Office of the Solicitor General (OSG), averred that the issues raised by the petitioner are factual, hence, inappropriate in a petition for review on certiorari before this Court. The petition is denied for lack of merit.

We have unfailingly held that alibi and denial being inherently weak cannot prevail over the positive identification of the accused as the perpetrator of the crime.[11] In the present case, petitioner was positively identified by Venancia and

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Gaudencio as the author of the crime. We quote from the transcript of the stenographic notes:
Venancia on Direct-Examination PRIVATE PROSECUTOR MARCELO FLORES: Q. A. Q. A. What did you do when your live-in partner opened the door? He went out and I followed him. What transpired after that? When he went out, I saw that he was stabbed by the person who was seated. Where was that person seated? On a chair in the balcony. What kind of chair? A bench. When he was stabbed, what did you do, if any? When I saw it, I called out saying, watch out Dong, and I turned my back, and when I turned my back, I was stabbed by Edgar Esqueda. When your live-in partner was stabbed, was he hit? Yes. What part of his body was hit? The first stab he was hit on the chest. When you saw your husband hit on the chest, what did you do? I shouted watch out Dong, and when I turned my back, I was stabbed by Edgar Esqueda. When that person stabbed your husband hitting him on the chest, where was Edgar Esqueda? Inside, and he already stabbed me inside the house. When you were stabbed for the first time by Esqueda, were you hit? I was hit here (witness showing a scar located at the left side of her back, located at the waistline). How many times were you stabbed at the back? Nine times.

Q. A. Q. A. Q. A.

Q. A. Q. A. Q. A.

Q. A. Q. A.

Q. A.

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Q. A. Q. A. Q. A. Q. A. Q. A.

At the back only. Twice. After you were stabbed twice at the back, what happened to you? I fell. When you fell, what did Edgar Esqueda do? He continued stabbing me. How many wounds did you suffer by (sic) the stabbing of Edgar Esqueda? Nine. Is that Edgar Esqueda who stabbed you nine times the same Edgar Esqueda the accused in this case? Yes.[12]

xxxx

Venancia on Cross-Examination. ATTY. ELMIDO Q. By requesting your live-in partner to light the kerosene lamp, we are correct to assume that the place around your house was dark, especially it was 11:30 in the evening. Yes, because it was 11:30 in the evening, but if you go out there was a light from the moon. It was a moon-lit night. Yes. You still have to light the kerosene lamp even if it was a moon-lit night? Yes. Can you see the faces of those waking you up, calling you outside even if you have not yet lighted the kerosene lamp? Yes, I saw their faces. You are sure of that? Yes, because there was a light coming from the moon, besides, our house has no wall. You are sure, even if you did not light the kerosene lamp, you could see the faces of those calling you? Yes, but I only knew Edgar Esqueda.

A.

Q. A. Q. A. Q. A. Q. A.

Q. A.

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Q. A.

You could identify Edgar Esqueda even without lighting the kerosene lamp? Yes.[13]

It was firmness born of certainty that Venancia positively identified the petitioner as the one who stabbed her. She testified that she was able to see the petitioner even if the crime was committed at night. It was not completely dark, as the light coming from the moon illuminated the porch of their house. Notably, another witness, Venancia's live-in partner, Gaudencio, corroborated Venancia's testimony. Gaudencio's testimony on direct examination reveals the following:
PRIVATE PROSECUTOR MARCELO FLORES: Q. A. Then, what did you do after hearing the request of Venancia Aliser? After that, I lighted the lamp and we went out. I was ahead and she was following me. Were you able to reach the door that night? While we were already outside we saw two persons. One was standing near the door, while the other one was sitting down. Who was that sitting? I do not know the person who was sitting. How about the one standing? I know him. Who was he? Edgar Esqueda alias Loloy. Edgar Esqueda, the accused you identified in these cases? Yes, Sir. Upon seeing those two persons, one sitting, the other one accused Edgar Esqueda was standing, what transpired, if any? The person who was sitting down stabbed me.[14]

Q. A.

Q. A. Q. A. Q. A. Q. A. Q. A. xxxx
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Q. A. Q. A. Q. A. Q. A. Q. A.

Now, let us go to your first stabbing. When you were first stabbed, where was your common-law wife, Venancia Aliser? Inside the house standing near the door. What happened to her, if any? She was also stabbed by Edgar Esqueda alias Loloy. Do you know what did (sic) accused Edgar Esqueda used (sic) in stabbing Venancia Aliser? A hunting knife. Was Venancia Aliser hit by the first stabbing by Edgar Esqueda? Yes. Whereat? On her side (witness touching the left side of his body on the waistline).[15]

In fine, Venancia and Gaudencio both testified in a straightforward and categorical manner regarding the identity of the petitioner as the author of the wounds sustained by Venancia.

In the present case, there appears to be a clash between the categorical statement of the prosecution, on one hand, and the defense of denial by the petitioner, on the other hand. We rule that the rivalry should be resolved in favor of the prosecution. Between the categorical statements of the prosecution witnesses and the bare denial of the petitioner, the former must perforce prevail. An affirmative testimony is far stronger than a negative testimony, especially when it comes from the mouth of a credible witness. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. They are considered with suspicion and always received with caution, not only because they are inherently weak and unreliable, but also because they are easily fabricated and concocted.[16] In light of the foregoing, the defense of denial collapses.
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The same fate awaits the defense of alibi.

Basic is the rule that for alibi to prosper, the accused must prove that he was somewhere else when the crime was committed and that it was physically impossible for him to have been at the scene of the crime. Physical impossibility refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.[17] Where there is least chance for the accused to be present at the crime scene, the defense of alibi must fail.[18] Aside from the testimonies of petitioner's witnesses that he was fishing at Cawitan, Sta. Catalina from 8 o'clock in the evening of March 3, 1999 until 2 o'clock in the morning the following day, petitioner was unable to show that it was physically impossible for him to be at the scene of the crime. During the trial of the case, both the prosecution and defense witnesses testified that Nagbinlod and Cawitan, Sta. Catalina, were merely more than 5 kilometers apart which would only take about 20 to 40 minutes ride. Thus, it was not physically impossible for the petitioner to be at the locus criminis at the time of the incident.

In addition, positive identification destroys the defense of alibi and renders it impotent, especially where such identification is credible and categorical.[19] Petitioner's allegation that Venancia may have had a motive in falsely accusing him of a crime is bereft of merit. Although there is a possibility that Venancia and petitioner's mother were not in good terms due to a case of grave slander by deed that Venancia filed
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against petitioner's mother, We believe that such incident is not sufficient provocation for Venancia to give perjured evidence in order to impute a grave felony against the petitioner. If petitioner had really nothing to do with the crime, it is against the natural order of events and human nature, and against the presumption of good faith, that a prosecution witness would falsely testify against him.[20] Further, assuming that Venancia may have had a grudge against petitioner's mother due to the foregoing case, still, the same would not affect the credibility of her testimony. In People v. Medina[21] and People v. Oliano[22] the existence of a grudge or an ill motive does not automatically render the testimony of a witness to be false and unreliable. Petitioner's allegation of false motive in charging him with a crime cannot overcome the affirmative and categorical statements of the prosecution witnesses pointing to him as the malefactor. Petitioner insisted that the offended parties failed to identify the perpetrators during the initial investigation by the police, thus, casting doubt on the identity of the perpetrator. The argument is way off the mark. Delay or vacillation in making a criminal accusation does not necessarily impair the credibility of witnesses if such delay is satisfactorily explained.[23] In her Affidavit,[24] Venancia explained that she did not immediately disclose the identity of the accused because she was afraid that the perpetrators would kill her and her husband in the hospital. Further, they feared that a certain Cardo
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Quiniquito, who was said to have tailed the perpetrators after the incident, was missing. This prompted the private offended parties to seek police assistance to locate Cardo's whereabouts. When investigated, Cardo Quiniquito said that he did not follow the suspect, but he escaped because of fear. From the foregoing, it is clear that Venancia's failure to disclose the identity of the perpetrators was due to fear of reprisal. In People v. Ompad, Jr.,[25] it was settled that delay in divulging the names of perpetrators of crimes, if sufficiently explained, does not impair the credibility of the witness and his testimony. The initial reluctance of a witness due to fear of reprisal is common and does not impair his credibility. What matters is that Venancia and Gaudencio testified, and the trial court found their testimonies credible. In sum, we find that the evidence of petitioner's guilt was sufficiently established. The trial court had the unique opportunity of observing the witnesses firsthand as they testified, and it was, therefore, in the best position to assess whether these witnesses were telling the truth or not. The substance of the testimonies for the prosecution corresponded with the trial court's findings and intrinsically merited full faith and credence. The defenses evidence, on the other hand, provided no facts and circumstances of weight and substance sufficient to cast doubt on the trial courts evaluation of the credibility of the prosecutions witnesses.[26] However, with regard to the proper crime committed, We are inclined to modify the trial courts ruling. Petitioner was charged with frustrated murder in an Amended Information. After trial on the merits, the court found that petitioner committed the crime of

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frustrated homicide. The trial court found that treachery, which would qualify the crime to frustrated murder, was wanting in the present case. The trial court found that Venancia was already aware of what would happen to Gaudencio because she shouted watch out Dong before Gaudencio was stabbed. Before Venancia was stabbed by petitioner, she too was aware of the fate that befell her, because she tried to retreat to the confines of her house when she herself was unfortunately stabbed. The trial court postulated that Venancia must have already been alerted and forewarned of the impending attack; thus, there was no treachery.

We rule that the trial court's finding that there was no treachery is misplaced. To begin with, an appeal in a criminal case opens the entire case for review on any question including one not raised by the parties.[27] We find ample evidence to establish that treachery attended the commission of the crime. There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might take.[28]

There is treachery when the following essential elements are present, viz.: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself.[29]

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In the present case, treachery in the commission of the crime was sufficiently proven by the prosecution. When Gaudencio opened the door and went outside, Venancia tailed him. There they found two persons at the porch, one sitting at the bench and the other standing. Without warning, the unidentified man stood up and stabbed Gaudencio in the chest. Upon seeing this, Venancia shouted Watch out, Dong! She then turned her back, but was stabbed by petitioner and fell on the ground. While in this position, petitioner continued hitting her on different parts of her body. Clearly, the hapless Venancia was stabbed immediately after the unidentified person stabbed her live-in partner, thus, giving her no opportunity to retaliate or defend herself. It could not have taken Venancia more than a second or two to run after Gaudencio was stabbed. The method of attack adopted by the petitioner placed Venancia in a situation where it would be impossible for her to resist the attack or defend her person. The suddenness of the attack is shown by the fact that Venancia was immediately stabbed by petitioner right after she turned her back to run. She was not able to safely distance herself due to the suddenness of the attack. Further, before opening the door, she and her live-in partner had no inkling that they would be attacked, since petitioner did not reveal his true identity to the victims. His partner in crime misrepresented that they were the men of Sgt. Torres and with them was Toto Vibar, the son of the barangaycaptain. Petitioner misled the victims, so the latter lowered their guard and suspicion. Thereafter, when the door was opened, the malefactors attacked them. Indeed, all these circumstances indicate that the assault on the victims was treacherous. Venancia, in her testimony, said:
PRIVATE PROSECUTOR MARCELO FLORES Q. When you saw your husband hit on the chest, what did you do?

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A.

I shouted watch out Dong, and when I turned my back I was stabbed by Edgar Esqueda.[30]

Treachery may also be appreciated even if the victim was warned of the danger to her life if she was defenseless and unable to flee at the time of the infliction of the coup de grace.[31]

Although Venancia witnessed the stabbing of Gaudencio and was able to warn Gaudencio of further assaults, she too, was immediately attacked while she was defenseless. She was unable to safely distance herself due to the swiftness of the attack. From the foregoing, it is evident that the crime was committed with alevosia. Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code, which reads:
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows: 1. The offender performs all the acts of execution; 2. All the acts performed would produce the felony as a consequence; 3. But the felony is not produced; and 4. By reason of causes independent of the will of the perpetrator.[32]

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A crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that is necessary to consummate the crime. However, the crime is not consummated by reason of the intervention of causes independent of the will of the offender. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance.[33] In the case at bar, petitioner commenced the performance of his unlawful act by stabbing Venancia at the back. After she was stabbed and fell on the ground, petitioners intent to consummate the crime was shown by the fact that he continued stabbing Venancia even while she was on the ground.
Venancia on Direct Examination PRIVATE PROSECUTOR MARCELO FLORES Q. A. Q. A. After you were stabbed twice at the back, what happened to you? I fell. When you fell, what did Edgar Esqueda do? He continued stabbing me.[34]

Petitioner did all that was necessary to bring an end to the life of Venancia. However, the crime was not produced by reason of the timely medical intervention. Dr. Aurelia said that the wounds suffered by Venancia might have been caused by a sharp, pointed and sharp-edged instrument, and without proper medical attendance it might have resulted to death.
Dr. Fidencio G. Aurelia on Direct Examination
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PRIVATE PROSECUTOR MARCELO G. FLORES Q. I am showing to you another medical certificate of one Venancia Aliser dated March 6, 2001, which alleged that she was admitted thereat on March 4, 1999, 1:30 A.M., please examine this and tell us if you can identify that? Still I signed in behalf of Dr. Garupa and noted by myself as the chief of hospital.

A.

Q. A.

Will you please read to us the findings of (sic) the wounds she suffered? Multiple stab and incised wound, this is a general statement which was taken from the clinical records based on the medical records. What does your medical records state? Multiple stab and incised wounds. What could have caused these wounds? It might be caused by a sharp, pointed and a sharp-edged instrument. Could this cause death without medical attendance? Without proper medical attendance it may result to death.[35]

Q. A. Q. A. Q. A.

If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim, or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim. Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) the words uttered by the offender at the time the injuries are inflicted by him on the victim.[36] In the case at bar, the intent to kill was sufficiently proven by the prosecution. The manner in which the crime was committed was shown by the fact that petitioner was armed with a knife. Petitioner's attack on the unarmed Venancia was swift and sudden. She had no means and there was no time to
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defend herself. Further, after she was stabbed and fell to the ground, the petitioner continued hitting her on different parts of her body, thereby showing petitioner's intent to kill her. Dr. Fidencio G. Aurelia, Chief of the Bayawan District Hospital, read the medical certificate of Venancia which he signed for and in behalf of Dr. Patrocinio Garupa. The certificate showed that she suffered from multiple stab and incised wounds[37] on the left lumbar, left upper posterior chest, and on the left leg and left thigh.[38] Dr. Aurelia said that the wounds might have been caused by a sharp, pointed and sharp-edged instrument, and may have resulted to death without proper medical attendance. Venancia was also hospitalized for more than a week because of the injuries. In fact, at the trial, Venancia showed the scar located at the left side of her back, near her waistline.[39] All these tend to show the nature and seriousness of the wounds suffered by Venancia, which might have caused her death had it not been for the timely intervention of medical science. The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is reclusion temporal.[40] Applying the Indeterminate Sentence Law,[41] the maximum of the indeterminate penalty should be taken from reclusion temporal in its medium period, the penalty for the crime taking into account any modifying circumstances in the commission of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance in the commission of frustrated murder, an indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum, is considered reasonable for the crime of frustrated murder under the facts of this case.

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The trial court did not award damages to Venancia because the prosecution failed to present any evidence to substantiate her hospitalization expenses nor did it present evidence to prove other damages. We rule that Venancia is entitled to damages. Where the amount of actual damages cannot be determined because of the absence of supporting receipts but entitlement is shown by the facts of the case, temperate damages in the amount of P25,000.00 may be awarded.[42] In light of the fact that Venancia suffered injuries, was actually hospitalized and underwent medical treatment, it is prudent to award temperate damages in the amount of P25,000.00, in lieu of actual damages. Further, the award of exemplary damages is also in order, considering that the crime was attended by the qualifying circumstance of treachery. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P30,000.00 as exemplary damages in accordance with Article 2230 of the New Civil Code and under existing jurisprudence is justifiable. This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.[43]

Furthermore, Venancia is entitled to moral damages which this Court hereby awards in the amount of P40,000.00. Although she did not testify on the moral damages she suffered, the medical certificate issued by the hospital indicated that she suffered multiple stab wounds and incised wounds inflicted by the petitioner. This is sufficient basis to award moral damages as ordinary human experience and common sense dictate that such wounds inflicted on her would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar injury.[44]
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Finally, since Venancia hired a private prosecutor to prosecute her case, an award of attorney's fees in the amount of P10,000.00 is in order. Under Article 2208(11) of the Civil Code, attorney's fees can be awarded where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.[45]

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 26235, affirming the Decision of the RTC of Dumaguete City, Branch 33, which found petitioner Edgar Esqueda guilty of the crime of Frustrated Homicide is SET ASIDE and a new one entered finding petitioner GUILTY beyond reasonable doubt of the crime of Frustrated Murder under Article 248, in relation to Article 6, first paragraph of the Revised Penal Code, and is sentenced to suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporalmedium, as maximum.

Additionally, petitioner is ORDERED to pay Venancia Aliser the amount of P25,000.00 as temperate damages; P40,000.00 as moral damages; P30,000.00 as exemplary damages; and P10,000.00 as attorneys fees. SO ORDERED.

DIOSDADO M. PERALTA Associate Justice WE CONCUR:

CONSUELO YNARES-SANTIAGO
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Associate Justice Chairperson

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Third Division, Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.
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REYNATO S. PUNO Chief Justice

[1]

Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Elvi John S. Asuncion and Ramon Bato, Jr., concurring; rollo, pp. 48-56. [2] Id. at 61-63. [3] Records, p. 128. [4] Id. at 129. [5] Id. at 136. [6] Id. at 190. [7] Id. at 191. [8] Rollo, pp. 29-35. [9] Records, pp. 246-247. [10] Rollo, pp. 48-56. [11] People v. Mapalo, G.R. No. 172608, February 6, 2007, 514 SCRA 689, 708-709, citing People v. Clores, Jr., 431 SCRA 210, 218 (2004). [12] TSN, October 18, 2000, pp. 5-7. (Emphasis supplied.) [13] Id. at 13. (Emphasis supplied.) [14] TSN, October 30, 2000, pp. 10-11. (Emphasis supplied.) [15] Id. at 12-13. [16] People v. Togahan, G.R. No. 174064, June 8, 2007, 524 SCRA 557, 573-574. [17] People v. Delim, G.R. No. 175942, September 13, 2007, 533 SCRA 366, 379. [18] People v. FO1 Felipe Dela Cruz, Audi Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari Delos Reyes, Dominador Recepcion and Robert Alfonso, G.R. No. 168173, December 24, 2008. [19] People v. Casitas, Jr. G.R. No. 137404, February 14, 2003, 397 SCRA 382, 397. [20] People v. Enciso, G.R. No. 105361, June 25, 1993, 223 SCRA 675, 686. [21] G.R. No. 155256, July 30, 2004, 435 SCRA 610, 620. [22] G.R. No. 119013, March 6, 1998, 287 SCRA 158, 169. [23] People v. Lovedorial, G.R. No. 139340, January 17, 2001, 349 SCRA 402, 415. [24] Records, p. 8. [25] G.R. Nos. 93730-31, June 10, 1994, 233 SCRA 62, 66. [26] People v. Felipe Dela Cruz, et al., supra note 18. [27] Martinez v. Court of Appeals, G.R. No. 168827, April 13, 2007, 521 SCRA 176, 200. [28] Revised Penal Code, Art. 14, par. 16. [29] People v. Escote, Jr., G.R. No. 140756, April 4, 2003, 400 SCRA 603, 632-633. [30] TSN, October 18, 2000, p. 6. [31] People v. Escote, Jr., supra note 29, at 633. [32] People v. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400 SCRA 424, 441. [33] Id. at 442. [34] TSN, October 18, 2000, pp. 6-7. (Emphasis supplied.) [35] TSN, March 27, 2001, pp. 8- 9.

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[36] [37] [38] [39] [40] [41] [42]

People v. Caballero, supra note 32, at 442. TSN, March 27, 2001, pp. 8-9. Id. at 18. TSN, October 18, 2000, p. 6. Revised Penal Code, Art. 61, par. 2. Act No. 4103, as amended by Act No. 4225. People v. FOI Felipe Dela Cruz, et al., supra note 18, citing People v. Abrazaldo, 397 SCRA 137, 149People v. Tolentino, G.R. No. 176385, February 26, 2008, 546 SCRA 671, 701-702. Id. at 701, citing People v. Ibaez, 407 SCRA 406, 431 (2003). Ungsod v. People, G.R. No. 158904, December 16, 2005, 478 SCRA 282, 297.

150 (2003).
[43] [44] [45]

2. Mahawan vs. People, G.r. no. 176609, December 18, 2008

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 176609 December 18, 2008

FERNANDO ESTABAS MAHAWAN alias PADO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,1 petitioner Fernando Estabas Mahawan alias Pado, seeks the reversal of the Decision2 of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, which affirmed in toto the Decision3 of the Cebu City Regional Trial Court (RTC), Branch 10, in Criminal Case No. CBU-42385, dated 10 August 2004, finding him guilty of frustrated homicide. The records of the case bear the following facts:
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On 18 October 1996, an Information4 was filed before the RTC charging petitioner with frustrated homicide. The accusatory portion of the information reads: The undersigned Prosecutor I of Cebu City accuses FERNANDO ESTABAS MAHAWAN alias "PADO" of the crime of FRUSTRATED HOMICIDE, committed as follows: That on or about the 5th day of October, 1995, about 9:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a firearm, with deliberate intent and with intent to kill, did then and there attack, assault and use personal violence upon the person of Diosdada Paradero, by firing shots at said Diosdada Paradero, hitting her on the vital parts of her body, thereby inflicting upon her the following physical injuries: "GUNSHOT WOUND POINT OF ENTRY 3rd ICS (LEFT) MCL. NO POINT OF EXIT, 4 PT. PERFORATION DESCENDING COLON, GRADE II LIVER INJURY SEGMENT I, 1.5 CM. DIAPHRAGMATIC RENT (LEFT) INCISED WOUND (LEFT) EAR LOBULE, (RIGHT) WRIST" which injuries, under ordinary circumstance, would cause the death of said Diosdada Paradero, thus performing all the acts of execution which would have produced the crime of homicide, but which nevertheless did not produce it by reason of causes independent of the will of the herein accused, that is, by the timely and able medical assistance rendered to said Diosdada Paradero which prevented her death. When arraigned on 22 April 1997, petitioner, assisted by his counsel de parte, pleaded "Not guilty" to the charge.5Trial on the merits thereafter followed. The prosecution presented as witnesses private complainant Diosdada S. Paradero (Paradero), Dr. James Guardiario (Dr. Guardiario), and Police Chief Inspector Myrna Arreola (Inspector Arreola). Their testimonies, woven together, produce the following narrative: Paradero is a resident of B. Aranas Extension, Cebu City. Her house has two floors. She operates a store on the ground floor, while the second floor is utilized by her and her family as sala and bedrooms.

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On 5 October 1996, at about 9:30 p.m., Paradero was tending her store when petitioner arrived and asked her for a bottle of beer. She told petitioner that there was no more beer. When she was about to open the refrigerator in the store to show petitioner that there was really no more beer, petitioner sneaked inside the store. She closed the refrigerator and faced petitioner. Suddenly, petitioner pulled out a gun (caliber .38 revolver) and shot her on the left chest. She retreated and fell on the ground. As petitioner moved closer to her, she grabbed a kitchen knife nearby to defend herself. Petitioner shot Paradero again but the bullet this time merely grazed her left earlobe. Petitioner snatched the kitchen knife from her hand and fled the store. Paraderos sister and some neighbors brought her to Chong Hua Hospital where the gunshot wound in her left chest was treated. She also underwent a surgical operation on her colon (large intestine), liver and diaphragm as these vital organs were hit by the trajectory of the bullet. Dr. Guardiario performed the said treatment and operation. Meanwhile, petitioner was brought by the police authorities to the Cebu City Police Station for investigation. Thereupon, a paraffin test was conducted on him by Inspector Arreola. The result of the test showed there was gun powder residue on his right hand. On 16 October 1996, Paradero was discharged from the Chong Hua Hospital. On 3 February 1997, Paradero was confined and she underwent another operation on her colon at the Don Vicente Sotto Medical Center. She was discharged therefrom on 14 February 1997.6 The prosecution adduced documentary pieces of evidence to buttress the aforesaid allegations, to wit: (1) medical certificate of Paradero issued by Dr. Guardiario (Exhibit A);7 (2) medical certificate of Paradero issued by the chief of Vicente Sotto Memorial Medical Center (Exhibit B);8 (3) list of expenses and official receipts as regards Paraderos treatment and confinement for a gunshot wound (Exhibit C);9 (4) subpoena duces tecum issued by the RTC to Inspector Arreola (Exhibit D);10 (5) physical science report on the paraffin test conducted on petitioner (Exhibit E);11 and (6) letter-request for paraffin test on petitioner (Exhibit F).12 For its part, the defense presented the testimonies of petitioner and his friend/neighbor named Antonio Artiaga (Artiaga) to refute the accusations against
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him. Petitioner disclaimed any liability and invoked self-defense. His version of the incident, as corroborated by Artiaga on some relevant points, is as follows: On 5 October 1996, at around 9:30 p.m., petitioner went to Paraderos store to buy cigarettes. Upon arriving there, he saw Paradero standing near the stores door. He asked Paradero if he could buy cigarettes. Paradero replied in a loud voice that she did not have any stock of cigarettes. Suddenly, Paradero, then holding a knife, went out of the store and approached him. Paradero tried to stab him with the knife but he parried the thrust. He and Paradero grappled for possession of the knife causing him injury on the left finger. He did let go of Paradero. The latter, however, attacked him again with the knife. This time he was slightly hit by the knife on the stomach. He drew his firearm and shot Paradero who, upon being hit by the bullet, slumped on the ground. He took Paraderos knife and went home. Subsequently, he proceeded to his brothers house where he called a policeman named Senior Police Officer 2 (SPO2) Quevedo. He surrendered to SPO2 Quevedo upon the latters arrival at his (petitioner) brothers house. SPO2 Quevedo brought him to the Cebu City Police Station where he was investigated. Afterwards, he was taken to the Cebu City Medical Center for treatment of the injuries sustained during the incident. Later, he learned that Paradero attacked him with a knife because Paradero had a quarrel with his (petitioner) wifes relative named Dindo Ruiz (Ruiz), who was allegedly stabbed and killed by Paraderosbatabata (subordinates).13 The defense likewise proffered the medical certificate of petitioner to support his claims. The medical certificate states that petitioner was treated for incised wounds on the left finger and for abdominal abrasion.14 After trial, the RTC rendered a Decision convicting petitioner of frustrated homicide, sentencing him to an indeterminate term of 6 years of prision correccional, as minimum, to 10 years of prision mayor, as maximum. He was also ordered to pay Paradero the amounts of P110,000.00 as actual damages, P50,000.00 as exemplary damages, P9,000.00 as unearned income, and P50,000.00 as attorneys fees. The dispositive portion of the RTC Decision reads: WHEREFORE, PREMISES CONSIDERED, this Court finds the accused FERNANDO ESTABAS MAHAWAN, GUILTY of committing the crime of FRUSTRATED HOMICIDE. He is hereby sentenced to suffer the indeterminate term of SIX (6) YEARS of PRISION CORRECCIONAL as

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minimum to TEN (10) YEARS OF PRISION MAYOR as maximum thereto.15 Petitioner filed a motion for reconsideration16 of the RTC Decision but this was denied.17 Undaunted, he appealed to the Court of Appeals. On 25 May 2006, the appellate court promulgated its Decision affirming in toto the RTC Decision. Petitioner sought a reconsideration18 of the appellate courts decision but it was denied.19 Thus, petitioner lodged the instant petition before us assigning the following errors: I. THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING IN ITS QUESTIONED DECISION THAT ACCUSED-APPELLANT, PETITIONER HEREIN, FAILED TO FIRMLY ESTABLISH THAT UNLAWFUL AGGRESSION PRECEDED HIS ATTACK ON THE PRIVATE OFFENDED PARTY; II. COROLLARILY TO THE FOREGOING, BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT LIKEWISE ERRED IN CONCLUDING THAT THE SECOND AND THIRD ELEMENTS OF SELF-DEFENSE ARE WANTING IN THE CASE AT BAR; III. THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN NOT FINDING THAT THERE WAS NO INTENT TO KILL ON THE PART OF ACUSED-APPELLANT, PETITIONER HEREIN; IV. BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN NOT APPRECIATING THE "EQUIPOISE DOCTRINE" IN FAVOR OF THE ACCUSEDAPPELLANT, PETITIONER HEREIN; V.
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THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING IN TOTO THE AWARD FOR DAMAGES GRANTED BY THE LOWER COURT; VI. THE HONORABLE COURT OF APPEALS ERRED IN DENYING ACCUSED-APPELLANTS, PETITIONER HEREIN, EARNEST MOTION FOR RECONSIDERATION WITHOUT CLEARLY SETTING FORTH THE FACTS AND LAW AS BASIS FOR THE DENIAL THEREOF.20 In the main, petitioner argues he should be acquitted because he merely acted in self-defense when he shot Paradero during the incident. It is axiomatic that where an accused pleads self-defense, he thereby admits authorship of the crime. Accordingly, the burden of evidence is shifted to the accused who must then prove with clear and convincing proof the following elements of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the attack; and (3) lack of sufficient provocation on the part of the person defending himself. Although all three elements must concur, self-defense must rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression attributed to the victim is established, there can be no self-defense, whether complete or incomplete. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense to apply.21 As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendants life in actual peril. There is an unlawful aggression on the part of the victim when he puts in actual or imminent danger the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon. To constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.22 Petitioner asserts that the findings of the RTC and the Court of Appeals are in contrast as to whether there was unlawful aggression on the part of Paradero during the incident; that the Court of Appeals erred in concluding that he failed to establish unlawful aggression on the part of Paradero; that such conclusion contradicts the RTCs finding that there was unlawful aggression on the part of
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Paradero; and that the RTCs view is more consistent with the facts and evidence on record as compared with the disquisition of the Court of Appeals.23 We shall first ascertain whether the findings of the RTC and the Court of Appeals are contradictory as to whether petitioner failed to establish unlawful aggression on the part of Paradero. In support of his claim that the RTC found unlawful aggression on the part of Paradero, petitioner quoted the following excerpts24 from the RTC Decision: This Court cannot sustain private complainants claim that accused Mahawan, for a flimsy reason that she had no more beer, would immediately enter her store and shoot her with his firearm. x x x. xxxx Correspondingly, this Court would find Mahawans claim that it was the private complainant who attacked him first, to be in accordance with human knowledge and experience of mankind, more so, that accused has a corroborative witness in the person of Mr. Antonio Artiaga, who testified that he saw private complainant holding a knife and was attempting to stab the accused. As can be gleaned from the foregoing, the RTC believed petitioners allegation that it was Paradero who attacked first during the incident. It should be observed, however, that the RTC does not specifically state or conclude that there was unlawful aggression on the part of Paradero. In the succeeding paragraph, the RTC categorically pronounced that there was insufficient evidence to determine the unlawful aggressor during the incident, thus: In the case at bar, there is insufficient evidence to determine who was the unlawful aggressor from the start, which would qualify accuseds claim of self-defense. It was thus held that: "In the absence of evidence showing that the victim was the unlawful aggressor at the start, the law will consider the aggression as reciprocal between the combatants."25 The subsequent disposition of the RTC implies that although the prosecution failed to show by sufficient evidence that it was petitioner who first attacked Paradero,
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the defense likewise failed to establish that unlawful aggression on the part of Paradero preceded petitioners attack on her. This, in effect, means that petitioner failed to discharge his burden of proving with clear and convincing evidence that there was unlawful aggression on the part of Paradero. This conclusion was evident from the fact that the RTC disregarded petitioners claim of self-defense and convicted the latter of frustrated homicide.26 The seemingly confusing statements in the RTC Decision may be a mere result of inadvertence in the drafting of the same. Nevertheless, petitioner cannot capitalize on such in arguing his case. He cannot pluck and cite some portions of the RTC Decision which fit his defense and disregard or omit those parts which are adverse to him. It should be borne in mind that the decision of the court should be read and understood in its entirety.27 Given the foregoing, we rule that there is no contradiction between the findings of the RTC and the Court of Appeals that petitioner failed to establish unlawful aggression on the part of Paradero. We shall now determine whether the findings of both courts that petitioner failed to establish unlawful aggression on the part of Paradero were correct. Paradero testified that on the night of the incident, petitioner went to her store and asked for a bottle of beer. When she told petitioner that there was no more beer, the latter entered her store, confronted her, and shot her with a gun. There is nothing in the foregoing which evinces unlawful aggression on the part of Paradero. What is clear is that petitioner was the aggressor during the incident. We have carefully examined the testimony of Paradero and found it to be credible and trustworthy. She testified in a clear and consistent manner during the trial. She was faithful and steadfast in recounting her ordeal despite the grueling cross-examination of the defense. Besides, Paradero testified that petitioner was drunk at the time of the incident. She also declared that she had known petitioner since 1988 and that the latter had, under the influence of alcohol, assaulted several persons.28 These circumstances reinforce the allegation petitioners propensity for harming people when he gets drunk. On the other hand, petitioner narrated that when he went to Paraderos store to buy cigarettes, the latter replied in a loud voice that she did not have any stock of cigarettes. Paradero, then holding a knife, suddenly went out of the store and attacked him. This testimony does not inspire belief. It is inconsistent with logic and human experience that after Paradero told petitioner that there were no more
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cigarettes, Paradero would thereafter immediately attack petitioner. Precisely, there was no reason for Paradero to be angry and thereupon assault petitioner. It was petitioner who had more reason to be angry and attack Paradero, because the latter had told him in a loud voice that there were no more cigarettes. Petitioner alleged that Paradero attacked him because she had a grudge against his wifes relative named Dindo Ruiz. He also claimed that Ruiz had been stabbed and killed by Paraderos bata-bata (subordinates). These uncorroborated allegations deserve scant consideration for being unsubstantiated and unsupported by evidence. The fact that petitioner sustained injuries on his hand and stomach, allegedly caused by Paraderos knife, does not signify that he was a victim of unlawful aggression. The medical certificate presented by petitioner states that the latter sustained incised wounds on the 2nd and 5th fingers measuring 2 centimeters and abdominal abrasion measuring 2.5 centimeters. Petitioner was discharged on the same day he was treated in the hospital.29 It is clear from the foregoing that the injuries he sustained were not serious or severe. The superficiality of the injuries was not indication that his life and limb were in actual peril.30 In stark contrast, Paradero sustained a gunshot wound on the left chest. The trajectory of the bullet hit and seriously injured her liver, colon and diaphragm. This caused her to undergo two surgical operations. She also sustained wounds on her left forearm, right wrist and left earlobe. Based on the foregoing, it is difficult to believe that Paradero was the unlawful aggressor. The gravity, location, and number of wounds she sustained belie self-defense on petitioners part.31 Hence, the RTC and the Court of Appeals were correct in concluding that petitioner failed to establish unlawful aggression on the part of Paradero. Apropos the second issue, petitioner maintains that the second element of selfdefense, which is reasonable necessity of the means employed to prevent or repel the attack, was present in the instant case; that although he was younger, taller, and heavier than Paradero, it does not mean that there was no reasonable necessity on his part to shoot Paradero; that the RTC and the Court of Appeals overlooked the fact that he was forced to shoot Paradero because the latter had already stabbed him twice and thus caused a wound on his belly measuring 4 centimeters; that people react differently to a given situation, and that he merely acted under the instinct of self-preservation; that any person placed in his situation during the incident would do the same thing he did and would not risk the chance of being stabbed for the third time or expose himself to unnecessary danger; and that it was unfair to judge his act as totally and morally wrong.
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Further, petitioner avers that the third element of self-defense, which is lack of sufficient provocation on the part of the person making the defense, was present in the case at bar; and that he did not commit any act or omission which provoked Paradero to attack him.32 The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.33 In the case at bar, there was no reason or necessity for petitioner to shoot Paradero with a gun. Paradero was merely tending her store and did not attack or place in danger the life of petitioner during the incident. Even if we are to adopt petitioners version of the incident, his act of shooting Paradero would not also be a reasonable and necessary means of repelling the aggression allegedly initiated by Paradero. As aptly observed by the RTC: Indubitably, considering the age, height, built and sex of the accused and the victim, the accused was 31 years old and about 59 to 510 in height and heavily built, while the victim is frail and about 51, more or less, in height, the struggle for the possession of the knife would be over in a few seconds and accused would be able to disarm the victim. There is, therefore, no immediate need for the accused to fire his gun to stop the victim from attacking him. Proof of this is the knife presented by the accused in court which he had allegedly confiscated from the private complainant.34 In addition, petitioner was armed with a gun while Paradero supposedly held a knife. Petitioner should have fired a warning shot first to ward off Paradero or, if the latter persisted in attacking, fired a shot at a non-vital portion of her body in order to disable her instead of shooting her instantly in the chest. Further, when Paradero allegedly approached and tried to stab him, petitioner was not trapped or cornered in a specific area such that he had no way out. He testified that he and Paradero were outside the store during the incident. He could have run away and called the neighbors or police for help. In short, petitioner had other less harmful options than to shoot Paradero. Indeed, petitioners act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression.

