Bintana

I. People vs.
Almoguerra
G.R. No. 121177. November 12, 2003.*
PEOPLE OF THE PHILIPPINES, appellee, vs. CHARLIE ALMOGUERRA and DANTE
ATON, appellants.
Criminal Law; Circumstantial Evidence; Requisites.—Direct evidence of the commission of
the crime charged is not the only matrix where-from a court may draw its conclusions and
findings of guilt. The rules on evidence and case law sustain the conviction of appellants
through circumstantial evidence. Under Section 4, Rule 133 of the Revised Rules of Court
on circumstantial evidence, the following requisites must concur: (1) there must be more
than one circumstance; (2) the facts from which the inferences are derived are proven; and
(3) the combination of all circumstances is such as to produce a conviction beyond
reasonable doubt of the guilt of the accused.
Same; Same; Robbery with Homicide; Elements.—The foregoing circumstances when
viewed in their entirety are as convincing as direct evidence and as such, negate the
innocence of the appellants. Otherwise stated, the prosecution established beyond a
shadow of a doubt, through circumstantial evidence, that both appellants conspired to
commit the complex crime of robbery with homicide. The elements of this crime are: (a)
the taking of personal property is perpetrated by means of violence or intimidation against
a person; (b) the property taken belongs to another; (c) the taking is characterized by
intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason
thereof, the crime of homicide, here used in its generic sense, is committed.
Same; Same; Same; Conspiracy; The proof of conspiracy is perhaps most frequently
made by evidence of a chain of circumstances.—The proof of conspiracy is perhaps most
frequently made by evidence of a chain of circumstances. The series of events in this case
clearly show that appellants were of one mind, not only in taking the money of spouses
Julaton, but also in the manner they committed the crime. Clearly, their concerted actions
are indications of a criminal conspiracy.
Same; Alibis and Denials; Alibi is inherently weak and unreliable, unless corroborated by
disinterested witnesses.—In sum, we find appellants’ defenses of denial and alibi
unavailing. Alibi is inherently weak and unreliable, unless corroborated by disinterested
witnesses. Since appellants were unable to substantiate their alibi with the testimony of a
credible witness, it is reduced to self-serving evidence undeserving of any weight in law.
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* EN BANC.
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SUPREME COURT REPORTS ANNOTATED
People vs. Almoguerra
Same; Flight; Flight per se cannot prove the guilt of the accused but, considered in the
light of other circumstances, it may be deemed a strong indication of guilt.—Appellant
Almoguerra’s defense is further weakened by his escape from the provincial jail. Flight per
se cannot prove his guilt. But considered in the light of other circumstances, it may be
deemed a strong indication of guilt.
Same; Robbery with Homicide; Aggravating Circumstances; Treachery; The killing of minor
children who, by reason of their tender years, could not be expected to put up a defense is
considered attended with treachery even if the manner of attack was not shown.—In
People vs. Escote, we held that “treachery is a generic aggravating circumstance when the
victim of homicide is killed with treachery.” The killing of minor children who, by reason of
their tender years, could not be expected to put up a defense is considered attended with
treachery even if the manner of attack was not shown. Considering that the victims in this
case of robbery with homicide are young children, aged 7, 8 and 14, the killing was
aggravated by treachery.
Same; Same; Same; Dwelling is considered aggravating in robbery with homicide because
this kind of robbery cannot be committed without the necessity of transgressing the
sanctity of the house.—Likewise, the aggravating circumstance of dwelling is present here.
Appellants’ deliberate intrusion in the privacy of the Julaton’s domicile shows perversity. In
People vs. Feliciano, “dwelling is considered aggravating in robbery with homicide
because this kind of robbery cannot be committed without the necessity of transgressing
the sanctity of the house.”
Same; Same; Damages; Temperate damages, in lieu of actual damages, may be
recovered when the court finds that some pecuniary loss has been suffered but its amount
cannot be proved with certainty.—As to Lily Julaton’s claim that the sum of P25,000.00
was spent for her children’s funeral expenses, we find the same unsubstantiated. In
People vs. Solamillo, we ruled that to be entitled to the award of actual damages, “it is
necessary to prove the actual amount of loss with a reasonable degree of certainty,
premised upon competent proof and on the best evidence obtainable to the injured party.”
While the prosecution failed to present any receipt to prove the claim for actual damages,
we are aware that the same were indeed incurred by the family of the deceased.
Temperate damages, in lieu of actual damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot be proved with
certainty. In People vs. Abrazaldo, we computed temperate damages at P25,000.00. We
award the same in this case.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of San Jacinto, Masbate,
Br. 50.
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VOL. 415, NOVEMBER 12, 2003

649
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellants.
PER CURIAM:
The crime involved in the instant case is despicable because innocent lives of three (3)
young children were callously taken. This gruesome incident which occurred on the day of
the barangay election last May 9, 1994 shocked the quiet barangay of Piña, San Jacinto,
Masbate. The grieving folks of that barangay branded the killing of those children as the
“Masbate Massacre.”
For automatic review is the Decision1 dated May 9, 1995 of the Regional Trial Court,
Branch 50, San Jacinto, Masbate, in Criminal Case No. 561, declaring Charlie Almoguerra
and Dante Aton, appellants, guilty beyond reasonable doubt of the special complex crime
of robbery with homicide and sentencing them to suffer the supreme penalty of death.
They were also adjudged to pay Florentino and Lily Julaton, parents of the victims,
P150,000.00 as civil indemnity and P15,000.00, the amount taken.
The Information2 dated June 29, 1994 against appellants is quoted as follows:
“That on or about May 9, 1994, in the morning thereof, at Sitio Nabarira, Barangay Piña,
Municipality of San Jacinto, Province of Masbate, Philippines, within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping
each other, with intent to gain by means of violence and/or intimidation of person, did then
and there, willfully, unlawfully and feloniously rob the residence of spouses FLORENTINO
JULATON and LILY AMOR located at the above-mentioned address by then and there
taking away the amount of FIFTEEN THOUSAND PESOS (P15,000.00) in different
denominations and coins without the consent of said spouses, to their damage and
prejudice in the amount aforementioned and that on the occasion of said Robbery and
pursuant to the same conspiracy, herein accused, with intent to kill, by means of treachery,
did then and there willfully, unlawfully and feloniously attack, assault and employ personal
violence upon the persons of GINA JULATON Y AMOR, 14 years old, LYN JULATON, 8
years old, and REY JULATON Y AMOR, 7 years old, by then and there
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1 Penned by Judge Manuel S. Pecson, Rollo at pp. 20-32. 2 Rollo at p. 6.

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stabbing them with a bladed weapon (machete), hitting them on different parts of their
bodies, thereby inflicting upon them serious and mortal wounds which were the direct and
immediate cause of their untimely deaths.
“Committed with the aggravating circumstance that the crime is committed in the dwelling
of the offended party.
“CONTRARY TO LAW.”
Upon arraignment, appellants, with the assistance of counsel, pleaded not guilty.
During the trial, the prosecution presented the following witnesses: SPO2 Noli Bartolay, Dr.
Rosario Mores, Jessie Genova, Jr., Jessie Genova, Sr., Lily Julaton, Lea Amor, Florentino
Julaton, Regino Esparraguerra and Dr. Jesus Camposano. Their testimonies are
summarized below.
On May 9, 1994, spouses Florentino and Lily Julaton went to the polling precinct at
Barangay Piña, San Jacinto, Masbate, to cast their votes in the barangay elections.3
Before leaving, they instructed their three (3) children, namely: Gina, 14 years old, Lyn, 8
years old and Rey, 7 years old, to watch their store and prevent strangers from entering
their house.4
At around 9:30 o’clock that same morning, Jessie Genova, Jr. was gathering “malunggay”
leaves at their farm,5 about thirty (30) meters away from the Julaton’s house,6 when he
heard appellant Dante Aton shouting and inviting him to smoke cigarettes.7 As he was
approaching the house, he noticed that appellant Aton was hiding his right hand behind the
door while his left hand was holding a cigarette.8 Near the door were the bodies of two (2)
dead children, Gina and Rey.9 When appellant Aton uttered “ada na” (here he comes),10
appellant Charlie Almoguerra immediately went down the stairs holding assorted coins at
his right hand and a
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3 Transcript of Stenographic Notes (TSN) dated February 7, 1995 at p. 3; Records at p.

387.
4 Exhibit “A”, Records at p. 82.
5 TSN dated September 13, 1994 at p. 4; Records at p. 195.
6 Id., at pp. 5 and 18; Records at pp. 196 and 209.
7 Id., at pp. 21-22; Records at pp. 212-213.
8 Id., at p. 7; Records at p. 198.
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bladed knife or “machete” at his left hand.11 Appellant Almoguerra then forced him (Jessie
Genova, Jr.) to accept the loose coins.12 Frightened, he received the coins, placed them
inside his pocket and ran away.13 At the moment, he heard them shouting “kon mamarita
ka, papatyon ka namon hasta an iyo familya” (if you tell somebody, we will kill you and
your family).14 Upon reaching his house, he placed the loose coins inside the cabinet.15
Meanwhile, he and his father, Jessie Genova, Sr., accompanied spouses Julaton in
bringing the dead bodies to Ticao District Hospital at San Jacinto.16 Upon their return to
barangay Piña, he gave the loose coins amounting to P30.75 to his father and told him
about the incident.17 The next day, his father convinced him to report the incident to the
police. He then executed a sworn statement.18
Meanwhile, upon being informed of the incident by Sonny Amor, spouses Florentino and
Lily Julaton immediately returned home.19 Along the way, they saw appellant Almoguerra
on the upper part of the hill near their house.20 Arriving there, they found all their children
dead.21 They also found that their wooden chest or “baul” was forcibly opened and that
their cash of P15,000.00 and some loose change were missing.22
SPO2 Noli “Socoy” Bartolay of the PNP of San Jacinto, Masbate conducted an
investigation.23 He saw the dead bodies of Gina and Rey inside the kitchen, while that of
Lyn in the bedroom.24 Lily Julaton informed him that their wooden chest or “baul” was
forci-
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12 Id.
14 Id., at 9; Records at p. 200.
16 TSN dated September 13, 1994, supra at p. 11; Records at p. 202.
17 Id., at pp. 10-12; TSN dated October 21, 1994 at pp. 6-7; Records at pp. 201-203 and
239-240.
18 Exhibits “B” and “G”, Records at pp. 7 and 26.
19 TSN dated February 7, 1995 at pp. 3-4; Records at pp. 387-388.
21 TSN dated September 13, 1994, supra at p. 46; Records at p. 227.
23 TSN dated July 13, 1994 at p. 7; Records at p. 132.
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bly opened and the amount of P15,000.00 kept therein was missing.25
Dr. Rosario Mores examined the victims’ bodies. While on the witness stand, she
confirmed her three (3) separate Post-Mortem Reports,26 reproduced below:
“x x x
“According to the hospital record, GINA A. JULATON of Piña, San Jacinto, Masbate was
examined in the hospital on May 9, 1994 with the following findings:
1. Stabbed wound, 3 cm., anterior, neck.
“x x x.”27
“According to the hospital record, LYN A. JULATON of Piña, San Jacinto, Masbate was
1. Stabbed wound, neck, 5 cm.
2. Stabbed wound, abdomen, 5 cm.
3. Stabbed wound, 3.5 cm., hand, left, thru and thru.
4. Stabbed wound, face, 1 cm., right.
“x x x.”28
“According to the hospital record, REY A. JULATON of Piña, San Jacinto, Masbate was
1. Stabbed wound, chest, 5 cm.
2. Stabbed wound, neck, 3 cm. “x x x.”29
Dr. Mores declared that all the stab wounds “were probably inflicted or caused by a sharp
pointed or edged instrument.”30
Lea Amor testified that when she visited her cousin, Efren Magdaraog, detained at the
municipal building, she saw appellant Almoguerra, who was also detained. When she
asked him why he
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26 Exhibits “D”, “E” and “F”, Records at pp. 83-85.
27 Exhibit “D”, Records at p. 84.
28 Exhibit “E”, Records at p. 83.
29 Exhibit “F”, Records at p. 85.
30 TSN dated July 13, 1994, supra at p. 32; Records at p. 157.
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killed the Julaton children, he answered that they refused to sell him cigarettes on credit.31
Appellant Aton merely denied the charge. He testified that on that particular date, he was
in Barangay Piña to cast his vote in the barangay election but his name was not in the
voters’ list. So, he decided to go to his brother’s residence at Barangay Bagahanglad that
same day.
He also testified that he was investigated by the police32 and was forced to execute an
affidavit on May 12, 1994,33 stating that he was with appellant Almoguerra and Efren
Magdaraog when they committed the crime, thus:
“x x x
“That last 9 May 1994 at about 9:30 in the morning more or less, I was on the way to
barangay Bagahanglad, San Jacinto, Masbate from sitio Guintariban, Piña, San Jacinto,
Masbate;
“That during that time and date, I saw Charlie Almoguerra and Efren Magdaraog, both
drunk, at the well at sitio Nabarira, Piña, San Jacinto, Masbate about fifty (50) meters
away from the house of Florentino ‘Tinoy’ Julaton. Then Charlie Almoguerra told me to go
with them to buy cigarette at the store of Florentino Julaton, and so I went with them and
when we were already near the house of Florentino Julaton, I heard Efren Magdaraog
saying, “May cuarta pa dide” which, in English means, “There is money here”, referring to
the house of Florentino Julaton. And then when we reached the house of the latter,
immediately Charlie Almoguerra and Efren Magdaraog entered the house. Charlie
Almoguerra went directly to a young girl about 14 years old and demanded for cigarette,
while Efren Magdaraog started searching for the money;
“That because the young girl did not give cigarette to Charlie, he unsheated his machete
and stabbed the girl causing her to fall down;
“That at this juncture, Jessie Genova, Jr. alias ‘Pinoy’ arrived and seeing the situation that
there were two children dead, he ran away and so because I was already afraid, I also ran
away, leaving behind Charlie Almoguerra and Efren Magdaraog.
x x x.”
Later, appellant Aton retracted the above affidavit on the ground that it was obtained
involuntarily and that he was not
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31 TSN dated November 16, 1994 at pp. 2-3; Records at pp. 266-267.
32 TSN dated December 14, 1994 at pp. 3-4; Records at pp. 290-291.
33 Annex “E”, Records at p. 9.
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assisted by his counsel.34 Hence, appellant Almoguerra and Magdaraog were released
from detention.35
Subsequently, or on May 20, 1994, he executed another affidavit36 with the assistance of
his counsel, imputing the commission of the crime only to appellant Almoguerra. Appellant
Aton, in the same affidavit, also stated that he was with appellant Almoguerra during the
incident; that the latter then intended to buy a cigarette; that he prevented Almoguerra from
stabbing the first victim; that Almoguerra also stabbed another girl; and that he (Aton)
because of fear ran away. His affidavit is partly reproduced below:
“Last 9 May 1994 at about 9:30 in the morning more or less, I was at sitio Nabarira, Piña,
San Jacinto, Masbate. That during that time and date, I saw Charlie Almoguerra at the well
about 50 meters away from the house of Florentino ‘Tinoy’ Julaton, and he told me to go
with him to buy a cigarette, and when we arrived at the said house, Charlie Almoguerra
proceeded inside the house and went directly to a young girl about 14 years old and
demanded for a cigarette, and because the girl did not give a cigarette to Charlie
Almoguerra, the latter unsheated a machete and held the arm of the young girl, and then I
glanced at the window and prevented him but he did not obey instead he stabbed the
young girl causing her to fall down, then he went to another small girl who was crying and
then stabbed her again then I went near the door and this time Jessie Genova, Jr. arrived
and when he saw that there were two children already dead, he ran away as fast as he
could, then because of fear, I also ran away.”
Later, appellant Aton attempted to retract the above affidavit by asserting that he was
merely forced and tortured by SPO2 Noli “Socoy” Bartolay to execute and sign it.37
Upon rebuttal, the prosecution presented Dr. Jesus Camposano who testified that
appellant Aton could not have been maltreated or tortured by the police; and that when
physically examined, he was found to be mentally fit with no signs of apparent injuries on
his body.38
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34 TSN dated December 14, 1994, supra at p. 4; Records at p. 291.

35 Exhibit “5”; Records at p. 16.
36 Exhibit “C”, Records at p. 28.
38 TSN dated March 1, 1995 at pp. 5-6; Records at pp. 414-415.
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For his part, appellant Charlie Almoguerra, together with his mother Josefina and his sister
Rodelyn, have a different story to tell.
On May 9, 1994, the day of the incident, at around 7:00 o’clock in the morning, Josefina
Almoguerra left her house at Bagabansalan, Bartolabac, San Jacinto and went to the
polling precinct at Barangay Piña to cast her vote in the barangay election.39 At that time,
her husband, Bienvenido, and her children, appellant Charlie, Jerry, Darwin, and Rodelyn,
were still asleep.40 After casting her vote at about 10:00 o’clock that same morning, she
heard that Florentino Julaton’s children were killed.41 She then proceeded to their
residence and stayed there until 11:00 o’clock noon. She saw the dead bodies.42 After
informing her family and children about the incident,43 her husband and their son,
appellant Charlie, went to the Julaton’s house where they stayed for only thirty (30)
minutes because the latter had a fever44 caused by a boil at his left armpit. On May 12,
1994, at around 8:00 o’clock in the evening, appellant was investigated by the police.45
On July 4, 1994,46 he was arrested and detained. He admitted that while he was in
detention at the Matiporon provincial jail, he escaped with a certain Donggoy and
thereafter committed another crime of robbery in Aroroy, Masbate.47
On May 9, 1995, the trial court rendered a Decision, the dispositive portion of which,
reads:
“WHEREFORE, premises considered by proof beyond reasonable doubt, this Court
hereby convicts the accused Charlie Almoguerra and Dante Aton for the crime of Robbery
with Homicide defined and punished under Article 294 of the Revised Penal Code, as
amended by Sec. 9 of R.A. No. 7659, with the presence of aggravating circumstances of
treachery and
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39 TSN dated December 14, 1994, supra at pp. 19-20; Records at pp. 306-307.
40 Id.
43 Id.
44 Id., at p. 22 and TSN dated January 5, 1995 at pp. 10-12; Records at pp. 309 and 346-
348.
45 TSN dated January 5, 1995, id., at p. 13; Records at p. 349.
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dwelling. Charlie Almoguerra and Dante Aton are both sentenced to suffer the maximum
penalty of death and to pay the heirs of the three (3) children the amount of FIFTY
THOUSAND (P50,000.00) PESOS each or the total amount of ONE HUNDRED FIFTY
THOUSAND (P150,000.00) PESOS and to return the amount of FIFTEEN THOUSAND
(P15,000.00) PESOS taken from the spouses Florentino and Lily Julaton.
“SO ORDERED.”48
In convicting both appellants, the trial court held:
“The defense evidence consist of denials and alibis which are all considered the weakest
of all defenses. Aton’s testimony was that he allegedly went to barangay Bagahanglad
after he failed to see his name in the list of registered voters in Barangay Piña, while
Charlie Almoguerra alleged to have been at home not far away from the scene of the crime
allegedly being sick and asleep.
“Their allegations did not help them at all. It is of judicial notice that Barangay
Bagahanglad where Aton claims to be, and Sitio Bagabansalan, Barangay Bartolabac
where Charlie claims he was, are neighboring barangays of barangay Piña where both
places could be reached in a matter of minutes. Moreover, Aton claims to be in Barangay
Piña in the morning of May 9, 1994 while the mother of Charlie was even in Barangay Piña
on that fateful morning to cast her vote. Thus, their defense of alibi cannot be considered
as it is not far-fetched that it was indeed easy to commit the crime then hide in the safety
of their homes considering the proximity of the scene of the crime to their respective
alleged whereabouts.
“The alibi offered by the accused is unavailing. It is well-settled that in order for alibi to
prosper, the evidence to support it must be clear and convincing so as to preclude the
possibility of the accused’ presence at the scene of the crime while the evidences to his
identification must be weak and insufficient (People vs. Damos, G.R. No. 108599, Oct. 7,
1994). As narrated above, it is not impossible for the two accused to have been at the situs
of the crime then escape to the safety of their homes/hideouts.
“x x x
“It is axiomatic that a person’s guilt may be established not only by direct evidence but also
by circumstantial evidence which is sufficient to convict as long as: (a) there is more than
one circumstance; (b) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt (People vs. Ballesteros and Avestro, G.R. No.
110289, Oct. 7, 1994). The circumstances narrated borne-out by the records indubitably
point to the accused as the culprits.
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48 Decision, Rollo at p. 32.

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“This Court agrees with the prosecution that the circumstance of killing was aggravated by
treachery and dwelling. The mere fact of killing a child already constitutes treachery. The
three (3) innocent children were all hacked to death without anyone defending for them all
because of the evil minds of the accused. Killing a child is characterized as treachery even
if the manner of the assault is not shown because the weakness of the victims due to their
tender age results in the absence of any danger to the accused (People vs. Cabarrubias,
223 SCRA 363).
“Dwelling is likewise present in this case as aggravating circumstance because robbery
could not be committed without the necessity of transgressing the sanctity of the home
(People vs. Gapasin, 145 SCRA 181).”49
Appellant Almoguerra, in his brief, ascribed to the trial court the following errors:
“I
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING
THE ACCUSED-APPELLANT CHARLIE ALMOGUERRA GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE BY GIVING
FULL FAITH AND CREDENCE TO THE TESTIMONIES OF PROSECUTION WITNESSES
WHICH ARE REPLETE WITH IMPROBABILITIES.
“II
THE TRIAL COURT ERRED IN ORDERING ACCUSED-APPELLANT CHARLIE

ALMOGUERRA TO PAY THE HEIRS OF THE THREE CHILDREN THE AMOUNT OF
FIFTY THOUSAND PESOS (P50,000.00) EACH OR TO THE TOTAL AMOUNT OF ONE
HUNDRED FIFTY THOUSAND PESOS (P150,000.00) AND TO RETURN THE AMOUNT
OF FIFTEEN THOUSAND PESOS (P15,000.00) TAKEN FROM THE SPOUSES
FLORENTINO AND LILY JULATON.”
For his part, appellant Aton raised in his brief the following assignments of error:
“I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

DANTE ATON GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY
WITH HOMICIDE.
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49 Id., at pp. 30-32.

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“II
“THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT DANTE ATON TO

PAY THE HEIRS OF THE THREE CHILDREN THE AMOUNT OF FIFTY THOUSAND
PESOS (P50,000.00) EACH OR A TOTAL AMOUNT OF ONE HUNDRED FIFTY
THOUSAND PESOS (P150,000.00) AND TO RETURN THE AMOUNT OF FIFTEEN
THOUSAND PESOS (P15,000.00) TAKEN FROM THE SPOUSES FLORENTINO AND
LILY JULATON.”
In essence, appellants contend that the trial court erred in finding them guilty of the crime
of robbery with homicide considering that the May 11, 1994 affidavit of prosecution witness
Jessie Genova, Jr. does not mention the name of appellant Almoguerra as one of the
assailants; and that appellant Aton’s May 20, 1994 affidavit stating that he was with
Almoguerra when the latter committed the crime was obtained through force and
maltreatment.
Articles 293 and 294(1) of the Revised Penal Code, as amended by RA 7659, Section 9,
provides:
“ART. 293. Who are guilty of robbery.—Any person who, with intent to gain, shall take any
personal property belonging to another, by means of violence against or intimidation of any
person, or using force upon anything, shall be guilty of robbery.
“ART. 294. Robbery with violence against or intimidation of persons—Penalties.—Any
person guilty of robbery with the use of violence against or intimidation of any person shall
suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed, or when the robbery shall have
been accompanied by rape or intentional mutilation or arson.”
Direct evidence of the commission of the crime charged is not the only matrix wherefrom a
court may draw its conclusions and findings of guilt. The rules on evidence and case law
sustain the conviction of appellants through circumstantial evidence.50
Under Section 4, Rule 133 of the Revised Rules of Court on circumstantial evidence, the
following requisites must concur: (1) there must be more than one circumstance; (2) the
facts from which the inferences are derived are proven; and (3) the combina-
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50 People vs. Edralin Taboga, G.R. Nos. 144086-87, February 6, 2002, 376 SCRA 500,
citing People vs. Fegidero, 337 SCRA 274, 282 (2000).
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tion of all circumstances is such as to produce a conviction beyond reasonable doubt of
the guilt of the accused. In the case at bar, the following circumstances cited by the trial
court led us to the inevitable conclusion that the prosecution proved by evidence beyond
reasonable doubt all the elements of robbery with homicide and that appellants conspired
to commit the crime, thus:
1. Appellants knew very well that May 9, 1994 was a barangay election day and that most
of the registered voters of San Jacinto, Masbate, including Florentino and Lily Julaton,
would go to the polling precincts to cast their votes;
2. That same morning, only the Julaton children were left to watch their house and store;
3. Prosecution witness Jessie Genova, Jr. testified that on that particular day and time, he
saw appellant Aton at the Julaton’s house and the latter, in a loud voice, asked him to
smoke;
4. When Jessie Genova, Jr. was approaching the house, he saw appellant Aton hiding his
right arm behind the door while his left hand was holding a cigarette. At that instance, he
also saw the two (2) dead bodies of the Julaton children;
5. And after he heard appellant Aton utter “ada na” (here he comes—referring to Jessie
Genova, Jr.), appellant Almoguerra went down the stairs holding a “machete” or bladed
knife at his left hand and loose coins at his right hand;
6. Appellant Almoguerra then forced Jessie Genova, Jr. to accept the loose coins. The
latter placed them inside his pocket and immediately ran away;
7. While running away, he heard the appellants shouting “kon mamarita ka, papatyon ka
namon hasta an iyo familya” (if you tell somebody, we will kill you and your family);
8. Police investigation established that the dead bodies of Gina and Rey Julaton were
found inside the kitchen while that of Lyn Julaton was inside the bedroom. The amount of
P15,000.00 was missing from spouses Julaton’s wooden chest or “baul” that was forcibly
opened;
9. Physical examination of the victims showed that the stab wounds inflicted upon them
were caused by a sharp pointed or edged instrument;
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10. Appellant Aton’s two (2) affidavits state that on the date of the commission of the crime,
he was with appellant Almoguerra who wanted to buy cigarette at the Julaton’s store; and
that he stabbed the victims;
11. Appellant Aton’s affidavit of May 12, 1994 reveals his and his companions’ intent to rob
the house of spouses Julaton. In this affidavit, appellant stated that while on their way to
the Julaton’s residence, Edren Magdaraog said, “may cuarta pa dide” (there is money
here);
12. Dr. Jesus Camposano who examined appellant Aton found that the latter was
physically and mentally fit with no apparent signs of injuries. Hence, his affidavits deserve
credence; and
13. Appellant Almoguerra escaped while he was detained at the provincial jail. Worse, he
even committed another crime (robbery) in another barangay.
The foregoing circumstances when viewed in their entirety are as convincing as direct
evidence and as such, negate the innocence of the appellants. Otherwise stated, the
prosecution established beyond a shadow of a doubt, through circumstantial evidence,
that both appellants conspired to commit the complex crime of robbery with homicide. The
elements of this crime are: (a) the taking of personal property is perpetrated by means of
violence or intimidation against a person; (b) the property taken belongs to another; (c) the
taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the
robbery or by reason thereof, the crime of homicide, here used in its generic sense, is
committed.51
From the circumstantial evidence offered by the prosecution, it is clear that both
appellants, acting in conspiracy, took P15,000.00 from the Julatons by means of violence
against the three (3) children. For why should appellants kill them were it not for their intent
and determination to take the money?
Clearly, by his own account, appellant Aton placed himself squarely at the crime scene
when the killing occurred on the occasion of the robbery. However, he vigorously contends
that he cannot be held liable for robbery with homicide because he neither
_______________
51 People vs. Ricardo Napalit Y Paral, G.R. Nos. 142919 and 143876, February 4, 2003,
396 SCRA 687.
661

661
took the money nor killed the victims. In fact, he prevented appellant Almoguerra from
killing the first victim.
It bears stressing that appellant Aton admitted not only once but twice in his own affidavits
that he was with appellant Almoguerra before, during, and after the commission of the
crime charged. And he even confirmed the veracity of his statements on the witness stand.
Appellant Aton’s contention that he intervened when appellant Almoguerra attacked the
first victim and that thereafter, he ran away out of fear does not deserve credence. If this
were so, why did he leave only after he saw prosecution witness Jessie Genova, Jr.?
On the whole, appellant Aton’s conduct affirms the fact that he consciously concurred with
appellant Almoguerra in committing the crime.
The proof of conspiracy is perhaps most frequently made by evidence of a chain of
circumstances.52 The series of events in this case clearly show that appellants were of
one mind, not only in taking the money of spouses Julaton, but also in the manner they
committed the crime. Clearly, their concerted actions are indications of a criminal
conspiracy.
Appellants, to exculpate themselves, merely denied the commission of the crime and
interposed the defense of alibi. For this defense to stand, it must be shown that not only
were appellants somewhere else when the crime was committed but also that it was
physically impossible for them to have been at the scene of the crime at the time it was
committed.53
On this point, the trial court held:
“x x x. Aton’s testimony was that he allegedly went to barangay Bagahanglad after he
failed to see his name in the list of registered voters in Barangay Piña while Charlie
Almoguerra alleged to have been at home not far away from the scene of the crime
allegedly being sick and asleep.
“Their allegations did not help them at all. It is of judicial notice that Barangay
Bagahanglad where Aton claims to be, and Sitio Bagabansalan, Barangay Bartolabac
where Charlie claims he was, are neighboring ba-
_______________
52 People vs. Visaya, G.R. No. 136967, February 26, 2001, 352 SCRA 713, 720-721.
53 People vs. Avendaño, G.R. No. 137407, January 28, 2003, 396 SCRA 309.
662
662
rangays of barangay Piña where both places could be reached in a matter of minutes.
Moreover, Aton claims to be in Barangay Piña in the morning of May 9, 1994 while the
mother of Charlie was even in Barangay Piña on that fateful morning to cast her vote.
Thus, their defense of alibi cannot be considered as it is not far-fetched that it was indeed
easy to commit the crime then hide in the safety of their homes considering the proximity
of the scene of the crime to their respective alleged whereabouts.”
We are in accord with the trial court’s finding that considering the distance between the
scene of the crime and the places where both appellants claimed they were, it was
physically possible for them to have been in the crime scene at the time it was committed.
In sum, we find appellants’ defenses of denial and alibi unavailing. Alibi is inherently weak
and unreliable, unless corroborated by disinterested witnesses. Since appellants were
unable to substantiate their alibi with the testimony of a credible witness, it is reduced to
self-serving evidence undeserving of any weight in law.54
Appellant Almoguerra’s defense is further weakened by his escape from the provincial jail.
Flight per se cannot prove his guilt. But considered in the light of other circumstances, it
may be deemed a strong indication of guilt.55
In fine, the trial court correctly held that the circumstances taken together point to the fair
and logical conclusion that both appellants are guilty of the crime of robbery with homicide.
The only remaining question is whether the crime was attended by aggravating
circumstances.
The aggravating circumstances of treachery and dwelling have been alleged in the
Information and proved by the prosecution by strong and convincing evidence.
In People vs. Escote, Jr.,56 we held that “treachery is a generic aggravating circumstance
when the victim of homicide is killed with treachery.” The killing of minor children who, by
reason of their tender years, could not be expected to put up a defense is
_______________
54 Id.
55 People vs. Solamillo, G.R. No. 126131, June 17, 2003, 404 SCRA 211, citing People
vs. Rabanal, 349 SCRA 655 (2001); People vs. Suitos, 329 SCRA 440 (2000).
56 G.R. No. 140756, April 4, 2003, 400 SCRA 603. Decided by the majority en banc.
663

663
considered attended with treachery even if the manner of attack was not shown.57
Considering that the victims in this case of robbery with homicide are young children, aged
7, 8 and 14, the killing was aggravated by treachery.
Likewise, the aggravating circumstance of dwelling is present here. Appellants’ deliberate
intrusion in the privacy of the Julaton’s domicile shows perversity.
In People vs. Feliciano,58 “dwelling is considered aggravating in robbery with homicide
because this kind of robbery cannot be committed without the necessity of transgressing
the sanctity of the house.”
Under Article 294 of the Revised Penal Code, as amended by Section 9 of R.A. No. 7659,
the prescribed penalty for robbery with homicide is composed of two indivisible penalties,
reclusion perpetua to death. Considering that in the present case, there is the aggravating
circumstance of dwelling that attended the commission of the crime, we impose upon the
appellants the supreme penalty of death.
Regarding damages, the trial court correctly awarded P150,000.00 as civil indemnity to the
victims’ heirs. When death occurs as a result of a crime, each appellant should be ordered
to pay the heirs of each victim P50,000.00 as civil indemnity, without need of any evidence
or proof of damages.59
As to Lily Julaton’s claim that the sum of P25,000.00 was spent for her children’s funeral
expenses, we find the same unsubstantiated. In People vs. Solamillo,60 we ruled that to
be entitled to the award of actual damages, “it is necessary to prove the actual amount of
loss with a reasonable degree of certainty, premised upon competent proof and on the
best evidence obtainable to the injured party.” While the prosecution failed to present any
receipt
_______________
57 People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569, citing People
vs. Limaco, 88 Phil. 35 (1951); People vs. Mabilangan, 111 SCRA 398 (1982); People vs.
Lora, 113 SCRA 366 (1982); People vs. Valerio, Jr., 112 SCRA 208 (1982).
58 256 SCRA 706 (1996).
59 People vs. Joey Manlansing y Ambrosio and Mario Manlansing y Ambrosio, G.R. Nos.
131736-37, March 11, 2002, 378 SCRA 685.
60 Supra at p. 55, citing People vs. Abrazaldo, G.R. No. 124392, February 7, 2003, 397
SCRA 137.
664
664
to prove the claim for actual damages, we are aware that the same were indeed incurred
by the family of the deceased.
Temperate damages, in lieu of actual damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot be proved with
certainty.61 In People vs. Abrazaldo,62 we computed temperate damages at P25,000.00.
We award the same in this case.
As to moral damages, we, in similar cases,63 awarded the victims’ heirs the amount of
P50,000.00 as moral damages. For verily, moral damages are not intended to enrich the
victims’ heirs; rather they are awarded to allow them to obtain means for diversion that
could serve to alleviate their moral and psychological sufferings.64 Here, Lily Julaton,
mother of the victims, equivocally described how she and her husband suffered untold
wounded feelings for the loss of their children.
Anent the award for exemplary damages, Article 2230 of the Civil Code provides that in
criminal offenses, exemplary damages may be imposed when the crime was committed
with one or more aggravating circumstances. Considering that the aggravating
circumstance of dwelling is present here, P25,000.0065 exemplary damages may be
awarded to spouses Julaton.
On the assigned error that the trial court erred in ordering the appellants to return the
P15,000.00 they took from the spouses Julaton, suffice it to say that “the restitution of the
thing itself” or the return of the P15,000.00 cash stolen by appellants, is proper under
Article 105 of the Revised Penal Code.
Three (3) members of the Court, although maintaining their adherence to the separate
opinions expressed in People vs. Echegaray that R.A. No. 7659, insofar as it prescribes
the penalty of death is unconstitutional, nevertheless submit to the ruling of the majority
_______________

665
that the law is constitutional and that the death penalty should accordingly be imposed.
WHEREFORE, the assailed Decision dated May 9, 1995 of the Regional Trial Court,
Branch 50, San Jacinto, Masbate, in Criminal Case No. 561, is hereby AFFIRMED with
MODIFICATION in the sense that appellants CHARLIE ALMOGUERRA and DANTE ATON
are sentenced to suffer the penalty of DEATH and individually ordered to pay the victims’
heirs (a) P150,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c)
P50,000.00 as moral damages; and (d) P25,000.00 as exemplary damages.
Let the records of this case, upon finality of this Decision, be forwarded to the Office of the
President for the possible exercise of her pardoning power pursuant to Article 83 of the
Revised Penal Code, as amended by Section 25 of R.A. 7659.
Costs de oficio.
SO ORDERED.
Davide, Jr. (C.J.), Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna and Tinga, JJ., concur.
Judgment affirmed with modification.
Notes.—Where rape was committed during the course of the Robbery with Homicide, the
rape is considered as an aggravating circumstance. (People vs. Timple, 237 SCRA 52
[1994])
Where homicide was committed on the occasion and by reason of the robbery, the
offenses cannot be considered as separate crimes, but treated as a single crime otherwise
known as the special complex crime of Robbery with Homicide. (People vs. Cariño, 379
SCRA 595 [2002])
II. People vs. Damaso
No. L-30116. November 20, 1978.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FAUSTO DAMASO,
VICTORIANO EUGENIO, alias TURING, ESTANISLAO GREGORIO alias ISLAO,
LORENZO ALVIAR alias ORING AND BONIFACIO ESPEJO alias MARCIA, defendants,
FAUSTO DAMASO, LORENZO ALVIAR, BONIFACIO ESPEJO AND VIC-TORIANO
EUGENIO, defendants-appellants.
No. L-30117. November 20, 1978.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LORENZO ALVIAR alias
ORING, defendant-appellant.
Robbery; There is robbery where the armed culprits barged into the victim’s house and
ordered her to open her aparador.—That robbery was committed is evident from the
declaration of prosecution witness Donata Rebolledo who testified that the two men who
barged into her house, one of whom she recognized as Fausto Damaso, ordered her to
open her “aparador” and then they took therefrom the following items with their respective
values.
Same; Robbery with homicide; The fact that accused also desired to avenge grievances
against the person killed aside from robbing the
__________
* EN BANC.
371

371
People vs. Damaso
place will not prevent punishment of accused for robbery with homicide.—In a complex
crime of robbery with homicide, while an intent to commit robbery must precede the taking
of human life, the fact that the intent of the culprit was tempered with a desire also to
avenge grievances against the person killed does not prevent the punishment of the
accused for the complex crime.
Same; Same; In robbery with homicide the presence of an armed band shall be
considered as a generic aggravating circumstance.—In this case, the presence of an
armed band is to be considered as a generic aggravating circumstance under Article 14(6)
of the Revised Penal Code inasmuch as the crime committed was that provided for and
penalized in Article 294, paragraph 1 and not under Article 295, Revised Penal Code.
Criminal Law; Treachery is present where victims of robbery were killed while their hands
were tied.—Treachery is present if the victim is killed while bound in such a manner as to
be deprived of the opportunity to repel the attack or escape with any possibility of success.
Same; The aggravating circumstance of uninhabited place, how determined.—Anent the
circumstance of uninhabited place, counsel disclaims its existence by pointing to the
proximity of the sugarcane field where the victims were killed to the national highway as
well as to certain houses in the barrio. The uninhabitedness of a place is determined not
by the distance of the nearest house to the scene of the crime, but whether or not in the
place of commission, there was reasonable possibility of the victim receiving some help.
Considering that killing was done during nighttime and the sugarcane in the field was tall
enough to obstruct the view of neighbors and passersby, there was no reasonable
possibility for the victims to receive any assistance. That the accused deliberately sought
the solitude of the place is clearly shown by the fact that they brought the victims to the
sugarcane field although they could have disposed of them right in the house of Donata
Rebolledo where they were found.
Same; Armed band, treachery, uninhabited place may, in extreme cases, be considered
separately.—The trial court considered separately the three circumstances of armed band,
treachery and uninhabited place where under other situations one may be considered
absorbed or inherent in the other. There is ample justification for this. The elements of
each circumstance subsist independently and can be distinctly perceived thereby revealing
a greater degree of perversity on the part of the accused.
372
372
People vs. Damaso
Evidence; Extra-judicial confessions of the accused not marred by taint of involuntariness
where they even re-enacted the details thereof and contained exculpatory references.—
Fiscal Tañedo testimony was corroborated by photographer Manuel Gamalinda who also
declared that there was no dictation, violence, force or intimidation employed upon the
appellants during the reenactment. Gamalinda also testified as to the authenticity of the
pictures he took during the reenactment, which the prosecution also submitted as
evidence. Again, concerning the confessions, other circumstances are equally significant.
Some of the statements make, specifically the one of accused Alviar, were exculpatory in
nature and would not have been included had the confessant been coerced into making
his confession. Others cite plausible facts and details which only actual participants in the
crime could have known.
Same; Alibi worthless against positive identification by prosecution witnesses.—The
defense of alibi is worthless in the face of positive identification by prosecution witnesses,
pointing to the accused as participants in the crime.
Jurisdiction; Where a case was brought to a municipal court for the purpose of preliminary
investigation only, such court does not acquire exclusive jurisdiction to try the case on the
merits.—That the Justice of the Peace Court has concurrent jurisdiction with the Court of
First Instance in this case (on illegal possessions of firearms) is not questioned. It,
however, appears from the order of the Justice of the Peace Court forwarding the records
of the case to the Court of First Instance that the case was brought before the former court
merely for purposes of a preliminary investigation. Where a Justice of the Peace acquires
jurisdiction for the purpose of preliminary investigation and not for trial on the merits, such
court does not necessarily acquire exclusive jurisdiction to try the case on the merits.
Criminal Law; Illegal Possession of Firearms; Confession of accused as proof he has an
unlicensed firearm.—Still on the illegal possession of firearm, the prosecution also
presented as evidence Exhibit “C” properly sworn to before Judge Conrado de Gracia,
wherein Alviar confessed that he did own and possess a caliber .22 paltik which he carried
on the night the robbery and killings were committed. The voluntariness of this confession
has not been disproved.
373

373
People vs. Damaso
APPEALS from the decisions of the Court of First Instance of Tarlac. Santos, J.

Carlos, Valdez, Ibarra & Caunan Law Offices for appellants.
Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L.
Quiroz and Solicitor Conception T. Agapinan for appellees.
PER CURIAM:
The penalty of death imposed on Fausto Damaso, Victoriano Eugenio, Lorenzo Alviar and
Bonifacio Espejo by the Court of First Instance of Tarlac in its Criminal Case No. 2253 for
“robbery with double homicide” is now before this Court on automatic review together with
a related case No. 2293 “for illegal possession of firearm and ammunition” involving only
the accused, Lorenzo Alviar.
The Information in Criminal Case No. 2253 charged the accused therein of “robbery with
double homicide” alleged to have been committed as follows:
“That on or about the 21st day of November, 1959, at nighttime, in the Municipality of
Victoria, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court,
the above named accused, four of whom are armed with a scythe and firearms, namely:
Fausto Damaso with a rifle, springfield Cal. 30, Victoriano Eugenio with a paltik Cal. 12
ga., Estanislao Gregorio with a scythe, and Lorenzo Alviar with a paltik Cal. 22,
confederating, conspiring, helping and aiding one another, by means of force, violence,
threats and intimidation upon the persons of Donata Rebolledo, Victoriano de la Cruz and
Susana Sabado, did then and there, willfully, unlawfully and feloniously, with intent to gain,
take, steal and carry away with them the following:
PROPERTY OF DONATA REBOLLEDO:
One jacket valued at
..............................................................
P 25.00
One earring valued at
............................................................
25.00
One ring valued at
.................................................................
15.00
One necklace valued at
.........................................................
50.00
374
374
People vs. Damaso
One hat valued at
..................................................................
5.00
Three scythes valued at
.........................................................
3.60
A document valued at
...........................................................
2.30
Total
...............................................................................................
P125.90
PROPERTY OF VICTORIANO DE LA CRUZ
Cash money in the amount of
...............................................
P15.00
PROPERTY OF SUSANA SABADO:
Cash money in the amount of
...............................................
15.00
Ten bottles of liquor Bicolana;
Six bottles of Cana Rum;
One dozen Ligo Sardines;
One dozen Eatwell Sardines;
Six packages of Golden Star cigarettes;
three packages of cigarettes (Inyog); and
four packages of cigarettes
(La Ventaja) with a total value of

.......................................
P 21.02
Total
................................................................................................
P36.02
Grand Total
........................................................................................
P176.92
to the damage and prejudice of the said owners in the respective amounts of P125.90,
P15.00 and P36,02, Philippine currency; that the said accused, on the occasion of the
commission of the crime above-mentioned, held and brought Catalina Sabado and Susana
Sabado, daughters of the said Donata Rebolledo, to a sugarcane field which is a secluded
and uninhabited place, at Barrio Bangar, Victoria, Tarlac, and once there and after tying
together the respective forearms of the said Catalina Sabado and Susana Sabado, in
pursuance of their concerted conspiracy, by means of force and grave abuse of superior
strength, the said accused did then and there, willfully, unlawfully and feloniously, stab the
said Catalina Sabado and Susana Sabado on different parts of their body and cut their
necks with a sharp pointed instrument (scythe), as a result of which the latter died
instantly.
“That in the commission of the crime abovementioned, there concurred the aggravating
circumstances of (1) abuse of superior strength, (2) nighttime, (3) uninhabited place, (4) by
a band, (5) treachery, and (6) disregard of sex.” (pp. 116-117, rollo)
In Criminal Case No. 2293 Lorenzo Alviar was also charged of illegal possession of firearm
and ammunition, viz:
“That on or about November 24, 1959, in the Municipality of Victoria, Province of Tarlac,
Philippines, and within the jurisdiction
375
375
People vs. Damaso
of this Honorable Court, the above named accused, without authority of law, did then and
there, willfully, unlawfully and feloniously have in his possession and under his control a
firearm, to wit; a paltik revolver caliber 22 with eight (8) rounds of ammunition, without first
obtaining the corresponding license or permit to keep and possess the same.” (pp. 117-
118, ibid.)
The two cases were jointly heard by the trial court. In a joint decision rendered on
December 10, 1968, by then Presiding Judge, Hon. Arturo B. Santos, all the accused were
found guilty as charged. In Criminal Case No. 2253 (robbery with double homicide) the
accused Fausto Damaso, Lorenzo Alviar, Bonifacio Espejo and Victoriano Eugenio were
each sentenced to suffer the “penalty of death, to indemnify the legal heirs of the victims,
Catalina Sabado and Susana Sabado, jointly and severally in the amount of P12,000.00
for each of the victims, plus the sum of P15,0 which was the money taken by the accused,
and to pay the costs, share and share alike.” One of the accused, Estanislao Gregorio,
was no longer included in the sentence because he died on April 6, 1967 while the cases
were still undergoing trial.
In Criminal Case No. 2293, accused Lorenzo Alviar was sentenced “to three years
imprisonment and to pay the costs.”1
The evidence of the prosecution as found by the trial court establish the following
incidents:2 Donata Rebolledo and her son-in-law, Victoriano de la Cruz were residents of
Barrio Bangar, municipality of Victoria, province of Tarlac. At about 9 o’clock in the evening
of November 21, 1959, Donata and Victoriano heard the barkings of dogs outside their
house. Shortly, two men armed with guns, entered, pointed their weapons at them, tied up
the hands of Victoriano, covered him with a blanket and asked Donata for the wereabouts
of her daughter Catalina Sabado. Stricken by fear, Donata kept silent and blocked the door
leading to her daughter’s room but was promptly pushed aside. Donata was
________________
1 see pp. 130-131, rollo.

