G.R. No.

L-12155 February 2, 1917 should have resulted in the consummated crime and
THE UNITED STATES, plaintiff-appellee, voluntarily desisted from further acts. A crime cannot be
vs. held to be attempted unless the offender, after beginning
PROTASIO EDUAVE, defendant-appellant. the commission of the crime by overt acts, is prevented,
Manuel Roxas for appellant. Attorney-General Avancea against his will, by some outside cause from performing all
of the acts which should produce the crime. In other words,
for appellee.
to be an attempted crime the purpose of the offender must
MORELAND, J.:
be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has
We believe that the accused is guilty of frustrated murder.
performed all of the acts which should produce the crime
We are satisfied that there was an intent to kill in this case.
as a consequence, which acts it is his intention to perform.
A deadly weapon was used. The blow was directed toward
If he has performed all of the acts which should result in the
a vital part of the body. The aggressor stated his purpose to
consummation of the crime and voluntarily desists from
kill, thought he had killed, and threw the body into the
proceeding further, it can not be an attempt. The essential
bushes. When he gave himself up he declared that he had
element which distinguishes attempted from frustrated
killed the complainant.
felony is that, in the latter, there is no intervention of a
There was alevosia to qualify the crime as murder if death
foreign or extraneous cause or agency between the
had resulted. The accused rushed upon the girl suddenly
beginning of the commission of the crime and the moment
and struck her from behind, in part at least, with a sharp
when all of the acts have been performed which should
bolo, producing a frightful gash in the lumbar region and
result in the consummated crime; while in the former there
slightly to the side eight and one-half inches long and two
is such intervention and the offender does not arrive at the
inches deep, severing all of the muscles and tissues of that
point of performing all of the acts which should produce the
part.
crime. He is stopped short of that point by some cause apart
The motive of the crime was that the accused was incensed
from his voluntary desistance.
at the girl for the reason that she had theretofore charged
To put it in another way, in case of an attempt the offender
him criminally before the local officials with having raped
never passes the subjective phase of the offense. He is
her and with being the cause of her pregnancy. He was her
interrupted and compelled to desist by the intervention of
mother's querido and was living with her as such at the time
outside causes before the subjective phase is passed.
the crime here charged was committed.
On the other hand, in case of frustrated crimes the
That the accused is guilty of some crime is not denied. The
subjective phase is completely passed. Subjectively the
only question is the precise crime of which he should be
crime is complete. Nothing interrupted the offender while
convicted. It is contended, in the first place, that, if death
he was passing through the subjective phase. The crime,
has resulted, the crime would not have been murder but
however, is not consummated by reason of the intervention
homicide, and in the second place, that it is attempted and
of causes independent of the will of the offender. He did all
not frustrated homicide.
that was necessary to commit the crime. If the crime did not
As to the first contention, we are of the opinion that the
result as a consequence it was due to something beyond his
crime committed would have been murder if the girl had
control.
been killed. It is qualified by the circumstance of alevosia,
The subjective phase is that portion of the acts constituting
the accused making a sudden attack upon his victim from
the crime included between the act which begins the
the rear, or partly from the rear, and dealing her a terrible
commission of the crime and the last act performed by the
blow in the back and side with his bolo. Such an attack
offender which, with the prior acts, should result in the
necessitates the finding that it was made treacherously; and
consummated crime. From that time forward the phase is
that being so the crime would have been qualified as
objective. It may also be said to be that period occupied by
murder if death had resulted.
the acts of the offender over which he has control that
As to the second contention, we are of the opinion that the
period between the point where he begins and the points
crime was frustrated and not attempted murder. Article 3
where he voluntarily desists. If between these two points
of the Penal Code defines a frustrated felony as follows:
the offender is stopped by reason of any cause outside of
A felony is frustrated when the offender performs all the
his own voluntary desistance, the subjective phase has not
acts of execution which should produce the felony as a
been passed and it is an attempt. If he is not so stopped but
consequence, but which, nevertheless, do not produce it by
continues until he performs the last act, it is frustrated.
reason of causes independent of the will of the perpetrator.
That the case before us is frustrated is clear.
An attempted felony is defined thus:
The penalty should have been thirteen years of cadena
There is an attempt when the offender commences the
temporal there being neither aggravating nor mitigating
commission of the felony directly by overt acts, and does
circumstance. As so modified, the judgment is affirmed with
not perform all the acts of execution which constitute the
costs. So ordered.
felony by reason of some cause or accident other than his
Torres and Araullo, JJ., concur.
own voluntarily desistance.
Carson and Trent, JJ., concur in the result.
The crime cannot be attempted murder. This is clear from
the fact that the defendant performed all of the acts which
G. R. No. 160188 June 21, 2007 Abayan as soon as she got into her boarding house early
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner, morning after arriving from a party. She knew him as a
vs. frequent visitor of another boarder. She was dragged inside
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS the house up the stairs while his left arm wrapped around
NACHURA, respondents. her neck, and his right hand poking the Batangas knife to
her neck. Upon entering her room, he pushed her in and got
FACTS: her head hit on the wall. He immediately undressed while
While a security guard was manning his post at the open still holding the knife with one hand, and ordered her to do
parking area of a supermarket, he saw the accused, the same. He ordered her to lie down on the floor and then
Aristotel Valenzuela, hauling a push cart loaded with cases mounted her. He asked her to hold his penis and insert it in
of detergent and unloaded them where his co-accused, Jovy her vagina, while still poking the knife to her. She followed,
Calderon, was waiting. Valenzuela then returned inside the but the appellant could not fully penetrate her in such a
supermarket, and later emerged with more cartons of position. Next, he laid down on his back and commanded
detergent. Thereafter, Valenzuela hailed a taxi and started her to mount him, but he cannot fully penetrate her. When
loading the cartons inside. As the taxi was about to leave, Oritas hands were both flat on the floor, complainant
the security guard asked Valenzuela for the receipt of the escaped naked. She ran from room to room as appellant
merchandize. The accused reacted by fleeing on foot, but pursued her, and finally jumped out through a window. She
were subsequently apprehended at the scene. The trial went to the municipal building nearby and knocked on the
court convicted both Valenzuela and Calderon of the crime back door for there was no answer. When the door opened,
of consummated theft. Valenzuela appealed before the the policemen inside the building saw her crying and naked.
Court of Appeals, arguing that he should only be convicted She was given a jacket for covering by the first policeman
of frustrated theft since he was not able to freely dispose of who saw her. The policemen dashed to her boarding house
the articles stolen. The Court of Appeals affirmed the trial but failed to apprehend the accused. She was brought to a
courts decision, thus the Petition for Review was filed hospital for physical examination. Her PE revealed that she
before the Supreme Court. is still a virgin, with abrasions on the left breast, left and
ISSUE: right knees, and multiple pinpoint marks on her back,
Whether or not the crime of theft has a frustrated stage. among others. The trial court convicted the accused of
HELD: frustrated rape.
No. Article 6 of the Revised Penal Code provides that a
felony is consummated when all the elements necessary for
its execution and accomplishment are present. In the crime Crime Committed: Frustrated Rape
of theft, the following elements should be present: (1) that Issue: Whether or not the frustrated stage applies to the
there be taking of personal property; (2) that said property crime of rape?
belongs to another; (3) that the taking be done with intent
to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without Contention of the Accused: The accused contends that
the use of violence against or intimidation of persons or there is no crime of frustrated rape. The trial court erred in
force upon things. The Court held that theft is produced disregarding the substantial inconsistencies in the
when there is deprivation of personal property by one with testimonies of the witnesses; and the trial court erred in
intent to gain. Thus, it is immaterial that the offender is able declaring that the crime of frustrated rape was committed
or unable to freely dispose the property stolen since he has by the accused. He was not able to fully penetrate in her.
already committed all the acts of execution and the The accused also questions also the failure of the
deprivation from the owner has already ensued from such prosecution to present other witnesses to corroborate the
acts. Therefore, theft cannot have a frustrated stage, and allegations in the complaint. The accused used the Article
can only be attempted or consummated. 266 of the RPC to show that he is not guilty of frustrated
rape, and Article 6 to stress the difference of consummated,
frustrated, and attempted felonies.

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Contention of the People: The victim's testimony from the
vs. time she knocked on the door of the municipal building up
CEILITO ORITA alias "Lito," defendant-appellant. to the time she was brought to the hospital was
The Office of the Solicitor General for plaintiff-appellee. C. corroborated by Pat. Donceras. Rather than discredit the
testimonies of the prosecution witnesses, discrepancies on
Manalo for defendant-appellant.
minor details must be viewed as adding credence and
veracity to such spontaneous testimonies. The accused
Facts: Ceilito Orita was accused of frustrated rape by the
committed rape.
RTC. He appealed to the Court of Appeals for review. The
accused poke a balisong to college freshman Cristina
 stated that Borinaga had been heard to tell a companion: "I
Ruling: The decision of the RTC is hereby MODIFIED. The will stab this Mooney, who is an American brute." After the
accused Ceilito Orita is hereby found guilty beyond attack, Borinaga was also heard to say that he did not hit
reasonable doubt of the crime of rape [consummated] and the back of Mooney but only the back of the chair. But
sentenced to reclusion perpetua as well as to indemnify the Borinaga was persistent in his endeavor, and hardly ten
victim in the amount of P30,000.00. minutes after the first attack, he returned, knife in hand, to
renew it, but was unable to do so because Mooney and
Perpetua were then on their guard and turned a flashlight
Clearly, in the crime of rape, from the moment the offender on Borinaga, frightening him away. Again the same night,
has carnal knowledge of his victim he actually attains his Borinaga was overheard stating that he had missed his mark
purpose and, from that moment also all the essential and was unable to give another blow because of the
elements of the offense have been accomplished. Nothing flashlight. The point of the knife was subsequently, on
more is left to be done by the offender, because he has examination of the chair, found embedded in it.
performed the last act necessary to produce the crime. The foregoing occurrences gave rise to the prosecution of
Thus, the felony is consummated. [Art. 266 and Art. 6] Basilio Borinaga in the Court of First Instance of Leyte for
We have set the uniform rule that for the consummation of the crime of frustrated murder. The defense was alibi,
rape, perfect penetration is not essential. Any penetration which was not given credence. The accused was convicted
of the female organ by the male organ is sufficient. Entry of as charged, by Judge Ortiz, who sentenced him to fourteen
the labia or lips of the female organ, without rupture of the years, eight months, and one day of imprisonment,
hymen or laceration of the vagina is sufficient to warrant reclusion temporal, with the accessory penalties and the
conviction. costs.
The homicidal intent of the accused was plainly evidenced.
The attendant circumstances conclusively establish that
G.R. No. 33463 December 18, 1930 murder was in the heart and mind of the accused. More
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff- than mere menaces took place. The aggressor stated his
appellee, purpose, which was to kill, and apologized to his friends for
vs. not accomplishing that purpose. A deadly weapon was
BASILIO BORINAGA, defendant-appellant. used. The blow was directed treacherously toward vital
Paulo Jaro for appellant. Attorney-General Jaranilla for organs of the victim. The means used were entirely suitable
for accomplishment. The crime should, therefore, be
appellee.
qualified as murder because of the presence of the
circumstance of treachery.
MALCOM, J.:
The only debatable question, not referred to in the briefs,
Sometime prior to March 4, 1929, an American by the name
but which must be decided in order to dispose of the
of Harry H. Mooney, a resident of the municipality of
appeal, is: Do the facts constitute frustrated murder or
Calubian, Leyte, contracted with one Juan Lawaan for the
attempted murder within the meaning of article 3 of the
construction of a fish corral. Basilio Borinaga was associated
Penal Code? Although no exact counterpart to the facts at
with Lawaan in the construction of the corral. On the
bar has been found either in Spanish or Philippine
morning of March 4, 1929, Lawaan, with some of his men,
jurisprudence, a majority of the court answer the question
went to Mooney's shop and tried to collect from him the
propounded by stating that the crime committed was that
whole amount fixed by the contract, notwithstanding that
of frustrated murder. This is true notwithstanding the
only about two-thirds of the fish corral had been finished.
admitted fact that Mooney was not injured in the least.