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As we earlier found, petitioner shot Paradero when she told him there was no more stock of cigarettes. Paradero then was forced to grab a knife to defend herself. Clearly, petitioner provoked Paradero and not the other way around. Hence, the element of lack of sufficient provocation on the part of the person making the defense is also wanting in the present case. Self-defense is inherently a weak defense because, as experience has demonstrated, it is easy to fabricate and difficult to prove.35 Thus, for this defense to prosper, the accused must prove with clear and convincing evidence the elements of selfdefense. He must rely on the strength of his own evidence and not on the weakness of that of the prosecution. Even if the evidence of the prosecution is weak, it cannot be disbelieved if the accused admitted responsibility for the crime charged.36 In the case before us, petitioner failed to prove with plausible evidence all the elements of self-defense. Hence, his plea of self-defense must fail. Regarding the third issue, petitioner posits that the fact that he shot Paradero only once showed that he had no intent to kill her. There would have been intent to kill on his part if he shot Paradero several times, but such was not the case. Further, when Paradero fell on the ground, he immediately left the scene. He could have finished her off at that moment if he really intended to kill her.37 An essential element of homicide, whether in its consummated, frustrated or attempted stage, is intent of the offender to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.38 Evidence to prove intent to kill in crimes against persons may consist, inter alia, of the means used by the malefactors; the nature, location and number of wounds sustained by the victim; the conduct of the malefactors before, at the time of, or immediately after the killing of the victim, the circumstances under which the crime was committed; and the motive of the accused.39 In the instant case, petitioner used a lethal weapon, i.e., a gun, in assaulting Paradero. He shot Paradero twice at a distance of two meters.40 The bullet from the first shot hit Paraderos left chest. The trajectory of the bullet hit Paraderos vital organs such as the liver and colon. The bullet from the second shot hit Paraderos left earlobe. Moreover, Dr. Guardiario testified that the injury on Paraderos colon was fatal and would have caused her death were it not for the timely medical attention given her.41 The seriousness of Paraderos injuries was also shown by the
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fact that she was confined and operated on twice in different hospitals for the wound sustained in the colon. Verily, the foregoing circumstances clearly manifest intent to kill on the part of petitioner. Even assuming, arguendo, that Paradero sustained only one gunshot wound, such does not negate intent to kill on the part of petitioner. The number of wounds inflicted is not the sole consideration in proving intent to kill.42 As earlier mentioned, the means used by the malefactors and the nature and location of the wounds also manifest intent to kill. Petitioners use of a gun in shooting Paradero on the chest and the fact that the bullet hit some of her vital organs of Paradero clearly indicate intent to kill. With regard to the fourth issue, petitioner claims that his testimony was corroborated by Artiaga, while the testimony of Paradero was uncorroborated. As such, his testimony deserves credence and the equipoise doctrine should be applied in his favor.43 Credibility is weighed not by the number of witnesses but by the quality of their testimonies.44 Witnesses are to be weighed, not numbered. Evidence is assessed in terms of quality and not quantity. Therefore, it is not uncommon to reach a conclusion of guilt on the basis of the testimony of a lone witness. For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily on the greatest number, and conviction can still be had on the basis of the credible and positive testimony of a single witness.45 We have earlier found the sole testimony of Paradero to be more credible than that of petitioner, even if the latters testimony was corroborated by Artiaga on some relevant points. Paraderos account of the incident was clear and consistent. On the other hand, petitioners narration of the incident, though corroborated by Artiaga, hardly inspires belief, as it does not conform to reason and human experience. Further, the RTC and CA upheld the sole testimony of Paradero over that of petitioner. They concluded that petitioner failed to prove his claim of self-defense despite the fact that her testimony was corroborated by Artiaga. Basic is the rule that factual findings of the trial court deserve great weight and respect especially when affirmed by the appellate court.46 We found no compelling reason to disturb the ruling of both courts. Given the foregoing, Paraderos testimony outweighs the testimonies of petitioner and Artiaga. Petitioners reliance on the equipoise rule is misplaced. Under the equipoise rule, where the evidence on an issue of fact is in equipoise (evenly balanced), or there is
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doubt on which side the evidence preponderates, the party having the burden of proof loses.47 The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations -- one of which is consistent with the innocence of the accused and the other with his guilt -- in which case the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.48 In the instant case, there are no inculpatory facts and circumstances which are capable of two or more explanations because petitioner has already admitted shooting Paradero. In other words, there is no more issue as to the innocence or guilt of petitioner. What is left to be resolved is whether he can be relieved of liability by virtue of the self-defense he pleaded. We have earlier held that petitioner failed to discharge his burden of proving with clear and convincing evidence the presence of the elements of self-defense. Thus, the equipoise rule does not apply to this case. As regards the fifth issue, petitioner avers that the award of actual damages to Paradero in the amount ofP110,000.00 was unwarranted, because her name was not indicated in the hospital and medication receipts presented by the prosecution; that the grant of exemplary damages was not proper because there was unlawful aggression on the part of Paradero; that the award of P9,000.00 as unearned income was inappropriate, as there was no basis or evidence to support the same; and that the award of attorneys fees amounting to P50,000.00 was improper because there was unlawful aggression on the part of Paradero.49 To be entitled to an award of actual damages, there must be competent proof of the actual amount of loss. Credence can only be given to those that are supported by receipts.50 Most of the receipts on record51 were issued in Paraderos name. Although her name was not stated in the other receipts, it appears, however, that these receipts were issued to Paraderos relatives and that the items covered by the same were purchased for Paradero. Also, it is a fact that some pharmacy outlets do not specify the name of the purchaser in the receipts they issue, but only indicate the items sold and their corresponding amounts. The receipts on record show that Paradero incurred expenses in the amount of P22,426.06. She claimed other expenses, but they are not supported by receipts or other competent proofs. As such, the amount of actual damages awarded by the RTC and the Court of Appeals should be reduced from P110,000.00 to P22,426.06.
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However, we have held that when actual damages proven by receipts amount to less than P25,000.00, such as in the present case, the award of temperate damages amounting to P25,000.00 is justified in lieu of actual damages for a lesser amount.52 This is based on a sound reasoning that it would be anomalous and unfair that the victim who tried but succeeded in proving actual damages of less than P25,000.00 only would be in a worse situation than another who might have presented no receipts at all but would be entitled to P25,000.00 temperate damages.53 Thus, instead of P22,426.06, the amount of P25,000.00 as temperate damages should be awarded to Paradero. We agree with petitioner that Paradero is not entitled to exemplary damages, but we differ in his reason for the disallowance thereof. Exemplary damages may be awarded only when one or more aggravating/qualifying circumstances are alleged in the information and proved during the trial.54 In the instant case, no aggravating/qualifying circumstance was alleged in the information. Hence, the award of exemplary damages by the RTC and the Court of Appeals is unwarranted. The general rule is that documentary evidence should be presented to substantiate a claim for damages for loss of earning capacity. As an exception, damages may be awarded in the absence of documentary evidence, provided that there is testimony that the victim was either (1) self-employed and earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in victims line of work, no documentary evidence is available; or (2) employed as a daily wage worker earning less than the minimum wage under current labor laws.55 In the case under consideration, no documentary evidence was adduced to support Paraderos claim for loss of earning capacity. Nonetheless, Paradero testified that she derived her income from operating a small sari-sari store, which she also owned. She also stated that she earned less than P50.00 a day from selling goods in her sari-sari store.56 It is a fact and commonly recognized in our country that owners or operators of small sari-sari store, such as Paradero, do not issue official receipts since the quantity of the items being sold is minimal and these are sold cheap. Thus, Paradero is entitled to indemnity for loss of earning capacity. As to its proper amount, we agree with the RTC and the Court of Appeals that Paradero is entitled toP9,000.00. Records57 show that Paradero underwent treatment and medication, which incapacitated her from working in her store for a period of 6 months. Hence, the computation is P50.00 multiplied by 180 days or 6 months. Consequently, the amount which she could have earned during the said period was P9,000.00.

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Likewise the award of attorneys fees in the amount of P50,000.00 is in order58 because the record shows that Paradero incurred such expenses in hiring a private prosecutor for the instant case.59 In his last assigned error, petitioner insists that the Court of Appeals erred in denying his motion for reconsideration without setting forth the factual and legal bases for the denial. Art. VIII, Sec. 14 of the Constitution provides that "no petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor." This requirement was fully complied with when the Court of Appeals, in denying reconsideration of its decision, stated in its resolution that it found no reason to change its ruling, because petitioner had not raised anything new.60 Thus, its resolution denying petitioners motion for reconsideration states: For consideration is accused-appellants motion for reconsideration of this Courts decision promulgated on May 25, 2006. Acting on the motion filed by the accused-appellant, and considering that the same discloses no substantial argument or cogent reason to warrant a reconsideration or modification of our assailed decision which has already considered, if not squarely ruled upon, the arguments herein presented, we resolve to deny the motion. WHEREFORE, there being no cogent reason for us to depart from our questioned findings, we hereby DENY the aforementioned motion.61 We shall now determine the propriety of petitioners conviction for frustrated homicide and the corresponding prison term imposed. We have held that the crime of frustrated homicide is committed if the following are present: (1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code is present.62 All of the aforementioned are present and were duly establish in the case at bar. First, petitioners use of a gun and his act of firing it twice from a distance of 2 meters towards Paradero clearly indicated his intent to kill her. Second, vital organs of Paradero like her liver and colon were hit by the trajectory of the bullet. Dr. Guardiario testified that the injury on Paraderos colon was fatal and would
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have caused her death were it not for the timely medical attention given her. And third, none of the qualifying circumstances for murder was alleged in the information. Thus, the RTC and the Court of Appeals were correct in convicting petitioner of frustrated homicide. Petitioner, nonetheless, alleges that he is entitled to the mitigating circumstance of voluntary surrender. We agree on this point with petitioner. For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) that the offender has not been actually arrested; (2) that the offender surrendered himself to a person in authority; and (3) that the surrender was voluntary.63 The foregoing requisites are present in the case before us. Petitioner has not been actually arrested. After the incident, he immediately went to his brothers house and thereupon called via telephone a policeman named SPO2 Quevedo. He told SPO2 Quevedo that he wanted to surrender. Upon the latters arrival at the house of petitioners brother, petitioner turned himself in and, thereafter, he was brought to the police station.64 The prosecution did not rebut the foregoing facts. The penalty for frustrated homicide, pursuant to Article 250 of the Revised Penal Code, is prision mayor. There being one mitigating circumstance and no aggravating circumstance, pursuant to Article 64(2) of the Revised Penal Code, the minimum period of prision mayor should be imposed. Applying the Indeterminate Sentence Law, the range of the penalty is 4 years, 2 months and 1 day to 6 years of prision correccional as minimum, to 6 years and 1 day to 8 years of prision mayor as maximum. Thus, the RTC and the Court of Appeals erred in sentencing petitioner to a term of 6 years of prision correccional as minimum to 10 years of prision mayor as maximum. The proper penalty to be imposed on petitioner is 6 years of prision correccional, as minimum to 8 years of prision mayor, as maximum. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, is herebyAFFIRMED with the following MODIFICATIONS: (1) petitioner Fernando Estabas Mahawan is sentenced to an indeterminate sentence of 6 years of prision correccional, as minimum to 8 years of prision mayor, as maximum; (2) the amount of P25,000.00 as temperate damages is awarded to Diosdada Pardero in lieu of the actual damages; and (3) the award of exemplary damages in the amount of P50,000.00 is deleted. SO ORDERED.
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MINITA V. CHICO-NAZARIO Associate Justice

WE CONCUR: CONSUELO YNARES-SANTIAGO Associate Justice Chairperson MA. ALICIA AUSTRIAMARTINEZ Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

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REYNATO S. PUNO Chief Justice

C. Consummated Stage
1. People vs. Castro, G.r. no. 172874, December 18, 2008

FIRST DIVISION
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 172874 Present: PUNO, C.J., Chairperson, CARPIO, CHICO-NAZARIO,* VELASCO, JR.,** and LEONARDO-DE CASTRO, JJ.

- versus -

Promulgated: MARIO CASTRO, Accused-Appellant. December 17, 2008

x------------------------------------------------------------------------------x DECISION LEONARDO-DE CASTRO, J.:

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On appeal is the decision[1] dated February 15, 2006 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00126 which affirmed in toto an earlier decision[2] of the Regional Trial Court of Pasig City, Branch 162 in Criminal Case No. 117506-H, finding accused-appellant guilty beyond reasonable doubt of the crime of Rape and imposing upon him the penalty of reclusion perpetua. Consistent with our decision in People v. Cabalquinto,[3] the real name of the rape victim in this case is withheld and instead, fictitious initials are used to represent her. Also, the personal circumstances of the victim or any other information tending to establish or compromise her identity, as well as those of her immediate family or household members, are not disclosed in this decision. In the court of origin, accused-appellant was charged with the crime of rape in an Information[4] dated February 2, 2000. The crime was alleged to have been committed as follows:
On or about November 11, 1999, in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with his sister-in-law, [AAA], a minor, fourteen (14) years of age, against her will and consent. (Word in bracket ours) CONTRARY TO LAW.

When arraigned on July 12, 2000, accused-appellant, assisted by counsel de oficio, pleaded not guilty to the crime charged. Thereafter, trial on the merits ensued, in the course of which the prosecution presented the testimony of the victim herself. The testimony of Jurita Olvido was dispensed with after both parties agreed to stipulate on the following: (1) that she is a social welfare officer of the Department of Social Welfare and Development; (2) that she assisted the victim in filing a complaint due to her minority; and (3) that the due execution of her statement is admitted.[5]
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For its part, the defense presented Margarita Salangsang as its lone witness. Accused-appellant opted not to testify. The prosecutions version of the incident is succinctly summarized by the Office of the Solicitor General in its Appellees Brief,[6] to wit:
Private complainant [AAA], is a fourteen (14) year old lass having been born on July 8, 1985. Appellant Mario Castro is the husband of [BBB], elder sister of [AAA]. On November 11, 1999 at about 11:00 in the evening, appellant fetched [AAA] from her Aunts house at PNR Compound, Taguig Metro Manila. He said that her elder sister, [BBB], collapsed and was in the clinic. Believing the story, [AAA] went with appellant. As events turned out, appellant brought [AAA] - - not in the clinic - - but near TEMIC Factory, which is an old abandoned building located at Western Bicutan, Taguig, Metro Manila. As they reached a dark narrow alley, appellant suddenly stopped and held [AAA]s left arm. Startled and frightened, [AAA] screamed for help but nobody seemed to have heard the outcry. Wasting no time, appellant strangled her, with a threat to keep quiet lest he would kill her. [AAA] was cowed into silence. She felt helpless as she knew that appellant had killed someone before. Appellant hurriedly pulled [AAA] to the side of a building and told her to undress. When she refused, appellant undressed her, after which, he undressed himself. [AAA] could not run away as appellant pressed her against the wall of the building and blocked her way. When both of them were already naked, appellant kissed her on the different parts of her body and, in an instant, forced his penis into her vagina until he satisfied his lust. Once satiated, appellant told [AAA] to dress up and warned her not to tell anybody. Appellant initially brought her to the bus and jeepney terminal but he later changed his mind. He told [AAA] that they have to go to Kuya Mannys work place. Still overwhelmed with shock and fear, [AAA] could not resist. When appellant learned that Kuya Manny was not at work, he brought [AAA] again to the dark narrow alley beside Temic Factory. This time, however, they passed by a different route which is near Pepsi. As before, appellant asked [AAA] to undress. When she refused, he himself removed her clothes including her intimate garments. He likewise undressed himself. He then kissed her on the different parts of her body and forced her down. All the while, she was so frightened and helpless. All she could do was to plead: Wag na po Kuya Mar. Engulfed by his bestiality, appellant
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ignored her please; he took liberties on her body as he rammed his penis into her vagina. Again, he satisfied his lust. Appellant eventually told [AAA] to dress up. He brought her to the terminal of the jeep and allowed her to go home. When [AAA] reached her residence, she immediately took a bath. As she could not contain her grief and misery, she told her aunt [CCC] and her grandmother [DDD] that she was raped. After her relatives learned of the incident, they brought her to the Barangay Tanod and, later to Camp Crame for medical examination. They also proceeded to the Police Station located at the Municipal Hall of Taguig to give her statement. (Words in bracket ours)

On the other hand, the defense relied on the testimony of Margarita Salangsang, a lessee of accused-appellants mother at Signal Village in Taguig. She testified that at around 9:30 in the evening on November 11, 1999, accused-appellant was in her house for her birthday celebration. Accused-appellant did not leave the house at any time from the moment he arrived at 9:30 in the evening until he finally left around midnight. She knew that accused-appellant went home straight after the party because she even saw him at his house when she returned the pans she borrowed from accused-appellants mother. Margarita declared that her house was located just at the back of accused-appellants house.[7] In a decision[8] dated September 29, 2004, the trial court rendered its decision convicting accused-appellant of the crime of rape, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Mario Castro, guilty beyond reasonable doubt of the crime of Rape committed under paragraph 1(a) of Article 266-A of the Revised Penal Code (as amended by R.A. 8353), and hereby sentences him to suffer the penalty of reclusion perpetua. Accused Mario Castro is likewise ordered to indemnify private complainant, [AAA], the amount of fifty thousand pesos (P50,000.00) as civil indemnity and the amount of fifty thousand pesos (P50,000.00) by way of moral damages with cost de oficio. SO ORDERED.

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Pursuant to People v. Mateo,[9] accused-appellant appealed his conviction to the CA via a notice of appeal on September 30, 2004,[10] whereat it was docketed as CA-G.R. CR-HC No. 00126. On February 15, 2006, the CA upheld the conviction of accused-appellant and affirmed in toto the RTC decision.[11] From the CA, the case was then elevated to this Court upon filing by accused-appellant of a notice of appeal on March 10, 2006.[12] In its Resolution[13] of August 9, 2006, the Court resolved to require the parties to submit their respective supplemental briefs, if they so desire. Both parties, however, manifested that they were dispensing with the filing of a supplemental brief as their arguments have already been substantially discussed in their respective briefs filed before the appellate court.[14] In this appeal, accused-appellant assigns the following errors:
I THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE HIGHLY INCREDIBLE TESTIMONY OF THE PRIVATE COMPLAINANT. II THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF RAPE INSTEAD OF THE CRIME OF ACTS OF LASCIVIOUSNESS.[15]

Insisting that the prosecution failed to prove his guilt beyond reasonable doubt for the crime of rape, accused-appellant assails the credibility of the complainant branding her testimony as highly improbable and contrary to common human experience. He contends that complainant did not particularly describe the details of the alleged rape as to whether she was forced to lie down or whether they were standing when he inserted a part of his organ into her vagina. Accusedappellant also asserts that complainant failed to categorically state that accused-

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appellant succeeded in inserting his penis into her vagina, thus undermining her allegation of consummated rape. Accused-appellants contentions relate to the credibility of the testimony of complainant. We have time and again said that the findings of the trial court pertaining to the credibility of witnesses are entitled to great respect since it has the opportunity to examine their demeanor on the witness stand.[16] Unless shown that the trial court overlooked or misunderstood some facts or circumstances of weight and substance that could affect the result of the case, its findings on questions of facts will not be disturbed on appeal.[17] We have reviewed the record of the instant case and found nothing which would warrant a reversal of the trial courts findings. Accused-appellant maintains that complainant failed to mention any pumping motion and whether she was standing or lying down when she was allegedly raped. These matters, however, have no bearing on the principal question of whether accused-appellant had carnal knowledge of the victim. Besides, contrary to appellant's contention, complainant testified in no uncertain terms during cross-examination that she did not willingly lie down but was forced to do so by accused-appellant:
ATTY. JANDUSAY: Q. So are you saying Miss Witness, that you willingly laid down with the accused? A. No, Maam. Q. A What did he do, did he force you down? Yes, Maam.[18]

Further, the complainants narration of how accused-appellant perpetrated the sexual assault upon her was consistent, spontaneous and straightforward, thus:
PROS. CRISOLOGO: Q While you were at the side of the building, what else happened, if any? A He asked me to undress, Sir. Q A Q.
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Did you undress, Madam witness? No, Sir. What else happened when you refused to undress?

A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.

He undressed me, Sir. Did you resist his act of undressing you, Madam Witness? Yes, Sir. Did he succeed in undressing you? Yes, Sir. When you said he undressed you, do you mean that he was able to undress everything including your underwear? Yes, Sir. Would this mean that you were totally naked after he was able to undress you? My panty was pulled down to the knee, Sir. And after he succeeded in undressing you, what else happened, if any? He kissed me at different parts of my body, Sir. After kissing the different parts of your body, what else happened, if any? He was forcing his organ to insert into my organ, Sir. Did he succeed, Madam Witness? Not all, Sir. When you said not all somehow a part of his organ was inserted, would that be correct, Madam Witness? Yes, Sir.[19]

Courts usually give greater weight to the testimony of a girl who is a victim of sexual assault, especially a minor, as in this case, because no woman would be willing to undergo a public trial and put up with the shame, humiliation and dishonor of exposing her own degradation were it not to condemn an injustice and have the offender apprehended and punished.[20] Nor is there any question that accused-appellant in this case committed rape by means of threat and intimidation. Being 30 years old and the brother-in-law of complainant, accused-appellant exercised not only physical superiority, but also moral ascendancy over his 14-year old victim such that his threat to inflict physical harm on her effectively cowed her into submitting to his lustful designs. In fact, complainant was aware that accused-appellant had killed someone before[21] which

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all the more engendered fear in her fear that if she did not yield to accusedappellant's demands, he would carry out his threat to kill her. Accused-appellant argues that he cannot be held liable for consummated rape following the ruling in People v. Campuhan.[22] For this purpose, he cites the testimony of complainant that not all of accused -appellant's organ was inserted into her vagina. The argument is misplaced. In Campuhan, it was held that the crime was merely attempted rape because all that the victim said in that case was that accused's penis touched her organ but did not penetrate it.[23] Hence, this Court concluded:
[The] testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration. xxx. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim.[24]

But, in the case at bar, the above-quoted testimony of the complainant herself established the consummation of the crime of rape. Clearly, complainant's statement that not all of accused-appellant's organ was inserted simply means that there was no full penetration. There can be no doubt, however, that there was at least a partial entry, so as to make the crime consummated rape. As we have said in unnumbered cases, full or deep penetration is not necessary to consummate sexual intercourse; it is enough that there is the slightest penetration of the male organ into the female sex organ.[25] The mere touching by the male organ of the labia of the pudendum of the womans private part is sufficient to consummate rape.[26] It was therefore consummated rape which accused-appellant committed.

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Accused-appellant likewise claims that the trial court erred in convicting him of the crime of consummated rape despite the prosecutions failure to present the testimony of the examining physician. We find accused-appellants contention on this point untenable. The commission of rape against complainant cannot be negated simply because of the absence of the testimony of the doctor who examined the victim. It is well entrenched in our jurisprudence that a medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the victims testimony alone, if credible, is sufficient to convict the accused of the crime.[27] In fact, a doctors certificate is merely corroborative in character and not an indispensable requirement in proving the commission of rape.[28] We are also constrained to agree with the appellate courts observation that there was nothing improbable and preposterous in complainants testimony. Said the CA:
This Court finds nothing incredible or fantastic in [AAAs] narration of the events surrounding the rape committed against her by accused-appellant Castro. The details of her story fail to show any telltale indications of falsehood, inconsistency or improbability, and were all perfectly consistent with the rape of a young innocent girl. Considering her relatively tender age and minority, it is well nigh inconceivable for her to have concocted such a serious accusation and brazenly impute such a crime to her own brother-in-law, if it were not true. The evidence on record is bereft of any showing, which would somehow indicate that the private complainant was induced by any ill-motive in filing the case against accused-appellant Castro.[29]

Accused-appellants defense of alibi is unavailing. Margarita Salangsang, the lone defense witness, claimed that accused-appellant was in her house from 9:30-11:45 in the evening of November 11, 1999. However, this does not negate the possibility that he might be present at the TEMIC factory where the crime was committed, since Margaritas house and the TEMIC factory are both located within Taguig. In fact, Margarita herself declared that the distance between the two places can easily be negotiated by foot within ten (10) minutes and by tricycle within five (5) minutes. For alibi to prosper, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime
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at the time.[30] Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water.[31] Clearly in this case, the physical impossibility of accused-appellants presence at the scene of the crime on the date and time of its commission, has not been sufficiently established. We, thus, sustain the conviction of accused-appellant for the crime of consummated simple rape under Article 266-A, paragraph 1(a) of the Revised Penal Code. The penalty of reclusion perpetua was likewise correctly imposed as the special qualifying circumstance of relationship had not been specifically alleged in the information. Under Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353,[32] qualified rape is committed when, among others, the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. It is well-settled that these attendant circumstances of minority of the victim and her relationship to the offender are special qualifying circumstances which must be specifically alleged in the information and proved with certainty in order to warrant conviction for the crime of qualified rape and the imposition of the death penalty.[33] In the present case, the information charging accused-appellant of the crime of rape alleged that the accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with his sister-inlaw, [AAA], a minor, fourteen (14) years of age, against her will.[34] The prosecution was able to prove that at the time she was raped, complainant was only 14 years old, having been born on July 8, 1985, as evidenced by her birth certificate.[35] The prosecution likewise proved accused-appellant is the brother-inlaw of complainant, being the husband of complainants elder sister. Accusedappellant, therefore, is complainants relative by affinity within the third civil degree. However, we have previously held that if the offender is merely a relation not a parent, ascendant, step-parent, or guardian or common-law spouse of the mother of the victim it must be alleged in the information that he is a relative by consanguinity or affinity (as the case may be) within the third civil degree.[36] Thus, in the instant case, the allegation that complainant is the sister207 | P a g e

in-law of accused-appellant is not specific enough to satisfy the special qualifying circumstance of relationship. It is necessary to specifically allege that such relationship was by affinity within the third civil degree.[37] Consequently, due to the defect in the information charging accused-appellant of rape, he can only be held liable for simple rape and meted the penalty of reclusion perpetua. Consistent with prevailing jurisprudence on simple rape, the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral damages were correctly awarded by the trial court.[38] WHEREFORE, the decision dated February 15, 2006 of the CA in CA-G.R. CR-HC No. 00126 is hereby AFFIRMED. Accused-appellant Mario Castro is foundGUILTY beyond reasonable doubt of the crime of Simple Rape and sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay complainant, civil indemnity in the amount of P50,000.00 and moral damages in the amount of P50,000.00. SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice Chairperson

ANTONIO T. CARPIO Associate Justice

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MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

* ** [1]

[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16]

Additional member in lieu of Justice Renato C. Corona as per Special Order No. 541. Additional member in lieu of Justice Adolfo S. Azcuna as per Special Order No. 542. Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justice Hakim S. Abdulwahid and Associate Justice Estela M. Perlas-Bernabe, concurring; rollo, pp. 2-14. Decided by Judge Erlinda Pinera Uy; CA Rollo, pp. 15-26. G.R. No. 167693, September 19, 2006, 502 SCRA 419. CA Rollo, p. 9. Records, p. 100. CA Rollo, pp. 67-69. TSN, February 5, 2003, pp. 3-6. Supra note 2. G.R. Nos. 147678-87, July 4, 2004, 433 SCRA 640. CA Rollo, p. 27. Supra note 1. Rollo, p. 1. Id., at 15. Id., at 21-22; 27-28. Appellants Brief, CA Rollo, p. 42. People v. Ulgasan, G.R. Nos. 131824-26, July 11, 2000, 335 SCRA 441, 449.

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[17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38]

Id., at 448 TSN, March 28, 2001, p. 31. Id., at 10-11. People v. De Guzman, G.R. Nos. 140333-34, December 11, 2001, 372 SCRA 95, 107-108. TSN, March 28, 2001, p. 32. G.R. No. 129433, March 30, 2000, 329 SCRA 270. Id., at 284. Id., at 284-285. People v. Puertollano, G.R. No. 122423, June 17, 1999, 308 SCRA 356, 365. People v. Mahinay, G.R. No. 122485, February 1, 1999, 302 SCRA 455, 479. People v. Baring, Jr., G.R. No. 137933, January 28, 2002, 374 SCRA 696, 705. People v. Gabon, G.R. No. 127003, November 16, 2001, 369 SCRA 160, 174. Rollo, pp. 9-10. People v. Gonzales, G.R. No. 141599, June 29, 2004, 433 SCRA 102, 116. People v. Lopez, G.R. No. 149808, November 27, 2003, 416 SCRA 542, 547. Otherwise known as the Anti-Rape Law of 1997. People v. Maglente, G.R. Nos. 124559-66, April 30, 1999, 306 SCRA 546, 576. Supra note 4. Records, p. 162. People v. Mion, G.R. Nos. 148397-400, July 7, 2004, 433 SCRA 671, 688. Ibid. People v. Alvarez, G.R. Nos. 140388-91, November 11, 2003, 415 SCRA 523, 538-539.

