Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 142039 May 27, 2004

MODESTO "Moody" MABUNGA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CARPIO MORALES, J.:

The Court of Appeals having, by Decision of June 30, 1999, 1 affirmed that of the Regional Trial Court of
Romblon2convicting appellant Modesto Mabunga of robbery with force upon things under Article 299 of the Revised
Penal Code, he comes to this Court on a petition for review.

In the morning of October 2, 1994, employees of the Bureau of Fire Protection (BFP) including Davy Villaruel
(Villaruel) discovered that the hasp of the door of the BFP office in Barangay Capaclan, Romblon, Romblon was
destroyed, and that the only typewriter in their office, a "Triumph" bearing Serial Number 340118640, was missing.

From the testimonies of prosecution witnesses tricycle driver Sixto Bernardo (Bernardo), Diana Malay (Diana),
Villaruel, Sylvia Silverio Comienzo (Sylvia), and SPO2 Eleazar Madali, the prosecution presented its case as
follows:

Around 3:00 oclock in the afternoon of October 15, 1994, as Diana was in front of her store in Capaclan,
Romblon, Romblon waiting for a tricycle, she saw appellant, a dealer of marble slabs, who was carrying a
box which bore the marking "HOPE" and tied with gray straw string, board a pedicab driven by Bernardo.
Having heard from her husband Rodolfo Malay who works with the BFP that appellant was the prime
suspect of the police for the "robbery" at the BFP, Diana immediately informed her husband of what she saw.
She was thereupon instructed by her husband to follow appellant. 3

As Diana noticed that the pedicab was heading for the pier, she proceeded on foot to the house of Villaruel 4 whom
she informed of what she had witnessed.

After the lapse of about 5 minutes,5 Villaruel, on board his scooter, proceeded to the pier. By that time appellant had
reached the pier, alighted from Bernardos tricycle, and unloaded the "HOPE" box.

In the meantime, Diana contacted Chief of Police Major Ernesto Madrona at his house. 6

Appellant, not long after alighting from the tricycle at the pier, reboarded the same tricycle 7 driven by Bernardo,
without the box, and headed for his house at Capaclan. Diana, in fact, saw him on board the tricycle on his way
home.

Diana later boarded the tricycle of Bernardo after the latter brought home appellant, and repaired to the pier. There,
by the gate, she saw Villaruel who confirmed to her that he had verified from Bernardo, whom he earlier saw by the
same gate, that the latter indeed conveyed appellant to the pier, with a "HOPE" box.

Diana also learned from Villaruel that "he really saw the box brought by [appellant]." She thus returned on foot to the
house of Major Madrona who instructed SPO2 Eleazar Madali and PO2 Eustaquio Rogero "to surreptitiously watch
a box of Hope brand cigarettes placed under a bench inside the PPA passengers terminal owned by [appellant] and
wait until somebody gets said box and load it aboard the vessel M/V Peafrancia 8." 8
On Villaruels entering the terminal9 he was told by Sylvia, the cashier on duty at the restaurant therein, that a man,
whom she later identified to be appellant through a photograph shown to her that same day, entrusted the box to
her, he telling her that it contained a damaged electric fan. 10

Villaruel thereupon kept watch over the box, as SPO2 Madali and PO2 Rogero later did discreetly, until M/V
Peafrancia departed for Batangas at 8:00 p.m., with appellant on board the same. About an hour later, PPA officers
Reynaldo Dianco and Leo Vedito Fontellera arrived at the terminal and the box was turned over by them to SPO2
Madali and PO2 Rogero. The box, when opened, contained the lost BFP typewriter.

On February 7, 1995, appellant was charged with robbery before the Regional Trial Court of Romblon, Romblon
under an information reading:

That on or about the 1st day of October, 1994, at around 12:00 midnight, in [B]arangay Capaclan,
municipality of Romblon, province of Romblon, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with intent [to] gain, did then and there willfully, unlawfully and feloniously enter the
Office of the Bureau of Fire Protection by forcibly breaking the door hasp of the main door and upon having
gained entry therein, take, steal and carry away one (1) typewriter (Triumph brand) with Serial No.
340118640, valued at P5,894.00, Philippine currency, belonging to and owned by the government, without
its consent, and to the damage and prejudice of the government in the aforestated amount. 11

On arraignment on February 21, 1995, appellant, with the assistance of counsel, pleaded "not guilty." 12 Thereafter,
trial ensued.

Appellant interposed alibi with respect to the date and place of occurrence of the alleged robbery. While he admitted
bringing to the pier on October 15, 1994 a box, he claimed, however, that it bore the marking "CHAMPION," not
"HOPE." At the witness stand, he gave the following tale:

He left Romblon on September 24, 1994 and arrived in Manila the next day. After the lapse of 12 hours, he
went to the Cubao station of the Batangas Laguna Tayabas Bus (BLTB) Company and boarded a bus bound
for Matnog, Sorsogon. He reached Matnog on the afternoon of September 27, 1994 and stayed there
overnight before proceeding to Allen, Samar which he reached on September 28, 1994. He then boarded a
jeep bound for San Jose, Northern Samar where he stayed for one (1) hour, after which he proceeded to
Calbayog City which he reached on September 29, 1994. He transferred to another jeep bound for Tacloban
and arrived there on September 30, 1994. For a day he stayed in Tacloban to rest, after which he proceeded
to Palo, Leyte to visit his "project." He arrived in Palo on October 1, 1994. The next day, he went to Tacloban
City and purchased materials for polishing marble. He returned to Palo and supervised his marble "project"
for a week. When the "project" was finished, he returned to Cebu on October 6, 1994 and the next day
boarded the ferry "[Backwagon] Bay" for Romblon. He reached Romblon on October 9, 1994. 13

In support of his alibi, he presented bus tickets and purchase receipts of materials, viz:

Exhibit "1" BLTB ticket No. 60850, dated September 26, 1994, (Cubao to Matnog, Sorsogon)

Exhibit "2" Bus ticket dated September 28, 1994 issued by E. Tabinas Enterprises to Moody Mabunga
(Matnog, Sorsogon, to Allen, Samar).

Exhibit "3" Invoice No. 18639 issued on October 2, 1993 by Terrazzo Construction and Marble Supply to
Moody Mabunga.14

Appellant further claimed that on the afternoon of October 15, 1994, he, along with his son, boarded the pedicab of
Bernardo to which they loaded a box marked "CHAMPION" containing marble novelties to be brought to Manila via
Viva Penafrancia 8; on reaching the pier, he laid down the box at the gate of the PPA and stood beside it as he
waited for the ship to dock; and when he later boarded the ship, he placed the box at the back of his cot. 15

Finding appellant guilty beyond reasonable doubt of robbery, Branch 81 of the RTC Romblon sentenced him to
suffer "an indeterminate penalty of from 4 years and 2 months of prison correccional, as minimum to 8 years and 1
day of prision mayor, as maximum, with the accessory penalties of the law, and to pay the costs." 16
The Court of Appeals, in affirming the decision of the trial court, relied on Section 3(j) Rule 131 of the Revised Rules
on Evidence which reads:

SEC. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence:

xxx

(j) That a person in possession of a thing taken in the doing of a recent wrongful act is the taker and
the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of
ownership over, are owned by him;

The appellate court having denied his motion for reconsideration, 17 appellant lodged the present appeal, ascribing to
it the following errors:

1. THE COURT OF APPEALS GRAVELY ERRED WHEN IT DISREGARDED THE UNIMPUGNED ALIBI OF
THE ACCUSED, NOTWITHSTANDING THE ABSENCE OF POSITIVE IDENTIFICATION.

2. THE COURT OF APEALS GRAVELY ERRED WHEN IT ADMITTED IN EVIDENCE THE TYPEWRITER,
WHICH WAS SEARCHED WITHOUT WARRANT AND IN THE ABSENCE OF THE ACCUSED.

3. THE COURT OF APPEALS GRAVELY ERRED WHEN IT PRESUMED THE ELEMENT OF INTENT TO
GAIN, WHEN THE SUPPOSED ACT OF THE ACCUSED IN LEAVING THE BOX TO A STRANGER AND
NEVER COMING BACK TO CLAIM IT NEGATED THE NOTION OF ANIMUS LUCRANDI.18 (Underscoring
supplied)

The appeal is impressed with merit.

While courts have consistently looked upon alibi with suspicion not only because it is inherently weak and unreliable
as a defense, but because it can easily be fabricated, 19 the basic rule is for the prosecution, upon which lies the
onus, to establish all the elements of a crime to thereby hold him guilty beyond reasonable doubt. Such burden does
not shift as it remains with the prosecution. Tasked with the burden of persuasion, the prosecution must thus rely on
the strength of its evidence and not on the weakness of the defense. 20

Admittedly, the evidence for the prosecution is circumstantial. The alleged robbery was discovered when the
employees of the BFP reported for work on October 2, 1994 and noticed that the hasp of the office door was broken
and the typewriter was missing.