As was to be expected, Mooney refused to pay the price
The essential condition of a frustrated crime, that the
agreed upon at that time. On hearing this reply of Mooney,
author perform all the acts of execution, attended the
Lawaan warned him that if he did not pay, something would
attack. Nothing remained to be done to accomplish the
happen to him, to which Mooney answered that if they
work of the assailant completely. The cause resulting in the
wanted to do something to him they should wait until after
failure of the attack arose by reason of forces independent
breakfast, Lawaan then left with his men, and Mooney,
of the will of the perpetrator. The assailant voluntarily
after partaking of his morning meal, returned to his shop.
desisted from further acts. What is known as the subjective
On the evening of the same day, Mooney was in the store
phase of the criminal act was passed. (U. S. vs. Eduave
of a neighbor by the name of Perpetua Najarro. He had
[1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil.,
taken a seat on a chair in front of the Perpetua, his back
967.)
being to the window. Mooney had not been there long
No superfine distinctions need be drawn in favor of that
when Perpetua saw Basilio Borinaga from the window strike
accused to establish a lesser crime than that of frustrated
with a knife at Mooney, but fortunately for the latter, the
murder, for the facts disclose a wanton disregard of the
knife lodged in the back of the chair on which Mooney was
sanctity of human life fully meriting the penalty imposed in
seated. Mooney fell from the chair as a result of the force
the trial court.
of the blow, but was not injured. Borinaga ran away
Based on foregoing considerations, the judgment appealed
towards the market place. Before this occurred, it should be
from will be affirmed, with the costs of this instance against kidnap by meansof force, one REYNALDO CABRERA
the appellant. GAURANO, a minor, while the latter was walking along
Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., Tandag Bridge at barangay Dawis, San Agustin Sur, then the
concur.lawphi1>net above-named accused carried away the said, Reynaldo
Cabrera Gaurano to barangay Awasian and detained, kept
and locked him in a room at the house of Pedro Ravelo, one
of the accused herein, from 7:00 o'clock in the evening, May
G.R. No. 78781-82 October 15, 1991 21, 1984 to 4:00 o'clock dawn, May 22, 1984, or a period of
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 10 hours under restraint and against the will of said minor,
vs. PEDRO RAVELO, JERRY RAVELO, BONIFACIO Reynaldo Cabrera Gaurano and that the above named
accused during the said period of kidnapping, maltreated
"PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS
and refused to release said Reynaldo Cabrera Gaurano, and
GUADALUPE AND HERMIE PAHIT, accused-appellants.
while on the same period of time at about 4:00 o'clock
The Solicitor General for plaintiff-appellee.
dawn, May 22, 1984, at barangay Awasian, Tandag, Surigao
Robert J. Landas for acussed-appellants.
del Sur and within the jurisdiction of this Honorable Court,
the above-named accused, Pedro Ravelo, Jerry Ravelo,
GUTIERREZ, JR., J.:p
Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas
The accused Pedro Ravelo, Bonifacio "Patyong" Padilla,
Guadalupe, Hermie Pahit, and Josen Ravelo, conspiring,
Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal
confederating, and mutually helping each other, armed
the two (2) judgments of the Regional Trial Court of Tandag,
with a pistol, armalites, and carbines, with intent to kill, with
Surigao del Sur, Branch 27, which convicted them of murder
treachery and evident premeditation did, then and there
of one Reynaldo Cabrera Gaurano and of frustrated murder
wilfully, unlawfully and feloniously, assault, attack, cut,
of Joey Lugatiman.
slash, and burn, the said Reynaldo Cabrera Guarano, hitting
In the murder case (Criminal Case No. 1187), each of the
and inflicting upon the latter, the following wounds or
accused was sentenced to serve the penalty of reclusion
injuries:
perpetua and to severally pay an indemnity of P25,000.00
1. Blisters formation noted all over the body reddish in
to the mother of the victim. In the frustrated murder case
color, which easily peel off on pressure; containing clear
(Criminal Case No. 1194), each of them was sentenced to
fluids; with hemorrhagic reaction beneath blisters;
serve the penalty of imprisonment ranging from eight (8)
2. Swollen face with contusion and hematoma formation;
years and one (1) day of prision mayor as minimum to ten
loosening of hair notes; right ear missing with circular
(10) years of prision mayor as maximum.
incised wound around;
The accused were all charged with kidnapping with murder
3. Incised wound 24 cm. length around the neck cutting the
and kidnapping with frustrated murder. However, the trial
esophagus, pharynx, arteries and veins; up to the 2nd
court found accused-appellants guilty only of murder and
cervical bone in depth;
frustrated murder as convicted. The accused Josen Ravelo
4. Contusions and hematomas noted anterior chest wall,
and Jerry Ravelo are still at large.
abdomen and at the back; upper and lower extremeties of
The present petition was originally one that sought the
different sizes and forms. (Rollo, pp. 8-9)
issuance of a writ of habeas corpus. The Court instead
In Criminal Case No. 1194, they werecharged with
resolved to treat it as an appeal in view of the near capital
kidnapping with frustrated murder committed as follows:
nature of the crimes for which the appellants were
That on or about 1:00 o'clock in the morning on May 22,
convicted.
1984 in barangay Awasian, municipality of Tandag, province
The accused-appellants are all membersof the Civilian
of Surigao del Sur, Philippines and within the jurisdiction of
Home Defense Force (CHDF) stationed at a checkpoint near
this Honorable Court, the above named accused PEDRO
the airport at Awasian in Mabua, Tandag,Surigao del Sur.
RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO
The prosecution alleged that they stopped the two (2)
ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND JOSEN
victims for questioning on the suspicion that the latter were
RAVELO, conspiring, confederating and mutually aiding one
insurgents or members of the New People's Army. (NPA).
another armed with the deadly weapons such as pistols,
In Criminal Case No. 1187, the accused-appellants were
armalite and carbine, did then and there wilfully, unlawfully
charged with having committed kidnapping with murder in
and feloniously by means of force and at gun point stop the
the following manner:
hauler truck of the South Sea Merchant Company which
That at approximately 6:30 o'clock in the evening, May 21,
was on the way to Tandag, Surigao del Sur from sitio
1984, in Barangay Dawis, San Agustin Sur, municipality of
Lumbayagan, Barangay Maticdom, municipality of Tandag,
Tandag, province of Surigao del Sur, Philippines and within
Surigao del Sur and kidnap one JOEY LUGATIMAN, who is on
the jurisdiction of this Honorable Court, the above-named
board the said hauler truck by forcibly taking said Joey
accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO
Lugatiman and carry him to the house of accused Pedro
`Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE,
Ravelo then to the Airborne Headquarters at Mabua,
HERMIE PAHIT and JOSEN RAVELO, conspiring,
Tandag, Surigao del Sur, and while thereat and in pursuance
confederating, and mutually helping each other did, then
of their conspiracy, with intent to kill, with evident
and there, wilfully, unlawfully and feloniously take, pick-up,
premeditation and treachery and by taking advantage of over a fire. He saw the accused Jerry Ravelo placed fire on
their superior strength being armed with deadly weapon the hanging person and the accused Romeo Aspirin placed
did then and there wilfully, unlawfully and feloniously a burning torch made of dried coconut leaves at the back of
assault, by hitting and inflicting upon the latter the the hanging person. The man hanging was not known to
following wounds or injuries: him. The man hanged was also surrounded by Pedro Ravelo,
1. Small abrasion and hematoma, both wrist and left ankle; Josen Ravelo, Nicolas Guadalupe, Hermie Pahit and
2. Multiple small abrasions, chest and right neck and right Bonifacio Padilla. For five minutes watching, he saw the
ankle; clothing and body burned, he heard the moanings of the
3. Multiple small abrasions and small hematoma, back; person and heard the laughters of the accused. After
4. Abrasion, upper left lips. (Rollo, pp.18-19) witnessing that horrible incident he went home hurriedly.
The trial court based its findings on evidence presented by On cross examination he further stated that he saw for the
the prosecution at the trial proper which commenced first time the man already hanging under a fire (sic).
several months after the informations were filed. The Witness Joey Lugatiman, 22 years old and resident of Dawis,
prosecution evidence in Criminal Case No. 1187 are quoted Tandag, testifies that all the accused are known to him for
from the judgment, thus: a long time. On May 21, 1984, with ten companions they
Witness Edilberto Salazar, 17 years old, student and went to a place in the interior called Maticdum, Tandag,
resident of Tandag, testified that he knew all the accused Surigao del Sur. After five hours stay, he, together with his
Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas companions left Maticdum past midnight for Tandag on a
Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in loggingtruck. As soon as they passed by the airport, they
the afternoon, he was with a certain Diego Gallardo and were stopped by the accused and were told to go down
Reynaldo Cabrera Gaurano walking from Dawis to from the truck for questioning. He was brought to the house
Dagocdoc to attend a dance. The dance not having began of the accused Pedro Ravelo near the checkpoint. He was
being too early yet, they decided to go back to Dawis. On asked if he was Joey Lugatiman and if he knew Reynaldo
their way back while crossing the Tandag bridge across the Gaurano. There at the headquarters, he was asked if he was
Tandag river, the accused Pedro Ravelo, Jerry Ravelo, Josen an NPA. For almost an hour stay at the headquarters he was
Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and boxed, kicked and manhandled by Pedro Ravelo and by the
Nicolas Guadalupe stopped them by pointing their guns. He other accused with the use of their guns until he became
and Diego Gallardo ran away towards a group of old junk almost unconscious. Then, from the headquarters at Mabua
tractors and hid there. He saw Reynaldo Gaurano chased by on that early dawn he was brought again back in the same
all the accused. He saw Reynaldo Gaurano ran up to the pick-up to Awasian airport, to the house of Pedro Ravelo
house of a certain Fernando Cortes which was just opposite and then to the house of Bonifacio Padilla. Before
the tractors they were hiding, and which was just across the proceeding to the house of Bonifacio Padilla, he saw his
road in front of the house of Fernando Cortes. Reynaldo friend Reynaldo Gaurano, one meter away, already weak
Gaurano was caught up in the house by Jerry Ravelo, with bruises on his face, hands tied at the back and with a
Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo gag around the mouth, moving as if in the act of trying to
Gaurano forced and dragged down to a waiting pick-up on free himself, with a bleeding mouth. When he reached the
the road by Jerry Ravelo, Bonifacio Padilla and Nicolas house of Bonifacio Padilla, he was chained and tied to the
Guadalupe. Reynaldo Gaurano was loaded on the pick-up wall near the window of the house. Alone, he peeped
owned and driven by the accused Pedro Ravelo. All the through the window and saw Reynaldo Gaurano hanging up
accused, together with Reynaldo Gaurano rode on the pick- the mango tree with fire below him. He heard the moanings
up towards the Tandag airport at Awasian. After Reynaldo of Reynaldo Gaurano while hanging from the mango tree
Gaurano disappeared, he and Diego Gallardo went to the thirty meters away from the window of the house of
police and reported the matter that Reynaldo Gaurano was Bonifacio Padilla. He saw Pedro Ravelo and Josen Ravelo set
brought by the accused to the airport. fire on the body of Reynaldo Gaurano. At 5:00 o'clock a.m.
On May 23, 1984, he was with the group who exhumed the May 22, 1984, when alone, after being told that he would
body of Reynaldo Gaurano under a mango tree near the be killed at 9:00 o'clock in the evening at the Awasian
Tandag airport and pointed to the investigator that that was bridge, he escaped by being able to untie himself at 10:00
the body of Reynaldo Gaurano with blisters, without ear o'clock in the morning of May 22, 1984. He reported what
and a big wound on the neck. Placed on the mat the cadaver happened to him and to Reynaldo Gaurano, to his parents
was brought to the Mata Funeral Parlor at Tandag, Surigao and then to the police authorities and later submitted for
del Sur in that morning of May 23, 1984. physical examination on that day, May 22, 1984 and finally
Witness Francisco Villasis, 48 years old, farmer and resident was investigated on May 23, 1984 in connection with this
of Awasian, testified that he knew very well all the accused case. On cross examination he said that he knew all the
and that he personally saw them in the early dawn of May accused. He knew that all the accused are members of the
22, 1984. He declared that he was at the Awasian creek near CHDF.
a mango tree catching crabs with the use of a "panggal", a Witness Zosima Gaurano, 46 years old, market vendor, a
bamboo knitted trap. From a distance of around twenty native of Tandag, testified that she is the mother of
meters away, he saw a man hanging from the mango tree Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu
City on April 12, 1984 for Tandag. On May 22, 1984 she Tandag to look for and inspect the place where a certain
received a telegram from her sister Remedios Fernandez Reynaldo Gaurano was kidnapped. Under a mango tree and
that her son Reynaldo is dead. She left for Tandag upon about 25 meters near the house of Bonifacio Padilla the
receipt of the telegram and arrived at Tandag on May 24, group recovered a P.25 coin, a small comb, two zippers and
1984. Upon her arrival she went to the Mata Funeral Parlor burned pieces ofcloth and burned coconut leaves, together
and then she found the dead body of her son Reynaldo with new excavated soil. Further search under the mango
Gaurano inside the coffin and she saw many parts of the tree led to the very place where the body of Reynaldo
body of her son with burns. She suffered moral damages Gaurano was buried. At around 10:00 o'clock a.m., May 23,
and other expenses to the tune of P64,350.00. 1984, they exhumed the dead body which was buried under
Witness Remedios Cabrera Fernandez, widow, meat vendor a depth of around one meter under the mango tree which
and resident of Tandag testified that Reynaldo Gaurano is was around 25 meters from the house of Bonifacio Padilla
her nephew because his mother Zosima is her younger and around 150 meters from the house of Pedro Ravelo.
sister. Her nephew Reynaldo Gaurano was here in Tandag The cadaver was first Identified to be that of Reynaldo
on vacation. On May 20, 1984, with two companions, Diego Gaurano by Edilberto Salazar. A photographer was called
Gallardo and Edilberto Salazar, he failed to go home to the and pictures were taken of the dead body of Reynaldo
house of her sister. After the second day, May 22, 1984 at Gaurano from the hole and then the body was brought to
around 5:00 o'clock in the afternoon Edilberto Salazar and the surface and placed on the mat. Not one of the accused
Diego Gallardo informed her that Reynaldo Gaurano was was present during the period while the group was
kidnapped by Pedro Ravelo and his men. The message was searching and exhuming the body of Reynaldo Gaurano.
relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. The body of Reynaldo Gaurano shows signs of burns and
On the following day, May 23, 1984, Col. Hermosa, with several injuries, and was finally brought to the funeral
other officers inspected the house of Pedro Ravelo and the parlor at Tandag.
nearby surroundings at Awasian. She was made to Identify As shown by the evidence, Reynaldo Cabrera Gaurano died
an exhumed body at the back of the house of Pedro Ravelo on May 22, 1984 at Awasian, Tandag, Surigao del Sur. His
near the Mango tree. She saw the dead body of her nephew death was the result of the shock secondary to the wound
Reynaldo Gaurano without an ear, the neck was almost cut, around the neck, Exhibit "A", and occurred while he was
entire body with blisters, and naked. His body was pictured hanged by the accused with hands tied to a branch of a
and later on brought to the Mata Funeral Parlor at Tandag. mango tree. Sufferings of pains, through his moanings,
She requested Dr. Romeo delos Reyes of the Tandag were augmented and aggravated by the tortures inflicted as
Provincial Hospital to conduct an autopsy and after which vividly seen through the removal of the right ear, the wound
the dead body of Reynaldo Gaurano was embalmed to around the neck and placing of fires on his body, and the
await the arrival of the mother from Cebu City. fire below his feet. Not only were these acts brutal and cruel
Witness Dr. Romeo delos Reyes, a senior Resident physician but also heartless and savage acts of the accused, devoid of
of the Tandag Provincial Hospital testified that he an iota of sympathy, who, instead, were happy and
conducted an autopsy on the dead body of a certain delighted to see the miseries suffered by their victim.
Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. Further, it was shown that they helped one another or
He found blisters formation caused by fire burns conspired with one another in torturing with the use of their
throughout; the body was reddish and skin peels off easily; firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16)
swollen face, hematoma, contusion, losing of hair, wound Meanwhile, the prosecution evidence in Criminal Case No.
around the neck; and these injuries could have been 1194 are as follows:
inflicted 36 to 48 hours before the autopsy. Death The evidence of the prosecution consisted of the
certificate, Exhibit "B" was issued. The burns and the testimonies of the witnesses and the Medical Certificate.
injuries above stated were suffered before Reynaldo Witness Joey Lugatiman, 22 years old, resident of Dawis,
Gaurano died. Tandag, Surigao del Sur testified that he personally knew all
Witness Roberto Awa, a photographer of the Similar Studio the accused for quite a long time. On May 21, 1984 with ten
who, for fifteen years, is a photographer at Tandag, testified companions he went to a place called Maticdom, Tandag,
that he took the pictures of a dead man inside a hole upon Surigao del Sur. After staying at Maticdum for five hours he
orders of Col. Hermosa at Awasian near the airport. He took went home on board on a cargo truck. On the way near the
pictures as shown in Exhibit "C", "C-1"; he took 8 positions Tandag Airport they were stopped by all the accused. They,
of the dead body. While yet inside the holeexhibit "D" and including himself, were ordered by the accused Pedro
as shown in Exhibit "E" and "F", that was the dead body of Ravelo to come down from the truck. Then he was brought
Reynaldo Gaurano near the mango tree; Exhibit "G", while to the nearby house of Pedro Ravelo and there he was
the cadaver was inside the hole and Exhibit "H" is the asked if he was Joey Lugatiman and if he knows Reynaldo
picture while the body was lying on the mat. Gaurano.
Witness Cresenciano Rulona, Police Investigator of the His companions were ordered to proceed to Tandag while
Tandag Police Force, testified that at around 8:00 o'clock in he was loaded on a service pick up driven by the accused
the morning of May 23, 1984, he was the assistant team Pedro Ravelo. He was brought by all the accused to the
leader of the group that proceeded to Tambacan, Awasian, Headquarters of the Airborne Company at Mabua, Tandag,
Surigao del Sur. In the Headquarters of the Airborne, he was carabao near the house of Bonifacio Padilla he was
interrogated if he was an NPA. After hearing his denial of surprised to see Joey Lugatiman, wearing blue t-shirt and a
being an NPA he was boxed, kicked and pistol whipped by jogging pants jumped out of the window of the house of
the accused Pedro Ravelo and his co-accused. He was Bonifacio Padilla, twelve meters away from him. He saw
manhandled by the accused with the use of the firearms for Joey Lugatiman ran towards the nipa palm then ran towards
almost an hour. Later he was brought back again to Awasian the airport. He knew Joey Lugatiman because during the
Airport to the house of Pedro Ravell (should be Ravelo) then barrio fiesta Joey used to stay in his house at Awasian.
to the house of Bonifacio Padilla. But before proceeding to Witness Bernardo Frias, 21 years old, farmer and resident
the house of Bonifacio Padilla, he saw his friend Reynaldo of Awasian, testified that on May 22, 1984 he was in
Gaurano one meter away, already weak with bruises on the Maticdom together with Joey Lugatiman, Miguel, Gregorio
face, hands, tied at the back and gagged around the mouth. Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio
Reynaldo Gaurano could not talk and he was moving in the Estoya, the driver and a helper from 5:00 o'clock in the
act to free himself and with a bleeding mouth. Upon arriving afternoon and started to go home at around 11:00 o'clock
in the house of Bonifacio Padilla he was chained and p.m. for Tandag. On the way, near the airport, he, together
hogtied near the open window by the companions of Pedro with his companions on a logging truck was stopped by the
Ravelo. Not long after, through the window, he saw accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie
Reynaldo Gaurano hanging up the mango tree and a big fire Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas
was set on the ground. He heard the groaning and moaning Guadalupe. They were ordered to come down and were
of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo made to identify each other. He saw Bonifacio Padilla
setting fire on the right and left side of Reynaldo Gaurano dragged Joey Lugatiman to the house of Pedro Ravelo. It
with the use of dried coconut leaves. He saw all the accused was Pedro Ravelo who later brought Joey Lugatiman to the
surrounding and watching the hanging and burning of pick-up. They were ordered to board on the truck except
Reynaldo Gaurano. It was Pedro Ravelo who cut the right Joey Lugatiman who loaded in the pick-up driven by Pedro
ear and who also slashed the neck of Reynaldo Gaurano. He Ravelo. Then, the accused Bonifacio Padilla ordered the
could not shout because he was afraid. While lying down group to proceed to Tandag while Joey Lugatiman was left
after he saw the horrible incident he fell asleep. At around behind. He reported to the police authorities that his
5:00 o'clock in the morning of May 22, 1984 he awoke and companion Joey Lugatiman was being held under arrest at
saw Bonifacio Padilla bringing nylon line with which he was Awasian and that he knows all the accused before this
tied to a piece of wood; while Nicolas Gaudalupe gagged incident. (Rollo, pp. 21-24)
him, and he was blind folded by Hermie Pahit. While the The accused-appellants were not able to or did not present
three were about to leave him behind, he heard them evidence on their behalf, nor were they themselves able to
saying that they will kill him at the Awasian bridge at 9:00 confront the prosecution witnesses who testified against
o'clock in the evening of May 22, 1984. When he was left them except through a counsel de oficio appointed by the
alone in that house he successfully freed himself. He trial judge to represent them namely, Atty. Pretextato
jumped out of the window and escaped via the nipa palm Montenegro and Atty. Florito Cuartero, in place of their
grove. As consequences of the manhandling of the accused, defense counsel, Atty. Eliseo Cruz.
he suffered several bruises on the breast, at the back and The continued absence of Atty. Cruz, a Quezon City-based
his mouth. He was physically examined by a doctor in the lawyer who perennially made requests for postponements
Provincial Hospital on that day, Exhibit "A", "A-1" and "A-2" by telegrams stating his inability to appear for health
which is Exhibit "1" and "2", "1-A", and "1-B" for the reasons, led to the refusal by the accused-appellants to be
defense. On cross examination, he testified that he escaped present at the trial. The accused-appellants alleged that
at around 10:00 o'clock in the morning from the house of Atty. Cruz left an instruction that they will not submit
Bonifacio Padilla, and that he knew all the accused to be themselves to trial without him.
members of the Civilian Home Defense Force (CHDF). He The accused-appellants now maintain that they did not
testified that the house of Pedro Ravelo and the house of "waive" their right to be present during the trial because
Bonifacio Padilla is around one hundred (100) meters away their refusal was not done by their own free will but only in
from each other. accordance with their lawyer's instructions.
Witness Dr. Petronila Montero testified that she is a The Court notes that Atty. Cruz resorted to several other
resident physician of the Provincial Hospital, and on May 22, delaying tactics aside from sending telegraphic notes
1984 she examined Joey Lugatiman and she issued a requesting for postponements. He filed a petition for
medical certificate, Exhibit "A". All her findings were placed change of place of detention and venue for trial before this
down in Exhibit "A". Upon being cross-examined, she Court, which denied it; a first petition for habeas corpus on
testified that the hematomas, small abrasions will not cause the ground that they should be tried by a military tribunal,
death. When she examined Joey Lugatiman, she found that which petition was denied; and a motion for new trial on
he was weak and haggard caused by the injuries mentioned the ground of lack of due process due to improper waiver
in Exhibit "A". of presence at the trial. This motion for new trial was
Witness Emilio Espinoza, 68 years old, farmer, resident of granted to give the accused-appellants a last chance to be
Awasian, Tandag testified that while he was tendering his heard and be present. Still, the defense counsel failed to
appear and so did the appellants. victim is not placed in a position to defend himself.
In their second petition for habeas corpus which we now However, after the performance of the last act necessary,
treat as an appeal, Atty. Cruz failed to file the required brief. or after the subjective phase of the criminal act was passed,
The Court then appointed a new counsel de oficio for the the crime is not produced by reason of forces outside of the
accused-appellants. will of the aggressor. (People v. Borinaga, 55 Phil., 433
Accused-appellants raised the following alleged errors of [1930]).
the trial court: Tying the victim's left leg with a chain on a 2" by 3" piece of
I wood and leaving him inside the house of accused-
THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS appellant, Bonifacio Padilla are not acts that would result in
ARE GUILTY OF FRUSTRATED MURDER HAS NO BASIS IN death. These were done only to restrain his liberty of
FACT AND IN LAW. movement for the period of time the accused-appellants
II were busy hanging and burning the body of Reynaldo
THE LOWER COURT ERRED IN CONCLUDING THAT Gaurano some thirty (30) meters away from where
ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE Lugatiman was left. Also, tying Lugatiman's hands behind
PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE his back and his whole body to the wall, and blindfolding
TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10- him were for the purpose of restraining his liberty until the
11; Rollo, p. 144) evening of May 22, 1984 came.
It is contended that there can be no frustrated murder Accused-appellants also maintain that the injuries
committed in Criminal Case No. 1194 absent any proof of sustained by Lugatiman from the manhandling at the
intent to kill, which is an essential element of the offense of Headquarters of the Airborne Company were not fatal as
frustrated murder. stated by the prosecution's expert witness, Dr. Petronila
Appellants aver that the trial court erroneously based its Montero; hence, there can be no frustrated murder. This is
conclusion on the fact that when Lugatiman was tied and supported by the records (Exhibit "A-2", Records of Criminal
gagged, the latter heard one of the accused-appellants Case No. 1194, p. 21; TSN, June 4, 1985, pp. 24-26)
utter that they would kill him at Awasianbridge. Lugatiman did not lose consciousness as a result of the
The trial court made the following inference which we find blows he sustained (TSN, May 31, 1985, p. 49, Record, p.
to be erroneous: 115)
To this Court the real intention to kill Joey Lugatiman was It is worthy to note that the trial court, in concluding the
made manifest at 5:00 in the morning of May 22, 1984 existence of frustrated murder, did not even use as its basis,
when the accused Bonifacio Padilla together with Hermie the manhandling of Lugatiman. The trial court in fact
Pahit and Nicolas Guadalupe tied his hands to the wall with concedes that the real purpose of the manhandling or
a nylon line and gagged him; and when the accused said torture was to have Lugatiman admit and confess his being
they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at a member of the New People's Army (NPA) and the
Awasian bridge. These final and parting words uttered to activities of the NPA's. It was the statement made by the
Joey Lugatiman eloquently expressed intent to kill. Killing, accused-appellant NicolasGuadalupe that Lugatiman would
however, was not consummated because Joey Lugatiman later be killed, that was the basis of the court for inferring
was able to escape at around 10:00 o'clock in the morning the commission of frustrated murder. According to the trial
of May 22, 1984. (Rollo, p. 25) court, murder was not committed because of the timely
The facts and evidence on record do not show anything escape. Escape from the aggressors cannot establish
from which intent to kill could be deduced to warrant a frustrated murder without first showing that the aggressors
conviction for frustrated murder. A mere statement by the intended to kill and that they really attacked the victim.
accused stating that Lugatiman would be killed is not Under the circumstances, accused-appellants could not
sufficient proof of intent to kill to convict a person of even be convicted of an attempt to commit murder. There
frustrated murder. was no commencement of the criminal act by over acts
In a crime of murder or an attempt or frustration thereof, which have a direct connection with the crime of murder
the offender must have the intent or the actual design to intended to be committed. As stated earlier the
kill (US v. Burns, 41 Phil. 418 [1921]) which must be manhandling, express statement of purpose, and the
manifested by external acts. For there to be frustrated restraint of liberty were not such as to put the victim in
murder, the offender must perform all the acts of execution danger of an imminent death. The small abrasions and
that would produce the felony as a consequence, but the hematomas of the victim resulting from the torture by the
felony is not thereby produced by reason of causes accused were not mortal. After the victim was restrained of
independent of the will of the perpetrator. A verbal his liberty immediately before Gaurano was killed, he was
expression that Lugatiman would be killed sixteen (16) able to watch how Gaurano was burned hanging upside
hours after such statement was made is not sufficient to down from a mango tree near the Awasian bridge. Due to
show an actual design to perpetrate the act. Intent must be his fatigue and extreme weakness, he was even able to lie
shown not only by a statement by the aggressor of the down and sleep after looking at the horrible incident. (TSN,
purpose to kill, but also by the execution of all acts and the May 31, 1985, pp. 22-23)
use of means necessary to deliver a fatal blow while the During the long period of time Lugatiman was informed that
"he would be killed" and was left behind (5:00 in the May 8, 1988 resolution, we outlined in detail the reasons
morning) until he was able to escape at 10:00 in the for our finding of dilatory tactics on the part of the
morning, it was not certain whether or not appellants would petitioners and their counsel and why the lower court
really kill him as they did to Gaurano. Anything could have correctly proceeded with trial.
happened in between. There was no distinct evidence to After stating the various incidents characterizing the initial
prove that the accused appellants were really decided on proceedings and the trial of the case, we stated:
killing him at the time specified. xxx xxx xxx
The records show that Lugatiman himself was not sure that The petitioners are members of the Civilian Home Defense
the accused-appellants would pursue it. Force (CHDF) who have been convicted of murder and
The uncertainty can be seen from Lugatiman's testimony on frustrated murder committed under particularly brutal
cross-examination, thus: circumstances. A notice of appeal was filed thirty-nine (39)
xxx xxx xxx days from the promulgation of judgment and was clearly
Q. Why did you say a while ago that "I will be the next one out of time. A motion for new trial was also characterized
to be hung and to be killed by Ravelo and his group"? by plainly dilatory tactics in its handling.