ARTICLES 7-10 CONSPIRACY 1. People vs. Regalario, G.r. no. 174483, March 31, 2009

EN BANC
PEOPLE OF THEPHILIPPINES, PlaintiffAppellee, G.R. No. 174483 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ,
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- versus -

RAMON REGALARIO, MARCIANO REGALARIO, SOTERO REGALARIO, BIENVENIDO REGALARIO and Promulgated: March 31, 2009 NOEL REGALARIO, Accused-Appellants. x-----------------------------------------------------------------------------------------x

CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO,* VELASCO, JR., NACHURA,** LEONARDO-DE CASTRO, BRION,* and PERALTA, JJ.

DECISION LEONARDO-DE CASTRO, J.:

For automatic review is the decision[1] of the Court of Appeals (CA) in CAG.R. CR No. 01556 which affirmed with modification, an earlier decision [2] of the Regional Trial Court of Ligao, Albay, Branch 13 in Criminal Case No. 3613, finding accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel, all surnamed Regalario guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to indemnify jointly and severally the heirs of the victim in the amount of P50,000.00, and another sum of P50,000.00 as moral damages and to pay the costs of the proceedings. In the court of origin, accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel were originally charged with Homicide. However, after reinvestigation of the case, the Panel of Prosecutors of the Department of Justice, Legaspi City, consisting of State Prosecutors Romulo SJ Tolentino, Mary May B. De Leoz and Elmer M. Lanuzo filed an amended information[3] charging the accused-appellants with murder, committed as follows:
That on February 22, 1997 at about 11:00 in the evening, at Brgy. Natasan, Municipality of Libon, province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
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confederating and helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously with cruelty, treachery, abuse of superior strength, nighttime attack, assault, strike and hit ROLANDO SEVILLA with wooden clubs (bahi) used as their night sticks, hitting the latter at the different parts of his body and tying down his hands and feet with a rope, thereby inflicting upon the latter serious and mortal wounds which directly caused his death, to the damage and prejudice of his legal heirs. ACTS CONTRARY TO LAW.

On October 9, 1998, accused-appellants, duly assisted by their counsel, entered a plea of not guilty to the offense charged.[4] Thereafter, trial ensued. The prosecution presented the following as its witnesses: Zaldy Siglos, Nancy Sara, Ryan Sara, Armando Cabais Poblete, Ronnie Siglos, Cynthia Sevilla, Norma Torres, Policeman Jose Gregorio, Cenen Talagtag, Cesar Sazon and Dr. Mario Cerillo, while Antonio Relato and Nicanor Regonia testified on rebuttal. Nancy Sara, Cynthia Sevilla and Ryan Sara were presented for a second time also as rebuttal witnesses. On their part, accused-appellants took the witness stand. All raised the defense of denial except for Ramon who admitted the act charged but claimed selfdefense. To corroborate their defense, Jose Poblete and Adonis Velasco were presented. The defense also presented Senior Police Officer 2 (SPO2) Jimmy Colisao, Harold Reolo, Ma. Julieta Razonable, and Dr. Leopoldo Barrosa II. On August 24, 2000, the trial court rendered its decision [5] giving full faith and credit to the prosecutions evidence. It ruled out accused-appellant Ramon Regalarios claim of self defense, and held that there was conspiracy among the accused-appellants in the commission of the crime as shown in the manner in which all of them inflicted the wounds on the victims body. It further ruled that the killing was qualified to murder by abuse of superior strength and by their scoffing at the body of the victim. It also appreciated the presence of the mitigating circumstance of voluntary surrender. The pertinent dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered finding Ramon, Sotero, Bienvenido, Marciano and Noel, all surnamed Regalario, guilty beyond reasonable doubt of the crime of Murder under Par. 1, of Art. 248 of the Revised Penal Code, as amended, with the aggravating circumstance of scoffing at the corpse of the victim. However, accused are entitled to the benefit of the mitigating circumstance of voluntary surrender which offset the aggravating
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circumstance of scoffing at his corpse, hence, are hereby sentenced to suffer the Penalty of Reclusion Perpetua together with the accessory penalties provided for by law. The accused are hereby ordered to indemnify jointly and severally the heirs of the late Rolando Sevilla the amount of P50,000.00 and another sum of P50,000.00 as moral damages and to pay the costs. Pursuant to Supreme Court Administrative Circular No. 2-92 the P200,000.00 bail bond put up by accused Marciano Regalario is hereby cancelled and is ordered recommitted to jail. SO ORDERED.

The record of this case was forwarded to this Court for automatic review, in view of the penalty imposed. In our Resolution[6] of August 13, 2001, We accepted the appeal and directed the Chief of the Judicial Records Office, to send notices to the parties to file their respective briefs. The Court also required the Jail Warden, Municipal Jail, Polangui, Albay to transfer accused-appellants to the Bureau of Corrections, Muntinlupa City, and make a report of such transfer within ten (10) days from notice. Likewise, the Director of the Bureau of Corrections was required to confirm the detention of accused-appellants. Accused-appellants filed their Appellants Brief[7] on December 4, 2001, while the People, thru the Office of the Solicitor General, filed its Appellee's Brief[8] on July 30, 2002. Pursuant to our pronouncement in People v. Mateo[9] which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was referred for appropriate action and disposition to the CA where it was docketed as CA-G.R. No. 01556. The evidence for the prosecution is summarized by the Office of the Solicitor General, as follows:
Accused-appellants, all surnamed Regalario, are barangay officials of Natasan, Libon, Albay and related to one another by consanguinity. Marciano, barangay chairman, Sotero, barangay kagawad and Ramon, barangay tanod, are brothers while Bienvenido Regalario, also barangay tanod, is their cousin and

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Noel is the son of Marciano. (TSN, November 16, 1998, p. 9; RTC Order dated October 9, 1998, pp. 115-117) On the night of February 22, 1997, a dance and singing contest was being held in the barangay pavilion of Natasan, Libon, Albay. At around ten oclock that evening, Rolando Sevilla and Armando Poblete were enjoying the festivities when appellant Sotero Regalario approached them (TSN, December 7, 1998, p.4). To avoid trouble, the two distanced themselves from Sotero. Nevertheless, a commotion ensued. (ibid., p. 5). Appellants Sotero and Bienvenido Regalario were seen striking Rolando Sevilla several times with their respective nightsticks, locally known as bahi. (TSN, November 16, 1998, pp. 13-17, 32, 34, 36-37). The blows caused Sevilla to fall down in a sitting position but after a short while he was able to get up (ibid., pp. 16-17). He ran away in the direction of the house of appellant Mariano Regalario, the barangay captain (ibid., pp. 18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid., p. 38, TSN, December 7, 1998. p. 6). When Sevilla was already near Marcianos house, he was waylaid by appellant Ramon Regalario and at this point, Marciano Regalario and his son Noel Regalario came out of their house (TSN, December 7, 1998, pp. 7-9 and 35). Noel was carrying a seven-inch knife. The five appellants caught the victim in front of Marcianos house. Armed with their nightsticks, they took turns in hitting the victim until he slumped to the ground face down (ibid., pp. 8, 35 and 38). In that position, Sevilla was boxed by Marciano in the jaw. After a while, when Sevilla was no longer moving, Marciano first ordered the others to kill the victim and to tie him up (ibid., pp. 36-37). Upon hearing the order, Bienvenido, with the help of Sotero, tied the neck, hands and feet of the victim with a nylon rope used by farmers for tying carabao. The rest of the group just stood by watching. (ibid., pp. 37-38). In the early morning of February 23, 1997, Cynthia Sevilla, the victims widow, after she was informed of her husbands death, went to the poblacion of Libon to report the incident at the towns police station (TSN, December 8, 1998, pp. 7-8). However, her statements were not entered in the police blotter because appellant Marciano Regalario had earlier reported to them, at two oclock in the morning, a different version of the incident, i.e., it was the victim Sevilla who shot Marcianos brother Ramon and that Sevilla, allegedly still alive, was placed under the custody of the barangay tanods. (ibid., p. 7; TSN, November 20, 1998 [A.M. Session], pp. 9-10). At around eight oclock of the same morning, SPO4 Jose Gregorio, with some other police officers and Cynthia Sevilla, left the police station on board a truck and proceeded to the crime scene in Natasan. SPO4 Gregorio conducted an investigation of the incident. (TSN, November 20, 1998 [A.M. Session], pp. 10-12). Thereafter, the policemen took the victims cadaver to the police station in the poblacion (ibid., p. 26) where pictures were taken showing the victims hands and legs tied behind him [Exhibits C and D] (ibid., pp. 14-15; TSN, December 8, 1998, p. 10; TSN, November 20, 1998 [P.M. Session], pp 5-7). On that same day, SPO4 Gregorio requested the Libons Rural Health Unit to conduct an autopsy on the victims body but since the municipal health officer was not around, it was only performed the next day, February 24
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(TSN, November 20, 1998 [A.M. Session], p. 26; TSN, December 8, 1998, pp. 1011; TSN, November 20, 1998 [P.M. Session], p. 11). After Dr. Mario Cerillo, Municipal Health Officer of Libon conducted the autopsy, he forthwith issued a Medico-Legal Report dated February 24, 1997 (Exhibit B), the pertinent portions of which read:

Findings: Head : : : Lacerated wound 4 cm frontal area, Right. Lacerated wound 8 cm. occipital area, Right. Lacerated wound 4 cm. with fractured skull (post auricular area), Right. Abrasion 4 x 2 cm. eyebrow, Right. Abrasion 2 cm. x 1 cm. with lacerated wound 1 cm. eyebrow, Left. Periorbital Hematoma Left and Right eye. Lacerated wound 1 cm. lower lip, Left. Stab wound 2 cm. penetrating lateral base of the neck just above the clavicle, Right. Stab wound 2 cm., 6 cm. depth lateral base of the neck just above the clavicle, Right. Hematoma 10 x 8 cm. clavicular area, Right. Multiple abrasion chest Contusion 7 x 2 cm., 7th Intercorsal space and clavicular line, left. : Multiple abrasion and contusion on both Right and Left arm and forearm. Abrasion (Ropemark)

: :

: : Neck :

Trunk

: : :

Extremities

:
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around Right and Left wrist. Abrasion (Ropemark) around distal 3rd of both Right and Left leg. xxx xxx

xxx

xxx

Cause of Death: Sever blood loss secondary to stab wound and multiple lacerated wound, probably secondary to intracranial hemorrhage. On the witness stand, Dr. Cerillo opined that the victims lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or iron bar, his stab wounds by a sharp-edged instrument or knife, his contusions and hematoma by a fist blow or through contact with a blunt instrument. Also according to the physician, the sharp object which caused the victims stab wounds could have been a knife 2 cm. wide and 6 cm. long because they were clean cut wounds. (TSN, November 20, 1998 [P.M. Session], pp. 14-15).[10]

On the other hand, the accused-appellants Brief presents a different story:

At the time of the incident in question, accused Marciano Regalario was the incumbent barangay captain of Natasan, Libon, Albay. Accused Sotero was a kagawad, while Ramon and Bienvenido were barangay tanods of the same place. Noel Regalario had no public position. He is the son of one of the other accused. On the night of February 22, 1997, a public dance and singing contest was held in their barangay. Naturally, being barangay officials, the accused, (except Noel who is not an official and whose wife has just given birth) were at the place of the celebration, discharging their peace-keeping duties. They were posted at different places in that vicinity. At first, a fire broke out in the toilet of the Day Care Center. It was attended to by the persons assigned in that area. A while later, there was another commotion in the area assigned to accused Ramon Regalario. When he approached the group where the disturbance was taking place and tried to investigate, Rolando Sevilla suddenly emerged from the group and without any ado, fired a shot at him. He was hit at the left shoulder. Instinctively, and in order to disable Sevilla from firing more shots, which might prove fatal, he struck his assailant with his nightstick and hit him at the back of his head. This is the blow which Nancy Sara and Zaldy Siglos said were delivered by Sotero and Bienvenido. This blow caused Sevilla to reel backward and lean on the bamboo fence. To prevent Sevilla from regaining his balance, Ramon pressed his counterattack by continuing to harass him with blows of his nightstick. As Ramon pressed on forward, Sevilla retreated backward. Ramon kept him busy parrying
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the blows which hit his arms and front part of the body, as they were face to face with each other. But even in the course of such harassment, Sevilla was able to fire a second shot which missed Ramon. When they reached the end of the road pavement, Sevilla lost his footing on edge of the pavement and fell down. At that juncture, Sotero arrived and shouted to Ramon to stop beating Rolando. But Ramon told him that Rolando still had the gun. So, Sotero plunged at Rolando and they wrestled on the ground for the possession of the gun. As they struggled, the gun went off but no one was hurt. When Rolando raised his arms to move the gun away from Sotero, Ramon knocked the gun off his hand and it fell near the place where Jose Poblete was standing. Poblete just arrived at the scene along with Marciano Regalario who was already told that his brother Ramon was shot by Sevilla. Poblete picked up the gun. He was instructed by Marciano to keep it until it is turned over to the authorities. The wounded Ramon Regalario was brought to town for treatment and later to the provincial hospital. Marciano and Sotero proceeded to the police station to report the shooting of Ramon. Bienvenido Regalario, the barangay tanod, arrived at the scene after the fact. He was instructed by Marciano, the barangay captain to effect the arrest of Rolando Sevilla for the crime of shooting Ramon. According to Bienvenido, they were taught in their training seminar to just use a rope in lieu of handcuffs because they could not be supplied with it. So, he tied the hands and feet of Rolando Sevilla for fear that he might be able to escape. On the early morning of February 23, a team of policemen went to Natasan and found the dead body of Rolando Sevilla. Jose Poblete also turned over to the police, Rolando Sevillas gun. Meanwhile, Noel Regalario, after learning of the incident, scoured the place where the third shot was fired during the struggle between Sotero and Rolando. He found a .38 caliber slug which was also turned over to the police.[11]

On May 31, 2006, the CA promulgated the herein challenged decision affirming for the most part the decision of the trial court with modification as to the penalty imposed. Unlike the trial court, the CA did not appreciate the mitigating circumstance of voluntary surrender in favor of the accused-appellants. Thus, the penalty was changed fromreclusion perpetua to death, and an additional award of P25,000.00 as exemplary damages was likewise imposed. Pertinently, the CA decision reads in part:
WHEREFORE, the assailed decision is AFFIRMED with MODIFICATION. The accused-appellants are hereby sentenced to suffer the penalty of DEATH and to pay, jointly and severally, the heirs of Rolando Sevilla the amount of P25,000.00 as exemplary damages.
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Let the entire records of this case be elevated to the Supreme Court for its review, pursuant to AM No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases) which took effect on October 15, 2004. SO ORDERED.[12]

As can be gleaned from the above quote, the CA elevated the instant case to this Court in view of the penalty imposed. In our Resolution[13] dated November 14, 2006, we required the parties to simultaneously submit their respective supplemental briefs. On December 12, 2006, the people filed a manifestation[14] stating that it is waiving the filing of a supplemental brief. Accused-appellants filed their supplemental brief[15] on February 15, 2007. In their Brief, accused-appellants raise the following assignment of errors:
1. THE TRIAL COURT ERRED IN HOLDING THAT ALL OF THE ACCUSED PARTICIPATED IN THE KILLING OF ROLANDO SEVILLA AND BASING ITS DECISION, NOT ON DIRECT EVIDENCE BUT ON ITS OWN SUPPOSITIONS, CONJECTURES AND INFERENCES;

2.

THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED THE EVIDENCE AND DISPLAYED BIAS WHEN IT LEANED IN FAVOR OF THE PROSECUTION EVIDENCE DESPITE THEIR VITAL CONTRADICTIONS AND OBVIOUS FALSEHOODS;

3. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE ACCUSED AND THAT THE COMMISSION OF THE OFFENSE WAS ATTENDED BY THE QUALIFYING CIRCUMSTANCES OF ABUSE OF SUPERIOR STRENGTH AND SCOFFING AT THE BODY OF THE VICTIM; 4. THE LOWER COURT ERRED IN NOT FINDING THAT THE DECEASED WAS KILLED IN SELF-DEFENSE AND/OR DEFENSE OF RELATIVE 5. THE TRIAL COURT ERRED IN AWARDING DAMAGES TO THE HEIRS OF THE DECEASED.[16]

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We begin our evaluation with accused-appellant Ramon Regalarios claim of self-defense. Both the CA and the trial court gave no credence to this theory of self-defense. When self-defense is invoked by an accused charged with murder or homicide he necessarily owns up to the killing but may escape criminal liability by proving that it was justified and that he incurred no criminal liability therefor. Hence, the three (3) elements of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel the aggression; and (c) lack of sufficient provocation on the part of the person defending himself, must be proved by clear and convincing evidence. However, without unlawful aggression, there can be no selfdefense, either complete or incomplete.[17] Accused-appellant Ramon contends that the victim Rolando Sevilla committed an act of unlawful aggression with no provocation on his [Ramons] part. Ramon testified that he was trying to investigate a commotion when, without warning, Rolando emerged from the group, thrust and fired his gun at him, hitting him in the left shoulder. To disable Rolando from firing more shots, Ramon struck the victims head at the back with his nightstick, causing the victim to reel backward and lean on the bamboo fence. He continued hitting Rolando to prevent the latter from regaining his balance and, as he pressed on farther, the victim retreated backward. By Ramons own account, after he was shot, he hit the victim at the back of the latters head and he continued hitting the victim who retreated backward. From that moment, the inceptive unlawful aggression on the part of the victim ceased to exist and the continuation of the offensive stance of Ramon put him in the place of an aggressor. There was clearly no longer any danger, but still Ramon went beyond the call of self-preservation. In People v. Cajurao,[18] we held:
The settled rule in jurisprudence is that when unlawful aggression ceases, the defender no longer has the right to kill or even wound the former aggressor. Retaliation is not a justifying circumstance. Upon the cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person invoking self-defense to attack his adversary ceases. If he persists in attacking his adversary, he can no longer invoke the justifying circumstance of self-defense. Self-defense does not justify the unnecessary killing of an aggressor who is retreating from the fray. (Emphasis supplied)

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Ramons claim of self-defense is further belied by the presence of two (2) stab wounds on the neck, four (4) lacerated wounds on the head, as well as multiple abrasions and contusions on different parts of the victims body, as shown in the Medico-Legal Report. Dr. Mario Cerillo who conducted the post-mortem examination on the victim revealed that the victims lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or an iron bar; his stab wounds by a sharp-edged instrument or knife; his contusions and hematoma by a fist blow or through contact with a blunt instrument. He also declared that the sharp object which caused the victims stab wounds could have been a knife 2 centimeters (cms.) wide and 6 cms. long because they were clean-cut wounds. Indeed, even if it were true that the victim fired a gun at Ramon, the number, nature and severity of the injuries suffered by the victim indicated that the force used against him by Ramon and his co-accused was not only to disarm the victim or prevent him from doing harm to others. The four (4) other accused-appellants, namely, Sotero, Marciano, Bienvenido and Noel, to exonerate themselves, denied their involvement in inflicting wounds on Rolando. Sotero claimed that he arrived at the scene of the crime at the time when Rolando lost his footing on the edge of the pavement and fell down. He even shouted at Ramon to stop beating Rolando. However, when Ramon told him that Rolando still had the gun, he jumped on Rolando and they wrestled on the ground for the possession of the gun. Marciano maintained that he, together with Jose Poblete, arrived at the crime scene when Ramon had already knocked the gun out of Rolandos hand and the gun fell near the place where Jose Poblete was standing. When he went to that place, he already knew that his brother (Ramon) had been shot, so, he told the latter to go to the hospital. Thereafter, he and Sotero proceeded to the police station to report the shooting incident. Bienvenido asserted that he arrived at the crime scene after the shooting incident. He was asked by Marciano to arrest Rolando. Lastly, Noel insisted that he was not present when the shooting incident took place. He was inside their house sleeping, as his wife had just given birth. We are not convinced.
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Accused-appellants denials cannot overcome the positive identification by the prosecutions witnesses. Elementary is the rule that positive identification, where categorical and consistent, prevails over unsubstantiated denials because the latter are negative and self-serving, and thus, cannot be given any weight on the scales of justice.[19] The participation of each of the accused-appellants can be fully ascertained from the clear, categorical and spontaneous testimony given by prosecution witness, Ronnie Siglos, who was at the scene of the crime, thus:
PROSECUTOR RESARI: Q A Q A While you were walking on your way home, was there an unusual incident and can you recall? Yes, maam What was that incident about? While I was on my way towards the house of my parents, I just suddenly saw a person being beaten on the road. When you first noticed that there was a man being beaten along the road, how far were you? I was about more or less 9 to 10 meters. xxx Q A xxx xxx

Q A

When you saw a man being beaten what did you do? I continue walking, but upon reaching that place near the person being beaten, I stopped. Why did you stop? To verify and know as to who that person being beaten. xxx xxx xxx

Q A

Q A Q A

And who was that person being beaten? Rolando Sevilla. Who were the persons beating Rolando Sevilla? Marciano Regalario, Sotero Regalario, Ramon Regalario, Bienvenido Regalario, Noel Regalario, Ernani Regalario, Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio Rebanal. Who else? Cecilio Lunas.

Q A

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Q A

If some of the persons you saw beating Rolando Sevilla are present in this court room, will you be able to point and identify them? Yes, maam. xxx xxx xxx

PROSECUTOR: Q A Q A You stated that you saw the persons you have just named as beating Rolando Sevilla. Were there weapons used in beating Rolando Sevilla? Yes. What kind of weapons (was) used? Sotero was armed with bahi wood, and also Ramon. Bienvenido was also armed with bahi, as well as Cecilio Lunas, Jose Quinno were also armed with malo-palo. xxx Q A xxx xxx

What kind of weapon was being held by Noel Regalario? A knife. xxx xxx xxx

Q A Q A Q A Q

Now, when you saw Rolando Sevilla being beaten by the persons you mentioned before, what did you notice on the condition of Rolando Sevilla? He was lying on his stomach. Did you see the face of Rolando Sevilla? Yes. How were you able to see the face of Rolando Sevilla? Because Sotero was holding him by his hair. What was your observation on the condition of Rolando Sevilla? xxx xxx xxx

WITNESS: He was already motionless. He is not moving anymore. PROSECUTOR:

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A Q A

Of the persons you named as holding weapons, you did not mention Marciano Regalario as holding any weapon. What was Marciano Regalario doing then? He boxed Rolando Sevilla and Rolando was hit on his jaw. What else did Marciano Regalario do if any? After he boxed Rolando Sevilla, he went inside his house but after about one (1) minute he again return(ed) back. After Marciano Regalario returned back, what did he do if any? He shouted to kill that. After you heard Marciano Regalario (say) to kill that, what did you do? I proceeded towards home. While you were walking, was there any unusual incident which again happened? Yes. And, what was that incident? While I was walking towards home, again I heard Marciano Regalario shouted to tie him, that is why I again stopped. When you heard Marciano Regalario to tie him how far were you from him? More or less 7 meters. You said that upon hearing Marciano Regalario, you stopped. What else happened? Bienvenido Regalario passed by me and went to that sleigh (pababa) which is on the lower portion and got a rope. What did Bienvenido Regalario do with the rope? He tied Rolando Sevilla by placing he rope around his neck and tied his hands. Was there somebody who assisted Bienvenido Regalario in tying Rolando Sevilla? Yes. Who were the persons, if any? Sotero Regalario. Aside from Sotero, was there anybody else who helped Bienvenido Regalario in tying Rolando Sevilla? No more.

Q A Q A Q A Q A

Q A Q A

Q A

Q A Q A Q A

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A Q A

While Rolando Sevilla was being hog tied, where were the persons of Marciano Regalario, Noel Regalario, Ramon Regalario and the rest of the persons whom you just mentioned awhile ago? They were there standing beside Rolando Sevilla and they were watching. Did you notice whether Rolando Sevilla was still moving when he was still being tied up by Bienvenido and Sotero? He was not moving anymore.[20]

The aforequoted testimony of Ronnie Siglos is corroborated by the following testimony of Armando Poblete:
Q A While you were standing by the road, what did you notice? Then I saw Rolando Sevilla being chased by Bienvenido and Sotero both surnamed Regalario To what direction was Rolando Sevilla being chased by Sotero and Bienvenido Regalario? Towards the place of Kapitan. xxx xxx xxx

Q A

PROSECUTOR RESARI: Q Considering that was already nighttime, how were you able to know that the person being chased was Rolando Sevilla and the persons chasing him were the two (2) Regalarios which you have identified? Because, I was with Sevilla during that time and it was moonlit night. When the two (2) were chasing Rolando Sevilla, what happened next? Ramon waylaid Rolando Sevilla. xxx Q A xxx xxx

A Q A

After you saw Ramon Regalario waylaid Rolando Sevilla, what else did you see? After that I saw the group of Sotero, Regalario, Marciano, Noel, caught up with Rolando. xxx xxx xxx

PROSECUTOR RESARI: Q Since Bienvenido Regalario and Sotero Regalario were the ones chasing Rolando Sevilla, from what direction did Ramon Regalario come from when he waylaid Rolando Sevilla?

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A Q A Q A Q A Q

That side, left side going towards the house of Kapitan. And where did Marciano and Noel xxx come from? From their house. After the five (5) caught up with Rolando Sevilla, what happened to Rolando Sevilla? They took turns in beating him. Did they use any weapon in beating Rolando Sevilla? Yes, their night sticks. When Bienvenido and Sotero caught up with Rolando Sevilla; and the three (3) other accused also joined the two (2), how far was your distance to them? More or less 14 to 15 meters.[21]

We agree with the findings of the two courts below as to the presence of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots. The agreement to commit a crime, however, may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to a joint purpose and design, concerted action, and community of intent. It does not matter who inflicted the mortal wound, as the act of one is the act of all, and each incurs the same criminal liability.[22] We quote with approval the findings and observations of the CA, thus:
The eyewitnesses account surrounding Rolando Sevillas death shows that the accused-appellants performed concerted acts in pursuit of a common objective. Sotero, Bienvenido, and Ramon, armed with nightsticks, and Noel armed with a knife, seven inches in length, beat Rolando Sevilla. All five accused-appellants caught up with the victim, blocked all means through which the victim could escape and ensured the achievement of their plan to kill Rolando Sevilla even as the latter already fell to the ground. Accused-appellant Marciano hit the victim on his jaw and later, ordered his co-accused to kill and tie the victim. Upon hearing Marcianos instruction, Bienvenido Regalario tied Rolandos neck, hands and feet with a rope. The collective act of the accused[23] appellants is sufficient to make them co-principals to the killing.

Considering the foregoing, as well as the manner in which the attack against Rolando was carried out, and the testimonies of the prosecution witnesses positively identifying the accused-appellants as the assailants, we concur in the rulings of the CA, affirming those of the trial court, in (a) disregarding Ramon
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Regalarios declaration that he attacked the victim in self-defense and (b) holding that all the accused-appellants acted in concert and killed Rolando. We likewise rule that both the CA and the trial court were correct in appreciating the qualifying circumstance of abuse of superior strength in killing Rolando Sevilla. To take advantage of superior strength is to use force out of proportion to the means available to the person attacked to defend himself. In order to be appreciated, it must be clearly shown that there was deliberate intent on the part of the malefactors to take advantage thereof.[24] In this case, as testified to by the prosecution eyewitnesses, accused-appellants Ramon, Sotero and Bienvenido, with the exception of Marciano, were armed with nightsticks ( bahi) while Noel was holding a knife. Clearly they took advantage of their superiority in number and arms in killing the victim, as shown by numerous wounds the latter suffered in different parts of his body. Also affirmed is the ruling of both courts appreciating the presence of the generic aggravating circumstance of scoffing at the body of the victim. Accusedappellants did not just kill the victim. They tied him hog-style after rendering him immobilized. This action constituted outraging or scoffing at the corpse of the victim. In this connection, we agree with the trial courts observation:
The concerted acts committed by all the accused mostly armed with wooden clubs and one with a 7-inch long knife after the victim fell pummeling him with mortal blows on the forehead and back of his head and stab wounds on his neck and one of them telling his co-accused to kill the victim clearly proved that the Regalarios conspired and took advantage of their strength and number. Not satisfied with delivering mortal blows even when their hapless victim was already immobile, Bienvenido and Sotero, upon order of their co-accused Marciano, tied their victim hog style. The manner by which Rolando was tied as vividly captured in the picture (Exhs. C & D) clearly speaks for itself that it was nothing but to scoff at their victim.[25]

The CA was likewise correct in not appreciating the mitigating circumstance of voluntary surrender in favor of accused-appellants. For said circumstance to be appreciated, it must be spontaneous, in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expense of finding and capturing him.[26] In the case at bar, accused-appellants remained at large even after Judge Jose S. Saez issued the warrant for their arrest on February 6, 1998. Accused-appellants surrendered only on September 9, 1998 after several
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alias warrants of arrest were issued against them. Hence, voluntary surrender cannot be appreciated in their favor as mitigating circumstance. The accused-appellants acts plainly amount to murder, qualified by abuse of superior strength. As the generic aggravating circumstance of scoffing at the body of the victim was alleged and proven, and as there was no mitigating circumstance, the CA correctly sentenced accused-appellants to death in accordance with Art. 248, as amended by Republic Act No. 7659, in relation to Art. 63(1) of the revised Penal Code. In view, however, of the passage of Republic Act No. 9346,[27] the imposition of the death penalty has been prohibited. Thus, the penalty imposed upon accused-appellants should be reduced to reclusion perpetua, without eligibility for parole. While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous.[28] Consequently, the civil indemnity for the victim is still P75,000.00. In People v. Quiachon,[29] we explained that even if the penalty of death is not to be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor (292 SCRA 186), the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As to the award of moral and exemplary damages, the CA correctly held accused-appellants jointly and severally liable to pay the heirs of Rolando Sevilla for the same. Moral damages are awarded despite the absence of proof of mental and emotional suffering of the victims heirs. As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victims family.[30] If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct.[31] However, consistent with recent jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00[32] while the
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award of exemplary to P30,000.00.[33]

damages

should

be

increased

from P25,000.00

WHEREFORE, the decision of the Court of Appeals dated May 31, 2006 in CA-G.R. CR No. 01556 is hereby AFFIRMED with the following modifications: (1) the penalty of death imposed on accused-appellants is lowered to reclusion perpetua without eligibility for parole; (2) the monetary awards to be paid jointly and severally by accused-appellants are as follows: P75,000.00 as civil indemnity, P75,000.00 as moral damages and P30,000.00 as exemplary damages; and (3) interest on all the damages awarded at the legal rate of 6% from this date until fully paid is imposed.[34] SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

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RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

(On leave)

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

(No part)

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

(On leave)

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

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Indications of Conspiracy
1. People vs. Lopez, G.r. no. 177302, April 16, 2009
SECOND DIVISION

PEOPLE THEPHILIPPINES,

OF Appellee,

G.R. No. Present:

177302

- versus -

QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

Promulgated: April 16, 2009 JAIME LOPEZ, ROGELIO REGALADO, AND ROMEO ARAGON, Appellants. x------------------------------------------------- x

DECISION

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CARPIO MORALES, J.: Jaime Lopez, Rogelio Regalado and Romeo Aragon (appellants) were charged of Murder by an Information filed before the Regional Trial Court (RTC) of Surigao del Sur, the accusatory portion of which reads:
That on or about 3:30 oclock in the afternoon of April 25, 1996 at Bandola Street, Pob. Municipality of Hinatuan, Province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another for a common purpose, with treachery and evident premeditation and with deliberate intent to kill, and armed with sharp bladed instruments (knives and Tare), did then and there willfully, unlawfully and feloniously attack, assault, box and stab to death EDENCITO CHU Y VILLAHERMOSA, thereby inflicting upon the latter fatal multiple stab wounds as certified to by a doctor, which caused his instantaneous death, to the damage and prejudice of the heirs of the said CHU. CONTRARY TO LAW: (In violation of Article 248 of the Revised Penal Code of the Philippines, with the aggravating circumstances of superior strength).[1]

From the evidence for the prosecution, the following version of events is culled:[2] At around 3:30 P.M. of April 25, 1996, appellant Rogelio Regalado (Regalado), who was outside Bantogan[3] Tailoring, a tailoring shop at Bandola street corner Villaluz, Hinaruan, Surigao del Sur, called out: You let Bonjong come out so we could measure his courage!, referring to Edencito Chu (Chu) whose nickname is Bonjong. Chuthereupon emerged from his mothers bakery, Purity Bakery, fronting the tailor shop, put his arms around Regalados shoulders and asked for forgiveness. Regalado, however, pushed Chus

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arms aside, drew a curved four to five inches long knife as he uttered Putang Ina, ka Jong! and stabbed Chu below the left nipple. As Chu ran towards Villaluz street, Regalado chased him and picked up two pieces of firewood along the way with which he hit Chu. Appellant Jaime Lopez (Lopez) in the meantime surfaced from a house beside the tailoring shop and, armed with a hunting knife, joined the chase. Soon appellant Romeo Aragon (Aragon) also surfaced from the back of the tailoring shop and also joined the chase. The three appellants caught up with Chu at the corner of Lindo and Bandola streets at which Aragon boxed Chu, causing the latter to fall. Aragon kicked Chu. Lopez then stabbed Chu several times as Regalado looked on. When Chu was no longer moving, the three appellants left. Chu expired before reaching the hospital. Post-mortem examination of Chus body yielded the following findings:
STAB WOUND LEFT DELTOID 4CM MUSCLE DEEP PENETRATING STAB WOUND LEFT AXILLARY LINE AT THE LEVEL OF T10, 3CM POSTERIOR

PENETRATING STAB WOUND RIGHT POSTERIOR AXILLARY LINE AT THE LEVEL OF T8, 1.5 CM PENETRATING STAB WOUND RIGHT ANTERIOR TRUNK AT THE LEVEL OF T10, 1 CM PENETRATING STAB WOUND LEFT ANTERIOR AXILLARY LINE 1 CM STAB WOUND LEFT NIPPLE 1 CM SUBCUTANEOUS DEEP 2 LACERATED WOUNDS LEFT ELBOWS SKIN DEEP 0.5 CM EACH[4]
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Autopsy of Chus body yielded results which coincided with those of the post-mortem examination, thus:
Body, embalmed, well-preserved. Embalming incisions, sutured: neck, antero-lateral aspect, right, 3.5 cm.; supra-umbilibical region, right, 1.0 cm. Contused-abrasions, patellar region, bilateral right, 5.0 x 11. 5cm; left, 11.0 x 12.0cm. Incised wounds, modified by suturing and embalming: chest, infra-mammary region, right, 1.5 cm.; inguinal region, right, 1.5 cm.; forearm, proximal third, postero-lateral aspect, left, 1.6 cm. Stab wounds, modified by suturing and embalming: 1. Roughly curved-shaped, 4.5cm., edges are clean-cut, oriented vertically, superior extremity is blunt, inferior extremity is sharp. Located at the left arm, proximal third, antero-lateral aspect, 23.0cm. above the left elbow, directed backward, downward, and laterally, involving the soft tissue, cutting the major blood vessels with an approximate depth of 7.5cm. Roughly spindle-shaped, 2.3cm., edges are clean-cut, oriented vertically, superior extremity is sharp, inferior extremity is blunt. Located at infra-mammary region, between sixth (6th) and seventh (7th) intercostal space, lateral aspect, left, 16.0cm. from anterior median line, directed, backward, downward, and medially, involving the soft tissues, into the thoracic cavity, into the pericardial sac, penetrating the left ventricle of the heart with an approximate depth of 10.0cm. Roughly spindle-shaped, 1.8cm., edges are clean-cut oriented vertically, superior extremity is sharp, inferior extremity is blunt. Located at supra-mammary region; left, 1.0cm. from anterior median line, directed backward, sideward, and medially involving the soft

2.