On the sole basis of the presumption laid down under above-quoted Section 3(j) of Rule 131 of the Revised Rules
on Evidence, the appellate court affirmed the conviction of appellant.

A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or
otherwise established in the action. 21 It is an "inference as to the existence of a fact not actually known, arising from
its usual connection with another which is known, or a conjecture based on past experience as to what course of
human affairs ordinarily take."22

A presumption has the effect of shifting the burden of proof to the party who would be disadvantaged by a finding of
the presumed fact. The presumption controls decision on the presumed fact unless there is counterproof that the
presumed fact is not so.23

In criminal cases, however, presumptions should be taken with caution especially in light of serious concerns that
they might water down the requirement of proof beyond reasonable doubt. As special considerations must be given
to the right of the accused to be presumed innocent, there should be limits on the use of presumptions against an
accused.

Although possession of stolen property within a limited time from the commission of the theft or robbery is not in
itself a crime, it being possible to possess the same and remain innocent, such possession may be sufficient for the
formation of an inference that the possessor is the thief unless the evidence satisfactorily proves that the property
was acquired by the accused by legal means.

How the presumption under Section 3(j) Rule 131 is to be understood, United States v. Catimbang24 explains:

According to the modern view convictions in cases of this kind are not sustained upon a presumption of law
as to the guilt of the accused. The conviction rests wholly upon an inference of fact as to the guilt of the
accused. If as a matter of probability and reasoning based on the fact of possession of the stolen
goods, taken in connection with other evidence, it may fairly be concluded beyond reasonable doubt that
the accused is guilty of the theft, judgment or conviction may properly be entered. x x x

The inference of guilt is one of fact and rests upon the common experience of men. But the experience of
men has taught them that an apparently guilty possession may be explained so as to rebut such an
inference and an accused person may therefore put witness on the stand or go to the witness stand himself
to explain his possession, and any reasonable explanation of his possession, inconsistent with his guilty
connection with the commission of the crime, will rebut the inference as to his guilt which the prosecution
seeks to have drawn from his guilty possession of the stolen goods.

It is in this sense that it is sometimes said that the unexplained possession of recently stolen goods will
sustain a conviction of the crime of larceny.25 (Emphasis and underscoring supplied)

Before an inference of guilt arising from possession of recently stolen goods can be made, however, the following
basic facts need to be proven by the prosecution: (1) that the crime was committed; (2) that the crime was
committed recently; (3) that the stolen property was found in the possession of the defendant; and (4) that the
defendant is unable to explain his possession satisfactorily. 26

For purposes moreover of conclusively proving possession, the following considerations have to be emphasized:
(1) the possession must be unexplained by any innocent origin; (2) the possession must be fairly recent; and (3) the
possession must be exclusive.27

Contrary to the findings of both the trial and appellate courts, the People failed to prove beyond reasonable doubt
that appellant was caught in exclusive possession of the recently stolen good.

While possession need not mean actual physical control over the thing for it may include constructive possession, it
is still necessary that for possession to be deemed constructive the accused knowingly has the power and
the intention at a given time to exercise dominion or control over a thing, either directly or through another
person.28

The case of U.S. v. Simbahan29 cited by the appellate court has a different factual setting and is, therefore,
inapplicable to the present case. In Simbahan, the accused, for a consideration of P50.00 pesos, disclosed to the
owner of the missing carabao its precise location. There, this Court held: "The word possession as used above can
not be limited to manual touch or personal custody. One who puts or deposits the stolen property in a place of
concealment may be deemed to have such property in his possession. x x x All the facts and
circumstances [including the absence of a satisfactory explanation of his possession] show conclusively that he had
possession of said caraballa and fully justify his conviction." 30

The accused in Simbahan exercised exclusive dominion and control over the thing lost. Appellant in the present
case did not.

The "HOPE" box was not concealed and anyone entering and leaving the PPA terminal had access to it, it having
been placed just below one of the benches, around three meters from the cashier, Sylvia.

To assume that in a busy place, such as the PPA terminal, the "HOPE" box that was opened by the police
authorities and found to contain the missing typewriter is the same box allegedly entrusted by appellant to the
cashier is to form an inference which is, however, doubtful, more than six hours having elapsed from the time the
box was allegedly left at around 3:00 oclock in the afternoon until it was opened by the police authorities at around
9:00 oclock in the evening after appellant had already boarded the ship.
A presumption cannot be founded on another presumption. It cannot thus be concluded that from the time the box
was left under the bench, appellant was still in constructive possession thereof, the exercise of exclusive dominion
or control being absent.

Adding serious doubt to the prosecutions claim is that what was allegedly seen being carried by appellant and
entrusted to the cashier was not the stolen typewriter but merely a "HOPE" box.

A review of the transcript of stenographic notes in fact shows that there are flaws in the prosecutions theory as well
as inconsistencies in the prosecution witnesses testimonies that do not warrant appellants conviction.

Why appellant was considered a suspect by the police, no explanation has been proferred. The records, however,
indicate that appellant had previously been indicted before the Municipal Trial Court for theft. 31 On that basis alone, it
is non sequitor to point to him as a suspect.

At all events, apart from appellants supposed possession of the "HOPE" box on October 15, 1994, no other
evidence was adduced by the prosecution linking him to the robbery. The teaching of Askew v. United States 32 must
thus be heeded:

We have heretofore adverted to the possession of the instruments or of the fruits of a crime as affording
ground to presume the guilt of the possessor; but on this subject no certain rule can be laid down of
universal application; the presumption being not conclusive but disputable, and therefore to be dealt with by
the jury alone, as a mere inference of fact. Its force and value will depend on several considerations. In the
first place, if the fact of possession stands alone, wholly unconnected with any other circumstances,
its value or persuasive power is very slight; for the real criminal may have artfully placed the article in the
possession or upon the premises of an innocent person, the better to conceal his own guilt. It will be
necessary, therefore, for the prosecutor to add the proof of other circumstances indicative of guilt, in
order to render the naked possession of the thing available towards a conviction.33 (Emphasis and
underscoring supplied)

That the fact of possession alone, wholly unconnected with any other circumstances, cannot be relied with
certititude to convict one with robbery is echoed in People v. Geron:34

At any rate, the mere possession by the accused of items allegedly stolen, without more, cannot conduce to a
single conclusion that robbery indeed took place or at least was the primary motive for the killings. In the absence of
positive and indubitable evidence showing unlawful taking by the accused by means of violence against or
intimidation of persons, the prosecution cannot rely with certitude on the fact of possession alone. The Courts
application of the presumption that a person found in possession of the personal effects belonging to the person
robbed and killed is considered the author of the aggression, the death of the person, as well as the robbery
committed, has been invariably limited to cases where such possession is either unexplained or that the proferred
explanation is rendered implausible in view of independent evidence inconsistent thereto.35 (Emphasis and
underscoring supplied)

The appellate court ruled that since it was sufficiently established that appellant was in possession of the typewriter
two weeks after it was stolen, he had the burden of proving that he was not the one responsible for the heist. 36While
a presumption imposes on a party against whom it is directed the burden of going forward with evidence to rebut
such presumption, the burden of producing evidence of guilt does not extend to the burden of proving the accuseds
innocence of the crime as the burden of persuasion does not shift and remains throughout the trial upon the
prosecution.

Compounding doubts on the case for the prosecution is its witnesses differing versions on how and where the box
was opened, a fact necessarily important in determining whether its content was indeed the stolen typewriter.

On one hand, a member of the PNP, SPO2 Eleazar Madali, testified during the direct examination by Prosecutor Sy
that the box was opened at the police station:

Q And what time did the M/V P[e]afrancia 8 le[ave]?

 A About 8:00 oclock in the evening.

Q And what time was that when you entered the PPA terminal to see the carton?

A May be 3:30 oclock, more or less, the vessel has not arrive[d] yet.

Q And also because the vessel has left and the carton [w]as not brought out, what did you do?

A We coordinate[d] with the PPA about the box that was not taken and it was turned over to us and we
brought it to the police station.

Q Who was your companion in bringing the box to the police station?

A SPO1 Rogero, our investigator Victor Miano, Fireman Sim, Dave Villaruel then we proceeded to the
guard of the Romblon Police Station.

Q And what was done with the box in the police station?

A When we arrived in the PNP Police Station we have the box opened before the guard and the content of
the box was a typewriter.37 (Underscoring supplied)

On the other hand, the cashier, Sylvia Silverio Comienzo, testified that the police authorities opened the box inside
her small room in the terminal.

DIRECT EXAMINATION BY PROSECUTOR SY:

Q The day in which you have identified him as Modesto Mabunga, [did he] retrieved (sic) that carton from
you that same day or afternoon?

A No, sir.

Q Who got the carton?

A The policemen, sir.

Q And what did the policemen do when they got the carton?

A They opened it, sir.

Q If you could remember, who were those policemen who got and opened the carton?

A Madrona, Eustaqio and Mike Villaruel.

Q Where did they open that carton?