A. I was just afraid that I will be the next. Were it not for the effectivity of the present Constitution,
Q. Now, when you saw these persons burning the body of there is a likelihood that the petitioners would have been
Reynaldo, did you hear also what the people around sentenced to capital punishment. The near-capital nature of
Reynaldo were talking of? the crimes for which the petitioners were convicted and the
A. What I heard was their laughing and the moaning. rather unusual circumstances surrounding the trial of the
Q. And you heard their laughing? two cases and the failure to appeal, however, call for a
A. Yes. closer look at the judgments of conviction. This can best be
Q. Why did you know that they were laughing? done by calling for all the records of the case including the
A. Because I heard it. transcripts of stenographic notes. If, after the consideration
Q. Their appearance you can see? of the cases as appealed cases, there appears to have been
A. Their appearance is clear because there is a big light. a miscarriage of justice or a need for further evidence, the
Q. And your name was never mentioned that you will be the case can always be remanded for further proceedings as
next to be hung? instructed. Otherwise, the judgment will have to be
A. I did not hear them saying. affirmed or reversed on the basis of all the present records.
Q. There were also no other people like you who were (Rollo, p. 73)
apprehended or being detained by Pedro Ravelo and his For purposes of this decision, we emphasize that in the
group? morning of May 30, 1985, the date of the first day of the
A. I did not see. trial proper, or after five (5) postponements, the accused-
Q. You only saw Reynaldo Gaurano, including yourself appellants came to court without their counsel of record,
detained by Ravelo and his group on May 21, in the early Atty. Eliseo Cruz. Atty. Cruz allegedly sent a telegram
morning rather, on May 22, 1984 dawn? through one Mrs. Delfina Cruz indicating that he met a
A. Yes. (TSN, May 31, 1985, pp. 54-55) vehicular accident and requesting a resetting of the hearing
After a review of the allegations of the information in date. The several instances in which the Court received
Criminal Case No. 1194 and the evidence received and similar telegrams including one where he claimed a "very
admitted by the court a quo, the Court is of the view that sick heart ailment" led the trial court to doubt and disregard
accused-appellants are not guilty of frustrated murder but the last request of the defense. The court had earlier
only the crime of slight physical injuries. There is evidence categorically stated that it wouldentertain no further
to show that the several small abrasions on the chest, right requests for postponement.
neck and right ankle of Lugatiman as well as the hematoma The court, in deciding to push through with the trial at 2:00
at his back was due to the hitting by a rough, hard object in the afternoon of May 30, 1988 and in appointing two (2)
like a butt of a gun. The prosecution witness, Dr. Montero counsels de oficio for the accused-appellants did not only
testified that the injuries were inflicted by some other consider the right of the accused to speedy trial which
persons aside from the victim, and needed medical should not be abused by the defense by willful delays, but
treatment of four (4) to five (5) days to avoid infection. more so, the rights of public justice. (Mercado v. Santos, 66
(TSN, June 4, 1985, pp. 21-26) Phil. 215 [1938]). Despite their new counsels who appeared
Accused-appellants aver that there was no deliberate to be doing their best, the accused-appellants insisted on
waiver on their part of their right to be present at the absenting themselves stating that they cannot and would
scheduled hearing dates because they "did not appear to not appear without Atty. Cruz and allegedly for fear that
know the import of their decision not to appear in the they would be harassed by members of the New People's
trials." According to them, the judge should have explained Army. At this point, the Court informed them of (1) the
to them the meaning and the consequences of their importance of the appointment of competent counsels de
decision not to appear. oficio considering the gravity of the offense and the
The issue of due process had been fully considered by this difficulty of the questions that may arise during the trial;
Court when we acted on the habeas corpus petition. In our and (2) the fact that there is no legal obstacle to proceeding
with the reception of prosecution evidence in their (2) To serve the penalty of arresto menor in Criminal Case
absence. No. 1194.
Absence at the trial did not deprive the accused-appellants SO ORDERED.
of cross-examination except the right to personally confront Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ.,
the prosecution witnesses face to face. Notwithstanding concur.
their absence, they were represented by the counsels de
oficio who took turns in cross-examining each of the
prosecution witnesses. G.R. Nos. 102407-08 March 26, 2001
Accused-appellants also maintain that they did not actually PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
refuse to present evidence on their behalf. They argued that vs.
the counsels de oficio misapprehended a telegram of Atty. EDMUNDO LUCERO y GACETA, accused-appellant.
Cruz which stated that he (Atty. Cruz) cannot attend the YNARES-SANTIAGO, J.:
June 20 and 21, 1985 trial because he had a prior Four criminal informations were filed against accused-
engagement in another court in Ilocos Sur on those dates. appellant Edmundo Lucero before the Regional Trial Court
They also contend that their failure to appear and present of Quezon City, Branch 88. In Criminal Case No. Q-89-5349,
evidence was "simply because of their misplaced trust and accused-appellant was charged with murder for the death
obedience to the instructions of their counsel, Atty. Eliseo of Fernando Jabol, while in Criminal Cases Nos. Q-89-5350,
Cruz, whose negligence and lack of vigilance in the handling Q-89-5351 and Q-89-5352, respectively, he was charged
of the cases, despite the seriousness of the crimes charged, with Frustrated Murder.
had caused injustice to the accused-appellants." They ask The facts, as found by the trial court, are summarized as
this Court to take their case as an exception to the rule that follows:
a client shall suffer the consequences of negligence or At around 4:00 o'clock in the afternoon of July 11, 1989,
incompetence of his counsel. brothers Fernando and Joel Jabol, Alex Tano and Ferdinand
The actual desire of the accused-appellants to testify and Alvero, together with others, were in the house of Domingo
present other evidence is not manifest from a thorough Lipas located in Kalayaan, Gao, Quezon City. They were
review of the records of the case. If it were true that they seated at a table drinking rhum. It was the birthday of
wanted to present evidence, they should have taken Domingo's daughter, Eva Lipas. Suddenly, accused-
advantage of the opportunity to be present, to be heard and appellant barged into the house and, from two and a half to
to testify in open court with the assistance of their three meters away, fired six shots using his .38 caliber
appointed lawyers. As a matter of fact, they were able to revolver.
convince the lower court to grant them a chance to have a The first shot was aimed at Fernando Jabol and hit him on
new trial. However, they still failed to make use of their last the waist and right thigh. The second shot hit Alex Tano in
opportunity. They cannot now claim that they were denied the abdomen. Joel Jabol raised both his arms in surrender,
their right to be present and to present evidence. This Court and the third shot hit his right ribcage. The fourth shot was
upholds the lower court's position that the accused- again aimed at Fernando. while the fifth hit Ferdinand
appellants were given more than generous time and Alvero below his right eye. The sixth shot was fired in the
opportunity to exercise their constitutional rights which air. All the victims jumped out of the window and
should not be overemphasized at the expense of public proceeded to the East Avenue Medical Center for
policy. treatment.
The circumstances of the case do not preclude the It appeared that accused-appellant was the victims' barrio
application of the rule that a client is bound by the acts of mate in Malagicay, Abuyog, Leyte, and that he shot them
his counsel who represents him. Nevertheless, at the time because he suspected them of stealing the engine of his
when the lower court appointed the de oficio counsels, the banca in Leyte.1
court already had ample notice of the futility of waiting for At the East Avenue Medical Center, Fernando Jabol was
Atty. Cruz to come and appear for the defense. From the pronounced dead on arrival, due to gunshot wounds.2
time the accused-appellants were represented by Atty. Patrolman Rolando Maniquiz of the Quezon City Police
Montenegro and Atty. Cuartero, their decision not to attend Force, who was assigned to conduct the investigation, went
the trial nor to present evidence is clearly a product of their to the East Avenue Medical Center to interview the victims,
own free will. but they were hesitant to talk. He then proceeded to the
WHEREFORE, the appealed judgments in Criminal Cases scene of the crime where he learned from a witness that
Nos. 1187 and 1194 are hereby, respectively, affirmed and accused-appellant was the gunman. He went back to the
modified as to the crime proven. The accused-appellants hospital, where Ferdinand Alvero finally narrated to him
PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO everything that happened. Further investigation disclosed
ASPIRIN, NICOLAS GUADALUPE and HERMIE PAHIT are that accused-appellant was in Balibago, Angeles City. On
hereby sentenced: July 13, 1989, the Quezon City police, in coordination with
(1) To serve the penalty of reclusion perpetua and to pay the the Angeles City Police, arrested accused-appellant on Oak
increased indemnity of FIFTY THOUSAND PESOS Street, Balibago, Angeles City.
(P50,000.00) in Criminal Case No. 1187 solidarily; and Accused-appellant was brought to the Quezon City police
station, where he was positively identified by all three independent counsel during his investigation. On January 8,
victims as their assailant. Pat. Maniquiz also discovered that 1991, the trial court denied the Motion for New Trial on the
accused-appellant was an escapee from the Davao Penal ground that it has lost jurisdiction over the case after
Colony.3 accused-appellant filed his notice of appeal.11 The Motion
After the inquest proceedings, four criminal informations for Reconsideration was likewise denied on February 7,
were filed against accused-appellant, who pleaded not 1991.12
guilty to all the charges.4 The cases were consolidated and The appeal was filed directly with this Court, considering
tried jointly. the imposition of the penalty of reclusion perpetua.
In his defense, accused-appellant alleged that on July 6, Accused-appellant, through counsel de parte, filed the Brief
1989, he moved in with his girlfriend, Ana Olvida, at 24 for Accused-Appellant,13 while the Solicitor General, on
Bulacan Street, Mountain Dew, Balibago, Angeles City. He behalf of the prosecution, filed the Brief for Appellee.14
was arrested in the evening of July 13, 1989, while he was Subsequently, accused-appellant, through the Public
sleeping in the said house. He denied that his boat engine Attorney, informed the Court that he could not file his Reply
was stolen. He knew the victims because they were his Brief because the records of the case do not contain the
friends and barrio mates in Malagicay, Abuyog, Leyte. He transcript of the testimony of Joel Jabol, the only
admitted having escaped from the Davao Penal Colony, eyewitness who testified for the prosecution. Thus, this
where he was serving sentence for robbery-holdup, but Court directed that the trial court retake the testimony of
alleged that he was innocent of the crime for which he was said witness.15 However, Joel Jabol failed to appear at the
convicted.5 hearings set by the trial court. On May 31, 1999, counsel for
Ana Olvida corroborated accused-appellant's testimony. accused-appellant filed a Manifestation that he was
She testified that they have been live-in partners since dispensing with the filing of the Reply Brief.16 He also prayed
1987. Every day at 4:00 o'clock in the afternoon, accused- that the testimony of Joel Jabol be disregarded since the
appellant would take her to the Flying Machine Bar, where same is probably fictitious and non-existent.
she worked as cashier, and would fetch her at 4:00 o'clock It appears from the records of the trial court that the
in the morning. She averred that accused-appellant did not testimony of Joel Jabol was completed on September 28,
leave the house on July 11, 1989.6 1989,17 which means that either he was cross-examined by
On November 13, 1990, the trial court promulgated its the defense or the latter was given an opportunity to cross-
judgment as follows: examine him. In fact, the factual findings of the trial court
WHEREFORE, premises considered, the Court finds and so were based largely on the testimony of Joel Jabol.18 In the
holds accused EDMUNDO LUCERO y GACETA Guilty beyond absence of any showing that the same were reached
reasonable doubt of the crime of MURDER committed arbitrarily or without sufficient basis, this Court accords the
against Fernando Jabol y Tolentino in Criminal Case No. 89- highest respect to the findings of fact by the trial court.19
5349 penalized under Art. 248 of the Revised Penal Code In his Brief, accused-appellant raises the following
and hereby sentences him to suffer a penalty of Reclusion assignments of error:
Perpetua; to pay compensation to the heirs of Fernando FIRST ASSIGNMENT OF ERROR
Jabol in the amount of P30,000.00 and to pay the cost. THE LOWER COURT ERRED IN NOT FINDING THAT THE
This Court also finds accused EDMUNDO LUCERO y GACETA EVIDENCE OF PROSECUTION TRANSGRESSED THE
Guilty beyond reasonable doubt of the crime of CONSTITUTIONAL DUE PROCESS CLAUSE.
FRUSTRATED MURDER committed against Joel Jabol y. SECOND ASSIGNMENT OF ERROR
Tolentino in Criminal Case No. Q-89-5350 and therefore THE LOWER COURT ERRED IN NOT ACQUITTING THE
hereby sentences him to suffer a penalty of imprisonment ACCUSED-APPELLANT.20
from Ten (10) Years and One (1) Day of Prision Mayor as Accused-appellant argues that during his custodial
minimum to Seventeen (17) Years and Four (4) Months of investigation, he was not assisted by competent and
Reclusion Temporal as maximum and to pay the cost. responsible counsel, invoking Article III, Section 12 (1) of the
Complainant Alex Tano y Lucero and Ferdinand Alvero y Constitution, which provides:
Visda in Criminal Case No. Q-89-5351 and Crim. Case No. Q- (1) Any person under investigation for the commission of an
89-5352 respectively failed to appear during the hearing of offense shall have the right to be informed of his right to
these cases. No evidence was presented showing the remain silent and to have competent and independent
culpability of the accused. Therefore, in Criminal Case No. counsel preferably of his own choice. If the person cannot
Q-89-5351 and Q-89-5352, accused EDMUNDO LUCERO y afford the services of counsel, he must be provided with
GACETA is ACQUITTED for lack of evidence. one. These rights cannot be waived except in writing and in
SO ORDERED.7 the presence of counsel.