3.

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tissues, cutting the sternum superficially, with an approximate depth of 5.0cm. 4. Roughly spindle-shaped, 2.0cm., edges are clean-cut, oriented vertically, superior extremity is blunt, inferior extremity is sharp. Located at the infra-scapular region, right, 20.0cm. from posterior median line, directed forward, downward, and laterally, involving the soft tissues only, with an approximate depth of 5.0cm. Roughly curved-shaped, 3.5 edges are clean-cut, oriented horizontally, lateral extremity is blunt, medial extremity is sharp. Located at the infra-scapular region, 11.0cm. from posterior medial line, directed forward, downward and medially, involving the soft tissues only with an approximate depth of 5.2cm.

5.

Hemopericardium, residual clotted blood 250cc. Brain & other visceral organs, pale, embalmed. Stomach small amount of grayish food particles.[5]

Dr. Ricardo M. Rodaje, who conducted the autopsy, explained that wounds 1 and 5 were caused by a curve-shaped weapon.[6]

At the witness stand,[7] Regalado claimed as follows: At 3:00 P.M. on April 25, 1996, after he bought a hotcake from the hotcake stand of Angelina Aragon (Angelina), wife of appellant Aragon and daughter of appellant Regalado, at the corner of Bandola and Villaluz streets, Chu approached and choked him.

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He elbowed Chu and extricated himself. He then left but Chu pursued him as he (Regalado) proceeded to Angelinas house at the corner of Espaa and Villaluz streets where he hid for around two minutes. When he returned to the hotcake stand, his son-in-law appellant Lopez summoned him, telling him I have done something, you accompany me in going to the police station because I am going to surrender. He and Lopez thereupon boarded a tricycad and repaired to the police station where Lopez surrendered, handed a knife to the police, and was detained. As he (Regalado) was about to go home, he was restrained as he might be waylaid by Chu. The following morning, he was detained because the police found him to have participated in the killing ofChu. As for appellant Lopez, he interposed defense of relative and self-defense.[8] His version goes as follows: At 3:00 P.M. of April 25, 1996, while he was at one Lily Balbuenas mahjong house along Villaluz street, he heard a womans voice shouting. Police, police, police! He thus stepped out and saw Chu chasing Regalado, his father-in-law, prompting him to go to Regalados nearby house to get a knife, and to thereafter follow Chu as he was chasing Regalado. Lopez soon

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intercepted Chu who boxed him as he (Chu) posed Are you going to defend your father-in-law? He thereupon stabbed Chu several times and surrendered to the police station in the company of Regalado. Appellant Aragon invoked alibi,[9] claiming that at 3:00 P.M. of April 25, 1996, he went to the wharf which is 40 meters away from Angelinas hotcake stand to buy fish. He waited for 30 minutes for fishermen but no one came, so he went home. Before reaching his house he was surprised to see many people at the corners of Villaluz and Bandola streets. Angelina soon met him and told him that Lopez had stabbed Chu because he choked Regalado. He later learned that police investigator Pedic Mangin was looking for him, hence, he visited the latter who told him that they would talk things over at the municipal hall. When he reached the municipal hall, he was immediately detained. The defense presented evidence of Chus supposed reputation as a bully who picked fights for no reason and who had an existing criminal record.[10] Branch 29 of the Bislig City RTC found the three appellants to have killed Chu, qualified by treachery which absorbed abuse of superior strength. The trial court thus disposed:

WHEREFORE, finding the accused JAIME LOPEZ alias DODONG, ROGELIO REGALADO alias ROGER, and ROMEO ARAGON, all co-principals by direct participation, guilty beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, this Court hereby sentences them to suffer the penalty of Reclusion Perpetua with all the accessory penalties provided by law. To pay the heirs of the victim the sum of one hundred nine thousand six hundred seventy five pesos and forty (P109,675.40)
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centavos as interment and burial expenses, fifty thousand (P50,000.00) pesos as life indemnity twenty-three thousand (P23,000.00) pesos as attorneys fees, and ten thousand (P10,000) pesos as exemplary damages. To pay the cost. SO ORDERED.[11]

On appeal, appellants faulted the trial court for

I x x x FINDING THAT CONSPIRACY ATTENDED THE KILLING OF THE VICTIM. II x x x NOT CONSIDERING THE DEFENSES INTERPOSED BY THE ACCUSED-APPELLANTS.[12] III x x x CONVICTING THE ACCUSED APPELLANTS OF MURDER.[13]

The Court of Appeals affirmed the trial courts decision,[14] hence, the present appeal.[15] The appeal is bereft of merit. This Court finds no reason to overturn the factual findings of the trial court, especially since the prosecutions version is culled from the testimony of eyewitnesses.

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Appellants disclaimer of the presence of conspiracy fails. The evidence shows that they cooperated in a common design to kill Chu. Regalado initiated the killing when he stabbed Chu on the chest, and the two other appellants joined Regalado in chasing Chu, with Regalado hitting Chu with firewood along the way. Then, when the three of them had cornered Chu, Aragon boxed and kicked Chu, enabling Lopez to stab him several times. These indicate a conspiracy. Aragons alibi does not persuade. As the trial court held:
x x x From the ocular inspection of the wharf conducted in Hinatuan, Surigao del Sur on February 26, 2000,[16] it was established that the wharf was located at the dead-end portion of Villaluz Street. Aragon was at the wharf at about the same date and time of the stabbing incident, allegedly to buy fish. He was seated at the last step of the wharf. He stayed there for thirty (30) minutes to wait for a pump boat bringing in fish but there was none. At about the time of the incident, the water level was supposed to be low tide[17] so that no pump boat, if there was any, can dock on the wharf. Applying common sense, nobody in his right mind would wait for about thirty (30) minutes just to buy fish where no pump boat is in sight. x x x Aragon was positively identified by prosecution witnesses, hence his defense of being at the wharf does not hold water. For alibi to prosper, accused must prove not only (1) that he was somewhere else when the crime was committed; but (2) it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission. In this case, the wharf was only a few meters from the scene of the incident. Ergo, Aragon could have been physically present at the place or its immediate vicinity at the time of the commission of the crime. (Citations omitted)[18]

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Neither does Lopezs defense of relative. As the Court of Appeals held:

Under [Paragaraph 2 of Article 11 of the Revised Penal Code], the elements of the justifying circumstance of defense of relatives are as follows: 1. Unlawful aggression; 2. Reasonable necessity of the means employed to prevent or repel it; 3. In case provocation was given by the person attacked, that the one making the defense had no part therein. Even if We adopt accused-appellants version of the incident, We still find the foregoing elements absent in the case at bar. As alleged by Lopez, he merely heard someone shouting police, police, police! and when he looked out he allegedly saw his father-in-law being chased by Chu. He then went to Regalados house to get a knife and when he caught up with Chu, he no longer saw accused-appellant Regalado and it was only Chu who was there. He allegedly stabbed Chu because of the latters threatening words, Are you going to defend your father-in-law? We cannot, by any stretch of imagination, consider said remarks threatening as to consider it unlawful aggression. It bears stressing that unlawful aggression, as defined under the Revised Penal Code, contemplates assault or at least threatened assault of an immediate and imminent kind. There is unlawful aggression when the peril to ones life, limb or right is either actual or imminent. To constitute unlawful aggression, it is necessary that an attack or material aggression, an offensive act positively determining the intent of the aggressor to cause injury shall have been made. A mere threatening or intimidating attitude is not sufficientthere must be a real danger to life and personal safety. Even assuming ex gratia argumenti, that there was unlawful aggression on Chus part when he chased Regalado, Lopez was not
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justified in stabbing Chu since as admitted by him, he did not see accused-appellant Regalado anymore when he was able to catch up with Chu. The unlawful aggression of Chu, had it indeed been present, had already ceased when upon reaching Chu, as Regalado, whom Lopez allegedly wanted to protect, was no longer there. When an unlawful aggression that has begun no longer exists, the one who resorts to self-defense has no right to kill or even to wound the former aggressor. We further do not find any reasonable necessity in the means employed by Lopez to repel Chus alleged aggression. Nowhere in the records is it shown that when Chu allegedly chased Regalado, the former was wielding a weapon. Thus, the intention of Lopez to get a knife for his protection and that of his father-in-law was unwarranted. The fact that Chu allegedly boxed and taunted him prompting him to stab the victim several times in retaliation negates the reasonableness of the means employed to repel Chus aggression assuming that indeed, Chu started the aggression. x x x xxxx The wounds sustained by Chu xxx indicate that the assailant who inflicted the same was more in a killing rage than one who was merely acting in defense of a relative.[19] (Underscoring supplied)

Finally, appellants denial of the existence of treachery in this wise does not convince:
x x x Based on the prosecution witnesses testimony, the victim was allegedly asking forgiveness from accused-appellant Rogelio Regalado and placed his hands on his shoulder when the latter stabbed the former. Based from the foregoing, it is apparent that the victim committed a wrongful act against herein accusedappellant, which was so grave that there was a need for him to ask for forgiveness. Thus, x x x the victim was expecting a
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retaliation supplied)

from

herein

accused-appellant.[20] (Underscoring

The essence of treachery is a deliberate and sudden attack that renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack.[21] In the case at bar, Chu was caught off-guard when, after he was asking forgiveness from Regalado, the latter suddenly drew a curved knife and stabbed and pursued the following victim. And once Regalado and his co-appellants cornered Chu, Aragon kicked and punched him while Lopez stabbed him several times to thus preclude Chua from defending himself.

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WHEREFORE, the appeal is DENIED. The September 22, 2008 Decision of the Court of Appeals is AFFIRMED. Costs against appellant. SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

DANTE O. TINGA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ARTURO D. BRION Associate Justice

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ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

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Implied Conspiracy
1. People vs. De Leon, G.r. no. 17994, June 26, 2009

Republic of the Philippines Supreme Court Manila

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 179943 Present: YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ. Promulgated: June 26, 2009

-versus-

MARLON ALBERT DE LEONy HOMO, Appellant.

x-----------------------------------------------------------------------------------------x

DECISION

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PERALTA, J.: This is an appeal from the Decision[1] of the Court of Appeals (CA), affirming with modification the Decision[2] of the Regional Trial Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon Lambert De Leon y Homo guilty beyond reasonable doubt of the crime of robbery with homicide. The factual and procedural antecedents are as follows: According to the prosecution, in the early morning, around 2 o'clock of January 7, 2000, Eduardo Zulueta and Fortunato Lacambra III, both gasoline boys; Julieta Amistoso, cashier; and Edralin Macahis, security guard; all employees of Energex Gasoline Station, located at Barangay Guinayan, San Mateo, Rizal, were on duty when a mint green-colored Tamaraw FX arrived for service at the said gasoline station.[3] Eduardo Zulueta was the one who attended to the said vehicle. He went to the drivers side in order to take the key of the vehicle from the driver so that he could open the gas tank. He saw through the lowered window shield that there were about six to seven persons aboard the vehicle. He proceeded to fill up P50.00 worth of diesel in the gas tank. After doing this, he returned the key to the driver. While returning the key, the driver told him that the engine of the vehicle would not start.[4] Eduardo Zulueta offered to give the vehicle a push. While Eduardo Zulueta and fellow gasoline boy Fortunato Lacambra III were positioned at the back of the vehicle, ready to push the same, the six male passengers of the same vehicle, except the driver, alighted and announced a hold-up. They were armed with a shotgun and .38 caliber pistol.[5] Fortunato Lacambra III was ordered to lie down,[6] while Eduardo Zulueta was directed to go near the Car Wash Section.[7] At that instance, guns were poked at them.[8] Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took the latter's wallet containing a pawnshop ticket and P50.00, while the companion of the former, hit the latter on his nape with a gun.[9]
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Meanwhile, four members of the group went to the cashier's office and took the money worth P3,000.00.[10] Those four robbers were also the ones who shot Edralin Macahis in the stomach.[11] Thereafter, the same robbers took Edralin Macahis' service firearm.[12] After he heard successive gunshots, Eduardo Zulueta saw appellant and his companions immediately leave the place.[13] The robbers boarded the same vehicle and proceeded toward San Mateo, Rizal.[14] When the robbers left, Eduardo Zulueta stood up and found Julieta Amistoso, who told him that the robbers took her bag and jewelry. He also saw that Edralin Macahis had a gunshot wound in the stomach. He immediately hailed a vehicle which transported the injured Edralin Macahis to the hospital.[15] Later on, Edralin Macahis died at the hospital due to the gunshot wound.[16] The following day, Eduardo Zulueta identified appellant as one of the robbers who poked a gun at him.[17] However, according to appellant, from January 4 to 6, 2000, he stayed at the house of his Tita Emma at Pantok, Binangonan, Rizal, helping the latter in her canteen. On the evening of January 6, at approximately 9 o'clock, appellant asked permission from his Tita Emma to go to Antipolo. Catherine Homo, appellant's cousin and the latter's younger brother, accompanied appellant to the terminal. While waiting for a ride, the vehicle, a Tamaraw FX, of a certain Christian Gersalia, a relative of appellant and Catherine Homo, passed by. Catherine Homo asked Christian Gersalia if he would allow appellant to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from Christian Gersalia, there were other passengers in the said vehicle.[18] When the vehicle reached Masinag, where appellant was supposed to alight, he was not allowed to do so; instead, he was asked by the other passengers to join them in their destination. While on the road, appellant fell asleep. When he woke up, they were in a gasoline station. He then saw Christian Gersalia and the other passengers conducting a hold-up. He never left the vehicle and was not able to do anything because he was overwhelmed with fear. After he heard the gunshots, Christian Gersalia and the other passengers went to the vehicle and proceeded
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towards Marikina. On their way, they were followed by policemen who fired at them. The other passengers fired back at the policemen. It was then that the vehicle hit a wall prompting the other passengers to scamper in different directions leaving him behind. When the policemen arrived, he was immediately arrested.[19] As a result of the above incident, four Informations for Robbery with Homicide were filed against appellant, Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, an alias Rey, an alias Jonard, an alias Precie, and an alias Renato, which read as:
Criminal Case No. 4747 That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato whose true names, identities and present whereabouts are still unknown and still at-large, and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of motor vehicle and by means of force, violence and intimidation, employed upon ENERGEX GASOLINE STATION, owned by Regino C. Natividad, and represented by Macario C. Natividad, did then and there willfully, unlawfully and feloniously rob, steal and carry away its cash earnings worth P3,000.00, to the damage and prejudice of said Energex Gasoline Station in the aforesaid amount of P3,000.00 and on the occasion of the said robbery, the above-named accused, while armed with unlicensed firearms with intent to kill, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law. Criminal Case No. 4748 That on or about the 7th day of January 2000 in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this
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Honorable Court, the above-named accused, conspiring and confederating , together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and still at-large and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle and by means of force, violence and intimidation, employed upon the person of JULIETA A. AMISTOSO, the Cashier of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal and carry away the following, to wit: a) One (1) ladies ring with sapphire stone valued at P1,500.00 b) One (1) Omac ladies wristwatch valued at P2,000.00 c) Guess black bag valued at P500.00 d) Leather wallet valued at P150.00 e) White T-Shirt valued at P175.00 to her damage and prejudice in the total amount of P4,325.00 and on the occasion of the said robbery, the above-named accused while armed with unlicensed firearms with intent to kill, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law.

Criminal Case No. 4749 That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and still at-large, and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle and by means of force, violence and intimidation, employed upon
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EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal, and carry away his service firearm .12 gauge shotgun with serial number 13265 valued at P12,000.00 owned by Alert and Quick (A-Q) Security Services Incorporated represented by its General Manager Alberto T. Quintos to the damage and prejudice of said Alert and Quick (A-Q) Security Services Incorporated in the aforesaid amount of P12,000.00 and on the occasion of the said robbery the above-named accused, while armed with unlicensed firearms, with intent to kill conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law.

Criminal Case No. 4750 That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and still at-large and conspiring and mutually helping and assisting one another, while armed with unlicensed firearms and acting as a band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle and by means of force, violence and intimidation, employed upon the person of EDUARDO ZULUETA, a gasoline boy of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal and carry away the following to wit: a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1) black Citizen men's watch (automatic) valued at P2,000.00 b) Cash money worth P50.00 to his damage and prejudice in the total amount of P2,050.00 and on the occasion of the said robbery, the above-named accused, while armed with unlicensed firearms with intent to kill, conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose
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true names, identities and present whereabouts are still unknown and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk which directly caused his death. Contrary to law.

Upon arraignment on March 23, 2000, appellant, with the assistance of counsel de parte, entered a plea of not guilty on all the charges. Thereafter, trial on the merits ensued. The prosecution presented five witnesses, namely: Macario C. Natividad,[20] then officer-in-charge of Energex Gasoline Station where the incident took place; Edito Macahis,[21] a cousin of the deceased security guard Edralin Macahis; Fortunato Lacambra III,[22] a gasoline boy of the same gas station; Eduardo Zulueta,[23] also a gasoline boy of the same gas station, and Alberto Quintos,[24] general manager of Alert and Quick Security Services, Inc., where the deceased security guard was employed. The defense, on the other hand, presented two witnesses, namely: Catherine Homo,[25] a cousin of appellant and the appellant[26] himself. On December 20, 2001, the RTC rendered its Decision[27] convicting appellant beyond reasonable doubt of all the charges against him, the dispositive portion of which reads:
1. In Criminal Case No. 4747, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance; to pay Energex Gasoline Station owned by Regino Natividad and represented by Macario C. Natividad the amount of P3,000.00 as compensatory damages and to pay the costs;

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2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance, and to pay the costs; 3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable ground of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance; to indemnify the heirs of Edralin Macahis in the amount of P50,000.00 as death indemnity; to pay P12,000.00 as compensatory damages for the stolen service firearm if restitution is no longer possible and P50,000.00 as moral damages, and to pay the costs; 4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance and to pay Eduardo Zulueta, victim of the robbery, in the amount of P2,050.00 as compensatory damages for the stolen properties if restitution is no longer possible and to pay the costs. As against accused Rudy Gersalia and Christian Gersalia, who have, to date, remained at-large, let a warrant of arrest be issued against them and let these cases be, in the meantime, sent to the archives without prejudice to their reinstatement upon apprehension of the said accused. As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown and are still atlarge, let these cases be, in the meantime, sent to the archives without prejudice to their reinstatement upon the identification and apprehension of the said accused. SO ORDERED.
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The cases were appealed to this Court, however, on September, 21, 2004, in conformity with the Decision dated July 7, 2004 in G.R. Nos. 14767887 entitled The People of the Philippines v. Efren Mateo y Garcia, modifying the pertinent provisions of the Revised Rules of Criminal Procedure, more particularly Sections 3 and 10 of Rule 125 and any other rule insofar as they provide for direct appeals from the RTCs to this Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as well as the Resolution of this Court, en banc dated September 19, 1995, in Internal Rules of the Supreme Court in cases similarly involving the death penalty, pursuant to the Court's power to promulgate rules of procedure in all courts under Article VII, Section 5 of the Constitution, and allowing an intermediate review by the CA before such cases are elevated to this Court. This Court transferred the cases to the CA for appropriate action and disposition. The CA, on June 29, 2007,[29] affirmed with modification, the Decision of the RTC, with the dispositive portion reading:
[28]

WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION. Accused Marlon Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with Homicide of only one count. Given the passage of Republic Act 9346 which took effect on 24 June 2006, the penalty imposed upon Marlon de Leon y Homo is hereby reduced or commuted to reclusion perpetua. SO ORDERED.

On December 10, 2007, this Court accepted the appeal,[30] the penalty imposed being reclusion perpetua. The Office of the Solicitor General (OSG), on February 8, 2008, filed its Manifestation and Motion In Lieu of the Supplemental Brief[31] dated February 4, 2008 stating that it will no longer file a supplemental brief, considering that appellant has not raised any new issue that would require the filing of a supplemental brief.
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Appellant filed a Manifestation[32] on February 22, 2008 stating that he repleads and adopts his Appellant's Brief and Reply Brief as Supplemental Brief. Appellant, in his Brief,[33] assigned the following errors: I
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSEDAPPELLANT A CO-CONSPIRATOR IN THE COMMISSION OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE SAME AND GUILT BEYOND REASONABLE DOUBT. II ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF ROBBERY WITH HOMICIDE, THE TRIAL COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH PENALTIES DESPITE THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE ACT WHICH SHOULD BE METED WITH A SINGLE PENALTY.

The OSG, in its Appellee's Brief,[34] insisted that all the elements of the crime and the appellant's participation in the crime had been established. Appellant, in his Reply Brief,[35] argued that the penalty should not be death, but only reclusion perpetua, because the aggravating circumstance of use of unlicensed firearm, although alleged in the Information, was not alleged with specificity. Article 294, paragraph 1 of the Revised Penal Code provides:
Art. 294. Robbery with violence against or intimidation of persons Penalties. - Any person guilty of robbery with the use of violence against or any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson.

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In People v. De Jesus,[36] this Court had exhaustively discussed the crime of robbery with homicide, thus:
For the accused to be convicted of the said crime, the prosecution is burdened to prove the confluence of the following elements: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is animo lucrandi; and (4) by reason of the robbery or on the occasion thereof, homicide is committed.[37] In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on the occasion or by reason of the robbery.[38] The intent to commit robbery must precede the taking of human life.[39] The homicide may take place before, during or after the robbery. It is only the result obtained, without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime that has to be taken into consideration.[40] There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must be consummated. It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed, or that aside from the homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with homicide. The word homicide is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide. Intent to rob is an internal act, but may be inferred from proof of violent unlawful taking of personal property. When the fact of asportation has been established beyond reasonable doubt, conviction of the accused is justified even if the property subject of the robbery is not presented in court. After all, the property stolen may have been abandoned or thrown away and destroyed by the robber or recovered by the owner.[41] The prosecution is not burdened to prove the actual value of the property stolen or amount stolen from the victim. Whether the robber knew the actual amount in the possession of the victim is of no moment, because the motive for robbery can exist regardless of the exact amount or value involved.[42]

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When homicide is committed by reason or on the occasion of robbery, all those who took part as principals in the robbery would also be held liable as principals of the single and indivisible felony ofrobbery with homicide, although they did not actually take part in the killing, unless it clearly appears that they endeavored to prevent the same.[43] If a robber tries to prevent the commission of homicide after the commission of the robbery, he is guilty only of robbery and not of robbery with homicide. All those who conspire to commit robbery with homicide are guilty as principals of such crime, although not all profited and gained from the robbery. One who joins a criminal conspiracy adopts the criminal designs of his coconspirators and can no longer repudiate the conspiracy once it has materialized.[44] Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery.

From the above disquisition, the testimonies of the witnesses, and pieces of evidence presented by the prosecution, the crime of robbery with homicide was indeed committed. There was no mistaking from the actions of all the accused that their main intention was to rob the gasoline station and that on occasion of such robbery, a homicide was committed. The question now is whether there was conspiracy in the commission of the crime. According to appellant, the prosecution failed to prove that he was a co-conspirator. However, this Court finds no merit to appellant's argument. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed an implied conspiracy.[45] The prosecution was able to prove the presence of an implied conspiracy. The witnesses were able to narrate in a convincing manner, the circumstances surrounding the commission of the robbery and positively identified appellant as
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one of the robbers. Witness Eduardo Zulueta testified that appellant was one of the robbers who poked a gun at him, thus:
Q. Were you able to identify those two armed male persons who poked their guns at you? A: Yes, sir. Q: Kindly look around inside this courtroom and inform the Hon. Court whether those two (2) persons who poked their guns at you were (sic) present now? A: Only one, sir, and there he is. (At this juncture, witness pointing to a certain person who answered by the name of MARLON ALBERT DE LEON when asked.) Q: This Marlon De Leon was he the one who guarded you in the carwash or not? A: Yes, sir. Q: Now, what happened to you at the carwash where this Marlon De Leon was guarding you? A: His gun was poked at me, sir. Q: What else transpired, Mr. Witness, or what else happened to you aside from that? A: He hit me with his gun on my nape, sir. Q: What else, Mr. Witness? A: He got my wallet from my pocket, sir. Q: Who hit you with a gun? A: His other companion, sir.[46]

Appellant was also identified by witness Fortunato Lacambra III, thus:

Q: What about that person who ordered Zulueta to go to the carwash section and hit him, was he also armed?

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A: Yes, sir. Q: What kind of firearm was he carrying then? A: Also .38 caliber, sir. Q: Were you able to identify or recognize that person who approached and ordered Zulueta to go to the carwash section? A: Yes, sir. Q: If that person is inside the courtroom, will you be able to identify him? A: Yes, sir. Q: Kindly point to him? A: That man, sir. (Witness pointed to a person who answered by the name of Marlon Albert de Leon).[47]

Therefore, it can be inferred from the role appellant played in the commission of the robbery, that a conspiracy existed and he was part of it. To be a conspirator, one need not participate in every detail of the execution; he need not even take part in every act or need not even know the exact part to be performed by the others in the execution of the conspiracy. Each conspirator may be assigned separate and different tasks which may appear unrelated to one another but, in fact, constitute a whole collective effort to achieve their common criminal objective.[48] Once conspiracy is shown, the act of one is the act of all the conspirators. The precise extent or modality of participation of each of them becomes secondary,[49] since all the conspirators are principals. As to the credibility of the witnesses, the RTC's findings must not be disturbed. The well-settled rule in this jurisdiction is that the trial courts findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal without any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could affect the result of the case.[50]

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For his defense, appellant merely denied participating in the robbery. However, his presence during the commission of the crime was wellestablished as appellant himself testified as to the matter. Granting that he was merely present during the robbery, his inaction does not exculpate him. To exempt himself from criminal liability, a conspirator must have performed an overt act to dissociate or detach himself from the conspiracy to commit the felony and prevent the commission thereof.[51] Appellant offered no evidence that he performed an overt act neither to escape from the company of the robbers nor to prevent the robbery from taking place. His denial, therefore, is of no value. Courts generally view the defenses of denial and alibi with disfavor on account of the facility with which an accused can concoct them to suit his defense. As both evidence are negative and self-serving, they cannot attain more credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby positive evidence on the various aspects of the crime committed.[52] Consequently, the CA was correct in ruling that appellant was guilty only of one count of robbery with homicide. In the crime of robbery with homicide, there are series of acts, borne from one criminal resolution, which is to rob. As decided[53] by the Court of Appeals:
A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of acts but all arising from one criminal resolution.[54] Although there is a series of acts, there is only one crime committed; hence, only one penalty shall be imposed.[55] In the case before Us, [appellant] and his companions intended only to rob one place; and that is the Energex gasoline station. That they did; and in the process, also took away by force the money and valuables of the employees working in said gasoline station. Clearly inferred from these circumstances are the series of acts which were borne from one criminal resolution. A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.[56] This can be said of the case at hand. Akin to the extant case is that of People v. De la Cruz,[57] wherein the robbery that took place in several houses belonging to different persons, when not absolutely unconnected, was held not to be taken as separate and distinct offenses. They formed instead, component parts of the general plan to despoil all those within the vicinity. In this case, the Solicitor General argued that the [appellant] had committed eight different robberies, because the evidence shows distinct and
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different acts of spoilation in different houses, with several victimized persons.[58] The Highest Tribunal, however, ruled that the perpetrated acts were not entirely distinct and unconnected from one another.[59] Thus, the single offense or crime.

Now, this Court comes to the penalty imposed by the CA. The decision[60] merely states that, in view of the enactment of R.A. 9346, the sentence of Death Penalty, imposed upon appellant, is automatically commuted to reclusion perpetua, but is silent as to how it had arrived into such a conclusion. Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide is punishable by reclusion perpetua to death, which are both indivisible penalties. Article 63 of the same Code provides that, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating circumstance.[61] It must be remembered that the Informations filed with the RTC alleged the aggravating circumstance of the use of unlicensed firearm. Pursuant to the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use of an unlicensed firearm is a special and not a generic aggravating circumstance in the homicide or murder committed. As explained by this Court in Palaganas v. People:[62]
Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.[63] Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged.[64] It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.[65] Moreover, it cannot be offset by an ordinary mitigating circumstance.

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It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance. Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential Decree No. 1866,[66] as amended by Republic Act No. 8294,[67] which is a special law. Its pertinent provision states: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In interpreting the same provision, the trial court reasoned that such provision is silent as to whether it is generic or qualifying.[68] Thus, it ruled that when the law is silent, the same must be interpreted in favor of the accused.[69] Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance.[70] This interpretation is erroneous, since we already held in several cases that with the passage of Republic Act No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.[71] Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic aggravating circumstance.