2 see pp. 118-121, ibid.
376
376
People vs. Damaso
then ordered to open an “aparador” from which the two men took valuables like jewelry,
clothing, documents, and cutting instruments. All the while, Donata and Victoriano could
hear the movements and voices of some three to four other persons beneath the house.
The two men brought Catalina Sabado down from the house and then asked where they
could find Susana Sabado, Donata’s other daughter who was then in her store located
about five meters away in the same house. Thereafter, Donata heard the men opening the
door to Susana’s store. After several minutes, feeling that the intruders had left, Donata
untied the hands of Victoriano and asked him to go to the store to see if her daughters
were there. When the two women could not be found, Donata sent Victoriano to the barrio
lieutenant to report the incident. Accordingly, Victoriano went to the barrio lieutenant and
the two later went to town to inform the police of the occurrence.
On the same night, Chief of Police Pedro Valdez with the aid of several policemen and a
handful of civilians went out in search for the Sabado sisters. It was only the following
morning when the two women were found already dead with wounds in several parts of
their bodies. They were found in a sugar plantation belonging to one Ignacio Fabros,
located about one hundred meters from Donata Rebolledo’s house.
Dr. Carlos Briones, Municipal Health Officer of Victoria performed the autopsy on the two
bodies and reported that the deaths were caused by profuse hemorrhage due to a fatal,
big, wide, gaping and deep lacerated wound just above the Adam’s apple. He also testified
in court that the death weapon must have been a sharp instrument with a pointed tip, like a
scythe.
A few days after the incident, Donata Rebolledo singled out the accused Fausto Damaso
from a police line-up as one of the men who went up to her house on that evening. She
and Victoriano had recognized Damaso because of the light coming from a kerosene lamp
placed on a small table near the “aparador.” Damaso, however, initially denied ever having
been to Donata’s house that night. Later, the PC rounded up four other suspects in the
persons of co-accused Gregorio, Eugenio, Alviar and Espejo.
377

377
People vs. Damaso
As further evidence, the prosecution presented separate ex-trajudicial statements, sworn
to before Municipal Judge Conrado de Gracia of Paniqui, Tarlac, wherein all the five
accused admitted having participated in the crime.
In his sworm statement marked as Exhibit “J”, Fausto Damaso stated that he was with his
co-accused Gregorio, Eugenio, Alviar and Espejo on the night the Sabado sisters were
killed; that he never went into the house of Donata Rebolledo as Eugenio and Gregorio
were the ones who did; that it was Gregorio and Eugenio who actually did the killing while
he, Alviar and Espejo merely stood by; that the victims were stabbed and their throats cut
with a reaping knife (pangapas or lait); that the killing was motivated by the failure of the
older woman (Catalina) to pay for a carabao bought from Gregorio; and that on that
evening, Gregorio, Eugenio, Alviar and Espejo were carrying caliber .45 pistols while he
was unarmed.
In a subsequent statement marked as Exhibit “P”, Damaso reiterated his claim that it was
Gregorio who actually stabbed and cut the throats of the victims in the presence of all the
accused; that Catalina was killed ahead of Susana; that Gregorio killed Susana as she
was being held by Eugenio; and that while still in the house, they were able to get P15
from Susana’s store. Contrary to what he confessed in his previous sworn statements, he
admitted that it was he and Eugenio who went up to Donata Rebolledo’s house and not
Eugenio and Gregorio. He also changed his theory as to the motive for the killings,
declaring this time that the two women were killed because the latter had already
recognized them. He further stated that on that night, he was armed with a caliber .22
(paltik) revolver, Eugenio with a 12-gauge paltik, Gregorio with two reaping knives (lait),
Lorenzo with a long firearm and Espejo with two stones.
In this sworn statement, Exhibit “O”, Victoriano Eugenio likewise admitted that he was a
party to the commission of the offense; that it was Gregorio who conceived of the plot to
commit the crime; that it was also Gregorio who killed the two women with a reaping knife;
that after Catalina was killed he held Susana by the arms as Gregorio stabbed her and cut
her
378
378
People vs. Damaso
throat; that Alviar, Damaso and Lorenzo were also with them that night; that he did not
know what motivated Gregorio to kill the victims; that he had no previous agreement with
his co-accused to kill the two women; that he and Damaso were the ones who entered
Donata’s house, took P15 from the “aparador,” brought down Catalina and also got
Susana from another portion of the house; that he was then armed with a 12-gauge paltik,
Damaso with a caliber .22 paltik revolver, Alviar with a Springfield caliber .30 rifle, Gregorio
with a reaping knife and Espejo with two stones; and that he was with the group that night
because at about 7 o’clock in the evening, Gregorio dropped by his house and invited him
to Barrio Bangar where the crime was committed.
In his separate statement (Exhibit “Q”), Estanislao Gregorio narrated that in the afternoon
of November 21, 1959, his four co-accused came and informed him of a plan to rob the
Sabado sisters, to which plan he agreed; that Damaso and Eugenio went up Donata
Rebolledo’s house, got P15 in cash and brought out Catalina and Susana by force; that he
stabbed and cut the throats of the victims with all his co-accused present; that Eugenio
held Catalina while Damaso held Susana as he killed them both with a reaping knife; that
the two women were killed because they had recognized Eugenio and Damaso and might
testify against them in court; that during the commission of the crime, his only weapon was
a reaping knife while Alviar was carrying a caliber .22 paltik revolver, Damaso, a
Springfield caliber .30 rifle, Eugenio, a 12-gauge single shot paltik and Espejo was
unarmed.
Exhibit “N” is Bonifacio Espejo’s sworn statement. Here he declared that he happened to
be with the group because Damaso and Eugenio invited him to Barrio Bangar and they
dropped by the houses of Alviar and Gregorio before actually proceeding to the barrio; that
they had a previous agreement to commit the crime; that they planned the same in a lot
owned by a certain Don Juan Garcia in Barrio Bangar; that it was Damaso and Eugenio
who entered Donata Rebolledo’s house while he, Alviar and Gregorio were left downstairs
to keep watch; that they were able to get P15 from the house; that it was Gregorio who
actually killed the two women; and that
379

379
People vs. Damaso
Damaso and Eugenio were armed with a 12-gauge paltik and another long arm the caliber
of which he did not know; that Alviar had a caliber .22 paltik revolver, Gregorio a knife and
he had two big stones.
Substantially similar were the admissions of Lorenzo Alviar in his sworn statement (Exhibit
“R”). He likewise declared that he and his co-accused took P15 from the house of the
victims; that it was Gregorio who stabbed and cut the throats of the victims with a reaping
knife; that the killing was done in a sugarcane plantation between 10:00 and 11:00 o’clock
in the evening of November 21, 1959; that Catalina was killed before Susana; that he was
armed with a caliber .22 paltik revolver, Eugenio with a single shot, 12-gauge paltik,
Damaso with a Springfield caliber .30 rifle and Espejo with two stones. He claimed,
however, that he was only forced and intimidated by his co-accused to join the group.
At the trial, the five accused set up the defense of alibi and repudiated their respective
sworn statements alleging that these were obtained from them through duress, force and
intimidation. Instances of the use of third degree methods like boxing, pouring of “7-up”
into the nostrils, stripping of clothes, pricking of the penis, kicking and slapping of the ears
were narrated by the accused on the witness stand, all of which were not believed by the
trial court.
The accused-appellants are here represented by a counsel de oficio, Atty. Clemente A.
Madarang, Jr., who filed an exhaustive brief for the accused.
Taken as a whole, the assigned errors boil down to the question of credibility and
sufficiency of the evidence to sustain the conviction of appellants for the special complex
crime of robbery with double homicide. It is argued that (a) there is no evidence of the
alleged robbery; (b) that the homicide was not committed by reason or on occasion of the
robbery; and c) that the crime was not attended by the aggravating circumstances of
armed band, treachery and uninhabited place.
There is no merit to appellants’ submittal.
1. That robbery was committed is evident from the declaration of prosecution witness
Donata Rebolledo who testified that the two men who barged into her house, one of
380
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People vs. Damaso
whom she recognized as Fausto Damaso, ordered her to open her “aparador” and then
they took therefrom the following items with their respective values a jacket- P25; a
necklace-P50; earrings—P25; a ring- P15; a hat- P5; scythes- P3.60; and documents
worth P2.30.3 Moreover the appellants admitted in their separate statements that they
were able to get P15 from Donata’s house. On this point, We agree with the Solicitor
General that it matters not from what part of the house the accused got the P15. What is
important is that the culprits carried away personal property belonging to another by the
use of force, intimidation or violence.4
2. Counsel points out that because there was a motive, at least on the part of Gregorio, for
the killing of the Sabado sisters, the double homicide could not have been “committed by
reason or on occasion of the robbery” as the law contemplates. He calls Our attention to
the sworn statement wherein Fausto Damaso declared that Gregorio killed Catalina and
Susana because Catalina bought a carabao from him and did not pay for it. Harping
further on this motive theory, counsel mentions such circumstances as why the accused
specifically asked for Catalina and Susana upon entering Donata Rebolledo’s house and
why Donata and Victoriano were not killed together with the sisters if the purpose was to
remove all opposition to the robbery or to eliminate witnesses thereto.
As to Damaso’s declaration, it should be noted that Damaso himself, in his subsequent
sworn statement, changed his motive theory and stated that the victims were killed in order
to eliminate witnesses to the crime. This was corroborated by Gregorio in the latter’s own
written confession. Even assuming, however, that such a motive for vengeance existed on
the part of Gregorio, it does not necessarily exclude the fact that he and co-accused also
intended, when they went to Donata’s house that night, to rob the family. In a complex
crime of robbery with homicide, while an intent to commit robbery must precede the taking
of human life, the fact that the intent of the
________________
3 tsn., October 11, 1962, p. 5.

4 Art. 293, Revised Penal Code.
381

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People vs. Damaso
culprit was tempered with a desire also to avenge grievances against the person killed
does not prevent the punishment of the accused for the complex crime.5
3. Counsel for appellants also argues that the trial court erred in its appreciation of the
aggravating circumstances of armed band, treachery and uninhabited place.
The aggravating circumstance of band exists whenever more than three armed
malefactors act together in the commission of an offense.6 Counsel concedes that at least
three of the accused-appellants, namely Eugenio, Alviar, and Gregorio, were armed during
the commission of the crime. He doubts, however, whether accused Damaso carried any
weapon and whether the “two stones” carried by accused Espejo fall under the category of
“arms.” But even granting that Espejo’s stones do not constitute arms, the prosecution
presented the following evidence to show that Damaso was also armed and, as such,
there were more than three of the accused who were armed: (1) that extrajudicial
confession of Damaso himself (Exhibit “P”) that he was carrying a caliber .22 paltik
revolver; (2) the sworn statement of accused Eugenio (Exhibit “O”) that Damaso had a
caliber .22 paltik revolver; (3) the separate written confessions of Alviar, Gregorio and
Espejo (Exhibits R, Q, and “N”) that Damaso had a caliber .30 Springfield rifle; and (4) the
testimonies of Donata Rebolledo and Victoriano de la Cruz that both men who entered
their house (one of whom they later identified as Damaso) were carrying firearms. It is
clear from the above, that Damaso was armed during the night of the commission of the
crime, and it is immaterial what kind of firearm he carried, the only important thing being
that he was armed. In this case, the presence of an armed band is to be considered as a
generic aggravating circumstance under Article 14(6) of the Revised Penal Code inasmuch
as the crime committed was that provided for and penalized in Article 294, paragraph 1
and not under Article 295, Revised Penal Code (see People v. Apduhan, Jr., per Justice,
now Chief Justice Fred Ruiz Castro, 24 SCRA 798)
_____________
5 US v. Vilorente and Bislig, 30 Phil. 59.

6 Art. 14, par. 6, Revised Penal Code.
382
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People vs. Damaso
Treachery is present if the victim is killed while bound in such a manner as to be deprived
of the opportunity to repel the attack or escape with any possibility of success.7 The fact
that the bodies of Catalina and Susana were found dead with their arms tied behind their
backs as well as the admission of Gregorio in his confession (Exhibit “Q”) that he killed the
sisters while their arms were held by Eugenio and Damaso lead Us to conclude that the
killing of the two women was done under treacherous circumstances.
Anent the circumstances of uninhabited place, counsel disclaims its existence by pointing
to the proximity of the sugarcane field where the victims were killed to the national highway
as well as to certain houses in the barrio. The uninhabitedness of a place is determined
not by the distance of the nearest house to the scene of the crime, but whether or not in
the place of commission, there was reasonable possibility of the victim receiving some
help.8 Considering that the killing was done during nighttime and the sugarcane in the field
was tall enough to obstruct the view of neighbors and passersby, there was no reasonable
possibility for the victims to receive any assistance. That the accused deliberately sought
the solitude of the place is clearly shown by the fact that they brought the victims to the
sugarcane field although they could have disposed of them right in the house of Donata
Rebolledo where they were found. Thus, in People v. Saguing, the Court considered the
crime as having been committed in an uninhabited place because the killing was done in a
secluded place at the foot of a hill, forested, and uninhabited.9
The trial court considered separately the three circumstances of armed band, treachery
and uninhabited place where under other situations one may be considered absorbed or
inherent in the other. There is ample justification for this. The elements of each
circumstance subsist independently and
_____________
7 People v. Madrid, 88 Phil. 1; People v. Bakang, et al., 26 SCRA 840; People v. Mongado,
et al., 28 SCRA 642; People v. Lunar, 45 SCRA 119.
8 People v. Bangug, et al., 52 Phil. 87.
9 30 SCRA 834.
383

383
People vs. Damaso
can be distinctly perceived thereby revealing a greater degree of perversity on the part of
the accused.
4. In the third assignment of error, defense counsel assails the sufficiency of the evidence
for the prosecution. He urges that the extrajudicial confessions, having been repudiated
during the trial, are insufficient to sustain the trial court’s judgment of conviction, specially
so since no direct evidence was introduced of any conspiracy or of the involvement of
appellants in the crime in question.
Regarding this matter, the following are strongly persuasive. First, the appellants’ separate
extrajudicial confessions were subscribed and sworn to before Municipal Judge Conrado
de Gracia of Paniqui, Tarlac. On the witness stand, Judge de Gracia testified as to the
authenticity and due execution of the statements. He declared that before the statements
were sworn to before him, he had the appellants’ PC escorts excluded from the room. He
then took pains in translating and explaining to the appellants the contents of their written
statements and got their assurance that such statements were freely and voluntarily
made.10 If it were true that appellants were forced or intimidated into making the
confessions, they could have easily manifested before the judge that they did not
voluntarily give the same. Certainly, they could have then been afforded the necessary
protection from any untoward incident that could happen. Their failure there and then to air
any injustice or misdeed committed upon them belies their stories of maltreatment. Too,
there is no credible proof of the alleged maltreatment that they suffered in the hands of the
police or other authorities as a result of which they executed the confessions. Considering
that repudiation of confessions comes very easily, the same must be taken with a grain of
salt. It occurs all too often that guilty persons, after confession to crime, experience a
change of heart and repudiate their confessions in the hope of escaping liability.
Secondly, there was the reenactment of the robbery and the killings. The movements
reconstructed by the appellants conform substantially with the details set forth in their
individual
_____________
10 tsn., July 29, 1963, pp. 69-83.

384
384
People vs. Damaso
sworn statements. The reenactment was done in the presence of people, including a
photographer who had no connection with the police or the prosecution.
Fiscal Magin Tañedo who was present during the reenactment testified that the entire
proceeding was spontaneous and free from coercion. On several occasions, appellants,
even corrected themselves in certain details. Nobody directed the whole show except the
appellants themselves.11
Fiscal Tañedo’s testimony was corroborated by photographer Manuel Gamalinda who also
declared that there was no dictation, violence, force or intimidation employed upon the
appellants during the reenactment.12 Gamalinda also testified as to the authenticity of the
pictures he took during the reenactment, which the prosecution also submitted as
evidence.13
Again, concerning the confessions, other circumstances are equally significant. Some of
the statements made, specifically the one of accused Alviar, were exculpatory in nature
and would not have been included had the confessant been coerced into making his
confession. Others cite plausible facts and details which only actual participants in the
crime could have known.
Also, partial corroboration of appellants’ statements are found in the testimonies of Donata
Rebolledo and Victoriano de la Cruz, more particularly, as to the robbery. As such, the
confessions, coupled by evidence of the corpus delicti, the human remains of Catalina and
Susana Sabado, are sufficient bases for the trial court’s declaration of guilt.
5. With regards to the defense of alibi, We find no justifiable reason for discarding the
findings of the trial court on this matter. In People v. Berdida, et al., this Court held that the
defense of alibi is an issue of fact that hinges on credibility, which depends much on the
credibility of the witnesses who seek to establish it. In this respect the relative weight
which
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People vs. Damaso
the trial judge assigns to the testimony of the witnesses must, unless patently and clearly
inconsistent with the evidence on record, be accepted. The defense of alibi is worthless in
the face of positive identification by prosecution witnesses, pointing to the accused as
participants in the crime. (17 SCRA 520, citing People v. Tansiangco, L-19448, February
28, 1964; People v. Riveral, L-14077, March 31, 1964)
6. As to conspiracy, the trial court’s inference as to the existence of the same is well-
founded and is amply discussed in its decision. Said His Honor:
“From the simultaneous and cooperative acts of the accused, the Court finds and so holds
that there was conspiracy among them. For conspiracy to exist, direct proof is not
essential. The same may be inferred from the acts of the conspirators in the commission of
the offense. It is not essential that each conspirator takes part in every act or that he
should know the exact part to be performed by the others in the execution of the
conspiracy. Conspiracy merely implies concert of design and does not require participation
in every detail of execution. Neither is it necessary to show any previous plan or that the
parties should actually come together and agree in express terms in pursuing a common
design. It is sufficient if it is proved that the acts of the conspirators were in fact connected
and cooperative in accomplishing the unlawful object, thereby indicating a closeness of
personal association and concurrence of sentiments.
“In the case of the accused herein, they got together and planned the criminal act shortly
before its execution; they proceeded together to the house of the victims and, while
Damaso and Eugenio went upstairs, the other accused stayed under the house as lookout;
once inside the house, the two asked and demanded for the victims, forcibly dragged them
downstairs, handed them to those waiting under the house and, together as a group, they
brought the victims to the sugarcane field and mercilessly stabbed them to death. Clearly,
there was a concert of acts among the accused aimed at one common design, and each
act was connected to and cooperative with the others.”
The basic rule is that when conspiracy is established, like in the present case, the act of
one conspirator is imputable to the others and the criminal liability of each participant is the
same as those of the others.
386
386
People vs. Damaso
7. On the matter of accused Lorenzo Alviar’s conviction for illegal possession of firearms in
Criminal Case No. 2293, two errors are assigned. First, that the trial court had no
jurisdiction over the case because the same having been previously filed before the
Justice of the Peace Court of Victoria, Tarlac, which also acquired jurisdiction over the
person of the accused, the latter court acquired jurisdiction to the exclusion of all other
courts.
This is untenable. That the Justice of the Peace Court has concurrent jurisdiction with the
Court of First Instance in this case is not questioned. It, however, appears from the order
of the justice of the Peace Court forwarding the records of the case to the Court of First
Instance14 that the case was brought before the former court merely for purposes of a
preliminary investigation. Where a Justice of the Peace acquires jurisdiction for the
purpose of preliminary investigation and not for trial on the merits, such court does not
necessarily acquire exclusive jurisdiction to try the case on the merits.15
In the second assigned error, counsel attacks the flimsiness of the evidence for the
prosecution. He questions the sufficiency of a document (Exhibit “B”), purportedly a receipt
issued to Alviar upon the confiscation from him of the alleged firearm. It is argued that from
the manner the receipt is worded as well as from the fact that it is thumbmarked by Alviar
and not signed by the person confiscating, it appears to be a confession rather than a
receipt.
The controversial receipt, however, is not the only evidence presented by the prosecution.
Sgt. Melencio Fiesta of the Philippine Constabulary also declared on the witness stand
that Alviar verbally confessed to him his (Alviar’s) possession of a caliber .22 paltik
revolver.16 He further stated that he properly translated from English to Ilocano the
contents of the receipt before Alviar affixed his thumbmark on the same,17 Whether
Exhibit “B” is taken as a receipt or as a confession, it has its own weight as an evidence
against appellant Alviar.

387
People vs. Damaso
Still on the illegal possession of firearm, the prosecution also presented as evidence
Exhibit “C” properly sworn to before Judge Conrado de Gracia, wherein Alviar confessed
that he did own and possess a caliber .22 paltik which he carried on the night the robbery
and killings were committed. The volun-tariness of this confession has not been disproved.
8. In conclusion, the crime committed by appellants in Criminal Case No. 2253 is robbery
with homicide defined in Article 294, paragraph 1, Revised Penal Code, to wit:
“Robbery with violence against or intimidation of persons—Penalties —Any person guilty
of robbery with the use of violence against or intimidation of any person shall suffer:
“1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been committed.
“xxx xxx xxx”
The penalty is to be imposed in its maximum period by reason of the presence of three
aggravating circumstances found by the trial court, to wit: that the robbery was committed
by a band,18 with treachery,19 and in an uninhabited place.20 There is likewise the
additional aggravating circumstance that the robbery was committed in the dwelling of the
victim, Donata Rebolledo which although not alleged in the Information is however
established by the evidence.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We hereby affirm in toto the decision
of the trial court in the two cases.
Without pronouncement as to costs at this instance.
SO ORDERED.
Castro, C.J., Teehankee, Barredo, Makasiar, Antonio, Muñoz Palma, Concepcion Jr.,
Santos, Fernandez, and Guer-rero, JJ., concur.
Fernando, J., took no part.
Aquino, J., no part.

People vs. Damaso
Decision affirmed.
Notes.—The presence of other persons with probable motive to kill the victim but who
were not investigated by police authorities raises serious doubts on the police findings that
appellant was one of the perpetrators of the killing. (People vs. Pascual, 80 SCRA 1).
There is treachery where the victim, who was unarmed, while seated on a chair at the
investigator’s table, stooping and smoking, was shot by the accused immediately after he
uttered the words “I will shoot you now” as the victim was completely unaware of the
impending attack. (People vs. Reyes, 69 SCRA 474).
For robbery with homicide to exist it is enough that a homicide would result by reason of or
on the occasion of the robbery. It is immaterial that death supervened by mere accident as
long as it was produced by reason of or on the occasion of the robbery. What is to be
considered is the result obtained, without reference or distinction as to the circumstance
causes or modes or persons intervening in the commission of the crime. (People vs.
Saliling, 72 O.G. 5290; People vs. Mangulabuan, 99 Phil. 992.)
Where four of the accused were in the yard of the victim’s house when one of them called
for him and deceived him as to their purpose in awakening him at 3:00 o’clock in the
morning. All of them where together when they rushed inside the victim’s house. Two
assaulted the offended party, a third took his money and the fourth stood guard, it was
held that conspiracy was duly established. (People vs. Saliling, 72 O.G. 5290; see also
People vs. Pajenado, 31 SCRA 812).
Accused is guilty of homicide, not robbery with homicide, where the thought of taking away
the money of the victim came after the killing. (People vs. Fontanilla, 30 SCRA 242.)
Homicide, not murder, was committed where alevosia is absent. (People vs. De la Cruz,
36 SCRA 452.)
The sudden and unexpected assault perpetrated by the seven malefactors insured the
killing of the three defenseless victims. Hence, the killings should be regarded as murder
389

389
Bagajo vs. Marave
qualified by treachery. (People vs. Pascual, 81 SCRA 548; People vs. Lopez, 80 SCRA
18.)
The four assailants unexpectedly grabbed the unarmed victim and brought him to the
warehouse so that they could kill him with impunity. They utilized their combined strength
to over-power the helpless victim, (People vs. Sabater, 81 SCRA 564.)
There is treachery where from the accounts of witness it appears that the firing of the guns
of the accused was simultaneous and sudden, just immediately after the chief of police
asked whether the deceased and companions, who were then riding in a jeep which was
moving slowly after being flagged to stop, were carrying firearms. (People vs. Peralta, 39
SCRA 396.)
III. People vs. Avendaño
G.R. No. 137407. January 28, 2003.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLERIE AVENDAÑO, accused-
appellant.
Criminal Law; Murder; Evidence; Witnesses; Child-witnesses; Requirements.—In previous
cases, the Court has held that a witness is not incompetent to give testimony simply
because he or she is of tender age. The requirements of a child’s competence as a
witness are: (1) capacity of observation; (2) capacity of recollection; and (3) capacity of
communication.
Same; Same; Same; Same; Same; It is the degree of a child’s intelligence that determines
the child’s competence as a witness.—It is the degree of a child’s intelligence that
determines the child’s competence as a witness. If the witness is sufficiently mature to
receive correct impressions by his senses, to recollect and narrate intelligently, and to
appreciate the moral duty to tell the truth, he is competent to testify. A minor’s testimony
will suffice to convict a person accused of a crime so long as it is credible.
Same; Same; Same; Same; When it comes to the issue of credibility, the Court ordinarily
defers to the assessment and evaluation given by the trial court.—When it comes to the
issue of credibility, this Court ordinarily defers to the assessment and evaluation given by
the trial court, for only the trial judge has the unique opportunity to observe that elusive
and incommunicable evidence of the witness’ deportment on the witness stand while
testifying, an opportunity denied to the appellate courts which usually rely on the cold
pages of the records of the case. Only when such assessment is tainted with arbitrariness
or oversight of some significant fact or circumstance will the appellate court depart from
the trial court’s factual conclusions.
Same; Same; Same; Same; Witnessing a crime is one novel experience that elicits
different reactions from witnesses for which no clear-cut standard of behavior can be
drawn.—We have long recognized that different people react differently to a given situation
and there is no standard form of behavioral response when one is confronted with a
strange, startling or frightful experience. Witnessing a crime is one novel experience that
elicits different reactions from witnesses for which no clear-cut standard of behavior can be
drawn. This is especially true if the assailant is physically near. Moreover, it is not proper to
judge the actions of children who have
_______________
* EN BANC.
310
310
People vs. Avendaño
undergone traumatic experiences by the norms of behavior expected under the
circumstances from mature persons.
Same; Same; Same; Same; Identification by Voice; The sound of a person’s voice is an
acceptable means of identification where it is established that the witness and the accused
knew each other personally and closely.—In People vs. Reyes, however, the Court held
that once a person has gained familiarity with another, identification becomes quite an
easy task even from a considerable distance. The sound of a person’s voice is an
acceptable means of identification where it is established that the witness and the accused
knew each other personally and closely for a number of years.
Same; Same; Same; Same; Alibi; Alibi is inherently weak and unreliable, unless
corroborated by disinterested witnesses.—Alibi is inherently weak and unreliable, unless
corroborated by disinterested witnesses. Since appellant is unable to substantiate his alibi
with the testimony of a credible witness, it is reduced to self-serving evidence undeserving
of any weight in law.
Same; Same; Aggravating Circumstances; Treachery; Definition.— Under the Revised
Penal Code, there is treachery “when the offender commits any of the crimes against the
person, employing means, methods or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the defense which
the offended party might make.”
Same; Same; Same; Same; Conditions.—For treachery to exist, two conditions must be
found: (1) that at the time of the attack the victim was not in a position to defend himself;
and (2) the offender consciously adopted the particular means, method or form of attack
employed by him.
Same; Same; Same; Same; Nighttime; Conditions.—As to nighttime, this circumstance is
considered aggravating only when (1) it was especially sought by the offender; or (2) the
offender took advantage of it; or (3) it facilitated the commission of the crime by ensuring
the offender’s immunity from identification or capture.
Criminal Procedure; Information; Defect; Waiver; Failure to timely question the defect in
the information is deemed a waiver of his objection thereto.—As held in People vs.
Ramon: Regrettably for the accused-appellant, however, he has failed to timely question
the above defect, and he may thus be deemed to have waived his objection to the
multiplicity of charges. In People vs. Conte, this Court has ruled: . . . Under Sections 1
311
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311
and 3(e) of Rule 117, the appellant, before entering his plea, should have moved to quash
the complaint for being duplicitous. For his failure to do so, he is deemed to have waived
the defect. Hence, pursuant to Section 3 of Rule 120, the court could convict him of as
many offenses as are charged and proved, and impose on him the penalty for each and
every one of them. (Citations omitted)
APPEAL from a decision of the Regional Trial Court of San Jose, Occidental Mindoro, Br.
46.

Ernesto Jaravata for accused-appellant.
QUISUMBING, J.:
On automatic review is the decision1 dated January 29, 1999 of the Regional Trial Court of
San Jose, Occidental Mindoro, Branch 46, in Criminal Case No. R-4227. Appellant Willerie
Avendaño was found guilty of murder and accordingly sentenced to suffer the penalty of
death.
The facts of this case, culled from the records, are as follows:
In an information dated August 18, 1997, Willerie Avendaño was charged with two counts
of murder allegedly committed as follows:
That on or about the 29th day of July, 1997 at night time (sic) in Purok Bagong Silang,
Barangay Aguas, Municipality of Rizal, Province of Occidental Mindoro, Philippines and
within the jurisdiction of this Honorable Court, the accused being then armed with a jungle
knife, with intent to kill, with treachery, did then and there willfully, unlawfully and
feloniously, attack, assault and stab with the said weapon Remedios Castillo and Melvin
Castillo inflicting upon the victims serious wounds which caused their untimely death.
CONTRARY TO LAW.2
_______________
1 Rollo, pp. 15-45.

2 Id., at p. 6.
312
312
Upon arraignment, the accused pleaded not guilty. Thereafter, trial on the merits ensued.
The principal witness for the prosecution was JEFFRE CASTILLO, an eight-year-old son
of the victim Remedios Castillo and brother of the victim Melvin Castillo. In his testimony,
he stated that his parents were named Remedios and Boyet; that they were six children in
the family, namely, Michael, Dikong, Ape, Manolito, the victim Melvin and himself; and that
he was a Grade I pupil at the Aguas Elementary School. He testified that he knows
appellant, having known him for about three or four years before the incident of July 29,
1997. On said date, at around 6:00 P.M., he saw appellant in their house, looking for his
plow and asking if he knew who got it, to which he replied that he did not. While appellant
was in their house, his mother was upstairs and his Kuya Melvin was also inside the
house. His father and the rest of his brothers and sisters were in Cabanatuan City. He
recalled that appellant was then wearing a green t-shirt and shorts, the color of which he
could not remember.3 Thereafter, appellant left. After dinner, he, his mother and brother
went to sleep. Before they slept, he recalled they had a pangmagdamagan or overnight
lamp which was turned on.
That night, according to Jeffre, they slept in the same room. He was suddenly awakened
when he heard a commotion (kalambugan). However, by the time he woke up, the room
was very dark because the lamp was already turned off. He heard his mother shout,
“Dikong, tulungan mo kami.” When he heard the kalambugan he immediately eased his
way to where they kept their pillows and tried to hide. Then, there was silence. Then he
heard somebody going downstairs. His brother Melvin lit the lamp, while Jeffre stayed
where he was. He then heard the person downstairs going up again.4 He saw through his
blanket that the person had come up: “Naaninag ko po sa kumot yung tao.”5 That was
when he
_______________
3 TSN, September 23, 1997, pp. 3-8.

4 Id., at pp. 12-15.
5 Id., at p. 15; TSN, October 21, 1997, p. 12.
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313
distinctly heard his Kuya Melvin say, “Kuya Willie, tama na, tama na!” That was just before
Melvin was killed.6
Jeffre recalled that someone coughed and he recognized the cough as that of his Kuya
Willie. He recognized it because he had heard a similar cough on several occasions in the
past when appellant frequented their house. He remained where he was until appellant
left.
Jeffre said he fell asleep and was awakened only the following morning by persistent
knocking on their door. He opened the door to find his Ate Annie (Juliana Castillo), Ate
Norma (Roldan) and Ate Ann (Roldan) looking for his mother. He then told his Ate Annie
that Willerie Avendaño killed both his mother Remedios and his Kuya Melvin. He
remembered that thereafter, their relatives as well as some policemen arrived.7
Jeffre recounted that he was brought to the police station where his sworn statement was
taken and he signed it in the presence of Mayor Bartolome Miranda of Rizal town.8 He
said he was accompanied by his Lola Nena who read to him what was written in the
statement because he did not know how to read. He said no one coached him to answer
the way he did, particularly to the question: “Sino ang taong umubo na yon?” His answer
was: “Hindi ko po nakita pero kilala ko ang boses niya na si Kuya Willie.”9
In the course of his testimony, Jeffre was shown a green t-shirt and a pair of shorts which
he recognized as those appellant wore the night of July 29, 1997, when appellant went to
their house earlier in the evening.10
On cross-examination, Jeffre said his father talked to him about the case four times, and
that before coming to court, several of his relatives also talked to him about the case and
told him to point to appellant as the person who killed his mother and brother.11 The child
further testified that on the night his brother and mother
_______________
6 Supra, note 4.
7 TSN, September 23, 1997, pp. 13-19.
8 Id., at pp. 19-21.
9 TSN, October 21, 1997, pp. 16-18.
10 TSN, September 23, 1997, pp. 7, 8, 22-24.
11 TSN, October 21, 1997, pp. 6-8.
314
314
were killed, he heard his Kuya Willie cough four times—three times downstairs and once
upstairs, after which he again pointed to appellant as the culprit behind the deaths of his
mother and brother.12
Witnesses JULIANA CASTILLO13 and VIRGILIO CASTILLO14 testified that they were
neighbors and relatives of the victims. They lived in a compound in Brgy. Aguas, Rizal,
Occidental Mindoro where the houses of three brothers were built: the house of Ramon
Castillo, Juliana’s husband; the house of Virgilio Castillo, who was still single and lived
alone; and the house of Benedicto Castillo, his wife Remedios, and their children.
According to witnesses, appellant was the adopted son (or palaki) of an aunt of the Castillo
brothers. Appellant had four children. His wife lived in San Roque I, Occidental Mindoro,
and seldom visited him.15 He owned and worked on a seven-hectare farm adjacent to the
lot where the witnesses and the victims lived. He frequented the neighborhood while he
bought food and supplies from the store of Juliana.16 He spoke with Virgilio at times,
although Virgilio said that they were not close because Virgilio was not used to having a
barkada.17
Both witnesses claimed that when appellant was working on his farm, he frequented the
house of Remedios, dropping by almost three times a day, especially when the victim’s
husband was not around. He sometimes had coffee or left some of his farm implements
there. They claimed that appellant had spent a night there. Juliana further testified that on
two occasions prior to the incident,18 the victim Remedios confided to her that she was
angry at appellant because he was courting her. Witness Juliana added she already
suspected that fact even before Remedios confided in her,
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12 Id., at p. 13.
13 TSN, September 22, 1997, pp. 2-36.
14 TSN, October 22, 1997, pp. 2-34.
15 Supra note 13 at 33.
16 Id., at p. 23.
17 Supra, note 14 at 21.
18 Specifically the dates July 27 & 28, 1997.
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but she did not tell appellant’s wife because the wife might not believe her.19
Juliana recalled that at about 7:00 P.M. on July 29, 1997, appellant arrived at her store and
bought a cigarette. After that he invited Virgilio, who was then having dinner, for a drink.
The latter declined.20 She recalled that on that night, she and her children slept at around
8:30 P.M. She did not recall hearing any noise coming from Remedios’ house because it
was raining heavily then and she was also listening to the radio.21 The next day, at about
7:00 A.M., her neighbor Norma Roldan and her daughter, Ann, arrived and asked her to
accompany them to Remedios, to ask the latter for their wages for planting palay.
Remedios was their kabisilya at that time. They knocked for about 30 minutes, calling
“Nanie”. Jeffre then opened the door and told them that his mother and brother were both
dead and that the killer was his Kuya Willie.22
In his testimony,23 Virgilio Castillo stated that, at approximately 7:00 to 7:10 P.M. of July
29, 1997, while he was seated in the terrace of Juliana Castillo’s house, he saw appellant
with a lighted cigarette enter the kitchen door of the victims’ house. At that time, he saw
Remedios washing clothes in the poso (water pump), about six arms-length from her
house where her two sons were. Appellant inquired where his plow was. After about three
minutes, he left. Virgilio recalled that appellant returned at about the same time he went
out of Juliana’s house. Appellant followed and invited him to “go around”. According to
Virgilio, he declined because he was tired. He could not recall where appellant went after.
He remembered appellant wore a green t-shirt with the words “Landbank” printed in front
and back, and a pair of dark green shorts. When shown a green t-shirt and short pants
(marked as Exhibit “C”), witness identified the clothes as those worn by appellant the night
of July 29, 1997. He said he learned of Remedios and
_______________
19 TSN, September 22, 1997, pp. 34-35.

20 Id., at pp. 18-19.
21 Id., at p. 30.
22 Id., at pp. 6-9.
23 TSN, October 22, 1997, pp. 5-11.
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316
Melvin’s death the following morning. He said he did not hear anything the previous night
as it was raining hard and because a cement wall separated his house from that of
Remedios.
The fourth witness for the prosecution was SPO2 ESTEBAN MARIANO DIMALALUAN,24
Chief of the Police Relations Section and Chief Investigator assigned at the Rizal Police
Station. He testified that on July 30, 1997, his office received a radio report of an incident
in Sitio Bagong Silang, Barangay Aguas, Rizal, Occidental Mindoro. Upon arrival at the
scene he and three other policemen found the bodies of Remedios and Melvin Castillo,
soaked in blood. They bore numerous stab wounds. The room where the bodies were
found measured about three meters by four meters. After they took pictures of the bodies,
and after further inspection, he noticed fresh footprints with mud on the toilet bowl and on
the wall made of light materials. He also took pictures of the footprints but the negatives
got exposed prematurely.
In the course of his investigation, said SPO2 Dimalaluan, he met eight-year-old Jeffre
Castillo, who had survived the carnage. The boy told him that he heard his mother shout
“Dikong, tulungan mo kami” and also his brother shouting “. . .Kuya Willie,”and “Tulungan
nyo kami, hindi na po ako uulit.” According to Jeffre, the last time he saw appellant in their
house was before nighttime of the day of the crime.25 Dimalaluan added that Juliana and
Virgilio also saw appellant then.
Later, according to Dimalaluan, they went to the house of appellant 150 meters away from
the crime scene. There they found appellant who had just taken a bath. They asked him
what he wore the day of the incident, and appellant pointed to the clothes he was wearing.
Doubting appellant, Dimalaluan went inside the house. In the bathroom, a green t-shirt
with “Landbank” print and dark short pants, newly washed and still wet, were hanging from
the clothesline. He said he noticed dark stains on them. These were brought to the police
station. During Dimalaluan’s testimony he
_______________
24 TSN, November 26, 1997, pp. 3-59.

25 Id., at pp. 11-17.
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marked the stains found on the clothes.26 These, however, were not subjected to
laboratory examination.
Appellant voluntarily went with the police to the police station, according to Dimalaluan.
While detained, appellant made an oral admission that he killed the victims and that he
used a knife, said the police officer. Hence, on July 31, 1997, Dimalaluan accompanied
appellant back to his house, where appellant got from the cabinet a hunting knife with
scabbard and then handed it over to him.27 According to Dimalaluan, appellant’s
admission was not reduced into writing28 because when appellant made the admission,
he was not assisted by a lawyer. The knife was likewise not subjected to any laboratory
examination.
The last prosecution witness, DR. MICHAEL C. JIMENEZ,29 Municipal Health Officer of
Rizal, testified that he conducted the autopsy on the bodies of the victims. He issued their
respective death certificates.30
Appellant WILLERIE AVENDAÑO31 was presented by the defense as its sole witness. He
denied committing the crimes and interposed an alibi. He said the deceased Remedios
and he had no disagreements.32 He did admit that in the late afternoon of July 29, 1997,
he bought cigarettes from Juliana’s store and there saw Virgilio Castillo. He denied he
invited him for a drink.33
According to appellant, he learned of the stabbing incident the following day, July 30,
1997, at about 8:00 A.M. He then went to the place where the victims were killed.
Thereafter he went back home. A few moments later five policemen, headed by SPO2
Dimalaluan, arrived. They asked him to accompany them to Remedios’ house. After taking
them there, he returned home to cook. He later went back to Remedios’ house and
_______________
26 Id., at pp. 18-23.