A Inside the terminal because I have a small room there.38 (Underscoring supplied)

On additional direct examination, Sylvia remained adamant in saying that the box was opened in her small room
inside the terminal.

ADDITIONAL DIRECT EXAMINATION

BY PROSECUTOR SY:
 Q When the policemen as you said got this carton and opened it, where did the policemen precisely get
the carton, from what place precisely?

A Taken from under the bench.

COURT:

Q Where this Moody placed it?

A Yes, sir.

PROSECUTOR SY CONTINUING:

Q Were you personally present when the policemen got the carton from under the bench where Moody
placed it?

A Yes, sir.

Q And where did the policemen open the carton?

A In our small room.

Q Where you personally present when the policemen go the carton and opened it on that room?

A Yes, sir.

Q Were you personally present when the straw that was used in tying the carton was cut or untie or loosen
by the policemen?

A I was there.

COURT:

Q Why were you there present?

A Because I saw to it what was the content of that box and if it was really an electric fan. 39 (Underscoring
supplied)

Without doubt, the trial court is in the best position to assess the credibility of witnesses firsthand and observe their
demeanor, conduct and attitude under grilling examination. An examination of the records shows, however, that, as
indicated by the trial judges following comments on prosecution witness Villaruels answers to the questions posed
to him during his direct examination, the prosecution evidence leaves much to be desired.

COURT: Very familiar. This witness is a very typical witness. You are just waiting for Atty. Sy to finish his question for
you to say what you have been in your mind regardless of the question but you will just continue what you have
already in your mind without thinking about the question. But remember his question, when the question is asked it
will appear in your mind, it should be the other way around, do you understand? You forget what is in your mind,
concentrate on the question. You listen to the question. You are like a tape recorder. You just switch on and then you
continue, no you wait for the question.40

Then again, during the cross examination of the same witness, the trial court gave the following observation on his
demeanor:

COURT: The statement of the Court that you are like a fish in outer space is more applicable to you. You are
like a fish in outer space, meaning, you are a police science graduate, meaning, that your career is to be a
policeman and a police officer, an officer of the law. You are now in the court of law, you should then feel
 comfortable in a court of law like a fish in the water you should be comfortable in a court of law because that
is part of your career but the way we look at it you are like a lawyer who just graduated, took the bar and
then become an office employee not practicing law in the courtroom so that when the lawyer comes to
Court, he will not come to Court, he is afraid of the courtroom although he is a lawyer he is afraid of the
courtroom.41(Underscoring supplied)

Finally, logic, common knowledge and human experience teach that it is unlikely that a robber would represent
himself to be the owner of a stuff which he knows contains stolen property and seek the help of a third person to
look after it.

In fine, the life, liberty and property of a citizen may not be taken away on possibilities, conjectures or even,
generally speaking, a bare probability. 42

At all events, appellants alibi, for which he submitted documentary evidence, has not been discredited by the
prosecution.

WHEREFORE, the decision on review is hereby REVERSED and SET ASIDE and appellant, Modesto "Moody"
Mabunga, is hereby ACQUITTED of the crime of robbery.

SO ORDERED.

Vitug, Sandoval-Gutierrez, and Corona, JJ., concur.

Footnotes

1
Rollo at 46-49.

2
Id. at 19-25.

3
TSN, June 19, 1995 at 4-5.

4
Id. at 5.

5
TSN, August 29, 1995 at 23.

6
TSN, June 19, 1995 at 6.

7
Id. at 20-21.

8
Exhibit "C," Records at 111.

9
TSN, August 29, 1995 at 7-8.

10
TSN, August 19, 1996 at 4-5.

11
Records of the Regional Trial Court at 1.

12
Id. at 13.

13
TSN, February 6, 1997 at 3-11.

14
Records at 146-148.

15
TSN, June 11, 1997 at 7-9.
16
Rollo at 19-25.

17
Id. at 79-80.

18
Id. at 13.

19
People v. Villamor, 373 SCRA 254 (2003) at 264.

20
People v. Alvario, 275 SCRA 529 (1997) at 535.

21
Blacks Law Dictionary (6th ed. 1990) at 1185.

22
Martin v. Court of Appeals, 205 SCRA 591 (1992) at 595.

23
A. Bautista, Basic Evidence, (2004) at 283 citing Mueller and Kirkpatrick, 3.4.

24
35 Phil. 367 (1916).

25
U.S. v. Catimbang, supra at 371-372.

26
R.J. Francisco, Evidence, (3rd ed., 1996) at 419-420.

27
9 J.H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, (3rd ed.,
1940) sec. 2513 at 422.

28
Blacks Law Dictionary at 1163.

29
19 Phil. 123 (1911).

30
United States v. Simbahan, 19 Phil. 123 (1911) at 125.

31
TSN, December 6, 1995 at 25.

32
2 Okl.Cr. 155 (1900).

33
Askew v. United States, 2 Okl.Cr. 155 at 159 (1900) citing Greenleaf, 31.

34
281 SCRA 36 (1997).

35
People v. Geron, 281 SCRA 36 (1997) at 47-48.

36
Rollo at 48.

37
TSN, December 6, 1995 at 8-9.

38
TSN, August 19, 1996 at 6.

39
Id. at 17-18.

40
TSN, August 29, 1995 at 7.

41
Id. at 19-20.

42
A. Bautista, Basic Evidence (2004) at 297, citing New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79
P.2d 948 (1938).
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 181539 July 24, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDWIN ALEMAN y LONGHAS, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

Accused-appellant Edwin Aleman appeals from the Decision 1 dated September 28, 2007 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 02100 affirming the Decision2 dated November 16, 2005 of the Regional Trial Court (RTC) of
Quezon City, Branch 76 in Criminal Case No. Q-03-118348 which found him guilty of the crime of robbery with
homicide.

Accused-appellant was charged under the following Information:

That on or about the 10th day of February 2003, in Quezon City, Philippines, the said accused, conspiring and
confederating with another person whose true name, identity and other personal circumstances have not as yet
been ascertained and mutually helping each other, did then and there willfully, unlawfully and feloniously rob one
RAMON JAIME BIROSEL y VILLA in the following manner, to wit: on the date and place aforementioned while said
victim was inside his car having a conversation over his cellphone, the said accused suddenly appeared and with
intent to gain and by means of violence approached the said vehicle and ordered said victim to open it and once
opened thereafter stabbed the said victim with a bladed weapon hitting him on the thorax thereby inflicting upon him
serious and mortal wounds which were the direct and immediate cause of his untimely death, and thereupon took,
stole and carried away the following, to wit:

a) Two (2) NOKIA cellular phones

b) One (1) brown leather wallet

c) Undetermined amount of cash money

d) One (1) necklace

e) One (1) mens ring all with undetermined value, belonging to said RAMON JAIME BIROSEL y VILLA, to
the damage and prejudice of the heirs of said RAMON JAIME BIROSEL y VILLA. 3

Accused-appellant pleaded not guilty to the charge when arraigned. 4 After pre-trial was conducted, trial ensued.

The prosecution established that, as shown in the medico-legal report prepared by Police Senior Inspector (P/S
Insp.) Elizardo Daileg of the Philippine National Police (PNP) Crime Laboratory who autopsied the victims cadaver,
the cause of death was "hemorrhagic shock secondary to multiple stab wounds in the thorax." In particular, three
penetrating stab wounds were inflicted on the upper left portion of the victims chest, "piercing the upper lobe of the
left lung and perforating the heart." He also suffered stab wounds in the right eye, stomach and left forearm and
incised wounds in the left upper eyelid and left palm. 5

The victim, Ramon Jaime Birosel, was a 55-year old real estate broker at the time of his death. He was survived by
his widow, Maria Filomena Birosel, with whom he had no child. Filomena spent a total of P477,054.30 in funeral
expenses in connection with the burial of her deceased husband. Filomena stated that the Nokia 3315 and Siemens
S-45 cellular phones taken away from Ramon were valued at P3,500.00 each, while the necklace snatched from
him was worth P20,000.00.6

The prosecutions case against accused-appellant hinges on the following eyewitness account of Mark Almodovar:

On February 10, 2003, at about 7:00 oclock in the evening, Mark went out of his house to play ball in the basketball
court. He walked to the basketball court, played there, and at about 9:00 oclock, he stopped playing as he then felt
like urinating. He went to a place near the basketball court where there were five cars parked. While urinating, he
saw a fat man walking towards a car. The fat man was talking on his cellular phone. He then noticed two men
following the fat man, who entered a parked car. The two male persons who were then following the fat man then
separated: one went to the left side of the fat mans car and stood by the door at the drivers side of the vehicle.
While the other positioned himself by the door at the opposite side of the car. Mark made a diagram, rectangular
shape and two circles on both sides, (Exhibit "L") depicting the car and the positions of the two men. The man who
stood by the door at the drivers side had a knife while his companion was armed with a gun. He then witnessed the
man with the knife in his hand stabbing the fat man repeatedly on different parts of his body, while the man with the
gun fired once. After taking the fat mans personal belongings, including his ring, watch, wallet and cellular phone,
the two men left. He followed them to a place which he described as far and there, he saw them buried the knife and
covered it with soil. He made a drawing representing the place where he followed them (Exh. "M"). After burying the
knife in the ground, the men left and he followed them again to a place which he described as near. While thereat,
he saw one of the culprits uncovered his face. He recognized him as the person who went to the left side of the car
and stabbed the victim who was later on identified as the accused Edwin Aleman. After which, the two men left. He
decided not to follow them and went home instead. It was about 11:00 oclock in the evening when he arrived home.
After waking up at 8:00 oclock the following morning, he returned to the scene of the incident. There were many
people gathered in the area, including policemen. He saw a chubby girl and requested her to call the policemen. He
rode in a car with the police officers and the chubby girl. They went to a house in a far place, but no one was there.
He recognized and identified the face of the fat man depicted in the picture (Exhibit "N") shown to him.