In another case,[72] this Court ruled that, the existence of the firearm can be established by testimony, even without the presentation of the firearm.[73] In the said case, it was established that Elmer and Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds. The ballistic examination of the slugs recovered from the place of the incident showed that they were fired from a .30 carbine rifle and a .38 caliber firearm. The prosecution witnesses positively identified appellant therein as one of those who were holding a long firearm. It was also established that the same appellant was not a licensed firearm holder. Hence, this Court ruled that the trial court and the CA correctly appreciated the use of unlicensed firearm as an aggravating circumstance.
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After a careful study of the records of the present case, this Court found that the use of unlicensed firearm was not duly proven by the prosecution. Although jurisprudence dictates that the existence of the firearm can be established by mere testimony, the fact that appellant was not a licensed firearm holder must still be established. The prosecution failed to present written or testimonial evidence to prove that appellant did not have a license to carry or own a firearm, hence, the use of unlicensed firearm as an aggravating circumstance cannot be appreciated. Finally, it is worth noting that the RTC ordered appellant to indemnify the heirs of Edralin Macahis the amount of P50,000.00 as death indemnity, P12,000.00 as compensatory damages for the stolen service firearm if restitution is no longer possible and P50,000.00 as moral damages. Actual damages were never proven during the trial. Hence, this Court's rulings[74] on temperate damages apply, thus:
In People vs. Abrazaldo,[75] we laid down the doctrine that where the amount of actual damages for funeral expenses cannot be determined because of the absence of receipts to prove them, temperate damages may be awarded in the amount of P25,000[76] This doctrine specifically refers to a situation where no evidence at all of funeral expenses was presented in the trial court. However, in instances where actual expenses amounting to less than P25,000 are proved during the trial, as in the case at bar, we apply the ruling in the more recent case of People vs. Villanueva[77] which modified the Abrazaldo doctrine. In Villanueva, we held that when actual damages proven by receipts during the trial amount to less than P25,000, the award of temperate damages for P25,000 is justified in lieu of the actual damages of a lesser amount. To rule otherwise would be anomalous and unfair because the victims heirs who tried but succeeded in proving actual damages of an amount less than P25,000 would be in a worse situation than those who might have presented no receipts at all but would now be entitled to P25,000 temperate damages.[78]

WHEREFORE, the Decision dated June 29, 2007 of the Court of Appeals is hereby AFFIRMED with MODIFICATION. Appellant Marlon Albert de Leon y Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with Homicide, the penalty of which, is reclusion perpetua in view of the absence of any mitigating or aggravating circumstance. Appellant is also liable to pay the heirs of the victim, P25,000.00 as temperate damages, in addition to the other civil indemnities and damages adjudged by the Regional Trial Court, Branch 76, San Mateo, Rizal.
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SO ORDERED.

DIOSDADO M. PERALTA Associate Justice WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERIO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court Division.

CONSUELO YNARES-SANTIAGO Associate Justice Third Division, Chairperson

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CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

2.

People vs. Sameniano, G.r. no. 183703, January 20, 2009

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

- versus -

FERNANDO SAMENIANO, Accused-Appellant.

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G.R. No. 183703 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ. Promulgated: January 20, 2009

x-----------------------------------------------------------------------------------------x DECISION VELASCO, JR., J.: This is an appeal from the February 26, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02525, which affirmed the August 1, 2006 judgment[2] of the Regional Trial Court (RTC), Branch 32 in Pili, Camarines Sur in Criminal Case No. P-2924. The RTC convicted accused-appellant Fernando Sameniano of murder and sentenced him to reclusion perpetua. The Facts On August 24, 1999 at around 10:00 p.m., Norming de los Santos and his cousin, Roberto de los Santos, were asleep in a nipa hut at an abaca plantation in Sitio Kaunlong, Brgy. Gatbo, Ocampo, Camarines Sur when three men suddenly pelted their nipa hut with stones. Not long after, the men barged inside the nipa hut and directed their flashlights on Robertos face. Norming recognized one of
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the assailants as accused-appellant. The three intruders surrounded Roberto and then one of them, later identified as Jose Aguilar, hacked Roberto with a bolo. Another man with a bolo, later identified as Benedicto Felicidario, Jr., held Robertos hands. While the assailants were wrestling with Roberto, Norming rushed out to the abaca plantation. Accused-appellant chased Norming but failed to catch up with him. Roberto was unable to flee as he was hacked and stabbed, causing irreversible shock secondary to massive brain and lung hemorrhage and resulting in his instantaneous death.[3] Norming reached Robertos house and narrated to the latters wife what happened in the plantation. Thereafter, Robertos wife went to Brgy. Gatbo to ask for help frombarangay officials. A barangay official went to the place of the incident, but Norming failed to accompany him due to a knee injury caused by a stone thrown at him. Norming also reported the incident to the police. According to the autopsy report prepared by Dr. Angelina Celso, Municipal Health Officer of Ocampo, Camarines Sur, the following were found on the cadaver of Roberto:
1. Wound hacked 12.0 cm in length located in the face cutting right and left maxillary and zygomatic bones and the nasal bone affecting brain substance. 2. Wound stabbed 6.0 cm in length located at the left lateral chest at the level of the 5th and 6th intercostals space penetrating chest cavity involving left lung. 3. Wound incised, posterior portion, right middle finger involving phalanges.[4]

Consequently, the following information was filed against accusedappellant, Aguilar, and Felicidario:
CRIMINAL CASE NO. P-2924 That on the 24th of August, 1999 at around 10:00 oclock in the evening, at Zone 6, Barangay Gatbo, Municipality of Ocampo, Province of Camarines Sur, and within the Jurisdiction of this Honorable Court, the said accused, conspiring and confederating together, with intent to kill and while armed with bolos, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and hack to death one Roberto delos Santos, inflicting upon him several mortal wounds in the different parts of his body, thereby
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causing his instantaneous death, to the damage and prejudice of the heirs of the said Roberto delos Santos. Further, the generic aggravating circumstances that the crime was committed during nighttime and in an uninhabited place are present in this case. ACTS CONTRARY TO LAW. [5]

Upon arraignment, all the accused pleaded not guilty. During trial, Aguilar died. The defense of accused-appellant consisted of denial and alibi. He claimed that on the fateful night in question, he was at home in Brgy. Villaflorida, Ocampo, Camarines Sur tending to his sick daughter with his brother Jaime. He admitted knowing where Zone 6, Brgy. Gatbo, Ocampo is as he used to play volleyball there. Brgy. Gatbo is three barangays away from where he lives and can be reached by three tricycle rides that take at least three hours. The last trip to Brgy. Gatbo is at 9:00 p.m. According to accused-appellant, on September 1, 1999, a police officer came to his house and invited him for questioning. He voluntarily went to the police station where he was detained for two days, together with Aguilar, his volleyball playmate, and Felicidario, whom he claimed meeting there for the first time. After trial, the court a quo found both Felicidario and accused-appellant guilty. The fallo of the decision reads:
WHEREFORE, judgment is hereby rendered, finding both Benedicto Felecidario, Jr. and Fernando Sameniano guilty beyond reasonable doubt of murder as charged in the information, hereby sentencing them to suffer the penalty of reclusion perpetua; to indemnify the heirs of Roberto delos Santos the sum of P50,000.00 as moral damages.[6]

Only accused-appellant interposed an appeal. The Ruling of the CA Before the CA, accused-appellant contended that the testimony of the lone witness, Norming, is not credible. It was accused-appellants posture that Norming could not have witnessed the incident or identified the attackers since he testified that he turned his back while Aguilar hacked Roberto. It was, accused266 | P a g e

appellant added, also very dark at that time; the incident allegedly happened around 10:00 p.m. and the attackers had flashlights. Accused-appellant further pointed out that there was no proof of his participation in the killing of the victim since Norming testified that he only saw Felicidario wrestled with Roberto while Aguilar hacked Roberto with a bolo. He argued that the prosecution failed to prove the existence of conspiracy. Lastly, accused-appellant insisted that while alibi is generally a weak defense, his alibi should have been given weight by the trial court because of the doubtful nature of the testimony of the lone eyewitness.[7] On the other hand, the People, represented by the Solicitor General, prayed for the conviction of accused-appellant and for the additional award of PhP 50,000 as civil indemnity and PhP 25,000 as exemplary damages. The appellate court affirmed the conviction with modification as follows:
WHEREFORE, the decision subject of the instant appeal is hereby AFFIRMED with a modification as to the civil liability. Thus, in conformity with recent jurisprudence, the accused-appellant is hereby ordered to pay the heirs of the victim an additional P50,000 by way of civil indemnity.[8]

Accused-Appellants Assignment of Error Presented Before Us

THE COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT

The Courts Ruling The appeal lacks merit. In his plea to be acquitted of the crime, accused-appellant attempts to cast doubt on the testimony of the lone prosecution eyewitness. Upon review of the records, however, we find eyewitness Normings following account of how his cousin was killed convincing:

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PROS. CONTRERAS: Q: A: Q: A: Mr. delos Santos, do you know the victim in this case Roberto de los Santos? Yes sir. How are you related to him? We are first cousins.

xxxx Q: What about the accused Fernando Sameniano, do you know him? A: Yes sir. Q: Would you kindly point him to us, if he is inside the courtroom today? (The witness pointed to a man who, when asked of his name, answered Fernando Sameniano.) Q: Tell us why do you know all these three accused? A: Because we are residing in one barangay. xxxx Q: Tell us where you were on August 24, 1999 at around 10:00 oclock in the evening? A: We were at the abaca plantation. Q: Abaca plantation of what barangay and municipality? A: At Sitio Kaunlong, Bgy. Gatbo, Ocampo, Camarines Sur. Q: Who was with you at that time? A: Only the two of us. Q: When you said only the two of you, to whom are you referring? A: Roberto delos Santos. xxxx Q: Would you kindly tell us what happened while you were there at the abaca plantation on that particular date and time? A: They forcibly entered our small hut. COURT: Q: How many entered that small hut? A: The three of them. PROS. CONTRERAS: Q: Can you tell us who were these three persons whom you are referring to? A: These Jose Aguilar, Benedicto Felicidario, Jr. and Fernando Sameniano. Q: How were you able to recognize these three people considering that it was nighttime? A: I was able to recognize him because I was one armlength away from them. Q: When you said, you are at a distance of one armlength away from him, to who are you referring?
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A: These Jose Aguilar, Fernando Sameniano and Benedicto Felicidario, Jr. Q: What did these three people do? ATTY. BRAZIL: That is vague, your honor, from what point of reference. COURT: Overruled. WITNESS: A: They hacked my cousin. PROS. CONTRERAS: Q: What kind of instrument was used in hacking your cousin? A: A bolo. Q: Who, among them, hacked your cousin? A: Jose Aguilar. Q: Where? A: At his face. Q: When Jose Aguilar hacked your cousin, hitting your cousin at his face, what is your distance from them? A: About one armlength. Q: And where was Benedicto [Felicidario, Jr.] at the time when Jose Aguilar hacked your cousin? A: He was there present. Q: What was he doing? A: They were jamming up. Q: When you said jamming up; what was done to your cousin by this Benedicto [Felicidario, Jr.]? A: He wrestled (gumol) my cousin. xxxx Q: Was Benedicto [Felicidario, Jr.] armed with any weapon at that time? A: Yes, sir, he was armed. Q: With what kind of instrument? A: A bolo. Q: What about Fernando Sameniano, what did you observe from him? A: This Fernando Sameniano was the one who chased me. Q: Tell us, what did you do when these people attacked your cousin? A: I [ran] away because they were able to take our bolo. Q: You said, you [ran] away and you were chased by Fernando Sameniano, where did you go in running away? A: I [ran] towards the abaca plantation. Q: Was Fernando Sameniano able to catch up with you? A: No, sir.
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Q: And when Fernando Sameniano was not able to catch up with you, where did you go? A: I went home. Q: And you were able to finally arrive home that evening? A: Yes, sir. Q: And when you arrived home, what did you do? A: I told the wife of Roberto delos Santos that we were attacked in our hut.[9]

The testimony of the eyewitness was direct, clear, and candid. He was able to identify the three accused, including accused-appellant, as the assailants. He was familiar with accused-appellant even before the incident, and on the night in question, he was only at arms length from the three attackers. Furthermore, his testimony was consistent with the medico-legal report that showed the location and nature of the wounds in Robertos face. A detailed testimony, like Normings, acquires greater weight and credibility when confirmed by autopsy findings.[10] Lastly, no ill motive was shown that could impeach his credibility. Where there is no evidence showing devious reasons or improper motives why a prosecution witness would falsely testify against or implicate an accused in a heinous crime, the testimony is worthy of full faith and credit.[11] Well-settled is the rule that the testimony of a single eyewitness, if credible and positive, is sufficient to support a conviction, even in a charge of murder.[12] The fact that Norming and the victim were cousins does not necessarily impair the formers credibility. On the contratry, blood relationship may even fortify credibility, for it is unnatural for an aggrieved relative to falsely point an accusing finger at someone other than the real culprit. The inherent desire to seek justice for a dead kin is not served should the witness abandon his conscience and blame one who is innocent of the crime.[13] We likewise affirm the trial and appellate courts finding that conspiracy attended the crime. The trial court noted the fact that the assailants came and left the crime scene together. Accused-appellant and the two other accused arrived with flashlights and bolos. The appellate court observed that while accusedappellant did not have a direct hand in hacking the victim, his inaction or failure to prevent his companions from killing reveals his complicity to the crime. Also, when Norming rushed out of the hut, accused-appellant chased him. These actions
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reveal a unity of purpose present in conspiracy. The fact that accused-appellant did not inflict the fatal blows does not negate conspiracy nor exculpate him from any liability. Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident.[14] Accused-appellants denial and alibi cannot prevail over the positive identification of him as the perpetrator of the crime.[15] For alibi to prosper, accused-appellant must prove (1) that he was somewhere else when the crime was committed and (2) that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[16] In this case, accused-appellant failed to offer any evidence that could support his alibi. Assuming that his alibi is true, his residence was a mere three hours away from the victims hut. It was not physically impossible for him to be present at the crime scene since he could easily board a tricycle to the victims abaca plantation. Hence, the requisites of alibi were not met. Lastly, as the CA did, we agree with the trial courts finding of treachery. The trial court noted the suddenness of the attack and the fact that the victim was blinded by flashlights before being hacked to death. In all, we affirm the foregoing findings of the trial and appellate courts. We find no reason to disturb their findings regarding the credibility of the lone eyewitness, the findings of conspiracy and treachery, and the dismissal of accusedappellants alibi. As a general rule, findings of facts of these court are not disturbed on appeal. In sum, the elements of murder were successfully proved: (1) that a person was killed; (2) that the accused killed that person; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the Revised Penal Code; and (4) that the killing is not parricide or infanticide.[17] The prosecution was able to prove beyond reasonable doubt accusedappellants guilt for the killing of Roberto. A witness saw accused-appellant arrive with the two other accused and it was accused-appellant who chased the witness across the abaca plantation. As part of the conspiracy, accused-appellant should be
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held liable as a principal. The killing was attended by treachery, a circumstance that qualifies the crime as murder. Lastly, the killing is not obviously parricide or infanticide. Hence, all the elements for murder are present in this case. WHEREFORE, the Decision dated February 26, 2008 of the CA in CAG.R. CR-H.C. No. 02525 is AFFIRMED IN TOTO. The CAs award of civil indemnity in the amount of PhP 50,000 and the trial courts award of moral damages of PhP 50,000 to the heirs of the victim in accordance with prevailing jurisprudence[18] are accordinglyAFFIRMED. No costs. SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING Associate Justice Chairperson

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

ARTURO D. BRION
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Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

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3. People vs. Tibo-Tan, G.r. no. 178301, April 24, 2009

Republic of the Philippines

Supreme Court
Baguio City
THIRD DIVSION

PEOPLE OF THE PHILIPPINES, Plaintiff/Appellee,

G.R. No. 178301 Present:

- versus -

ROLANDO MALIBIRAN Accused,

Botong

YNARESSANTIAGO, J., Chairperson, AUSTRIAMARTINEZ, CHICO-NAZARIO, NACHURA, and PERALTA, JJ.

Promulgated: and BEVERLY TIBO-TAN, Accused/Appellant. April 24, 2009 x---------------------------------------------------------x

DECISION
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AUSTRIA-MARTINEZ: For review is the November 13, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 02167 which affirmed the Joint Decision[2] dated September 23, 2003 of the Regional Trial Court (RTC), Special Court for Heinous Crimes, Branch 156, of Pasig City, Metro Manila, finding Rolando Botong Malibiran (Rolando) and Beverly Tibo-Tan (appellant) guilty of Murder and Parricide, respectively, and sentencing them to suffer the penalty of reclusion perpetua. The conviction arose from the death of Reynaldo Tan (Reynaldo) on February 5, 1995. The antecedents that led to Reynaldo's death, however, go way back in the 70's when Reynaldo left his common-law wife, Rosalinda Fuerzas (Rosalinda), and their two (2) children, Jessie and Reynalin, in Davao, and went to Manila to seek greener pastures. While in Manila, Reynaldo met and had a relationship with appellant. They eventually married in 1981. Reynaldo and appellant begot three (3) children Renevie, Jag-Carlo and Jay R. In 1984, Reynaldo's and Rosalinda's paths crossed again and they resumed their relationship. This led to the souring of Reynaldo's relationship with appellant; and in 1991, Reynaldo moved out of the conjugal house and started living again with Rosalinda, although Reynaldo maintained support of and paternal ties with his children. On that fateful day of February 5, 1995, Reynaldo and appellant were in Greenhills with their children for their usual Sunday gallivant. After finishing lunch at the Kimpura restaurant, the family separated at around 2:00
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o'clock in the afternoon to do some shopping. Later, they regrouped and purchased groceries at Unimart. At around 4:00 o'clock in the afternoon, the family stepped out of the shopping mall and Reynaldo proceeded to the parking lot to get his red Honda Accord, while the rest of his family stayed behind and waited. Immediately thereafter, the family heard an explosion coming from the direction where Reynaldo parked his car. Appellant and Renevie got curious and proceeded to the parking lot. There, they saw the Honda Accord burning, with Reynaldo lying beside the driver's seat, burning, charred and bleeding profusely. A taxi driver named Elmer Paug (Elmer) appeared and pulled Reynaldo out of the car. Reynaldo was then rushed to the Cardinal Santos Medical Hospital where he eventually died because of the severe injuries he sustained.[3] The underlying cause of his death was Multiple Fracture & Multiple Vascular Injuries Secondary to Blast Injury.[4] An investigation was conducted by the police after which two separate Informations for Murder and Parricide, dated September 10, 1997, were filed against appellant, Rolando and one Oswaldo Banaag (Oswaldo). The Information in Criminal Case No. 113065-H accused Rolando and Oswaldo of the crime of Murder, to wit:
On February 5, 1995, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating with Beverly Tibo-Tan, and three other individuals whose identities are still unknown, did then and there willfully, unlawfully, and feloniously, with intent to kill, treachery, evidence (sic) premeditation and with the use of explosion, plan, plant the explosive, and kill the person of Reynaldo C. Tan, by placing said grenades on the drivers side of his car, and when said victim opened his car, an explosion happened, thereby inflicting upon the latter mortal wound which was the direct and immediate cause of his death.

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The accused Oswaldo, without having participated in said crime of murder as principal, did and there willfully, unlawfully and feloniously take part, as an accomplice, in its commission, by cooperating in the execution of the offense by previous and simultaneous acts. Contrary to law.
[5]

The Information in Criminal Case No. 113066-H accused appellant of the crime of Parricide, to wit:
On February 5, 1995, in San Juan Metro Manila and within the jurisdiction of this Honorable Court, the accused, while still married to Reynaldo C. Tan, and such marriage not having been annulled and dissolved by competent authority, conspiring and confederating with Rolando V. Malibiran, and three other individuals whose identities are still unknown, did then and there willfully, unlawfully and feloniously with intent to kill, treachery, evidence (sic) premeditation and with the use of explosion, plan, plant the explosive, and kill the person Reynado C. Tan, by placing said grenades on the drivers side of his car, and when said victim opened his car, an explosion happened, thereby inflicting upon the latter mortal wound which was the direct and immediate cause of his death. Contrary to law.
[6]

Rolando and appellant pleaded not guilty on arraignment.[7] Their coaccused, Oswaldo, was later discharged and utilized as one of the prosecution witnesses. The prosecution presented Jessie Tan, Inspector Silverio Dollesin, Elmer Paug, Police Inspector Wilson Lachica, Supervising Investigating Agent Reynaldo Olasco, Rosalinda Fuerzas, Janet Pascual (Janet), and Oswaldo, as its witnesses.

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For its part, the defense presented the following witnesses, namely: Renevie Tan, Romulo Bruzo (Romulo), Tessie Luba, Emily Cuevas, Jose Ong Santos, Victorino Feliz, Virgilio Dacalanio and accused Rolando. Appellant did not testify in her behalf. The RTC summed up the testimonies, as follows:
THE EVIDENCE FOR THE PROSECUTION 1. Jessie Tan, a son of Reynaldo with Rosalinda Fuerzas, testified that he moved to Manila from Davao in 1985 to study at the instance of his father Reynaldo and to enable then to bring back time that had been lost since his father left his mother Rosalinda and the latters children in Davao (TSN, Jan. 27, p.14); In 1991 Reynaldo moved to their house because his relationship with Beverly was worsening, and to exacerbate matters, Beverly had then a lover named Rudy Pascua or Pascual, a contractor for the resthouse of Reynaldo. Reynaldo and Beverly were then constantly quarreling over money (TSN, February 10, 1999, pp. 28-29); Jessie had heard the name of Rolando Malibiran sometime in 1994 because one day, Reynaldo came home before dinner feeling mad since he found Rolando Malibiran inside the bedroom of Beverly at their White Plains residence; Reynaldo had his gun with him at the time but Malibiran ran away (TSN, January 27, 1999, pp. 19-21). He eventually came to learn about more details on Rolando Malibiran from Oswaldo Banaag, the family driver of Beverly who was in the house at White Plains at the time of the incident (Ibid, p. 22). One night in December of the same year (1994) Jessie overheard Reynaldo talking to Beverly over the phone, with the latter fuming mad. After the phone conversation he asked his father what happened because the latter was already having an attack of hypertension and his father told him that Beverly threatened him and that he, (Reynaldo) will not benetit from his money if he will continue his move for separation (p. 40 ibid). This threat was taped by Reynaldo in his conversation with Beverly (Exh. B) Jessie himself has received threat of his life over the phone in 1989 (p. 30 ibid). At the lounge at Cardinal Santos Hospital, on the day of the mishap, Jessie testified on the emotional state of his mother Rosalinda while in said Hospital; that she was continuously crying while she was talking to Jessies
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uncle. When asked where Beverly was and her emotional state, he said that Beverly was also at the lounge of the said hospital, sometimes she is seated and then she would stand up and then sit again and then stand up again. He did not see her cry hindi ko po syang nakitang umiyak (pp. 52-23 ibid). When asked if his father had enemies when he was alive, he said he knows of no one (p.54 ibid). Jessie was informed by his mother (Rosalinda) few months after the death of Reynaldo that there was a letter by Rosalinda addressed to his uncle which stated that if something happened to him, Beverly has a hand in it (p. 56 ibid, Exh. D Letter dated March 24, 1999) On cross examination, he admitted having gone to Mandaluyong City Jail and talked with Oswaldo Banaag about latters claim that both accused have planned to kill his father. When asked if he knows the consequences if Beverly is convicted, on the matter of Conjugal Partition of Property, Jessie knows that Beverlys share would be forfeited. Counsel confirmed Jessies request of whatever property of his father remaining shall shared equally by the legitimate and illegitimate children. Thus, Jessie confirmed as the agreement between them (p. 28, March 24, 1999 TSN). 2. Mr. Salonga, a locksmith in Greenhills Supermarket whose work area is at the entrance door of the grocery of Unimart testified that he can duplicate any key of any car in five (5) minutes. And that he is accessible to any one passing to Greenhills Shopping Complex (p. 45, March 24, 1999 TSN). The Honda Car representative on the other hand testified that the Honda Accord of the deceased has no alarm, that the Honda Accord key can be duplicated without difficulty. And the keyless entry device of the said vehicle can be duplicated (pp. 46-47 ibid, Stipulation. Order p. 335 record Vol. 1). 3. Insperctor Selverio Dollesin, the Chief of the Bomb Disposal Unit of the Eastern Police District, and the Police Officer who conducted the post aftermath report of the incident whose skills as an expert was uncontroverted, testified that the perpetrator knew who the intended vicitim was and has reliable information as to his position when opening the vehicle. If the intended victim does not usually drive and usually sits on the rear portion of the vehicle (p. 49, April 14, 1999 TSN) Inspector Dollesins conclusion states that the device (bomb) was placed in front of the vehicle in between the drivers seat and the front door because the perpetrator had information about the victims movements, otherwise he could have placed the device underneath the vehicle, in the rear portion of the vehicle or in any
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part thereof (p. 53 ibid). He testified that persons who have minimal knowledge can set up the explosive in the car in five (5) minutes (p. 65 ibid). The explosion will commence at about 4-7 seconds (p. 66 ibid). 4. Elmer Paug, the taxi driver, testified that on February 5, 1995 he was just dropping a passenger to Greenhills Shopping Complex when he heard a loud explosion at the parking level. Being curious of the incident he hurriedly went out to look for a parking, then proceeded to the area where the explosion occurred. He saw a man wearing a shirt and short who is about to give assistance to a man who was a down on the ground bloodied. Finding that the man could not do it on his own, Elmer rushed through to give aid. He held both arms of the victim, grabbed him in the wrists and dragged him out and brought him farther to the burning car. (pp. 7 July 7, 1999 TSN). The man lying on the pavement has burnt fingers and hair, chest bloodied and skin already sticking to Elmers clothes (p. 8 Ibid). He noticed two women at about two armlength from the car where he was. The younger woman shouted Daddy, Daddy, kaya mo iyan. She was crying had wailing (p. 10 ibid). He said that the older woman gestured her left hand exclaimed in a not so loud voice wala bang tutulong sa amin? while her right hand clutched her shoulder bag (p. 11 ibid). When asked if the older woman appears to be alarmed, Elmer testified that he cannot say, and said she looked normal; he did not notice her crying. Neither of the two female rendered assistance to drag the victim, they just followed him when he pulled him out. The older woman never touched the victim. (p. 12 ibid). Considering that his Taxi is quite far where the victim was lying, he flagged a taxi, and the victim was brought to Cardinal Santos Hospital (pp. 15-16 ibid). On cross examination, he was asked what the meaning of normal is, and he said natural Parang walang nangyari It looks like nothing happened (p. 42 ibid). Her was uncertain as to whether the two females joined the deceased in the taxi cab (p. 43) as he left. 5. Police Inspector Wilson Lachica testified that he was the police officer who investigated the case. In the Cardinal Santos Hospital he was able to interview Beverly Tan. He asked her name, address, name of the victim, how the incident happened and who their companions were. She answered those questions in a calm manner (p. 13, Sept. 21, 1999 TSN). As per his observation which was told to his superiors, he has not seen remorse on the part of the victim, (meaning the wife) for an investigator that is unusual. Based on his more than six years of experience as an investigator,
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whenever a violent crime happened, usually those relatives and love ones appears hysterical, upset and restless. Her reaction at the time according to him is not normal, considering that the victim is her husband. He interviewed persons close to the victim even at the wake at Paz Funeral in Quezon City. He was able to interview the daughter of the lady-accused; the other lady and family or relatives of the victim, the same with the driver of the lady accused. He came to know the identity of the policeman linked with the lady accused, named Rolando Malibiran. He testified that he obtained the information that he desired from the widow nonchalantly and marked with blithe unconcern, which in his observation is unusual since she is supposed to be the one who would diligently push through in the investigation. When asked the level of interest as regards accused Malibiran, witness testified that because of the manner of the commission of the crime through the use of explosives, only a trained person can do that job (pp. 1516 ibid). 6. Supervising Investigating Agent Reynaldo Olasco testified that his only observation on the demeanor of Beverly Tan is that she did not give her statement readily without the assistance of her counsel which for the investigator is quite irregular. Considering that she is the legal wife, he could not see the reason why Beverly would bring a counsel when she is supposed to be the complainant in the case (p. 11, April 5, 2000 TSN). He testified that after having interviewed a representative from Honda, they had set aside the possibility that it was a third party who used pick lock in order to have access to the Honda Accord and the presumption is that the duplicate key or the main key was used in opening the car. The assessment was connected with the statement of Renevie that she heard the clicking of all the locks of the Honda Accord, which she was sure of when they left the car in the parking lot (p. 12 ibid) In 1998 they arrested Rolando Malibiran in Candelaria Quezon, he was fixing his owner type jeep at that time. The arresting officers waited for Beverly Tan, and after thirty minutes they were able to arrest Beverly Tan on the same place (p 8, May 31, 2000 TSN). They searched the premises of the place where they reside and found a white paper which he presumed to be kulam because theres some oracle words inscribe in that white piece of paper and at the bottom is written the same of Jessie (pp. 8-9 ibid). On cross examination, he admitted that 70% of the information on the case was given by Oswaldo Banaag through the persistence of the NBI which convinced him to help solve the case. It was disclosed to the investigating officer after he was released, thats the only time he gave in to the request (p. 14, may 31, 2000 TSN). As to how the
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NBI operatives effected the arrest, it was through an information from the Lucena Sub-Office (p. 17, Ibid). 7. Rosalinda Fuerzas testified that her life in Makati was medyo magulo lnag kase nanggugulo sya sa amin. When asked who this siya was, she said Beverly. That one day Beverly called on her and harassed her, and one day she received a murder letter threatening that she (Rosalinda) would be around the newspaper saying that she would be killed, like what they did in the news papers, puputu-putulin iyong mga dodo o anuman dahil mang-aagaw daw ako (Rosalinda) ng asawa (p. 11 ibid, June 27, 2000 TSN). She stated that her husband wanted to separate with Beverly because he found out that the latter has paramour named Rudy Pascua contractor of Jollibee (pp. 13-14 ibid). She had never seen Beverly appeared to be lonely when her husband was then kidnapped. A telephone conversation with Beverly was recorded by Reynaldo which was a quarrel regarding money. In the Cardinal Santos Hospital, she did not see Beverlys appearance to be lonely but appeared to be a criminal, and Beverly did not cry (pp. 13-17 ibid). She mentioned the letter of Reynaldo that if something happened to him, Beverly is the one who killed him (p. 26 Ibid; pp. 24-25, Exh. D, Vol. 1-A Record). 8. Janet Pascual testified that she was able to know Rolando Malibiran, because on March 1993 when she was in White Plains, Beverly showed her a picture of him (Malibiran) and said to her that he is her boy friend. Witness told her that he was handsome. She was close to Beverly that she frequently stayed in White Plains when Beverly and Reynaldo is no longer living in the same roof. They played mahjong, chat and has heard Beverlys hurtful emotions by reason of her philandering husband Reynaldo. Beverly told her of how she felt bad against underwear not intented for her (p. 9, Oct. 11, 2000 TSN); that on August 1994, Malibiran told Beverly that he has a kumapre who knows how to make kulam for an amount of P10,000.00. That Reynaldo would just sleep and never wake up. Witness testified that they went to Quiapo to buy the needed ingredients but nothing happened (p. 14 Ibid). The accused wanted to kill Reynaldo in a way that they would not be suspected of having planned it, and for him just to die of bangungot. She testified that they wanted to separate their properties but it did not push through, referring to Beverly and Reynaldo. That Beverly heard of the house being built in Corinthian intended for Rosalinda and family. In July 1994 Malibiran told witness testified that she heard this on their way to Batangas, it was Beverlys
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birthday (p. 16 ibid). On October 1994 she asked by Malibiran to convince Beverly to marry him, this was asked at the time when Beverly was in Germany (p. 17 ibid). When asked whether Beverly and Rolando ever got married the witness testified that the two got married on November 8, 1994. (p. 155 Vol. 1-A records Exh. JJ Certificate of Marriage). That she executed an affidavit of corroborating witnesses for Beverly and Malibiran to facilitate the processing of their exemption in obtaining marriage license requirement (p. 128 Ibid; Exh. BB). She is an employee of the Municipality of San Juan. After getting married they discussed how Malibiran would get inside the car of Reynaldo. On December of 1994, Beverly was able to duplicate Reynaldos key at the time when they have shopped for many things, Reynaldo asked her to bring the goods to the car in the compartment as the kids would still shop (p. 17 ibid). After having done so, she proceeded to a key duplicator in Virra Mall and had the key duplicated. Thereafter on the succeeding days or weeks, she was able to give the duplicate to Malibiran. That they would use the grenade since Malibiran has one in his house but his only problem is how to get inside the car and place the grenade (p. 18, Oct. 11, 2000 TSN; Vide p. 35 ibid) As to when the killing would take place, the witness heard that they will do it during the baptism of the child of Gloria, Rolando Malibirans sister. They chose that date so that they would not be suspected of anything and that pictures would be taken in the baptism to reflect that Malibiran took part in the same (pp. 17-18 ibid). During Reynaldos internment when asked whether Beverly looked sad, witness said that she did not see her sad (p. 20 ibid). On February 8, 1995, during the wake, witness met Malibiran in a canteen in White Plains and they rode a Canter owned by Beverly, on the road while the vehicle was cruising along Katipunan avenue near Labor Hospital, Malibiran told her among others that on the day he placed a grenade on Reynaldos car he saw a security guard roving and so what he did was to hurriedly tie the wire in the grenade (p. 21 ibid) not connected with the wire unlike the one intended for Reynaldo which has a connection (p. 21 ibid). As far as she knows, there were four or five grenades placed. She told this secret to another friend so that in case something happened to her, it was the doing of Malibiran and Beverly. On Cross examination, she was asked whether Malibiran did it alone, she said that he has a look out as what Malibiran told him (p. 26
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ibid). When confronted why she was testifying only now, she said she was bothered by her conscience. As to how did she get the information of key duplication, she said that it was told to her by Beverly (p. 35 ibid). It was also disclosed that she did ask Atty. Morales for a sum of P5,000.00 for he to buy medicine. 9. Oswaldo Banaag (or Banaag) testified that Beverly told him that she and Malibiran had a relationship (p. 39, April 1994 TSN). He testified that on April 10, 1994 Beverly asked him to look for a hired gunman, if he could not find one, he just look for a poison that would kill Reynaldo, ten thousand (P10,000.00) pesos was given him for this (p. 14 Ibid). In his sworn statement he said that Beverlyasked him to seek means for Reynaldo to die. That she will pay any amount just for him to get out of her life. He has driven for her in going to Hilltop Police Station, Taytay Rizal to see Rolando Malibiran. That Malibiran blames Beverly of the reason why Reynaldo is still alive and then volunteered himself to remedy the situation, that he would seek a man that would kill Reynaldo he made an example of a man they killed and threw in Antipolo Bangin with Beverly, Malibiran and two other persons who appear to be policeman because they have something budging in their waste [sic] which is assumed to be a gun, they went to Paombong Bulacan via Malabon. He heard that they would fetch a man in Bulacan that knows how to place a bomb in a vehicle. Near the sea they talked to a person thereat. From Paombong they rode a banca and went to an islet where the planning was discussed as to how much is the fee and how the killing will be had. They ordered him to return back to the vehicle and just fetched them in Binangonan. He swore that on February 5, 1995 around 10:30 a.m. Beverly asked one of her siblings to call Reynaldo for them to be picked up because every Sunday, the family would go out for recreation. Around 12:00 pm he was asked by Beverly to follow where they will go and when they are already parked, he was instructed to fetch Malibiran in Caltex, Katipunan near Shakeys and bring them to the place where Reynaldo was parked. In the Caltex station he saw Malibiran with two persons who looked like policemen and another person he previously saw in Bulacan. He drove the L300 Van, and brought them to the parking lot where Reynaldos Honda Car was parked and Malibiran told him just drove [sic] in the area and come back. At around 3:00 p.m. after half an hour he saw Malibiran and company and I picked them up. He heard from the person in Bulacan Ayos na, siguradong malinis ito. Then he was asked to drive them to Hilltop Police Station. He
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discovered the death of Reynaldo when he saw and read newspaper, he called Beverly to confirm this incident and he was asked to be hired again and drove for her. When he was in White Plains already, he was asked by Beverly and Malibiran not to squeal what he knows of, otherwise, his life will just be endangered. That Beverly and Malibiran were lovers since March 1993, when they met each other in a piggery in Marikina. There was an incident that Reynaldo saw Malibiran in their own bedroom, and there was almost a gunshot incident, he was there because he was asked to drive the vehicle. Beverly Tans source of money was from Reynaldo Tan, that he (Banaag) was asked frequently by Beverly who in turn would give it to Malibiran (Exh. y, pp. 122-125 Vol. 1-A, Sworn Statement November 29, 1996). On March 29, 1996 he was no longer driving for Beverly because he was arrested by the Presidential Anti-Crime Commission for his alleged involvement in the kidnapping of the father of the classmate of Renevie Tan. He was later on acquitted (p. 16, Feb. 20, 2001 TSN) and released from incarceration on May 7, 1997. When asked whether Jessie Tan helped him to be acquitted in the kidnapping case, he said no (p. 16 ibid). On Cross examination, he was asked how many times did Jessie Tan visit him in prison, he said that it was Atty. Olanzo who visited him for about six times and that he saw Jessie when he was already out of jail (pp. 24-25 ibid). He testified that there was one incident when Reynaldo and Mabiliran almost had a shootout in the bedroom downstairs because Malibiran was inside the bedroom where Beverly was, Reynaldo have a gun at that time bulging in his waste [sic] (p. 40 ibid). Further on Cross, he testified that sometime in June 1994, he with Beverly went to Hilltop Police Station and fetched Malibiran and company to go to Paombong Bulacan, they passed by Malabon before going to Bulacan. When they reached the bridge near the sea, they rode a banca, about six of them plus the one rowing the boar towards an Island. In the Island, there was one person waiting (p. 44-45 ibid). he stayed there for just for about ten (10) minutes, and during that period, at about one arms length he overheard their conversation concerning a man to bring the bomb in the car. When asked who was in the banca then, he said it was Beverly, Botong (Malibiran), Janet and the man they picked up at Hilltop. He was told to return the L300 and just wait for them in Binangonan, hence he rode a banca to return to the bridge and then drove the L300 Van towards
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Binangonan (p. 50 ibid). When asked if he knows that Malibiran is engaged in the fishing business of bangus, he had no idea (p. 45 ibid).