27 Id., at pp. 23-24.
28 Id., at p. 57.
29 TSN, January 7, 1998, pp. 2-20.
30 Records, pp. 52-53.
31 TSN, October 2, 1998, pp. 2-31.
32 Id., at p. 7.
33 Id., at p. 19.
318
318
SPO2 Dimalaluan no longer allowed him to go home. Accompanied by policemen, he was
allowed to go home only to lock the door of his house. There, they took one t-shirt and a
pair of shorts. Thereafter, he was brought to the Rizal police station and detained.
According to appellant, he was told to admit to the killings but he refused, saying he did
not do it. He did not give a written statement while under detention. The following day, July
31, 1997, the policemen brought him back to his house using a service jeep. They took a
knife from his house and before they left, took a photograph of him pointing to the knife.
He did not protest or say anything at the time because he was afraid.34
On the witness stand, he admitted ownership of the t-shirt and short pants taken from his
house but denied having worn them in the afternoon of July 29, 1997. He averred he did
not wash them and said that these were hanging for sometime when the police found
them. Later, however, he said he hanged said clothes on July 29, 1997.35
On January 29, 1999, the RTC convicted appellant as follows:
WHEREFORE, and in the light of all the foregoing considerations, the Court finds that the
accused Willerie (Willy) Avendaño is guilty beyond reasonable doubt of the crime of
Murder, as defined and penalized under Article 248 of the Revised Penal Code, and
Section 6 of Republic Act Number 7659, otherwise referred to as the Death Penalty Law,
and is hereby sentenced to DEATH.
The accused is ordered to indemnify the heirs of the victims Remedios Hilario Castillo and
Melvin Hilario Castillo in the amount of FIFTY THOUSAND PESOS (P50,000.000) for each
victim, and to furthermore pay said heirs the amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00) for each victim as and for moral damages.
The Provincial Warden is hereby directed to cause the immediate transfer of the accused
from the Provincial Jail at Magbay, San Jose, Occidental Mindoro to the New Bilibid
Prisons, Muntinlupa City, Metro Manila.
SO ORDERED.36
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34 Id., at pp. 7-12.

35 Id., at pp. 21-23.
36 Rollo, pp. 44-45.
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Hence, this appeal. Appellant, in his brief, assigns the following errors for our
consideration:
I. THAT THE HONORABLE LOWER COURT ERRED IN GIVING DUE COURSE TO THE
TESTIMONY OF JEFFRE (sic) CASTILLO WHO IS ONLY EIGHT YEARS OLD.
II. THAT THE HONORABLE LOWER COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF JEFFRE CASTILLO WHO PLAYS IN THE COURTROOM AND
UNMINDFUL OF THE TRIAL AND WHO DOES NOW (sic) UNDERSTAND THE VALUE
OF AN OATH.
III. THAT THE HONORABLE LOWER COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF JEFFRE CASTILLO WHO WAS COACHED BY THE FATHER AND
MANY RELATIVES.
IV. THAT THE HONORABLE COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF THE POLICE OFFICER THAT ACCUSED ADMITTED THE OFFENSE
VERBALLY TO HIM.
V. THAT THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION THAT
THE ACCUSED WAS ARRESTED WITHOUT ANY WARRANT AND PUT TO JAIL UP TO
THE PRESENT.
VI. THAT THE LOWER COURT ERRED IN GIVING DUE COURSE TO THE
CONFISCATED T-SHIRT AND SHORT PANTS WHICH THE PROSECUTION CLAIMED
TO HAVE BLOOD STAINS WITHOUT LABORATORY EXAMINATION.
VII. THAT THE TESTIMONY OF THE CHILD IS CONTRARY TO HUMAN BEHAVIOR,
EXPERIENCE, OBSERVATION AND NATURAL COURSE OF THINGS.37
From the foregoing, the main issue for resolution is whether the prosecution’s evidence
suffices to convict appellant of murder beyond reasonable doubt, and impose on him the
death penalty. We must, for this purpose, inquire (1) whether the testimonies of
prosecution witnesses are credible; (2) whether the arrest and the confinement of
appellant are legal; and (3) whether the T-shirt and short pants taken from appellant are
admissible in evidence.
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37 Id., at pp. 64-75.

320
320
Appellant assails the credibility of the prosecution’s witness, Jeffre Castillo. According to
appellant, the boy is only a playful eight-year-old who could not possibly understand the
value of an oath. Appellant points out that during Jeffre’s testimony, the defense counsel
called the attention of the court that Jeffre was playing with a rubber band while testifying
and appeared to be inattentive to the questions propounded to him.38 Moreover, appellant
states that Jeffre did not understand his oath because he did not even know his birthday,
did not know how to read and write even in Tagalog, and did not know where he was
born.39 According to the appellant, based on these observations, Jeffre’s credibility is
questionable.
In previous cases, the Court has held that a witness is not incompetent to give testimony
simply because he or she is of tender age. The requirements of a child’s competence as a
witness are: (1) capacity of observation; (2) capacity of recollection; and (3) capacity of
communication.40 It is the degree of a child’s intelligence that determines the child’s
competence as a witness. If the witness is sufficiently mature to receive correct
impressions by his senses, to recollect and narrate intelligently, and to appreciate the
moral duty to tell the truth, he is competent to testify.41 A minor’s testimony will suffice to
convict a person accused of a crime so long as it is credible.42
The determination of a child’s intellectual preparedness to be a witness rests primarily with
the trial judge, who assesses the child’s manners, his apparent possession or lack of
intelligence, as well as his understanding of the obligations of an oath. These abstract
matters cannot be photographed into the record. The judgment of the trial judge will not be
disturbed on review, unless from that which is preserved, it is clear that it was
erroneous.43
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38 TSN, September 23, 1997, p. 16; TSN, October 21, 1997, p. 8.

39 Id., at 2-3.
40 People vs. Gonzales, G.R. No. 130507, 311 SCRA 547, 559 (1999).
41 People vs. Pearson, 126 II1 App. 2d 166, 261 N.E.2d 519.
42 People vs. Tumaru, G.R. Nos. 95751-52, 319 SCRA 515, 527 (1999).
43 People vs. Mendoza, G.R. No. 113791, 254 SCRA 18, 32-33 (1996).
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In the case at bar, the trial court found that despite Jeffre’s age, his testimony was
delivered in a firm, candid, and straightforward manner and that his demeanor while at the
witness stand was credible.44 On this point, we see no reason to depart from the
evaluation by the trial judge, who had the advantage of directly observing the witness’
deportment and manner of testifying, as well as having certain potent aids in
understanding and weighing the testimony of the witness.45
Moreover, the alleged inconsistencies in Jeffre’s testimony were only on minor details and
trivial matters that serve to strengthen rather than destroy Jeffre’s credibility.
Appellant avers that Jeffre’s father and relatives coached him on what to say and that his
testimony and identification of appellant appeared rehearsed. He points out that Jeffre’s
father was allowed to sit near him while he was testifying. He also places emphasis on the
admission made by Jeffre in open court46 that on several occasions, including the night
before he was to testify, his father and relatives talked to him about the case and taught
him what to say and who to point to as the culprit. These, according to appellant, strip the
testimony of the child of any shred of credibility.
The records of this case, however, do not support appellant’s claim. As found by the trial
court, Jeffre’s testimony was delivered in a firm, candid, and straightforward manner. There
is no showing that Jeffre wavered from the basic facts of his testimony, even when he was
subjected to rigorous cross-examination.
If we are to believe the defense’s assertion that the child was coached before he testified,
wouldn’t his coaches also teach him to vehemently deny that such was the fact? Being a
child of tender age, Jeffre naturally needed guidance to face the ordeal of testifying before
the court on a matter as gruesome as the death of his own mother and brother. His
spontaneous admission that his eld-
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44 Rollo, p. 42.
45 See People vs. Villanueva, G.R. No. 122746, 302 SCRA 380, 398 (1999), citing People
vs. Lorenzo, G.R. No. 110107, 240 SCRA 624, 635 (1995) and People vs. Malunes, G.R.
No. 114692, 247 SCRA 317, 324 (1995).
46 TSN, October 21, 1997, pp. 6-8.
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322
ers talked to him beforehand did not diminish, but rather bolstered, his truthfulness. With
regard to the proximity of his father to him while he was testifying, the records bear out that
the defense had the opportunity to manifest its objection. Such proximity was duly noted
by the trial court yet upon its own judgment allowed it, with the observation that any
improper behavior would be readily observed by the judge as he was close enough to do
so.47
When it comes to the issue of credibility, this Court ordinarily defers to the assessment and
evaluation given by the trial court, for only the trial judge has the unique opportunity to
observe that elusive and incommunicable evidence of the witness’ deportment on the
witness stand while testifying, an opportunity denied to the appellate courts which usually
rely on the cold pages of the records of the case.48 Only when such assessment is tainted
with arbitrariness or oversight of some significant fact or circumstance will the appellate
court depart from the trial court’s factual conclusions.49
The records reveal that the trial court duly noted the objections, closely observed the
proceedings, and propounded its own questions to satisfy itself of the accuracy of the
witness’ testimony. We find no reason to disturb the factual findings of the trial court.
Jeffre’s credibility is also being assailed on the ground that his testimony, particularly his
reaction to what transpired in his presence, was contrary to human behavior, experience,
observation and the natural course of things. Appellant alleges that the natural reaction of
a child his age is to be afraid and either shout for his mother or brother or hide, or else run
away outside the house. This Court observes that was exactly how this child witness
reacted. He was afraid and realized something was definitely wrong, which then prompted
him to inch his way to a place where he felt safer and out of harm’s way. He hid where he
could not be found, in the
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47 Id., at pp. 3-4.

48 People vs. Garcia, G.R. Nos. 137379-81, 341 SCRA 502, 509 (2000), citing People vs.
Castillo, G.R. No. 130205, 335 SCRA 100, 111-112 (2000) and People vs. Babera, G.R.
No. 130609, 332 SCRA 257, 266 (2000).
49 People vs. Garcia, supra at pp. 509-510, citing People vs. De Guzman, G.R. No.
124368, 333 SCRA 269, 279-280 (2000) and People vs. Balgos, G.R. No. 126115, 323
SCRA 372, 380 (2000).
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dark but safe area for pillows, and escaped the bloody carnage that took her mother’s and
his brother’s lives.
We have long recognized that different people react differently to a given situation and
there is no standard form of behavioral response when one is confronted with a strange,
startling or frightful experience.50 Witnessing a crime is one novel experience that elicits
different reactions from witnesses for which no clear-cut standard of behavior can be
drawn.51 This is especially true if the assailant is physically near.52 Moreover, it is not
proper to judge the actions of children who have undergone traumatic experiences by the
norms of behavior expected under the circumstances from mature persons.53
Appellant questions the child’s testimony with respect to his recognition of the coughing
made by the assailant as that of appellant himself. Appellant contends this is unbelievable,
and that any identification made in this manner is subject to mistakes.
In People vs. Reyes,54 however, the Court held that once a person has gained familiarity
with another, identification becomes quite an easy task even from a considerable distance.
The sound of a person’s voice is an acceptable means of identification where it is
established that the witness and the accused knew each other personally and closely for a
number of years.55
In this case, Jeffre has known appellant for about three to four years. The latter lived in the
same barangay and his farm was right beside the house where the witness lived. They
were in close
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50 People vs. Palma, G.R. Nos. 130206-08, 308 SCRA 466, 481 (1999).
51 People vs. Reyes, G.R. No. 120642, 309 SCRA 622, 634 (1999); People vs. Taclan,
G.R. No. 123109, 308 SCRA 368, 381-382 (1999); People vs. Palma, supra; People vs.
Carullo, G.R. Nos. 129289-90, 311 SCRA 680, 690-691 (1999); People vs. Quilang, G.R.
Nos. 123265-66, 312 SCRA 314, 327 (1999); People vs. Sevilla, G.R. No. 126199, 320
SCRA 107, 114 (1999).
52 People vs. Alquizalas, G.R. No. 128386, 305 SCRA 367, 374 (1999).
53 People vs. Villanos, G.R. No. 126648, 337 SCRA 78, 85 (2000).
54 Supra, note 51 at pp. 634-635.
55 People vs. Gayomma, G.R. No. 128129, 315 SCRA 639, 646 (1999); People vs.
Preciados, G.R. No. 122934, 349 SCRA 1, 16 (2001), citing People vs. Avillano, G.R. No.
111567, 269 SCRA 553, 561 (1997).
324
324
contact with each other, especially since appellant often came to the house of the
Castillos. Such day-to-day familiarity and close proximity lend credence to the child’s
testimony that he would indeed recognize the distinctive cough of appellant. The child
testified that on that fateful night, the assailant coughed not only once but a total of four
times. Taking into account all the other circumstances of this case, this Court is convinced
that Jeffre’s identification of appellant’s coughing is credible.
When there is no evidence to indicate that the witness against the accused has been
actuated by any improper motive, and absent any compelling reason to conclude
otherwise, the testimony given by a witness is ordinarily accorded full faith and credit.56 As
a whole, we find the prosecution’s witnesses and their testimonies credible.
With regard to the legality of the arrest and confinement of appellant, it was shown that
upon arraignment, appellant voluntarily entered a plea of “not guilty” without first
questioning the legality of his arrest. By so pleading, he has submitted to the jurisdiction of
the trial court, thereby curing any defect in his arrest. Such act amounted to a waiver of the
right to question any irregularity in his arrest.57
It was error on the part of the trial court, however, to give probative value to the alleged
verbal admission made by appellant to SPO2 Dimalaluan. The alleged admission was not
reduced into writing. It was obtained in violation of appellant’s right under custodial
investigation.58 As regards the items of clothing as well as
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56 People vs. Dacibar, G.R. No. 111286, 325 SCRA 725, 737-738 (2000); People vs.
Galido, G.R. No. 128883, 326 SCRA 187, 194 (2000); People vs. Platilla, G.R. No.
126123, 304 SCRA 339, 351-352 (1999), citing People vs. Agunias, G.R. No. 121993, 279
SCRA 52, 65 (1997).
57 People vs. Lagarto, G.R. Nos. 118828 & 119371, 326 SCRA 693, 749 (2000).
58 See Art. III, Section 12 (1), 1987 Constitution: SEC. 12. (1) Any person under
investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services
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the knife found in and taken from the house of appellant, a search warrant should have
been obtained as required under Article III, Section 3 (2) of the Constitution.59 Failing
thus, the exclusionary rule applies. Hence neither the knife with scabbard nor the T-shirt
with shorts ought to be allowed in evidence.
Appellant denies the commission of the crime and interposes the alibi that he was in his
house on the night of July 29, 1996. For alibi to stand, it must be shown that not only was
appellant somewhere else when the crime was committed but also that it was physically
impossible for him to have been at the scene of the crime at the time it was committed.
Appellant failed in this regard. His house was only about 150 to 200 meters from the house
of Remedios; it was not impossible for him to have been at the scene of the crime.
Alibi is inherently weak and unreliable, unless corroborated by disinterested witnesses.
Since appellant is unable to substantiate his alibi with the testimony of a credible witness,
it is reduced to self-serving evidence undeserving of any weight in law.60
In sum, we find appellant’s defense of denial and alibi unavailing. Given the testimonial
evidence for the prosecution which we find credible we entertain no doubt as to his
criminal liability for the death of Remedios and Melvin Castillo. The only remaining
question is whether these killings were attended by qualifying and aggravating
circumstances.
The qualifying circumstance of treachery was found present by the trial court, resulting in
appellant’s conviction for two counts of murder. Under the Revised Penal Code, there is
treachery “when the offender commits any of the crimes against the person, employing
means, methods or forms in the execution thereof which tend directly and specially to
insure its execution, without risk to
_______________
of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
59 See Article III, Section 3 (2), 1987 Constitution: SEC. 3 (2) Any evidence obtained in
violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.
60 See People vs. Galido, supra, note 56 at 195-196.
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326
himself arising from the defense which the offended party might make.”61 For treachery to
exist, two conditions must be found: (1) that at the time of the attack the victim was not in a
position to defend himself; and (2) the offender consciously adopted the particular means,
method or form of attack employed by him.62
In this case, we find no adequate proof of treachery. Evidence on record does not show
that appellant consciously and purposely adopted means and methods to ensure the
commission of the crime without any risk to himself. Thus, absent treachery or any
circumstance that would otherwise qualify an offense to murder, the crime committed is
only homicide. Hence, appellant should only be held for two counts of homicide, not
double murder.
The trial court appreciated the aggravating circumstances of nighttime, dwelling, and
unlawful entry. Of the three, however, only nighttime was properly alleged in the
information. The Revised Rules of Criminal Procedure which took effect on December 1,
2000, requires that every complaint or information should state not only the qualifying but
also the aggravating circumstances.63 This rule may be given retroactive effect in the light
of the settled doctrine that statutes regulating the procedure of the court will be construed
as applicable to actions pending and undetermined at the time of their passage.
Procedural laws are retroactive in that sense and to that extent.64 Hence, following this
new rule, we cannot appreciate the aggravating circumstances of dwelling and unlawful
entry, since they were not alleged in the information.
As to nighttime, this circumstance is considered aggravating only when (1) it was
especially sought by the offender; or (2) the
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61 Revised Penal Code, Art. 14.

62 People vs. Dacibar, supra, note 56 at 744.
63 Rule 110, Section 8 states in pertinent part: Designation of the offense.—The complaint
or information shall state the designation of the offense given by the statute, aver the acts
or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the
section or subsection of the statute punishing it.
64 Ocampo vs. CA, G.R. No. 79060, 180 SCRA 27, 33 (1989); Alday vs. Camilon, G.R.
No. L-60316, 120 SCRA 521, 523 (1983); People vs. Sumilang, 77 Phil. 764, 765-766
(1946).
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offender took advantage of it; or (3) it facilitated the commission of the crime by ensuring
the offender’s immunity from identification or capture.65 In this case, the prosecution did
not adduce evidence that the appellant deliberately sought the cover of the night to commit
the offense. The mere fact that the killing was committed at night would not suffice to
sustain nocturnity for, by, and of itself.66 Aggravating circumstances must be established
with the same quantum of proof as fully as the crime itself, and any doubt as to their
existence must be resolved in favor of appellant.67
At this juncture, we note the observation of the trial court that only one criminal information
was filed for the two deaths, in violation of Rule 110, Section 1368 of the Rules of Court
which mandates that one information for each crime should be filed, except in cases for
which the law prescribes a single punishment for various offenses. This observation,
however, should not stop the court from imposing a penalty for each crime committed in
the light of appellant’s failure to object to the defect in the information. As held in People
vs. Ramon:69
Regrettably for the accused-appellant, however, he has failed to timely question the above
defect, and he may thus be deemed to have waived his objection to the multiplicity of
charges. In People vs. Conte, this Court has ruled:
. . . Under Sections 1 and 3(e) of Rule 117, the appellant, before entering his plea, should
have moved to quash the complaint for being duplicitous. For his failure to do so, he is
deemed to have waived the defect. Hence, pursuant to Section 3 of Rule 120, the court
could convict him of as
_______________
65 People vs. De la Cruz, G.R. Nos. 109619-23, 291 SCRA 164, 185 (1998).
66 People vs. Belo, G.R. No. 109148, 299 SCRA 654, 666-667 (1998).
67 People vs. Cayago, G.R. No. 128827, 312 SCRA 623, 637-638 (1999), cited in People
vs. Cabug, G.R. No. 123149, March 27, 2001, p. 28, 355 SCRA 391.
68 SEC. 13. Duplicity of Offenses.—A complaint or information must charge only one
offense, except when the law prescribes a single punishment for various offenses.
69 320 SCRA 775, 783 (1999); People vs. Lucena, G.R. No. 137281, 356 SCRA 90, 105-
106.
328
328
many offenses as are charged and proved, and impose on him the penalty for each and
every one of them. (Citations omitted)
The penalty for homicide is reclusion temporal. There being neither mitigating nor
aggravating circumstances, the appropriate penalty therefore is reclusion temporal in its
medium period. Applying the Indeterminate Sentence Law, appellant’s sentence for each
homicide should be an indeterminate penalty of eight years and one day of prision mayor,
as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum.
Finally, on the award of damages. For each count of homicide, the award of P50,000 as
civil indemnity for the death of the victim, is in accord with prevailing jurisprudence.70
Given the facts of this case, where mother and son perished in a shocking carnage from
numerous wounds inflicted by the malefactor, the amount of P50,000 as moral damages
for the death of each victim should also be awarded.
WHEREFORE, the decision of the Regional Trial Court of San Jose, Occidental Mindoro,
Branch 46, in Criminal Case No. R-4227, is hereby MODIFIED. Appellant WILLERIE
AVENDAÑO is found GUILTY of two counts of homicide. For each count, there being no
aggravating nor mitigating circumstance, he is sentenced to suffer the indeterminate
penalty of eight years and one day of prision mayor, as minimum, to fourteen years, eight
months and one day of reclusion temporal, as maximum, with all the accessory penalties
prescribed by law. Appellant is also ordered to pay the heirs of each victim the amount of
P50,000.00 as civil indemnity and another sum of P50,000.00 as moral damages, together
with the costs.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Vitug, Mendoza, Panganiban, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.,
concur.
Judgment modified.
Note.—Accused’s failure to move for the quashal of the information on the ground that
more than one offense was charged is deemed waiver of his objection. (People vs.
Gianan, 340 SCRA 477 [2000])
IV. People v. Sumaoy
G.R. No. 105961. October 22, 1996.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PACIFICO SUMAOY, JOHN DOE,
PETER DOE and RICHARD DOE, accused. PACIFICO SUMAOY, accused-appellant.
Criminal Law; Murder; Evidence; Circumstantial Evidence; Even if there is no direct
evidence showing that the accused shot the victim, his guilt may be proven by the
circumstances obtaining in the case which constitute an unbroken chain which leads to
only one fair and reasonable conclusion — that the accused is guilty of the killing of the
victim.—On the other hand, the Solicitor General, in representation of the prosecution,
argues that the circumstances established by the prosecution, when taken together,
constitute an unbroken chain leading to the inevitable conclusion that accused-appellant
shot and killed Zandro Vargas. While there is no direct evidence showing that it was
indeed accused-appellant who shot Zandro in the head, the Solicitor General claims that
the testimonies of Wilbert Vargas and Patricio Jacobe that Zandro was last seen alive with
accused-appellant and three other men clearly prove that no other person could have shot
and killed Zandro Vargas than accused-appellant Pacifico Sumaoy. We agree with the
Solicitor General that the circumstantial evidence in this case establishes beyond
reasonable doubt that accused-appellant shot and killed Zandro Vargas. These
circumstances, as pointed out by the Solicitor General, are the following: (a) Zandro was
being mauled by appellant and his companions (p. 5, TSN, June 28, 1990); (b) As Zandro
was attempting to run, appellant drew his pistol and shot Zandro (pp. 5-6, Ibid.); (c) Zandro
was hit on the arm (p. 6, TSN, Ibid. and p. 8, TSN, July 13, 1990); (d) Zandro fell on his
knees (p. 6, TSN, June 28, 1990); (e) Zandro was dragged towards a motorized pedicab
by appellant (p. 6, TSN, June 28, 1990 and p. 8, TSN, July 13, 1990); (f) Zandro was
loaded on the motorized pedicab and appellant and his companions boarded the same
pedicab (pp. 6-7, TSN, June 28, 1990, and pp. 8-10, TSN, July 13, 1990); (g) Zandro was
found dead (p. 11, TSN, June 28, 1990). Together these circumstances constitute an
unbroken chain which leads to only one fair and reasonable conclusion — that the
accused is guilty of the killing of Zandro Vargas.
_______________
* SECOND DIVISION.
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VOL. 263, OCTOBER 22, 1996

461
People vs. Sumaoy
Same; Same; Same; The presentation and identification of the weapon used are not
indispensable to prove the guilt of the accused.—Accused-appellant contends that he
cannot be convicted without the presentation of the gun in evidence. He alleges that the
prosecution’s failure to match the slugs recovered from the body of Zandro Vargas with
accused-appellant’s own firearm precludes his conviction. This contention has no merit.
The presentation and identification of the weapon used are not indispensable to prove the
guilt of the accused. The time which elapsed from the moment the victim was last seen
alive and the moment his body was found narrows the possibility that another agent
caused his death, especially where an aggression was established against the victim
before he disappeared with the accused.
Same; Same; Same; Witnesses; Inconsistency on a minor matter negates any suspicion
that the testimonies were perjured or rehearsed.—The accused-appellant tries to discredit
the testimonies of the principal prosecution witnesses. He points out that Patricio Jacobe,
Jr. testified that Zandro was shot in the right arm, while Wilbert Vargas said Zandro was
shot in the left. This is, however, an inconsistency concerning a minor matter which does
not impair credibility of the witnesses. The inconsistency negates any suspicion that the
testimonies were perjured or rehearsed. Moreover, findings of fact of trial courts,
particularly with respect to the credibility of witnesses who personally appeared and
testified before them, must be respected on appeal.
Same; Same; Alibi; For alibi to prosper, it is not enough that the accused prove that he was
somewhere else when the crime was committed — he must demonstrate that he could not
have been physically present at the place of the crime or in its immediate vicinity at the
time of its commission.—Accused-appellant’s defense of alibi is of no moment. Not only
was accused-appellant positively identified as the person who had shot and taken Zandro
Vargas to an undisclosed placed. It is also settled that for alibi to prosper, it is not enough
that accused-appellant prove that he was somewhere else when the crime was committed.
He must demonstrate that he could not have been physically present at the place of the
crime or in its immediate vicinity at the time of its commission. The testimony of accused-
appellant, T/Sgt. Go and Pat. Narciso Vismanos failed to show that it was impossible for
the accused to be at the scene of the crime. The CIS office was only one kilometer away
from the scene of
462
462
People vs. Sumaoy
the crime. In addition, Vismanos admitted that he was so absorbed in his work that he did
not really know whether accused-appellant was in the office premises the entire day of the
latter’s duty.
Same; Same; Homicide; Aggravating Circumstances; Treachery; Where no particulars are
known as to the manner in which the aggression was made or how the act which resulted
in the death of the victim began and developed, it cannot be established from mere
suppositions that the accused perpetrated the killing with treachery.—While the evidence
in this case sufficiently establishes the guilt of the accused-appellant for the killing of victim
Zandro Vargas, we think he cannot be held liable for murder because of the absence of
evidence as to the manner of the actual killing. Where no particulars are known as to the
manner in which the agression was made or how the act which resulted in the death of the
victim began and developed, it cannot be established from mere suppositions that the
accused perpetrated the killing with treachery. The evidence shows that the aggression
against the victim began when he was still at the J Spot Carinderia. As a matter of fact,
according to Patricio Jacobe, Jr., the deceased was trying to flee from the accused-
appellant when the latter shot him, thus indicating that the victim had been forewarned of a
greater aggression against him. The assault on the victim cannot be said to have been
made in a sudden or unexpected manner so as to justify a finding of treachery.
Same; Same; Same; Same; Abuse of Public Position; The aggravating circumstance of
taking advantage of official position in the commission of the offense requires that the
accused, as a public officer, used the influence or reputation of his position for the purpose
of committing the crime.—The trial court also erred in finding the aggravating circumstance
of taking advantage of official position in the commission of the offense. This circumstance
requires that the accused, as a public officer, used the influence or reputation of his
position for the purpose of committing the crime. If the accused could have perpetrated the
crime without occupying his position, then there is no abuse of public position. In the case
before us, no evidence was adduced to show that the killing of Zandro Vargas was in any
way facilitated by the accused-appellant’s public position. It was not even shown whether
the accused-appellant wore his uniform or used his service firearm when he committed the
crime.
463
VOL. 263, OCTOBER 22, 1996
463
People vs. Sumaoy
APPEAL from a decision of the Regional Trial Court of Tagum, Davao, Br. 2.
Isidro M. Ampig for accused-appellant.
MENDOZA, J.:
This is an appeal from the decision1 of the Regional Trial Court, Branch 2, Tagum, Davao
in Criminal Case No. 7245, finding accused-appellant Pacifico Sumaoy guilty of murder
and sentencing him to suffer the penalty of reclusion perpetua, to indemnify the heirs of
the deceased, Zandro Vargas, in the sum of P30,000.00 and to pay the costs.
Accused-appellant was convicted for the killing on July 9, 1988 of Zandro Vargas, a boy 16
years of age, in Tagum, Davao. Wilbert Vargas, the victim’s brother, and Patricio Jacobe,
Jr. identified accused-appellant Pacifico Sumaoy as the assailant, together with three
others who have remained unidentified and at large.
The prosecution presented four witnesses: Wilbert Vargas, Patricio Jacobe, Jr., Enriqueta
Vargas and Dr. Jose Lopez.
Patricio Jacobe, Jr. testified that he worked as a pin boy in a billiard hall on Roxas Street,
Tagum, Davao. At 5:45 p.m. of July 9, 1988, he left the billiard hall to have some beer at
the Pacing’s Carinderia on Sobrecary Street. Afterward, he went back to the billiard hall,
passing by the J Spot Carinderia at the corner of Roxas and Sobrecary Streets, where he
saw the deceased Zandro Vargas talking to accused-appellant Pacifico Sumaoy. Three
other men were with them but Jacobe did not recognize the three.
Upon reaching the billiard hall, Patricio Jacobe, Jr. piled some billard balls, then went out
and stood on the sidewalk. He was startled by the sound of a gunshot. When he turned to
_______________
1 Per Judge Pedro T. Casia.

464
464
People vs. Sumaoy
find out where the sound came from, he saw Zandro Vargas running towards Roxas Street
with his right arm bleeding. Zandro Vargas tried to seek refuge at the Try Me beauty parlor,
but he was overtaken by accused-appellant who dragged him towards a waiting tricycle.
Accused-appellant had a gun. The accused-appellant and three other men then boarded
the tricycle taking Zandro Vargas with them. Jacobe allegedly heard one of accused-
appellant’s companion say that they were taking Zandro to the hospital. Later that evening
Jacobe learned that Zandro was found dead in a kangkong field near the Davao Visayan
Village.
The other prosecution witness, Wilbert Vargas, is the brother of the deceased. Wilbert
testified that at 6:00 p.m., on July 9, 1988, while he was talking to a friend on Roxas Street
near the public market, he was told that his brother Zandro was being beaten up in a
carinderia at the corner of Roxas and Sobrecary Streets. Wilbert immediately proceeded to
the J Spot Carinderia. He saw accused-appellant aiming his gun at Zandro as the latter
was running away. Accused-appellant shot Zandro Vargas, hitting the latter in the forearm,
and causing him to fall on his knees. Zandro Vargas was then dragged by accused-
appellant and three unidentified men towards a tricycle. Wilbert Vargas saw his brother
loaded onto the tricycle “like a pig,” with Zandro’s feet hanging out. Wilbert tried to come to
the aid of his brother but accused-appellant pointed his gun at him, causing him to run
home in fear.
Wilbert Vargas told his parents what had happened to his brother. They searched for
Zandro. They went to Mangga, Davao and there learned from Jose Montilla, the driver of
the tricycle which accused-appellant Sumaoy and his companions hailed, that Zandro had
been killed and that his body had been dumped in a kangkong field in Visayan Village,
Tagum, Davao. Wilbert and his parents proceeded to the place indicated and there found
Zandro’s dead body.
Wilbert Vargas identified Pacifico Sumaoy as one of the assailants. Wilbert testified that he
recognized Sumaoy because the latter was assigned to the military detachment in
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VOL. 263, OCTOBER 22, 1996

465
People vs. Sumaoy
the Diwalwal mining area where Wilbert used to work. Dr. Jose Lopez, Municipal Health
Officer of Tagum, who examined the body of Zandro Vargas, issued a death certificate.
Under questioning by the prosecutor, Dr. Lopez testified as follows:
Q You said you placed your findings in the certificate of death, please read the findings,
Doctor.
A (Reading)—“I hereby certify that I have this 10th day of July 1988 performed an
autopsy upon the body of the deceased Zandro Rinia Vargas and that the cause of death
was as follows: Shock, irreversible, due to gunshot wounds located at (1) right frontal into
cranial cavity exiting at right upper occipital; (2) right eyebrow exiting at left lower occipital;
(3) left temporal (no exit); (4) right arm lateral going out at medial and going into right
axillary into thoracic cavity (no exit).”
Q Will you explain your findings to us, Doctor?
A There were four (4) gunshot wounds found on the body of the victim. No. 1 was at the
right frontal (witness pointing at his middle forehead) going into the cranial cavity going
outside (witness pointing at the back of his head); No. 2, at the right eyebrow (witness
pointing at the middle of right eyebrow) going out to the left lower occipital (witness
pointing at the back of his head, left side near the ear); No. 3 wound is found at the
temporal without exit (witness pointing at the left side of his head, a little above the left
ear); and the No. 4 wound is found at the right arm lateral (witness pointing at his right-
upper arm, outside) going at medial aspect then same bullet passed into the axillary region
into the thoracic cavity, no more exit, the right-upper arm as entrance and exit inside of the
right-upper arm and then going into the right chest (witness pointing at the right side of his
body just about 3 inches below the armpit).2
Accused-appellant denies participation in the killing of Zandro Vargas. He claims that the
whole day of July 9, 1988 he was on duty as an enlisted personnel of the 1103rd Crimi-
_______________
2 Testimony of Dr. Jose Lopez, TSN, p. 6, June 22, 1990.

466
466
People vs. Sumaoy
nal Investigation Service (CIS) in Tagum, Davao. Accused-appellant identified a document
signed by Technical Sergeant Ricardo Go called “Duty Detail” showing that accused-
appellant was on duty from 8:00 a.m. of July 9, 1988 to 8:00 a.m. of July 10, 1988. Ricardo
Go, Technical Sergeant, Philippine Constabulary and Team Leader of the Criminal
Investigation Service Command, Tagum, Davao, and Patrolman Narciso Vismanos,
corroborated the accused-appellant’s alibi.
On June 6, 1991, the Regional Trial Court of Tagum, Davao rendered a decision finding
accused-appellant guilty of murder qualified by treachery. The trial court noted that
accused-appellant Sumaoy shot Zandro while the latter was running away and held that
the three bullet wounds sustained by Zandro in the head showed that he was shot while in
a helpless and defenseless condition. The trial court appreciated the ordinary aggravating
circumstance of taking advantage of public position against accused-appellant Sumaoy.
Accused-appellant Sumaoy has appealed from this decision of the trial court. He contends
that the prosecution evidence does not fulfill the test of moral certainty necessary to
support a judgment of conviction. He points out that no proof was presented as to the type
of weapon used in the shooting of Zandro Vargas, and he challenges the testimony and
credibility of witnesses Wilbert Vargas and Patricio Jacobe, Jr.
On the other hand, the Solicitor General, in representation of the prosecution, argues that
the circumstances established by the prosecution, when taken together, constitute an
unbroken chain leading to the inevitable conclusion that accused-appellant shot and killed
Zandro Vargas. While there is no direct evidence showing that it was indeed accused-
appellant who shot Zandro in the head, the Solicitor General claims that the testimonies of
Wilbert Vargas and Patricio Jacobe that Zandro was last seen alive with accused-appellant
and three other men clearly prove that no other person could have shot and killed Zandro
Vargas than accused-appellant Pacifico Sumaoy.
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VOL. 263, OCTOBER 22, 1996

467
People vs. Sumaoy
We agree with the Solicitor General that the circumstantial evidence in this case
establishes beyond reasonable doubt that accused-appellant shot and killed Zandro
Vargas. These circumstances, as pointed out by the Solicitor General, are the following:
(a) Zandro was being mauled by appellant and his companions (p. 5, TSN, June 28,
1990);
(b) As Zandro was attempting to run, appellant drew his pistol and shot Zandro (pp. 5-6,
Ibid.);
(c) Zandro was hit on the arm (p. 6, TSN, Ibid. and p. 8, TSN, July 13, 1990);
(d) Zandro fell on his knees (p. 6, TSN, June 28, 1990);
(e) Zandro was dragged towards a motorized pedicab by appellant (p. 6, TSN, June 28,
1990 and p. 8, TSN, July 13, 1990);
(f) Zandro was loaded on the motorized pedicab and appellant and his companions
boarded the same pedicab (pp. 6-7, TSN, June 28, 1990, and pp. 8-10, TSN, July 13,
1990);
(g) Zandro was found dead (p. 11, TSN, June 28, 1990).3
Together these circumstances constitute an unbroken chain which leads to only one fair
and reasonable conclusion — that the accused is guilty of the killing of Zandro Vargas.
It was established by positive testimony that accused-appellant Sumaoy shot the
deceased in the arm and thereafter took the victim with him to an undisclosed location with
the help of three other men. Only the accused-appellant was seen with a firearm. Less
than 24 hours later, the victim was found dead. Not only was accused-appellant identified
as the person with whom Zandro Vargas was last seen alive, he was also positively
identified as the person who shot Zandro Vargas in the arm. There is thus proof of
aggression on the part of the accused which, taken with the other circumstances, shows
he had the intent to inflict injury upon the victim.
_______________
3 Appellee’s Brief, Rollo, pp. 95-96.
468
468
People vs. Sumaoy
In the case of People v. Fulinara,4 the accused were convicted of kidnapping with murder
based upon positive testimony that the victim was last seen alive when he was forcibly
abducted by two armed men in army fatigues who were later identified as the accused.
After the victim was abducted by the accused he was later found dead. As in the case
before us, there was no eyewitness at the precise moment the victim was killed.
Accused-appellant contends that he cannot be convicted without the presentation of the
gun in evidence. He alleges that the prosecution’s failure to match the slugs recovered
from the body of Zandro Vargas with accused-appellant’s own firearm precludes his
conviction. This contention has no merit. The presentation and identification of the weapon
used are not indispensable to prove the guilt of the accused.5 The time which elapsed
from the moment the victim was last seen alive and the moment his body was found
narrows the possibility that another agent caused his death,6 especially where an
aggression was established against the victim before he disappeared with the accused.
The accused-appellant tries to discredit the testimonies of the principal prosecution
witnesses. He points out that Patricio Jacobe, Jr. testified that Zandro was shot in the right
arm, while Wilbert Vargas said Zandro was shot in the left. This is, however, an
inconsistency concerning a minor matter which does not impair credibility of the witnesses.
The inconsistency negates any suspicion that the testimonies were perjured or
rehearsed.7 Moreover, findings of fact of trial courts, particularly with respect to the
credibility of witnesses
_______________
4 247 SCRA 28 (1995).

5 See People v. Fulinara, 247 SCRA 28; People v. De Guzman, 231 SCRA 737 (1994).
6 People v. Ruelan, 231 SCRA 650 (1994); People v. Cabuang, 217 SCRA 675 (1993).
7 People v. Ledesma, 250 SCRA 166 (1995).
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VOL. 263, OCTOBER 22, 1996

469
People vs. Sumaoy
who personally appeared and testified before them, must be respected on appeal.8
Accused-appellant’s defense of alibi is of no moment. Not only was accused-appellant
positively identified as the person who had shot and taken Zandro Vargas to an
undisclosed placed. It is also settled that for alibi to prosper, it is not enough that accused-
appellant prove that he was somewhere else when the crime was committed. He must
demonstrate that he could not have been physically present at the place of the crime or in
its immediate vicinity at the time of its commission. The testimony of accused-appellant,
T/Sgt. Go and Pat. Narciso Vismanos failed to show that it was impossible for the accused
to be at the scene of the crime. The CIS office was only one kilometer away from the
scene of the crime. In addition, Vismanos admitted that he was so absorbed in his work
that he did not really know whether accused-appellant was in the office premises the entire
day of the latter’s duty.9
While the evidence in this case sufficiently establishes the guilt of the accused-appellant
for the killing of victim Zandro Vargas, we think he cannot be held liable for murder
because of the absence of evidence as to the manner of the actual killing. Where no
particulars are known as to the manner in which the agression was made or how the act
which resulted in the death of the victim began and developed, it cannot be established
from mere suppositions that the accused perpetrated the killing with treachery.10 The
evidence shows that the aggression against the victim began when he was still at the J
Spot Carinderia. As a matter of fact, according to Patricio Jacobe, Jr., the deceased was
trying to flee from the accused-appellant when the latter shot him, thus indicating that the
victim had been forewarned of a greater aggression against him. The assault on the victim
cannot be said to have
_______________
8 People v. Soan, 243 SCRA 627 (1995).

9 Testimony of Pat. Narciso Vismanos, TSN, pp. 7-8, December 20, 1990.
10 People v. Alba, G.R. No. 107715, April 25, 1996.
470
470
People vs. Sumaoy
been made in a sudden or unexpected manner so as to justify a finding of treachery.11
The trial court also erred in finding the aggravating circumstance of taking advantage of
official position in the commission of the offense. This circumstance requires that the
accused, as a public officer, used the influence or reputation of his position for the purpose
of committing the crime. If the accused could have perpetrated the crime without
occupying his position, then there is no abuse of public position. In the case before us, no
evidence was adduced to show that the killing of Zandro Vargas was in any way facilitated
by the accused-appellant’s public position. It was not even shown whether the accused-
appellant wore his uniform or used his service firearm when he committed the crime.12
WHEREFORE, the decision of the Regional Trial Court is MODIFIED, finding accused-
appellant Pacifico Sumaoy guilty of homicide, and SENTENCING him to suffer an
indeterminate penalty of 12 years of prision mayor, as minimum, to 17 years of reclusion
temporal, as maximum, to indemnify the heirs of the deceased Zandro Vargas in the
increased sum of P50,000.00 and to pay the costs.
SO ORDERED.
Regalado (Chairman), Romero, Puno and Torres, Jr., JJ., concur.
Judgment modified.
Notes.—Minor inconsistencies do not affect the credibility of witnesses, as they may even
tend to strengthen rather than weaken their credibility. (People vs. Lorenzo, 240 SCRA 624
[1995])
_______________
11 People v. Padilla, 233 SCRA 46 (1994).

12 People v. Padilla, 233 SCRA 46; People v. Gapasin, 231 SCRA 728 (1994).
© Copyright 2015 Central Book Supply, Inc. All rights reserved. [People vs. Sumaoy, 263
SCRA 460(1996)]
V. People vs. Dalanon
G.R. No. 107458. October 14, 1994.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SGT. HERMES DALANON,
accused-appellant, GODELIO MONSALES, SALVADOR ALBAO alias “BADOY,” (at large)
and JOHN DOE (at large), accused.
Criminal Law; Robbery with Homicide; The number of persons killed in homicide on the
occasion of attempted robbery is immaterial.—The accused were charged with Attempted
Robbery with Multiple Homicide. The crime should be Attempted Robbery with Homicide.
The number of persons killed in homicide on the occasion of attempted robbery is
immaterial. All homicides or murders are merged in the composite, that is attempted
robbery with homicide. Further, the term “homicide” in robbery should be understood as a
generic term.
Same; Evidence; Witnesses; Credence given to the testimony of a witness which is
positive and clear.—Essentially, the case involves calibration of the credibility of witnesses.
Prosecution witness Oliver Cervantes has identified accused-appellant Dalanon as one of
the perpetrators of the crime. On the other hand, said accused-appellant has denied his
presence at the scene of the crime when it was committed. We give credence to the
testimony of witness Cervantes which is positive and clear. He even passed in the crucible
of a voir dire.
Same; Same; Same; It is far fetched for a fourth grade, uncouth barrio boy to falsely
impute a heinous crime against the accused, a Deputy Detachment Commander.—The
conduct of Cervantes subsequent
_______________
* SECOND DIVISION.
608
608
People vs. Dalanon
to the crime bolsters his credibility. He immediately accompanied the authorities to the
scene of the crime. This prompt action led to the immediate arrest of two (2) of the killers.
This spontaneous reaction negates any opportunity to concoct falsehoods. Indeed, it is far
fetched for Cervantes, a fourth grade, uncouth barrio boy to falsely impute a heinous crime
against accused-appellant Dalanon, a Deputy Detachment Commander of Asid, Masbate.
He had no motive to falsify facts against accused-appellant.
Same; Same; Same; Alibi cannot prevail over the positive identification of an accused as
the perpetrator of the crime.—Time and again, we have ruled that alibi cannot prevail over
the positive identification of an accused as the perpetrator of the crime. To sustain the
defense of alibi, an accused must not only prove satisfactorily that he was at another place
at the time the crime happened. But more important, that it was physically impossible for
him to be at the scene of the crime at the time of its commission.
Same; Attempted Robbery with Homicide; There is attempted robbery where the robbery
would have been complete were it not for the refusal of the victim to give the money.—The
trial court correctly convicted accused-appellant for attempted robbery with homicide. It is
clear that when Albao demanded money from Felicidad, accused-appellant and his
company had the intention of robbing the Rejuso family. The robbery would have been
complete were it not for the refusal of Felicidad to give money as they had none.
Same; Same; Conspiracy need not be proved by direct evidence of prior agreement to the
crime as it could be inferred from the conduct of the accused before, during, and after the
commission of the crime, showing that they acted in unison with each other, evincing a
common purpose or design.—Neither did the trial court err in finding conspiracy among the
accused. Conspiracy need not be proved by direct evidence of prior agreement to the
crime. It could be inferred from the conduct of the accused before, during, and after the
commission of the crime, showing that they acted in unison with each other, evincing a
common purpose or design. The evidence proved that: Albao and Monsales brought
spouses Rejuso to the ground; Albao butchered them; and accused-appellant Dalanon did
not do anything to stop the killings. Their unity of design is self evident.
Same; Same; Aggravating Circumstances; Dwelling was present where the principal crime
took place in the house of the victims, although the killings were committed outside
thereof.—We now deal
609
VOL. 237, OCTOBER 14, 1994

609
People vs. Dalanon
with the aggravating circumstances that attended the commission of the crime. Dwelling or
morada was present because the principal crime took place in the house of the victims,
although the killings were committed outside thereof. The accused showed greater
perversity in their deliberate invasion of the tranquility of the Rejuso’s domicile.
Same; Same; Same; Treachery was present where the victims were first hog-tied before
they were mercilessly hacked to death.— Treachery characterized the commission of the
crime. The victims were first hog-tied to render them incapable of defense. They were then
mercilessly hacked to death.
APPEAL from a decision of the Regional Trial Court of Masbate, Br. 48.