On cross-examination, he stated that he did not receive any death threat. In the year 2003, his grandfather died in
Nueva Ecija and he attended the wake. He stayed there until his father, grandmother and another person, whom he
does not know but of the same age as that of his father, fetched him on September 12, 2003. He was taken to
Antipolo where he stayed at the house of the relatives of the victim until December 10, 2003, the day he initially
testified in court. There was no sign language interpreter in the said house. The relatives of the victim gave him
some money which he used to buy for two shirts, two pants and a pair of shoes.

Before going to the basketball court which is a little farther from their house at 7:00 oclock in the evening, he
already ate his evening meal at 6:00 oclock. There were six of them, boys and girls playing basketball. The
basketball court was a full court but they were not playing a real game, just running and shooting. At about 8:00
oclock, they stopped playing, they sat down and had soft drinks. After finishing his soft drink, he urinated in the
shrubbery near the five parked cars.

He added that he is familiar with Sikatuna Bliss but he does not know what building in Sikatuna Bliss was fronting
the five cars that were parked near the basketball court. It was the first time that he saw the fat man and the two
male persons who wore black bonnets which covered their whole face. The fat man was already inside his car when
he was repeatedly stabbed. The fat man was not using his cell phone when the one with the knife knocked twice on
the window of the car. The window of the car was half-opened when the fat man was immediately stabbed. The man
with a gun was on the other side of the car when he fired his gun once. He did not notice any argument between the
fat man and his attacker. He kept a distance of about eight to ten meters between him and the two men as he
followed them. There were no persons around when the two men attacked the fat man. After witnessing the
stabbing, his initial reaction was to follow the culprits. He did not call his playmates because they were still playing.
In fleeing, the two male persons did not run. They just walked fast. He had been [on] their trail for about nine
minutes before they removed their bonnets. He followed them for about thirty minutes.

When he gave his statements to the police, he did not tell them that the knife was buried under the ground. It was
9:56 oclock when the men took off their bonnets. The man with the knife removed the bloodstained white t-shirt that
he was wearing and, along with his bonnet, threw it away in a place he described as flowing or running water. At
about 10:00 oclock, the two men boarded a motorcycle and left. It was the man with the gun who drove the
motorcycle. He took the same route when he walked back home. It was about 10:00 oclock when he passed by the
car of the fat man again. There were no persons when he went back to the basketball court. Thus, he just went
home to sleep and the following morning, he gave his statement to the police.

On re-direct examination, he was asked and he made a drawing (Exhibit "O") showing the basketball court (Exhibit
"O-1"), the five parked cars near the place where he urinated (Exhibit "O-2"), the exact spot where he urinated
(Exhibit "O-3") and the car of the fat man (Exhibit "O-4"). When asked how he was able to see the face of the
accused, he answered that "there was light in the area which he described as near the flowing water where the
accused removed his bonnet." He stated that the light near the flowing water came from a light bulb and the
distance from the witness stand up to second door outside the courtroom represents how far he was from the man
with the knife when the latter took off his bonnet. 7

Mark was 14 years old when he testified. He is a deaf-mute. He was assisted in his testimony by Daniel Catinguil, a
licensed sign language interpreter from the Philippine Registry of Interpreters for the Deaf who has been teaching in
the Philippine School for the Deaf since 1990. Catinguil had also completed a five-year course at the Philippine
Normal University with a degree in teaching special education children. 8

Accused-appellant was 26 years old and a resident of Area 6, Barangay Botocan, Project 2, Quezon City when he
testified. He interposed denial and alibi as his defenses. He claimed that, at the time the incident happened on
February 10, 2003, he was at the billiards hall which was a 15-minute walk from his residence. A road separates the
billiards hall from Sikatuna Bliss.9

On that particular night, accused-appellant went to the billiards hall at around 7:00 in the evening and played
billiards against a certain Ruben. They played until around 10:00 in the evening. Just as they were finished playing,
accused-appellants sister, Hilda Aleman, arrived to fetch him for dinner. He went home with her. The following
morning, after having breakfast, he watched a basketball game and talked to his friends. At around noon, while on
his way back to his house, a neighbor, Vangie Barsaga, called him and informed him that police officers came to his
house looking for him. At around 3:00 in the afternoon of that day, he went to the nearest police station, Camp
Karingal, where he presented himself to Senior Police Officer (SPO) 1, at that time Police Officer 3, Leonardo Pasco
of that stations District Police Intelligence Unit. He asked SPO1 Pasco if they were looking for a certain Edwin
Aleman and, upon receiving a positive answer, he introduced himself. He was informed that he was a suspect in a
killing incident. He was told to stay put while they were waiting for the alleged eyewitness to arrive. On February 13,
2003, he was twice made to join a police line-up together with five others. In both instances, they were ordered to
turn around several times and they complied. Thereafter, he was given a spot report: re: Voluntary Surrender of
Alleged Suspect in a Robbery w/ Homicide Case by a police officer and was informed that he would be turned over
to the custody of the Criminal Investigation Division of Camp Karingal. 10

Accused-appellants testimony that he was at the billiards hall on February 10, 2003 playing against Ruben until
around 10:00 in the evening was corroborated by Filomena Fungo, grandmother of Ruben, who saw accused-
appellant and Ruben playing when she went to the billiards hall twice that night to fetch Ruben. 11 Hilda, accused-
appellants sister, also corroborated accused-appellants testimony that she fetched him from the billiards hall at
around 10:00 in the evening of February 10, 2003. She further stated that, upon getting home, she and accused-
appellant ate dinner together and, thereafter, watched some television shows until accused-appellant went to sleep
some 30 minutes later.12

Accused-appellant also attempted to show that the eyewitness, Mark, failed to identify him during the police line-up.
Defense witness SPO1 Leonardo Pasco stated that he was the one who prepared the spot report although it was
his superior who signed it. He further stated that Mark failed to identify accused-appellant during the police line-up.
Another defense witness, barangay kagawad Ricofredo Barrientos, stated that he was with Mark on February 13,
2003 when Mark was asked to identify the robber-killer of the victim from a line-up. According to Barrientos, a police
officer made a gesture to Mark by slashing his throat with the use of his hand and, after viewing the persons in the
line-up, Mark shook his head. The line-up was presented to Mark twice and he shook his head in both instances. 13

After studying the parties respective evidence, the trial court rejected the defenses of accused-appellant for their
inherent weakness and implausibility. On the other hand, it viewed the prosecutions evidence favorably, particularly
the eyewitness testimony of Mark and his positive identification of accused-appellant as the one who stabbed the
victim. In particular, the trial court found Marks testimony simple and credible. He had no ill motive that would make
him testify falsely against accused-appellant. While there were minor inconsistencies in his testimony, the
discrepancies were inconsequential and did not affect the truthfulness of Marks narration. Thus, in its Decision
dated November 16, 2005, the trial court found accused-appellant guilty beyond reasonable doubt of the crime of
robbery with homicide. The dispositive portion of the Decision reads:

WHEREFORE, finding the accused Edwin Aleman guilty beyond reasonable doubt of the crime of Robbery with
Homicide, described and penalized under Article 294 of the Revised Penal Code, as amended by Republic Act
7659, in relation to Article 63 of the Revised Penal Code, the court hereby sentences him to suffer the penalty of
reclusion perpetua and to indemnify the heirs of Ramon Jaime Birosel as follows:

1. The amount of FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity for the death of the victim;

2. The amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages; and

3. The amount of FOUR HUNDRED SEVENTY-SEVEN THOUSAND FIFTY-FOUR PESOS AND THIRTY
CENTAVOS (P477,054.30) as actual damages.

He is also ordered to reimburse the heirs of the victim the amount of THREE THOUSAND FIVE HUNDRED PESOS
(P3,500.00) representing the value of the Nokia 3315 cellular phone, the amount of THREE THOUSAND FIVE
HUNDRED PESOS (P3,500.00) representing the value of the S-45 Siemens cellular phone, and the amount of
TWENTY THOUSAND PESOS (P20,000.00) representing the value of the necklace, which were all taken from the
victim.