DEFENSE EVIDENCE For the defense, in opposition to the testimony of Elmer Paug, it called to the witness stand Renevie Tan. She testified that she believe that her mother (Beverly) did not kill her dad because she was with them at the time of the incident (p. 6 Feb. 5, 2002 TSN). That it is not true that they did nothing when his dad was lying on the ground at the time of the incident. That her mom screamed at that time and did tried to pull her dad who was under the car that she kept going around to find a safer place to pull him out because the car was burning and so they could not pick her dad without burning. Her mother tried crawling underneath the car so she can reach him but he pulled her mom aside and pulled dad risking himself from burning (p. 11 ibid) She found out that the person who helped them was the taxi driver, Elmer Paug. That a driver of a Ford Fiera or Toyota Tamaraw of some kind of delivery van boarded her dad with her mom and headed for Cardinal Santos Hospital. She said that if is not true that her mom appeared unaffected or acting normal as if nothing happened. That it is likewise not true when Elmer Paug said that he alone carried her dads body, and said that there was another man who helped put her dad on the car (p. 14 ibid). She swore that her mom was shocked and was crying at that time (pp. 112-115, Exh. U Sworn Statement of Renevie Tan). She admitted that it was only the taxi driver who pulled out his dad from the danger area to a safer place at about four (4) meters, while Elmer Paug was dragging her dad, they where there following him (p. 43 February 5, 2002, TSN). That she touched her father when they where (p. 45 ibid). It was confirmed in her testimony that it was the taxi drivers who looked for a taxi cab ( p. 46 ibid). She asked if she observed whether her mom carried a portion of her dads body or arms, hands, legs or buttocks of her father, she said she could not remember (p. 7-8, February 12, 2002 TSN). When asked whether her mom has a shoulder bag at that time, she could not remember. She testified that her parents keep quarreling to each other may be in 1988-89 and stopped in 1991. it was a once a month quarrel (pp. 23-24
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ibid). A certain Janet Pascual frequently stayed in their house in the months of October 1994 until February of 1995, and her moms relationship with Janet was cordial (pp. 27-28, ibid). As regards to Malibiran, she knows him at the month of August or September of 1994 but no knowledge of a marriage that took place between her mom and Malibiran on November of the same year (p. 30 ibid). Romulo Bruzo, the security guard of Tan Family at White Plains testified that there was an offer of half a million to him by an unknown person and a demand for him to leave the employ of Beverly Tan and a threat to his life should he testify before the Court. He testified that Banaag was a family driver of the Tan in White Plains from March 1993 until August 1994, after said date, he was taken by Reynaldo Tan as driver at Winreach. He testifies that the statement of Oswaldo Banaag that he came over to White Plains on February 5, 1995, drove the L300 Van and followed the family to Greenhills Shopping Complex is false. Because at that time, the L300 was still parked inside White Plains, it was just a concocted statement of Banaag because he has a grudge on Mrs. Tan as she did not help him when he was incarcerated in Camp Crame (p.47-48 ibid). He was told by Banaag that they were supposed to kidnap the three siblings of Beverly Tan but he took pity on them because Beverly is a nice person to him. He stated that Jessie Tan helped him to be acquitted (p. 49 ibid) and promised good job and house to live in. As regards Janet Pascual, he testified that he had an altercation with her (Janet) because there was an instruction for him by Renevie for Janet not to let inside the house. That Janet got mad at them because she is not been [sic] treated the way Renevies mom did not to her. Likewise, Renevie has refused to give her P5,000.00 allowance as her mom did before to Janet for the latters medicine (pp. 50-51). On account of said incident, she made a threatening remark that if she will not be treated fairly and the P5,000.00 allowance be not given to her, she will go to the Tan Brother and she will testify Mrs. Tan. When asked whom she was angry of Bruzo said it was against Renevie and Atty. Morales. She was angry with the latter because she thought that Atty. Morales was telling Renevie not to give her allowance anymore and refuse access inside the white plains (p. 51 ibid).
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When asked if he knows Malibiran, he said that he was able to join him twice when there was a delivery of rejected bread for fish feeds in Bulacan. That he saw him eight (8) times in a month in 1994 and just twice a week in the month of August, September and October of said year. (p. 52 ibid). He also saw him on July of 1994 on the occasion of Beverlys Birthday. That on February 5, 1994, Beverly called on him to relay to Roger to fetch the three kids in Green Hills. When asked the tone of Beverly at the time of the phone call, he said the tone was that she was scared and confused (p. 63 ibid) Tessie Luba, the caretaker of Manila Memorial Park testified that she was paid by Beverly to take care of the tomb of Reynaldo and that in some points in time Jessie took over and later her services were not availed of anymore (p. 23, April 30, 2002 TSN) That she saw Beverly with Banaag on November 1996 (p. 8 ibid) and Jessie with Banaag in one occasion in going to the tomb on November 1997 (p. 47 ibid) and in April 2001 (p. 20 ibid). Emily Cuevas, one of the friends of Beverly testified that Janet Pascual is a back fighter and a traitor, that Janet tried to convince her to testify against Beverly and if witness will be convinced, Janet will receive a big amount of money about three (3) million from another source. Testified that it is not true that Beverly and Malibiran orchestrated or masterminded the death of Reynaldo, and that Janet testified because she needed money because she is sick and diabetic (p. 7, May 21, 2002 TSN). She knows such fact by heart that they are innocent and that they are good people (p. 20 ibid). Victorino Felix, a police officer testified that Malibiran is a member of the Aquarius Multi-Purpose Cooperative, a cooperative that is engaged in the culture of fish particularly Bangus at Laguna De Bay particularly Bagumbong, Binangonan, Laguna. He testified that sometime in 1994, he together with Malibiran waited at Tropical Hut, Cainta for them to be picked up for Bulacan to purchase fingerlings. They were fetched by an L300 Van driven by Oswaldo Banaag and they were around six or seven at that time that headed first to Dampalit, Malabon, Metro Manila to meet the owner of the fish pond, finding that the owner thereof was already in Bulacan they proceeded thereat, at Taliptip, Bulacan. In said place, they left the L300 Van along the bridge, near the sea
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and from there they rode a motor banca in going to the fingerlings ponds. He testified that Oswaldo was not with them in going to the pond from Taliptip (pp. 11-13, Sept. 3, 2002 TSN). When asked where he was, he said he drove the L300 back (p. 14 ibid). The pond was about three kilometers from Talilip, and they were able to buy fingerlings, loaded it in another water transport going to Laguna Lake from Bulacan traversing Pasig River and thereafter they returned back to Binangonan (p. 15 ibid). On Cross, he testified that has met Banaag many times because he used to deliver rejected for bangus feeds, but said that it was only once when Banaag drove with him, that is sometimes in 1994 (p. 20 ibid). he testified that Malibiran together with him went to Talilip, Bulacan to procure some fingerlings sometime in June 1995 to mid 1996 (Joint Order, Sept. 3, 2002, p. 366 Vol. III record). Virgilio Dacanilao testified that on February 5, 1995 at about 12:00 noon he was at the residence of one Gloria Malibiran Santos and from there, he saw accused Rolando Malibiran together with his wife and children, witness parents-in-law and sisters-in-law. When asked who his parents-in-law is, he said Fernando Malibiran and Jovita Malibiran, the parents of Rolando Malibiran (p. 5, Sept. 17, 2002 TSN). He said that they left the occasion at around 5:00pm and at that time, accused Malibiran, with Boy Santos and Eduardo was still playing pusoy. When asked if there was such a time that Malibiran left the house of Gloria Santos, he said, he did not go out of the house sir (pp. 5-7 ibid). On Cross examination, it was disclosed that he knows Malibiran at the time witness was still his wife, the sister of Malibiran, that was sometime in 1988. when asked if he considered Malibiran to be close to him as the brother of his wife, he said yes sir (p. 10 ibid). Asked if his relationship with him is such that he would place Malibiran in a difficult situation, he answered, it depends on the situation (p. 11 ibid). Witness was asked how long it would take to reach Unimart Supermarket from his residence in Malanday, he estimate it to be more or less half an hour (p. 13 ibid). He testified that no game was ever stop [sic] on the reason that they have to wait for Malibiran. Said witness testimony was corroborated by Jose Ong Santos, the father of the child who was baptized on said occasion. He testified that he played pusoy with Malibiran at around 2:00pm, until6:30 to 7:00 pm and
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there was never a time that Malibiran left the table where they were playing except when he feels like peeing (p. 10 July 16, 2002 TSN). It was estimated at abut five times, and it took him about three to five minutes everytime he would rise to pee and return to the table. That Malibiran may have left their house at around 6:30 or 7:00 in the evening on February 5, 1995 (p. 11, ibid) On Cross examination, he testified that the idea of baptism was rushly scheduled, because he won in a cockfight three to four days before the baptism of his child at about February 1 or 2 of 1995. That amount was about P50,000.00 (pp. 20-21 ibid). Malibiran did not take any participation in the baptism nor was he present at the church, but was already at the reception with his family, for lunch. He testified that Malibiran left by call of nature, to pee, about four to five times and a span of five minutes (p. 31 ibid). Accused Rolando Malibiran in his Counter-Affidavit said that he does intelligence work for seven years. He doesnt know Banaag as to reckless discuss a supposed plot to kill somebody within his hearing. That would be inconsistent with the entire training and experience as a police officer. Especially when the expertise is intelligence work. Banaag drove for them in June or July 1995 not in June of 1994 (for months after the death of Reynaldo) [pp. 147-152, Exh. HH Vol. 1-a record]. He testified that he met Banaag sometime in the last quarter of 1993 at the piggery of Beverly Tan (pp. 12-13, Oct. 8, 2002 TSN). He admitted that he was with Banaag using the L300 Van of Beverly in one occasion, in 1994 when they purchased fingerlings from Bulacan. They procured the same because their cooperative was culturing bangus in Barangay Bombon, Binangonan, Rizal (pp. 14-15). He testified that in Bulacan, Banaag was left at the foot of the bridge where the L300 was parked (p. 19 ibid) and heard that Beverly told Banaag to go back, in White Plains (p. 21, ibid). After procuring the fingerlings, they rode a big banca called pituya then they went back to Pritil, Binangonan. In Pritil, they waited for Banaag (P. 26 ibid). He denied having met Janet Pascual on Wednesday at about February 8, 1995 because since Tuesday (February 7, 1995) he was already confined in the Camp by Order of his Unit Commander, Chief Inspector Florentin Sipin (p. 5, January 21, 2003 TSN) because he was under investigation by the Presidential Anti-Crime Commission. He admitted that
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he met Beverly in the last quarter of 1993 (p. 8, October 22, 2002) but denied having intimate relations with her (p. 21 ibid). He testified that he met Janet Pascual only once, on November 1994, but said that they never talked (p. 12, November 12, 2002 TSN). He denied having married Beverly Tan nor did he ever requested Janet Pascual to secure a license for them to get married. He denied having had a trip with Janet in Bulacan and admitted that he went to Zamables once, with Beverly, kids and yaya as well as his father (p. 25, ibid), that was sometime in 1994, before Reynaldo died. He testified that he used his own vehicle with his father in going to Zamables. He denied seeing Reynaldo; he said he just heard him based on his conversation with Beverly Tan which took place in the piggery in Marikina. In sum, the place of incidents where he managed to meet and talk with Beverly Tan was in the piggery in Marikina; at Camp station in Taytay Rizal; in Bulacan when they procured fingerlings in Binangonan; Malabon; Zambales; White Plains and Cainta. (pp. 30; 32; 35 ibid). He testified that he was arrested in Candelaria Quezon on December 1998 (p. 11 January 21, 2003) but denied living with Beverly Tan at the time of the arrest. He said he just saw Beverly thirty (30) minutes after his arrest in the town proper of Candelaria, Quezon (P. 21, ibid). He denied that he uttered the remark its better to kill Rene since you are not benefiting from him (p. 38 ibid); never have access to grenades; never asked Beverly Tan how he could get inside Reynaldos Car never claimed to be a sharp shooter and had never went to Batangas uttering the remarks mentioned by Janet Pascual nor went to Batangas at the time of Beverlys birthday. On Cross examination, he said that he never talk to Janet at the time of his restriction and thereafter. He had no commercial dealing with Janet nor have any romantic relations with her (p. 8, ibid). It was only when the case was filed he was able to talk to her (p. 5, February 4, 2003 TSN). He testified that he evaded arrest because there was a pending petition for review filed by his lawyer before the Department of Justice despite the fact that there is an existing warrant of arrest which he found out at the end of 1997 (p. 15 ibid).

On September 23, 2003, the RTC found Rolando guilty of Murder and appellant, of Parricide. The dispositive portion of the Joint Decision reads as follows:
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WHEREFORE, the Court finds both accused guilty beyond reasonable doubt as charged. Accused Rolando Malibiran for the crime of Murder in Criminal Case No. 113065-H and accused Beverly Tibo-Tan for Parricide in Criminal Case No. 113066-H defined and penalized under Article 248 and Article 246, respectively, of the Revised Penal Code, as amended, in relation to Republic Act No. 7659 with the attendant circumstances of treachery, evident premeditation and use of explosion and sentencing both accused the supreme penalty of DEATH, and ordering them to pay jointly and severally to the heirs of Reynaldo Tan the amount of Fifty Thousand (P50,000.00) Pesos as indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages; Fifty Thousand (P50,000.00) as moral damages; and to pay the costs. SO ORDERED.[8]

Appellant then appealed to this Court; the appeal was, however, referred to the CA pursuant to People v. Mateo.[9] In its Decision dated November 13, 2006, the CA affirmed the Decision of the RTC. The CA, however, took judicial notice of Republic Act No. 9346 prohibiting the imposition of the death penalty and thus reduced the penalty to reclusion perpetua. The dispositive portion of the said Decision reads as follows:
WHEREFORE, premises considered, the joint decision dated September 23, 2003 of the Regional Trial Court, Special Court for Heinous Crimes, Branch 156, Pasig City in Criminal Case No. 113065-H for Murder and Criminal Case No. 113066-H for Parricide is hereby AFFIRMED with Modification in that the supreme penalty of death imposed on both accusedappellants is hereby reduced to RECLUSION PERPETUA. SO ORDERED.[10]

As manifested by the Office of the Solicitor General (OSG), Rolando did not file a Motion for Reconsideration or a Notice of Appeal from the CA
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Decision.[11] For all intents and purposes, the judgment of conviction as to Rolando became final and executory on December 14, 2006. This was confirmed by CA Resolution dated January 29, 2007, which noted that pursuant to the report dated January 23, 2007 of the Judicial Records Division that no motion for reconsideration or notice of appeal had been filed by counsel for appellant Rolando Malibiran, entry of judgment is issued against said appellant x x x.[12] This review shall therefore pertain only to appellant Beverly Tibo-Tan's conviction. Appellant and the OSG were required by the Court in its Resolution dated October 3, 2007 to file supplemental briefs, if they so desired. The OSG filed a Manifestation and Motion that it would no longer file any supplemental brief. As regards appellant, records show that, as of even date, she had not filed any supplemental brief, despite due notice.[13] In the Brief she filed with the Court prior to the endorsement of the case to the CA, appellant raised the following assignment of errors:
I. THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT BEVERLY TIBO TAN GUILTY OF THE CRIME OF PARRICIDE BASED MERELY ON CIRCUMSTANCIAL EVIDENCE, THE REQUISITES THEREOF NOT HAVING BEEN SUBSTANTIALLY ESTABLISHED; II. THE REGIONAL TRIAL COURT SHOULD HAVE NOT APPRECIATED THE TESTIMONY OF PROSECUTION WITNESS OSWALDO BANAAG AS ITS BASIS FOR ESTABLISHING CONSPIRACY BETWEEN ACCUSED-APPELLANT MALIBIRAN AND ACCUSED-APPELLANT BEVERLY TAN, SUCH TESTIMONY
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BEING HEARSAY ON SOME PARTS AND REPLETE WITH INCONSISTENCIES; [14]

Before proceeding to the merits of appellant's arguments, the Court takes note of the RTC's observation regarding appellant's stoic stance during and after the incident and her non-presentation as witness. The RTC took this negatively against appellant. The Court differs therefrom. Appellant's seeming indifference or lack of emotions cannot be categorically quantified as an indicium of her guilt. There is no hard and fast gauge for measuring a person's reaction or behavior when confronted with a startling, not to mention horrifying, occurrence. It has already been stated that witnesses of startling occurrences react differently depending upon their situation and state of mind, and there is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience. The workings of the human mind placed under emotional stress are unpredictable, and people react differently some may shout, some may faint and others may be shocked into insensibility.[15] Also, appellant's failure to testify in her defense should not be taken against her. The Court preserves the rule that an accused has the right to decline to testify at the trial without any inference of guilt drawn from his failure to be on the witness stand.[16] The constitutional right to be presumed innocent still prevails. This notwithstanding, the totality of the circumstantial evidence presented against appellant justifies her conviction of the crime of Parricide. Appellant claims that the circumstantial evidence proven during trial only shows that there was a possibility that appellant may have conspired with
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Rolando, but nevertheless claims that it came short of proving her guilt beyond reasonable doubt.[17] Appellant further argues that the testimony of Oswaldo was in some parts hearsay and replete with inconsistencies.[18] Specifically, appellant contends that the testimony of Oswaldo that he overheard a conversation between Malibiran (Rolando) and Beverly (appellant) that they will fetch a man in Bulacan that knows how to place a bomb in a vehicle is hearsay.[19] Likewise, in her Reply Brief,[20] appellant claims that the testimony of Janet is hearsay. Contrary to the claim of appellant, the testimonies of Oswaldo and Janet are not covered by the hearsay rule. The hearsay rule states that a witness may not testify as to what he merely learned from others either because he was told, or he read or heard the same. This is derived from Section 36, Rule 130, Revised Rules of Court, which requires that a witness can testify only to those facts that he knows of or comes from his personal knowledge, that is, that are derived from his perception. Hearsay testimony may not be received as proof of the truth of what he has learned.[21] The law, however, provides for specific exceptions to the hearsay rule. One is the doctrine of independently relevant statements, where only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply; hence, the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.[22] The witness who testifies thereto is competent because he heard the same, as this is a matter
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of fact derived from his own perception, and the purpose is to prove either that the statement was made or the tenor thereof.[23] In this case, Oswaldo's testimony that he overhead a conversation between Rolando and appellant that they would fetch a man in Bulacan who knew how to place a bomb in a vehicle is admissible, if only to establish the fact that such statement was made and the tenor thereof. Likewise, Janet may testify on matters not only uttered in her presence, since these may be considered as independently relevant statements, but also personally conveyed to her by appellant and Rolando. Appellant further argues that Oswaldo's testimony to the effect that he drove the L300 van of the Tan family and brought Rolando to the parking lot where Reynaldos Honda Accord was parked, was refuted by defense witness Romulo, the security guard of the Tan family. Romulo testified that the L300 van never left White Plains on the day of the incident.[24] While the defense may have presented Security Guard Romulo to refute the testimony of Oswaldo, it is settled that when credibility is in issue, the Supreme Court generally defers to the findings of the trial court, considering that it was in a better position to decide the question, having heard the witnesses themselves and observed their deportment during trial.[25] Thus, in the absence of any palpable error, this Court defers to the trials court's impression and conclusion that, as between Oswaldo and Romulo, the former's testimony deserved more weight and credence. There is nothing on record to convince the Court to depart from the findings of the RTC. On the contrary, the testimony of Janet as corroborated by Oswaldo, though circumstantial, leaves no doubt that appellant had in fact conspired with Rolando in bringing about the death of her husband
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Reynaldo. As a rule of ancient respectability now molded into tradition, circumstantial evidence suffices to convict, only if the following requisites concur: (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 reasonable doubt.[26] The case of the prosecution was primarily built around the strength of the testimonies of Janet and Oswaldo. The salient portions of Janet's testimony are extensively quoted hereunder:
Q. Anything else significant that happened in the remaining of 1994, Ms. Pascual? A. After they were married, they talked about what they're gonna do for Rene. Q. A. Where did they discuss it? Inside the car, Botong was asking Beverly how would he be able to get inside the car since he has no key and Beverly said that she can do something about it and so it was in the last week of November 1994 of first week of December 1994 when they shopped for so many things. Who is (sic) with him? Rene, Beverly and her three kids. Rene asked her since Rene and kids would still shop, Rene asked her to brings the goods to the car in the compartment. And then? And after Beverly placed the things inside the compartment, she had with her the key, she proceeded to a key duplicator in Virra Mall and had the key duplicated. When did she give the key to Malibiran, if you know? That was already December, I cannot recall the exact date, sir. Why did Mr. Malibiran need the key?

Q. A.

Q. A.

Q. A. Q.

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A.

Because they planned, since they cannot use the gun Butch said that they would use grenade instead because he had a grenade in his house. But their only problem is how to get inside the car.

COURT: Who is Butch? A. Mr. Malibiran, your Honor.

COURT Butch and Botong are one and the same person? A. Q. Yes, your Honor.

Did they discuss how, where and when they would planted the grenade in the car of Rene? A. I heard from them that they would do it during the baptismal of the child of Gloria who is the sister of Butch. Q. A. Q. A. Q. And Butch is Botong? Botong, sir. Do you know when that binyag when supposed to be held? The baptismal be held on February 5, 1995, sir. Why did they choose that date of the binyag? A. So that if a picture was taken during the baptism, there would be witnesses that they were in the baptism, they would not be suspected that they have something to do with that.[27]

xxxx Q. A. Q. A. Court:
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What day of the week was this? Sunday, Ma'm. What kind of kind [sic] was duplicated? The key in the new car of Rene the Honda Accord.

But in the first place, you were not there when it was duplicated? How you were [sic] able to know that it was indeed duplicated? A. Because after Beverly had duplicated the key, she told me that she was able to have the key duplicated and she told me how she did it and she told me that she will give the key to Butch. Did she show you the duplicated key? Ginanoon niya lang. What does it looked [sic] like? Iyong mahaba na malaki. Hindi ko na inano basta susi, nag-iisa. On what occasion did she tell you about this? None, I was just in White Plains. When was this? That was December, 1994. What was their decision when they will execute the plan? It will be during the baptismal of the child of Gloria because Butch is one of the sponsors.[28] (Emphasis Supplied)

Q. A. Q. A. Q. A. Q. A. Q. A.

In addition, Oswaldo testified on the occurrences on the day of the incident, in this wise:
Q: A. Q. A. Q. A. Q. A. Q. A.
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Why did you go to Greenhills? I was told by Ate Beverly to follow them wherever they go. What time did she tell you to go there? After lunch, sir. What vehicle did you use to follow her? L300, sir. Upon whose instruction? Ate Beverly, sir. Did you in fact follow her? Yes, sir.

Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.

What time did they reach. the[W]hiteplains? Almost 1 o'clock, sir. Incidentally, who was with Beverly? Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR. What car did they use? Honda Accord. Color? Red, sir. Who drived [sic]? Kuya Rene, sir. What part of Greenhills did they go? The parking lot infront [sic] of Unimart, sir. What did you do when they come [sic] to Greenhills? When I found out they already parked and Kuya Rene got in I went straight to Katipunan. Why? Because I was told by Ate to fetch Botong. Where in Katipunan? In Caltex near Shakeys.

Q. A. Q. A.

COURT Who is Botong? A. Q. A. xxxx Q.

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Rolando Malibiran, Your Honor. The accused in this case? Yes, your Honor. [29]

You picked up Malibiran at Caltex on February 5, 1995?

A. Q. A. Q. A.

Yes, sir. What time was that? Around 2 o'clock, sir. Who if any was with him? Two guys. One whom I saw in [sic] Bulacan and the one whom we sinakay at Hilltop. When did you go in [sic] Bulacan? In June 1994, sir. With whom? Botong, Beverly, Janet, I and two guys in Hilltop because that is the instruction of Beverly. Do you know the name of the two guys from Hilltop? If given the chance I can recognize them but I do not know them by name. What did you do in Bulacan? We went to the Island near the sea. What did you do at that Island? They talked to a person. What if you know the date [sic] all about? As far as I remember they talked about the plans about the killing of Kuya Rene.[30]

Q. A. Q. A.

Q. A.

Q. A. Q. A. Q. A.

xxxx Q. A. Q. A. Q. A.
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Where did they ride on Feb. 5, 1995? In Katipunan, sir. What did they ride? L300 that I was driving, sir. Where if any did you go after picking them up? From Caltex we proceeded to Greenhills.

Q. A.

Why? Because that is the instruction of Ate Beverly. Where they were, I will drop them there. Did you do that? Yes, sir. Where exactly did you drop them on? In the place where Kuya Rene was parked.[31]

Q. A. Q. A. xxxx

COURT: x x x What happened while they were inside the vehicle while you were going back to the place as instructed by Beverly? A. After that I brought them where the car of Kuya Rene was parked, Your Honor. Before they alighted, Botong asked, dito na ba?[32]

Atty. Rondain: So you replied Opo, dyan po pumasok si Kuya Rene? A. Q. A. Q. A. After I alighted they just go [sic] around. Where? In Greenhills, sir. Then, what happened? After half an hour I saw Kuya Botong, the three of them. Then they stopped me and the three of them boarded the vehicle. What happened? After they boarded, the man from Bulacan said, ano pare, malinis na paggawa nito. Then, I was told by Botong to bring them to Hilltop.[33]

Q. A.

Based on the foregoing, the testimonies of Janet and Oswaldo clearly link appellant to the planning of the crime. True, as intimated by appellant, she may not have been at the scene of the crime at the time of the explosion;[34] but
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then again, if she was, then she would have suffered the same fate as Reynaldo. Moreover, the nature of the crime and the manner of its execution, i.e., via a booby trap, does not demand the physical presence of the perpetrator at the very time of its commission. In fact, the very manner in which it was carried out necessitated prior scheming and execution for it to succeed. Thus, appellant's absence from the actual scene of the crime does not negate conspiracy with Rolando in plotting the death of her husband. A conspiracy exists even if not all the parties committed the same act, but the participants performed specific acts that indicated unity of purpose in accomplishing a criminal design.[35] Moreover, direct proof of previous agreement to commit an offense is not necessary to prove conspiracy -conspiracy may be proven by circumstantial evidence.[36] The testimonies of Janet and Oswaldo established the following set of circumstances which, if taken collectively, show the guilt of appellant: that appellant and Rolando conspired, planned and agreed to kill Reynaldo using a grenade; that appellant duplicated the key to the red Honda Accord of Reynaldo so that Rolando could gain access to the car; that appellant thereafter gave the duplicate key to Rolando; that on February 5, 1995, appellant told Oswaldo to follow the red Honda Accord of Reynaldo until the latter parked the car; that appellant told Oswaldo to thereafter pick up Rolando at Katipunan and bring the latter to where Reynaldo parked his red Honda Accord. Reynaldo died soon after due to injuries he sustained from an explosion caused by grenades planted in his car. Another notable fact is that according to the expert opinion of Inspector Selverio Dollesin, Chief of the Bomb Disposal Unit of the Eastern Police District, the perpetrator had information about the victim's movements. Dollesin also observed that the perpetrator knew his intended victim, since the grenade was specifically placed in between the driver's seat
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and the front door. That the perpetrator knew the victim's movements was further corroborated by the affidavits executed by the Tan children, Renevie[37] and Jag Carlo[38], attesting that while they spent their Sundays with their father, this was the only time that they spent a Sunday in Greenhills. Only someone who had close personal contact with Reynaldo would know his movements, where the car would be parked, and that he was the one who usually drove the red Honda Accord, such that it was precisely positioned to ensure damage to the intended victim. There is no doubt that, based on the testimony of Janet, it was Rolando who planted the grenades inside the car of Reynaldo, to wit:
Q. A. Where did you go? When I was inside the Canter, Botong (Rolando) was asking me while the vehicle was moving slowly. He asked me what happened in the funeral parlor. Q. And what did you say? A. I told him that Major Penalosa called me for an interview but I did not say anything. Then were already in front of the V. Luna Hospital. COURT What Hospital? A. V. Luna, your Honor, along Katipunan.