Amado R. Fojas for accused-appellant.
PUNO, J.:
Sgt. Hermes Dalanon, Godelio Monsales, Salvador Albao alias “Badoy,” and a John Doe
were charged before the Regional Trial Court of Masbate1 with ATTEMPTED ROBBERY
with MULTIPLE HOMICIDE,2 in an Information dated April 22, 1991, which reads:
“That on or about February 17, 1991 in the evening thereof at Barangay Asid, Municipality
of Masbate, Province of Masbate, Philippines, within the jurisdiction of this Honorable
Court, the above-named accused, all armed with deadly weapons, conspiring together and
confederating with another whose true name and identity is still unknown, with intent to
gain, by means of violence and intimidation,
_______________
1 Fifth Judicial Region, Branch 48, Masbate, Masbate.

2 Docketed as Criminal Case No. 6334.
* Should be Attempted Robbery with Homicide. The number of persons killed in homicide
on the occasion of attempted robbery is immaterial. All homicides or murders are merged
in the composite, that is attempted robbery with homicide. Further, the term “homicide” in
robbery should be understood as a generic term.
610
610
People vs. Dalanon
did then and there willfully, unlawfully and feloniously commence the commission of the
crime of Robbery directly by overt acts, to wit: by then and there demanding money from
the spouses RODRIGO and FELICIDAD REJUSO but the said accused were not able to
perform all the acts of execution which would have produced the crime of Robbery as a
consequence, by reason of causes other than their own spontaneous desistance, that is
the said spouses refused and/or denied having money, and pursuant to the same
conspiracy, with intent to kill, by means of treachery, said accused, did then and there,
willfully, unlawfully and feloniously help each other attack, assault and hack, with a bolo,
RODRIGO, his wife FELICIDAD and their children, SHEILA and REBECCA, all surnamed
REJUSO, inflicting upon them several wounds in different parts of the body which caused
their instantaneous death; that before killing their victims, the said accused gained
entrance into the victims’ dwelling by pretending to ask for a glass of water but once inside,
they tied the hands of the victims and raped REBECCA REJUSO before killing her.
Committed with the aggravating circumstances of rape, dwelling, band, treachery and
craft.
CONTRARY TO LAW.”3
Salvador Albao and a certain John Doe remain at-large and cannot be located.
Upon arraignment, the remaining two (2) accused pleaded not guilty and were tried.
During the pendency of the case, accused Godelio Monsales escaped from the Masbate
Provincial Jail.4 He was later found dead at Sitio Bagalihog, Kinamaligan, Masbate on
June 12, 1992.5
The prosecution evidence came principally from the testimony of the lone survivor of the
carnage, OLIVER CERVANTES.6
_______________
3 Filed by Third Assistant Provincial Prosecutor Danilo V. Ontog; Original Records, pp. 1-2.
4 Letter dated January 28, 1992 addressed to the Clerk of Court of the Supreme Court,
Rollo, p. 45; Manifestation dated May 20, 1993, p. 59.
5 Letter dated March 16, 1993 to Julieta Y. Carreon, Clerk of Court (3rd Division) Supreme
Court; Necropsy Report on Godelio Monsales by Dra. Victoria P. Manalo, MD, Medicolegal
Officer, Masbate, Masbate, Rollo, p. 49.
6 Seventeen (17) years old, single, laborer, and resident of Tugo, Masbate, Masbate. He
finished only Grade Four. TSN, July 1, 1991, p. 2.
611
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People vs. Dalanon
Sometime in November 1990, spouses Rodrigo and Felicidad Rejuso hired him as
househelper and caretaker of their small pakwan plantation in Barangay Asid, Masbate,
Masbate.7
Cervantes testified that at around ten o’clock in the evening of February 17, 1991 while he
was about to sleep, Rodrigo called him to pacify the four (4) barking dogs. With the
illumination from the gas lamp placed on a bottle about five (5) inches tall,8 he saw
Rodrigo talking to accused-appellant Sgt. Hermes Dalanon in the balcony.9 Accused-
appellant Dalanon was in fatigue uniform and he had a pistol tucked on his waist.10
Cervantes went down to drive away the dogs. On the ground, he saw accused Salvador
“Badoy” Albao, Godelio Monsales, and another person whose identity was unknown to
him.11 They were all armed with long guns. Albao requested for a glass of water. As
Cervantes went up the house, Albao, Monsales, and the unidentified third person followed
him. He gave the glass of water to Albao who drank it. Immediately thereafter, Albao
ordered Cervantes at gun point to lie face down on the bamboo flooring. Rodrigo asked
accused-appellant Dalanon if they had committed any wrong but Albao replied with a
kick.12 Albao sought Felicidad and her two (2) daughters, Rebecca and Sheila, from their
rooms. They were also ordered to lie flat on the floor.
Albao then tied the hands of Rodrigo, Felicidad, and Sheila at their backs with straws.13
He also pigtied Rebecca’s hands with her own belt.14 They were ordered by accused-
appellant Dalanon to sit down.
At this juncture, Albao demanded money from Felicidad but in vain. She told him they had
none, as they even sold their “shellane.”15 Albao was infuriated. He struck Felicidad on
the head with a bolo.
_______________
7 Ibid., p. 40.
8 Ibid., p. 51.
9 Ibid.
10 Ibid., p. 28.
11 Ibid., p. 7.
12 Ibid., p. 14.
13 Ibid., p. 15.
14 Ibid., p. 16.
15 Ibid., p. 19.
612
612
People vs. Dalanon
In the meantime, accused-appellant Dalanon ordered Rebecca to sit in front of him. He
started to sexually molest her. He caressed her back and her breast. He told her, “Ayaw ka
hadlok, adi ako.”16
Disappointed that the Rejusos had no money, Albao brought Rodrigo downstairs. He had
his gun slung on his shoulder while he held the bolo in his hand. Cervantes then heard
Rodrigo’s painful moan of “Badoy.”17 Upon the instigation of accused-appellant Dalanon,
Felicidad was also taken downstairs by Monsales. Albao was waiting for them on the
ground. Cervantes then heard “chopping sounds.”18
It was the turn of Cervantes to be brought down. He was dragged down by the person he
did not know. He pleaded for his life.19 He was told to keep silent. On the ground, he was
dumbfounded when he saw Rodrigo and Felicidad Rejuso sprawled dead. Sensing that
Albao and Monsales were some two (2) meters away from him, he ran away.20 They
pursued him and fired at him.21 He stumbled on the ground and hid among the tall
grasses. His pursuers missed him in the darkness of the evening.
He waited until two o’clock in the morning to make his next move. Cervantes then rushed
to the house of Bonifacio Cañares, eldest brother of Felicidad Cañares Rejuso. Bonifacio
untied the nylon from his hands.22 He informed Bonifacio about the tragedy that befell
them.
Promptly, Bonifacio and Cervantes went to the house of the Barangay Captain of Malinta,
Cornelio Carles. Carles in turn accompanied them to the Masbate Police Station. Lt.
Perfecto Delima, C1C Jimmy Rabiliona, C1C Rene Ojeda, C1C Ygusquiza, SPO Elner
Antang, Pat. Alex Baldeo, Pat. Mario Danao III, Station Official Photographer, Barangay
Captain Carles, and Bonifacio Cañares went with Cervantes to the scene of the
_______________
16 Meaning “Do not be afraid for I am here.”

17 Ibid., p. 20.
18 Ibid., p. 21.
19 Ibid., p. 78.
20 Ibid.
21 Ibid., p. 79.
22 Affidavit of Bonifacio Cañares dated February 19, 1991; Original Records, p. 71.
613
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613
People vs. Dalanon
crime.23 They saw the lifeless bodies of Rodrigo, Felicidad, Rebecca, and Sheila bathed
in their own blood. They recovered a bolo stained with blood and hair fibers behind the
house of the victims.24
Still horrified, Cervantes narrated the gruesome incident to Col. Silas Laurio at the
Municipal Building of Masbate. He named accused-appellant Hermes Dalanon and
Salvador “Badoy” Albao as two (2) of the perpetrators of the crime. SPO Elner Antang
prepared the necessary Police Blotter Report.25
A day after, or on February 19, 1991, Cervantes identified accused-appellant Dalanon and
Monsales from a police line-up composed of about thirty (30) persons at the PNP
Headquarters, Camp Bonny Serrano, Masbate.26
The defense had a different story to tell.
Accused-appellant SGT. HERMES DALANON27 is a member of the PC-INP Masbate
Command and assigned as Deputy Commander at Barangay Malinta, Masbate. He
alleged that on February 17, 1991, he along with Godelio Monsales, and Nicolas
Cervantes escorted Engr. Jaime Bravo, Mrs. Bella Dalanon Panes Bravo, and their son
Benjie to Rancho Bravo in Asid.28 After Mrs. Bravo paid the wages of their workers, they
proceeded to Nabungsuran Ranch. They arrived there at 11:00 o’clock in the evening.29
The party then left at 2:00 o’clock in the morning for Bacolod, Milagros, Masbate.30 They
had breakfast at his residence in Bacolod. After which, they sent-off the Bravo family to the
Masbate Airport for their flight to Manila.
Exhausted by the trip, he returned to the bunkhouse of Rancho Bravo to rest. He was
surprised when he was implicated
_______________
23 Exhibit “E.”
24 Exhibit “I”; The biochemical examination conducted on the bolo gave POSITIVE result
to the test for the presence of human blood; Original Records, p. 81.
25 Exhibit “D.”
26 Exhibit “B.”
27 He was the patrol leader of the CAFGUS. Under him were two (2) CAFGUS and five (5)
CVO’s all armed with armalites, carbines, and a garrand. TSN, August 13, 1991, p. 32.
28 Ibid., p. 15.
29 Ibid., p. 16.
30 Ibid., p. 17.
614
614
People vs. Dalanon
in the killings of the Rejuso family. More so, when he was made to join the police line-up at
Camp Bonny Serrano on February 19, 1991. Lt. Delima then ordered him and his men,
Godelio Monsales, Igmedio Mangubat, Efren Candidato, and Esteban Mirrales to be
disarmed.31
Accused GODELIO MONSALES32 is a member of the Civilian Volunteer Organization
(CVO) under the supervision of accused-appellant Dalanon. He was hired as an inspector
of the barb wire fence of the ranches of Engr. Bravo.33 He claimed that on the night of
February 19, 1991, he was with the group of Engr. Bravo. They left Asid Ranch at eight
o’clock in the evening bound for Nabungsuran Ranch at Aroroy, Masbate.
On the other hand, accused SALVADOR “BADOY” ALBAO was once a member of the
CVO. He was also under the supervision of accused-appellant Dalanon. Late in December
1990, he ceased to report to the unit after he was disarmed.34
Defense witness BELLA DALANON PANES BRAVO35 corroborated the testimonies of the
accused. She alleged that Engr. Bravo had requested Col. Antero Javier, the Provincial
Commander of Masbate to provide them military escorts in their trips to Masbate. On
February 15, 1991, accused-appellant Dalanon, Monsales, and Nicolas escorted them in
paying the wages of their ranch workers in Asid and Nabungsuran.36
In due course, a Decision was rendered convicting the accused of the crime charged, viz:
“WHEREFORE, the Court finds the accused, Hermes Dalanon and Godillo (sic) Monsales
guilty beyond reasonable doubt of the crime of Attempted Robbery with Multiple Homicide
committed with the aggravating circumstances of treachery, dwelling and rape and hereby
_______________
31 Ibid., p. 18.
32 Thirty (30) years old, married, laborer, and resident of Del Carmen, Unson, Masbate.
TSN, October 9, 1991, p. 2.
33 Ibid., p. 8.
34 Brief for the Appellee, p. 14; Rollo, p. 116.
35 Forty-one (41) years old, married, businesswoman, and a resident of No. 319,
Katarungan Street, Mandaluyong, Metro Manila. TSN, October 11, 1991, p. 1.
36 Ibid., pp. 2-3.
615
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615
People vs. Dalanon
sentences each one of said accused, Hermes Dalanon and Godillo (sic) Monsales to
suffer the penalty of RECLUSION PERPETUA together with its accessory penalties and to
pay jointly and solidarily the heirs of the late Rodrigo Rejuso, Felicidad Rejuso, Rebecca
Rejuso and Sheila Rejuso the amount of Fifty Thousand (P50,000.00) Pesos each without
subsidiary imprisonment in case of insolvency and to pay the proportionate cost.
SO ORDERED.”37
Only accused-appellant Dalanon assailed his conviction. In this appeal, he contends that
the lower court erred:
I
[I]N NOT BELIEVING THE TESTIMONY OF APPELLANT, AS CORROBORATED BY

WITNESSES, THAT AT THE TIME THE CRIME WAS BEING COMMITTED HE WAS AT
NABUNGSURAN, FIFTY-TWO KILOMETERS AWAY FROM THE SCENE OF THE
CRIME.
II
[I]N CONCLUDING THAT ALLEGED LONE-EYEWITNESS HAD POSITIVELY

IDENTIFIED APPELLANT AS ONE OF THE PERPETRATORS OF THIS HEINOUS
CRIME.
III
[I]N BASING ITS DECISION ON THE TESTIMONY OF OLIVER CERVANTES, THE
ALLEGED LONE-EYEWITNESS TO THIS GORY CRIME.
We affirm the conviction of accused-appellant Dalanon.
Essentially, the case involves calibration of the credibility of witnesses. Prosecution
witness Oliver Cervantes has identified accused-appellant Dalanon as one of the
perpetrators of the crime. On the other hand, said accused-appellant has denied his
presence at the scene of the crime when it was committed.
We give credence to the testimony of witness Cervantes which is positive and clear. He
even passed in the crucible of a voir
_______________
37 Penned by Judge Ricardo B. Butalid.

616
616
People vs. Dalanon
dire.38 Thus, he testified:
xxx xxx xxx
(Branch Clerk of Court to Oliver Cervantes)
“Q
Do you swear to tell the truth regarding your knowledge in this case?
A
Yes, sir.
Q
And who was that somebody he (Rodrigo) was talking to?
A
Its Hermes Dalanon.39
Q
When you drove the dogs away, what happened?
A
That was the time I saw Salvador Albao outside with Monsales and the other person
whose name I do not know.40
Q
What happened after the five (5) of you were lying face down?
A
The five of us were tied up.41
Q
What happened after that?
A
Then Salvador Albao asked the money to Felicidad.42
Q
And what did Felicidad Rejuso answer?
A
Felicidad answered, that we are sorry because we have no money. We even sold our
shellane because we have nothing at all.
Q
And what happened after Felicidad made those pleas?
A
Salvador Albao immediately struck Felicidad on her head with the bolo.
Q
So Salvador Albao is now also armed with a bolo?
A
The bolo came from that same house, the house of Rejuso.
Q
What happened next after Rodrigo Rejuso was brought down by Salvador Albao and
Godelio Monsales?
A
After that I heard from Rodrigo Rejuso a painful moaning (adoy). I thought he was just
being struck.43
Q
And what happened after Felicidad Rejuso was brought down by Godelio Monsales?
A
Then after that I just heard sound of striking.
Q
And what was Sgt. Hermes Dalanon doing while you were brought down by that person
whose name you do not know?
A
He kept on caressing Rebecca Rejuso.”44
_______________
38 Words and Phrases, Vol. 44, pp. 598-599.

39 TSN, July 1, 1991, p. 5.
40 Ibid., p. 7.
41 Ibid., p. 15.
42 Ibid., p. 19.
43 Ibid., p. 20.
44 Ibid., p. 21.
617
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617
People vs. Dalanon
(On cross-examination)
“Q
But it took you sometime to point Sgt. Dalanon?
A
At first I passed him by because I was to scrutinize and closely identify his face and after
sometime I can identify him.
Q
[W]hen you were passing by the police line-up you cannot be sure whether or not it was
Sgt. Dalanon because you were not able to point him immediately because you point to
Monsales first?
A
I wanted to be sure so, it took me sometime because he might resemble somebody
else.”45
Cervantes’ knowledge of the crime at bench is based not only on his sense of sight but
also his sense of sound. He audibly heard Albao demanding money from Felicidad. He
heard Rodrigo’s excruciating moans, “adoy.” And, he heard the “chopping sounds” of
death. The physical evidence confirmed the killings of the Rejusos.
Cervantes’ initial reluctance to disclose the names of the criminals is understandable.
Firstly, the harrowing experience completely upset him. Secondly, he did not want to shock
Bonifacio Cañares, eldest brother of Felicidad Cañares Rejuso. Thirdly, without any
relative from Asid, he was fearful of reprisal from his assailants who were in the military.
Lastly, he did not trust Reynaldo Villamor because the latter belongs to the unit of
accused-appellant Dalanon. In fact, Provincial Commander Col. Monforte stopped them
from handling the case because of the involvement of their own men in the crime at bench.
The conduct of Cervantes subsequent to the crime bolsters his credibility. He immediately
accompanied the authorities to the scene of the crime. This prompt action led to the
immediate arrest of two (2) of the killers. This spontaneous reaction negates any
opportunity to concoct falsehoods. Indeed, it is far fetched for Cervantes, a fourth grade,
uncouth barrio boy to falsely impute a heinous crime against accused-appellant Dalanon, a
Deputy Detachment Commander of Asid, Masbate. He had no motive to falsify facts
against accused-appellant.
_______________
45 Ibid., p. 107.
618
618
People vs. Dalanon
Time and again, we have ruled that alibi cannot prevail over the positive identification of an
accused as the perpetrator of the crime. To sustain the defense of alibi, an accused must
not only prove satisfactorily that he was at another place at the time the crime happened.
But more important, that it was physically impossible for him to be at the scene of the
crime at the time of its commission.46
The alibi proffered by accused-appellant Dalanon does not meet the above test. He
himself admitted he was in Asid and Nabungsuran, Masbate when the slaughter
happened. The distance between Rancho Bravo and the locus criminis, the house of the
Rejusos, is only one (1) kilometer while Nabungsuran Ranch is fifty-two (52) kilometers
away. Since accused-appellant was in Asid and Nabungsuran from eight o’clock to eleven
o’clock in the evening of February 17, 1991, it was not physically impossible for him to be
at the time and place of the crime when it was committed. His alibi is not air tight.
The possibility that Cervantes erred in identifying accused-appellant Dalanon is nil.
Accused-appellant Dalanon is not a stranger to witness Cervantes. Cervantes knew
accused-appellant because the latter sometimes have his manicure done in the Rejusos’
house. Besides, his outpost is only five hundred (500) meters from the house of the
victims. On that fateful evening, Cervantes vividly saw accused-appellant because the
house was lighted by a gas lamp. Accused-appellant had no mask to hide his identity.
Loose alibi must yield to and cannot prevail over the positive identification made by
Cervantes.47
Not much credence should be given to the testimony of Bella Dalanon Panes Bravo. She
is the niece of accused-appellant Dalanon. Moreover, accused-appellant is her military
escort and the administrator of their ranches. Her testimony has to be taken with a grain of
salt. It is not invulnerable to bias. Indeed, it taxes credulity why she has to pay the wages
of their cowboys at night in the critical area of Masbate. Similarly, the testimony of
Reynaldo
_______________
46 People vs. Opiniado Dolar, G.R. No. 100805, March 24, 1994, citing People vs.
Villagracia, G.R. No. 94471, March 1, 1993, 219 SCRA 212.
47 People vs. Bugho, G.R. No. 91849, September 30, 1991, 202 SCRA 164.
619
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619
People vs. Dalanon
Villamor is suspect. Accused-appellant Dalanon is the superior of Villamor.
To cap it all, motive for the commission of the crime at bench was established by
prosecution witness OSCAR REJUSO,48 the oldest and only son of spouses Rejuso. He
averred that his sister Rebecca turned down accused-appellant’s proposition of love.
Accused-appellant is a married man.49
The trial court correctly convicted accused-appellant for attempted robbery with homicide.
It is clear that when Albao demanded money from Felicidad, accused-appellant and his
company had the intention of robbing the Rejuso family. The robbery would have been
complete were it not for the refusal of Felicidad to give money as they had none.
Neither did the trial court err in finding conspiracy among the accused. Conspiracy need
not be proved by direct evidence of prior agreement to the crime. It could be inferred from
the conduct of the accused before, during, and after the commission of the crime, showing
that they acted in unison with each other, evincing a common purpose or design.50 The
evidence proved that: Albao and Monsales brought spouses Rejuso to the ground; Albao
butchered them; and accused-appellant Dalanon did not do anything to stop the killings.
Their unity of design is self evident.
We now deal with the aggravating circumstances that attended the commission of the
crime. Dwelling or morada was present because the principal crime took place in the
house of the victims, although the killings were committed outside thereof. The accused
showed greater perversity in their deliberate invasion of the tranquility of the Rejuso’s
domicile.51
Treachery characterized the commission of the crime. The victims were first hog-tied to
render them incapable of defense.52 They were then mercilessly hacked to death.

People vs. Dalanon
Rape was likewise established. Prior to Cervantes’ escape, he saw accused-appellant
fondling the breast of Rebecca. The Physical and Medical Examination Report of Rebecca
showed that there was a fresh deep and incomplete laceration of the hymen
corresponding to a 6:00 o’clock position.53 It concluded that there was penetration of her
private organ.54 The Crime Scene Sketch also revealed that human blood stains were
found in the bedroom of Rebecca.55
WHEREFORE, premises considered, the judgment of the trial court, finding accused-
appellant HERMES DALANON guilty beyond reasonable doubt of Attempted Robbery with
Homicide, is AFFIRMED in toto. Accused-appellant is sentenced to suffer the penalty of
reclusion perpetua56 and to pay civil indemnity to the heirs of RODRIGO, FELICIDAD,
REBECCA, and SHEILA REJUSO, in the amount of FIFTY-THOUSAND PESOS
(P50,000.00). With costs against accused-appellant.
SO ORDERED.
Narvasa (C.J., Chairman), Regalado and Mendoza, JJ., concur.
Padilla, J., On leave.
Appealed decision affirmed in toto.
Notes.—Performance of duties does not include murder. (People vs. De la Cruz, 227
SCRA 278 [1993])
Participation in all details of execution of crime is not necessary for finding of conspiracy.
(People vs. Sarino, 221 SCRA 234 [1993])
——o0o——
_______________
VI. People vs. Paraiso
G.R. No. 127840. November 29, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLAND PARAISO, defendant-
appellant.
Evidence; Witnesses; Testimony; It is the peculiar province of the trial court to determine
the credibility of the witness because of its superior advantage in observing the conduct
and demeanor of the witness while testifying.—It bears emphasis that where the issue is
one of credibility of witnesses, the appellate court will generally not disturb the findings of
the trial court unless some facts and circumstances may have been overlooked that may
otherwise affect the result of the case. For, it is the peculiar province of the trial court to
determine the credibility of the witness because of its superior advantage in observing the
conduct and demeanor of the witness while testifying. As this Court has invariably held, the
opinion of the trial court as to who of the witnesses should be believed is entitled to great
respect. The oft-repeated rationale born of judicial experience is that the trial judge who
heard the witnesses testify and had the occasion to observe their demeanor on the stand
was in a vantage position to determine who of the witnesses deserve credence. Only the
trial judge can observe the “furtive glance, blush of conscious shame, hesitation, flippant or
sneering tone, calmness, sigh, or the scant or full realization of an oath—all of which are
useful aids for an accurate determination of a witness’ honesty and sincerity.” We have
thoroughly examined the records and found nothing that would justify our overturning the
findings of the trial court.
Same; Same; Same; Alibi; Alibi becomes unworthy of merit where it is established mainly
by the accused himself and his rela-tives.—Appellant interposed the defense of alibi which
is the weakest of all defenses. For alibi to prosper as a defense, one must not only prove
that he was somewhere else when the crime was committed but must also show that it
was physically impossible for him to have been at the scene of the crime. The second
element was not proved; appellant lived with his in-laws at Pakigne, Minglanilla, Cebu,
whose house is just 3 electric posts or 5 houses away from the victim’s house. His father-
in-law Eustacio Sayson testified that appellant was at home during the fatal incident.
However, alibi
_____________
* EN BANC.
423

423
People vs. Paraiso
becomes unworthy of merit where it is established mainly by the accused himself and his
relatives.
Same; Same; Same; Positive Identification; A positive identification of the accused made
by the prosecution eyewitness prevails over such a defense of alibi.—It is well-settled that
a positive identification of the accused made by the prosecution eyewitness prevails over
such a defense of alibi. In the present case, not one, but four (4) eyewitnesses identified
him as one of the robbers. Appellant was positively identified by four (4) eyewitnesses,
namely: Sheila Marie Alipio, Epifanio Tigley, Jr., Ferdinand Tigley and Kim Tigley who were
all present at the scene of the crime.
Same; Same; Same; Same; There is no standard behavior for a person confronted with a
shocking incident. One may immediately report the incident to the proper authorities while
another, in fear and/or avoiding involvement in a criminal investigation, may keep to
himself what he had witnessed.—The witnesses’ delayed reporting of what they know
about the crime does not render their testimonies false or incredible, for the delay may be
explained by the natural reticence of most people and their abhorrence to get involved in a
criminal case. Failure to immediately reveal the identities of the perpetrators of a crime
does not affect, much less impair, the credibility of witnesses, more so if such delay has
been adequately explained. Delay in reporting the crime is not sufficient to doubt the
truthfulness of the accusation. Moreover, there is no standard behavior for a person
confronted with a shocking incident. One may immediately report the incident to the proper
authorities while another, in fear and/or avoiding involvement in a criminal investigation,
may keep to himself what he had witnessed. Others may come forward to reveal the
identity of the perpetrators of the crime only after a lapse of considerable length of time.
Same; Same; Same; Same; Children of sound mind are likely to be more observant of
incidents which take place within their view than older persons; they make the best
witnesses because of their power of observation and recall as well as their innocence.—
The Court takes note of the fact that the perpetrators were in the house of the victim for
several minutes so that there was sufficient time for the children to develop some kind of
familiarity with the faces of the assailants. As we have ruled: “Even the stressful condition
of the witness when the crime was committed did not dilute the accuracy of her testimony.
In fact, a violent incident such as the one sued upon
424
424
People vs. Paraiso
may even serve as a catalyst to one’s memory. As was said in People v. Campa, their
faces would in the very nature of things, also have been forcefully impinged upon and
etched into the witnesses’ memories by the acts of ferocity perpetrated before their eyes.”
Most often, the face and body movements of the malefactors create a lasting impression
on the witness’ mind which cannot be easily erased from his memory. Besides, children of
sound mind are likely to be more observant of incidents which take place within their view
than older persons; they make the best witnesses because of their power of observation
and recall as well as their innocence.
Criminal Law; Robbery with Homicide; Elements.—The essential elements of the special
complex crime of Robbery with Homicide are: (1) the taking of personal property with the
use of violence or intimidation against a person; (2) the property thus taken belongs to
another; (3) the taking is characterized by intent to gain or animus lucrandi; and, (4) on the
occasion of the robbery or by reason thereof, the crime of homicide which is therein used
in a generic sense, was committed. The evidence for the prosecution showed that
appellant and his companion, with a gun and a knife, took possession of personal
properties belonging to the victim, with intent to gain, and on the occasion thereof, the
victim was killed. Accordingly, the trial court was correct in finding appellant Paraiso guilty
beyond reasonable doubt of the special complex crime of robbery with homicide. The trial
court, in sentencing appellant to suffer the penalty of death appreciated three (3)
aggravating circumstances namely: a) disregard of the respect due the offended party on
account of her sex; b) dwelling; and c) abuse of superior strength.
Same; Same; Aggravating Circumstances; Dwelling; Dwelling is considered aggravating
primarily because of the sanctity of privacy the law accords to human abode. He who goes
to another’s house to hurt him or do him wrong is more guilty than he who offends him
elsewhere.—Dwelling aggravates a felony where the crime was committed in the dwelling
of the offended party, if the latter has not given provocation or if the victim was killed inside
his house. Here, robbery was committed in the house of the victim without provocation on
her part. In robbery with violence and intimidation against persons, dwelling is aggravating
because in this class of robbery, the crime may be committed without the necessity of
trespassing the sanctity of the offended party’s house. Dwelling is considered aggravating
primarily because of the sanctity of privacy the law accords to
425

425
People vs. Paraiso
human abode. He who goes to another’s house to hurt him or do him wrong is more guilty
than he who offends him elsewhere.
Same; Same; Same; Abuse of Superior Strength; Abuse of strength is present not only
when the offenders enjoy numerical superiority, or there is a notorious inequality of forces
between the victim and the aggressor but also when the offender uses a powerful weapon
which is out of proportion to the defense available to the offended party.—While abuse of
superior strength may be considered when there is an inequality of comparative force
between the victim and the aggressor, there must, nonetheless, be a situation of strength
notoriously selected and made use of by the latter in the commission of the crime. What
should be considered is not that there were three, four or more assailants as against one
victim, but whether the aggressors took advantage of their combined strength in order to
consummate the offense. Abuse of strength is present not only when the offenders enjoy
numerical superiority, or there is a notorious inequality of forces between the victim and
the aggressor but also when the offender uses a powerful weapon which is out of
proportion to the defense available to the offended party. Here, the victim was totally
helpless in the face of two (2) perpetrators who were armed with a gun and a knife.
Same; Same; Same; Disregard of Respect Due to Sex; Aggravating circumstance of
disregard of the respect due to the victim by reason of her sex can be considered only in
crimes against persons and honor.—The aggravating circumstance of disregard of the
respect due to the victim by reason of her sex cannot be appreciated. This aggravating
circumstance can be considered only in crimes against persons and honor. The special
complex crime of Robbery with Homicide is a crime against property not against persons.
Nonetheless, even if such aggravating circumstance could be considered in this case, it
cannot be appreciated because nothing appears in the record from which it may be
presumed that in the commission of the crime, appellant deliberately intended to offend or
insult the age or sex of the offended party. Moreover, such an aggravating circumstance
would be absorbed by the aggravating circumstance of abuse of superior strength.
Same; Same; Same; Penalty; Applying Article 63 of the Revised Penal Code, the penalty
that should be imposed is death which is the maximum provided for by law in the absence
of any mitigating circumstance to offset the aggravating circumstances of dwelling and
426
426
People vs. Paraiso
abuse of superior strength.—The penalty of reclusion perpetua to death is composed of
two (2) indivisible penalties. Applying Article 63 of the Revised Penal Code, the penalty
that should be imposed is death which is the maximum provided for by law in the absence
of any mitigating circumstance to offset the aggravating circumstances of dwelling and
abuse of superior strength. These aggravating circumstances need not be alleged in the
information since they are mere generic aggravating circumstances which have the effect
of increasing the penalty to the maximum period which is death.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Cebu City, Br. 14.

Josefino B. Remotigue for accused-appellant.
PER CURIAM:
For automatic review is the Decision dated November 26, 1996 of the Regional Trial
Court1 of Cebu City, Branch 14 in Criminal Case No. CBU-41141 finding accused Roland
Paraiso guilty of the special complex crime of Robbery with Homicide and sentencing him
to suffer the penalty of death.
An Information2 was filed charging accused Roland Paraiso and John Doe of the crime of
Robbery with Homicide as follows:
“That on or about the 11th day of June, 1995, at 1:30 o’clock in the afternoon, more or
less, in Barangay Lipata, Municipality of Minglanilla, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, confederating
and mutually helping with one another, with intent to gain, and by means of violence and
intimidation, did then and there wilfully, unlawfully and feloniously enter the house of Lolita
Alipio Tigley, and once inside, take, steal and carry away one (1) Rolex watch,
_________________
1 Written by Judge Renato C. Dacudao, now Associate Justice of the Court of Appeals.
2 Page 1, Record of Criminal Case No. CBU-41141.
427

427
People vs. Paraiso
assorted jewelries, P200.00 cash and a telescope, all valued at P180,000.00 and on the
occasion thereof, with intent to kill, dragged said Lolita Alipio Tigley inside a room, and
thereafter assaulted, attacked and stabbed the latter on the different parts of the body
which caused her death shortly thereafter.”
No bail was recommended. Upon arraignment, accused Paraiso, assisted by counsel,
pleaded not guilty to the crime charged.3 Hence, trial ensued. The prosecution presented
the following witnesses: Sheila Marie Alipio, 18 years old; Ferdinand Tigley, 17 years old;
Epifanio Tigley, Jr., 15 years old; Kim Tigley, 13 years old; cartographer Ligaya Agbay; Dr.
Juan Zaldarriaga, Jr.; and Adelaida Alipio.
Prosecution eyewitness Sheila Marie Alipio, then 18 years old, is the niece of the victim.
Her father Medelino is the brother of the victim Lolita. Their house is located some 50
meters away from the house of the victim. Sheila testified that at around 1:30 in the
afternoon of June 11, 1995, she went to the house of the victim to deliver a one-gallon
water container. At the main door of her aunt’s house, she saw two (2) men, including
accused herein, standing about a meter away from her. She rang the doorbell and after a
while, her aunt opened the door. All of a sudden, one of the two men pushed her inside the
victim’s house. She stumbled and when she looked back, she saw one of them pointing a
gun, about 8 to 10 inches long, at her aunt’s right temple. He allegedly wore navy blue
maong pants, a round-neck t-shirt colored sky blue, red rubber shoes and a black cap over
his head; he was fair-complexioned with somewhat sunken cheeks. Sheila later identified
this man in court as the accused-appellant Paraiso.4
Sheila further testified that the other man was armed with a Batangas fan knife which he
poked at her right side. They were herded upstairs into one of the rooms, together with the
victim’s children, Epifanio, Jr., Ferdinand and Kim. Paraiso
________________
3 Order of June 28, 1996, p. 25, ibid.

4 pp. 3-7, TSN, September 4, 1996.
428
428
People vs. Paraiso
was allegedly holding the victim Lolita and asked for the key; he likewise ordered the
victim to open the cabinet and ransacked and searched the same. He asked where the
money was placed but Lolita took from her pocket the amount of P200.00 which she
handed to Paraiso saying that it was all that she had. Paraiso likewise took jewelries,
wristwatch and video camera. Paraiso and his male companion brought the victim to the
bathroom and ransacked the cabinet. Paraiso later ordered his companion to cover Sheila
and her cousins with pillows. Sheila peeped through the pillows and saw Ferdinand being
tied up. Her aunt pleaded with the perpetrators not to harm the children. Later, Sheila saw
her aunt being taken to the children’s room but her aunt came back bloodied and clutching
her breast. Lolita collapsed after looking at each one of them. The accused and his
companion were no longer there.5
Sheila described the man holding the Batangas knife as dark-skinned, with protruding
Adam’s apple and his face and forearms bore so many scars and sporting a flat top
haircut, somewhat regular nose.6
Another witness for the prosecution was Epifanio Tigle, Jr., then 15 years old, who is the
son of the victim. In the court-room, he pointed to accused-appellant Paraiso as one of the
two (2) men who robbed and killed his mother.7 He testified that on June 27, 1995, he,
together with his siblings, went to the office of the NBI wherein a cartographic sketch was
drawn of one of the suspects (since he was present when his mother was robbed and
killed); that he, together with his brothers, Ferdinand and Kim and his cousin Sheila went
to the Chief of Police at the Municipal Building of Minglanilla on April 19, 1996 to inform
him that the suspects in the robbery case in Argao were not the ones who robbed and
killed his mother.8 He further testified that he, his mother and brothers
_________________
5 pp. 8-15, ibid.

6 p. 3, TSN, September 12, 1996.
7 pp. 14-15, TSN, September 16, 1996.
8 pp. 15-18, ibid.
429

429
People vs. Paraiso
were inside their house at their mother’s room when Sheila, who was at the main door,
was ordered to enter their house; and that the robbers ordered them to stay inside their
mother’s room.9 Upon demand, his mother gave accused Paraiso only P200.00, which
was in her pocket, because she has not yet received her allotment from her husband.
Thereafter, accused Paraiso asked for the key to the box and took out some jewelries,
such as wristwatch and necklace.10
Ferdinand Tigley, 17 years old, testified to corroborate the testimonies of eyewitnesses
Sheila and Epifanio, Jr., as he was likewise at the house of the victim during the incident.
He was hogtied by the companion of appellant Paraiso with a t-shirt which was taken from
the victim’s cabinet.11 He was also presented to prove actual and moral damages. He
stated that the robbers took a wristwatch, necklace, telescope and video camera aside
from the P200.00 which the victim handed to Paraiso; that the total value of the items
taken was P179,800.00, as shown in the list marked as Exhibit “F”; this list was made by
his father who came home for the burial. The burial expenses likewise amounted to
P47,600.00 as evidenced by a list marked as Exhibit “G.” Ferdinand further testified that
when his mother was killed, he felt anguish and pain. When asked if his worries and
feelings could be translated into cash, he stated that “(G)rief and anguish is not a business
proposition to be given monetary value, not even a million will suffice.”12
Kim Tigley, then 13 years old, is the youngest son of the victim. Upon identifying in court
appellant Paraiso as one of the persons who entered their house, he exploded in anger
and banged his fist on the armchair of the witness box.13 He recalled that after appellant
took out the jewelries, wrist-watch, telescope and camera, and while his older brother
_______________
9 p. 24, ibid.
10 pp. 36-37, ibid.
11 p. 16, TSN, October 16, 1996.
12 pp. 8-10, 13-15, ibid.
13 pp. 35-36, TSN, October 16, 1996.
430
430
People vs. Paraiso
Ferdinand was hogtied by appellant’s companion, his mother pleaded with the robbers to
just take all the things they wanted but not to harm Ferdinand; and that with the gun
pointed at his mother’s head and the knife poked at her, the two robbers held his mother
and brought her into the other room where she was killed.14
Adelaida Alipio, the sister-in-law of the victim, testified that appellant came to the house of
the victim on June 6, 1995 to apply as a driver but the victim allegedly declined because
her jeepney had many defects.15
Dr. Juan Zaldarriaga was presented by the prosecution to identify the Necropsy Report of
the victim. He testified that the cause of death was “Hemorrhage, severe, secondary to
stab wounds of the chest” with the following post mortem findings:
“Cyanosis, lips and nailbeds.
Contusion, greenish-purple, 2.0 x 4.0 cms., lateral aspect, middle third, arm, right.
Contuse abrasion, 0.5 x 0.5 cm., sternal region, right side.
Wounds, incised: 2.0 cms., dorsal aspect, hand, left; 4.0 cms., dorso-palmar aspect,
between ring and middle fingers, hand, left.
Wounds, stabbed:
(1) Elliptical shaped, edges clean cut, running horizontally, 1.6 cms., with lateral extremity
sharp and medial extremity blunt; located at the anterior aspect, chest, right side, 4.0 cms.
from the anterior median line and level of the 3rd rib; directed backward, downward and
medially; involving the skin and soft tissues, non-perforating, with the depth of 3.0 cms.;
(2) Elliptical shaped, edges clean cut, running downward and medially, 1.8 cms., with the
upper extremity blunt and lower extremity sharp; located at the anterior aspect, chest, left
side, 2.5 cms. from the anterior median line and level of the 3rd intercostal space; directed
backward, downward and laterally; involving the skin and tissues, perforating the heart,
with the depth of 8.5 cms.;
_________________
14 pp. 37-40, ibid.

15 pp. 28-31, ibid.
431
431
People vs. Paraiso
(3) Elliptical shaped, edges clean cut, running horizontally, 1.8 cms., with the medial
extremity sharp and lateral extremity blunt; located at the anterior aspect, chest, left side,
9.0 cms. from the anterior median line and level of the 3rd intercostal space; directed
backward, downward and medially; involving the skin and soft tissues, perforating the lung,
left side, with the depth of 13.0 cms.;
(4) Elliptical shaped, edges clean cut, running almost vertically 2.0 cms., with the upper
extremity sharp and lower extremity blunt; located at the postero-lateral aspect, chest, left
side, 15.0 cms. from the posterior median line and level of the 8th intercostal space;
directed forward, downward and medially; involving the skin and soft tissues, perforating
the lung, diaphragm, left side and stomach, with the depth of 14.0 cms.
Hemopercardium, 300 cc.
Hemothorax: left side, 700 cc.; right side, 500 cc.
Lungs, congested and edematous; cut sections show reddish congested cut surfaces.
Brain and other visceral organs, moderately congested.
Stomach, full of clear fluid and partially digested rice and other food particles.
CAUSE OF DEATH: Hemorrhage, severe, secondary to stab wounds of the chest.”
For the defense, the following witnesses were presented: Estacio Sayson, Lilia Abellana,
Thelma Moneva, Rodliza Alforque, Raul Pable, Eric Pasilan, Rosita Paraiso and accused
himself. The theory of the defense is alibi and denial.
After trial, the court a quo rendered judgment on November 26, 1996, the dispositive
portion16 of which reads:
“WHEREFORE, premises considered, the Court hereby finds the accused Roland Paraiso
guilty beyond reasonable doubt as a co-principal by direct participation of that certain John
Doe of the special complex crime of robbery with homicide as now defined and penalized
by Section 9 of Republic Act No. 7659. The felony at bar was attended by three
aggravating circumstances, to wit: that the
_______________
16 p. 40, Rollo.
432
432
People vs. Paraiso
act was committed in disregard of the respect due the offended party on account of her
sex, that the act was committed in the dwelling of the offended party (morada) without the
offended party having given any provocation therefor, and that advantage was taken by
the accused and of his companion of their superior strength—without any mitigating or
extenuating circumstance to neutralize or offset any of these aggravating circumstance.
He is accordingly sentenced to the supreme penalty of death by lethal injection as
mandated by law.
The accused Roland Paraiso is also sentenced to restore unto the heirs or family of the
late Lolita Tigley the sum of P200.00 in cash and the assorted jewelries, wristwatch and
Video camera valued at P179,800.00, which he and his companion stole from Lolita Tigley
that afternoon of June 11, 1995 at her dwelling at Lipata, Minglanilla, Cebu. The accused
is also ordered to pay moral damages in the sum of P200,000.00 and exemplary damages
in the sum of P100,000.00 to the heirs of the late Lolita Tigley.
Costs shall also be taxed against the accused.
May God have mercy on your poor soul, Roland Paraiso.”
Hence, this automatic review.
Accused-appellant Paraiso raised the following assignment of errors in his brief:
“THE LOWER COURT ERRED IN OVERLOOKING AND FAILING TO CONSIDER
CERTAIN FACTS AND CIRCUMSTANCES OF WEIGHT AND VALUE, WHICH IF
CONSIDERED WOULD HAVE MATERIALLY ALTERED THE RESULT OF THE CASE.
“THE LOWER COURT ERRED IN MAKING CONCLUSIONS OF FACT WHICH ARE NOT
SUPPORTED BY THE EVIDENCE ON RECORD.
“THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE
THE FLIMSY AND UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION.
“THE LOWER (COURT) ERRED IN FINDING THE GUILT OF THE ACCUSED-
APPELLANT OF THE CRIME OF ROBBERY WITH HOMICIDE BEYOND REASONABLE
DOUBT.”
433

433
People vs. Paraiso
The assigned errors are interrelated and the present case hinges on the credibility of
witnesses.
Appellant contends that his guilt was not proven beyond reasonable doubt because there
were facts and circumstances that the court a quo did not consider in his favor and that the
evidence presented by the prosecution is flimsy and unreliable.
In this connection, it bears emphasis that where the issue is one of credibility of witnesses,
the appellate court will generally not disturb the findings of the trial court unless some facts
and circumstances may have been overlooked that may otherwise affect the result of the
case. For, it is the peculiar province of the trial court to determine the credibility of the
witness because of its superior advantage in observing the conduct and demeanor of the
witness while testifying.17 As this Court has invariably held, the opinion of the trial court as
to who of the witnesses should be believed is entitled to great respect. The oft-repeated
rationale born of judicial experience is that the trial judge who heard the witnesses testify
and had the occasion to observe their demeanor on the stand was in a vantage position to
determine who of the witnesses deserve credence.18 Only the trial judge can observe the
“furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness,
sigh, or the scant or full realization of an oath—all of which are useful aids for an accurate
determination of a witness’ honesty and sincerity.”19 We have thoroughly examined the
records and found nothing that would justify our overturning the findings of the trial court.
Appellant interposed the defense of alibi which is the weakest of all defenses. For alibi to
prosper as a defense, one must not only prove that he was somewhere else when the
crime was committed but must also show that it was physically impossible for him to have
been at the scene of the
______________
17 People vs. Ligan, 152 SCRA 419.