Accused-appellant filed a Notice of Appeal,8 to which the Reading further, the consequence of a violation of the
trial court gave due course.9 foregoing constitutional guarantee can be found in the
Subsequently, counsel de parte entered his appearance for ensuing subparagraph (3) of the same Article III, Section 12,
accused-appellant and filed a Motion for New Trial,10 to wit:
arguing that contrary to the constitutional requirement, (3) Any confession or admission obtained in violation of this
accused-appellant was not assisted by competent and or Section 17 hereof shall be inadmissible in evidence
against him. and the judgment rendered affirmed.24
The argument is specious. Assuming arguendo that the An appeal in a criminal case throws the whole case wide
above constitutional proscription was not observed, no open for review and the reviewing tribunal can correct
confession or admission was taken from accused-appellant. errors, though unassigned in the appealed judgment, or
To be sure, his conviction was not based on his own even reverse the trial court's decision on the basis of
statements which, as he claims, were allegedly without the grounds other than those that the parties raised as errors. 25
benefit of counsel. In fact, it does. not appear that he even Thus, although the following issues are not assailed by
gave a statement. His conviction was anchored on the accused-appellant, we deem it prudent to pass upon the
separate and independent testimonies of Joel Jabol and Pat. same if only to validate the findings of the trial court.
Rolando Maniquiz. The trial court held that the crimes committed by accused-
Accused-appellant takes exception to the trial court's appellant against brothers Fernando Jabol and Joel Jabol
admission of the prosecution's documentary exhibits were, respectively, murder and frustrated murder, the
which, he contends, are inadmissible under the rules on same being qualified by treachery. We agree. The victims
evidence. Specifically, he enumerates the Certification of were sitting around a table inside the house of Domingo
the Inmates Prison Record Office that he escaped from the Lipas when, suddenly and without warning, accused-
Davao Penal Colony, marked as Exhibit "B"; the Arrest and appellant barged into the house and instantly fired his gun
Booking Report pertaining to accused-appellant's arrest for at them. As a result, the Jabol brothers suffered mortal
the murder of Police Corporal Romulo Abad, marked as wounds. The suddenness of the attack afforded the victims
Exhibit "C"; and the Autopsy Request, marked as Exhibit no opportunity to put up a defense. Joel survived, but
"D". He argues that these exhibits are irrelevant and Fernando was not as fortunate. As consistently held by this
hearsay, considering that the persons who executed the Court, an unexpected and sudden attack which renders the
documents were not presented in court. Further, he alleges victim unable and unprepared to defend himself by reason
that some questions propounded to him on cross- of the suddenness and severity of the attack constitutes
examination referred to matters not covered during his alevosia or treachery. Its essence lies in the adoption of
direct examination. ways that minimize or neutralize any resistance which may
Accused-appellant's contentions may be correct. It is true be put up by the unsuspecting victim.26
that evidence is admissible when it is relevant to the issue Anent the crime committed against Joel Jabol, the trial
and is not excluded by the law or these rules.21 On the other court was likewise correct when it found that it was
hand, hearsay testimony or evidence is inadmissible and, frustrated murder. The gunshot hit Joel on the right
whether objected to or not, has no probative value and subcostal area,27 i.e., below the right rib. This was a mortal
cannot be given credence.22 Likewise, a witness may only be wound which could have caused Joel Jabol's death,
cross-examined as to any matters stated in the direct considering the vital organs in that part of the body. But due
examination, or connected therewith.23 However, these to timely medical attention, he survived. The intervention
principles do not come into play in this case, because the of medical treatment was independent of accused-
documents now being objected to, or the testimony elicited appellant's will. A felony is frustrated where the offender
from him during the cross-examination, were not performs all the acts of execution which would produce the
considered by the trial court in rendering the judgment of felony as a consequence but which, nevertheless, do not
conviction. Hence, accused-appellant's protestations on produce it by reason of causes independent of the will of
this score have no bearing whatsoever to his appeal. the perpetrator,28 such as prompt medical aid.29
Similarly, accused-appellant's contention on the credibility We also agree with the trial court that accused-appellant's
of Joel Jabol must fail. According to him, since Joel Jabol was defense of alibi cannot prosper. As it correctly found, and
drinking rhum when the incident occurred, his version of as testified to by defense witness Ana Olvida, the distance
the events must not be given credence. First of all, there between Angeles City and Quezon City can be traversed by
was no positive showing that he was in such a state of bus in one and a half hours.30 For the defense of alibi to
inebriation at that time as to distort his memory of the prosper, an accused should prove, not only that he was at
events. More importantly, his ability to accurately recall the some other place at the time of the commission of the
incident was tested by the trial court. In this connection, it crime, but that also it would have been physically
bears stressing that this Court will not disturb the findings impossible for him to be at the locus delicti or within its
of the trial court on matters relating to the credibility of immediate vicinity.31
witnesses. The evaluation of testimonial evidence by trial At the time of its commission, the penalty for murder was
courts is accorded great respect precisely because of its reclusion temporal maximum to death.32 There being three
chance to observe first-hand the demeanor of the distinct penalties, each one shall form a period.33 Since no
witnesses, a matter which is important in determining aggravating or mitigating circumstance was alleged or
whether what has been testified to may be taken to be the proved in this case,34 the penalty shall be imposed in its
truth or falsehood. Absent any showing that certain facts of medium term. Thus we are not in period. Thus, the trial
substance and significance have been plainly overlooked or court was correct in sentencing accused-appellant to suffer
that the trial court's findings are clearly arbitrary, the the penalty of reclusion perpetua for the murder of
conclusions reached by the trial court must be respected Fernando Jabol.
On the other hand, frustrated murder is punishable by the Nicanor Ilagan. No indemnity was imposed.
penalty next lower in degree,35 which is prision mayor In the evening of April 9, 1970 a wake or vigil for the dead
maximum to reclusion temporal medium. Again, there (lamayan) was held in a house near Jossie Bakery, located
being neither aggravating nor mitigating circumstance, the at J.(F.) Posadas Street, Punta, Sta. Ana, Manila. Among the
penalty shall be imposed in its medium period,36 i.e., many persons present at that vigil were Nicanor Ilagan, 19,
reclusion temporal minimum, consisting of twelve (12) single, jobless, a student, and Antonio G. Renolia (Renolla),
years and one (1) day to fourteen (14) years and eight (8) nicknamed Tony, 22, married, a jeepney driver, respectively
months. Applying the Indeterminate Sentence Law, residing at 2572 F. Posadas Street and 2495 Bagong Sikat
accused-appellant is entitled to a minimum term to be Street, both located at Punta, Sta. Ana, Manila.
taken within the range of the penalty next lower to that Shortly after midnight or in the early morning of April 10,
prescribed by the Revised Penal Code for the offense,37 1970, the house, where the vigil was being held, was
which is prision correccional maximum to prision mayor stoned. Ilagan and the others came out of the house and
medium, or four (4) years, two (2) months and one (1) day went to the street to find out who had hurled the stones. As
to ten (10) years: The trial court, therefore, erred in fixing Ilagan stood on the lighted street, he was shot in the knee
the penalty for frustrated murder. Instead, accused- (Exh. E). He fell on the ground. The assailant was at a
appellant should be sentenced to suffer the indeterminate distance of around six meters from Ilagan and about fifteen
penalty of six (6) years and one (1) day of prision mayor, as meters away from the electric lamp on the street. Ilagan
minimum, to twelve (12) years and one (1) day of reclusion saw his assailant's face. Because of the light of the electric
temporal, as maximum. lamp, Ilagan remembered his assailant as the same person
Finally, the civil indemnity in the amount of P30,000.00 whom he had seen a week before in that vicinity,
awarded by the trial court should be increased to challenging persons to a fight.
P50,000.00, in line with prevailing jurisprudence.38 When Ilagan fell, Tony, who had also come out of the house,
WHEREFORE, in view of the foregoing, the judgment of the went to his assistance and tried to lift him. While in a
trial court in Criminal Case No. Q-89-5349, finding accused- stopping position, Tony was shot by the same assailant. The
appellant guilty beyond reasonable doubt of the crime of bullet entered his "upper left anterior chest" over the
murder and sentencing him to suffer the penalty of second rib and "coursed downward and backward,
reclusion perpetua, is AFFIRMED with the MODIFICATION lacerating his left pulmonary artery and his right lung" (Exh.
that he is ordered to pay the heirs of Fernando Jabol the D).
amount of P50,000.00 as civil indemnity. The assailant and his companions, Danny Banlag, Milo and
The judgment in Criminal Case No. Q-89-5350, finding others, who were armed with arrows and carried stones,
accused-appellant guilty beyond reasonable doubt of the ran away.
crime of frustrated murder, is AFFIRMED with the Tony or Antonio G. Renolia died on the way to the hospital.
MODIFICATION that accused-appellant is sentenced to Ilagan was also brought to the hospital where he was
suffer an indeterminate penalty of six (6) years and one (1) treated for two weeks.
day of prision mayor, as minimum, to twelve (12) years and For sometime, the police made no progress in the
one (1) day of reclusion temporal, as maximum. Costs de investigation of the crime. On the third day after the
officio. shooting, Ilagan, while in the hospital was informed by his
SO ORDERED. friend, one of whom was Aida, that his assailant was Manuel
Davide, Jr., C .J ., Puno, Kapunan and Pardo, JJ ., concur. Pilones.
Fifty days after the shooting, or on May 30, 1970, Manuel
Pilones, 20, jobless, a resident of 148 Tenement Housing
Project, Punta, Sta. Ana, Manila was arrested for vagrancy
G.R. No. L-32754-5 July 21, 1978 by patrolmen of Precinct No. 9. Ilagan, who was fetched
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, from his residence by Tony's mother, Identified as the
vs. person who had shot him after midnight on April 10, 1970.
MANUEL PILONES y IBAEZ, defendant-appellant. At that confrontation, Pilones was just one arm's length
from Ilagan.
AQUINO, J.: When Ilagan fingered Pilones as the malecfactor. who had
Manuel Pilones appealed from the decision of the Circuit shot him and Tony Renolia (Question No. 19 of Exh. P),
Criminal Court of Manila in Criminal Cases Nos. CCC-VI-170 Pilones did not say anything (18 tsn July 13, 1970). Emiliana
(70) and CCC-VI-171 (70), convicting him of murder and Giray Renolia, the mother of Tony, a resident of 2225 F.
frustrated murder, and sentencing him in the murder case Posadas Street, Punta, Sta. Ana, was also at the precicnt.
to life imprisonment and to indemnify the heirs of Antonio She likewise Identified Pilones as the assailant of her
G. Renolia in the sum of P18,000. deceased son and three other persons (Crime Report, Exh.
In the frustrated murder case, he was sentenced to an G). Pilones refused to give any statement or comment at
indeterminate penalty ranging from six years and one day that investigation. The investigator's testimony On this
of prision mayor, as minimum, to twelve years and one day point upon interrogation by the fiscal is as follows (2 tsn July
of reclusion temporal, as maximum, for having assaulted 30, 1970):
Q In Exhibit F (Ilagan statement), the witness Nicanor Ilagan The doctor, who treated Ilagan. testified that when he
pointed to Manuel Pilones in answer to Question No. 19, operated on Ilagan's wounded knee, he extracted
where was accused Pilones when pointed to by witness therefrom metallic fragments. On the other hand, the
Nicanor Ilagan? doctor, who conducted an autopsy on the cadaver of
A He was present in the investigation room. sir. Renolia, testified that he extracted a.22 caliber slug from
Q How far was he from Nicanor Ilagan when pointed to by the victim's body. Since there is a difference between a slug
him? and a metallic fragment, Pilones' counsel contends that
A He was near the table sir. Ilagan and Renolia were shot by different persons or with
Q Do you know whether the accused heard Nicanor Ilagan different weapons.
when pointed to as the one responsible for the shooting of That circumstance is not sufficient to cast a reasonable
the victim? doubt on appellant's guilt. It merely conveys the impression
A Yes, sir. that, inasmuch as according to Ilagan, he and Renolia were
Q What did he say.? shot in succession, Pilones used different weapons. He had
A Nothing, sir. time to change weapons. He had companions who could
Q Did you investigate accused Pilones? have assisted him in the execution of his felonious acts.
A Yes, sir. The fact is that Ilagan positively Identified Pilones as the
Q Did you confront him with this case? Person who shot him (Ilagan). Even if Renolia was shot by
A Yes, sir. Pilones' companion, with a firearm different from the .22
Q What did he say? caliber rifle used against Ilagan, Pilones would still be
A He said nothing. criminally liable for Renolia's death because he, obviously,
Q Did you take his statement? conspired with the person who shot Renolia. Pilones and his
A No, sir. companions were together at the scene of the crime. They
Q Why? left the place together. They had community of design.
A He is (was) not willing to give his statement. The decisive fact is that Pilones was not only Identified by
Q Why was he not willing to give his statement? Ilagan but at the confrontation in the police precinct
A I do not know, sir. between accuser and accused, Pilones, as the accused, just
Q Did you explain the reason why? kept silent and did not deny Ilagan's accusation and the
A Yes, sir, but he refused to give his statement. Identification made by Renolia's mother. "He who remains
At the trial Pilones relied on an alibi. He testified that when silent when he ought to speak cannot be heard to speak
the shooting occurred, he was in the house of his aunt, when he should be silent" (31 C.J.S. 494). Rule 130 of the
Marilou Campbell, at Olongapo City. He was in that place Rules of Court provides:
from December 31, 1969 to May 28, 1970. His aunt and his SEC. 23. Admission by silence. Any act or declaration
brother-in-law, who was allegedly his companion in going made in the presence and within the observation of a party
to Olongapo City, did not take the witness stand to who does or says nothing when the act or declaration is
corroborate his alibi. such as naturally to call for action or comment if not true,
Anacoreta Castro, a widow and a neighbor of Pilones at may be given in evidence against him.