COURT Luna in Katipunan? A. V. Luna is going to Katipunan, your Honor. It was Labor Hospital, your Honor and not V. Luna. Then Botong told me that on the day he placed the grenade, he was seeing a guard roving and so what he did since he was already perspiring at that time he hurriedly tied the wire in the grenade.

Atty. Rondain:
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Iqoute na lang natin. COURT Dinali-dali niyang ibinuhol ang alambre. That's her term.[39] (Emphasis Supplied)

What sealed appellant's fate was that, as observed by the RTC, there were already outstanding warrants of arrest against appellant and Rolando as early as September 11, 1997; yet they evaded arrest and were only arrested on December 4, 1998.[40] It is well settled that flight, when unexplained, is a circumstance from which an inference of guilt may be drawn. The wicked flee, even when no man pursueth; but the righteous are as bold as a lion.[41] Appellant did not even proffer the slightest explanation for her flight. All told, this Court is convinced beyond a reasonable doubt that appellant is guilty of the crime as charged. Moreover, considering the manner in which appellant and Rolando planned and executed the crime, the RTC was correct in appreciating the aggravating circumstances of treachery, evident premeditation, and use of explosives. Thus, appellant is guilty of the crime of Parricide as provided in the Revised Penal Code, to wit:
Article 246. Parricide- Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by reclusion perpetua to death. (Emphasis Supplied)

Moreover, the Revised Penal Code provides for death as the proper penalty:
Article 63. Rules for the application of indivisible penalties. xxxx

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In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.

However, as observed by the CA, with the effectivity of Republic Act (R.A.) No. 9346 entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines onJune 24, 2006, the imposition of the penalty of death has been prohibited. Thus, the proper penalty to be imposed on appellant as provided in Section 2, paragraph (a) of said law is reclusion perpetua.[42] The applicability of R.A. No. 9346 is undeniable in view of the principle in criminal law that favorabilia sunt amplianda adiosa restrigenda. Penal laws that are favorable to the accused are given retroactive effect.[43] In addition, appellant is not eligible for parole pursuant to Section 3 of R.A. No. 9346, which states:
SECTION 3. Persons convicted with reclusion perpetua, or those whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Lastly, as to the award of damages, the RTC awarded the following amounts: (1) P50,000.00 as civil indemnity for death, (2) P80,000.00 as actual damages, and (3)P50,000.00 as moral damages. In the recent case of People v. Regalario,[44] the Court stated:
While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still P75,000.00. x x x the said award is not dependent on the actual
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imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As to the award of moral and exemplary damages x x x. Moral damages are awarded despite the absence of proof of mental and emotional suffering of the victim's heirs. As borne out by human experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victim's family. If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct. However, consistent with recent jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00 while the award of exemplary damages should be increased from P25,000.00 to P30,000.00.

Consistent therewith, the RTC's award should be modified: the civil indemnity should be increased to P75,000.00, and moral damages to P75,000.00. Moreover, although not awarded by the RTC and pursuant to Regalario, exemplary damages in the amount of P30,000.00 is likewise warranted because of the presence of the aggravating circumstances of intent to kill, treachery, evident premeditation and the use of explosives. The imposition of exemplary damages is also justified under Art. 2229 of the Civil Code in order to set an example for the public good.[45] However, the award of P80,000.00 by the RTC as actual damages is deleted for lack of competent evidence to support it. Only substantiated and proven expenses, or those that appear to have been genuinely incurred in connection with the death, wake or burial of the victim will be recognized by
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the court.[46] In lieu thereof, appellant should pay temperate damages in the amount of P25,000.00, said amount being awarded in homicide or murder cases when no evidence of burial and funeral expenses is presented in the trial court,[47] and in accordance with prevailing jurisprudence.[48] Under Article 2224 of the Civil Code, temperate damages may be awarded when the Court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. Finally, Section 11, Rule 122 of the Rules of Court provides that:
An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter.

Since Rolando did not appeal the decision of the CA, only portions of this judgment that are favorable to Rolando may affect him. On the other hand, portions of this judgment that are unfavorable to Rolando cannot apply to him. Thus, he cannot be made liable to pay for exemplary damages, as the same were not awarded by the RTC.[49]However, he benefits from this Court's finding that, instead of actual damages, only temperate damages should be awarded to the heirs of the victim. WHEREFORE, the Court of Appeals Decision dated November 13, 2006 and Resolution dated September 23, 2003, finding appellant Beverly Tibo-Tan guilty beyond reasonable doubt of Parricide and sentencing her to suffer the penalty of RECLUSION PERPETUA are hereby AFFIRMED. Appellant is ineligible for parole and is further ordered to pay, jointly and severally with Rolando Malibiran, the heirs of Reynaldo Tan the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages andP25,000.00 as temperate damages. In addition, appellant is solely

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liable to pay the heirs of Reynaldo Tan the amount of P30,000.00 as exemplary damages. Costs de oficio. SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MINITA V. CHICONAZARIO Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

DIOSDADO M. PERALTA Associate Justice

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ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

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4.

People vs. Bohol, G.r. no. 178198, December 10, 2008

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 178198 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: December 10, 2008

- versus -

EVELYN BOHOL y TALAOGAN a.k.a. EVELYN BOHOL, a.k.a. EVELYN BOHOL DAVIS, a.k.a. DIANITA BOHOL DAVIS, Appellant.

x------------------------------------------------------------------------------------x DECISION NACHURA, J.:

This is an appeal interposed by appellant Evelyn Bohol seeking the reversal of the Court of Appeals (CA) Decision[1] dated December 28, 2006 which in turn affirmed with modification the Regional Trial Court[2] (RTC) Decision[3] dated November 25, 2004.

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The facts of the case follow: The victim, Steven Alston Davis (Steven), a 31-year old British national, was the Chief Technology Officer of JC Software, a local subsidiary of Hong Kong based corporation JADECOOL Entertainment. Together with his business associate and long-time friend Michael Thomas Dunn (Michael), a Canadian citizen, Steven resided at a two-storey apartment unit at No. 5958 Firmina Street, Barangay Poblacion, Makati City.[4] Steven married appellant Evelyn Bohol in Hong Kong sometime in March 1997, when the latter was only 17 years old. Together with their two minor children, Steven and the appellant shared a house at No. 1823 Fifth Street, Villasol Subdivision in Angeles City, Pampanga. Steven spent his weekdays in the Makati apartment, and stayed with his family in Angeles City during weekends.[5] On July 17, 2002, Steven and Michael worked until around ten oclock in the evening at the principal office of JC Software in Makati. At about 10:45 p.m., they headed to their rented apartment. Steven proceeded to his room, did some computer work, then went to sleep. At about 11:30 p.m., Michael went to the airport to fetch his girlfriend Jennifer Castillo (Jennifer), who was then arriving from Hong Kong. Michael and Jennifer returned to the apartment at one oclock in the morning of July 18, 2002. They went to bed a short moment thereafter.[6] At around two oclock in the morning, Jennifer told Michael that a person seemed to be moving and flashing a light outside their room. Suspecting that the person outside the room was Steven, and that the latter was just trying to play a practical joke on them, Michael inquired What are you doing tonight? Instead of Steven answering back, three men with drawn handguns suddenly entered their room. These three individuals were later positively identified during the trial to be Arnold Adoray (Arnold), Alexander Dagami (Alexander), and accused-turnedstate-witness Robin Butas (Robin). Arnold, whose gun was aimed at Michael, asked, Ito ba? Ito ba? Alexander thereafter grabbed Jennifer by the hand and locked her inside Michaels bathroom. After taking Michaels keys, wallet, and cellular phone, the three men proceeded to Stevens room.[7] Upon seeing the then sleeping Steven, Arnold fired four consecutive shots upon the former, hitting the
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latter at the back. The three men then hurriedly left the house.[8] After he was sure thatArnold, Alexander and Robin were no longer inside the apartment, Michael immediately went to Stevens room. There, Michael saw the lifeless body of Steven. After checking Stevens pulse, Michael administered cardiopulmonary resuscitation (CPR) on the formers chest but he no longer made any response.[9] Thereafter, Philippine National Police (PNP) personnel arrived at the scene of the crime; then an ambulance took Stevens body to the Makati Medical Center where he was pronounced dead on arrival.[10] Michael made numerous attempts to reach the appellant by phone immediately after the incident, but his efforts were all in vain. Finally, he was able to contact her through her mobile phone at around six oclock in the morning; the former immediately informed the latter of the killing of her husband. When Michael met Evelyn at ten oclock in the morning, he readily observed that appellant showed no signs of sadness or mourning despite the violent death of her husband.[11] After the autopsy of the cadaver in the afternoon of July 18, 2002, the National Bureau of Investigation (NBI) Medico-Legal officer found that Steven sustained four gunshot wounds at the upper left portion of his back, including four bullet holes at the back of his upper left arm, just below the shoulder.[12] Arnold and Alexander were thus charged with murder on August 16, 2002. Trial thereafter ensued. The information was later amended[14] charging the appellant, together with Robin, with the crime of murder, in conspiracy with Arnold and Alexander. The accusatory portion of the information reads:
[13]

That on or about the 18th day of July, 2002, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with an automatic pistol and revolver, conspiring and confederating together, and all of them mutually helping and aiding one another, with intent to kill, and by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot one STEVEN ALSTON DAVIS, on the different parts of his body, thereby inflicting upon the latter serious and mortal gunshot wound which directly caused his death. CONTRARY TO LAW.[15]

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Considering that at the time the appellant was arrested, the trial of the case, in which Arnold and Alexander were eventually convicted,[16] was almost complete, a separate trial for the appellant was held. Upon arraignment, the appellant pleaded Not guilty.[17] To ensure impartiality, the presiding judge inhibited himself, and the case of the appellant was re-raffled to Branch 141. It appears that Robin was discharged as a state witness.[18] Robin contended that the appellant was responsible for inducing/persuading him, Arnold, and Alexander to perpetrate the killing of Steven. He further stated that the appellant and Arnold (as in fact admitted to him by the appellant) were having a love affair, as he would oftentimes see them caress and kiss each other in the living room of their house in Angeles City. Robin also testified that, at about eleven oclock in the evening of July 17, 2002, appellant roused him from sleep and required him to join them.[19] Robin then rode a white car together with Arnold, Alexander and the appellant, who acted as the guide in proceeding towards Stevens apartment. Upon reaching Stevens place, appellant gave Arnold the keys of the house, and forthwith ordered the group to alight from the car. Upon gaining entry, the three performed all the acts of execution. Riding the same car, Arnold, Alexander, Robin and Evelyn returned to Angeles City. Even as they were traveling, Evelyn warned them never to tell anybody about the incident. Robin, however, divulged the violent incident to his wife Gina Bohol Butas (Gina), Evelyns sister. In essence, the material points of Robins testimony were wholly corroborated by Gina. According to Gina, the appellant admitted that she was in love with Arnold. She added that the appellant confided to her the plan to kill Steven in order for the appellant and Arnold to freely stay together.[20] By way of defense, appellant theorized that it was physically impossible for her to have a direct and material participation in the killing of Steven as she was absent from the scene of the crime, and she lacked the ill motive to orchestrate the murder of her husband. She also contended that she was at home with her children at the time of the commission of the felony.[21] On November 25, 2004, the RTC rendered a Decision[22] finding the appellant guilty beyond reasonable doubt of murder, qualified by treachery, and
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sentenced her to suffer the penalty of reclusion perpetua. The court also made her liable to pay civil indemnity in the amount of P50,000.00. The court found sufficient evidence to establish conspiracy to kill Steven. It likewise held that treachery was adequately proven, thus, establishing the crime of murder. It, however, refused to recognize the aggravating circumstance of evident premeditation because of insufficiency of evidence. It is undisputed that the appellant was married to Steven; however, the trial court concluded that she could not be held liable for parricide in view of the nullity of their marriage, for having been contracted at the time when appellant was only 17 years old.[23] This decision was affirmed by the CA in its Decision dated December 28, 2006, with an added award of P50,000.00 representing moral damages due the heirs of Steven.[24] In her final attempt to seek the reversal of her conviction, appellant comes before this Court, raising the following as lone error:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE FACT THAT HER GUILT FOR THE CRIME OF MURDER WAS NOT PROVEN BEYOND REASONABLE DOUBT.[25]

Appellant bewails the fact that the trial and the appellate courts accorded great weight to the testimony of Robin. She posits that having turned state witness, Robin was motivated to testify solely by his desire to be exculpated from liability.[26] Appellant adds that her motive to kill Steven was not established at all.[27] She further avers that her conviction should not have been based on Robins testimony, or on the weakness of the evidence for the defense.[28] Lastly, appellant insists that in no way could she be convicted of murder for lack of sufficient evidence to prove the qualifying circumstance of treachery.[29] After a careful review of the records and evidence presented, we find no cogent reason to reverse the decision of the RTC, as affirmed by the CA. Nevertheless, we deem it proper to discuss the issues raised by the appellant.

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First, whether Robins testimony is credible. As this Court has consistently said, where the culpability or innocence of an accused would hinge on the issue of the credibility of witnesses, the findings of fact of the CA affirming those of the trial court, duly supported by sufficient and convincing evidence, must be accorded the highest respect, even finality, by this Court, and are not to be disturbed on appeal.[30] The only exception is when certain facts of substance and value have been overlooked which, if considered, might affect the result of the case.[31] Moreover, as enunciated in People v. Bocalan,[32] the simple fact that Robin was originally charged with the appellant as a co-conspirator but was later discharged as a state witness and was no longer prosecuted for the crime charged does not render his testimony incredible or lessen its probative weight. Otherwise stated, the barefaced fact that Robin was charged as a co-conspirator in the commission of the crime before he was discharged as a state witness does not disqualify him as a witness or discredit his testimony.[33] While his testimony should be taken with caution, there is no reason why it cannot be given credence, it appearing that the same was corroborated by the testimony of his wife who happens to be appellants sister. Besides, appellant offered no evidence to show that Robin was actuated by an ill or devious motive to testify against her. Appellants claim that Robin testified against her only because he was motivated by his desire to be exculpated from his liability as a co-conspirator is likewise bereft of merit. Considering his close relationship with the appellant, the latter being his sister-in-law, there was no other reason for Robin to have testified against the appellant except his desire to tell the truth. This was bolstered by the fact that appellants own sister corroborated Robins testimony. More importantly, Robins testimony was corroborated by physical evidence, namely, the autopsy report that Steven sustained four gunshot wounds at the upper left portion of his back, including four bullet holes at the back of his upper left arm, just below the shoulder,[34] which was thus consistent with his testimony that upon seeing Steven who was then asleep, Arnold fired four consecutive shots upon the former, hitting him at the back.[35] Second, whether appellant was correctly convicted of murder. Murder is committed by any person who, not falling within the provisions of Article 246[36] of the Revised Penal Code (RPC), kills another, if the killing is committed
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with treachery.[37] There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make.[38] Hence, for treachery to be appreciated, two conditions must be met, to wit: (1) the employment of means, methods or manner of execution that would ensure the offenders safety from any defense or retaliatory act on the part of the offended party; and (2) the offenders deliberate or conscious choice of means, method or manner of execution.[39] The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself.[40] The circumstances obtaining in the instant case show that treachery attended the killing of the victim. It is undisputed that the killing occurred at around two oclock in the morning, an hour when generally people are asleep. The witnesses are also one in saying that upon entering Stevens room, the assailants immediately shot the former and caused the latters death. Both the testimonial and the physical sets of evidence also show that Steven was shot from behind. Evidently, the victim was caught unaware, totally defenseless against the armed invaders.[41] While it is true that appellant did not directly participate in shooting Steven, nevertheless, evidence clearly shows that she was part of the conspiracy to commit the crime. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[42] It must be proved with the same quantum of evidence as the crime itself. However, direct proof is not required, as conspiracy may be proved by circumstantial evidence. It may be established through the collective acts of the accused before, during and after the commission of a felony that all the accused aimed at the same object, one performing one part and the other performing another for the attainment of the same objective; and that their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.[43] In the present case, the CA correctly outlined the circumstances showing the appellants participation, viz.:
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First, Evelyn [appellant herein] provided for the effective and compelling inducement for Arnold to carry into effect the killing of Steven. Second, Evelyn personally summoned and recruited Robin to come along with them for possible backup or perhaps as additional ammunition in case of resistance or retaliation on the part of their target. Third, it is apparent that the three men were not aware of Stevens location, and thus Evelyn acted as the guide who directed the group towards the residence of Steven at Makati. And fourth, Evelyn provided the group with the keys in order for them to enter the apartment with ease and unnoticed.[44]

Indubitably, conspiracy was established. Appellant seeks refuge in the defense of alibi which we have consistently regarded as the much abused sanctuary of felons and which is considered as an argument with a bad reputation. It is, to say the least, the weakest defense which must be taken with caution being easily fabricated.[45] Such defense cannot prevail over the positive identification of appellant as one of the conspirators in killing Steven. Though she did not participate in the actual shooting of Steven, it was sufficiently established that she traveled fromAngeles City to Makati City, together with the assailants; she waited for the assailants inside the car; and she traveled back to Angeles City, again with her co-conspirators, after the commission of the felony. Furthermore, appellant failed to establish that it was physically impossible for her to have been at the scene of the crime at the time of its commission. Angeles City is only a few kilometers away from Makati and only a few hours of travel by land. This is coupled by the fact that when Michael was trying to reach her through her mobile and residence phones, she was not available until six oclock in the morning, which was only about four hours after the incident. Clearly, it was possible for her to be at the place where the felony was committed. Besides, as earlier discussed, considering the appellants participation as a co-conspirator, her absence from the place of commission does not negate her culpability. We would like to clarify at this point that although admittedly, appellant was the wife of the victim, she could not be convicted of parricide as provided in Article 246 of the RPC. Records show that appellants relationship with the victim was not alleged in the information.[46] Hence, she can be convicted only of murder.
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Under Article 248 of the RPC, the penalty imposed for the crime of murder is reclusion perpetua to death. There being no aggravating or mitigating circumstance, the penalty imposed on appellant is reclusion perpetua. The prison term imposed by the trial court and as affirmed by the CA is, therefore, correct. Lastly, whether the damages awarded to the heirs of Steven are proper. We affirm the award of civil indemnity and moral damages but we deem it proper to order the payment of an additional amount of P25,000.00 as exemplary damages. Civil indemnity is mandatory and granted to the heirs of the victim even without need of proof other than the commission of the crime. The amount of P50,000.00 awarded by the trial and appellate courts is in line with prevailing jurisprudence.[47] As to moral damages, the same is mandatory in cases of murder and homicide, without need of allegation and proof other than the death of the victim.[48] The amount ofP50,000.00 was, therefore, correctly awarded. In addition, exemplary damages should be awarded to the heirs of the victim, since the qualifying circumstance of treachery was proven by the prosecution.[49] When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as a deterrent to serious wrongdoings, and as a vindication of undue sufferings and wanton invasion of the rights of an injured or a punishment for those guilty of outrageous conduct.[50] WHEREFORE, we AFFIRM the December 28, 2006 Decision of the Court of Appeals in CA-G.R. CR-HC No. 00551 finding appellant Evelyn Bohol y Talaogan guilty beyond reasonable doubt of murder, with the MODIFICATION that the victims heirs are also entitled to the award of exemplary damages of P25,000.00. SO ORDERED.
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ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

RUBEN T. REYES Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

CERTIFICATION
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Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

5. People vs. Dela Cruz, G.r. no. 168173, December 24, 2008

EN BANC PEOPLE OF THEPHILIPPINES, PlaintiffAppellee, G.R. No. 168173

Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA,

- versus -

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REYES, LEONARDO-DE CASTRO, BRION, JJ.

FO1 FELIPE DELA CRUZ yREYES, AUDI DONA y BINAN, ALFREDO BARACAS yCONCEPCION, Promulgated: EDUARDO PALACPAC y ROSALES, BERNARDO December 24, 2008 RANARA yMORATALLA, JOEMARI DE LOS REYES y CONCEPCION, DOMINADOR RECEPCION yPALASO, and ROBERT ALFONSO y MARTIZANO, Accused-Appellants. x-----------------------------------------------------------------------------------------x

DECISION BRION, J.: For our review on automatic appeal is the March 15, 2005 decision [1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00570 that fully affirmed the February 9, 2000 decision[2] of the Regional Trial Court (RTC), Branch 219, Quezon City. The RTC decision found the accused-appellants Fire Officer 1 Felipe dela Cruz y Reyes (FO1 dela Cruz), Audie Dona y Binan (Audie), Alfredo Baracas y Concepcion (Alfredo), Eduardo Palacpac y Rosales (Eduardo), Bernardo Ranara y Moratalla (Bernardo), Joemari delos Reyes y Concepcion (Joemari),
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Dominador Recepcion y Palaso (Dominador), and Robert Alfonso y Martizano (Robert) guilty of the special complex crime of robbery with homicide and robbery in band. Accordingly, the RTC sentenced them to suffer the death penalty for robbery with homicide, and an indeterminate penalty of six (6) years prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, for robbery in band. BACKGROUND The prosecution charged the appellants before the RTC with the special complex crime of robbery with homicide and robbery in band under two separate Informations which state: Criminal Case No. Q-99-85787 (Robbery with Homicide)
That on or about 2:15 a.m. on July 28, 1999 in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, conspiring, confederating and mutually helping each other, did then and there willfully, unlawfully and feloniously, with intent of gain by means of force, violence and intimidation upon Joselito Herrera, Joel Dizon, Rosie Anonuevo, Kuraishi Macapundag and Edwin Gultiano Arcenas, Felipe dela Cruz and Nestor Mayagma, sales and security personnel of Seven-Eleven Convenience Store at Mindanao corner Tandang Sora Avenue, aimed their firearms at said victims and repeatedly firing the same, accused forcibly take and carry away the following described property: Cash money amounting to P1,600.00 belonging to 7-11 Convenience Store -do-do-

2 cash registers valued at Cellphone cards

P64,000.00 P60,000.00

to the damage and prejudice of said owners and that, by reason or on the occasion of said robbery, accused with treachery and use of superior force, nighttime, with the use of unlicensed firearms, shot and killed Seven Eleven Security Guard NESTOR MAYAGMA and PTV 4 ELMER DUQUE, who were likewise divested of a cal. 38 Squires revolver with SN-61900 (licensed to Leopard Integrated Services, Inc.) valued at P10,000.00 and wallet with money, respectively, to the damage and prejudice of said deceaseds heirs in the said amount.
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CONTRARY TO LAW.[3]

Criminal Case No. Q-99-85788 (Robbery in Band)

That on or about 1:45 a.m. on July 28, 1999 in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, acting in concert, conspiring, confederating and mutually helping each other, did then and there willfully, unlawfully and feloniously, with intent of gain by means of threats, force, violence and intimidation upon Robert Lagua and Rommel Varron pump attendants of Petron Gas Station, Petron Plaza, Inc. owned by Frewinda Robosa located at Commonwealth Branch located at Commonwealth Branch, Old Balara, Quezon City, armed with unlicensed firearms, accused forcibly take, carry away and divested said establishment of cash money amounting to P8,055.00 and assorted Petron products valued at P7,000.00 to the damage and prejudice of said victim(s). CONTRARY TO LAW.[4]

The appellants were duly arraigned, pleading not guilty to the charges laid. The prosecution presented the following witnesses in the joint trial that ensued: Joel Dizon (Joel); Joselito Herrera (Joselito); Florencio Cabalbag, Jr. (Florencio); Kuraishi Makapundag (Kuraishi); Allan Taparano (Allan); Conrado Marquez, Jr. (Conrado); Rosanna Quintos-Duque (Rosanna); Ruben Labjata[5] (Ruben); Senior Police Officer 2 Bayani Gotera (SPO2 Gotera); Jesus Macalino (Jesus); Edwin Gultiano (Edwin); Rommel Varron (Rommel); Corazon Rodil Gloria (Corazon); and Police Inspector Rodrigo Salamat (P/Insp. Salamat). The appellants, Jose Villanueva (Jose) and Fire Officer 2 Edgardo Sambo (FO2 Sambo) testified for the defense. The RTC summarized the testimony of Joel as follows:
JOEL DIZON, 7-Eleven graveyard shift supervisor, narrated that while he was arranging the merchandise on the store gondola, he heard gunshots coming from the position of their security guard near the counter; that slowly, he crawled towards the door of the back room from where, when he looked back, he saw their guard, Nestor Mayagma, engage [sic] in a shoot-out with someone near the entrance door; that he heard about five (5) gunshots; that he went inside the back
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room followed by Joselito Herrera and then, through a passage, they ended up behind the Slurpee machine;[6] that through a gap between the machines, he saw a man, JOEMARI DE LOS REYES, carrying a revolver just in front of the machine and dragging the delivery boy of the Smackers Bakeshop; that Joemari de los Reyes then went to the counter and, together with another man, FO1 FELIPE DELA CRUZ, took Rose Aonuevo, their cashier, inside the back room;[7] that the two asked her Nasaan and may hawak ng susi? (referring to the one who had the keys to the cash register); that when they could not find him, the two took the cash registers with them and left; that he saw six other persons who went out but was not able to recognize them as he saw their backs only; that thereafter, he heard two more gunshots; that later, when he saw the ABS-CBN people enter the store, he pushed the machine aside, came out, and saw Mayagma sprawled on the floor; that Rose Aonuevo was in the back room and was still in a state of shock; that thereafter, he called the head of their security and they checked the items; and that he noticed that the phone cards and the body sprays were missing.[8] [Italics and footnotes referring to the pertinent part of the records supplied]

Joselito, the assistant lead clerk of the 7-Eleven Convenience Store, essentially corroborated Joels testimony. He added that while peeping from the back of the Slurpee machine, he saw appellant Robert giving orders. Fearing for his safety, he (Joselito) bowed his head, turned his back and said a prayer. He and Joel came out from their hiding place when the media arrived ten (10) minutes after the robbery.[9] He then saw the bloodied body of their security guard, Nestor Mayagma (Nestor), sprawled on the floor. He went back to the storeroom to calm himself. Afterwards, someone told him to bring Nestor to the hospital as he was still alive. He brought Nestor to the Lanting General Hospitalwhere the latter soon after died.[10] Florencio, the security officer and general services supervisor of Phil-Seven Corporation, declared on the witness stand that after conducting an investigation, he found that the total items taken by the robbers amounted to P84,060.00.[11] The RTC summarized the testimony of Kuraishi as follows:
KURAISHI MACAPUNDAG, a 29-year-old messenger of the Finance Department of PTV-4, recalled that on the early morning of July 28, 1999, he joined Elmer Duque in his car going home; that they stopped at 7-Eleven because Elmer wanted to buy pambaon for his children; that he got off the car first and when he entered the store, he noticed a hold-up in progress because there were persons lying face down on the floor;[12] that he then came face to face with a person, BERNARDO RANARA, carrying a gun; that he walked around the store
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and then heard another shot; that upon hearing the shot, he went out and saw Elmer Duque bloodied and motionless on the ground; that he got scared, ran away towards the direction of Tandang Sora, heard two more shots, and eventually hid behind the trees; that after two hours, he returned to 7-Eleven but the gunmen were no longer there; and that on his way home, he heard over the radio that Elmer Duque had passed away.[13] [Italics andfootnotes referring to the pertinent part of the records supplied]

Allan, a cook at King Dimsum (a restaurant adjacent to the 7-Eleven Convenience Store), narrated that at around 2:00 a.m. of July 28, 1999, while he and his three (3) co-workers were cleaning the restaurant, he heard several gunshots. When they went out, he saw Diosdado peeping through the glass panel of the 7-Eleven Convenience Store.[14]Thereafter, Diosdado pulled out a gun and entered the 7-Eleven Convenience Store; once inside, he bent a little and fired a shot. He further testified that he saw a man wearing a violet t-shirt pointing a gun at the people inside the convenience store. Afterwards, Diosdado went out towards their direction. As a result, he and his three (3) companions ran towards the kitchen of King Dimsum.[15] From inside the kitchen, he saw Diosdado approach two (2) taxicabs parked in front of the King Dimsum, wake up the drivers, and hold them up. Diosdado then proceeded towards a passenger jeepney parked under a Sampaloc tree.[16] Suddenly, a maroon car arrived and parked near the 7-Eleven Convenience Store. The cars passenger alighted first and went inside the store. When the cars driver alighted from the car, Diosdado pointed his gun at the driver who raised his hands. At that point, Diosdado shot him in the chest. Fearing for his life, he (Allan) ran towards the bakery beside the restaurant. He heard two (2) more gunshots but did not see who fired them.[17] Conrado, a tricycle driver plying the Paniqui, Tarlac highway, recalled that at around 5:00 a.m. of July 28, 1999, while he was waiting for passengers, a green jeepney stopped and eight (8) untidy men alighted. Four (4) of them boarded his tricycle, while the others boarded another tricycle.[18] He recalled the faces of two of his passengers - Joemari, who paid the fare, and Diosdado.[19] The men alighted at Barangay Coral, Ramos, Tarlac. Thereafter, he returned to the highway and continued to ply his route until8:00 a.m. At around 12:00 a.m. of July 29, 1999, he returned to the highway and overheard a certain Ate Fe talking to about eight (8)
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persons the Caloocan Police was looking for. He approached Ate Fe and informed her that he knew something about these eight (8) men. Ate Fe relayed the information to another tricycle driver who, in turn, reported it to the police.[20] Thereafter, the Paniqui police came and brought him to the police headquarters.[21] He accompanied the police to the place where he brought his four (4) passengers. They subsequently returned to the police station where the police had a brief meeting before returning to where he had brought his passengers.[22] He was subsequently brought to the Caloocan Police Station where he gave two (2) sworn statements. He also later identified Joemari at the police station in a police line-up of twelve (12) men.[23] Rosanna, widow of Elmer, testified that her husband received a monthly salary of P11,400.00 working as a cameraman for PTV-4; and that she incurred P138,070.00 as expenses for the funeral and burial of her husband.[24] The testimony of Ruben, the driver of the jeepney, appeared in the RTCs decision as follows:
RUBEN LABAJATA, a 29-year-old Waray jeepney driver plying the Monumento-Paco-Bulacan route and a resident of Taliptip, Bulacan, Bulacan, related that between 1:00 and 2:00 oclock in the early morning of July 28, 1999, he parked his jeepney at the terminal in Dagohoy, Monumento, Kalookan City; that while he and his passengers were waiting, they suddenly heard shots coming from a nearby place; that he got scared so he decided to leave but the jeepney could not start immediately;[25] that while he was trying to do it, [sic] somebody poked a gun at him and ordered all his passengers to get out; that two of the gunmans companions sat on his right side and one on his left side while the others boarded it from the rear; that while they were moving, he looked at them, through his rear view mirror, from time to time (nasusulyapan ko rin); that the person who sat on his left was ROBERT ALFONSO while the two who were on his right were EDUARDO PALACPAC and AUDIE DONA; that seated behind him on the left side were BERNARDO RANARA, DOMINADOR RECEPCION, and JOEMARI DE LOS REYES while on the right were ALFREDO BARACAS and DIOSDADO RECEPCION; that from the terminal, he was ordered to drive the jeepney until they reached a Petron gas station in Quezon City where they loaded fuel; that Robert Alfonso then alighted and asked the gasoline boy where the cashier was and then the others also alighted; and that when the others returned, he noticed that they were carrying fluid.[26] xxxx

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[He] further narrated that from the gas station, they stopped by a 7-Eleven store; that the men alighted but two remained beside the jeep guarding him; that he noticed that there were two taxicabs parked then; that he then heard successive gunshots; and that the others rushed to the jeepney and he heard kalabugan with something like a heavy metal object na makalansing was being loaded.[27] xxxx After the carnage at 7-Eleven, [He] added that he just drove as instructed until they reached the Balintawak area where he heard that they would be going to Paniqui, Tarlac, because one of them had relatives there; that on their way, he heard the gunmen hammering the heavy object; that before reaching another Petron gas station in Bocaue, Bulacan, he was asked to slow down and then the men threw something heavy there; that it was already dawn when they reached Tarlac and he sensed that he would be done away with when he heard the word tumba; that he pleaded for his life telling them that he had two children and his wife was on the family way; that he was able to convince them and his life was spared on condition that he would follow their instructions; that upon reaching an intersection in Paniqui, Tarlac, the men alighted and ordered him to turn back and not to look back anymore; and that he was warned not to report to the police because if they would find out that he did, they would get back at him.[28] xxxx On his way back from Paniqui, Tarlac, [He] further recalled that feeling relieved, he went home to Bulacan which he reached at 10:00 oclock in the morning; that he immediately looked for the owner of the jeepney but he could not find him; that he parked the jeepney in the garage and proceeded to their house but his wife was not there; that his relatives had learned of what happened and so when they saw each other in his sisters house, they embraced each other; that while they were talking to each other, a barangay officer came and informed him that the police were looking for him; that they went to the police station in Bulacan, Bulacan and then to the police station in Malolos, Bulacan, where he was suspected to be one of the robbers and interrogated; that in Malolos, when it was already dark, he was picked up by a certain Major Borromeo; that he told Major Borromeo what happened and later accompanied them to Paniqui, Tarlac, where he dropped off the gunmen; that eventually, he was brought to the police station in Tarlac, Tarlac[29] where later on, BERNARDO RANARA, ROBERT ALFONSO, DOMINADOR RECEPCION, JOEMARI DE LOS REYES, ALFREDO BARACAS and AUDIE BONA were presented to him; that from Tarlac, they went back to Kalookan City where his statement was taken, and that he saw the men again including DIOSDADO RECEPCION at the PAOCTF, Camp, Crame.[30] [Italics and footnotes referring to the pertinent part of the records supplied]