18 People vs. Paredes, 264 SCRA 578.
19 People vs. Dominador Mangat y Palomata, G.R. No. 131618, 310 SCRA 101, July 6,
1999 [En Banc].
434
434
People vs. Paraiso
crime.20 The second element was not proved; appellant lived with his in-laws at Pakigne,
Minglanilla, Cebu, whose house is just 3 electric posts or 5 houses away from the victim’s
house. His father-in-law Eustacio Sayson testified that appellant was at home during the
fatal incident.21 However, alibi becomes unworthy of merit where it is established mainly
by the accused himself and his relatives.22
Furthermore, it is well-settled that a positive identification of the accused made by the
prosecution eyewitness prevails over such a defense of alibi.23 In the present case, not
one, but four (4) eyewitnesses identified him as one of the robbers. Appellant was
positively identified by four (4) eyewitnesses, namely: Sheila Marie Alipio, Epifanio Tigley,
Jr., Ferdinand Tigley and Kim Tigley who were all present at the scene of the crime.
Appellant contends that in the natural course of human conduct and events, when a
person has been a victim of a crime, it is to be expected that he would immediately inform
the police of the name or identity of the perpetrator. It is appellant’s contention that if the
prosecution eyewitnesses had actually seen and recognized the malefactors, they would
have reported the appellant, who is one of their neighbors, to the police immediately or
within a reasonable time after the incident took place. However, it took the eyewitnesses
ten (10) months to identify the appellant as one of the malefactors and the prosecution
never gave any plausible reason for such delay. Appellant avers that he has been a
neighbor of the victim and her family for about seven (7) years and has been buying items
from the store of the victim, and even attended the wake of the late Lolita Tigley for two or
three times.
________________
20 People vs. Villanueva, G.R. No. 122746, 302 SCRA 380, January 29, 1999.
21 p. 4, TSN, October 17, 1996.
22 People vs. Ledesma, 250 SCRA 166; People vs. Panganiban, 241 SCRA 91; People
vs. Corpuz, 240 SCRA 203.
23 People vs. Midtomod, 283 SCRA 395; People vs. Cabel, 282 SCRA 410; People vs.
Mamalayan, 280 SCRA 748.
435

435
People vs. Paraiso
The contention is untenable.
The witnesses’ delayed reporting of what they know about the crime does not render their
testimonies false or incredible, for the delay may be explained by the natural reticence of
most people and their abhorrence to get involved in a criminal case.24 Failure to
immediately reveal the identities of the perpetrators of a crime does not affect, much less
impair, the credibility of witnesses, more so if such delay has been adequately
explained.25 Delay in reporting the crime is not sufficient to doubt the truthfulness of the
accusation.26 Moreover, there is no standard behavior for a person confronted with a
shocking incident. One may immediately report the incident to the proper authorities while
another, in fear and/or avoiding involvement in a criminal investigation, may keep to
himself what he had witnessed.27 Others may come forward to reveal the identity of the
perpetrators of the crime only after a lapse of considerable length of time.28
In this case, it should be noted that immediately after the incident, or on June 13, 1995, the
victim’s minor children, Epifanio, Jr., Ferdinand and Kim, and niece, Sheila, were invited to
the NBI office in Cebu City where they gave the description of the man with the knife since
the victim died of stab wounds. On June 27, 1995, they returned to the NBI and another
cartographic sketch was made describing the man with the gun.29 The cartographer made
a sketch closely resembling appellant’s features.
Moreover, on April 19, 1996, the children went to the Chief of Police at the Minglanilla
Municipal Hall to inform him that the persons arrested in Argao were not the ones who
robbed
_________________
24 People vs. Navarro, 297 SCRA 331.

25 People vs. Ronnie Reyes and Nestor Pagal, G.R. No. 120642, July 2, 1999, 309 SCRA
622.
26 People vs. Jimenez, 250 SCRA 349.
27 People vs. Navales, 266 SCRA 569.
28 People vs. Dadles, 278 SCRA 393.
29 pp. 18-20, TSN, September 4, 1996.
436
436
People vs. Paraiso
the victim.30 When they saw accused-appellant Paraiso at the police station, the children
were frightened; Kim clasped his fists and trembled as he was so angry with the person
who killed his mother.31
Appellant likewise argues that the eyewitnesses may have been mistaken in identifying
him as one of the perpetrators. The defense insisted that appellant has a look-alike in the
person of Roger Camus, now deceased, who was a suspect in another criminal case for
robbery. However, during the hearing, Sheila gave a vivid description of the perpetrators.
The man holding the Batangas knife was dark-skinned, with protruding Adam’s apple and
his face and forearms bore so many scars and sporting a flat top haircut, somewhat
regular nose. The defense showed a picture of one Jeffrey Ramil who had a standing
warrant of arrest for robbery in another criminal case but Sheila vehemently insisted that
this was not the person holding the Batangas knife. Likewise, the defense showed the
picture of Roger Camus (Exhibit “3”) who was confined at the Cebu Provincial Jail but
escaped on May 28, 1995. Sheila insisted that he was not the man who was holding the
gun.32 Sheila’s declaration was further bolstered by the testimony of Epifanio, Jr., who,
after being informed of the importance of his declaration on the life of appellant Paraiso,
stated that while the cartographic sketch which resembles Paraiso (Exhibit “B”) and the
picture of Camus (Exhibit “3”) both have the character of a sunken face, it is the man in the
cartographic sketch marked as Exhibit “B,” whom he later identified as appellant Paraiso,
to be one of the robbers.33
The Court takes note of the fact that the perpetrators were in the house of the victim for
several minutes so that there was sufficient time for the children to develop some kind of
familiarity with the faces of the assailants. As we have ruled:
_______________
30 p. 23, TSN, ibid.

31 p. 24, TSN, ibid.
32 pp. 3-4, TSN, September 12, 1996.
33 pp. 28-30, TSN, September 16, 1996.
437

437
People vs. Paraiso
“Even the stressful condition of the witness when the crime was committed did not dilute
the accuracy of her testimony. In fact, a violent incident such as the one sued upon may
even serve as a catalyst to one’s memory. As was said in People v. Campa, their faces
would in the very nature of things, also have been forcefully impinged upon and etched
into the witnesses’ memories by the acts of ferocity perpetrated before their eyes.”34
Most often, the face and body movements of the malefactors create a lasting impression
on the witness’ mind which cannot be easily erased from his memory.35 Besides, children
of sound mind are likely to be more observant of incidents which take place within their
view than older persons;36 they make the best witnesses because of their power of
observation and recall as well as their innocence.37
Appellant argues that as an indication of his innocence, he was never in hiding nor did he
leave the residence of his father-in-law which is only five (5) houses away from the victim’s
house. However, there is no law or principle which guarantees that non-flight per se is
proof, let alone conclusive proof, of one’s innocence.38
Article 294 of the Revised Penal Code, as amended by R.A. 7659, provides that:
“ART. 294. Robbery with violence against or intimidation of persons.—Penalties.—Any
person guilty of robbery with the use of violence against or intimidation of any person shall
suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the
robbery, the crime of homicide shall have been
_______________
34 People vs. George De la Cruz y Cercada, G.R. No. 111704, 304 SCRA 702, March 17,
1999.
35 People vs. Martinez, 274 SCRA 259; People vs. Taclan, et al., G.R. No. 123109, 308
SCRA 368, June 17, 1999.
36 People vs. Tanduyan, 236 SCRA 433.
37 People vs. Abitona, 240 SCRA 335.
38 People vs. Andres, 296 SCRA 318; Argoncillo vs. CA, 292 SCRA 313; People vs.
Amania, 248 SCRA 486; People vs. Parica, 243 SCRA 557.
438
438
People vs. Paraiso
committed, or when the robbery shall have been accompanied by rape or intentional
mutilation or arson. x x x.”
The essential elements of the special complex crime of Robbery with Homicide are: (1) the
taking of personal property with the use of violence or intimidation against a person; (2) the
property thus taken belongs to another; (3) the taking is characterized by intent to gain or
animus lucrandi; and, (4) on the occasion of the robbery or by reason thereof, the crime of
homicide which is therein used in a generic sense, was committed.39 The evidence for the
prosecution showed that appellant and his companion, with a gun and a knife, took
possession of personal properties belonging to the victim, with intent to gain, and on the
occasion thereof, the victim was killed. Accordingly, the trial court was correct in finding
appellant Paraiso guilty beyond reasonable doubt of the special complex crime of robbery
with homicide.
The trial court, in sentencing appellant to suffer the penalty of death appreciated three (3)
aggravating circumstances namely: a) disregard of the respect due the offended party on
account of her sex; b) dwelling; and c) abuse of superior strength.
Dwelling aggravates a felony where the crime was committed in the dwelling of the
offended party,40 if the latter has not given provocation41 or if the victim was killed inside
his house.42 Here, robbery was committed in the house of the victim without provocation
on her part. In robbery with violence and intimidation against persons, dwelling is
aggravating because in this class of robbery, the crime may be committed without the
necessity of trespassing the sanctity of the
_________________
39 People vs. Rafael Olivarez, Jr., and Danilo Arellano, G.R. No. 77865, 299 SCRA 635,
December 4, 1998; People vs. Ruben Tidula, et al., G.R. No. 123273, 292 SCRA 596, July
16, 1998.
40 People vs. Dalanon, 237 SCRA 607.
41 People vs. Prades, 293 SCRA 411.
42 People vs. Abitona, 240 SCRA 335.
439

439
People vs. Paraiso
offended party’s house.43 Dwelling is considered aggravating primarily because of the
sanctity of privacy the law accords to human abode. He who goes to another’s house to
hurt him or do him wrong is more guilty than he who offends him elsewhere.44
While abuse of superior strength may be considered when there is an inequality of
comparative force between the victim and the aggressor, there must, nonetheless, be a
situation of strength notoriously selected and made use of by the latter in the commission
of the crime.45 What should be considered is not that there were three, four or more
assailants as against one victim, but whether the aggressors took advantage of their
combined strength in order to consummate the offense.46 Abuse of strength is present not
only when the offenders enjoy numerical superiority, or there is a notorious inequality of
forces between the victim and the aggressor but also when the offender uses a powerful
weapon which is out of proportion to the defense available to the offended party.47 Here,
the victim was totally helpless in the face of two (2) perpetrators who were armed with a
gun and a knife.
However, the aggravating circumstance of disregard of the respect due to the victim by
reason of her sex cannot be appreciated. This aggravating circumstance can be
considered only in crimes against persons and honor.48 The special complex crime of
Robbery with Homicide is a crime against property not against persons.49 Nonetheless,
even if such aggravating circumstance could be considered in this case, it cannot
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43 People vs. Antonio Marcos y Obo, G.R. No. 128892, 308 SCRA 660, June 21, 1999 [En
Banc]; People vs. Cabato, 160 SCRA 98.
44 People vs. Ernesto Belo, G.R. No. 109148, 299 SCRA 654, December 4, 1998.
45 People vs. Solis, 291 SCRA 529.
46 People vs. Renato Platilla, G.R. No. 126123, 304 SCRA 339, March 9, 1999.
47 People vs. Padilla, 233 SCRA 46.
48 People vs. Cabiles, 248 SCRA 207; People vs. Padilla, G.R. No. 126124, 301 SCRA
265, January 20, 1999.
49 People vs. Cabiles, supra.
440
440
People vs. Paraiso
be appreciated because nothing appears in the record from which it may be presumed that
in the commission of the crime, appellant deliberately intended to offend or insult the age
or sex of the offended party. Moreover, such an aggravating circumstance would be
absorbed by the aggravating circumstance of abuse of superior strength.50
The penalty of reclusion perpetua to death is composed of two (2) indivisible penalties.
Applying Article 63 of the Revised Penal Code, the penalty that should be imposed is
death which is the maximum provided for by law in the absence of any mitigating
circumstance to offset the aggravating circumstances of dwelling and abuse of superior
strength. These aggravating circumstances need not be alleged in the information since
they are mere generic aggravating circumstances which have the effect of increasing the
penalty to the maximum period which is death.51
As regards the civil liability of appellant, following current jurisprudence,52 the amount of
P50,000.00 should be awarded as civil indemnity for the death of the victim Lolita Tigley.
No other proof is necessary other than the fact of the death of the victim and the accused’s
responsibility therefor.53
The award of moral damages is likewise in order. The children of the victim witnessed the
crime that transpired before their very eyes, which resulted to the death of their mother. As
candidly stated by her eldest son Ferdinand, when his mother was killed, he felt anguish
and pain. When asked if his worries and feelings could be translated into cash, he stated
that “(G)rief and anguish is not a business proposition to be given monetary value, not
even a million will suffice.”54
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50 People vs. De Roxas, 241 SCRA 369.

51 People vs. Mahinay, G.R. No. 122485, 302 SCRA 455, February 1, 1999.
52 People vs. Espanola, 271 SCRA 689; People vs. Piamonte, G.R. No. 91999, 303 SCRA
577, February 25, 1999; People vs. Cayago, G.R. No. 128827, 312 SCRA 623, August 18,
1999.
53 People vs. Ortega, Jr., 276 SCRA 166.
54 pp. 8-10, 13-15, October 16, 1996.
441

441
People vs. Paraiso
However, we reduce the amount of moral damages from P200,000.00 to P100,000.00 as
the purpose of this award is not to enrich the heirs of the victim but to compensate them
for the injuries to their feelings.55
In addition, the presence of one or more aggravating circumstances justifies the award of
exemplary damages pursuant to Article 2230 of the Civil Code56 after proof that the
offended party is entitled to moral, temperate or compensatory damages.57 The amount of
P50,000.00 as exemplary damages is reasonable in view of the presence of 2 aggravating
circumstances of dwelling and abuse of superior strength,58 and hence, the award by the
trial court is reduced from P100,000.00 to P50,000.00.
Finally, we likewise modify the award of actual damages. The prosecution eyewitnesses
testified that the victim took out from her pocket the amount of P200.00 which she gave to
appellant Paraiso; this is the only amount she had since she had not yet received the
allotment from her husband who was working as refrigeration mechanic in Cyprus.59
Jewelries, Rolex, and Rado watches, camera and telescope in the total amount of
P179,800.00 were likewise taken by the robbers60 and that expenses for the burial
amounted to P47,600.00.61 However, the list of properties taken by the robbers was
prepared by Epifanio Tigley, Sr., husband of the victim, who was not presented as a
prosecution witness. It was the victim’s son Ferdinand who testified thereon. And as we
have ruled in the case of People vs. Antonio Marcos,62 an ordinary witness cannot
establish the value of jewelry and the trial court can only take judicial notice of the value of
goods which are matters of public knowledge or are capable of unquestionable
demonstration. The value of jewelry is not a matter of public knowledge nor is it capable of
unquestionable demonstration and in the absence of receipts or any other competent
evidence besides the self-serving valuation made by the prosecution, we cannot award the
reparation for the stolen jewelry. There is likewise no evidence to establish the value of the
telescope and the video camera since no description as to its kind or model was given by
the prosecution witness. Likewise, the list of burial expenses was prepared by Linda Alipio
(wife of Medelino Alipio who is the brother of the victim)63 but she was not also presented
as a prosecution witness. In both these lists, it was Ferdinand, the victim’s eldest son, who
testified thereon, hence, the evidence cannot be considered for being hearsay.64 Since
actual damages is premised upon competent proof and on the best evidence
obtainable,65 the award of actual damages should be reduced to P200.00, as this is only
the amount which was sufficiently proved by the prosecution witnesses.
Four (4) justices of the Court have continued to maintain their adherence to the separate
opinions expressed in People vs. Echegaray66 that Republic Act No. 7659, insofar as it
prescribes the death penalty, is unconstitutional; nevertheless, they submit to the ruling of
the majority to the effect that the law is constitutional and that the death penalty can be
lawfully imposed in the case at bar.
64 Section 36 of Rule 130 provides that: “(A) witness can testify only to those facts which
he knows of his personal knowledge; that is, which are derived from his own perception, x
x x.”
WHEREFORE, the Decision dated November 26, 1996 of the Regional Trial Court of Cebu
City, Branch 14 in Criminal Case No. CBU-41141 finding accused-appellant Roland
Paraiso guilty beyond reasonable doubt of the special complex crime of Robbery with
Homicide and sentencing him to suffer the penalty of death is hereby AFFIRMED with the
MODIFICATION that he is ordered to indemnify the heirs of the victim the amount of
P50,000.00 as indemnity for death; P200.00 as actual damages; P100,000.00 as moral
damages; and P50,000.00 as exemplary damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the
Revised Penal Code, upon finality of this decision, let certified true copies thereof, as well
as the records of this case, be forthwith forwarded to the Office of the President for
possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr.,
JJ., concur.
Reviewed decision affirmed with modification.
Notes.—The term “homicide” is understood in its generic sense, hence, it includes the
commission of murder or slight physical injuries during the robbery. (People vs. Sequiño,
264 SCRA 79 [1996])
In the crime of robbery with homicide, the homicide may precede the robbery or may occur
after robbery. (People vs. Nang, 289 SCRA 16 [1998])
VII. People vs. Mandolado
No. L-51304-05. June 28, 1983.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN MANDOLADO and
JULIAN ORTILLANO, defendants-appellants.
Criminal Procedure; Evidence; Accused’s failure to identify who tortured them in making
their confessions and the fact that their confessions are full of details only they could have
known demonstrate that their confessions were not extracted by force.—The contention of
both appellants that they signed their sworn statements (Exhibits Q and R) because they
were maltreated and forced, cannot be believed, not only for failure on their part to present
any evidence of compulsion, duress or violence but also because they even failed to
identify their investigators who allegedly inflicted maltreatment to them, much less
complained to the officials who administered the oaths to their sworn statements, of such
maltreatment, if any. Moreover, the sworn statements themselves contain significant and
important details which the affiants alone could have furnished, thereby clearly revealing
the voluntariness of said statements and rendering the same admissible as evidence.
Same; Same; Conviction of appellants for murder based also on other evidences.—The
conviction of appellant Mandolado for double murder appears to be based not only on his
extra-judicial confession (Exhibit Q) but also upon the following circumstances which
proved that he did shot and kill the victims, Tenorio and Mendoza, beyond peradventure of
doubt. And these are listed in the People’s Brief, to wit: “(1) he repeatedly fired his .30
caliber machine gun while intoxicated at the bus terminal in Midsayap (pp. 11-12, t.s.n.,
February 21, 1979); (2) that he fired at the Ford Fierra which took them in the Midsayap
junction (p. 51, Supra) hitting one of its passengers (p. 64, t.s.n., July 24, 1978); (3) that
Anacleto Simon while running away from the jeep driven by the deceased, heard a burst of
machine gun fire coming from the direction of the jeep (p. 42, t.s.n., February 21, 1979);
(4) the result of the Ballistic examination showing that the shells recovered from the scene
of the crime were fired from the gun issued to appellant Mandolado (pp. 60-62, t.s.n.,
October 16, 1978); (5) the attempted flight of both appellants from justice (pp. 120-123,
t.s.n., April 16, 1979) and which act clearly
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* EN BANC.
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People vs. Mandolado
indicates guilt for the ‘wicked fleeth where no man pur sueth but the righteous are as bold
as the lion’, and lastly (6) appellant’s own admission before the lower court that he killed
Tenorio and Mendoza although he claims the same to be accidental (pp. 7-8, t.s.n.,
October 6, 1978).”
Criminal Law; There is treachery where an army draftee fired his gun on the passengers of
a jeep as they were stepping down.—The prosecution evidence is quite clear and explicit
that when appellants alighted from the jeep, the accused Mandolado immediately fired
his .30 caliber machine gun at the occupants of the jeep, the victims Nolasco Mendoza
and Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this
sudden means or manner of attack, it can reasonably be concluded that it tended directly
to insure its execution without risk to the appellant-assailant and also deprive the victims of
any chance or opportunity to defend themselves. We also rule that the particular means or
manner employed by the appellant-assailant was consciously or deliberately sought and
not a mere accidental circumstance resorted to on the spur of the moment on the basis of
the evidence that the appellant had previously and repeatedly fired his .30 caliber machine
gun at the bus terminal in Midsayap and had also fired the machine gun at the Ford Fiera
which took them to Midsayap junction and that appellants waited for sometime riding on
board the jeep driven by Tenorio before they ordered the jeep to stop, alight therefrom and
then shoot the occupants therein.
Same; The aggravating circumstance of having taken advantage of one’s official position
cannot be inferred from the mere fact that an army draftee who hitchiked in a jeep fired
upon its occupants.—While it may be true that a soldier in the Armed Forces of the
Philippines is deemed as one who holds public position (U.S. vs. Gimenea, 24 Phil. 464,
where a constabulary soldier was held to be a public officer), there is no persuasive
showing that herein appellants being draftees of the Army, in full military uniform and
carrying their high-powered firearms, facilitated the commission of the crimes they were
charged. It may be conceded that as draftees, the accused could easily hitchhike with
private vehicles, as in the case of the deceased Tenorio’s owner-type jeep, but there is no
evidence that when they stopped the jeep the accused already intended to shoot the
occupants of the vehicle. As it was held in People vs. Pantoja, 25 SCRA 468, 471 which
We reiterate that “There is nothing to show that the appellant took advantage of his being
a sergeant in the
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Philippine Army in order to commit the crimes. The mere fact that he was in fatigue uniform
and had an army rifle at the time is not sufficient to establish that he misused his public
position in the commission of the crimes x x x.”
Same: Abuse of confidence cannot be inferred from the mere fact that an army draftee
who was allowed on board a vehicle later on fired his gun at its occupants.—In order that
abuse of confidence be deemed as aggravating, it is necessary that “there exists a relation
of trust and confidence between the accused and one against whom the crime was
committed and the accused made use of such a relationship to commit the crime.” (People
vs. Comendador, 100 SCRA 155, 172). It is also essential that the confidence between the
parties must be immediate and personal such as would give that accused some advantage
or make it easier for him to commit the crime; that such confidence was a means of
facilitating the commission of the crime, the culprit taking advantage of the offended party’s
belief that the former would not abuse said confidence (People vs. Hanasan, 29 SCRA
534). In the instant case, there is absolutely no showing of any personal or immediate
relationship upon which confidence might rest between the victims and the assailants who
had just met each other then. Consequently, no confidence and abuse thereof could have
facilitated the crimes.
Same; There is no obvious ungratefulness from the mere fact that an army draftee who
was allowed to hitch a ride in a jeep shot its occupants.—Similarly, there could have been
no obvious ungratefulness in the commission of the crime for the simple reason that the
requisite trust of the victims upon the accused prior to the criminal act and the breach
thereof as contemplated under Article 14, par, 4 of the Revised Penal Code are manifestly
lacking or non-existent. In all likelihood, the accused Army men in their uniforms and
holding their high-powered firearms cowed the victims into boarding their jeep for a ride at
machine gun point which certainly is no source of gratefulness or appreciation.
Same; Drunkenness is mitigating when not habitual.—The finding of the trial court that:
“There is no doubt about Martin Mandolado’s state of intoxication. He was so drunk that
even his three (3) companions armed with M-16 armalite feared him. The same thing was
true with the MPs,” should credit said accused with the mitigating circumstance of
drunkenness but which the trial court decision failed to appreciate in his favor. Accordingly,
the penalty to
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136
be imposed upon the accused-appellant Mandolado shall be reduced in the computation
thereof.
Same; “Accomplice” defined.—An accomplice cooperates in the execution of the offense
by previous or simultaneous acts, provided he has no direct participation in its execution or
does not force or induce others to commit it, or his cooperation is not indispensable to its
accomplishment (Art. 18, Revised Penal Code).
Same; Same.—“To hold him liable, upon the other hand, as an accomplice, it must be
shown that he had knowledge of the criminal intention of the principal, which may be
demonstrated by previous or simultaneous acts which contributes to the commission of the
offense as aid thereto whether physical or moral (People vs. Silvestre, et al., 56 Phil. 353,
356). As aptly stated in People vs. Tamayo (44 Phil. 38, 49): ‘It is an essential condition to
the existence of complicity, not only that there should be a relation between the acts done
by the principal and those attributed to the person charged as accomplice, but it is further
necessary that the latter, with knowledge of the criminal intent, should cooperate with the
intention of supplying material or moral aid in the execution of the crime in an efficacious
way.” (People vs. Custodio, 47 SCRA 289, 303 [1972]).
Same; Case at Bar.—In the case at bar, Ortillano, by his acts, showed knowledge of the
criminal design of Mandolado. He was present when Mandolado tried to attack the driver
of the Ford Fiera with a knife and fired at the vehicle hitting a female passenger (p. 4,
Decision). When Mandolado got angry and “cocked” his gun and ordered Tenorio to stop
the jeep, their two other companions, Simon and Erinada, immediately jumped off the jeep
and ran away but Ortillano stayed. In a display of unity with Mandolado, Ortillano fired his
armalite while they were riding in the jeep of the victim (p. 5, Decision). And Ortillano’s act
of firing his gun towards the ground manifested his concurrence with the criminal intent. In
other words, Ortillano’s simultaneous acts supplied, if not material, moral aid in the
execution of the crime in an efficacious way. Ortillano’s presence served to encourage
Mandolado, the principal, or to increase the odds against the victims (U.S. vs. Guevara, 2
Phil. 528 [1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).
Same; Damages; Liability of principal and accomplice for damages is in solidum.—The
liability of the appellants for the above damages which shall be paid to the heirs of the
victims shall be in solidum (Article 110, par. 1, Revised Penal Code).
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APPEAL from the judgment of the Court of First Instance of Cotabato, Br. II.

Basilio V. Lanoria for defendants-appellants.
GUERRERO, J.:
The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch II,
Cotabato City dated June 28, 1979 sentencing the accused Martin Mandolado to the
supreme penalty of death in each case and the accused Julian Ortillano to imprisonment
of six (6) years of prision correccional as minimum to seventeen (17) years of prision
mayor as maximum, being merely an accessory, is before Us for mandatory review.
Under two (2) separate criminal informations dated January 5, 1978 filed by First Assistant
Provincial Fiscal Ismael G. Bagundang, the two accused-appellants, Martin Mandolado
and Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry Battalion,
Second Infantry Division, Philippine Army with station at Pikit, North Cotabato, together
with Anacleto Simon and Conrado Erinada, trainees attached to the Headquarters &
Headquarters Company, 3rd Infantry Battalion, 2nd Infantry Division, Philippine Army,
stationed at the Army Detachment along Simuay Junction, Simuay, Sultan Kudarat,
Maguindanao, were accused of murder for the death of the victims Herminigildo Tenorio
and his driver Nolasco Mendoza with the use of their firearms in the afternoon of October
3, 1977 at Sultan Kudarat, Maguindanao, qualified with the aggravating circumstances of
treachery, evident premeditation and abuse of superior strength.
Specifically, in Criminal Case No. 561, the information charged the accused as follows:
“That on or about October 3, 1977 in the afternoon, in the Municipality of Sultan Kudarat,
Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court,
the
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above-named accused with intent to kill, conspiring, confederating and helping one
another with treachery, evident premeditation and the use of superior strength all armed
with high powered weapons did then and there willfully, unlawfully, and feloniously, and
with the use of their guns shoot Mr. Nolasco Mendoza hitting the latter on the different
parts of his body causing his instantaneous death.
“Contrary to law with the aggravating circumstances of treachery, evident premeditation,
and the use of superior strength.”
Similarly, in Criminal Case No. 562, the information reads:
“That on or about October 3, 1977, in the afternoon, in the Municipality of Sultan Kudarat,
Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, with intent to kill, conspiring, confederating and helping one
another with treachery, evident premeditation and the use of superior strength all armed
with high-powered weapons did then and there willfully, unlawfully, and feloniously, and
with the use of their guns shoot Mr. Herminigildo Fajardo Tenorio hitting the latter on the
different parts of his body causing his instantaneous death.
“Contrary to law with the aggravating circumstances of treachery, evident premeditation,
and the use of superior strength.”
The charges having been allegedly committed at the same place and occasion and
involving all the four (4) accused in each instance were jointly tried per order of the trial
court dated February 28, 1978 and after completion thereof, the two herein accused-
appellants were found guilty while the remaining two accused, Anacleto Simon and
Conrado Erinada were acquitted. We quote hereunder the dispositive portion of the
decision now under review, to wit:
“WHEREFORE, Martin Mandolado is found guilty beyond reasonable doubt of the crime of
murder in Criminal Case No. 562 for the killing of Herminigildo Fajardo Tenorio, and also in
Criminal Case No. 561 for the killing of Nolasco Mendoza, with the aggravating
circumstances of (1) ‘advantage was taken of his being a draftee in the Philippine Army,’
and (2) ‘abuse of confidence or obvious ungratefulness’ without the presence of any
mitigating circumstances and is meted the following penalty, to wit:
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139
In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is sentenced to suffer
the penalty of the crime in its maximum degree which is death.
He shall pay the heirs of the deceased the amount of P12,000.00 for the death of this
victim, and the amount of P20,000.00 as moral and exemplary damages.
In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he is similarly
sentenced to death.
He is to pay the heirs of said deceased the amount of P50,000.00 for the death of said
victim, and the amount of P100,000.00 as moral and exemplary damages.
In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable doubt, Anacleto
Simon and Conrado Erinada are both found not guilty. This case against them (Anacleto
Simon and Conrado Erinada) is hereby dismissed.
In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as an accessory. He
fired his M-16 armalite whenever Martin Mandolado fired his machine gun and this could
be for no other purpose than to conceal or destroy the body of the crime in making it
appear the victims were fighting them or running away or that somebody else like the
MNLF, rebels, NPA or bandits committed the crime. Furthermore, in his own admission, the
purpose of their attempt to leave Mindanao for Bulacan after this incident was to hide and
wait for the time when Martin Mandolado could succeed in settling this case which is
evidence that he assisted in the escape of the principal of the crime.
He is hereby sentenced in each of both cases to serve an imprisonment term of six (6)
years of Prision Correccional as the minimum penalty, to seventeen (17) years of Prision
Mayor as the maximum penalty.
Martin Mandolado and Julian Ortillano are to pay jointly and solidarity the cost of this
litigation.
SO ORDERED.
Given in the City of Cotabato, Philippines, the 28th day of June, 1979.
(SGD.) ALEJANDRO R. LEOPANDO
District Judge”
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140
The facts are as stated in the Peopled Brief as follows:
“In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado, Conrado Erinada
and Anacleto Simon, trainees/draftees of the Armed Forces of the Philippines and
assigned to the 3rd Infantry Battalion of the Philippine Army, were passengers of a bus
bound for Midsayap, North Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at the bus
terminal in Midsayap. Being all in uniform, armed and belonging to the same military outfit,
they got acquainted and decided to drink ESQ rum, at the said bus terminal (pp. 10-11,
Supra).
While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going to
Pikit, North Cotabato, home base of appellants (p. 59, id.). After drinking for about an hour,
appellant Mandolado got drunk and went inside the public market. Subsequently, he
returned, grabbed his .30 caliber machine gun and started firing. His companions tried to
dissuade him but he nonetheless continued firing his gun (pp. 11-12, Supra).
Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a
passing Ford Fiera with some passengers on board. Appellants followed and boarded also
the vehicle (pp. 13-15, Supra). The soldiers forced the driver of the Ford Fiera to bring
them to the Midsayap crossing (p. 58, t.s.n., July 24, 1978).
On their way, appellant Mandolado got his knife and tried to attack the driver (pp. 61-62,
Supra). After appellants alighted at said crossing, the Ford Fiera sped away. Appellant
Mandolado fired his .30 caliber machine gun at the speeding vehicle (p. 51. t.s.n., Jan. 17,
1979) hitting the right side of the back of the driver’s sister who was then on board said
vehicle (p. 64, t.s.n., July 24, 1978).
While waiting for a ride at the Midsayap crossing a privately owned jeep, driven by
Herminigildo Tenorio, passed by. On board said jeep which was bound for Cotabato City
were Nolasco Mendoza and two (2) others, but the latter two alighted at said crossing.
Conrado Erinada and Anacleto Simon boarded the jeep. Thereafter, appellants ran after
the jeep, shouted at Herminigildo Tenorio, the driver thereof, to
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stop the vehicle and subsequently, both appellants Mandolado and Ortillano boarded the
jeep (p. 34, Supra). On the way, both appellants kept firing their guns (pp. 54-55, t.s.n.,
Jan. 17, 1979) prompting Herminigildo Tenorio to remark, “Kung hindi kayo tatahimik,
ibabangga ko itong keep” (Sworn Statement, Exh. Q, Mandolado) which literally means, “if
you will not stop firing your guns, I will ram this jeep into something.”
Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato,
appellant Mandolado got angry, “cocked” his gun and ordered the driver to stop (pp. 36-38,
Supra). While the jeep was coming to a full stop, Conrado Simon and Anacleto Erinada
immediately jumped off the jeep and ran towards their detachment camp located some two
hundred fifty meters away. Appellants also got off the jeep. Thereupon, appellant
Mandolado fired his .30 caliber machine gun at and hit the occupants of the jeep (Sworn
Statement, Exh. Q, Mandolado). Appellant Ortillano likewise, fired his armalite, not at the
occupants of said jeep but downwards hitting the ground. These bursts of gunfire were
heard by both Conrado Erinada and Anacleto Simon who were then already about fifty
meters away from the jeep while running towards their detachment camp (pp. 38 and 42,
t.s.n., Feb. 21, 1979). Although it was then raining torrentially, Anacleto Simon recognized
the bursts of gunfire as those of a machine gun (p. 43, Supra).
Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring
crossing. Appellant Mandolado proceeded to a house where he left his belongings and
changed his wet uniform (p. 104, Supra). After about an hour, they rode in a “Hino”
passenger bus bound for Midsayap. On board said bus was a certain Mr. Leopoldo
Jalandoni who was seated in front of the appellants.
Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said bus
were ordered to alight at the military check point but appellant Mandolado did not alight
(pp. 10-13, t.s.n., Oct. 5, 1975). As the bus was not proceeding to Pikit, North Cotabato
and upon advice of Mr.
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Jalandoni, appellants alighted at the Midsayap crossing and waited for a bus bound for
Pikit (pp. 19-20, Supra).
Appellants were able to ride on a sand and gravel truck which took them to Pikit, North
Cotabato, arriving thereat at about: 3:00 o’clock in the afternoon. At their camp, appellants
returned their firearms, but did not report the incident. In the evening, appellants attended
a party at the Pikit Elementary School (pp. 32-35, t.s.n., April 16, 1979). The following day,
appellants proceeded to Davao City but stopped at Kavocan where they stayed overnight.
Arriving at Davao City, the following morning, appellants went to see a movie and
afterwards proceeded to the Office of Doña Ana, a shipping firm (p. 40, Supra), where they
saw a certain Sgt. Villanueva who was then leaving for Luzon. Sgt. Villanueva informed the
appellants that they were suspects in the Tenorio and Mendoza killings. Immediately
thereafter, appellant Mandolado purchased two passenger tickets for Manila. The other
ticket was for appellant Ortillano (pp. 120-123, Supra). However, before appellants could
board the ship bound for Manila, they were apprehended by a team led by Lt. Licas (p. 45,
Supra). Appellants were brought to Pikit, North Cotabato where they were investigated by
Lts. Licas and Maburang about the aforesaid killings. The following day, appellants were
brought to the headquarters of the 2nd MP Battalion at P.C. Hill, Cotabato City where they
were again investigated. In said investigation, after appellants were duly apprised of their
constitutional rights, they executed and signed their respective sworn statements (Exhs.
“0” and “R”). Appellant Mandolado admitted the killing of Tenorio and Mendoza (Exh. “Q”);
whereas appellant Ortillano admitted his presence at said killings and of his having fired
his armalite downwards after appellant Mandolado fired upon the killed the afore-named
victims (Exh. “R”).
Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a “Pinoy” jeep.
On his way home to Midsayap, he passed a jeep parked along the highway towards the
direction of Cotabato City and about 250 meters away from the BPH building. The parked
jeep was surrounded by several persons. Alighting from the “pinoy” jeep, he went near the
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parked jeep to see what happened. He saw the lifeless bodies of two persons, one
sprawled along the highway whom he recognized as Nolasco Mendoza and the other
whom he recognized as Mr. Tenorio slumped on the wheel of the parked jeep (pp. 18-15,
t.s.n., July 24, 1978). The postmortem examination conducted by Dr. Taeb Zailon,
Municipal Health Officer of Sultan Kudarat, Maguindanao, upon the bodies of Tenorio and
Mendoza on October 3, 1977, were reduced into writing and reads as follows:
POST-MORTEM EXAMINATION REPORT
Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat,
Maguindanao on October 3, 1977 at around 3:30 p.m. in the presence of police officers of
Sultan Kudarat, Maguindanao and personnel of the Health Center and other persons in the
vicinity.
PERTINENT PERSONAL DATA:
Name: HERMINIGILDO TENORIO

Sex: Male
Age: 55 yrs. old
Height: 5’5”
Weight: 145 lbs.
C.S.: Married
Residence: Midsayap, N. Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Avulsed cranial content at the level of forehead including eyeballs;
2. Wound—circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;
3. Wound—1 in. circular wound at the right forearm T-T 4 inches below the elbow;
4. Comminuted fracture at right leg just below the knee cap;
5. Comminuted fracture at right leg just above ankle;
6. Wound—1 in. circular non-penetrating at lateral side left arm;
7. Wound-1/2 in. circular non-penetrating at left region.
PROBABLE CAUSE OF DEATH
Hemorrhage severe secondary to multiple gunshot wounds.