Punta, Sta. Ana, corroborated his alibi However, her Silence is assent as well as consent, and may, where a direct
testimony is weakened by a serious contradiction. She and specific accusation of crime is made, be regarded under
testified that Pilones, who was like a child to her because some circumstances as a quasi-confession. An innocent
his family and her family "are practically one", left for person will at once naturally and emphatically repel an
Olongapo City before Christmas, while, on the other hand, accusation of crime, as a matter of self-preservation and
Pilones testified that he went to that Place after Christmas self-defense, and as a precaution against prejudicing
or on December 31, 1969 (6 and 14 tsn July 30, 1970). himself. A person's silence, therefore, particularly when it is
The personal circumstances of Pilones may be useful in persistent, will justify an inference that he is not innocent.
assessing his character. He has a common-law wife. He has (Underhill's Criminal Evidence, 4th Ed. p. 401).
tattoo marks on his body placed by Ben Lumot. He claims Appellant Pilones contends that the trial court erred in not
that he was framed up by Patrolman Bayani Lasian, who granting his motion for new trial based on newly discovered
resided at the sixth floor of the tenement house, where he evidence, which is the affidavit of Arturo Pangan, a detainee
(Pilones) also resided. Patrolman Lasian allegedly suspected in the city jail of Manila. Pangan declared in his affidavit that
Pilones of being implicated in the killing of Patrolman in the "riot", clash or encounter (salakay o sagupaan) on
Gameng. Lasian allegedly had a grudge against Pilones April 9, 1970 between the residents of Barrio Puso and the
because during a basketball tournament among residents residents of Labasan Bukid, he and Romy Pilones, a brother
of the tenement house Pilones "tripped" and Lasian boxed of Manuel Pilones, were together and he saw that Antonio
him (7 tsn July 30, 1970; See Exh. 1). The residence of Renolia and Nicanor Ilagan were shot by Aquilino Pingol
Pilones is about 12 meters away from Posadas Street. with a .22 caliber rifle; that Pingol was in the company of
The crucial factual issue is whether Pilones was sufficiently Danny and Nilo Garcia, alias Nilong Bulag, and that at that
Identified by the prosecution's sole eyewitness, Ilagan. as time Manuel Pilones was in Olongapo City.
the assailant of Ilagan and the deceased Tony Renolia. It is evident from Pangan's affidavit that he was referring to
another incident. Pangan was referring to a riot or rumble The Solicitor General for plaintiff-appellee.
between two groups of persons. Ilagan did not testify to any Public Attorney's Office for accused-appellants.
rumble or tumultuous affray between the residents of two
places. He testified simply to a shooting at F. Posadas Street, DAVIDE, JR., J.:
Punta, Sta. Ana when he came out of the house where a vigil At around noontime on 14 December 1978, a weapons
for the dead was being held. carrier with several passengers on board was ambushed by
Moreover, if according to Pangan, Romy Pilones,. the armed men in Sitio Samlang, Datal Batong, Malungon,
brother of appellant Manuel Pilones, was with Pangan on South Cotabato, causing the deaths of Elena Pamoso and
that occasion, the alleged newly discovered evidence could Estelita Imarga and the physical injuries of Felipe Noquera.
have been presented by the appellant during his trial. His As a consequence thereof, three (3) separate informations
brother, Romy, could not have been ignorant of what were filed on 5 March 1980 against Lapnayo Buka, Angel
Arturo Pangan knew and Romy could have informed Pral, Pral Ngay, Beren Mandong, and Purong Bilaan with the
Manuel Pilones earlier that the assailant of Ilagan and then Court of First Instance (now Regional Trial Court) of
Renolia was Pingol. South Cotabato. The first charges them with the crime of
The trial court did not err in denying the motion for new Murder in connection with the death of Elena Pamoso,
trial. committed as follows:
We are convinced that Pilones was sufficiently Identified by That on or about the 14th day of December, 1978, at 11:00
Ilagan as the person who shot him and Renolia. Pilones has o'clock in the morning to 12:00 o'clock noon time, at Sitio
not shown any reason as to why Ilagan would accuse him of Samlang, Barangay Datal Batong, Municipality of Malungon,
murder and frustrated murder. There is no showing that Province of South Cotabato, Philippines and within the
Ilagan had connived with Patrolman Lasia whom Pilones jurisdiction of this Honorable Court, the above-named
believes is the one responsible for his arrest, to frame up accused said to be in company with two John Does, whose
the accused. identities are still unknown and who are still at-large armed
No motive was established as to why Pilones shot Ilagan and with assorted high powered weapons such as Surit, shotgun
Renolia. The shooting can be characterized as purely a rifle and garand rifle and with evident premeditation and
mischievous act of deviltry committed by a jobless and with deliberate intent to kill, did then and there willfully,
lawless person who did not know of any better way of using unlawfully and feloniously ambush, attack, assault and
his time. shoot with the use of assorted firearms at the weapon (sic)
The trial court erred in holding that the crime as to Ilagan is carrier of Edon Escobillo, boarded by 15 passengers and as
frustrated murder. The wound in his knee was not Sufficient a result thereof, inflicting and mortally wounding Elena
to cause his death. The crime is only attempted murder. The Pamuso which resulted to (sic) her instantaneous death.
accused did not perform all the acts of execution that would CONTRARY TO LAW, with qualifying circumstances of
bring about the death of Ilagan. evident pre-meditation and with generic aggravating
WHEREFORE, the lower court's judgment is affirmed with circumstance that the act was committed by a band and
the modification that in Criminal Case No. 171(70), Pilones with deliberate disregard of the respect due the offended
is convicted of attempted murder and is sentenced to an (sic) party on account of her sex, being a woman. 1
indeterminate penalty of three (3) years of prision (emphasis supplied)
correccional medium, as minimum, to six (6) years and one Said case was docketed as Criminal Case No. 1893.
(1) day of prision mayor Minimum, as maximum, and to pay The second 2 charges them with Frustrated Murder in the
an indemnity to Nicanor Ilagan. in the sum of two thousand case of Felipe Noquera on account of the wounds he
pesos. suffered which would have "ordinarily cause his death . . .,
The term "life imprisonment" used by the trial court should but nevertheless did not produce it by reason of causes
be changed to reclusion perpetua. It is the latter term that independent of their will that is, due to the timely and able
carries with it the imposition of the accessory penalties. medical assistance rendered to said Felipe Noquera which
(People vs. Mobe, 81 Phil. 58; Art. 73, Revised Penal Code). prevented his death." The same qualifying and aggravating
Costs against the appellant. circumstances were alleged in the information except for
SO ORDERED. the aggravating circumstance of disregard of respect due
Fernando, Barredo, Concepcion, Jr. and Santos JJ., concur. the offended party on account of her sex. This was docketed
Antonio, J., took no part. as Criminal Case No. 1894.
The third, 3 docketed as Criminal Case No. 1895, charges
them with the crime of Murder in connection with the
G.R. Nos. L-68311-13 January 30, 1992 death of Estelita Imarga and alleges the same qualifying and
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, aggravating circumstances as those alleged in Criminal Case
vs. No. 1893.
LAPNAYO BUKA @ "LAPNAYO LIBAT", PRAL NGAY, ANGEL The foregoing cases were ordered archived by the trial
PRAL, BEREN MANDONG, PURONG BILAAN @ "PURONG" court on 30 September 1980 because all the accused were
and TWO JOHN DOES, accused. ANGEL PRAL and BEREN still at large; nevertheless, warrants for their arrest were
MANDONG, accused-appellants. issued. 4
On 30 July 1981, the prosecution filed a motion to revive long, one cm. wide left interscapular area.
the cases which asked for the issuance of an alias warrant Wound gunshot with avulsion of outer layer of skin, 6 cm.
of arrest. 5 On 6 November 1981, accused Beren Mandong long, one cm. wide right, infrascapular area. (Exhibit "A")
and Angel Pral were arrested and brought under the Paquito Alvarez, driver of the weapons carrier which was
custody of the law. 6 The others remain at large up to the ambushed declared that he saw the ambushers with guns
present. and recognized two of them as Beren and Purong, the real
The three (3) cases were then consolidated for joint trial as name (sic) are Beren Mandong and Purong Bilaan. He
against Beren Mandong and Angel Pral, who pleaded not recognized these two among the ambushers because he is
guilty when arraigned on 19 November 1981. 7 acquainted with them long time (sic) before the incident.
At the joint trial on the merits, the prosecution presented The others were new to him and hence did not recognize
ten (10) witnesses, while the defense presented eight (8) them.
witnesses, including the appellants themselves. 8 All of the When they were shot at, he speed (sic) up his truck until
witnesses testified before then Judge Pedro Samson C. they reached Datal Kangil, a place three kilometers, more or
Animas. less, from the ambush scene where he asked for help from
After joint trial on the merits, the lower court, per Judge the Barangay Captain. They went back to retrieve one of the
Marcelino R. Valdez, rendered a consolidated decision, 9 victims Estelita Imarga who fell from the weapons carrier
promulgated on 20 January 1984, finding the accused Angel and brought her to Datal Kangil (TSN, pp. 7-14, Feb. 1, 1982)
Pral and Beren Mandong each guilty of "two (2) crimes of Felipe Noquera, the one who sustained gun shot wounds
murder" and of the crime of frustrated murder and but escaped death, testified that they were ambushed at
sentencing them as follows: Sitio Samlang, Datal Batong, Malungon, at around 11:00-
WHEREFORE AND IN VIEW OF ALL THE FOREGOING, this 11:30 o'clock A.M., on December 14, 1978, on their way to
Court finds the accused Angel Pral and Beren Mandong General Santos City from Brgy. Miasong, of said
guilty beyond reasonable doubt and hereby convicts each Municipality, riding on a weapons Carrier (sic). He saw the
of them of two crimes of murder and Frustrated Murder. ambushers and recognized Angel, Beren, Pral and Lapnayo
As no mitigating nor (sic) aggravating circumstances were whose real names are Angel Pral, Beren Mandong, Ngay
proven, this Court hereby sentences each of them to suffer Pral, Lapnayo Buka and Purong Bilaan. The witness was
the penalty of Reclusion Perpetua in Crim. Cases Nos. 1895 acquainted with these persons long (sic) time before the
and 1893. However, in Crim. Case No. 1894 accused is incident for he used to see them in Datal Batong. He
hereby sentenced to an indeterminate penalty of eight (8) (Noquera) being a driver himself of a weapons carrier. He
years and twenty (20) days of Prision Mayor as Minimum to identified Angel Pral and Beren Mandong in court during his
fourteen (14) years, ten (10) months and twenty (20) days open testimony. (TSN, pp. 25-29, Feb. 2, 1982). He saw each
of Reclusion Temporal as maximum and to pay the following of these two ambushers with long firearms. In spite of the
damages to the heirs of the victims, to wit: rigid cross examination on this witness he stood pat on the
a) Twelve Thousand (P12,000.00) Pesos each by reason of identity of the two accused, testifying firmly that he saw
the death of Estelita Imarga and Elena Pamoso and Six them (accused) holding long firearm each, but he did not
Thousand (P6,000.00) Pesos for the Frustrated death (sic) of know what kind firearms were those. He was investigated
Felipe Noquera; by the office of the Provincial Fiscal and he told the same
b) Five Thousand (P5,000.00) Pesos each in concept of version re the identity of these two accused. (TSN, pp.
actual and moral damages; 39-40, Feb. 2, 1982)
c) Five Thousand (P5,000.00) Pesos each in concept of Luis Esconde, one of the persons on board the weapon (sic)
exemplary damages and to pay the cost. carrier at the time of the of the time (sic) of the ambushcade
SO ORDERED. (sic) testified that upon reaching sitio Samlang, he saw the
The evidence for the prosecution upon which the ambushers more than five, who fired at them and he
convictions were based is summarized by the trial court as recognized three of them, Lapnayo, Beren and Angel,
follows: whose real name (sic) are Lapnayo Buka, Beren Mandong,
On December 14, 1978, the victim with some other and Angel Pral. He did not recognized (sic) the others. He
companions were bound for General Santos City from readily pointed to the accused Angel Pral and Beren
Miasong Malungon, South Cotabato, riding on a weapons Mandong when he was made to identify them in Court. He
carrier. Upon reaching Sitio Samlang, Brgy Datal Batong, of is acquainted with said accused because he usually see (sic)
said Municipality, at around 11:30 A.M. they were them in Datal Batong during market days, cockfighting and
ambushed by the accused resulting to (sic) the death of card games. He saw the victims of the ambush Estelita
Estelita Imarga, Elena Pamoso and wounding (sic) Felipe Imarga and Elena Pamoso who died immediately
Noquera. The weapons carrier was driven by Paquito thereafter, while Felipe Noquera suffered gun shot wounds
Alvarez. Per Medical report the cause of death of Estelita (TSN, pp. 46-51, Feb. 3, 1982). Upon rigid cross-examination
Imarga was "gun shot wounds, left chest," Elena Pamoso this witness also stand (sic) pat on the identity of these two
was "gun shot wounds, right chest" (Exhibits "D" and "D-1") accused whom he saw holding long firearm (sic) each.
while Felipe Noquera suffered injuries, to wit: Ricardo Salvador, one of the persons on the (sic) board the
Wound gunshot with avulsion of outer layer of skin 4 cm. weapon (sic) carrier at the time and date of the ambush,
stated that he saw the ambushers, but he only recognized witness return (sic) to Datal Batong on December 13, 1978,
Beren, whose real name is Beren Mandong, also holding a Angel Pral was left in General Santos City. He (Pempillo)
long firearm. He saw the victims Estelita Imarga and Elena again hauled the corn on December 14, arriving in General
Pamoso who died immediately thereafter while Felipe Santos City at around 1:00 P.M. where he saw accused
Noquera suffered gunshot wounds. (TSN, pp. 61-64, Feb. 3, Angel Pral. On December 15, 1978, all of them returned to
1982). On cross (sic), this witness firmly stated that he knew Datal Batong (TSN, pp. 131-136, July 20, 1982). It took more
personally Beren Mandong before the incident because he than a year when Angel Pral was apprehended and brought
usually saw him in Datal Batong, while the rest of the to the custody of the law. This witness knew the arrest of
ambushers were not known to him, hence, he could not Angel Pral by the police authorities but inspite of his
recognize them (TSN, pp. 64-65, Feb. 3, 1982). knowledge, he did not care to inform the police authorities
The trial court rejected the defense of alibi presented by that Angel Pral was innocent of the crime charged against
both accused, summarizing and disposing of it as follows: him. He did not also tell anybody about what he knew about
Conversely, accused Angel Pral took up the defense of Alibi. Angel Pral, that this accused was with him since December
He denied having participated in the ambush killing at Sitio 13-15, 1978; that Angel Pral was in General Santos City on
Samlang, Brgy. Datal Batong, Malungon, South Cotabato, on December 14, the date of the ambush (TSN, pp. 138-139,
December 14, 1978, for at the time of the alleged ambush July 20, 1982).
he was in General Santos City, together with his father, Fral However, this witness was confronted with his sworn
Ngay; that on December 13, 1978 he went to General statements before the fiscal's (sic) Office taken on July 17,
Santos City with Elisias Pempillo with (sic) whom he sold his 1979, where he stated that on December 12, 1978 they
corn produce, that they arrive (sic) General Santos City at were not able to go back to General Santos City, but instead
around 3:00 o'clock P.M. on that date; that he did not go they slept in Malungon, South Cotabato in their house at
back to Datal Batong on December 14, 1978 but slept in Data (sic) Batong. Then he was asked.