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SPO2 Gotera, a police officer assigned at the Caloocan Police Station, testified that on July 28, 1999, he received a call from Superintendent Tinio of the Malolos Provincial Command informing him that the driver and the jeepney used by the suspects in a Caloocan robbery were already in their custody.[31] Responding to this development, he went toMalolos City (together with Major Borromeo, PO2 Arnold Gonzales and Bandera reporter Yoyoy Alano) and interrogated the driver. The latter told him that a group of armed men boarded his vehicle and held-up the Petron Gasoline Station and the 7-Eleven Convenience Store along Commonwealth, and, using his vehicle, proceeded to Paniqui, Tarlac.[32] He and his companions forthwith went to Paniqui. In coordination with the Paniqui police, they went to the place where the jeepney driver dropped off the suspects. They located Conrado the driver of the tricycle used by four (4) of the suspects after alighting from the jeepney. Conrado led them to the compound where he brought the suspects.[33] On July 29, 1999, at around 4:00 a.m., SPO2 Gotera, together with other members of the Tarlac police, returned to Barangay Coral, Paniqui, Tarlac and surrounded the compound previously identified by Conrado as the place where he brought the suspects. An elderly man later identified to be the father of FO1 dela Cruz - came out and was confronted by the police. He informed the police that there were eight (8) men inside their house. The police asked him to bring out his son. He did as bidded and came out with FO1 dela Cruz who was carrying a gun but who put it down when asked to do so by the police.[34] FO1 dela Cruz thereafter told his companions to surrender but they refused to come out, prompting the police to give them an ultimatum. It was only then that the remaining seven (7) suspects came out and surrendered. They were identified as Alfredo Baracas, Audie Dona, Dominador Recepcion, Robert Alfonso, Joemari delos Reyes, Eduardo Palacpac, and Bernardo Ranara.[35] Jesus, a tricycle driver in Paniqui, Tarlac, corroborated the testimony of Conrado on material points. He added that he recognized one of his passengers Eduardo because the latter took some time in paying the P5.00 fare.[36] Edwin, delivery boy of Smackers Bakeshop, testified that he was delivering bread to the 7-Eleven Convenience Store at Mindanao Avenue corner Tandang
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Sora at around2:00 a.m. of July 28, 1999. After the security guard signed the delivery receipt, three (3) men who pretended to be customers entered the 7-Eleven Convenience Store and went to different sections of the store.[37] Suddenly, another man - FO1 dela Cruz - shot the security guard from outside the stores glass door, shattering it. In retaliation, the security guard pulled out his gun and fired back. At this point, Joemari (one of the men who had earlier entered and who was behind him) pulled him down and ordered Edwin to lie face down. [38] While the latter was in this position, Joemari took his watch and wallet.[39] He saw FO1 dela Cruz enter the store and gunshots followed afterwards. Joemari then held him and told Edwin to open the cash register. When he replied that he was not a personnel of the 7-Eleven Convenience Store, Joemari ordered him to remain lying on the floor.[40] Rommel, a pump attendant at the Petron Gasoline Station, Commonwealth Avenue, narrated that between 1:00 and 2:00 a.m. of July 28, 1999, while he was at the gasoline station with Robert Laggua (Robert, a gasoline boy) and Randy Azurin (Randy, the stations cashier), a passenger jeepney arrived and proceeded to the third lane. While he was loading the jeepney with fuel, he recognized appellant Audie - who was seated beside the driver - and saw eight (8) other persons inside the jeepney. After the driver paid himP100.00, two of the jeepneys passengers approached him; one of them, FO1 dela Cruz, pointed a gun at him, hit him on the nape, got back the P100.00 bill, and asked him where the stations money was hidden. He told FO1 dela Cruz that the money was in the second lanes vault. Diosdado and Joemari went to the second lane and took the money from there as well as other products.[41] They also pointed a gun at Robert and Randy, brought them to the middle lane, and told them not to run or report to the police. Thereafter, they all returned to the jeepney and left.[42]

Corazon, general supervisor of Petron Gasoline Station, confirmed that the robbers took P8,000.00 and assorted Petron products worth P7,000.00 from the gas station.[43] P/Insp. Salamat, PNP ballistician, testified that of the five (5) firearms submitted to the PNP Crime Laboratory for examination, three (3) were found to be positive, namely: caliber .38 Armscor revolver with Serial No. 51952; caliber
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.38 Armscor revolver with Serial No. 790006; and caliber .38 revolver Protector with Serial No. BR02982744. He explained that the term positive meant that the tested fired bullet coming from the three firearms revealed the same individual characteristics as the evidence bullet recovered at the crime scene and extracted from the cadavers.[44] The appellants gave a different version of the events. As summarized by the RTC, Dominador, Robert, and Eduardo testified that
DOMINADOR RECEPCION, EDUARDO PALACPAC and ROBERT ALFONSO, who introduced themselves as co-workers at Greenwoods, Cainta, Rizal, claimed that in the early morning ofJuly 28, 1999, Dominador Recepcion and Eduardo Palacpac were at their worksite while Robert Alfonso was in Bulacan. They testified that with the intention of going to Tarlac to recruit Joemari de los Reyes to augment their manpower requirement, Dominador Recepcion and Eduardo Palacpac left Cainta at 8:00 oclock in the morning; that at 9:00 oclock, the two fetched Robert Alfonso in Obando, Bulacan, and the three of them arrived in Ramos, Tarlac at past noontime; that they saw Joemari in his aunts house at Brgy. Pansi, Ramos, but they did not stay long there because they all went to Joemaris cousins place, FO1 de la Cruz, at Brgy. Coral, Ramos;[45] [T]hat when they reached the place, they saw only the parents of FO1 de la Cruz who told them that he was at the wake of a cousin; that after his parents had called him, FO1 de la Cruz came and said that they would slaughter a dog and drink which they did;[46] that Alfredo Baracas and Audie Dona, friends of Joemari de los Reyes, later joined them; that FO1 de la Cruz, however, did not drink; that Dominador Recepcion helped in the slaughtering of the dog and since there was a rain shower at that time, he used a match; that Robert Alfonso helped build the fire; that Eduardo Palacpac just sat around and did not help except slice the ingredients.[47] [T]hat at 6:00 oclock, they stopped drinking after consuming four bottles of gin and FO1 dela Cruz requested them to stay over for the night because he and Joemari had not seen each other for a long time; that the three of them went with FO1 de la Cruz and Joemari delos Reyes to the wake; that Audie Dona and Alfredo Baracas did not join; that at around 1:00 oclock in the morning of the following day, they returned to the house of FO1 de la Cruz; that they slept in the said house until the next morning when they were awakened and apprehended by the police; that they were brought to the Paniqui Police Station and then airlifted by helicopter straight to Camp Crame where they were met by the media and police officers; that at Camp Crame, they were placed in a 12-man line-up each
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with numbered tags but no names; that they were repeatedly beaten before they were presented to he media; that one Atty. Rous asked them if they had been tortured and they showed him the bruises they had sustained; and that later, Atty. Rous prepared a waiver for them which they did not understand.[48] [Footnotes referring to the pertinent part of the records supplied]

Bernardo claimed that in the evening of July 28 1999, he went to the house of FO1 dela Cruz to attend the wake of the latters cousin. According to him, he knew FO1 dela Cruz because he had been introduced to him by Joemari. When he arrived at the house at around 8:00 p.m., FO1 dela Cruz was not yet there; however, he saw Alfredo and Audie. While waiting for FO1 dela Cruz, he fell asleep.[49] In the early morning of the next day, he was roused from sleep when the police arrived and arrested him and the other people inside the house. They were brought to the Paniqui Police Station where their pictures were taken. Thereafter, they were taken to the PAOCTF Office at Camp Crame on board a helicopter. Upon their arrival, they were presented to the reporters; afterwards, they were severely beaten, tortured and humiliated by the police.[50] Joemari testified that in the early morning of July 28, 1999, he was sleeping at his aunts house at Barangay Pansi, Tarlac.[51] At around 1:00 p.m., his uncle Dominador, together with Robert and Eduardo, came to see him and invited him to work with them in Cainta. He told them that he would first go to the house of his cousin FO1 dela Cruz. They proceeded together to FO1 dela Cruzs house but he was not there. When FO1 dela Cruz arrived, he introduced Dominador, Alfonso and Eduardo to him. Afterwards, they slaughtered a dog and drank four (4) bottles of gin. Afterwards, Audie and Alfredo arrived, followed by Bernardo; the three (3) then joined them in drinking gin. Thereafter, he, together with FO1 dela Cruz, Roberto, Dominador and Eduardo went to the wake of FO1 dela Cruz cousin. They returned to the house at around 1:00 a.m. and slept there. They were roused from their sleep when the police arrived and ordered them to come out. When they came out, the police ordered them to undress and lie face down on the ground. Thereafter, they were handcuffed and brought to the Paniqui Police Station. After General Lacson arrived, they were placed on board a helicopter and taken to Camp Crame.[52]

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On cross-examination, he admitted that on November 22, 1999, he tried to escape from police custody by jumping out of the Jail Management and Penology vehicle, but explained that he only followed Diosdado, Bernardo and a certain Kasoy who all jumped out of the vehicle first.[53] The RTC summarized the testimonies of Alfredo and Audie in this manner:
ALFREDO BARACAS and AUDIE DONA were neighbors in Pasig City and both claimed that on the early morning of July 28, 1999, they were in Villacorta, Mabini, Pangasinan because the grandmother of Baracas was dying. They further narrated that at past 11:30 oclock of that day, while they were preparing to go back to Manila, Baracas told Audie Dona that they would pass by Tarlac to see his cousin, Joemari de los Reyes, because the latter had plenty of vegetables and fish and he wanted to bring some to Manila;[54] that at past noontime, they arrived at the place of Joemari but he was not there; that his aunt said that he was at the fishpond so they followed him there; that later, they went to the house of FO1 Felipe de la Cruz where they saw Joemari de los Reyes with FO1 de la Cruz, Roberto Alfonso, Dominador Recepcion and Eduardo Palacpac; that after the group had finished their drinks, they left to attend a wake;[55] that the two of them did not go with the group and, instead, went back to the house of Joemaris aunt to inform her that they would sleep in the house of FO1 de la Cruz; that they returned to the house of FO1 de la Cruz at around 5:00 oclock in the morning of July 29 and slept there; that they were awakened when Felipe de la Cruz was called by his father; and that thereafter, they were arrested by the police.[56] [Footnotes referring to the pertinent part of the records supplied]

FO1 dela Cruz narrated that in the afternoon of July 28, 1999, Joemari, Dominador, Eduardo and Alfonso arrived at his house. Since he and Joemari had not seen each other for a long time, they slaughtered a dog and drank liquor. Alfredo and Audie arrived at around 3:00 p.m., followed by Bernardo at around 8:00 p.m. He invited them to go to the wake of his cousin, but only four (4) accompanied him Joemari, Eduardo, Dominador and Robert.[57] They returned home at around 1:00 a.m. and then went to sleep. A few hours later, he heard his father ordering him to come out of the house. When he came out, the policemen asked him to put down his gun and to order his companions inside the house to likewise come out. When his remaining seven (7) companions came out, the police ordered them to strip in the middle of the road and then handcuffed them. Afterwards, they were brought to the Paniqui Police Station. When General Lacson
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arrived, they were airlifted by helicopter to Camp Crame where they were presented to the media. They were subsequently brought to the laboratory for fingerprinting and taking of urine samples.[58] On cross-examination, he denied knowing any of the appellants prior to their arrest on July 29, 1999, except his cousin, Joemari.[59] The defense presented Jose and FO2 Sambo as additional witnesses. Jose, a 36 year-old farmer from Ramos, Tarlac, narrated that at around 7:00 p.m. of July 27, 1999, while he was at the wake of Marcial de Vera, FO1 dela Cruz arrived. He and FO1 dela Cruz left the next day at around 4:00 a.m. When he returned to the wake at around 8:00 p.m. on July 28, 1999, he again saw FO1 dela Cruz. On cross-examination, he admitted that FO1 dela Cruz is his cousin.[60] FO2 Sambo testified that in the morning of July 29, 1999, while he was at the Office of the Fire Marshal, his brother informed him that FO1 dela Cruz was under detention at the Paniqui Police Station. He went to Paniqui to confirm the information and reported his findings to the provincial office. Afterwards, the Bureau of Fire Protection directed him to investigate the involvement of FO1 dela Cruz in the robbery. After interviewing FO1 dela Cruz and several other people (including the parents of FO1 dela Cruz, his live-in partner, and the vice-mayor of Ramos, Tarlac), he concluded that FO1 dela Cruz was not involved in the recent robbery/hold-up and was not a coddler of criminals.[61] As a side development, Diosdado, Alfredo, Bernardo, Joemari, Dominador and Robert escaped from their escorts after their hearing on November 22, 1999 while on their way back to the Quezon City Jail. Joemari, Dominador, Alfredo, and Robert were immediately apprehended; Diosdado was fatally wounded and later died, while Bernardo still remains at large.[62] The RTC convicted the appellants of the crimes charged in its decision of February 9, 2000 as follows:
WHEREFORE, in Criminal Case No. Q99-85787 (Robbery with Homicide) finding all the accused, FO1 Felipe de la Cruz, Robert Alfonso, Audie
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Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari de los Reyes, and Dominador Recepcion, guilty beyond reasonable doubt of the crime charged in the Information, the Court hereby sentences each of them a] b] to suffer the penalty of Death; to pay, jointly and severally, the heirs of Elmer Duque the amount of P138,070.00 as actual damages; P500,00.00 as moral damages; P75,000.00 as indemnity for his death; P500,000.00 as exemplary damages; and P1,846,800.00 for the loss of his earning capacity plus interest from the time of his death at the rate of six (6%) percent per annum; to pay, jointly and severally, the heirs of Nestor Mayagma, the amount of P75,000.00 as indemnity for his death; P100,000.00 as moral damages; and P50,000.00 as exemplary damages; to pay 7-Eleven Convenience Store, the amount of P84,060.00 plus interest from the date of the commission of the crime at the rate of six (6%) percent per annum; and to pay the costs.

c]

d]

e]

In Criminal Case No. Q99-85788 (Robbery in Band), finding all the accused, FO1 Felipe de la Cruz, Robert Alfonso, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari de los Reyes, and Dominador Recepcion, guilty beyond reasonable doubt of the crime charged in the Information, the Court hereby sentences each of them a] to suffer the indeterminate penalty of imprisonment ranging from SIX (6) YEARS of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum; to pay Petro Plaza, Inc. the amount of P8,000.00 plus interest from the date of the commission of the crime at the rate of six percent (6%) per annum; and to pay the costs.

b]

c]

SO ORDERED.[63]

The RTC denied the appellants motion for reconsideration in its resolution[64] of April 17, 2000.
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The case was brought to this Court on automatic appeal in light of the penalty imposed, but we remanded it to the CA for intermediate appellate review pursuant to our ruling in People v. Mateo.[65] The CA, in a decision[66] dated March 15, 2005, fully affirmed the RTC decision. In their brief,[67] the appellants argued that the RTC erred 1. in imposing the penalty of death upon them because treachery and abuse of superior strength were not proven; and 2. in finding all the accused, even those who did not take active part, equally liable for the crime of robbery with homicide. The twin issues for our resolution are: (a) whether the appellants guilt of the crimes charged was proven beyond reasonable doubt; and (b) if they are guilty, whether the trial court imposed the correct penalties and awarded the proper civil indemnities. THE COURTS RULING We deny the appeal, but modify the penalties imposed and the amount of the awarded indemnities. Sufficiency of the Prosecution Evidence I. Criminal Case No. Q-99-85788 (Robbery in Band)

A reading of the cited errors reveals that the appellants no longer contest their conviction for robbery in band. Nevertheless, since an appeal opens the whole case for review, we deem it necessary to review the appellants conviction as well as the corresponding penalty imposed and the civil indemnities awarded.
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The elements of the crime of robbery under Article 293[68] of the Revised Penal Code are: (a) the unlawful taking (b) of personal property belonging to another (c) with intent to gain, and (d) with violence against or intimidation of person or force upon things. Under Article 296 of the same Code, "when more than three armed malefactors take part in the commission of robbery, it shall be deemed to have been committed by a band.[69]

In the present case, the prosecution witnesses, at one time or another during the hearing, testified that Joemari, Bernardo, Diosdado and FO1 dela Cruz were all armed. However, we cannot recognize the commission of robbery by a band as an aggravating circumstance since this circumstance was not specifically alleged in the body of the Information. Section 8, Rule 110 of the 2000 Rules on Criminal Procedure provides that the information or complaint must state the designation of the offense given by the statute and specify its qualifying and generic aggravating circumstances, thus:
Section 8. Designation of the offense.- The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Other than on this aspect of the case, we find the trial courts factual findings and conclusions in Criminal Case No. Q-99-85788 to be correct. As the trial court found, the witnesses were straightforward in their account of the robbery that occurred at Petron Gasoline Station along Commonwealth, Quezon City, and never wavered in pointing to the appellants as the perpetrators. Ruben, the driver of the vehicle the appellants used and who saw the robberies from the start to its bloody end, positively and with full details identified in his testimony ofSeptember 28, 1999 the appellants Robert, Eduardo, Audie, Bernardo, Dominador, Joemari, Alfredo, and Diosdado as the robbers. At gunpoint, they boarded his jeepney in Monumento; ordered him to refuel at Petron Gas Station in Commonwealth, Quezon City and robbed this establishment; and
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then ordered him to stop at the 7-Eleven Convenience Store along Mindanao and Tandang Sora Avenue for another robbery.[70] Rommel, in his testimony of October 21, 1999, corroborated the testimony of Ruben and likewise gave his own details of how the robbery was committed. He identified Audie, FO1 dela Cruz, Diosdao and Joemari as the passengers of the jeepney whom he recognized.[71] These testimonies, which we considered in light of the appellants defenses discussed below, more than amply constitute proof beyond reasonable doubt that the appellants are guilty of the crime of robbery as charged. II. Criminal Case No. Q-99-85787 (Robbery with Homicide)

There is robbery with homicide when a homicide is committed either by reason, or on occasion, of the robbery.[72] To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in its generic sense, was committed.[73] A conviction requires certitude that the robbery is the main purpose and objective of the malefactor and the killing is merely incidental to the robbery.[74] The intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery.[75] In the case before us, the prosecution proved that the appellants original intention was to rob the 7-Eleven Convenience Store. A careful examination of the testimonies of the various prosecution witnesses, all of them cited above, reveals the following facts showing the appellants intent: appellants Joemarie, Bernardo and Robert entered the 7-Eleven Convenience Store pretending to be customers; witness Kuraishi entered the store and met appellant Bernardo, who was carrying a gun; Elmer, who went out of his car to follow Kuraishi, was shot in the chest by Diosdado; appellant FO1 dela Cuz fired at the security guard, Nestor, through the glass door but missed; Nestor exchanged shots with FO1 dela Cruz; Joemari pulled down Edwin and took his wallet and watch; Diosdado peeped through the glass panel of the 7-Eleven Convenience Store, shot Nestor and entered the store; Joemari dragged Edwin towards the counter and told him to open the cash
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register; Diosdado went outside the store, approached the two (2) taxis parked in front of King Dimsum and held up the drivers; FO1 dela Cruz entered the store, dragged the cashier, Rose, towards the backroom and asked who kept the keys of the cash register; Joemarie, Bernardo, Robert and FO1 dela Cruz took the cash register and went back to their companions who were waiting inside the jeepney; thereafter, appellants proceeded to Paniqui, Tarlac. From the foregoing, the overriding intention of the appellants could not but be to rob the 7-Eleven Convenience Store; the killings were merely incidental, resulting by reason or on the occasion of the robbery. Nestor was killed because he was the man who would have resisted the robbery; Elmer was killed because he simply happened to be there as the robbery was taking place. Aside from the testimony of Ruben,[76] other witnesses positively identified the appellants as the persons who went to the 7-Eleven Convenience Store on that fateful morning of July 28, 1999. Joel (the 7-Eleven Convenience Store Supervisor), in his testimony on September 2, 1999, pointed to appellants Joemari and FO1 dela Cruz as the persons who entered and robbed the 7-Eleven Convenience Store.[77] Joselito (the Assistant Lead Clerk of the 7-Eleven Convenience Store), in his testimony of September 6, 1999, corroborated the testimony of Joel and added that he saw appellant Robert inside the 7-Eleven Convenience Store.[78] Kuraishi (the companion of Elmer), in hisSeptember 9, 1999 testimony, confirmed the presence of appellant Bernardo inside the 7-Eleven Convenience Store.[79] Allan (the cook of King Dimsum), for his part, positively identified Diosdado as the one who fatally shot Elmer.[80] Finally, Edwin (the delivery boy), confirmed the presence of appellant Joemari inside the 7-Eleven Convenience Store, and identified appellant FO1 dela Cruz as the person who fired shots at the stores security guard.[81]

Denial and Alibi

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In stark contrast with the prosecutions case are the appellants weak and uncorroborated defenses. They interposed alibi and denial to support their claim of innocence. Robert, Eduardo and Dominador all alleged that they went to Tarlac in the afternoon of July 28, 1999 to recruit Joemari as a worker in the construction site where they were working. When they reached the house of Joemaris aunt, they claimed to have seen Audie and Alfredo. This is contrary to the claim of Audie and Alfredo who claimed to have seen them only at the house of FO1 dela Cruz. The testimonies of Audie and Alfredo were likewise full of inconsistencies: Alfredo claimed that they arrived at Tarlac at past 2:00 p.m. of July 28, 1999, while Audie alleged that they arrived at noontime; Alfredo stated that they saw Joemari at the house of FO1 dela Cruz and then went to the fishpond to drink, while Audie claimed that they first went to the fishpond to have some drinks and then proceeded to the house of FO1 dela Cruz where they saw Joemari. Joemari insisted that he was sleeping in the house of his aunt in Tarlac at the time of the robbery. His story, however, remains uncorroborated. Bernardo, for his part, maintained that he went to Tarlac on July 28, 1999 at 3:00 p.m. to attend the wake of FO1 dela Cruzs cousin. Incredibly, he did not know the name of the deceased nor could he remember the name of the person who informed him of the death of the deceased. FO1 dela Cruz, a central figure in the robbery, denied knowing any of the appellants (except his cousin Joemari) before July 29, 1999; surprisingly, he allowed all the appellants to sleep in his house. We have repeatedly held that for the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time the crime was committed, but that it was likewise impossible for him to be at the locus criminis or its immediate vicinity at the time of the alleged crime. Where there is the least chance for the accused to be present at the crime scene, the defense of alibi must fail.[82]

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In this case, the appellants claimed to have gone to Tarlac in the afternoon of July 28, 1999. However, they could not account for their whereabouts at past 12:00 a.m. onJuly 28, 1999 when the crime was committed. The appellants failed to prove that it was physically impossible for them to be at the scene of the crime at the approximate time of its commission. The appellants denial must likewise fail in light of the positive identification and declarations made by the prosecution witnesses. These witnesses testified in a straightforward and categorical manner regarding the identities of the malefactors. They did not waver despite the grueling and extensive questions fielded by the defense; they likewise remained consistent and steadfast despite the defense counsels rigid questioning. Courts generally view the defenses of denial and alibi with disfavor on account of the facility with which an accused can concoct them to suit his defense. As both evidence are negative and self-serving, they cannot attain more credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby positive evidence on the various aspects of the crime committed.[83] Among such positive evidence are the paraffin tests conducted on the appellants which revealed that four (4) of them Joemari, Dominador, Diosdado and FO1 dela Cruz were positive for gunpowder nitrate. In addition, the ballistic examination on the gun owned by Diosdado showed that the bullets recovered from the body of Elmer were fired from his gun. On the whole, we view the evidence against accused-appellants to be overwhelming. We find no reason to deviate from the findings of the trial court in the absence of facts or circumstances of real weight that might have been overlooked or misapprehended.[84] The trial court had the unique opportunity of observing firsthand the witnesses as they testified and were cross-examined, and it was therefore in the best position to assess whether these witnesses were telling the truth or not. The substance of the testimonies for the prosecution were as the trial court found and intrinsically merits full faith and credence. The defense, on the other hand, provided no facts and circumstances of weight and substance sufficient to cast doubt on the trial courts evaluation of the credibility of the prosecutions witnesses.[85]
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The presence of conspiracy Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy may be inferred from the acts of the accused before, during, and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest.[86] For conspiracy to exist, it is not required that there be an agreement for an appreciable period prior to the occurrence; it is sufficient that at the time of the commission of the offense, the malefactors had the same purpose and were united in its execution.[87] From the circumstances obtaining in this case, it cannot be doubted that the appellants acted in conspiracy in committing the crimes charged. The appellants were together in the jeepney when it stopped at Petron Gasoline station and then at the 7-Eleven Convenience Store. Afterwards, they were still together in the jeepney when it went to Tarlac. From the time they announced a robbery at Petron to the moment they entered the 7-Eleven Convenience Store and shot the stores security guard, up to the time they fled towards Tarlac, there can be no other conclusion than that they hatched a criminal scheme, synchronized their acts for unity in its execution, and aided each other for its consummation.[88] When conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all the other conspirators, and the precise extent or modality of participation of each of them becomes secondary.[89] Corollarily, the rule is well-established that whenever homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide. In the present case, it has not been shown that the appellants tried to prevent the shooting of the two (2) victims. Hence, their cooperative acts toward their common criminal objective render them equally liable as conspirators.[90] The Proper Penalties
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For the crime of simple robbery, Article 294, paragraph 5, prescribes the penalty of prision correccional in its maximum period to prision mayor in its medium period. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstances, the maximum penalty to be imposed shall be taken from the medium of the imposable penalty which is prision mayor minimum and whose range is six (6) years and one (1) day to eight (8) years, following Article 64(1)[91] of the Revised Penal Code. The minimum, on the other hand, shall be taken from the penalty next lower in degree which is arresto mayor in its maximum period to prision correccional in its medium period, whose range is from four (4) months and one (1) day to four (4) years and two (2) months, in accordance with Article 61(4)[92] of the Revised Penal Code. For the crime of robbery with homicide, Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads:

Art. 294. - Robbery with violence against or intimidation of persons. - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. x x x x

In convicting the appellants of the crime of robbery with homicide, the courts a quo appreciated treachery. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk to himself. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace.[93]

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In the present case, the evidence clearly shows that as Joemari, Bernardo and Robert entered the 7-Eleven Convenience Store, FO1 dela Cruz already positioned himself outside the stores glass door and prepared to shoot Nestor to ensure lack of resistance to their robbery plans. While Nestor was exchanging shots with FO1 dela Cruz, Diosdado peeped through the glass panel and fired at Nestor fatally hitting him. Under these facts, we find it clear that the appellants prepared to kill the victim in a manner that would ensure the execution of the crime or make it impossible or hard for the victim to defend himself; he was immediately shot at from outside the store, with a fallback position in case this first attempt to immobilize him failed. We rule, however, that the killing of the other victim, Elmer, was not attended by treachery as there was no evidence that Diosdado had resolved to shoot him prior to the moment of the killing, or that his death was the result of premeditation, calculation or reflection.

Considering the presence of the aggravating circumstance of treachery with no attendant mitigating circumstance, the trial court correctly sentenced the appellant to suffer the death penalty, conformably with Article 63, paragraph 1 of the Revised Penal Code.[94] In view, however, of the enactment on June 24, 2006 of Republic Act No. 9346 whichprohibits the imposition of death penalty in the Philippines, we reduce the penalty of death to reclusion perpetua without eligibility for parole.[95]

Civil Liability Criminal Case No. Q-99-85788

The RTC ordered the appellants to pay only P8,000.00, or the amount of the cash taken from the gasoline station. However, the evidence on record reveals that assorted Petron fuel products amounting to P7,000.00 were also taken. Hence, we order the appellants to likewise restitute these items or to pay their monetary value, if restitution cannot be made. Criminal Case No. Q-99-85787
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For the death of Elmer and Nestor, we sustain the award of P75,000.00 as civil indemnity ordered by the RTC and affirmed by the CA. The award for civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime. The amount of P75,000.00 as civil indemnity is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty. Though the penalty imposed on appellant was reduced to reclusion perpetua, the civil indemnity award remains at P75,000.00.[96] The award of P500,000.00 and P100,000.00 as moral damages to the heirs of Elmer and Nestor, respectively, is not in accordance with recent jurisprudence.[97] We accordingly reduce the amounts to P50,000.00. Indemnity for the loss of earning capacity is determinable under established jurisprudence based on the net earning capacity of the victim computed under the formula:
Net Earning Capacity = 2/3 x (80 less the age of the victim at the time of death) x (Gross Annual Income less the Reasonable and Necessary Living Expenses)

The records show that Elmers annual gross income was P136,800.00 computed from his monthly rate of P11,400.00. His reasonable and necessary living expenses are estimated at 50% of this gross income, leaving a balance of P68,400.00. His life expectancy, on the other hand, is assumed to be 2/3 of age 80 less 38, his age at the time of death. Applied to the above formula, these data yield the net earning capacity loss of P1,915,200.00. The RTC award must thus be increased to this amount. In the absence of supporting evidence, we cannot award loss of earning capacity to Nestors heirs. The award of exemplary damages is justified by the duly proven qualifying circumstance of treachery. The lower courts, however, awarded exemplary damages to the heirs of Elmer and Nestor in the amounts of P500,000.00

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and P50,000.00, respectively. To conform with prevailing jurisprudence, we reduce these amounts to P25,000.00 for each set of heirs.[98] The RTC awarded P138,070.00 as actual damages to the heirs of Elmer. It appears that out of this amount, only P61,635.00 was supported by receipts. The difference in the amounts was based solely on the submissions by Elmers widow. For one too be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and the best evidence obtainable by the injured party. [99] Hence, we reduce the awarded actual damages toP61,635.00. We note that the RTC did not award actual damages to the heirs of Nestor for lack of evidence. In People v. Abrazaldo,[100] we held that where the amount of the actual damages cannot be determined because of the absence of supporting receipts but entitlement is shown under the facts of the case, temperate damages in the amount of P25,000.00 may be awarded. Thus, in lieu of actual damages, we award temperate damages of P25,000.00 to the heirs of Nestor. We affirm the order of the RTC to restitute the amount of P84,060.00 to the 7-Eleven Convenience Store. This was the amount taken in the robbery as proven by evidence. We delete, however, the interest that the RTC imposed. WHEREFORE, in light of all the foregoing, We hereby AFFIRM the March 15, 2005 decision of the CA in CA-G.R. CR-H.C. No. 00570 with the followingMODIFICATIONS: I. In Criminal Case No. Q-99-85787

(1) the penalty of death imposed on the appellants is REDUCED to reclusion perpetua without eligibility for parole; (2) the moral damages awarded to the heirs of Elmer and Nestor are REDUCED to P50,000.00, respectively; (3) the exemplary damages awarded to the heirs of Elmer and Nestor are REDUCED to P25,000.00, respectively;
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(4) the actual damages awarded to the heirs of Elmer are REDUCED to P61,635.00; (5) the appellants are ORDERED to pay, jointly and severally, the heirs of Nestor P25,000.00 as temperate damages; (6) the indemnity for Elmers loss INCREASED to P1,915,200.00; and of earning capacity is

(7) the appellants are ORDERED to restitute the 7-Eleven Convenience Store in the amount of P84,060.00. II. In Criminal Case No. Q-99-85788

(1) the appellants are found GUILTY beyond reasonable doubt of simple robbery, instead of robbery in band, and each is SENTENCED to suffer the indeterminate penalty of four (4) months and one (1) day of arresto mayor maximum, as minimum, to six (6) years and one (1) day of prision mayor minimum, as maximum; and (2) the appellants are ORDERED to restitute to Petron Plaza, Inc. the assorted Petron products or to pay their monetary equivalent of P7,000.00, if restitution cannot be made; and the amount of P8,000.00 representing the stolen money. SO ORDERED.

ARTURO D. BRION Associate Justice WE CONCUR:

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REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

(On leave) TERESITA J. LEONARDO-DE CASTRO Associate Justice

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CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

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