With costs against the accused.14

Accused-appellant appealed his case to the Court of Appeals. He anchored his appeal on the claim that the trial
court erred in convicting him for robbery with homicide. His claim was four-pronged, all aimed at discrediting the
eyewitness, Mark.15

First, accused-appellant questioned the qualification of Mark to be a witness. Accused-appellant argued that, being
a deaf-mute who cannot make known his perception to others as he has no formal education on sign language,
Mark is unqualified to be a witness. In fact, he was unable to give a responsive answer to some questions
propounded to him through the interpreter such as when he could not answer why he preferred to play in a
basketball far from his house than in a nearer one. 16

Second, accused-appellant asserted that Marks testimony was not corroborated by his alleged playmates or by the
"chubby girl" he mentioned in his testimony. Such lack of corroboration weakened Marks testimony. 17

Third, accused-appellant contended that Mark admitted receiving money, new clothes and shoes from the private
complainant before he took the witness stand. This made his testimony highly suspicious. 18

Fourth, accused-appellant highlighted Marks failure to identify him as the perpetrator of the crime in the two
instances that he was presented to Mark in a line-up. This made Marks alleged positive identification of accused-
appellant doubtful.19

In its Decision dated September 28, 2007, the Court of Appeals held that the contentions of accused-appellant
lacked merit.20

The Court of Appeals declared that the capacity of a deaf-mute to testify has long been recognized. The witness
may communicate his perceptions to the court through an interpreter. In this case, Marks testimony was facilitated
by Catinguil, a licensed sign language interpreter who has been teaching in the Philippine School for the Deaf since
1990. With the help of Catinguil, the trial court determined that Mark is not mentally deficient and that he was able to
tell time, space and distance. He was able to draw and make sketches in open court to show the relative position of
things and persons as he perceived like a normal person. By using signs and signals, he was able to recount clearly
what he witnessed in the evening of February 10, 2003. According to the appellate court, the above established
Marks competence as a witness.21

The Court of Appeals also found that Marks testimony was corroborated by the findings of the medico-legal officer
who autopsied the victims corpse that the cause of death was hemorrhagic shock secondary to multiple stab
wounds in the thorax. This physical evidence is an eloquent manifestation of truth and its evidentiary weight is far
more than that of corroborative testimonies.22

The Court of Appeals rejected as groundless accused-appellants imputation to Mark of improper motive or bias. It
also pointed out the irrelevance of non-identification of an accused in a police line-up. What is important is the
positive identification of the accused as the perpetrator of the crime by the witness in open court. 23

Thus, the Court of Appeals agreed with the trial court that the prosecution was able to establish beyond reasonable
doubt all the elements of robbery with homicide. It upheld the conviction of accused-appellant for the said felony.
The decretal portion of the Decision dated September 28, 2007 reads:

WHEREFORE, premises considered, the decision dated November 16, 2005 of the Regional Trial Court [(RTC)],
National Capital Judicial Region, Branch 76, Quezon City, in Criminal Case No. Q-03-118348 is AFFIRMED. 24

Accused-appellant is now before this Court insisting on the failure of the prosecution to prove his guilt beyond
reasonable doubt on the very same grounds he raised in the Court of Appeals.

This Court is not persuaded.

Both the RTC and the Court of Appeals found that accused-appellant stabbed the victim several times, causing the
latters death, for the purpose of depriving the victim of his personal properties, which personalties accused-
appellant took away with him before leaving the scene of the crime. The killing of the victim was by reason of the
robbery. It therefore constitutes the special complex crime of robbery with homicide. This finding of the trial court as
affirmed by the appellate court is conclusive to this Court. Also, a review of the records show that both the trial and
the appellate courts did not miss, misapply or misinterpret any relevant fact that would warrant an alteration of their
identical conclusions as to the criminal responsibility of accused-appellant. 25

The Court of Appeals has sufficiently addressed the concerns of accused-appellant. Accused-appellant has
presented no compelling reason that would justify the reversal of his conviction.

The mere fact that Mark is a deaf-mute does not render him unqualified to be a witness. The rule is that "all persons
who can perceive, and perceiving, can make known their perception to others, may be witnesses." 26 A deaf-mute
may not be able to hear and speak but his/her other senses, such as his/her sense of sight, remain functional and
allow him/her to make observations about his/her environment and experiences. The inability to hear and speak
may prevent a deaf-mute from communicating orally with others but he/she may still communicate with others in
writing or through signs and symbols and, as in this case, sketches. Thus, a deaf-mute is competent to be a witness
so long as he/she has the faculty to make observations and he/she can make those observations known to others.
As this Court held in People v. Tuangco27:

A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving, can make known their
perception to others, may be witnesses. Deaf-mutes are competent witnesses where they (1) can understand and
appreciate the sanctity of an oath; (2) can comprehend facts they are going to testify on; and (3) can communicate
their ideas through a qualified interpreter. Thus, in People vs. De Leon and People vs. Sasota, the accused was
convicted on the basis of the testimony of a deaf-mute. x x x. (Citations omitted.)

When a deaf-mute testifies in court, "the manner in which the examination of a deaf-mute should be conducted is a
matter to be regulated and controlled by the trial court in its discretion, and the method adopted will not be reviewed
by the appellate court in the absence of a showing that the complaining party was in some way injured by reason of
the particular method adopted."28

In this case, both the trial and the appellate courts found that Mark understood and appreciated the sanctity of an
oath and that he comprehended the facts he testified on. This Court sees no reason in ruling otherwise.

Mark communicated his ideas with the help of Catinguil, a licensed sign language interpreter from the Philippine
Registry of Interpreters for the Deaf who has been teaching in the Philippine School for the Deaf since 1990 and
possessed special education and training for interpreting sign language. The trial and the appellate courts found
Catinguil qualified to act as interpreter for Mark. No ground to disturb that finding exists.
Mark communicated a credible account of the things he perceived on that fateful February 10, 2003 the situation
of the victim who had just boarded his car; the respective positions of accused-appellant and his still unidentified
cohort vis--vis the victim; accused-appellants knock on the window of the victims car and the sudden series of
stabs accused-appellant inflicted upon the victim; the taking of the victims various personal properties; accused-
appellants walk away from the crime scene; and, the revelation of accused-appellants identity when he finally
removed the bonnet that covered his face, unaware that someone was secretly and silently watching. In this
connection, the Court of Appeals correctly observed that "despite intense and grueling cross-examinations, the
eyewitness responded with consistency upon material details that could only come from a firsthand knowledge of
the shocking events which unfolded before his eyes."29 The imperfections or inconsistencies cited by accused-
appellant were due to the fact that there is some difficulty in eliciting testimony where the witness is a deaf-
mute.30Besides they concerned material details which are neither material nor relevant to the case. As such, those
discrepancies do not detract from the credibility of Marks testimony, much less justify the total rejection of the same.
What is material is that he positively identified accused-appellant and personally saw what accused-appellant did to
the victim on the fateful night when the incident happened. The trial courts assessment of the credibility of Mark,
which was affirmed by the appellate court, deserves the highest respect of this Court.

Moreover, the Court of Appeals correctly observed that Marks testimony was corroborated by the findings of the
medico-legal officer who autopsied the victims corpse that the cause of death was "hemorrhagic shock secondary
to multiple stab wounds in the thorax."31 The multiple mortal wounds inflicted on the victim constitute physical
evidence which further establish the truth of Marks testimony. Its evidentiary value far outweighs any corroborative
testimony which accused-appellant requires of the prosecution. Moreover, the settled rule is that the positive and
credible testimony of a single witness is sufficient to secure the conviction of an accused. 32

The RTC and the Court of Appeals saw no improper motive which would impel Mark to testify falsely against
accused-appellant. As the determination of bad faith, malice or ill motive is a question of fact, this Court respects the
unanimous finding of the trial and the appellate courts on the matter.

Accused-appellants attempt to render doubtful Marks identification of him fails. Indeed, the law requires not simply
1wphi1

an eyewitness account of the act of committing the crime but the positive identification of the accused as the
perpetrator of the crime.33 Here, Mark has positively pointed to accused-appellant as the perpetrator of the crime.
The Court of Appeals correctly ruled that Marks failure to identify accused-appellant in a police line-up on February
13, 2003 was of no moment. There is no law stating that a police line-up is essential to proper identification. What
matters is that the positive identification of the accused as the perpetrator of the crime be made by the witness in
open court.34 Nevertheless, the records show that Mark identified accused-appellant as the robber-killer of the victim
in a police line-up on February 18, 200335 and, more importantly, in open court in the course of Marks testimony.

In sum, the trial and the appellate courts correctly convicted accused-appellant for the special complex crime of
robbery with homicide. Accused-appellants crime is punishable under Article 294(1) of the Revised Penal Code, as
amended by Republic Act No. 7659, by reclusion perpetua to death. Article 63 of the Revised Penal Code states
that when the law prescribes a penalty consisting of two indivisible penalties, and the crime is not attended by any
aggravating circumstance, the lesser penalty shall be imposed. 36 Considering that no modifying circumstance
attended the commission of the crime, the penalty imposed by the trial and the appellate courts, reclusion perpetua,
is proper.