Llidos home General Santos City (sic) and went back to Datal Q So what you declared here before the Investigating Fiscal
Batong only on December 15, 1978; that Lising Pempillo the was not true?
buyer of his corn was the only one who returned to Datal A I cannot remember it correctly but what I can remember
Barong on the 13th of December and went back to General is that I delivered corn on December 13, and 14 (TSN, pp.
Santos City on December 14, 1978, arriving thereat at 1:00 143, July 20, 1982).
o'clock P.M. (TSN, pp. 174-178, July 22, 1982). Asked further how he came to remember the dates of
On cross (sic), this accused admitted he has not gone to December 13, 14 and 15, 1978, and (sic) he answered:
school; that he is an illiterate and does not know the month "Because those were the dates, I delivered corn." However,
of the year; that he knew only that he had been selling his when he was asked the date when he testified before the
corn produce in the month of December, 1978, because he Provincial Fiscal's Office, he could not remember. Then his
was told by the christians (sic) thereat; that he harvested his credibility was tested. He was asked how many children he
corn on December 9, 1978 and finished the same on has and he answered "Twelve". When he was asked the
December 12; that he remembered very well December 9- date of birth of his tenth child, he answered: "I cannot
12, when he harvested his corn, December 13, when he sold recall." Of the seventh child, Charlin, he said, he cannot
his corn to Lising Pempillo, December 14, when he slept in recall. Of the twelve (sic) child, he said he cannot
General Santos City and December 15, when he went back remember. Of the eleventh, he could not also remember.
to Datal Batong. But when he was ask (sic) the date when Of the sixth child, he said he cannot also remember. Under
he testified on July 22, 1982, he answered "I don't know." the circumstances, there is indeed a doubt as to the
Asked further how he remembered those dates, December credibility of this witness. The veracity for (sic) truth of his
9, 12, 13, 14 and 15, 1978, he answered that he was testimony is very doubtful. What he could remember only
informed by the christians (sic) thereat, that those were the were those dates, December 13, 14 and 15, 1978, in
dates (TSN, pp. 180-184, July 22, 1982). Then this accused comparison with dates of more significant events, which
was again asked the date when he was born and he said he goes to show, that such line of testimony could be dubbed
does not know; he does not also know when he got married, as coach (sic) testimony.
nor does he know the birth date of his child. He does not On the other hand, accused Beren Mandong has the same
also know the distance from Dadiangas to Datal Batong, nor nature of defense. He is a bilaan (sic), and an illiterate (sic).
(sic) does he know how to tell the time. (TSN, pp. 185-186, He was arrested sixteen months after the complaint was
July 22, 1982). filed. He declared that at the time and date of the ambush
The version of this accused was corroborated by Elisias on December 14, 1978, he was farming in the farm of
Pempillo, the businessman with (sic) whom accused Angel Serafin Sunio at Datal Batong as a hired laborer; that he
Pral sold his corn harvest. This witness testified that he knew of this date because Serafin Sunio told him; that when
knew personally Angel Pral; that on December 12, Angel he was asked the date he testified in Court, he answered: "I
Pral informed him that his corn was ready for hauling; that don't know" (TSN, pp. 199-201, Nov. 18, 1982).
he had been hauling Angel Pral's corn from December 12- The foregoing version was affirmed by Serafin Sunio, that
13 when he hauled the corn to General Santos City on the on December 14, 1978, he had his land at Datal Batong
latter date bringing with him the accused. When this cleared and he employed 24 laborers, out of whom were
more than ten bilaan (sic). These laborers had been working archived on September 30, 1980, for the accused escaped
at 7:00 A.M. to 11:30 A.M., and one of them was accused from their permanent residence, at Datal Batong, Miasong,
Beren Mandong. They worked the whole day up to 5:00 Malungon South Cotabato, and up to the present their
P.M. under the direct supervision of Serafin Sunio. This other co-accused are still at large and could (sic) not be
witness learned of the ambush at Sitio Samlang, Datal found. "The wicked fleeth while no man pursueth but the
Batong which is three kilometers away from his farm. (TSN, righteous are as bold a (sic) lions," goes the saying. There
pp. 159-161, July 21, 1982). There were of course clear and could have been no other to have stage the ambushcade
distinct descripancies (sic) between the open testimony of (sic) except the herein and their gang, for there were no
this witness in open court with that of his sworn statement other persons seem (sic) by the prosecution witnesses
with the Fiscal's Office regarding the number of laborers he except the herein accused and their co-accused who are still
employed on December 14, 1978 from 24 to 33 in number. at large. On the foregoing scores, this court arrives at the
He also testified in open Court that there were more conclusion that the presumption of innocence of the
christians (sic) than bilaans (sic) while in his sworn accused as provided in the Constitution had been
statement with the Fiscal's Office there were more Bilaans overcome. The denials of the accused to have (sic)
than christians (sic); and when asked what were their participated in the ambushcade (sic) are ineffective to
names he only know (sic) five, namely: Pilang, Beren, Oro overcome the evidence of the prosecution, particularly the
and Ondan, and nothing more. The probative value of this positive testimonies of Felipe Noquera and Luis Esconde,
line of testimony is fatally infirmed by its unreliability. passenger (sic) of the weapons carrier when the ambush
Alibi is a week defense and cannot prevail over the was committed. Surprisingly the conduct of these accused
testimony of truthful witnesses. The reason is that alibi is right after the shooting incident has been very suspicious,
easy of (sic) fabrication. (Peop. vs. Bulawin, 29 SCRA 710; for immediately thereafter all the accused escaped and
Peop. vs. Gomez, 28 SCRA 440). Court should exercise great could no longer be found. Compared to the true
caution in accepting the defense of alibi because it is easily identification and testimonies of the prosecution witnesses
concocted (Peop. vs. Bagsican, 6 SCRA 400). In order that an this court does not doubt their veracity for being
(sic) alibi as a defense may prosper, the evidence to support disinterested witnesses and whose impartiality has not
it must be clear and convincing as to preclude the possibility been placed in doubt.
of the accused's presence at the scene of the crime, while As to the testimony of Mayor Felipe Constantino of the
the evidence as to its identification must be weak and Municipality of Malungon that there has been a
insufficient. (Peop. vs. Jamero, 24 SCRA 207; Peop. vs. confrontation in July, 1980 with some of the rebels
Lumantas, 28 SCRA 764; Peop. vs. Alcantara 33 SCRA 813). responsible of (sic) the ambushcade (sic) on December 14,
To establish alibi, the accused must show that he was at 1978, with Col. Bumanglang and a Major from the Army, 3rd
some other place for such a period of time that it was Inf. Btn., wherein four of the rebels namely: Olding Golac,
impossible for him to have been at the place where the So Dol, Toy Maliang, and Dano Pandayong admitted
crime was committed at the time of its commission (Peop. responsibility for the ambush, this court believes that said
vs. Lumantas, 28 SCRA 754). The claim of the accused that result of the alleged confrontation cannot be taken on its
they were far from the scene of the crime is not credible, face value "hook line and sinker" because of the hearsay of
where there is probability that they might have spread out the said confrontation. The confrontation was allegedly
in the neighboring towns and barrios to eliminate their made in July, 1980, after the case had already been filed in
enemies (Peop. vs. Corpuz, 1 SCRA, 33; Peop. vs. Almeriz, 3 court. However, this witness, a Municipal Mayor at that, did
SCRA 252). The defense of alibi cannot prevail over the not care to give the complete details of such confrontation
positive identification of witnesses (Peop. vs. Baiaga, 1 SCRA to the court for its guidance, especially at that time when
283; Peop. vs. Estrada, 22 SCRA 111). the accused were all still at large and warrants of arrest had
All the foregoing doctrines play a vital role against the been issued against them. Nor was there an information
defense of alibi of the accused. It could not be improbable given to the prosecution arm of the government regarding
for the accused to have been at the scene of the ambush said confrontation whereby four of the surrenderees
from the place where they allegedly were on the date of admitted responsibility of (sic) the ambushcade (sic). And if
December 14, 1978, considering the distance which is the accused were not really the perpetrators of the dastard
approachable within few (sic) minutes or hours. Were it a (sic) crime, why is it that immediately after December 14,
fact that the accused were not definitely identified by 1978, these accused could no longer be found at their
witnesses for the prosecution, then the accused (sic) respective residence (sic) and could not be apprehended
defense of alibi assumes importance. But such was not the until November 6, 1981 when two of them brought to the
case, for the accused were definitely identified by the custody of the law. Besides, the surrenderees were not
prosecution witnesses to be the companions of the brought to court before the alleged amnesty was given to
ambushers on that fatal day. Not only were they definitely them, so this case should have been resolved pursuant to
identified but that after the commission of the offense, on law. Under the circumstances, this court cannot exculpate
December 14, 1978 these two accused went into hiding and the accused based on a flimsy defense of alibi, against the
were only arrested on November 6, 1981 or there about clear, convincing testimonies of government witnesses that
(sic), after a period of over two years. This (sic) cases were the accused were indeed the ones responsible for the
murder and frustrated murder or ambush shooting The People, in its Brief filed by the Solicitor General,
resulting to (sic) the instantaneous death of Estelita Imarga, disagrees with the Appellants and maintains that the
Elena Pamoso and wounding Felipe Noquera. 10 prosecution was able to prove their guilt beyond reasonable
In convicting each of the accused for murder as charged in doubt. It stressed that at least four (4) eye-witnesses
Criminal Cases Nos. 1893 and 1895 and frustrated murder positively identified them as those who ambushed the
in Criminal Case No. 1894, the trial court considered the victims. 20 It further claims that as against the positive
qualifying circumstances of treachery and evident identification by the prosecution witnesses, the Appellants'
premeditation since the "ambush or shooting was so defense of alibi is weak and not plausible. 21
sudden and unexpected assault (sic) perpetrated by all the Anent the contention that the testimonies of the
accused insured the killing of the two defenseless victim prosecution witnesses are full of inconsistencies, the People
Estelita Imarga and Elena Pamoso and the frustrated death painstakingly contradicted each and every inconsistency
(sic) of Felipe Noquera." 11 mentioned, to wit:
Unable to accept the verdict, accused Angel Pral and Beren The appellants contend that the testimony of witness
Mandong, hereinafter referred to as the Appellants, filed Paquito Alvarez is not to be believed because there is an
their Notice of Appeal 12 on 6 February 1984 wherein they inconsistency when he admitted having pointed to all the
manifested their intention to appeal to the then accused during the preliminary investigation before the
Intermediate Appellate Court (now Court of Appeals). In fiscal, while in his testimony in court he claimed to have
view of the penalty imposed, the appeal should have been recognized only accused Beren Mandong and Purong
brought directly before this Court. The Intermediate Bilaan.
Appellate Court, upon receipt of the records of the cases, The contention is without merit. There is no showing in the
correctly forwarded the same to this Court on 15 August testimony that when counsel mentioned the word
1984; 13 the cases were then docketed as G.R. Nos. 68311- "accused", he was referring to all the accused, including
13. those at-large, or that he was referring only to all the
In their Brief, Appellants assign only one (1) error: accused who had been apprehended. Hence, the alleged
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANTS inconsistency is wanting. As to the alleged testimony of the
OF TWO (2) CRIMES OF MURDER AND FRUSTRATED defense witness Barangay Captain Malayon that when he
MURDER NOTWITHSTANDING THE INSUFFICIENCY OF interviewed Alvarez and the other passengers, no one told
EVIDENCE ADDUCED BY THE PROSECUTION TO PROVE him as to who were the ambushers, suffice it to say that the
THEIR GUILT BEYOND REASONABLE DOUBT. 14 testimony of said witness cannot be used to impeach the
and in support thereof, they assert and argue that: testimony of eye-witness Alvarez. Besides there is no
(a) Their defense of alibi should have been given more showing that Barangay Captain Malayon ever asked Alvarez
credence considering that it is corroborated by two (2) nor (sic) the passengers as to the identity of the ambushers.
other people, namely Elisias Pempillo (corroborating the The appellants likewise contends (sic) that eye-witness
alibi of Angel Pral) and Serafin Sunio (corroborating the Felipe Noquera is not credible because the said witness
testimony of Beren Mandong); 15 allegedly declared that when he heard gun reports he
(b) The testimonies of Mayor Felipe Constantino of immediately took cover by lying face down on the roof of
Malungon, South Cotabato and Barangay Captain Venancio the weapon (sic) carrier, and that when cross-examined, the
Malayon of Barangay Bilaan 16 that the real ambushers had said witness forgot the shirt worn by the accused, their
already surrendered and had been granted amnesty, clearly distance from one another and their relative position from
show their innocence; said testimonies should have been (sic) each other.
given more weight by the trial court; The contention lacks merit. It is not true that eye-witness
(c) The testimonies of the prosecution witnesses, heavily Noquera immediately took cover face down upon hearing
relied upon by the trial court in convicting the Appellants, the gun reports. What he testified during cross-examination
were full of inconsistencies such that there was a failure to is that he first looked sidewise from where the gun report
positively identify the perpetrators of the crime; 17 came before taking cover. Thus:
(d) On the credibility of the prosecution witnesses, the Q And when you dived on the roof of the vehicle on your
findings of the trial court in the case at bar are not belly, you did that instantaneously upon hearing the
controlling and should not be given much weight because gunburst?
the judge who rendered the decision is not the same judge A Yes, sir. I looked sidewise from where the gun report came
who heard the case; 18 and (p. 33, tsn, Feb. 2, 1982).