Respectfully submitted:
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(SGD.) TAEB ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. “N”)
POST-MORTEM EXAMINATION REPORT
Post-mortem examination report was performed at the Rural Health Center, Sultan
Kudarat, Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police officers,
personnel of the health center and other civilians.
PERTINENT PERSONAL DATA:
Name: NOLASCO MENDOZA

Sex: Male
Age: 45 years old
Height: 5’4”
Weight: 135 lbs.
C.S.: Married
Residence: Midsayap, North Cotabato
Place of Death: Sultan Kudarat, Maguindanao
POST-MORTEM EXAMINATION FINDINGS
1. Wound—Circular, one inch wide, one inch above right eyebrow;

2. Wound—Circular, 1/2 inch wide, lateral part of left side of neck;
3. Wound—Circular, 3/4 inch wide, upper aspect of right deltoid muscle;
4. Wound—Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and
5. Wound—Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.
PROBABLE CAUSE OF DEATH
Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive

Respectfully submitted:
(SGD.) TAEB A. ZAILON, M.D.
Municipal Health Officer
Sultan Kudarat, Maguindanao (Exh. “P”)
Acting upon the letter request of the commanding officer, Lt. Rodolfo Villanueva, a ballistic
test was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at Cotabato City,
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on the firearms issued to appellant Mandolado, Anacleto Simon and Conrado Erinada. In
said test, bullets were fired from said guns and the empty shells, called test specimen (T-
05-1 to T-05-3), together with the empty shells recovered from the scene of the crime
called specimen evidence, and the 10 links of cal. 30 machine gun, were forwarded to
Camp Crame for Ballistic Examination (pp. 20-24, t.s.n., October 6, 1978). Sgt. Platoon
marked the 8 shells of .30 caliber recovered from the scene of the crime as HT-1 to HT-8
and the armalite shells as CM-9 to CM-13.
In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame
Criminal Laboratory, it was found that the caliber .30 shells recovered from the scene of
the crime (Exh. “HT-1” to “HT-8”) reveal identical impressions as the test specimens of five
empty shells (“T-05-1” to “T-05-3”) fired from appellant Mandolado’s machine gun.
Whereas the armalite shells recovered from the scene of the crime reveal non-identical
impressions with the shells fired from the armalites of Conrado Simon and Anacleto
Erinada. He then concluded that the .30 caliber shells recovered from the scene of the
crime were fired from the same machine gun issued to appellant Mandolado (pp. 60-62,
t.s.n., October 6, 1978).”
Appellants submit only one assigned error and that is, that the trial court erred in
convicting appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt as
principal and accessory, respectively, of the crimes charged on ‘the strength of the
prosecution’s evidence totally disregarding the evidence of the defense. Appellants
contend that their guilt was not proven beyond reasonable doubt inasmuch as the
circumstantial evidence of the prosecution merely proved the fact of the deaths of Tenorio
and Mendoza and not as to the actual perpetrators of the crime; that the evidence of the
prosecution being weak on its own, the only link of the appellant Mandolado to the killings
is his extra-judicial sworn confession, Exhibit “Q”, which he stoutly repudiates for being
unlawfully taken under force and duress and in the failure of the investigator to apprise him
of his constitutional right to remain silent and to be assisted by counsel.
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It is contended by the defense that although the ballistic expert and the firearm examiner
testified that they conducted ballistic and firearm examinations, respectively and that their
finding was that the caliber .30 empty shells were fired from the machine gun issued to
Martin Mandolado, the prosecution failed to prove that the “evidence specimen” (Exh. “HT-
1” to Exh. “HT-8”) were the empty shells recovered from the scene of the crime, the
prosecution not having presented any witness who recovered these empty shells. It was
not shown that these empty shells were recovered from the scene of the crime nor that the
slugs of these empty shells caused the gunshot wounds which resulted in the death of the
victims. Hence, the only link of appellant Martin Mandolado with the empty caliber .30
shells was the fact that these shells were fired from his machine gun, yet the records
disclose that Mandolado accidentally fired his machine gun at the Mintranco Terminal in
Midsayap, North Cotabato, which is not the scene of the crime, when he threatened the
person who tried to steal his bag.
Appellant Mandolado’s claim that he was not previously apprised of his constitutional
rights before he executed his extra-judicial confession, Exh. “Q”, deserves scant
consideration. His claim is clearly belied by the opening statements appearing in his sworn
statement, which reads, thus: “Preliminaries: Dft Martin Mandolado please be informed
that you are now under investigation by this unit in connection with the Shooting incident
that happened at National Highway particularly near the vicinity of the BPH Office at Sultan
Kudarat, Maguindanao on or about 031300H October 1977. Before I ask you any
questions, you must understand your legal rights to wit: You have the right to remain silent.
Anything you say maybe used for or against you as evidence. You have the right to the
services of a lawyer of your own choice. If you cannot afford a lawyer and you want one, a
lawyer will be appointed for you before I ask you any questions.
Question:
Are these all clearly understood by you?
Answer:
Yes, sir.
2.
Q—
Do you wish now to proceed with this investigation even in the absence of a lawyer of your
own choice?
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A
—Yes sir.
3.
Q
—Are you willing to give your statement without being forced, coerced, intimidated or
promised of any reward whatsoever?
A
—Yes sir.
4.
Q
—Now that you are about to testify under oath, do you swear to tell the truth?
A
—Yes sir.
WAIVER
‘I have been advised of my legal right to remain silent; that anything I say maybe used as
evidence against me, and that I have the right to a lawyer to be present with me while I am
being questioned.
I understand these rights and I am willing to make a statement and answer to questions. I
do not want the assistance of a counsel and I understand and know what I am doing. No
promises or threats have been made to me and no force or pressure of any kind have
been used against me.’
(SGD.) MARTIN A. MANDOLADO
Dft 07A-2853 PA
(Affiant)”
And with respect to the accused-appellant Julian Ortillano, the same preliminary questions
were made to him before his investigation and he answered similarly as his co-accused
Mandolado which is shown in Exhibit “R” and said Ortillano likewise executed the same
waiver as that of his co-accused, which is marked Exhibit “R-A”.
The contention of both appellants that they signed their sworn statements (Exhibits Q and
R) because they were maltreated and forced, cannot be believed, not only for failure on
their part to present any evidence of compulsion, duress or violence but also because they
even failed to identify their investigators who allegedly inflicted maltreatment to them,
much less complained to the officials who administered the oaths to their sworn
statements, of such maltreatment, if any. Moreover, the sworn statements themselves
contain significant and important details which the affiants alone could have furnished,
thereby clearly revealing the
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148
voluntariness of said statements and rendering the same admissible as evidence, (People
vs. Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA 23, 39; People vs. Tintero,
111 SCRA 714: People vs. Estero, 91 SCRA 93, 99).
The conviction of appellant Mandolado for double murder appears to be based not only on
his extrajudicial confession (Exhibit Q) but also upon the following circumstances which
proved that he did shot and kill the victims, Tenorio and Mendoza, beyond peradventure of
doubt. And these are listed in the People’s Brief, to wit: “(1) he repeatedly fired his .30
caliber machine gun while intoxicated at the bus terminal in Midsayap (pp. 11-12, t.s.n.,
February 21, 1979); (2) that he fired at the Ford Fierra which took them in the Midsayap
junction (p. 51, Supra) hitting one of its passengers (p. 64, t.s.n., July 24, 1978); (3) that
Anacleto Simon while running away from the jeep driven by the deceased, heard a burst of
machine gun fire coming from the direction of the jeep (p. 42, t.s.n., February 21, 1979);
(4) the result of the Ballistic examination showing that the shells recovered from the scene
of the crime were fired from the gun issued to appellant Mandolado (pp. 60-62, t.s.n.,
October 16, 1978); (5) the attempted flight of both appellants from justice (pp. 120-123,
t.s.n., April 16, 1979) and which act clearly indicates guilt for the ‘wicked fleeth where no
man pursueth but the righteous are as bold as the lion’, and lastly (6) appellant’s own
admission before the lower court that he killed Tenorio and Mendoza although he claims
the same to be accidental (pp. 7-8, t.s.n., October 6, 1978).”
The killing of the two victims in the case at bar is correctly qualified as murder, there being
present the qualifying circumstance of treachery which is alleged in the informations.
There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the
offended party might make. (Art. 14, paragraph 16, Revised Penal Code). The prosecution
evidence is quite clear and explicit that when appellants alighted from the jeep, the
accused Mandolado immediately fired his .30 caliber machine gun at the occupants of the
jeep, the victims Nolasco Mendoza
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and Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this
sudden means or manner of attack, it can reasonably be concluded that it tended directly
to insure its execution without risk to the appellant-assailant and also deprive the victims of
any chance or opportunity to defend themselves. We also rule that the particular means or
manner employed by the appellant-assailant was consciously or deliberately sought and
not a mere accidental circumstance resorted to on the spur of the moment on the basis of
the evidence that the appellant had previously and repeatedly fired his .30 caliber machine
gun at the bus terminal in Midsayap and had also fired the machine gun at the Ford Fiera
which took them to Midsayap junction and that appellants waited for sometime riding on
board the jeep driven by Tenorio before they ordered the jeep to stop, alight therefrom and
then shoot the occupants therein.
While the informations allege as aggravating circumstances that of evident premeditation
and the use of superior strength, aside from treachery, We cannot agree with the finding of
the trial court that the aggravating circumstances of (1) advantage was taken of his being a
Draftee in the Philippine Army, and (2) abuse of confidence or obvious ungratefulness
were present in the commission of the crime.
While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one
who holds public position (U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier
was held to be a public officer), there is no persuasive showing that herein appellants
being draftees of the Army, in full military uniform and carrying their high-powered firearms,
facilitated the commission of the crimes they were charged. It may be conceded that as
draftees, the accused could easily hitchhike with private vehicles, as in the case of the
deceased Tenorio’s owner-type jeep, but there is no evidence that when they stopped the
jeep the accused already intended to shoot the occupants of the vehicle. As it was held in
People vs. Pantoja, 25 SCRA 468, 471 which We reiterate that “There is nothing to show
that the appellant took advantage of his being a sergeant in the Philippine Army in order to
commit the crimes. The mere fact that he was in fatigue uniform and had
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150
an army rifle at the time is not sufficient to establish that he misused his public position in
the commission of the crimes x x x.”
There is also merit in appellants’ contention that there could be no abuse of confidence as
the evidence on record showed the lack of confidence by the victims lo the appellants, that
this confidence was abused, and that the abuse of the confidence facilitated the
commission of the crimes. In Order that abuse of confidence be deemed as aggravating, it
is necessary that “there exists a relation of trust and confidence between the accused and
one against whom the crime was committed and the accused made use of such a
relationship to commit the crime.” (People vs. Comendador, 100 SCRA 155, 172). It is also
essential that the confidence between the parties must be immediate and personal such
as would give that accused some advantage or make it easier for him to commit the crime;
that such confidence was a means of facilitating the commission of the crime, the culprit
taking advantage of the offended party’s belief that the former would not abuse said
confidence (People vs. Hanasan, 29 SCRA 534). In the instant case, there is absolutely no
showing of any personal or immediate relationship upon which confidence might rest
between the victims and the assailants who had just met each other then. Consequently,
no confidence and abuse thereof could have facilitated the crimes.
Similarly, there could have been no obvious ungratefulness in the commission of the crime
for the simple reason that the requisite trust of the victims upon the accused prior to the
criminal act and the breach thereof as contemplated under Article 14, par. 4 of the Revised
Penal Code are manifestly lacking or non-existent. In all likelihood, the accused Army men
in their uniforms and holding their high-powered firearms cowed the victims into boarding
their jeep for a ride at machine gun point which certainly is no source of gratefulness or
appreciation.
The finding of the trial court that: “There is no doubt about Martin Mandolado’s state of
intoxication. He was so drunk that even his three (3) companions armed with M-16
armalite feared him. The same thing was true with the MPs,” should
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credit said accused with the mitigating circumstance of drunkenness but which the trial
court decision failed to appreciate in his favor. Accordingly, the penalty to be imposed upon
the accused-appellant Mandolado shall be reduced in the computation thereof.
With respect to the accused-appellant Julian Ortillano who was found guilty as an
accessory in Criminal Cases No. 561 and No. 562 for having fired his M-16 armalite
whenever Martin Mandolado fired his machine gun and, according to the court, this could
be for no other purpose than to conceal or destroy the body of the crime and making it
appear that the victims were fighting them or running away or that somebody else like the
MNLF, rebels, NPA or bandits committed the crime, and for assisting in the escape of the
principal (Martin Mandolado) of the crime and sentenced in each of both cases to serve
imprisonment for a term of six (6) years of prision correccional as minimum to seventeen
(17) years of prision mayor as maximum, We find and hold that the accused-appellant
Julian Ortillano should be convicted, not as an accessory, but as an accomplice.
An accomplice cooperates in the execution of the offense by previous or simultaneous
acts, provided he has no direct participation in its execution or does not force or induce
others to commit it, or his cooperation is not indispensable to its accomplishment (Art. 18,
Revised Penal Code).
“To hold him liable, upon the other hand, as an accomplice, it must be shown that he had
knowledge of the criminal intention of the principal, which may be demonstrated by
previous or simultaneous acts which contributes to the commission of the offense as aid
thereto whether physical or moral (People vs. Silvestre, et al., 56 Phil. 353, 356). As aptly
stated in People vs. Tamayo (44 Phil. 38, 49): It is an essential condition to the existence
of complicity, not only that there should be a relation between the acts done by the
principal and those attributed to the person charged as accomplice, but it is further
necessary that the latter, with knowledge of the criminal intent, should cooperate with the
intention of supplying material or moral aid in the execution of the crime in an efficacious
way.” (People vs. Custodio, 47 SCRA 289, 303 [1972]).
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152
In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of
Mandolado. He was present when Mandolado tried to attack the driver of the Ford Fiera
with a knife and fired at the vehicle hitting a female passenger (p. 4, Decision). When
Mandolado got angry and ‘‘cocked” his gun and ordered Tenorio to stop the jeep, their two
other companions, Simon and Erinada, immediately jumped off the jeep and ran away, but
Ortillano stayed. In a display of unity with Mandolado, Ortillano fired his armalite while they
were riding in the jeep of the victim (p. 5, Decision). And Ortillano’s act of firing his gun
towards the ground manifested his concurrence with the criminal intent. In other words,
Ortillano’s simultaneous acts supplied, if not material, moral aid in the execution of the
crime in an efficacious way. Ortillano’s presence served to encourage Mandolado, the
principal, or to increase the odds against the victims (U.S. vs. Guevara, 2 Phil. 528 [1903];
People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).
In convicting the accused Ortillano as an accomplice, We, however, appreciate the
mitigating circumstance of drunkenness in his favor, the same as We did to his co-accused
Martin Mandolado, the principal defendant.
In resumé, the crime committed by the accused-appellant Martin Mandolado is murder,
qualified by treachery. There being no aggravating circumstance but having found and
appreciated drunkenness which is not habitual as a mitigating circumstance, the penalty
prescribed under Article 248 of the Revised Penal Code which is reclusion temporal in its
maximum period to death shall be imposed in its minimum period. Applying the
Indeterminate Sentence Law, the accused shall be sentenced to imprisonment of ten (10)
years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal as maximum in each case.
As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of
murder, and appreciating in his favor the mitigating circumstance of drunkenness which is
not habitual, the penalty to be imposed upon him shall be one degree lower than that
imposed for murder (Article 52, Revised
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153
Penal Code), which will be in the minimum period. Applying the Indeterminate Sentence
Law, the accused Ortillano shall be sentenced to imprisonment of four (4) years, two (2)
months of prision correccional as minimum to ten (10) years and one (1) day of prision
mayor as maximum in each case.
With respect to damages, for the death of Herminigildo Tenorio, the award of P12,000.00
as compensatory damages and P20,000.00 for moral damages is hereby affirmed.
For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as compensatory
damages to P12,000.00 We also reduce the award of P100,000.00 as moral damages to
P20,000.00.
The liability of the appellants for the above damages which shall be paid to the heirs of the
victims shall be in solidum (Article 110, par. 1, Revised Penal Code).
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is
hereby MODIFIED. The accused-appellant Martin Mandolado is hereby found guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. 561 for the killing of
Nolasco Mendoza and in Criminal Case No. 562, for the killing of Herminigildo Tenorio.
There being no aggravating circumstance but having found and appreciated drunkenness
which is not habitual as a mitigating circumstance, said accused is hereby sentenced to
suffer imprisonment of ten (10) years and one (1) day of prision mayor as minimum to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum
in each of the two cases.
The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt as
accomplice in the crime of murder in Criminal Case No. 561 for the killing of Nolasco
Mendoza and in Criminal Case No. 562 for the killing of Herminigildo Tenorio. Similarly,
there being no aggravating circumstance but having found and appreciated the mitigating
circumstance of drunkenness which is not habitual in his favor, said accused is hereby
sentenced to suffer imprisonment of four (4) years, two (2) months of prision correccional
as minimum to ten (10) years and one (1) day of prision mayor as maximum in each case.
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In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both accused
to pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 as
moral damages. The liability of the accused shall be in solidum.
In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both accused
to pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 for
moral damages. The liability of the accused shall also be in solidum.
Costs against the appellants.
Judgment modified.
SO ORDERED.
Fernando (C.J.), Teehankee, Makasiar, Concepcion, Jr., Abad Santos, De Castro,
Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Aquino, J., no part.
Defendants-appellants guilty.
Notes.—Corrections made by the accused on their extrajudicial confessions are indicative
that they were voluntarily executed. (People vs. Ty Sui Wong, 83 SCRA 125.)
There is no need for the prosecution to present all persons who witnessed the
investigation of a crime to testify on the voluntary character of the confessions. (People vs.
Molleda, 86 SCRA 669.)
To serve as a basis for conviction, the extrajudicial confession concerning the commission
of the crime must inspire credibility. (People vs. Pascual, 80 SCRA 1.)
Conviction of accused is warranted if evidence other than his involuntary admission in his
extrajudicial confession exists in evidence to justify a finding of guilt. (People vs. Rapada
80 SCRA 63.)
Evidence must not only proceed from a credible witness but must be credible in itself.
(People vs. Dayag, 56 SCRA 439.)
——o0o——
155
© Copyright 2015 Central Book Supply, Inc. All rights reserved. [People vs. Mandolado,
123 SCRA 133(1983)]
VIII. People vs. Baldogo
G.R. Nos. 128106-07. January 24, 2003.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GONZALO BALDOGO, accused-
appellant.
Criminal Law; Witnesses; Findings of facts of the trial court, its calibration of the
testimonial evidence of the parties, its assessment of the probative weight of the collective
evidence of the parties and its conclusions anchored on its findings are accorded by the
appellate court with great respect, if not conclusive effect.—This Court has held in a
catena of cases that the findings of facts of the trial court, its calibration of the testimonial
evidence of the parties, its assessment of the probative weight of the collective evidence of
the parties and its conclusions anchored on its findings are accorded by the appellate
court great respect, if not conclusive effect. The raison d’etre of this principle is that this
Court has to contend itself with the mute pages of the original records in resolving the
issues posed by the parties: “x x x The record will not reveal those tell-tale signs that will
affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or
the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the
forthright tone of a ready reply. The record will not show if the eyes have darted in evasion
or looked down in confession or gazed steadily with a serenity that has nothing to distort or
conceal. The record will not show if tears were shed in anger, or in shame, or in
remembered pain, or in feigned innocence. Only the judge trying the case can see all
these and on the basis of his observations arrive at an informed and reasoned verdict.”
Same; Presumption of Innocence; Accusation is not synonymous with guilt—it is
incumbent on the prosecution to prove the corpus delicti, more specifically, that the crimes
charged had been committed and that the accused precisely committed the same.—The
Court agrees with accused-appellant that the prosecution was burdened to prove his guilt
beyond reasonable doubt of the felonies for which he is charged. This Court has held that
accusation is not synonymous with guilt. It is incumbent on the prosecution to prove the
corpus delicti, more specifically, that the crimes charged had been committed and that
accused-appellant precisely committed the same. The prosecution must rely on the
strength of its own evidence and not on the weakness of the evidence of the accused. The
reasonable standard rule which was adopted by the United States way back in 1978 is a
requirement and a safeguard, in the words of Mr. Justice Felix
_______________
* EN BANC.
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People vs. Baldogo
Frankfurter of the United States Supreme Court, “of due process of law in the historic,
procedural content of due process.” The United States Supreme Court emphasized in Re:
Winship that in a criminal prosecution, the accused has at stake interests of immense
importance, both because of the possibility that he may lose his liberty or even his life
upon conviction and because of the certainty that he would be stigmatized by the
conviction.
Same; Murder; Conspiracy; For a conspirator to be criminally liable of murder or homicide,
it is not necessary that he actually attacks or kills the victim.—Article 8 of the Revised
Penal Code provides that there is conspiracy if two or more persons agree to commit a
felony and decide to commit it. Conspiracy may be proved by direct evidence or
circumstantial evidence. Conspiracy may be inferred from the acts of the accused, before,
during and after the commission of a felony pointing to a joint purpose and design and
community of intent. It is not required that there be an agreement for an appreciable period
prior to the commission of the offense, all the conspirators had the same purpose and
were united in its execution. In a conspiracy, the act of one is the act of all. All the accused
are criminally liable as co-principals regardless of the degree of their participation. For a
conspirator to be criminally liable of murder or homicide, it is not necessary that he actually
attacks or kills the victim. As long as all the conspirators performed specific acts with such
closeness and coordination as to unmistakably indicate a common purpose or design in
bringing about the death of the victim, all the conspirators are criminally liable for the death
of said victim.
Same; Denial; The bare denial by the accused of the crimes charged constitutes self-
serving negative evidence which cannot prevail over the categorical and positive testimony
of the prosecution witness and her unequivocal identification of the accused as one of the
perpetrators of the crimes charged.—The bare denial by accused-appellant of criminal
liability for the crimes charged is inherently weak. Accused-appellant’s claims that he even
protected Julie from harm and that he was forced by Bermas to kidnap Julie are of the
same genre. The bare denial by accused-appellant of the crimes charged constitutes self-
serving negative evidence which cannot prevail over the categorical and positive testimony
of Julie and her unequivocal identification of accused-appellant as one of the perpetrators
of the crimes charged.
Same; Exempting Circumstances; Duress; For duress to exempt the accused of the
crimes charged, “the fear must be well-founded, and immediate and actual damages of
death or great bodily harm must be present and the compulsion must be of such a
character as to leave no opportunity
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People vs. Baldogo
to accused for escape or interpose self-defense in equal combat.”—Accused-appellant’s
insistence that he was forced by Bermas, under pain of death, to cooperate with him in
killing Jorge and kidnapping and detaining Julie is merely an afterthought. For duress to
exempt accused-appellant of the crimes charged, “the fear must be well-founded, and
immediate and actual damages of death or great bodily harm must be present and the
compulsion must be of such a character as to leave no opportunity to accused for escape
or interpose self-defense in equal combat.” Accused-appellant is burdened to prove by
clear and convincing evidence his defense of duress. He should not be shielded from
prosecution for crime by merely setting up a fear from, or because of, a threat of a third
person.” As Lord Dennan declared in Reg. vs. Tyler, “No man from fear of circumstances
to himself has the right to make himself a party to committing mischief on mankind.” In
these cases, in light of the testimony of Julie and the inculpatory acts of accused-appellant
no less, there is no doubt that the latter acted in concert with Bermas and is himself a
principal by direct participation. That accused-appellant abandoned Julie after six days of
captivity does not lessen his criminal culpability much less exempt him from criminal
liability for the killing of Jorge and the kidnapping and detention of Julie.
Same; Witnesses; The testimony of a minor of tender age and of sound mind is likewise to
be more correct and truthful than that of an older person so that once it is established that
he has fully understood the character and nature of an oath, his testimony should be given
full credence and probative weight.—It bears stressing that when she testified, Julie was
merely 12 years old. The Court has repeatedly held that the testimony of a minor of tender
age and of sound mind is likewise to be more correct and truthful than that of an older
person so that once it is established that they have fully understood the character and
nature of an oath, their testimony should be given full credence and probative weight. Julie
had no ill motive to tergiversate the truth and falsely testify against accused-appellant.
Hence, her testimony must be accorded full probative weight.
Same; Complex Crimes; Kidnapping with Murder; The last paragraph of Article 267 of the
Revised Penal Code is applicable only if kidnapping or serious illegal detention is
committed and the victim is killed or dies as a consequence of the kidnapping or serious
illegal detention.—The Court shall now delve into and resolve the issue of what crime or
crimes accused-appellant is guilty of. The trial court convicted accused-appellant of two
separate crimes and not the special complex crime of kidnapping with murder or homicide
under the last paragraph of Article 267 of the Revised Penal Code as amended by
Republic Act 7659. The trial court is correct. There is no evidence that Jorge was
kidnapped or detained first by accused-appellant and Bermas before he was killed. The
last paragraph of
34
34
People vs. Baldogo
Article 267 of the Code is applicable only if kidnapping or serious illegal detention is
committed and the victim is killed or dies as a consequence of the kidnapping or serious
illegal detention.
Same; Murder; Aggravating Circumstances; Evident Premeditation; A finding of evident
premeditation cannot be based solely on mere lapse of time that he actually commits it—
the prosecution must adduce clear and convincing evidence as to when and how the
felony was planned and prepared before it was effected.—While the Court agrees that
accused-appellant is guilty of murder, it does not agree with the rulings of the trial court
that the crime was qualified by evident premeditation and abuse of superior strength. To
warrant a finding of evident premeditation, the prosecution must establish the confluence
of the following requisites: “x x x (a) the time when the offender determined to commit the
crime; (b) an act manifestly indicating that the offender clung to his determination; and (c)
a sufficient interval of time between the determination and the execution of the crime to
allow him to reflect upon the consequences of his act. x x x”
Same; Same; Same; Same; Requisites.—The qualifying aggravating circumstance of
evident premeditation, like any other qualifying circumstance, must be proved with
certainty as the crime itself. A finding of evident premeditation cannot be based solely on
mere lapse of time from the time the malefactor has decided to commit a felony up to the
time that he actually commits it. The prosecution must adduce clear and convincing
evidence as to when and how the felony was planned and prepared before it was effected.
The prosecution is burdened to prove overt acts that after deciding to commit the felony,
the felon clung to his determination to commit the crime. The law does not prescribe a time
frame that must elapse from the time the felon has decided to commit a felony up to the
time that he commits it. Each case must be resolved on the basis of the extant factual
milieu.
Same; Same; Same; Treachery; The killing of minor children who by reason of their tender
years could not be expected to put up a defense is attended by treachery.—In light of the
evidence on record, it is clear that the killing of Jorge was qualified by treachery. When
Jorge was killed by accused-appellant and Bermas, he was barely 14 years old. The Court
has previously held that the killing of minor children who by reason of their tender years
could not be expected to put up a defense is attended by treachery. Since treachery
attended the killing, abuse of superior strength is absorbed by said circumstance.
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People vs. Baldogo
Same; Kidnapping; Words and Phrases; To sequester is to separate for a special purpose,
remove or set apart, withdraw from circulation, and also means to lock-up or imprison.—
Article 267 of the Revised Penal Code was taken from Article 267 of the Spanish Penal
Code, which reads: “Art. 267—Detención ilegal grave—Será castigado con la pena de
reclusión temporal el particular que secuestrare o encerrare a otro o en cualquier forma le
privare de libertad.” “Secuestrare” means sequestration. To sequester is to separate for a
special purpose, remove or set apart, withdraw from circulation. It also means to lock-up or
imprison. “Encerrare” is a broader concept than secuestrare. Encerrare includes not only
the imprisonment of a person but also the deprivation of his liberty in whatever form and
for whatever length of time. As explained by Groizard, “encerrar” es meter á una persona ó
cosy en parte de donde no pueda salir”; detener o arrestar, poner en prisión, privar de la
libertad á alguno.” He continued that “la detención, la prisión, la privación de la libertad de
una persona, en cualquier forma y por cualquier medio ó por cualquier tiempo en virtud de
la cual resulte interrumpido el libre ejercicio de su actividad.” On his commentary on the
Spanish Penal Code, Cuello Calon says that the law “preve dos modalidades de privacion
de libertad, el encierro y la detencion. Encerrar significa recluir a una persona en un lugar
de donde no puede salir, detener a una persona equivale a impedirle o restringirle la
libertad de movimiento. Para que el sujeto pasivo no quiera permanecer en el sitio donde
esta recluido, pues no es posible llamar encierro ni detencion a la estancia de un a
persona en lugar del que no quiere salir.”
Same; Same; Aggravating Circumstances; Dwelling; The accused is guilty of kidnapping
where he seized and took a minor from her house through force and dragged her to the
mountain and since then the minor was restrained of her liberty by and kept under the
control of accused; Dwelling could not serve to aggravate the penalty where it was not
alleged in the Information.—In this case, Julie, a minor, was not locked up. However, she
was seized and taken from her house through force and dragged to the mountain. Since
then, she was restrained of her liberty by and kept under the control of accused-appellant
and Bermas. She was prevented from going back home for a period of about six days.
Patently then, accused-appellant is guilty of kidnapping and illegally detaining Julie. The
crime was aggravated by dwelling because Julie was taken from their house by accused-
appellant and Bermas. However, dwelling was not alleged in the Information as an
aggravating circumstance as required by Section 9, Rule 110 of the Revised Rules on
Criminal Procedure which reads: “SEC. 9. Designation of the offense.—The complaint or
information shall state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, refer-
36
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People vs. Baldogo
ence shall be made to the section or subsection of the statute punishing it.” Even if
dwelling is proven but is not alleged in the Information as an aggravating circumstance, the
same will not serve to aggravate the penalty.
Same; Same; Same; Quasi-Recidivism; To prove quasi-recidivism, a special aggravating
circumstance, the prosecution is burdened to adduce in evidence a certified copy of the
judgment previously convicting the accused and to prove that the said judgment had
become final and executory.— Quasi-recidivism as defined in Article 160 of the Revised
Penal Code is alleged in both Informations. Accused-appellant is alleged to have
committed murder and kidnapping while serving sentence in the penal colony by final
judgment for the crime of homicide. Quasi-recidivism is a special aggravating
circumstance. The prosecution is burdened to prove the said circumstance by the same
quantum of evidence as the crime itself. In the present case, to prove quasi-recidivism, the
prosecution was burdened to adduce in evidence a certified copy of the judgment
convicting accused-appellant of homicide and to prove that the said judgment had become
final and executory. The raison d’etre is that: “x x x Since the accused-appellant entered a
plea of not guilty to such information, there was a joinder of issues not only as to his guilt
or innocence, but also as to the presence or absence of the modifying circumstances so
alleged. The prosecution was thus burdened to establish the guilt of the accused beyond
reasonable doubt and the existence of the modifying circumstances. It was then grave
error for the trial court to appreciate against the accused-appellant the aggravating
circumstance of recidivism simply because of his failure to object to the prosecution’s
omission as mentioned earlier.”
Same; Same; Same; Same; The barefaced fact that the accused was detained in the
penal colony does not prove the fact that final judgment for homicide has been rendered
against him.—In this case, the prosecution adduced in evidence merely the excerpt of the
prison record of accused-appellant showing that he was convicted of homicide in Criminal
Case No. 10357-R by the Regional Trial Court of Baguio (Branch 6) with a penalty of from
six years and one day as minimum to fourteen years, eight months and one day as
maximum and that the sentence of accused-appellant commenced on November 19, 1992
and that the minimum term of the penalty was to expire on August 16, 1997. The excerpt
of the prison record of accused-appellant is not the best evidence under Section 3, Rule
130 of the Revised Rules of Court to prove the judgment of the Regional Trial Court of
Baguio City and to prove that said judgment had become final and executory. Said excerpt
is merely secondary or substitutionary evidence which is inadmissible absent proof that the
original of the judgment had been lost or destroyed or that the same cannot be produced
without
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People vs. Baldogo
the fault of the prosecution. The barefaced fact that accused-appellant was detained in the
penal colony does not prove the fact that final judgment for homicide has been rendered
against him. There being no modifying circumstances in the commission of the crime,
accused-appellant should be meted the penalty of reclusion perpetua conformably with
Article 63 of the Revised Penal Code.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Puerto Princesa City,
Palawan, Br. 52.

Public Attorney’s Office for accused-appellant.
CALLEJO, SR., J.:
This is an automatic review of the Joint Judgment,1 dated October 18, 1996, of the
Regional Trial Court, Branch 52, Puerto Princesa City, finding accused-appellant Gonzalo
Baldogo alias “Baguio” guilty beyond reasonable doubt of the crime of Murder in Criminal
Case No. 12900 and Kidnapping in Criminal Case No. 12903. The trial court imposed on
accused-appellant the supreme penalty of death in Criminal Case No. 12900 and reclusion
perpetua in Criminal Case No. 12903.
I. The Indictments
Two Informations were filed against accused-appellant and Edgar Bermas alias “Bunso”
which read:
“That on or about the 22nd day of February, 1996 in the evening at the residence of Mr.
Julio Camacho of Iwahig Prison and Penal Farm, Puerto Princesa City, Philippines and
within the jurisdiction of this Honorable Court, the said accused who were both convicted
by final judgment of the offense of Homicide and while already serving sentence,
committed the above name offense by conspiring and confederating together and mutually
helping one another, with intent to kill, with treachery and evident premeditation and while
armed with a bolo, did then and there wilfully, unlawfully and feloniously assault, attack
and hack one JORGE
_______________
1 Penned by Judge Felomino A. Vergara.

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People vs. Baldogo
CAMACHO, hitting him and inflicting upon him mortal wounds at the different parts of his
body, which was the direct and immediate cause of his death shortly thereafter.
CONTRARY TO LAW, with the aggravating circumstances of treachery, evident[,]
premeditation and recidivism. Puerto Princesa City, Philippines, March 5, 1996.”2
xxx
“That on Thursday, February 22, 1996 at more or less 8:15 in the evening at the victim’s
residence, Iwahig Prison and Penal Farm, Puerto Princesa City, Philippines and within the
jurisdiction of this Honorable Court, the said accused while serving sentence at the Central
Sub-Colony both for the offense of Homicide, conspiring and confederating together and
mutually helping one another, commits (sic) another offense, kidnapping one JULIE E.
CAMACHO, a girl 12 years of age, and brought her to the mountains, where said Julie E.
Camacho was detained and deprived of her liberty fro [sic] more than five days.
CONTRARY TO LAW and attended by the aggravating circumstance of recidivism.”3
Accused-appellant was arraigned on June 28, 1996 and entered a plea of not guilty to both
charges.4 Edgardo Bermas died before he could be arraigned.5 The two cases were
ordered consolidated and a joint trial thereafter ensued.
The prosecution presented four witnesses, namely, Julie Camacho, Dr. Edilberto Joaquin,
Esteban Mamites and Julio Camacho, Sr., and offered documentary and object evidence
on its evidence-in-chief.
II. The Antecedent Facts
Julio Camacho, Sr. and his wife, Heather Esteban, had four children, namely: Julio, Jr., a
student of the Palawan State University in Puerto Princesa City and who stayed in
Guaygo, Puerto
_______________
2 Original records, p. 1.
3 Id., at 15.
4 Id., at 21.
5 Id., at 65.
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People vs. Baldogo
Princesa City; Jorge, who was fourteen years old;6 Julie, who was 12 years old and a
grade six elementary pupil at the Iwahig Elementary School and Jasper, who was eight
years old. Julio, Sr. was employed as a security guard in the Iwahig Prison and Penal
Colony. He and his family lived in a compound inside the sub-colony. Edgardo Bermas
alias “Bunso,” an inmate of the penal colony, was assigned as a domestic helper of the
Camacho spouses. Accused-appellant alias “Baguio,” also an inmate of the colony, was
assigned in January 1996 as a domestic helper of the Camacho family. Both helpers
resided in a hut located about ten meters away from the house of the Camacho family.
In the evening of February 22, 1996, accused-appellant and Bermas served dinner to
Julio, Sr., Jorge and Julie in the house of the Camachos. At about 7:30 p.m., Julio, Sr. left
the house to attend a bible study at the dormitory in the Agronomy Section of the Penal
Farm. Heather and her son, Jasper, were in Aborlan town. Only Jorge and his sister Julie
were left in the house.
After Julio, Sr. had left the house, Julie went to the sala to study her assignment.
Momentarily, Bermas called Julie from the kitchen saying: “Jul, tawag ka ng kuya mo.”
Julie ignored him. After five minutes, Bermas called her again but Julie again ignored him.
Julie was perturbed when she heard a loud sound, akin to a yell, “Aahh! Ahh!” coming from
the kitchen located ten meters from the house. This prompted Julie to stand up and run to
the kitchen. She was appalled to see Jorge sprawled on the ground near the kitchen, face
down and bloodied. The vicinity was lighted by a fluorescent lamp. Standing over Jorge
were accused-appellant and Bermas, each armed with a bolo.7 The shirt of Bermas was
bloodied.8 Julie was horrified and so petrified that although she wanted to shout, she could
not. She ran back to the sala with accused-appellant and Bermas in pursuit. Accused-
appellant overtook Julie, tied her hands at her back with a torn t-shirt and placed a piece of
cloth in her mouth to prevent her from shouting for help from their neighbors. Bermas went
to the room of Julie’s
_______________
6 Exhibit “E”.
7 Exhibit “A”.
8 Ibid.
40
40
People vs. Baldogo
brothers. Accused-appellant dragged Julie outside the house and towards the mountain.
Bermas tarried in the house.
With the aid of a flashlight, accused-appellant, with Julie in tow, walked for hours towards
the direction of the mountain. About a kilometer away from the house of the Camachos,
accused-appellant and Julie stopped under a big tamarind tree at the foot of the mountain.
After about thirty minutes, Bermas arrived with a kettle and raw rice. Accused-appellant
and Bermas retrieved a bag containing their clothing and belongings from the trunk of the
tamarind tree. They untied Julie and removed the gag from her mouth. The three then
proceeded to climb the mountain and after walking for six hours or so, stopped under a big
tree where they spent the night. When the three woke up in the morning of the following
day, February 23, 1996, they continued their ascent of the mountain. Seven hours
thereafter, they started to follow a descending route. Accused-appellant and Bermas told
Julie that they would later release her. At about 3:00 p.m., Bermas left accused-appellant
and Julie. However, accused-appellant did not let go of Julie. The two survived on sugar
and rice cooked by accused-appellant. Once, they saw uniformed men looking for Julie.
However, accused-appellant hid Julie behind the tree. She wanted to shout but he covered
her mouth.
In the early morning of February 28, 1996, accused-appellant told Julie that he was leaving
her as he was going to Puerto Princesa City. He told her to fend for herself and return to
the lowland the next day. After their breakfast, accused-appellant left Julie alone to fend for
herself. A few hours after accused-appellant had left, Julie decided to return to the
lowlands. She found a river and followed its course toward Balsaham until she saw a hut.
She called upon its occupant who introduced himself as Nicodemus. Julie sought help
from him. When asked by Nicodemus if she was the girl whom the police authorities were
looking for, she replied in the affirmative. Nicodemus brought Julie to Balsaham where
they met some personnel of the penal colony and police officers, and Nicodemus turned
Julie over for custody to them.
Meanwhile, Julio, Sr. arrived home after his bible study at about 9:00 p.m. on February 22,
1996. He noticed that the television set was switched on but no one was watching it. He
looked for his
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People vs. Baldogo
children but they were nowhere to be found. He then proceeded to the hut occupied by
accused-appellant and Bermas but he also failed to find them. Julio, Sr. then rushed to the
house of his older brother, Augusto Camacho, to look for his children, but Augusto told him
that Jorge and Julie were not there. Julio, Sr. then sought the help of Romualdo
Esparagoza, a trustee of the penal farm. The two rushed back to the Camacho residence
and proceeded to the kitchen where they noticed blood on the floor. The two proceeded to
the dirty kitchen and saw the bloodied body of Jorge dumped about three meters away
from the dirty kitchen. Julio, Sr. and Esparagoza then brought Jorge to the Iwahig Hospital
where he was pronounced dead on arrival at 12:40 a.m. of February 23, 1996. Dr.
Edilberto Joaquin examined the cadaver and found that the victim was stabbed on the
breast once and at the back seven times. He sustained a lacerated wound on the neck.
The layers of the neck, trachea and esophagus of Jorge had been cut. Jorge did not
sustain any defensive wound. Dr. Joaquin performed an autopsy of the cadaver and
signed a medical certificate with his findings, thus:
“MEDICAL CERTIFICATE
GENERAL DATA:
JORGE CAMACHO y ESTEBAN, 14 years old, student, resident of Iwahig Prison and
Penal Farm, approximately 5’3 inches in-height, was brought to the hospital, (DOA) dead
on arrival at 12:40 AM, 23 February 1996, approximate time of death 8:00 P.M. February
22, 1996.
FINDINGS
1. Stab wound, deep, penetrating, approximately 1 inch in length, at the level of the
xyphoid process, anteriorly.
2. Stab wound, chest, back, approximately 1 inch length, right midclavicular line, level of
the 3rd rib.
3. Stab wound, back, right midclavicular line, level of the 5th rib.
4. Stab wound, back, approximately 1 inch length level of the 5th rib, left midclavicular line.
5. Stab wound, back, approximately 1 inch length, right midclavicular line, 6th rib.
42
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People vs. Baldogo
6. Stab wound, back, approximately 1 inch length, right mid-clavicular line, level of the 4th
lumbar region.
7. Stab wound, back, approximately 1 inch in length, right third lumbar region, deep,
penetrating involving the liver.
8. Stab wound, back, approximately 3/4 inch, at the level of the 2nd lumbar region.
9. Lacerated wound, neck, anteriorly, deep, penetrating, cutting the layers of the neck and
the trachea and esophagus.
CAUSE OF DEATH
Hypovolemia due to severe hemorrhage secondary to multiple stab wounds and laceration
of the neck.”9
Wounds numbers 7 and 9 were fatal. It was possible that two sharp-edged and sharp
pointed weapons were used in stabbing Jorge and that two assailants stabbed the
victim.10
On February 29, 1996, Julie gave her sworn statement and a supplemental sworn
statement to the police investigators.11 Julio, Sr. suffered mental anguish and sleepless
nights because of the death of Jorge.
The prosecution adduced in evidence excerpts of the personal file of accused-appellant
kept in the penal colony showing that he had been convicted of homicide by the Regional
Trial Court of Baguio City and that he commenced serving sentence on November 19,
1992 and that the minimum term of his penalty was to expire on August 16, 1997.12
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant denied killing Jorge and kidnapping Julie. Accused-appellant asserted
that Julie implicated him because she was coached and rehearsed. He testified that he
was assigned as a helper in the house of Augusto Camacho, the Chief of the Industrial
Section of the colony and the older brother of Julio, Sr. Augu-
_______________
9 Exhibit “B”.
10 TSN, Joaquin, August 20, 1996, pp. 13-14.
11 Exhibit “A”.
12 Exhibit “D”.
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People vs. Baldogo
sto told accused-appellant that his brother, Julio, Sr., wanted to have accused-appellant
transferred as his domestic helper. However, accused-appellant balked because he had
heard from Edgardo Bermas, the helper of Julio, Sr., that the latter was cruel and had been
maltreating Bermas. Nonetheless, in December 1995, accused-appellant was transferred
as a domestic helper of Julio, Sr. Accused-appellant confirmed that indeed Julio, Sr. was
cruel because whenever the latter was angry, he maltreated accused-appellant by
spanking and boxing him. These would occur about two times a week.
On February 22, 1996, at about 6:30 p.m., accused-appellant took his dinner in the
kitchen. At about 7:00 p.m., while he was already in his quarters and preparing to sleep,
Bermas arrived, armed with a bloodied bolo measuring about 1 1/2 feet long and told
accused-appellant that he (Bermas) had just killed Jorge to avenge the maltreatment he
received from Julio, Sr. Bermas warned accused-appellant not to shout, otherwise he will
also kill him. Petrified, accused-appellant kept silent. Bermas then brought accused-
appellant to the kitchen in the house of the Camachos where accused-appellant saw the
bloodied body of Jorge sprawled near the kitchen. Bermas called Julie three times, telling
her that her brother was calling for her but Julie at first ignored Bermas. Julie later relented
and went to the kitchen where Bermas grabbed her and threatened to kill her if she
shouted. Bermas tied the hands of Julie with a piece of cloth and placed a piece of cloth
around her face to prevent her from shouting.
Bermas, still armed with his bolo tucked on his waist and a knife on his hand, brought
accused-appellant and Julie outside the house. The three then trekked towards the
mountain. On the way, Bermas picked a bag containing food provisions and his and
accused-appellant’s clothings. Accused-appellant thought of escaping but could not
because Bermas was watching him. With the help of a flashlight brought by Bermas, the
three walked towards the mountain, with Julie walking ahead of accused-appellant and
Bermas. After walking for hours, they stopped by a tree to which Bermas tied Julie. At one
time, while Bermas and accused-appellant were scouring for water, Bermas kicked
accused-appellant and pushed him into a ten feet deep ravine. The right hand and foot of
accused-appellant sustained bruises. He likewise
44
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People vs. Baldogo
sustained a sprain on his foot. Bermas left accused-appellant and Julie after 1 1/2 days.
In the meantime, accused-appellant managed to climb out of the ravine and heard Julie
calling his name. Julie later told accused-appellant that before Bermas left, the latter told
her that he was going to kill accused-appellant.
Accused-appellant and Julie remained in the mountain after Bermas had left. At one time,
accused-appellant and Julie saw soldiers who were looking for her. Accused-appellant did
not reveal his and Julie’s location to the soldiers because he was afraid that he might be
killed. On February 25, 1996, accused-appellant untied Julie. He told her that he will set
her free as soon as his foot shall have healed.
On February 27, 1996, accused-appellant told Julie that she can go home already. He
ordered her to go down the mountain and proceed to Balsaham on her way back home.
Although his foot was still aching, accused-appellant went down from the mountain ahead
of Julie and proceeded to Balsaham. He then walked to Irawan where he took a tricycle to
the public market in the poblacion in Puerto Princesa City. He then took a passenger
jeepney and alighted at Brooke’s Point where he was arrested after one week for the
killing of Jorge and the kidnapping of Julie.
Accused-appellant maintained that he did not intend to hurt Julie or deprive her of her
liberty. He averred that during the entire period that he and Julie were in the mountain
before Bermas left him, he tried to protect her from Bermas. Accused-appellant asserted
that he wanted to bring Julie back to her parents after Bermas had left them and to
surrender but accused-appellant was afraid that Julio, Sr. might kill him.
IV. The Verdict of the Trial Court
After due proceedings, the trial court rendered its decision, the decretal portion of which
reads:
“WHEREFORE, foregoing premises considered, a Joint Judgment is hereby rendered in:
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People vs. Baldogo
A. CRIMINAL CASE NO. 12900—finding the accused Gonzalo Baldogo, alias Baguio,
guilty beyond reasonable doubt as principal of the crime of murder as defined and
penalized in Article 248 of the Revised Penal Code, as amended by Section 6 of Republic
Act No. 7659, and appreciating against him the specific aggravating circumstance of taking
advantage and use of superior strength, without any mitigating circumstance to offset the
same, and pursuant to the provisions of the second paragraph, No. 1, of Article 63 of the
Revised Penal Code, he is hereby sentenced to death in the manner prescribed by law; to
pay the heirs of the deceased Jorge Camacho;
1.
Actual and compensatory damages:
For expenses incurred for funeral and
other expenses incident to his death ............
P 45,000.00
2.
Moral damages ...............................................
100,000.00
3.
Civil indemnity for the death of the
victim, Jorge Camacho ...................................
50,000.00
or the aggregate amount of ............................