The civil indemnity is increased from P50,000.00 to P75,000.00, the current amount of civil indemnity awarded in
cases of murder.37 Robbery with homicide belongs to that class of felony denominated as "Robbery with violence
against or intimidation of persons"38 under Article 294 of the Revised Penal Code and the killing or death of a person
is committed "by reason or on occasion of the robbery." The increase in the amount of civil indemnity is called for as
the special complex crime of robbery with homicide, like murder, involves a greater degree of criminal propensity
than homicide alone where the civil indemnity awarded is P50,000.00.

The P50,000.00 imposed as moral damages is proper and conforms to recent jurisprudence. 39

The reimbursement of actual damages in the total amount of P477,054.30 for various funeral-related expenses is
proper as it is fully supported by evidence on record. The same holds true for the payment of the value of the items
taken from the victim, namely, two cellphones at P3,500.00 each and the necklace at P20,000.00.
In addition, and in conformity with current policy, we also impose on all the monetary awards for damages (namely,
the civil indemnity, moral damages and actual damages) interest at the legal rate of 6% per annum from date of
finality of this Decision until fully paid. 40

WHEREFORE, the Decision dated September 28, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02100
affirming the Decision dated November 16, 2005 of the Regional Trial Court of Quezon City, Branch 76 in Criminal
Case No. Q-03-118348 which found accused-appellant Edwin Aleman guilty beyond reasonable doubt of the special
complex crime of robbery with homicide is AFFIRMED with MODIFICATION in so far as legal interest at the rate of
6% per annum is imposed on the civil indemnity, moral damages and actual damages awarded to the heirs of the
victim, which shall commence from the date of finality of this decision until fully paid.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

C E RTI F I CATI O N

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

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1
Rollo, pp. 2-18; penned by Associate Justice Marlene Gonzales-Sison with Associate Justices Juan Q.
Enriquez, Jr. and Vicente S.E. Veloso, concurring.

2
CA rollo, pp. 32-42.

3
Records, p. 1.

4
Id. at 26; Order dated September 23, 2003.

5
Id. at 226; Exhibit "K," Medico Legal Report No. M-0425-03.

6
Rollo, p. 4.

7
Id. at 5-7.
8
Id. at 4-5.

9
Id. at 8-9.

10
Id.

11
Id. at 10. The first time was at around 8:00 p.m. and the second time was at around 10:00 p.m. when she
finally fetched Ruben.

12
Id.

13
Id. at 9-10.

14
CA rollo, p. 42.

15
Id. at 52-70. Brief for the Accused-Appellant.

16
Id. at 61-63.

17
Id. at 63-64.

18
Id. at 64-65.

19
Id. at 66-70.

20
Rollo, p. 12.

21
Id. at 12-13.

22
Id. at 13-14.

23
Id. at 14-17.

24
Id. at 18.

25
The general rule is that the factual findings of the trial court deserve a high degree of respect and will not
be disturbed on appeal in the absence of any clear showing that it overlooked, misapprehended or
misapplied some facts or circumstances of weight and substance which can alter the result of the case.
(Navarrete v. People, 542 Phil. 496, 506 [2007].)

26
Rules of Court, Rule 130, Section 20.

27
399 Phil. 147, 162 (2000).

28
Id. at 163.

29
Rollo, p. 13.

30
People v. Tuangco, supra note 27 at 163.

31
Rollo, p. 13.

32
People v. Sabado, 398 Phil. 1107, 1120 (2000).

33
People v. Paracale, 442 Phil. 32, 43 (2002).
 34
People v. Guillermo, 461 Phil. 543, 561 (2003).

35
Records, pp. 188-190; Exhibit "A," Sinumpaang Salaysay ni Mark Almodovar y Cagolada.

36
People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236, 260.

People v. Malicdem, G.R. No. 184601, November 12, 2012, 685 SCRA 193, 206; People v. Laurio, G.R.
37

No. 182523, September 13, 2012, 680 SCRA 560, 572.

38
This felony includes robbery with homicide (paragraph 1), robbery with rape (paragraph 2), robbery with
serious physical injuries (paragraphs 3 and 4) and simple robbery (paragraph 5).

39
Id.

40
People v. Laurio, supra note 37 at 573. See also People v. Combate (G.R. No. 189301, December
15,2010,638 SCRA 797, 824) where this Court ruled that interest of 6%per annum should be imposed on the
award of civil indemnity and all damages, i.e., actual or compensatory damages, moral damages and
e'<emplary damages, from the date of finality of judgment until fully paid.

THIRD DIVISION

G.R. No. 191185, February 01, 2016

GUILBEMER FRANCO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

REYES, J.:

The Constitution presumes a person innocent until proven guilty by proof beyond reasonable doubt. The prosecution cannot
be allowed to draw strength from the weakness of the defense's evidence for it has the onus probandi in establishing the
guilt of the accused - ei incumbit probatio qui elicit, non que negat he who asserts, not he who denies, must prove.1 chanRoblesvirtualLawlibrary

Nature of the Case

Before the Court is a Petition for Review on Certiorari2 under Rule 45 of the Rules of Court where petitioner Guilbemer Franco
(Franco) assails the Decision3 dated September 16, 2009 of the Court of Appeals (CA), in CA-G.R. CR No. 31706, affirming
the Decision4 dated February 27, 2008 of the Regional Trial Court (RTC) of Manila, Branch 15, in Criminal Case No. 05-
238613. The RTC convicted Franco of the crime of Theft under an Information, which reads as follows: ChanRoblesVirtualawlibrary

That on or about November 3, 2004, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, with intent to gain and without the knowledge and consent of the owner thereof, take, steal and
carry away one (1) Nokia 3660 Model cellular phone worth Php 18,500.00 belonging to BENJAMIN JOSEPH NAKAMOTO Y
ERGUIZA to the damage and prejudice of the said owner in the aforesaid amount of Php 18,500.00, Philippine Currency.

Contrary to law.5 chanroblesvirtuallawlibrary

On September 5, 2005, Franco, assisted by counsel, pleaded not guilty to the crime charged. 6 chanRoblesvirtualLawlibrary

The Facts

The evidence for the prosecution established the following facts:

On November 3, 2004 at around 11:00 a.m., Benjamin Joseph Nakamoto (Nakamoto) went to work out at the Body Shape
Gym located at Malong Street, Tondo, Manila. After he finished working out, he placed his Nokia 3660 cell phone worth
PI8,500.00 on the altar where gym users usually put their valuables and proceeded to the comfort room to change his
clothes. After ten minutes, he returned to get his cell phone, but it was already missing. Arnie Rosario (Rosario), who was
also working out, informed him that he saw Franco get a cap and a cell phone from the altar. Nakamoto requested everyone
not to leave the gym, but upon verification from the logbook, he found out that Franco had left within the time that he was in
the shower.7 chanroblesvirtuallawlibrary

The gym's caretaker, Virgilio Ramos (Ramos), testified that he saw Franco in the gym but he was not working out and was
just going around the area. In fact, it was just Franco's second time at the gym. Ramos even met him near the door and as
Franco did not log out, he was the one who indicated it in their logbook. When Nakamoto announced that his cell phone was
missing and asked that nobody leaves the place, he put an asterisk opposite the name of Franco in the logbook to indicate
that he was the only one who left the gym after the cell phone was declared lost. 8 chanroblesvirtuallawlibrary

Nakamoto, together with Jeoffrey Masangkay, a police officer who was also working out at the gym, tried to locate Franco
within the gym's vicinity but they failed to find him. They proceeded to the police station and while there, a report was
received from another police officer that somebody saw Franco along Coral Street, which is near the gym and that he was
holding a cell phone. They went to Coral Street but he was already gone. A vendor told them that he saw a person who was
holding a cell phone, which was then ringing and that the person was trying to shut it off. When they went to Franco's house,
they were initially not allowed to come in but were eventually let in by Franco's mother. They talked to Franco who denied
having taken the cell phone.9 chanroblesvirtuallawlibrary

Nakamoto then filed a complaint with the barangay but no settlement was arrived thereat; hence, a criminal complaint for
theft was filed against Franco before the City Prosecutor's Office of Manila, docketed as I.S. No. 04K-25849. 10 chanroblesvirtuallawlibrary

In his defense, Franco denied the charge, alleging that if Nakamoto had indeed lost his cell phone at around 1:00 p.m., he
and his witnesses could have confronted him as at that time, he was still at the gym, having left only at around 2:45
p.m.11 He also admitted to have taken a cap and cell phone from the altar but claimed these to be his. 12 chanRoblesvirtualLawlibrary

Ruling of the RTC

In its Decision dated February 27, 2008, the RTC convicted Franco of theft, the dispositive portion of which reads: ChanRoblesVirtualawlibrary

IN VIEW OF THE FOREGOING, this Court finds [Franco], GUILTY beyond reasonable doubt of the crime of theft penalized in
paragraph I of Article 309 in relation to Article 308 of the Revised Penal Code and hereby imposes upon him the penalty of
imprisonment of two (2) years, four (4) months and one (1) day as minimum to seven (7) years and four (4) months as
maximum and to pay the complainant Php 18,500.00.