(e) Finally, even assuming arguendo, that the Appellants As regards his failure to remember the shirt worn by the
were among those who staged the ambush, they cannot be accused, their distance from one another and their relative
convicted for Frustrated Murder in G.R. No. 68312 (Criminal position from (sic) each other, suffice it to say that the same
Case No. 1894 in the court below) because as per the is not uncommon, for under such a situation where they
testimony of prosecution witness Dr. Casimiro Mansilla, the were ambushed, the natural tendency of a witness is only
victim, Felipe Noquera, would have lived even without to focus his vision at the face of the person firing at them in
medical attendance considering that the wound was just a order to see recognize (sic) malefactors. Hence, he could
slight physical injury. 19 not have a clear vision of the shirts they were wearing, their
distance from one another and relative position from (sic) As to the defense of alibi, We agree with the trial court that
each other. Besides, the witness testified after the lapsed it could not prevail over the positive identification of the
(sic) of about four (4) years. Hence, he could not have Appellants. Alibi is a weak defense and cannot prevail over
possibly remembered all the minute details which to him the testimony of truthful witnesses because it is easy to
are not of great significance. fabricate. 28 Furthermore, for alibi to prosper, it must be
The appellant further contends that the testimony of eye- established by clear evidence that the accused was in
witness Ricardo Salvador that he recognized Beren another place for such a period of time as to negate his
Mandong as one of the ambushers cannot also be given full presence at the scene of the crime when it was committed.
credit because Salvador was seated at the middle of the 29 In the case at bar, the trial court found that "it could not

weapon (sic) carrier and that the said vehicle has a roof be improbable for the accused to have been at the scene of
which could have prevented him from seeing the accused the ambush from the place where they allegedly were on
who were on top of a hill. the date of December 14, 1978, considering the distance
The contention is without merit. In the first place, it is not which is approachable within few (sic) minutes or hours." 30
true that the entire weapon (sic) carrier was covered by a We find no reason to disagree with the trial court as the
roof. Only the driver's cabin has a roof, while the portion at Appellants failed to show Us any basis for overturning this
the rear thereof was uncovered. Secondly, the ambushers findings.
were standing on the hill and were openly exposed. There The testimonies of Mayor Felipe Constantino of the
is nothing, therefore, to obstruct the view of eye-witness Municipality of Malungon and Barangay Captain Venancio
Salvador when he glanced at the ambushers who were on Malayon of barangay Bilaan do not inspire belief. Firstly, the
top of the hills firing at them. 22 alleged surrender and grant of amnesty to the "ambushers"
The People further contends that the Appellants were who, as claimed by Mayor Constantino, were not the
correctly convicted of Frustrated Murder in Criminal Case appellants, was not corroborated by "Col. Bumanglag", the
No. 1894 (G.R. No. 63811-13, herein) because "all the person who allegedly accepted the surrender and granted
elements of the crime of murder, including the intent to kill the amnesty. Secondly, Constantino's claim of an ambush is
with the use of deadly weapon, are present" and "it is based on what he allegedly heard during the meeting. There
inconsequential whether the wound inflicted is serious or was no specific reference to the ambush in question.
less serious or slight." 23 Thirdly, Col. Bumanglag, if he indeed even existed, had no
Lastly, the People submits that the indemnity of P12,000.00 authority to grant amnesty. Under the Constitution then in
each, to be paid to the heirs of the deceased Estelita Imarga force, more particularly Section 13, Article VII of the 1973
and Elena Pamoso, should be increased to P30,000.00 each, Constitution, only the President, with the concurrence of
in view of the ruling in People vs. Dioso. 24 the Batasang Pambansa, had the power to grant amnesty.
We have meticulously examined and painstakingly Fourthly, there is an irreconcilable conflict between the
scrutinized the records of this case and the challenged testimonies of the Mayor and the barangay captain as to
decision and We are convinced that the Appellants have the date of the alleged surrender. The former claims that it
been positively identified as two (2) of those who staged the took place in July 1980 31 while the latter alleges that it was
ambushcade whose guilt has been established beyond in "1979". 32 Worse, while the Mayor asserts that those who
reasonable doubt by the testimonies given by the admitted to have staged the ambush were Olding Gola-e,
prosecution witnesses, particularly that of Paquito Alvarez So Dol, Toy Maliang and Dano Pandayong, 33 witness
(driver of the weapons carrier), Felipe Noquera (the injured Malayon claims that the suspects were Toy Golas, Olding
victim) and Luis Esconde and Ricardo Salvador (both Golas, Lagono Lagayong and So Golaing. 34 This witness also
passengers of the weapons carrier). claims that one of the victims of the ambush who died was
The inconsistencies in the testimonies of Alvarez and Lolita Agupitan. 35 Per prosecution's evidence, only Elena
Noquera, which Appellants capitalized on , pertain to minor Pamoso and Estelita Imarga died as a consequence of the
details only and cannot destroy their credibility. ambush. Finally, Appellants exerted no effort to present as
Inconsistencies in the testimony of prosecution witnesses witness any of the ambushers who "surrendered." Their
with respect to minor details and collateral matters do not non-availability or hostility was not shown. The "surrender"
affect the substance of their declaration, their veracity or and "amnesty" story then is nothing but a crude fabrication.
the weight of their testimony. 25 In fact, these On the factual findings of the trial court, the Appellants urge
inconsistencies, if only in minor details, reinforce rather Us not to give weight to said findings as the judge who
than weaken their credibility, for it is usual that witnesses rendered the decision did not hear the case himself. 36 As
to a stirring event should see differently some details of a they correctly pointed out. "Appellate courts will generally
startling occurrence. 26 Rather than discredit the testimony not disturb the findings of fact of the trial court, 37 except
of the witnesses, such discrepancies on minor details serve where the judge who rendered the decision is not the judge
to add credence and veracity to their categorical, who heard the case." 38 However, the foregoing rule and its
straightforward and spontaneous testimony. 27 Besides, as exception do not apply in a case where the trial court's
earlier stated, the People took extra efforts to explain the conclusion are fully substantiated and supported by the
alleged inconsistencies and, in the process, demonstrate evidence on record and warrants the affirmance of such
the weakness of Appellants' claim. findings. 39
As held in the case of People vs. Bocatcat: 40 evidence presented against the appellants miserably failed
Finally, the Court notes that the lower court's judgment was to prove the foregoing requisites.
penned by a judge who did not hear the evidence. And so, Treachery is present when the offender commits any of the
while the rule is settled that the findings of fact by the trial crimes against persons employing means, methods or
court are entitled to great weight on appeal, as they are in forms in the execution thereof which tend directly and
better position to examine and observe the demeanor of specially to insure its execution without risk to himself
witnesses, this rule does not, however, apply in the case at arising from the defense which the offended party might
bar, yet, we find no cogent reason to reverse His Honor's make. 47 While treachery was duly proven against
judgment as his conclusions are fully substantiated and appellants because the ambush was so sudden and
supported by the evidence on record. unexpected that the victims were unable to defend
In the case at bar, We find that the findings of fact of the themselves and, obviously, the means of execution were
trial court are amply supported by the evidence on record. deliberately and consciously adopted, such circumstance is
We agree, however, with Appellants that they cannot be not, however, alleged in the three (3) informations.
convicted for the crime of Murder in Criminal Case No. 1894 For treachery to qualify the crime of homicide to murder, it
because, as testified to by Dr. Casimiro Mansilla, the doctor must be alleged in the information, otherwise it will only be
who examined the victim, Felipe Noquera, the latter would considered a generic aggravating circumstance, if proven. 48
have lived even without medical attendance because the Therefore, treachery is only a generic aggravating
"wound was just a slight physical injury." 41 Per the medical circumstance in these cases. The informations allege that
certificate, 42 the following were the injuries inflicted on the aggravating circumstance of band attended the
Noquera: commission of the crimes charged. There is a band
Wound, gunshot with avulsion of outer layer of skin 4 whenever more than three (3) armed malefactors shall
centimeter (sic) long, one centimeter wide left interscapular have acted together in the commission of an offense. 49 The
area. accusatory portions of the informations elaborate this
Wound, gunshot with avulsion of outer layer of skin 6 circumstance by stating that the five (5) named accused,
centimeter (sic) long, one centimeter wide right, two (2) of whom are the Appellants, and two (2) other John
infrascapular area. Does "armed with assorted high-powered weapons such as
which "require medical attendance for the period of seven Garand rifle, shotgun and surit and with evidence
(7) to nine (9) days, unless complications set in or premeditation and with deliberate intent to kill, did then
manifestation due to internal injuries which are not and there willfully, unlawfully and feloniously ambush,
apparent at the time of the examination appear later." attack, assault and shoot with assorted high powered
A crime is frustrated when the offender performs all the weapons" the weapons carrier of Edon Escobillo thereby
acts of execution which would produce the felony as a causing the death and injuries described therein. Evidently,
consequence but which, nevertheless, do not produce it by the prosecution did not intend to make the aggravating
reason of causes independent of the will of the perpetrator. circumstance of aid of armed men as a qualifying
43 However, if the offender commences the commission of circumstance under Article 248 of the Revised Penal Code.
a felony directly by overt acts, and does not perform all the Otherwise, it would have expressly alleged it as such as in
acts of execution which should produce the felony by the case of the qualifying circumstance of treachery and
reason of some cause or accident other than his own evident premeditation. Accordingly, band absorbed aid of
spontaneous desistance, the crime is only attempted. 44 It is armed men. 50
quite obvious that, in respect to Noquera, the crime never The aggravating circumstance of disregard of the respect
passed the "attempted" stage. due the offended party on account of sex alleged in Criminal
The trial court, in ruling that murder was committed in the Cases Nos. 1893 and 1895 cannot be appreciated against
case of Elena Pamaso and Estelita Imarga and frustrated the Appellants, there being no proof that they deliberately
murder in the case of Felipe Noquera, considered the intended to offend the sex of the victims or show manifest
qualifying circumstances of evident premeditation and disrespect towards them. 51
treachery. Accordingly, the Appellants are guilty of homicide on two
We disagree with the trial court on this score. (2) counts and of attempted homicide, with the generic
For evident premeditation to be present, the following aggravating circumstances of treachery and band.
requisites must concur: The penalty for Homicide under Article 249 of the Revised
(1) the time when the offender determined to commit the Penal Code is reclusion temporal. In view of the generic
crime; aggravating circumstances of treachery and band, the
(2) an act manifestly indicating that he has clung to his penalty shall be imposed in its maximum period. They are
determination; and, entitled to the benefits of the Indeterminate Sentence Law
(3) sufficient lapse of time between determination and 52 which authorizes the imposition of an indeterminate

execution to allow him to reflect upon the consequences of penalty the maximum of which shall be that which, in view
his act. 45 of the attending circumstances, could be properly imposed
It must be proved as clearly as the crime itself and cannot under the rules of the Revised Penal Code and the minimum
be deduced from mere conclusions and inferences. 46 The of which shall be within the range of the penalty next lower
to that prescribed by the Code for the offense. The penalty
for attempted homicide (Criminal Case No. 1894) is,
pursuant to Article 50 of the Revised Penal Code, two (2)
degrees lower than that provided for in Article 249, which
is prision correccional. Appellants are also entitled to the
benefits of the Indeterminate Sentence Law.
In accordance with the policy of this Court, 53 the civil
indemnity for each death should be increased from
P12,000.00 to P50,000.00.
WHEREFORE, in view of the foregoing, the appealed
judgment is hereby modified. As modified, Appellants Angel
Pral and Beren Mandong are hereby found and declared
guilty beyond reasonable doubt of the crime of Homicide
on two (2) counts for the death of Elena Pamoso in Criminal
Case No. 1893 and for the death of Estelita Imarga in
Criminal Case No. 1895, and of the crime of Attempted
Homicide in Criminal Case No. 1894. Taking into account the
absence of any mitigating circumstances and the presence
of the aggravating circumstances of treachery and band,
and applying the Indeterminate Sentence Law, each of
them is hereby sentenced to suffer as follows:
1) In Criminal Case No. 1893, an indeterminate penalty
ranging from Ten (10) years and One (1) day of Prision
Mayor as minimum to Seventeen (17) years, Eight (8)
months and One (1) day of Reclusion Temporal as
maximum;
2) In Criminal Case No. 1895, an indeterminate penalty
ranging from Ten (10) years and One (1) day of Prision
Mayor as minimum to Seventeen (17) years, Eight (8)
months and One (1) day of Reclusion Temporal as
maximum;
3) In Criminal Case No. 1894, an indeterminate penalty
ranging from Four (4) months and One (1) day of Arresto
Mayor as minimum to Four (4) years, Two (2) months and
One (1) day of Prision Correccional as maximum;
and to indemnify, jointly and severally, the heirs of the
deceased Elena Pamoso in Criminal Case No. 1893 in the
sum of P50,000.00 and the heirs of the deceased Estrelita
Imarga in Criminal Case No. 1895 in the sum of P50,000.00,
without prejudice to the seeking of reimbursement from
their co-accused in the event the latter are arrested, tried
and convicted.
The prosecutory arm of the Government is enjoined to take
immediate positive steps to bring into the custody of the
law the other accused who shall forthwith be tried by the
lower court.
The Appellants are further ordered to pay two-
sevenths(2/7) of the costs.
IT IS SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.