195,000.00
B. CRIMINAL CASE NO. 12903—finding the accused GONZALO BALDOGO, alias,
‘Baguio,’ guilty beyond reasonable doubt as principal of the crime of kidnapping and
serious illegal detention as defined and penalized in Article 267 of the Revised Penal
Code, as amended by Section 8 of Republic Act No. 7659, and there being no modifying
circumstance appreciated and pursuant to the provisions of the second paragraph, No. 2,
of Article 63 of the Revised Penal Code, and not being entitled to the benefits of the
Indeterminate Sentence Law, he is hereby sentenced to reclusion perpertua, with the
accessory penalties of civil interdiction for life, and of perpetual absolute disqualification; to
pay the offended party, Julie Camacho for physical suffering, mental anguish, fright,
serious anxiety and moral shock, moral damages of P100,000; and to pay the costs.
The case as against co-accused Edgar Bermas is ordered dismissed by reason of
extinction of criminal liability occasioned by his death pending conclusion of the
proceedings as against him.
SO ORDERED.”13
V. Assignment of Error
In his appeal brief, accused-appellant avers that:
_______________
13 Records, pp. 74-76.

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People vs. Baldogo
“I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME OF MURDER AND KIDNAPPING.
II
THE TRIAL COURT ERRED IN REJECTING ACCUSED-APPELLANT’S DEFENSE OF
DENIAL.
III
THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AGGRAVATING

CIRCUMSTANCE OF EVIDENT PREMEDITATION AND GENERIC AGGRAVATING
CIRCUMSTANCE OF TAKING ADVANTAGE OF SUPERIOR STRENGTH DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE THE SAME.
IV
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY UPON THE
ACCUSED-APPELLANT IN THE (SIC) CRIMINAL CASE #12900.”14
VI. Resolution of this Court
The first two assignments of errors being interrelated, the Court will delve into and resolve
the same simultaneously.
Accused-appellant avers that he had nothing to do with, and hence should not be claimed
for, the death of Jorge and the kidnapping and detention of Julie. Accused-appellant claims
that he was acting under duress because he was threatened by Bermas with death unless
he did what Bermas ordered him to do. Accused-appellant was even protective of Julie. He
insists that the latter was not a credible witness and her testimony is not entitled to
probative weight because she was merely coached into implicating him for the death of
Jorge and her kidnapping and detention by Bermas.
We find the contention of accused-appellant farcical. At the heart of the submission of
accused-appellant is the credibility of
_______________
14 Rollo, pp. 44-45.

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People vs. Baldogo
Julie, the 12-year old principal witness of the prosecution and the probative weight of her
testimony.
This Court has held in a catena of cases that the findings of facts of the trial court, its
calibration of the testimonial evidence of the parties, its assessment of the probative
weight of the collective evidence of the parties and its conclusions anchored on its findings
are accorded by the appellate court great respect, if not conclusive effect. The raison
d’etre of this principle is that this Court has to contend itself with the mute pages of the
original records in resolving the issues posed by the parties:
“x x x The record will not reveal those tell-tale signs that will affirm the truth or expose the
contrivance, like the angry flush of an insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a
ready reply. The record will not show if the eyes have darted in evasion or looked down in
confession or gazed steadily with a serenity that has nothing to distort or conceal. The
record will not show if tears were shed in anger, or in shame, or in remembered pain, or in
feigned innocence. Only the judge trying the case can see all these and on the basis of his
observations arrive at an informed and reasoned verdict.”15
In contrast, the trial court has the unique advantage of monitoring and observing at close
range the attitude, conduct and deportment of witnesses as they narrate their respective
testimonies before said court. Echoing a foreign court’s observation, this Court declared:
“Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a
court of last resort. She oft hides in nooks and crannies visible only to the mind’s eye of
the judge who tries the case. To him appears the furtive glance, the blush of conscious
shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness,
the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of
an oath, the carriage and mien. The brazen face of the liar, the glibness of the schooled
witness in reciting a lesson, or the itching overeagerness of the swift witness, as well as
the honest face of the truthful one, are alone seen by him.”16
_______________
15 People vs. Delovino, 247 SCRA 637, 647 (1995).

16 Ibid.
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People vs. Baldogo
The rule, however, is not iron clad. This Court has enumerated exceptions thereto, namely:
(a) when patent inconsistencies in the statements of witnesses are ignored by the trial
court; (b) when the conclusions arrived at are clearly unsupported by the evidence; (c)
when the trial court ignored, misunderstood, misinterpreted and/or misconstrued facts and
circumstances of substance which, if considered, will alter the outcome of the case.17 In
this case, the trial court found the youthful Julie credible and her testimony entitled to full
probative weight. Accused-appellant has not sufficiently demonstrated to this Court the
application of any of the aforestated exceptions.
The Court agrees with accused-appellant that the prosecution was burdened to prove his
guilt beyond reasonable doubt of the felonies for which he is charged. This Court has held
that accusation is not synonymous with guilt. It is incumbent on the prosecution to prove
the corpus delicti, more specifically, that the crimes charged had been committed and that
accused-appellant precisely committed the same. The prosecution must rely on the
strength of its own evidence and not on the weakness of the evidence of the accused.18
The reasonable standard rule which was adopted by the United States way back in 1978 is
a requirement and a safeguard, in the words of Mr. Justice Felix Frankfurter of the United
States Supreme Court, “of due process of law in the historic, procedural content of due
process.” The United States Supreme Court emphasized in Re: Winship 19 that in a
criminal prosecution, the accused has at stake interests of immense importance, both
because of the possibility that he may lose his liberty or even his life upon conviction and
because of the certainty that he would be stigmatized by the conviction.
In the cases at bar, the prosecution failed to adduce direct evidence to prove that accused-
appellant killed Jorge. However, the prosecution adduced indubitable proof that accused-
appellant con-
_______________
17 People v. Garcia, et al., 361 SCRA 598 (2001); People v. De los Santos, 314 SCRA 303
(1999).
18 People v. Dramayo, et al., 42 SCRA 59 (1971).
19 25 L.Ed. 368.
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People vs. Baldogo
spired with Bermas not only in killing Jorge but also in kidnapping and detaining Julie.
Article 8 of the Revised Penal Code provides that there is conspiracy if two or more
persons agree to commit a felony and decide to commit it. Conspiracy may be proved by
direct evidence or circumstantial evidence. Conspiracy may be inferred from the acts of
the accused, before, during and after the commission of a felony pointing to a joint
purpose and design and community of intent.20 It is not required that there be an
agreement for an appreciable period prior to the commission of the offense, all the
conspirators had the same purpose and were united in its execution.21 In a conspiracy,
the act of one is the act of all.22 All the accused are criminally liable as co-principals
regardless of the degree of their participation.23 For a conspirator to be criminally liable of
murder or homicide, it is not necessary that he actually attacks or kills the victim. As long
as all the conspirators performed specific acts with such closeness and coordination as to
unmistakably indicate a common purpose or design in bringing about the death of the
victim, all the conspirators are criminally liable for the death of said victim.24
In these cases, the prosecution adduced conclusive proof that ac-cused-appellant indeed
conspired with Bermas to kill Jorge and kidnap Julie as shown by the following cogent
facts and circumstances:
1. When Julie responded to the repeated calls of Bermas for her to go to the kitchen on his
pretext that Jorge wanted to talk to her, Julie saw accused-appellant and Bermas, each
armed with a bolo, about half a meter from Jorge who was sprawled on the ground,
bloodied all over.25
2. Even as Julie fled from the kitchen for dear life to the sala of their house, accused-
appellant and Bermas ran after her. Accused-
_______________
20 People v. Landicho, et al., 258 SCRA 1 (1996).

21 People v. Sequino, 264 SCRA 79 (1996).
22 People v. Lopez, et al., 249 SCRA 610 (1995).
23 People v. Cogonon, 262 SCRA 693 (1996).
24 People v. Abendan, 360 SCRA 106 (2001).
25 TSN, Camacho, pp. 8-13, July 25, 1996.
50
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People vs. Baldogo
appellant tied the hands of Julie with a piece of cloth and inserted a piece of cloth into her
mouth to prevent her from shouting for help from their neighbors.26
3. With a flashlight on hand, accused-appellant then exited from the house, dragged Julie
towards the direction of the mountain while Bermas remained in the house to rummage
through the things in the bedroom of her brothers. Accused-appellant stopped for a while
for Bermas to join him.27
4. Before the killing of Jorge, accused-appellant and Bermas placed their clothing and
personal belongings in a bag and buried the bag under a tree, and when accused-
appellant and Bermas were on their way to the mountain after killing Jorge, they excavated
and retrieved the bag from under the tree.28
5. Accused-appellant and Bermas brought with them to the mountain a kettle filled with raw
rice which they cooked in the forest.29
6. When Julie saw uniformed men who were looking for her and wanted to shout for help,
accused-appellant covered her mouth to prevent her from shouting for help.30
7. Even after Bermas had left accused-appellant and Julie in the forest in the afternoon of
February 23, 1991, accused-appellant continued detaining Julie in the forest until February
27, 1996, when he abandoned Julie in the forest to fend for herself.
The evidence of the prosecution was even buttressed by the judicial admissions of
accused-appellant, thus:
1. After releasing Julie on February 27, 1996, accused-appellant proceeded to Puerto
Princesa City and on to Brooke’s Point where he was arrested a week after said date.31
_______________
26 Id., at 13-14.
27 Id., at 15-17.
28 Id., at 45-46.
29 Id., at 20-21.
30 Id., at 25-26.
31 TSN, Baldogo, September 17, 1996, pp. 19-20.
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2. Both accused-appellant and Bermas had a motive to kill Jorge and kidnap Julie, that is,
to avenge the repeated maltreatment and physical abuse on them by Julio, Sr., the father
of Jorge and Julie.32
The flight of both accused-appellant and Bermas from the house of Julio, Sr. to the
mountain where they found refuge after killing Jorge, and their motive to kill Jorge, Jr. and
kidnap and detain Julie in conjunto constitute potent evidence of their confabulation and of
their guilt for the death of Jorge and kidnapping and detention of Julie.33
The bare denial by accused-appellant of criminal liability for the crimes charged is
inherently weak. Accused-appellant’s claims that he even protected Julie from harm and
that he was forced by Bermas to kidnap Julie are of the same genre.34 The bare denial by
accused-appellant of the crimes charged constitutes self-serving negative evidence which
cannot prevail over the categorical and positive testimony of Julie and her unequivocal
identification of accused-appellant as one of the perpetrators of the crimes charged.35
Accused-appellant’s insistence that he was forced by Bermas, under pain of death, to
cooperate with him in killing Jorge and kidnapping and detaining Julie is merely an
afterthought. For duress to exempt accused-appellant of the crimes charged, “the fear
must be well-founded, and immediate and actual damages of death or great bodily harm
must be present and the compulsion must be of such a character as to leave no
opportunity to accused for escape or interpose self-defense in equal combat.”36 Accused-
appellant is burdened to prove by clear and convincing evidence his defense of duress. He
should not be shielded from prosecution for crime by merely setting up a fear from, or
because of, a threat of a third person.”37 As Lord Dennan declared in Reg. vs.
_______________
32 TSN, Baldogo, September 19, 1996, pp. 17-19.

33 People v. De Mesa, 354 SCRA 397 (2001).
34 People v. Salvatierra, 257 SCRA 489 (1996).
35 People v. Garcia, 361 SCRA 598 (2001).
36 Wharton, Criminal Law, Vol. 1, pp. 514-515.
37 State v. Nargashian, 106 American State Reports, 715, 58 Atl. 953.
52
52
People vs. Baldogo
Tyler,38 “No man from fear of circumstances to himself has the right to make himself a
party to committing mischief on mankind.” In these cases, in light of the testimony of Julie
and the inculpatory acts of accused-appellant no less, there is no doubt that the latter
acted in concert with Bermas and is himself a principal by direct participation. That
accused-appellant abandoned Julie after six days of captivity does not lessen his criminal
culpability much less exempt him from criminal liability for the killing of Jorge and the
kidnapping and detention of Julie.
Accused-appellant failed to prove his claim that Julie was coached on how and what to
testify on. Indeed, when asked to identify the person or persons who coached Julie,
accused-appellant failed to mention any person:
“Q
You heard the testimony of Julie Camacho that she is pointing to you to have kidnapped
her and participated in the killing of her brother Jorge, what can you say to that?
A
That is not true.
Q
You donot (sic) know the reason why? In fact you treated her well, why she pointed you as
one of the authors of the crime?
A
Maybe somebody coached her.
Q
Who do you think coached her?
A
I cannot mention the name but I am sure that somebody coached her.”39
It bears stressing that when she testified, Julie was merely 12 years old. The Court has
repeatedly held that the testimony of a minor of tender age and of sound mind is likewise
to be more correct and truthful than that of an older person so that once it is established
that they have fully understood the character and nature of an oath, their testimony should
be given full credence and probative weight.40 Julie had no ill motive to tergiversate the
_______________
38 8 Car. & P. (Eng) 616 (1838).

39 TSN, Baldogo, September 19, 1996, p. 15.
40 Marco v. Court of Appeals, et al., 273 SCRA 276 (1997).
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People vs. Baldogo
truth and falsely testify against accused-appellant. Hence, her testimony must be accorded
full probative weight.41
VII. Crimes Committed by Accused-Appellant
The Court shall now delve into and resolve the issue of what crime or crimes accused-
appellant is guilty of. The trial court convicted accused-appellant of two separate crimes
and not the special complex crime of kidnapping with murder or homicide under the last
paragraph of Article 267 of the Revised Penal Code as amended by Republic Act 7659.42
The trial court is correct. There is no evidence that Jorge was kidnapped or detained first
by accused-appellant and Bermas before he was killed. The last paragraph of Article 267
of the Code is applicable only if kidnapping or serious
_______________
41 People v. Sulplito, 314 SCRA 493 (2001).
42 The crimes were committed after the effectivity of Republic Act 7659:
Article 267. Kidnapping and serious illegal detention.—Any private individual who shall
kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the
penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is
subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.
54
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People vs. Baldogo
illegal detention is committed and the victim is killed or dies as a consequence of the
kidnapping or serious illegal detention.
Re: Criminal Case No. 12900
(For Murder)
The trial court convicted accused-appellant of murder with the qualifying aggravating
circumstance of evident premeditation, based on the following findings and ratiocination:
“The slaying of Jorge Camacho took place about 8:30 o’clock in the evening of February
22, 1996. It was carried out after the accused have been through tidying-up the kitchen,
the dining room and the kitchen wares the family of the Camachos used in their early
dinner before 7:00 o’clock that evening. But even before dinner, the accused have already
made preparations for their flight, shown by the fact that they already had their clothes,
other personal belongings and food provisions stacked in their respective traveling bags
then placed in a spot where they can just pick them up as they take to flight.”43
The trial court also appreciated against accused-appellant the qualifying aggravating
circumstance of abuse of superior strength with the following disquisition:
“The victim, Jorge Camacho, is a lad only 14 years of age and unarmed when brutally
slain. On the contrary, both accused are of age and confirmed convicted felons. Any one of
them would already be superior in strength and disposition to their hapless and innocent
victim. How much more with the combined strength and force of the two of them.
Their choice of the object of their brutality is indicative of their unmistakable intent of taking
advantage of their superior strength. The likely object of their resentment, for purported
cruelty to them, is Prison Guard Julio Camacho, father of the victim. They could have
directed their criminal intent on Julio Camacho himself. But Julio Camacho could be a
match in strength and agility to any of them or even to the combined force of both of them.
So, to insure execution of their criminal acts against the deceased who is very much
inferior in physical combat even only to any one of them.”44
_______________
43 Rollo, pp. 70-71.

44 Id., at 71-72.
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People vs. Baldogo
While the Court agrees that accused-appellant is guilty of murder, it does not agree with
the rulings of the trial court that the crime was qualified by evident premeditation and
abuse of superior strength. To warrant a finding of evident premeditation, the prosecution
must establish the confluence of the following requisites:
“x x x (a) the time when the offender determined to commit the crime; (b) an act manifestly
indicating that the offender clung to his determination; and (c) a sufficient interval of time
between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act. x x x”45
The qualifying aggravating circumstance of evident premeditation, like any other qualifying
circumstance, must be proved with certainty as the crime itself. A finding of evident
premeditation cannot be based solely on mere lapse of time from the time the malefactor
has decided to commit a felony up to the time that he actually commits it.46 The
prosecution must adduce clear and convincing evidence as to when and how the felony
was planned and prepared before it was effected.47 The prosecution is burdened to prove
overt acts that after deciding to commit the felony, the felon clung to his determination to
commit the crime. The law does not prescribe a time frame that must elapse from the time
the felon has decided to commit a felony up to the time that he commits it. Each case must
be resolved on the basis of the extant factual milieu.
In this case, the prosecution failed to prove evident premeditation. The barefaced fact that
accused-appellant and Bermas hid the bag containing their clothing under a tree located
about a kilometer or so from the house of Julio, Sr. does not constitute clear evidence that
they decided to kill Jorge and kidnap Julie. It is possible that they hid their clothing therein
preparatory to escaping from the colony. There is no evidence establishing when accused-
appellant and Bermas hid the bag under the tree. The prosecution
_______________
45 People v. Sison, 312 SCRA 792, 804 (1999).

46 People v. Piamonte, 303 SCRA 577 (1999); People v. Deopante, 263 SCRA 691 1996).
47 People v. Patrolla, Jr., 254 SCRA 467 (1996).
56
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People vs. Baldogo
even failed to adduce any evidence of overt acts on the part of accused-appellant, nor did
it present evidence as to when and how he and Bermas planned and prepared to kill Jorge
and kidnap Julie and to prove that the two felons since then clung to their determination to
commit the said crimes. Although accused-appellant and Bermas were armed with bolos,
there is no evidence that they took advantage of their numerical superiority and weapons
to kill Jorge. Hence, abuse of superior strength cannot be deemed to have attended the
killing of Jorge.48 Nighttime cannot likewise be appreciated as an aggravating
circumstance because there is no evidence that accused-appellant and Bermas purposely
sought nighttime to facilitate the killing or to insure its execution or accomplishment or to
evade their arrest.49 Neither is dwelling aggravating because there is no evidence that
Jorge was killed in their house or taken from their house and killed outside the said house.
In light of the evidence on record, it is clear that the killing of Jorge was qualified by
treachery. When Jorge was killed by accused-appellant and Bermas, he was barely 14
years old. The Court has previously held that the killing of minor children who by reason of
their tender years could not be expected to put up a defense is attended by treachery.50
Since treachery attended the killing, abuse of superior strength is absorbed by said
circumstance.51
The penalty for murder under Article 248 of the Revised Penal Code as amended by
Republic Act 7659 is reclusion perpetua to death. There being no aggravating or mitigating
circumstances in the commission of the crime, accused-appellant should be meted the
penalty of reclusion perpetua.52 Conformably with current jurisprudence, accused-
appellant is hereby ordered to pay to the heirs of the victim civil indemnity in the amount of
P50,000.00 and the amount of P50,000.00 by way of moral damages. Although Julio, Sr.
testified that he spent P45,000.00 during the wake and burial of the victim, the prosecution
failed to adduce any receipts to
_______________
48 People v. Joyno, 304 SCRA 655 (1999).

49 People v. Lumacang, et al., 324 SCRA 254 (2000).
50 People v. Abuyen, 213 SCRA 569 (1992).
51 People v. Cabarrubias, 223 SCRA 363 (1993).
52 Article 63, Revised Penal Code.
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People vs. Baldogo
prove the same. Hence, the award of P45,000.00 by way of actual damages has no factual
basis and should thus be deleted.
Re: Criminal Case No. 12903 (For Kidnapping)
The trial court convicted accused-appellant of kidnapping under Article 267 of the Revised
Penal Code, as amended, punishable by reclusion perpetua to death. The trial court is
correct.
Article 267 of the Revised Penal Code was taken from Article 267 of the Spanish Penal
Code, which reads:
“Art. 267. Detención ilegal grave.—Será castigado con la pena de reclusión temporal el
particular que secuestrare o encerrare a otro o en cualquier forma le privare de libertad.”
“Secuestrare” means sequestration.53 To sequester is to separate for a special purpose,
remove or set apart, withdraw from circulation.54 It also means to lock-up or imprison.
“Encerrare” is a broader concept than secuestrare.55 Encerrare includes not only the
imprisonment of a person but also the deprivation of his liberty in whatever form and for
whatever length of time. As explained by Groizard, “encerrar” es meter á una persona ó
cosy en parte de donde no pueda salir”; detener o arrestar, poner en prisión, privar de la
libertad á alguno.” He continued that “la detención, la prisión, la privación de la libertad de
una persona, en cualquier forma y por cualquier medio ó por cualquier tiempo en virtud de
la cual resulte interrumpido el libre ejercicio de su actividad.”56 On his commentary on the
Spanish Penal Code, Cuello Calon says that the law “preve dos modalidades de privacion
de libertad, el encierro y la detencion. Encerrar significa recluir a una persona en un lugar
de donde no puede salir, detener a una persona equivale a impedirle o restringirle la
libertad de movimiento. Para que el sujeto pasivo no
_______________
53 Velasquez, Revised Spanish-English Dictionary (Revised, 1959).

54 Third New International Dictionary, p. 2071.
55 People v. Santos, 283 SCRA 443 (1997).
56 Groizard, El Codigo Penal de 1870, Tomo V, pp. 639-640, cited in People vs.
Marasigan, et al., 55 O.G. 8297 (1959).
58
58
People vs. Baldogo
quiera permanecer en el sitio donde esta recluido, pues no es posible llamar encierro ni
detencion a la estancia de un a persona en lugar del que no quiere salir.”57
In this case, Julie, a minor, was not locked up. However, she was seized and taken from
her house through force and dragged to the mountain. Since then, she was restrained of
her liberty by and kept under the control of accused-appellant and Bermas. She was
prevented from going back home for a period of about six days. Patently then, accused-
appellant is guilty of kidnapping and illegally detaining Julie. The crime was aggravated by
dwelling because Julie was taken from their house by accused-appellant and Bermas.
However, dwelling was not alleged in the Information as an aggravating circumstance as
required by Section 9, Rule 110 of the Revised Rules on Criminal Procedure which reads:
“SEC. 9. Designation of the offense.—The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.”58
Even if dwelling is proven but is not alleged in the Information as an aggravating
circumstance, the same will not serve to aggravate the penalty.59
Quasi-recidivism as defined in Article 160 of the Revised Penal Code60 is alleged in both
Informations. Accused-appellant is alleged
_______________
57 Derecho Penal, Novena Edicion, Tomo II, pp. 700-701.

58 People v. Caber, Sr., 346 SCRA 166 (2000); People v. Berzuela, 341 SCRA 46 (2000).
59 People v. Gallego, 338 SCRA 21 (2000).
60 ART. 160. Commission of another crime during service of penalty imposed for another
previous offense.—Penalty.—Besides the provisions of rule 5 of article 62, any person who
shall commit a felony after having been convicted by final judgment, before beginning to
serve such sentence, or while serving the same, shall be punished by the maximum period
of the penalty prescribed by law for the new felony.
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People vs. Baldogo
to have committed murder and kidnapping while serving sentence in the penal colony by
final judgment for the crime of homicide. Quasi-recidivism is a special aggravating
circumstance.61 The prosecution is burdened to prove the said circumstance by the same
quantum of evidence as the crime itself. In the present case, to prove quasi-recidivism, the
prosecution was burdened to adduce in evidence a certified copy of the judgment
convicting accused-appellant of homicide and to prove that the said judgment had become
final and executory.62 The raison d’etre is that:
“x x x Since the accused-appellant entered a plea of not guilty to such information, there
was a joinder of issues not only as to his guilt or innocence, but also as to the presence or
absence of the modifying circumstances so alleged. The prosecution was thus burdened
to establish the guilt of the accused beyond reasonable doubt and the existence of the
modifying circumstances. It was then grave error for the trial court to appreciate against
the accused-appellant the aggravating circumstance of recidivism simply because of his
failure to object to the prosecution’s omission as mentioned earlier.”63
In this case, the prosecution adduced in evidence merely the excerpt of the prison record
of accused-appellant showing that he was convicted of homicide in Criminal Case No.
10357-R by the Regional Trial Court of Baguio (Branch 6) with a penalty of from six years
and one day as minimum to fourteen years, eight months and one day as maximum and
that the sentence of accused-appellant commenced on November 19, 1992 and that the
minimum term of the penalty was to expire on August 16, 1997.64 The
_______________
Any convict of the class referred to in this article, who is not a habitual criminal, shall be
pardoned at the age of seventy years if he shall have already served out his original
sentence, or when he shall complete it after reaching said age, unless by reason of his
conduct or other circumstances he shall not be worthy of such clemency.
61 Quasi-recidivism is a special aggravating circumstance and cannot be offset by a
generic mitigating circumstance. (People v. Pereto, 111 Phil. 943).
62 People v. Gaorana, 289 SCRA 665 (1998).
63 People v. Compendio, Jr., 258 SCRA 254, 268 (1996).
64 Exhibit “D”.
60
60
People vs. Baldogo
excerpt of the prison record of accused-appellant is not the best evidence under Section 3,
Rule 130 of the Revised Rules of Court65 to prove the judgment of the Regional Trial
Court of Baguio City and to prove that said judgment had become final and executory.
Said excerpt is merely secondary or substitutionary evidence which is inadmissible absent
proof that the original of the judgment had been lost or destroyed or that the same cannot
be produced without the fault of the prosecution. The barefaced fact that accused-
appellant was detained in the penal colony does not prove the fact that final judgment for
homicide has been rendered against him.66 There being no modifying circumstances in
the commission of the crime, accused-appellant should be meted the penalty of reclusion
perpetua conformably with Article 63 of the Revised Penal Code.67
VIII. Civil Liability of Accused-Appellant for Kidnapping and Serious Illegal Detention
The trial court awarded the amount of P100,000.00 to Julie by way of moral damages for
the felony of kidnapping with serious illegal detention, predicated on her having suffered
serious anxiety and fright when she was kidnapped and dragged to the mountain where
she was detained for several days. The trial court is correct.
_______________
65 Original document must be produced; exceptions.-When the subject of inquiry is the

contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court without
bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole;
(d) When the original is a public record in the custody of a public office or is recorded in a
public office.
66 People v. Gaorana, supra.
67 Vide note 70 infra.
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Julie is entitled to moral damages.68 In light of the factual milieu in this case, the amount
is reasonable. Julie is also entitled to exemplary damages in the amount of P25,000.00.69
IN LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court is hereby
AFFIRMED WITH MODIFICATION:
1. In Criminal Case No. 12900, accused-appellant is found guilty beyond reasonable doubt
of murder defined in Article 248 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua, there being no modifying circumstances
attendant to the commission of the felony. Accused-appellant is hereby ordered to pay to
the heirs of the victim the amount of P50,000.00 as civil indemnity and the amount of
P50,000.00 as moral damages. The award of P45,000.00 as actual damages is deleted.
2. In Criminal Case No. 12903, accused-appellant is found guilty beyond reasonable doubt
of kidnapping with serious illegal detention defined in Article 267 of the Revised Penal
Code, as amended by Republic Act 7659, and there being no modifying circumstances
attendant to the commission of the felony is hereby meted the penalty of reclusion
perpetua. Accused-appellant is hereby ordered to pay moral damages to the victim, Julie
Camacho, in the amount of P100,000.00 and exemplary damages in the amount of
P25,000.00.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales and Azcuna, JJ.,
concur.
Bellosillo, J., On leave.
Judgment affirmed with modification.
_______________
68 Article 2219, paragraph 5, New Civil Code; People v. Garcia, G.R. No. 133489 and
143970, January 15, 2002, 373 SCRA 134.
69 People v. Catubig, 363 SCRA 621 (2000).
62
62
People vs. Lizada
Notes.—The crime of kidnapping is committed by depriving the victim of liberty whether he
is placed in an enclosure or simply restrained from going home. (People vs. Pavillare, 329
SCRA 684 [2000])
The amendment effected by R.A. No. 7659 to Art. 267 of the Revised Penal Code
introduced the concept of “special complex crime” of kidnapping with murder or homicide,
eliminating the distinction drawn between those where the killing of the kidnapped victim
was purposely sought by the accused, and those where the killing of the victim was not
deliberately resorted to but was merely an afterthought. (People vs. Rimorin, 332 SCRA
178 [2000])
IX. People vs. Aposaga
G.R. No. 127153. October 23, 2003.*
PEOPLE OF THE PHILIPPINES, appellee, vs. SATUR APOSAGA y GUTIEREZ,
appellant.
Criminal Law; Murder; Qualifying Circumstances; Evident Premeditation; The essence of
premeditation is that the execution of the criminal act must be preceded by cool thought
and reflection upon the resolution to carry out the criminal intent during an interval of time
sufficient to arrive at a calm judgment.—For evident premeditation to be appreciated as a
qualifying circumstance, the prosecution must clearly establish the following: 1. The time
when the offender determined to commit the crime; 2. An act manifestly indicating that the
culprit has clung to his determination; and 3. A sufficient lapse of time between the
determination and execution, to
_______________
19 People v. Catubig, 363 SCRA 621 (2001).

* FIRST DIVISION.
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People vs. Aposaga
allow him to reflect upon the consequences of his act and to allow his conscience to
overcome the resolution of his will. The essence of premeditation is that the execution of
the criminal act must be preceded by cool thought and reflection upon the resolution to
carry out the criminal intent during an interval of time sufficient to arrive at a calm
judgment. There must be evidence showing that the accused meditated and reflected on
his intention between the time when the crime was conceived by him and the time it was
actually perpetrated. The premeditation must be evident and not merely suspected.
Same; Same; Same; Same; It is settled that mere existence of ill feelings or grudges
between the parties is not sufficient to sustain a conclusion of premeditated killing—it is
not sufficient that there is premeditation; it must be evident.—There is nothing in
appellant’s query, “What position would you prefer if you were to die?” which would clearly
indicate that he already conceived of a plan to kill the deceased. It must be noted that the
query was directed to Mugat and the name of the deceased was never mentioned during
their conversation. Moreover, even if appellant and the deceased had an argument a
month before the night of the stabbing incident, it is settled that mere existence of ill
feelings or grudges between the parties is not sufficient to sustain a conclusion of
premeditated killing. Since the time as to when appellant hatched his plan to kill the
deceased has not been established by the prosecution, it cannot also be deduced as to
whether a sufficient interval of time had elapsed from the moment appellant conceived of
his plan to kill the deceased up to the time of the execution of thereof to allow appellant to
reflect on the consequences of his act. Consequently, evident premeditation cannot be
considered to exist. To repeat: It is not sufficient that there is premeditation; it must be
evident.
Same; Same; Same; Treachery; The essence of treachery is that the attack is deliberate
and without warning—done in a swift and unexpected manner, affording the hapless,
unarmed and unsuspecting victim no chance to resist or escape.—Appellant’s contention
has merit. It is the contention of the prosecution that the deceased and appellant had a
misunderstanding a month before the stabbing incident. At past 8:00 o’clock in the evening
of the incident, he declined, allegedly in anger, the invitation of the deceased to join them
for a drink. Under the aforesaid circumstances, the deceased should have been sufficiently
forewarned of the hostile attitude of appellant. Although the deceased may have been
taken by surprise since appellant stabbed him from behind, just when appellant appears to
have been placated by Alipoon, treachery may not be appreciated as a qualifying
circumstance. Treachery does not connote the element of surprise alone. The essence of
treachery is that the attack is deliberate and without warning—done in a swift and
unexpected manner, affording the hapless, unarmed and unsuspecting victim no chance to
resist or escape. It must be shown that the offender employed means, methods or
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People vs. Aposaga
forms which tended directly to ensure the execution of his criminal objective without risk to
himself arising from the defense which the offended party might make.
APPEAL from a decision of the Regional Trial Court of Himamaylan, Negros Occidental,
Br. 55.

Public Attorney’s Office for accused-appellant.
AZCUNA, J.:
On appeal before us is a decision rendered by the Regional Trial Court (RTC) of

Himamaylan, Negros Occidental, Branch 55, meting the penalty of reclusion perpetua on
Satur Aposaga y Gutierrez upon finding him guilty of the crime of murder.
Appellant Satur Aposaga y Gutierrez1 was charged in an information which reads:
“That on or about the 28th day of March 1992, in the Municipality of Hinigaran, Province of
Negros Occidental Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with bladed weapon and small ax, with evident
premeditation, treachery and with intent to kill, did then and there, willfully, unlawfully and
feloniously attack, assault and stab one MEDEL SIGUEZA alias “OSOY” thereby inflicting
upon him injuries which caused, his death.
Contrary to law.”2
Appellant pleaded not guilty on arraignment. Trial ensued.
Jeffrey Alipoon testified that on March 28, 1992, at around 7:00 o’clock in the evening, he
was with Marlon Tad-y, Wilbert Vasquez, and the deceased Medel Sigueza drinking a
small bottle of whiskey at the house of Friday Magalona in Burgos Street, Hinigaran,
Negros Occidental. After an hour, the deceased wanted to go home. The group went to
accompany the deceased home when they chanced upon two persons named Windy and
Rey who invited them to have another round of drinks. The group were already
_______________
1 Appellant identified himself before the trial court as Joffran Aposaga alias “Satur.” TSN,
August 23, 1993, pp. 3-4.
2 Records, p. 26.
72
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People vs. Aposaga
drinking beer at Foodtastic restaurant near an emergency hospital when appellant
happened to pass by. The deceased invited him to join them but appellant angrily declined,
saying, “I will not drink, I will go home.”3 At around 11:00 o’clock in the evening, the group
started on their way home when appellant suddenly appeared from behind a mango tree.
Appellant, who was carrying an axe in his right hand and a long pointed instrument in his
left, shouted at the deceased to come near him. As appellant advanced towards the group,
Alipoon tried to pacify appellant and block his path. When Alipoon placed his hand on
appellant’s shoulder, appellant brushed away his hand. Undeterred, Alipoon again placed
his hand on appellant’s shoulder and placated him saying, “We were just drinking on the
same glass, let’s forget this and settle this tomorrow.” Appellant answered “Yes,” but as
soon as Jeffrey turned to leave, appellant rushed towards the deceased shouting, “You
son of a bitch!” Alipoon, who told the deceased to run, noticed appellant raise his left hand
which was holding a long pointed instrument. Moments later, Alipoon heard a thud as the
two men grappled with each other to wrest control of the weapons held by appellant.
Thereafter, the deceased ran towards the house of a certain Peleng Mugat at Sitio Boling-
Boling while appellant also ran in the same direction.4 Alipoon, on the other hand,
accompanied by Wilbert and Marlon, proceeded to the house of the father of the
deceased, Tio Manuel, located twenty meters away from the place of the incident. After
reporting the incident to Tio Manuel, Alipoon and his companions, together with the father
of the deceased, headed back to the place of the incident, equipped with a flashlight.
When they reached the place, they found the deceased in a pool of blood, lying face up.
They brought the deceased to the emergency hospital in Hinigaran and later had him
transferred to the Riverside Hospital in Bacolod City where the deceased expired.5
Marlon Tad-y testified that at around 7:00 o’clock on the evening of March 28, 1992, he
was with Jeffrey Alipoon, Wilbert and the deceased, Medel Sigueza, drinking in the house
of Friday Magalona at Burgos Street, Hinigaran, Negros Occidental. At around 8:00 o’clock
in the evening, the deceased wanted to leave so the other men volunteered to accompany
him home. As the group
_______________
3 TSN, October 15, 1992, p. 7.

4 TSN, October 15, 1992, pp. 8-11.
5 TSN, October 15, 1992, pp. 11-14.
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People vs. Aposaga
passed by Farmer’s Market, they met Rey David and Windy who were invited by the
deceased for a drink. They proceeded to Foodtastic, another drinking place. Tad-y left the
others to go to the emergency clinic of Hinigaran but returned to Foodtastic after thirty
minutes. He and the rest of the group stayed there until 11:00 o’clock in the evening after
which the deceased coaxed his friends that it was time to go home. The group again
volunteered to walk the deceased home.6 While they were walking, appellant suddenly
appeared from behind a mango tree. He had a sharp pointed instrument in his left hand
while his right hand was holding an axe. Appellant shouted, “Osoy!” Jeffrey Alipoon tried to
calm appellant by saying, “We are only one glass in drinking, we will settle this tomorrow.”
As Alipoon placed his hand on appellant’s shoulder, Tad-y and Wilbert continued to walk
the deceased home, with the deceased walking a few paces ahead of Tad-y. Suddenly,
appellant rushed towards them and, raising his left hand, stabbed the deceased at the
back. Tad-y fell into a canal, gripped with fear since that was the first time that he had
witnessed such an incident. When he got up, he saw appellant and the deceased running
away.7
Jeffrey Alipoon, who was left behind, suggested that they go to the house of Manuel
Sigueza, father of the deceased. After reporting the incident to Manuel Sigueza, the group,
together with Manuel and Wilbert immediately returned to the scene of the incident. They
found the deceased lying in a pool of blood so they brought him to an emergency clinic in
Hinigaran, Negros Occidental. While they were carrying the deceased, Marlon lost his
slippers. From Hinigaran, the deceased was brought to Bacolod City where he later
expired.8
A post mortem examination conducted by Dr. Francisco Aycayno, the rural health
physician of Hinigaran, Negros Occidental, revealed the following findings:
1. stab wound left chest 1st interspace about 2 inches long 1 1/2 lateral the sternum
penetrating and lacerating the big vessels of the heart.
2. stab wound left chest 6th interspace 1 1/2 inches below left nipple penetrating hitting the
left ventricle of the heart.
_______________
6 TSN, December 3, 1992, pp. 3-9.

7 TSN, December 3, 1992, pp. 9-13.
8 TSN, December 3, 1992, pp. 13-16.
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People vs. Aposaga
3. stab wound right scapular area 1 1/2 inches long back about 1 1/2 inches deep.
4. stab wound right mid-thigh penetrating about 3/4 inches long 2 inches deep.
5. Abrasion right chest “dot-like” 1/4 inch deep.
6. Abrasion right elbow.
7. Abrasion left Medial Maleolus.9
Dr. Aycayno said that the death of the deceased was due to “cardio pulmonary arrest
secondary [to] hypovolemic shock due to stab wounds in the chest.” He opined that the
wound which could have possibly caused the death of the victim was the stab wound on
the left chest below the left nipple which penetrated the left ventricle of the heart.10
SPO1 Lea Belardo, a member of the Philippine National Police (PNP) and a resident of
Hinigaran, Negros Occidental testified that on March 28, 1992 at about 11:00 o’clock in the
evening, she was awakened by a shout asking for help near her residence. When she
came out from her house, she saw two victims who were rushed to the Hinigaran
Emergency Clinic. Belardo herself went to the Hinigaran Emergency Clinic but when she
arrived, the two victims were already rushed to Bacolod City for further medical
attention.11 Belardo then went to the place of the incident near the Farmer’s Market to
conduct an investigation. She was able to recover a bloodstained fan knife, six pairs of
slippers, an axe and a bolo. One of the slippers recovered bore the name of Marlon Tad-
y.12
Another witness for the prosecution, Delilah Mugat, testified that she knows appellant
Satur Aposaga. On March 28, 1992 at around 8:00 o’clock in the evening, Mugat was
inside a store when appellant came in. Appellant asked Mugat what is her choice of
position should she die. Mugat replied that she would prefer to die lying face up. According
to Mugat, appellant commented that he would prefer to die lying face down “so that he can
return.” He then went out and later came back to the store to borrow a flashlight. Appellant,
together with someone else, proceeded to Sto.
_______________
9 Exhibit “J”, Records, p. 9.

10 TSN, March 5, 1993, pp. 7-8.
11 TSN, January 6, 1993, pp. 6-7.
12 TSN, January 6, 1993, pp. 17-19.
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People vs. Aposaga
Rosario Subdivision. Appellant then came back to the store to return the flashlight. At
11:00 o’clock in the evening, Mugat again saw appellant who was now carrying an axe.
Mugat testified that more than a month before the stabbing incident on March 28, 1992,
appellant and the victim had a quarrel and their conflict had never been settled.13
Manuel Sigueza, the father of the deceased, testified that on March 28, 1992, at around
10:30 o’clock in the evening, he was in his house located at Sto. Rosario Subdivision,
Hinigaran, Negros Occidental, when he heard three men calling him. As soon as he went
out of his house, Marlon Tad-y, Jeffrey Alipoon and Wilbert Vasquez told him that they,
including the deceased, were ganged up at the Farmer’s Market. The group, together with
Manuel Sigueza, then hurriedly proceeded to the place of the incident and found the
deceased lying face down.14 Manuel and someone else carried the deceased. Together
with Jeffrey Alipoon and Reynaldo Hamon, they brought the deceased to the Riverside
Hospital in Bacolod City. The deceased expired thirty minutes after having been brought to
the emergency room.15 Manuel testified that when he brought the deceased to Dr. Pablo
O. Torre, Sr. Memorial Hospital, he spent P1,077.75.16 He also spent P10,000 for the
funeral services17 and another P10,000 for the construction of a tomb.18 When asked if
he knew whether the deceased had any enemy, Manuel said that appellant and the
deceased quarreled twice. The last time that the deceased and appellant quarreled was
about 1 to 1 1/2 months before the night of the stabbing incident. Said quarrel had never
been settled between the two.19
Appellant, on the other hand, offers the following version of the incident:
Appellant knew the deceased because they resided in the same place in Hinigaran,
Negros Occidental. On March 28, 1992, he went to his Uncle Siano’s house at 6:30 o’clock
in the evening and stayed there until 9:00 o’clock in the evening, after which he
_______________
13 TSN, January 6, 1993, pp. 4-8.