SO ORDERED.13 chanroblesvirtuallawlibrary

The RTC did not find Franco's defense credible and ruled that his denial cannot be given evidentiary value over the positive
testimony of Rosario.14 chanroblesvirtuallawlibrary

Franco then appealed to the CA.15 chanRoblesvirtualLawlibrary

Ruling of the CA

In affirming the RTC decision, the CA found the elements of theft to have been duly established. It relied heavily on the
"positive testimony" of Rosario who declared to have seen Franco take a cap and a cell phone from the altar. The CA likewise
gave credence to the testimony of Ramos who confirmed that it was only Franco who left the gym immediately before
Nakamoto announced that his cell phone was missing. Ramos also presented the logbook and affirmed having put an asterisk
opposite the name "ELMER," which was entered by the accused upon logging in. The CA stated that taken together, the
foregoing circumstances are sufficient to support a moral conviction that Franco is guilty, and at the same time, inconsistent
with the hypothesis that he is innocent.16 The CA further ruled that the RTC cannot be faulted for giving more weight to the
testimony of Nakamoto17 and Rosario,18 considering that Franco failed to show that they were impelled by an ill or improper
motive to falsely testify against him.19 chanroblesvirtuallawlibrary

In his petition for review, Franco presented the following issues for resolution, to wit: ChanRoblesVirtualawlibrary

I.

WHETHER THE HONORABLE [CA] ERRED IN GIVING WEIGHT AND CREDENCE TO THE PROSECUTION WITNESSES'
INCONSISTENT AND IRRECONCILABLE TESTIMONIES. chanRoblesvirtualLawlibrary

II.

WHETHER THE HONORABLE [CA] ERRED IN AFFIRMING [FRANCO'S] CONVICTION DESPITE THE FACT THAT THE SAME WAS
BASED ON FABRICATIONS AND PRESUMPTIONS. chanRoblesvirtualLawlibrary

III.

WHETHER. THE HONORABLE [CA] ERRED IN ACCEPTING THE VALUE OF THE ALLEGEDLY STOLEN CELLULAR PHONE
WITHOUT SUBSTANTIATING EVIDENCE.20 chanroblesvirtuallawlibrary

Ruling of the Court

Preliminarily, the Court restates the rule that only errors of law and not of facts are reviewable by this Court in a petition for
review on certiorari under Rule 45 of the Revised Rules of Court. This rule applies with greater force when the factual findings
of the CA are in full agreement with that of the RTC. 21 chanroblesvirtuallawlibrary

The rule, however, is not ironclad. A departure therefrom may be warranted when it is established that the RTC ignored,
overlooked, misconstrued or misinterpreted cogent facts and circumstances, which, if considered, will change the outcome of
the case. Considering that what is at stake here is liberty, the Court has carefully reviewed the records of the case 22 and finds
that Franco should be acquitted.

Failure of the prosecution to prove Franco's guilt beyond reasonable doubt

The burden of such proof rests with the prosecution, which must rely on the strength of its case rather than on the weakness
of the case for the defense. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty
that would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the constitutional
presumption of innocence.23 chanroblesvirtuallawlibrary

In every criminal conviction, the prosecution is required to prove two things beyond reasonable doubt: first, the fact of the
commission of the crime charged, or the presence of all the elements of the offense; and second, the fact that the accused
was the perpetrator of the crime.24 chanroblesvirtuallawlibrary

Under Article 308 of the Revised Penal Code, the essential elements of the crime of theft are: (1) the taking of personal
property; (2) the property belongs to another; (3) the taking away was done with intent to gain; (4) the taking away was
done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against
person or force upon things.25 cralawred

The corpus delicti in theft has two elements, to wit: (1) that the property was lost by the owner; and (2) that it was lost by
felonious taking.26 In this case, the crucial issue is whether the prosecution has presented proof beyond reasonable doubt to
establish the corpus delicti of the crime. In affirming Franco's conviction, the CA ruled that the elements were established.
Moreover, the RTC and the CA apparently relied heavily on circumstantial evidence.

To sustain a conviction based on circumstantial evidence, Section 4, Rule 133 of the Rules of Court provides that the
following requisites must concur: (1) there must be more than one circumstance to convict; (2) the facts on which the
inference of guilt is based must be proved; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. With respect to the third requisite, it is essential that the circumstantial evidence
presented must constitute an unbroken chain, which leads one to a fair and reasonable conclusion pointing to the accused, to
the exclusion of others, as the guilty person.27 chanroblesvirtuallawlibrary

The prosecution presented three (3) witnesses - Nakamoto, the complainant; Ramos, the gym's caretaker; and Rosario,
another gym user.

Their testimonies established the following circumstances: (1) Nakamoto placed his cell phone on the altar, 28 left and went to
change his clothes, and alter ten minutes, returned to get his cell phone but the same was already missing; 29 (2) Rosario saw
Franco get a cap and a cell phone from the same place; 30 and (3) Ramos saw Franco leave the gym at 1:15 p.m. and the
latter failed to log out in the logbook. 31 The RTC and the CA wove these circumstances in order to arrive at the "positive
identification" of Franco as the perpetrator.32 chanroblesvirtuallawlibrary

A perusal of their testimonies, however, shows that certain facts have been overlooked by both courts.

For one, it was only Rosario who saw Franco get a cap and a cell phone from the altar. His lone testimony, however, cannot
be considered a positive identification of Franco as the perpetrator. 33 chanroblesvirtuallawlibrary

In People v. Pondivida,34 the Court held: ChanRoblesVirtualawlibrary

Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused in a
criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the
very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a
crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and
right after the commission of the crime. This is the second, type of positive identification, which forms part of circumstantial
evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to only fair and
reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. x x x. 35 (Emphasis
omitted and underscoring ours)
Rosario's testimony definitely cannot fall under the first category of positive identification. While it may support the
conclusion that Franco took a cell phone from the altar, it does not establish with certainty that what Franco feloniously took,
assuming that he did, was Nakamoto's cell phone. Rosario merely testified that Franco took "a cell phone." He
stated:ChanRoblesVirtualawlibrary

Q: How did you know that the said cell phone was taken by the accused?
A: [W]e were then in a conversation when I asked him to spot or assist me with the
weights that I intended to carry. We were then situated in an area very near the
altar where his cap and cell phone were placed. After assisting me, he went to
the area and took the cell phone and the cap at the same time.
Q: [W]ho were you talking [sic] at that time?
A: Guilbemer Franco.

Q: It was also [G]uilbemer Franco who helped or spot you in the work out?
A: Yes, sir.

Q: And after assisting you, what did Franco do?

A: He took the cell phone of Mr. Nakamoto and his cap at the same time and covered
the cell phone by his cap and left the place.

Q: Where was that cell phone of the private complainant placed at that time?
A: At the top of the altar where is [sic] cap is also located.

Q: How far was that altar from where you were working?
A: Only inches.

Q: It was directly in front of you?

A: Yes, sir.

Q: What did you do when the accused took the cap as well as the cell phone of
the private complainant?
A: None, sir. I thought the cap and cell phone was his.

Q: How did you know that the cell phone belongs to the private complainant?
A: After Mr. Nakamoto came out from the shower, he went directly to the altar
to get his cell phone which was not there anymore and asked us where his
cell phone and I told him that I saw Mr. Franco get a cell phone from that
area.36 (Emphasis ours)
On cross-examination, Rosario also stated that he did not actually see Franco take Nakamoto's cell phone 37 but on re-direct,
he clarified that he did not see the cell phone of Nakamoto because he thought that the cell phone was owned by
Franco.38chanroblesvirtuallawlibrary

What was firmly established by Rosarios testimony is that Franco took a cell phone from the altar. But Franco even admitted
such fact.39 What stands out from Rosario's testimony is that he was unable to particularly describe at first instance what or
whose cell phone Franco took from the altar. lie only assumed that it was Nakamoto's at the time the latter announced that
his cell phone was missing. This was, in tact, observed by the RTC in the course of Rosario's testimony,
thus:ChanRoblesVirtualawlibrary

COURT: What you actually saw was, [G]uilbemer Franco was taking his cap together
 with the cell phone placed beside the cap but you do not know that [the] cell
phone was Bj's or Nakamoto's?
A: [Y]es, Your Honor.

COURT: You just presumed that the cell phone taken by Guilbemer Franco was
his?
A: Yes, Ma'am.40 (Emphasis ours)
Moreover, it must be noted that save for Nakamoto's statement that he placed his cell phone at the altar, no one saw
him actually place his cell phone there. This was confirmed by Rosario -
COURT:
Q: And on that day, you were able to see that Nakamoto on four incidents, when he
logged-in, during work-out and when he went inside the C.[R].?
A: Yes, sir.