14 TSN, February 4, 1993, pp. 3-5.
15 TSN, February 4, 1993, pp. 5-6.
16 Exhibit “I”, Records, p. 120.
17 Exhibit “K”, Records, p. 121.
18 Exhibit “L”, Records, p. 122.
19 TSN, February 4, 1993, pp. 12-13.
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People vs. Aposaga
headed home. At around 11:00 o’clock in the evening, appellant asked permission from his
mother to buy cigarettes at Farmer’s market which was located near their house. While
walking towards Farmer’s market, he met four persons, namely: Medel Sigueza, Jeffrey
Alipoon,20 Marlon Tad-y and Vasquez. The four men then asked him, “Part, where are you
going?” Appellant told them that he was going to buy some cigarettes but one of the men
said, “You seem to be smart (tigas).” The deceased then stabbed appellant, hitting the
latter on the left side of the body. Appellant asked the deceased what was his fault but the
deceased stabbed him again. Fortunately, appellant was able to parry the blow and push
the deceased.21 Tad-y and Alipoon then held appellant’s shoulders but he elbowed one of
them and boxed the other with his right hand. The deceased again tried to stab appellant
but the latter was able to hold the hand of the deceased. When Alipoon tried to stab
appellant, the latter parried the blow causing Alipoon to stab the deceased instead.
Appellant then pushed the deceased and ran home.22
Appellant sought help from his neighbor, Lando, who woke up appellant’s cousin, George.
The two men brought him to Hinigaran Emergency Clinic located fifty meters away from
his house, for treatment. When he was about to be boarded in the ambulance which would
bring him to Bacolod City for further medical attention, the deceased arrived and was also
boarded in the same ambulance with appellant. They were brought together to Bacolod
City. The deceased was accompanied by Manuel Sigueza and Jeffrey Alipoon while
appellant was accompanied by his mother. Appellant denied ever having had a quarrel
with the deceased.23
Diana Dote, a witness for the defense, testified that she knows appellant who is her
neighbor. Appellant’s house is located only three meters away from Dote’s house. Dote
said that she also knew the deceased and Jeffrey Alipoon. On March 28, 1992, at around
11:00 o’clock in the evening, Dote was at home. While answering the call of nature, she
distinctly heard appellant ask permission from his mother to go out and buy cigarettes.
When appellant re-
_______________
20 Appellant, in his testimony, referred to Jeffrey Alipoon by the latter’s nickname “Botoy.”
21 TSN, August 23, 1993, pp. 4-9.
22 TSN, August 23, 1993, pp. 9-10.
23 TSN, August 23, 1993, pp. 10-16.
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People vs. Aposaga
turned, she heard him tell their neighbor Lando, “Toy, I was stabbed.” Dote then hurried
outside and saw appellant leaning on the post, holding the left side of his body. Dote stood
observing the scene from a distance of about six meters when appellant’s cousin, brother
and their neighbors brought him to an emergency clinic.24
While she was following the group to the clinic, she heard someone at the back of
Farmer’s market, which was about ten meters away from where she was, say, “This is still
Satur.” Dote said, “You pity Satur.” A man wearing a white shirt, whom she recognized to
be Jeffrey Alipoon, then focused a flashlight on Dote. He was with two other companions.
Dote was still standing when the flashlight was focused on the deceased. Alipoon then
remarked, “God damn it, this is Osoy.”25 The group then brought the deceased to the
Hinigaran Emergency Clinic and placed him near the door since appellant was still inside
the clinic. Alipoon who left earlier, returned to the clinic with the parents of the deceased.
He slammed the flashlight on the table and exclaimed, “Why Osoy, it is you!” Thereafter,
the deceased and appellant were boarded on the ambulance and were brought to Bacolod
City.26
Another witness for the defense, eighteen-year-old George Gomez, testified that on March
28, 1992, at around 11:00 o’clock in the evening, he was at the house of appellant, who
happened to be his first cousin. While watching television, Gomez heard appellant ask
permission from his mother to buy cigarettes outside. Gomez did not know where
appellant proceeded but when appellant returned, he was already asking for help from
Gomez since he was stabbed. When Gomez came down from appellant’s house, he saw
appellant leaning at the house of their grandfather. When Gomez asked who stabbed him,
appellant answered he was stabbed by Medel Sigueza.
Appellant was brought by his brother and sister to the Hinigiran Emergency Clinic. A few
minutes later, the deceased was brought in by a man, followed by two others.
Dr. Jose Mari Salvador, a resident physician at the Doña Corazon Locsin Montelibano
Memorial Regional Hospital, Bacolod City,
_______________
24 TSN, May 19, 1993, pp. 4-7, 12.

25 TSN, May 19, 1993, pp. 7-10.
26 TSN, May 19, 1993 pp. 13-15.
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People vs. Aposaga
testified that he has been connected with the hospital since his appointment on August 8,
1990.
On March 29, 1992, he treated a patient by the name of Joffran Aposaga.27 After
conducting a medical examination on the patient, he issued a medical certificate with the
following findings:
“Incised wound, 1 cm. anterior chest 6th intercostal space midclavicular penetrating
thoracic cavity.”
“X-ray: Chest PA: Irregular lucencies noted at the left side of the neck and at the left lateral
chest wall. Cardiac silhouette is enlarged in its transverse diameter. Engorged hilar
shadows with prominence of the upper lobe vessels. Thoracotomy tube in situ.”28
Dr. Salvador said that the edges of the wound inflicted on appellant were clean and not
rugged and could only have been caused by a sharp bladed instrument such as a knife.29
The trial court, however, did not give credence to the defense and on May 30, 1996, it
rendered a decision, the dispositive portion of which reads, as follows:
“WHEREFORE, based on the foregoing premises and considerations, the court hereby
renders judgment finding the accused Satur Aposaga y Gutierez guilty beyond reasonable
doubt of the crime charged against him and the court hereby sentences him to suffer the
penalty of RECLUSION PERPETUA.
The court hereby orders Satur Aposaga y Gutierez to indemnify the family of the victim the
amount of P100,000 for moral damages and the amount of P21,077.75 as actual damages
without subsidiary imprisonment in case of insolvency.
SO ORDERED.”30
In rendering the decision, the trial court ruled that the killing was attended with evident
premeditation because appellant and the deceased had a quarrel a month before the
stabbing incident took place. The conflict between the two men had never been settled.
The trial court further held that when appellant saw the de-
_______________
27 Satur Aposaga and Joffran Aposaga are one and the same person. See note 1.
28 Exhibit “I-A”, Records, p. 235.
29 TSN, June 20, 1994, p. 6.
30 Records, pp. 268-269.
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People vs. Aposaga
ceased drinking with a group of men, he had already decided to kill the deceased as
manifested by the fact that he refused the offer made by the deceased to join them in their
drinking session. The trial court said that the killing of the deceased was preceded by a
calm resolution of the accused to kill the victim after having had a sufficient period of time
to reflect upon the consequences of his act. The trial court, however, did not rule as to
whether or not treachery may be appreciated as a qualifying circumstance in the killing of
the deceased and merely held that appellant’s allegations that he was waylaid by the
deceased and the latter’s friends, and that he only acted in self defense, do not merit
credence. Appellant, in his appeal, now raises the following assignment of errors:
I.
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE QUALIFYING

AGGRAVATING CIRCUMSTANCES OF EVIDENT PREMEDITATION AND TREACHERY
ATTENDED THE COMMISSION OF THE CRIME CHARGED.
II.
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME

CHARGED.
Appellant contends that the trial court erred in appreciating the existence of evident
premeditation in the killing of the deceased since there is no competent and direct
evidence of the particular time when appellant allegedly hatched the plan to kill the
deceased. Appellant laments that the trial court gave undue credence to the statement
made by the witness for the prosecution, Delilah Mugat, that appellant, just before the
stabbing incident, asked Mugat what is her preferred position should she die. Appellant
insists his conversation with Mugat was nothing but a casual attempt at small talk because
he was then trying to borrow a flashlight from her. Appellant says there is no proof from the
conversation he had with Mugat that he actually planned to kill the deceased.
For evident premeditation to be appreciated as a qualifying circumstance, the prosecution
must clearly establish the following:
1. The time when the offender determined to commit the crime;
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People vs. Aposaga
2. An act manifestly indicating that the culprit has clung to his determination; and
3. A sufficient lapse of time between the determination and execution, to allow him to
reflect upon the consequences of his act and to allow his conscience to overcome the
resolution of his will.31
The essence of premeditation is that the execution of the criminal act must be preceded by
cool thought and reflection upon the resolution to carry out the criminal intent during an
interval of time sufficient to arrive at a calm judgment.32 There must be evidence showing
that the accused meditated and reflected on his intention between the time when the crime
was conceived by him and the time it was actually perpetrated. The premeditation must be
evident and not merely suspected.
In its appellee’s brief, the Office of the Solicitor General insists that the killing of the
deceased was attended by evident premeditation as shown by the following
circumstances: Appellant happened to pass by at the Foodtastic restaurant shortly after
eight o’clock in the evening when the deceased invited him to join the group for a drink.
Appellant, who had a misunderstanding with the deceased a month before, angrily
declined the invitation of the deceased to join them in a drinking session. When appellant
dropped by at the store where Delilah Mugat was, also at around past eight o’clock in the
evening, appellant asked the latter what position she would prefer if she were to die.33
Appellant left after borrowing a flashlight from Mugat which he returned later. At around
11:00 o’clock in the evening, Mugat saw appellant already carrying an axe. Based on the
testimonies of Alipoon and Tad-y, it was also around 11:00 o’clock in the evening when
appellant, armed with an axe and a long pointed instrument, suddenly emerged from
behind a mango tree when they, together with the deceased, happened to pass by.
Appellant then challenged the deceased to come nearer. Alipoon tried to pacify Appellant
but the latter went past him and rushed towards the deceased, stabbing
_______________
31 People v. Biñas, 320 SCRA 22, 58-59 [1999], People v. Pinca, 318 SCRA 270, 296
[1999]; People v. Sarabia, 317 SCRA 684, 694 [1999]; People v. Rabanillo, 307 SCRA 424,
441 [1999]; People v. Batidor, 303 SCRA 335, 351 [1999] and People v. Realin, 301 SCRA
495, 513 [1999].
32 People v. Bibat, 290 SCRA 27, 40 [1998].
33 TSN, January 6, 1993, pp. 4-5.
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the latter at the back. The Office of the Solicitor General thus concluded that the
attendance of evident premeditation in the killing of the deceased was clearly established.
We do not agree. There is nothing in appellant’s query, “What position would you prefer if
you were to die?” which would clearly indicate that he already conceived of a plan to kill
the deceased. It must be noted that the query was directed to Mugat and the name of the
deceased was never mentioned during their conversation. Moreover, even if appellant and
the deceased had an argument a month before the night of the stabbing incident, it is
settled that mere existence of ill feelings or grudges between the parties is not sufficient to
sustain a conclusion of premeditated killing.34 Since the time as to when appellant
hatched his plan to kill the deceased has not been established by the prosecution, it
cannot also be deduced as to whether a sufficient interval of time had elapsed from the
moment appellant conceived of his plan to kill the deceased up to the time of the execution
of thereof to allow appellant to reflect on the consequences of his act. Consequently,
evident premeditation cannot be considered to exist. To repeat: It is not sufficient that there
is premeditation; it must be evident.
Appellant maintains that the killing of the deceased was not attended by treachery
because there was no proof that the deceased could not have put up a fight when
appellant stabbed the deceased from behind. Appellant contends that it would be
improbable for him to conceive of attacking the deceased, who was in the company of
three friends who could easily defend the deceased from any untoward act of appellant.
Hence, there is no proof that appellant employed ways and means to insure the killing of
the deceased without risk to himself arising from the defense the offended party might
make.
Appellant’s contention has merit. It is the contention of the prosecution that the deceased
and appellant had a misunderstanding a month before the stabbing incident. At past 8:00
o’clock in the evening of the incident, he declined, allegedly in anger, the invitation of the
deceased to join them for a drink. Under the aforesaid circumstances, the deceased
should have been sufficiently forewarned of the hostile attitude of appellant. Although the
deceased may have been taken by surprise since appellant
_______________
34 People v. Sambulan, 289 SCRA 500, 516 [1998].
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People vs. Aposaga
stabbed him from behind, just when appellant appears to have been placated by Alipoon,
treachery may not be appreciated as a qualifying circumstance. Treachery does not
connote the element of surprise alone. The essence of treachery is that the attack is
deliberate and without warning—done in a swift and unexpected manner, affording the
hapless, unarmed and unsuspecting victim no chance to resist or escape.35 It must be
shown that the offender employed means, methods or forms which tended directly to
ensure the execution of his criminal objective without risk to himself arising from the
defense which the offended party might make.
In the case at bar, when appellant stabbed the deceased at the back, the two men fell to
the ground and grappled for the possession of the deadly weapons held by appellant. Said
stab wound inflicted on the deceased could not have rendered him defenseless since he
was still able to run after he and appellant fell to the ground grappling for the possession of
the deadly weapons. It is significant to note that apart from a bolo and an axe, a fan knife
was also recovered from the scene of the crime and appellant himself suffered a stab
wound. This indicates that the deceased was not completely helpless when he was
assaulted. While the medical examination shows that the deceased suffered four stab
wounds, it was not established, apart from the wound at his back, how and when, during
the scuffle, the other stab wounds were inflicted. Consequently, the qualifying
circumstance of treachery may not be appreciated against appellant.
In the absence of any qualifying circumstance attending the killing of the deceased,
appellant may only be convicted of the crime of homicide which is punishable under the
Revised Penal Code with reclusion temporal. Considering that no modifying circumstance
attended the commission of the felony, the minimum imposable penalty therefor, applying
the Indeterminate Sentence Law, shall be taken from the full range of prision mayor which
is one degree lower than reclusion temporal, and the maximum period of the penalty shall
be taken from the medium period of reclusion temporal.
With regard to damages, the trial court failed to award civil indemnity to the heirs of the
deceased. In accordance with prevailing
_______________
35 People v. Galano, 327 SCRA 462, 475 [2000] citing People v. Zamora, 278 SCRA 60,
76 [1997].
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83
People vs. Aposaga
jurisprudence, the heirs of the deceased are entitled to civil indemnity in the sum of
P50,000 and moral damages in the sum of P50,000. We sustain the sum of P21,077.75 as
actual damages awarded to the heirs of the deceased, there having been receipts of the
expenses presented by the prosecution to the court.
WHEREFORE, the decision of the Regional Trial Court of Himamaylan, Negros
Occidental, Branch 55, in Criminal Case No. 513, finding appellant Satur Aposaga y
Gutierez guilty beyond reasonable doubt of the crime of murder and sentencing him to
suffer the penalty of reclusion perpetua is MODIFIED. Appellant is found guilty beyond
reasonable doubt of homicide. Applying the Indeterminate Sentence Law, appellant is
meted the penalty of imprisonment of 10 years of prision mayor, as minimum, to 17 years
and 4 months of reclusion temporal as maximum. Appellant is also ordered to indemnify
the heirs of the deceased the sum of P50,000 as civil indemnity, P50,000 as moral
damages and P21,077.75 as actual damages.
Costs de oficio.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Vitug and Carpio, JJ., concur.
Ynares-Santiago, J., On official leave.
Judgment modified.
Note.—Where there is no evidence as to how and when the plan to kill was decided and
what time had elapsed before it was carried out, evident premeditation cannot be
considered as an aggravating circumstance. (People vs. Galvez, 355 SCRA 246 [2001])
——o0o——
X. People vs. Marquez
No. L-32860. September 30, 1982.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENATO MARQUEZ, defendants,
FRANCISCO FORNESTE and SAMUEL JACOBO, defendants-appellants.
Criminal Law; Evidence; Failure of the robbery-rape victims to identify the culprits even at
the police station does not affect their credibility as the victims had been threatened with
death and had undergone a terrible ordeal.—These circumstances do not affect the
credibility of the complaining witnesses as regards their identification of the accused as the
perpetrators of the crime. The silence of the complaining witnesses on the identity of the
accused immediately after the incident was explained by the ordeal they had just suffered
at the hands of the accused. The accused were armed during the incident and the
complaining witnesses were threatened with death. Francisca Marquez expressed fear
that the accused might take revenge in case she would divulge their identity. Thus, during
the first investigation conducted by the PC authorities where there was a confrontation
between Renato Marquez and Francisco Forneste on
________________
* FIRST DIVISION.
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People vs. Marquez
one hand and the complaining witnesses on the other, Francisca Marquez pointed out
secretly to the PC that the accused were the perpetrators of the crime "x x x because I am
afraid they might revenge against me, sir. I cannot do that openly." (T.S.N., April 4, 1966, p.
42) We pointed out in People v. Rendora, G.R. No. L-14356, September 30, 1959; People
v. Elizaga, 73 SCRA 524, citing People v. Sanchez, G.R. No. L-13335, November 29, 1960
that: "Experience, x x x has shown that witnesses are reluctant to divulge the identity of
their assailants except to the proper authorities or until they feel safe enough from any
probable harm."
Same; Same; Waiver; The complainants, while not identifying the appellants gave
descriptions which were never questioned by appellants as applicable to them.—Moreover
the complaining witnesses who were initially silent on the identity of the accused, gave
descriptions instead. According to defense witness German Averia, then Chief of Police of
Catanauan who initially investigated the incident: "I asked them if they knew the identity of
the suspects. They did not name names. They only . . . I remember they gave the
description and I remember one of the suspects has been described as very similar to my
hair and weight." (T.S.N., May 5, 1970, p. 22) These descriptions given by the complaining
witnesses were never questioned as not applicable to the accused, hence it may be safely
concluded that the same jibe with the descriptions of the accused.
Same; Aggravating circumstances in the case at bar.—Since, in the commission of the
crime, the following aggravating circumstances alleged in the information were proved by
the prosecution: (1) nighttime; (2) unlawful entry; (3) dwelling of the offended parties; (4)
by disguise, that is by pretending to be PC officers: and (5) by utter disregard due to
victims' age and sex with no mitigating circumstances to offset the same, the lower court
was correct in imposing the maximum penalty pursuant to Article 294 paragraph 2 of the
Revised Penal Code. However, the sentence of life imprisonment should be denominated
reclusion perpetua considering that this is the technical term of the penalty which carries
with it the imposition of accessory penalties.
Same; Penalty; Where no conspiracy was shown as to the commission of the two rapes on
some of the robbery victims, each accused should be held guilty of robbery with rape, not
robbery with multiple rape.—The evidence adduced is not sufficient to show any
conspiracy among the accused in the commission of the crime of rape against the
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People vs. Marquez
persons of Francisca Marquez, Leticia Tan and Rufina Martinez. Therefore, the lower court
was correct in concluding that the crime committed by the accused-appellants was robbery
with rape not robbery with multiple rape as alleged in the information. Accordingly, the
award for indemnity should be as follows: Francisco Forneste to indemnify his rape victim
Rufina Martinez and Samuel Jacobo to indemnify his rape victim Francisca Marquez.
APPEAL from the judgment of the Court of First Instance. of Quezon.

Solicitor General Estelito P. Mendoza, Asst. Solicitor General Jaime M. Lantin and
Solicitor Reynato S. Puno, for plaintiff-appellee.
Rogerio S. T. Cadag for defendants-appellants.
GUTIERREZ, JR., J.:
Renato Marquez, Francisco Forneste and Samuel Jacobo were charged with the crime of
robbery with multiple rape before the Court of First Instance of Quezon, Ninth Judicial
District, Branch III in an amended information filed on June 3, 1964.
In the course of the proceedings in the lower court, Renato Marquez died. Pursuant to the
lower court's order dated October 1, 1968, Renato Marquez was dropped as defendant,
and the case as against him, dismissed.
After trial, the lower court found Francisco Forneste and Samuel Jacobo guilty of the crime
of robbery with rape as defined under Article 294, paragraph 2 of the Revised Penal Code
and sentenced them as follows:
"WHEREFORE, the Court finds the accused FRANCISCO FORNESTE and SAMUEL
JACOBO guilty beyond reasonable doubt of the crime of robbery with rape as defined and
punished under Article 294, paragraph 2, of the Revised Penal Code, and hereby
sentences each of the accused to suffer the penalty of LIFE IMPRISONMENT, to
indemnify Francisca Marquez, jointly and severally, in the amount of P1,760.00 and to pay
the costs."
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People vs. Marquez
In their statement of facts on appeal, the appellants do not dispute the factual findings of
the lower court on the commission of the crime and the circumstances of its commission.
They, however, take exception to the lower court's finding that the accused were positively
identified as the perpetrators of the crime by the prosecution witnesses. Hence, their lone
assignment of error is:
"THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED WERE IDENTIFIED
BEYOND REASONABLE DOUBT THAT THEY WERE THE PERPETRATORS OF THE
ROBBERY."
To establish the guilt of the accused, the prosecution presented the testimonies of: 1)
Francisca Marquez; 2) Leticia Tan; 3) Dr. Lina C. Habito and 4) Emilio Luna with
accompanying documentary evidence.
Francisca Marquez related the incident as follows:
"x x x on November 16, '1966' between seven and seven-thirty in the evening while she
was in their house in barrio Dahican, Catanauan, Quezon together with her seven children
and maid Rufina Martinez, somebody called in front of their window who identified
themselves as PC soldiers looking for contraband. She replied that they did not have any
contraband and that her husband, Angel Tan, was in the poblacion at that time. The men
ordered her to open up otherwise they will shoot up their house. Afraid, she opened the
window shutter when, suddenly, a man whom he (sic) later on recognized as Renato
Marquez jumped inside. She was able to recognize Renato Marquez as the light was
bright. Renato held her by the nape and pushed her towards the door and at gunpoint
ordered her to open the same. She was not able to shout as she was caught by surprise
and besides, she was afraid. When she opened the door, accused Samuel Jacobo and
Francisco Forneste, both armed with guns, entered and ordered her to put out their
contraband and when she told them that they did not have any, the intruders demanded for
money. She pointed at the table which Renato Marquez pried open and took P300
therefrom. Samuel Jacobo also pried open their aparador where he got P200. Jacobo also
dispossesed her of her ring worth P15.00 and a pair of earrings worth also that much. At
that instant, the other accused Francisco Forneste was upstairs guarding her children and
helper. Samuel Jacobo asked her why they
169

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People vs. Marquez
have only a small amount of money when they are copra-buyers and she replied that they
were just starting on their business. Whereupon, Jacobo demanded: 'kuarta o buhay' so
that she put out her pillow which Jacobo grabbed and ripped open and took therefrom
P820.00. Afterwards, Samuel Jacobo raped her at gunpoint while Renato Marquez
ransacked their store and took merchandise therefrom. After five minutes, Jacobo took her
upstairs and tied both her arms and made her lie face down on the floor together with her
children. Subsequently, her daughter Leticia and helper Rufina Martinez were taken
downstairs by Francisco Forneste. Shortly thereafter, she heard Leticia shout: 'Nanay'
while Rufina Martinez screamed 'Nanang Kikay, Nanang Kikay.' Afterwards, both Leticia
and Rufina were taken upstairs by Francisco Forneste, tied and also made to lie face
down on the floor. After the men had left and they did not hear any noise anymore, Leticia
was able to untie Rufina by biting the rope, Rufina, in turn, untied her and the others. After
they had freed themselves, both Leticia and Rufina cried. She asked them what happened
and both of them confessed that they were abused respectively by Renato Marquez and
Francisco Forneste. Aside from cash, they lost also the following: radio worth P125.00;
radio-phono worth P135.00; a ten-battery flashlight valued at P10.00; an P85.00 wrist
watch; Leticia's necklace worth P15.00; and Rufina's earrings worth P40.00 as well as her
ring." (Decision, pp. 18-20, rollo)
Leticia Tan corroborated the foregoing testimony of her mother. She further testified that
both she and Rufina Martinez, their housemaid, were raped by Renato Marquez and
Francisco Forneste respectively. The rapes, according to her were committed in the
following manner: when her mother Francisca Marquez was taken upstairs, Renato
Marquez brought her downstairs, to their store. Inside the store Renato Marquez told her
"to give something and if I refused I would be killed" (T.S.N., December 12, 1968, p. 19).
Simultaneously Renato Marquez "poked a gun and also a balisong" at her causing her to
be afraid. (T.S.N., December 12, 1968, supra, p. 20) She called for her mother but then
she was told not to shout because "I am going to be killed." (T.S.N., December 12, 1968,
supra, p. 20) Thereafter, she was forcibly made to lie down and Renato Marquez
committed the act on her. (T.S.N., December 12, 1968, supra, p. 22) Leticia related that
during the time that she was with Renato Marquez, Rufina Martinez was with Francisco
Forneste and that immediately after the departure
170
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People vs. Marquez
of Renato Marquez, Francisco Forneste and Samuel Jacobo, Rufina Martinez told her that
she was also raped by Francisco Forneste. (T.S.N., December 12, 1968, supra, pp. 22-
23).
Dr. Lina C. Habito testified regarding Leticia's allegation that she and Rufina Martinez were
raped. Dr. Lina C. Habito, resident physician of the Bondoc Peninsula General Hospital at
Catanauan, Quezon stated that she examined the injuries sustained by Francisca
Marquez, Leticia Tan and Rufina Martinez on 20 November 1963 and issued the
corresponding medical certificates (Exhibits "A", "B" and "C"). Thus: 1) The medical
certificate issued to Francisco Marquez stated:
" 'DIAGNOSIS:
—Linear abrasion #4, diagonal along the wrist left posterior.

—Abrasion supraclavicular area right.
—Abrasion linear #2—anterior diagonal along the wrist right.
Refused to further examination.
" 'DURATION: 1 to 9 days excluding complication!"
(Exhibit A)
2) The medical certificate issued to Leticia Tan stated:

" 'DIAGNOSIS:
—Abrasion with hematoma at the postero lateral side wrist right.

—Internal Examination:
Has slight bloody discharge. Contusion at 12 and 6 o'clock Vagina admits 2 fingers with
difficulty.'
(Exhibit C)
3) and the medical certificate issued to Rufina Martinez stated:

" 'DIAGNOSIS:
—Abrasion antero medial side wrist left.

171

171
People vs. Marquez
—Abrasion postero medial area wrist right.
—Internal Examination:
Semicircular contusion at 3, 4, and 5 o'clock
Vaginal canal admits two fingers freely.'

(Exhibit B)
Dr. Habito testified that the injuries sustained by Leticia Tan and Rufina Martinez on their
sex organs could have been caused by the entry of a male organ.
Rufina Martinez was not placed on the witness stand. Atty. Uy, the private prosecutor
informed the court that she could not be located because she was only a househelp.
(T.S.N., March 12, 1969, p. 12) The crime was committed in 1963 and the manifestation on
her absence was made in 1969. Nevertheless, the lower court through the evidence
presented, ruled:
"As to the accused Francisco Forneste, the fact that Rufina Martinez had confessed to
Francisca Marquez and Leticia Tan right after the commission of the crime about her being
sexually violated by the accused could be considered as a part of the res gestae and,
therefore, the same is removed from the operation of hearsay rule. Besides, the medical
certificate is a telltale evidence of the commission of rape on the person of Rufina
Martinez." (Decision, p. 31, rollo)
Furthermore, the appellants admit in their brief that Rufina Martinez was raped. Their
defense consists of denials that they were the culprits who committed the crime.
The identity of Renato Marquez, Francisco Forneste and Samuel Jacobo as the
perpetrators of the crime was positively established by the victims themselves, Francisca
Marquez and Leticia Tan.
Francisca Marquez testified:
"Q
Do you know were those persons responsible for the rape and robbery committed in your
house?
"A
Yes, sir.
"Q
If you could see those persons, will you be able to point them out?
"A
Yes, sir.
"Q
Will you please look around this courtroom and see if those persons you alleged to be
responsible are here?
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People vs. Marquez
"A
The two are here, sir.
"Q
Will you please point them out to the Court?
"A
That man in white polo shirt (Who, when asked for his name, responded to the name
Francisco Forneste and pointed to a man who, when asked for his name, responded to the
name Samuel Jacobo).
"Q
You said only two are here in court. Are there other persons responsible?
"A
Yes, sir.
"Q
Who is that person or who are those persons?
"A
Renato Marquez, sir.
"Q
The Court noticed that the other person you just mentioned has the family name of
Marquez. Do you have any relation with this Renato Marquez?
"A
He is my distant relative, sir." (T.S.N., April 4, 1966, pp. 5-6)
"ATTY. UY:
"Q
Is this Renato Marquez the same person who jumped into your house on the same date
whom you said is related to you?
"A
Yes, sir.
"COURT:
"Q
You recognized him right then and there?
"A
Yes, Your Honor. I know him already because our light was bright, sir.
"ATTY. UY:
"Q
What happened after he get into the house?
"A
He approached me and he held my nape and then he pushed me towards the door with
his gun being poked at me and he told to open the door, sir.
"Q
Did you open the door?
"A
Yes, sir.
"Q
When you opened the door, what happened?
"A
The two entered, sir.
"Q
Who entered?
"A
Francisco Forneste and Samuel Jacobo, sir.
(T.S.N., April 4, 1966, supra, pp. 10-11)

173

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People vs. Marquez
"ATTY. UY:
"Q
After Samuel Jacobo had taken the eight hundred twenty pesos from your pillow, anything
more happened?
"A
Because I could not do anything, 'kinuha ang aking pagkababae', sir.
"Q
Who?
"A
Samuel Jacobo, sir.
"Q
Where did that particular incident happen?
"A
In the place where I sleep near the aparador, sir.
"Q
And while this incident was being perpetrated, where is this Renato Marquez?
"A
He was there in our store ransacking the place and even our goods for sale were taken,
sir. (T.S.N., April 4, 1966, supra, pp. 17-18)
"Q
And it was on the bed from where your pillow containing eight hundred twenty pesos was
taken by Samuel Jacobo?
"A
Yes, sir.
A
And afterwards you were made to lie on that same bed near the window?
"A
Yes, Your Honor.
"Q
And the pillow was still there?
"A
It was already destroyed, sir.
"Q
And Renato Marquez was not there?
"A
He was ransacking the other part of the house, sir.
"Q
So nobody was there except you and Samuel Jacobo?
"A
Yes, sir.
"Q
And you willingly consented to the act committed by Samuel Jacobo?
"A
What could I do, sir, when a gun was being poked at me?
"Q
Why? Were they armed?
"A
Yes, sir, and they were armed and they had fan knife also.
"Q
What was Samuel Jacobo carrying with him when he was committing all these acts to
you?
"A
He was holding a gun as short as this (Witness indicating the length of about one (1) foot).
"Q
What was Samuel Jacobo carrying at that time?
"A
A gun, sir.
"Q
No balisong?
"A
He had a balisong on his left waist, sir (Witness pointing to her left waist).
"Q
When he entered the house after ordering you to open up, was he already carrying a gun
and a knife?
174
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People vs. Marquez
"A
Yes, sir. They were already holding gun." (T.S.N., April 4, 1966, supra, pp. 19-20
The records sustain the following findings of the lower court:
"As her husband failed to return home that evening, she went to the poblacion the
following day to look for him. She found her husband and, together, they reported the
matter to the Chief of Police. Aside from the police, the PC also investigated the incident.
They were made to identify the accused Francisco Forneste and Renato Marquez at the
municipal building on November 20th. During the second time that they went to the
municipal building, they were asked to identify the accused Samuel Jacobo. On that
occasion, all the three accused were present. On November 20, 1963, the PC took down
her affidavit. There were many persons in the office where they confronted the accused.
She pointed the accused secretly to the PC as she was afraid that if she will do it openly,
the accused might take revenge against them. In that confrontation, she pointed to
accused Francisco Forneste as one with the 'bigote'. Before the occurrence of the crime,
she already knew Renato Marquez and Francisco Forneste. She can recognize them
anywhere, anytime and any place that she will meet them. Renato is her distant relative
while Francisco Forneste is known to her as he is also from Catanauan. She knows his
parents and she used to see him in the poblacion. She recalls that Francisco Forneste was
at their house on election day, November 14. Before the incident, she saw Forneste for
about five times and she knows him for a long time already. She knows Samuel Jacobo by
face only but she frequently sees him as the jeep they used to take in going to the
poblacion passes by the house of Samuel which is near a bakery where people buy bread.
The usual hangout of Samuel Jacobo is the store where 'Liwayway' is sold. Before she
was called to the confrontation meeting, she already revealed the names of the culprits to
the PC officers except one whom she does not know the name. During the commission of
the crime in question, their house was brightly lighted. She did not mention the fact that
she was raped in her affidavit because at that time, she was still worried as they were
threatened that if ever they will report the matter to the authorities, they will be killed. She
did not submit to a medical examination because anyway she was a married woman
already." (Decision, lower court, pp. 20-21, Records)
On the other hand, Leticia Tan who was only thirteen years old when she was raped
positively identified the three accused
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175
People vs. Marquez
as the persons who robbed and abused them. During the November 12, 1968 hearing, Tan
was suffering from emotional strain and the hearing had to be postponed. In fact, during
the December 12, 1968 hearing, her testimony was as follows:
"ATTY. UY:
"Q
Will you please tell the Court or rather relate to the Court how you were abused?
"A
Yes, sir. When my mother was brought up the house, we were told to go down.
"Q
Who brought you down?
"A
Renato Marquez.
"Q
Do you know where you were brought, to where you were brought?
"DEPUTY CLERK:
"Q
"Witness at this stage is crying.
"WITNESS:
"A
To our store.
"ATTY. UY:
"Q
And while you were in your store what happened if anything happened?
"COURT:
"Answer.
"WITNESS:
"A
I was told to give something and if I refused I would be killed.
"ATTY. UY:
"Q
Did you understand what was that something he was asking?
"A
Yes, sir.
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People vs. Marquez
"Q
Will you please tell the Court what was it?
"ATTY. CADAG:
"Witness refused to answer.
"COURT:
"Q
You cannot answer?
"A
(No answer).
"ATTY. UY:
"Q
In short did you give that something that he was asking from you?
"ATTY. CADAG:
"We will object, Your Honor, because that 'something' is vague. What is that something?
"ATTY. UY:
"Q
Will you please answer what was that something that he was asking?
"ATTY. CADAG:
"Witness, Your Honor, refused to answer.
"ATTY. UY:
"Q
Did anything happen after he asked you to give him that something?
"A
Yes, sir. A gun was poked at me and also a 'balisong' and so I became afraid.
"Q
And what happened?
"ATTY. CADAG:
"Witness, your Honor, refused to answer.
"WITNESS:
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People vs. Marquez
"A
I was calling for my mother but I was told not to shout because I am going to be killed.
"ATTY. UY:
"Q
And what happened?
"A
I was told to lie down.
"COURT:
"Q
Did you lie down?
"A
I was forcibly made to lie down.
"Q
And after you were forcibly made to lie down what did the accused do?
"A
(no answer).
"Q
You answered that a gun was pointed to you and a 'balisong', who pointed to you a gun
and 'balisong'.
"A
Renato Marquez?
"Q
What did Renato Marquez point to you?
"A
A gun.
"Q
How about the 'balisong', who pointed to you?
"A
He also. He was carrying two weapons.
"Q
Now, there were only the two of you inside the store at that time?
"A
Yes, Your Honor.
"Q
All right, you were forcibly laid down by Marquez?
"A
Yes, Your Honor.
"Q
After that, when you were already lying down what did he do to you? Are you ashamed to
answer? Do not be ashamed, because the persons in front of you are all married.
"Q
Did he do something to your person?
"A
Yes, sir.
"Q
What particular act did he do to you? Nakuha ba ang iyong pagkababae?
"A
Yes, Your Honor.
"Q
After that what happened?
"A
I was brought upstairs and we were tied." (T.S.N., December 12, 1968, pp. 18-22)
Again, the records sustain the lower court's summary of Leticia Tan's testimony:
"x x x They reported the incident to the police authorities who
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People vs. Marquez
investigated her, her mother and Rufina Martinez. They were taken by the police to the
hospital where she was examined. She pointed Francisco Forneste to the PC after the PC
had asked them who committed the robbery. Her mother, Rufina and herself were together
in going to the office of the Chief of Police in the company of PC soldiers. She was thirteen
years old when the incident happened. After Renato Marquez and Samuel Jacobo had
taken the money from her mother, the two accused entered her room. At that time, there
was a gasera lamp in the ground floor as well as in the upper floor. Although afraid, she
looked at the robbers. One of them had a moustache, the other was short and had a
slender body and the third was tall and big-bodied. It was Francisco Forneste who had a
moustache. She signed her affidavit (Exhibit D) in the municipal building. She made the
identification of the accused at the municipal building on November 20, 1963. Before they
went to the municipal building, she did not know yet the names of the accused." (Decision,
pp. 22-23, rollo)
The accused, in refuting the lower court's finding that they were positively identified by the
complaining witnesses, stress that these witnesses stated on three occasions that they did
not know the identity of the persons who perpetrated the crime. These occasions were: (1)
During the investigation conducted by the Chief of Police of Catanauan immediately after
the incident at about 9:00 in the evening of November 16, 1963, the complaining
witnesses, when asked by the former if they recognized the robbers answered in the
negative; (2) On November 17, 1963 or the day after the incident, Leticia Tan, when asked
about the identity of the robbers at the house of Goding Tan by Sgt. Lastimoso, a member
of the Catanauan Police Force, answered that she did not know them; (3) When the
complaining witnesses were brought to the office of the Chief of Police of Catanauan on
November 17, 1963, to identify the suspects, among them Renato Marquez and the
appellants herein, the complaining witnesses were not able to identify the robbers, much
less the accused who were directly pointed to them by Patrolman Mariano Yuson, a
member of the police force of Catanauan who took over the investigation of the incident.
These circumstances do not affect the credibility of the complaining witnesses as regards
their identification of the
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People vs. Marquez
accused as the perpetrators of the crime. The silence of the complaining witnesses on the
identity of the accused immediately after the incident was explained by the ordeal they had
just suffered at the hands of the accused. The accused were armed during the incident
and the complaining witnesses were threatened with death. Francisca Marquez expressed
fear that the accused might take revenge in case she would divulge their identity. Thus,
during the first investigation conducted by the PC authorities where there was a
confrontation between Renato Marquez and Francisco Forneste on one hand and the
complaining witnesses on the other, Francisca Marquez pointed out secretly to the PC that
the accused were the perpetrators of the crime "x x x because I am afraid they might
revenge against me, sir. I cannot do that openly." (T.S.N., April 4, 1966, p. 42) We pointed
out in People v. Ren-dora, G.R. No. L-14356, September 30, 1959; People v. Elizaga, 73
SCRA 524, citing People v. Sanchez, G.R. No. L-13335, November 29, 1960 that:
"Experience, x x x has shown that witnesses are reluctant to divulge the identity of their
assailants except to the proper authorities or until they feel safe enough from any probable
harm."
Moreover the complaining witnesses who were initially silent on the identity of the
accused, gave descriptions instead. According to defense witness German Averia, then
Chief of Police of Catanauan who initially investigated the incident: "I asked them if they
knew the identity of the suspects. They did not name names. They only . . . I remember
they gave the description and I remember one of the suspects has been described as very
similar to my hair and weight." (T.S.N., May 5, 1970, p. 22) These descriptions given by the
complaining witnesses were never questioned as not applicable to the accused, hence it
may be safely concluded that the same jibe with the descriptions of the accused.
Finally, as the lower court correctly said:
"x x x it was not shown why the complaining witnesses would testify in the manner that
they did against the accused. The accused failed to ascribe any improper motive on the
part of said complaining witnesses. Neither was it shown that said witnesses were
obsessed with bias or prejudice against the accused." (Decision, p. 30, rollo)
180
180
People vs. Marquez
Since, in the commission of the crime, the following aggravating circumstances alleged in
the information were proved by the prosecution: (1) nighttime; (2) unlawful entry; (3)
dwelling of the offended parties; (4) by disguise, that is by pretending to be PC officers:
and (5) by utter disregard due to victims' age and sex with no mitigating circumstances to
offset the same, the lower court was correct in imposing the maximum penalty pursuant to
Article 294 paragraph 2 of the Revised Penal Code. However, the sentence of life
imprisonment should be denominated reclusion perpetua considering that this is the
technical term of the penalty which carries with it the imposition of accessory penalties.
(People v. Mobe, 51 Phil. 88; People v. Pilones, 84 SCRA 167; People v. De Jesus, 85
SCRA 686; People v. De la Cruz, 85 SCRA 285.)
We notice that the lower court did not award indemnity for the rape victims. Hence,
pursuant to Articles 21, 2216, 2219, 2229 and 2230 of the Civil Code We hereby award
indemnity (People v. Amiscua, 37 SCRA 813) and fix the same in the sum of P12,000.00
(People v. Amit, 32 SCRA 95; People v. Otto, 49 SCRA 306; People v. Gonzales, 58 SCRA
265; and People v. Abay, 70 SCRA 512) for each of the rape victims.
The evidence adduced is not sufficient to show any conspiracy among the accused in the
commission of the crime of rape against the persons of Francisca Marquez, Leticia Tan
and Rufina Martinez. Therefore, the lower court was correct in concluding that the crime
committed by the accused-appellants was robbery with rape not robbery with multiple rape
as alleged in the information. Accordingly, the award for indemnity should be as follows:
Francisco Forneste to indemnify his rape victim Rufina Martinez and Samuel Jacobo to
indemnify his rape victim Francisca Marquez.
WHEREFORE, We find the accused-appellants FRANCISCO FORNESTE and SAMUEL
JACOBO guilty beyond reasonable doubt of the crime of robbery with rape pursuant to
Article 294 paragraph 2 of the Revised Penal Code. The judgment appealed from is
modified as follows:
1) The term life imprisonment should be changed to reclusion perpetua;
181

181
People vs. Marquez
2) Accused-appellant FRANCISCO FORNESTE shall indemnify RUFINA MARTINEZ in
the sum of TWELVE THOUSAND (P12,000.00) PESOS with no subsidiary imprisonment
in case of insolvency by reason of the penalty imposed; and
3) Accused-appellant SAMUEL JACOBO shall indemnify FRANCISCA MARQUEZ in the
sum of TWELVE THOUSAND (P12,000.00) PESOS with no subsidiary imprisonment in
case of insolvency by reason of the penalty imposed.
In all other respects, the judgment appealed from is hereby affirmed with costs against the
appellants.
SO ORDERED.
Teehankee (Chairman), Makasiar, Melencio-Herrera, Plana, Vasquez and Relova, JJ.,
concur.
Judgment modified.
Notes.—Testimony of witness is credible in the absence of improper motives. (People vs.
Lanseta, 95 SCRA 166.)
Inconsistencies in witnesses' testimony do not destroy the credibility of the witnesses who
positively identified the accused as perpetrator of the crime. (People vs. Celestino,96
SCRA 489.)
Difference between the sworn statement before the police relating to minor details as to
which the perceptions and recollection of the witness may differ, and complainant's
testimony in court do not affect her credibility, especially considering the shock, excitement
and haste under which the complainant was laboring when she executed the statement.
(People vs. Advincula, 96 SCRA 875.)
——o0o——
182
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I. People vs.

VOL. 415, NOVEMBER 12, 2003

1 Penned by Judge Manuel S. Pecson, Rollo at pp. 20-32. 2 Rollo at p. 6.

3 Transcript of Stenographic Notes (TSN) dated February 7, 1995 at p. 3; Records at p.

11 Id., at p. 7; Records at p. 198.

25 Id., at p. 13; Records at p. 138.

VOL. 415, NOVEMBER 12, 2003

34 TSN dated December 14, 1994, supra at p. 4; Records at p. 291.

48 Decision, Rollo at p. 32.

VOL. 415, NOVEMBER 12, 2003

THE TRIAL COURT ERRED IN ORDERING ACCUSED-APPELLANT CHARLIE

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT

49 Id., at pp. 30-32.

“THE COURT A QUO ERRED IN ORDERING ACCUSED-APPELLANT DANTE ATON TO

VOL. 415, NOVEMBER 12, 2003

VOL. 415, NOVEMBER 12, 2003

VOL. 415, NOVEMBER 12, 2003

VOL. 415, NOVEMBER 12, 2003

VOL. 86, NOVEMBER 20, 1978

VOL. 86, NOVEMBER 20, 1978

The facts are stated in the opinion of the Court.

Six bottles of Cana Rum;

One dozen Ligo Sardines;

One dozen Eatwell Sardines;

Six packages of Golden Star cigarettes;

three packages of cigarettes (Inyog); and

four packages of cigarettes

(La Ventaja) with a total value of

1 see pp. 130-131, rollo.

VOL. 86, NOVEMBER 20, 1978

VOL. 86, NOVEMBER 20, 1978

3 tsn., October 11, 1962, p. 5.

VOL. 86, NOVEMBER 20, 1978

5 US v. Vilorente and Bislig, 30 Phil. 59.

VOL. 86, NOVEMBER 20, 1978

10 tsn., July 29, 1963, pp. 69-83.

VOL. 86, NOVEMBER 20, 1978

SUPREME COURT REPORTS ANNOTATED

VOL. 86, NOVEMBER 20, 1978

VOL. 396, JANUARY 28, 2003

The facts are stated in the opinion of the Court.

1 Rollo, pp. 15-45.

3 TSN, September 23, 1997, pp. 3-8.

VOL. 396, JANUARY 28, 2003

VOL. 396, JANUARY 28, 2003

19 TSN, September 22, 1997, pp. 34-35.

24 TSN, November 26, 1997, pp. 3-59.

VOL. 396, JANUARY 28, 2003

26 Id., at pp. 18-23.

34 Id., at pp. 7-12.

VOL. 396, JANUARY 28, 2003

37 Id., at pp. 64-75.

38 TSN, September 23, 1997, p. 16; TSN, October 21, 1997, p. 8.

VOL. 396, JANUARY 28, 2003

47 Id., at pp. 3-4.

VOL. 396, JANUARY 28, 2003

VOL. 396, JANUARY 28, 2003

61 Revised Penal Code, Art. 14.

VOL. 396, JANUARY 28, 2003