Q: Therefore, you did not see Nakamoto place his cell phone at the Altar?
A: Yes, sir.41 (Emphasis ours)
Ramos, the gym caretaker, also testified that he did not see Franco take Nakamoto's cell phone and only assumed that
the cell phone on the altar was Nakamoto's, thus -
Q: And do you know who owns that cell phone put [sic] over the altar?
A: Benjamin Nakamoto.

Q: How do you know that it belongs to Benjamin Nakamoto?

A: He is the only one who brings a cell phone to the gym.

xxxx

Q: [D]id you actually see him take the cell phone of Nakamoto?
A: I did not see him take the [cell] phone but as soon as the cell phone was lost, he
was the only one who left the gym.42 chanroblesvirtuallawlibrary

Neither can the prosecution's testimonial evidence fall under the second category of positive identification, that is, Franco
having been identified as the person or one of the persons last seen immediately before and right after the commission of
the theft. Records show that there were other people in the gym before and after Nakamoto lost his cell phone. In fact,
Nakamoto himself suspected Rosario of having taken his cell phone, thus:ChanRoblesVirtualawlibrary

ATTY. SANCHEZ:

Q: You said that you stayed inside the rest room for more or less 10 minutes?
A: [Y]es, sir.
Q: After 10 minutes, you don't know whether aside from Franco somebody went out
from the gym because you were inside the c.r.?
A: Yes. sir.

xxxx

Q: As a matter of fact, one of your witness[es] who went near the place where your cell
phone was placed was this Arnie Rosario?
A: Yes, sir.

Q: And it was only the accused and [Rosario] who were near the place where you said
you placed the cell phone?
A: Yes, sir.

Q: You did not suspect [Rosario] to have taken the cell phone?
A: I also suspected, sir.43 (Emphasis ours)
Moreover, the prosecution witnesses confirmed that the altar is the usual spot where the gym users place their valuables.
According to Rosario:ChanRoblesVirtualawlibrary

ATTY. SANCHEZ:
Q: And in that place, you said there was a Sto. Nino?
A: At the Altar.

Q: Those who work-out in that gym usually place their things [on top of] the
altar.
A: Yes, sir.

Q: Therefore, there were people who place their cell phones on top [of] the
Altar?
A: Yes, sir.

Q: Aside from Nakamoto, other people place their things on top [of] the Altar?
A: Yes, sir.44 (Emphasis ours)
The prosecution's evidence does not rule out the following possibilities: one, that what Franco took was his own cell
phone; two, even on the assumption that Franco stole a cell phone from the altar, that what he feloniously took was
Nakamoto's cell phone, considering the feet that at the time Nakamoto was inside the changing room, other people may
have placed their cell phone on the same spot; and three, that some other person may have taken Nakamoto's cell phone.
It must be emphasized that "[c]ourts must judge the guilt or innocence of the accused based on facts and not on mere
conjectures, presumptions, or suspicions."45 It is iniquitous to base Franco's guilt on the presumptions of the prosecution's
witnesses for the Court has, time and again, declared that if the inculpatory facts and circumstances are capable of two or
more interpretations, one of which being consistent with the innocence of the accused and the other or others consistent with
his guilt, then the evidence in view of the constitutional presumption of innocence has not fulfilled the test of moral certainty
and is thus insufficient to support a conviction.46 chanroblesvirtuallawlibrary

Franco also asserts that the logbook from which his time in and time out at the gym was based was not identified during the
trial and was only produced after Ramos testified. 47 Ramos testified that when Nakamoto announced that his cell phone was
missing and asked that nobody leaves the place, he put an asterisk opposite the name of Franco in the logbook to indicate
that he was the only one who left the gym after the cell phone was declared lost. 48 chanroblesvirtuallawlibrary

Under the Rules on Evidence, documents are either public or private. Private documents are those that do not fall under any
of the enumerations in Section 19, Rule 132 of the Rules of Court. 49Section 20 of the same Rule, in turn, provides that before
any private document is received in evidence, its due execution and authenticity must be proved either by anyone who saw
the document executed or written, or by evidence of the genuineness of the signature or handwriting of the maker. 50 chanroblesvirtuallawlibrary

In this case, the foregoing rule was not followed. The testimony of Ramos shows that the logbook, indeed, was not identified
and authenticated during the course of Ramos' testimony. At the time when Ramos was testifying, he merely referred to the
log in and log out time and the name of the person at page 104 of the logbook that appears on line 22 of the entries for
November 3, 2004. This was photocopied and marked as Exhibit "C-1." 51 Meanwhile, when Nakamoto was presented as
rebuttal witness, a page from the logbook was again marked as Exhibit "D." 52 The logbook or the particular page referred to
by Ramos was neither identified nor confirmed by him as the same logbook which he used to log the ins and outs of the gym
users, or that the writing and notations on said logbook was his.

The prosecution contends, meanwhile, that the RTC's evaluation of the witnesses' credibility may no longer be questioned at
this stage.53 The Court is not unmindful of the rule that the assignment of value and weight to the testimony of a witness is
best left to the discretion of the RTC. But an exception to that rule shall be applied in this ease where certain facts of
substance and value, if considered, may affect the result. 54 In Lejano v. People,55 the Court stated: ChanRoblesVirtualawlibrary

A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly
finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not
automatically cancel out the accused's claim that he did not do it. A lying witness can make as positive an identification as a
truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an
eye.56
chanroblesvirtuallawlibrary

The facts and circumstances proven by the prosecution, taken together, are not sufficient to justify the unequivocal
conclusion that Franco feloniously took Nakamoto's cell phone. No other convincing evidence was presented by the
prosecution that would link him to the theft.57 The fact Franco took a cell phone from the altar does not necessarily point to
the conclusion that it was Nakamoto's cell phone that he took. In the appreciation of circumstantial evidence, the rule
is that the circumstances must be proved, and not themselves presumed. The circumstantial evidence must exclude
the possibility that some other person has committed the offense charged. 58 chanroblesvirtuallawlibrary

Franco, therefore, cannot be convicted of the crime charged in this case. There is not enough evidence to do so. As a rule, in
order to support a conviction on the basis of circumstantial evidence, all the circumstances must be consistent with the
hypothesis that the accused is guilty. In this case, not all the facts on which the inference of guilt is based were proved. The
matter of what and whose cell phone Franco took from the altar still remains uncertain. chanRoblesvirtualLawlibrary

Franco's defense of denial

The evidence of the prosecution must stand on its own weight and not rely on the weakness of the defense. 59 In this case,
Franco did not deny that he was at the Body Shape Gym on November 3, 2004, at around 1:00 p.m. and left the place at
around 2:45 p.m.60 He did not even deny that he took a cell phone from the altar together with his cap. What he denied is
that he took Nakamoto's cell phone and instead, claimed that what he took is his own cell phone. 61 Denial may be weak but
courts should not at once look at them with disfavor. There are situations where an accused may really have no other
defenses but denial, which, if established to be the truth, may tilt the scales of justice in his favor, especially when the
prosecution evidence itself is weak.62 chanroblesvirtuallawlibrary

While it is true that denial partakes of the nature of negative and self-serving evidence and is seldom given weight in
law,63 the Court admits an exception established by jurisprudence that the defense of denial assumes: significance when the
prosecution's evidence is such that it does not prove guilt beyond reasonable doubt. 64 The exception applies in the case at
hand. The prosecution failed to produce sufficient evidence to overturn the constitutional guarantee that Franco is presumed
to be innocent. chanRoblesvirtualLawlibrary

Value of the cell phone

It is also argued by Franco that the value of the cell phone must be duly proved with reasonable degree of certainty. On the
other hand, the people contended that there has been a judicial admission of the same. 65 This issue, however, is now moot
and academic considering Franco's acquittal. chanRoblesvirtualLawlibrary
 Conclusion

The circumstantial evidence proven by the prosecution in this case failed to pass the test of moral certainty necessary to
warrant Franco's conviction. Accusation is not synonymous with guilt. 66 Not only that, where the inculpatory facts and
circumstances are capable of two or more explanations or interpretations, one of which is consistent with the innocence of
the accused and the other consistent with his guilt, then the evidence does not meet or hurdle the test of moral certainty
required for conviction.67 chanroblesvirtuallawlibrary

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated September 16, 2009 in CA-GR. CR No.
31706 is hereby REVERSED and SET ASIDE. Petitioner Guilbemer Franco is ACQUITTED of the crime of Theft charged in
Criminal Case No. 05-238613 because his guilt was not proven beyond reasonable doubt.

No costs.

SO ORDERED. cralawlawlibrary

Velasco, Jr., (Chairperson), Peralta, Perez, and Jardeleza, JJ., concur. cralawlawlibrary

Endnotes:

People v. Masalihit, 360 Phil. 332, 343 (1998).

1

Rollo, pp. 10-30.

2

3
Penned by Associnte Justice Estela M. Perlas-Bernabe (now a member of this Court), with Associate Justices Amelita G.
Tolentino and Stephen C. Cruz concurring; CA rollo, pp. 88-92.

4
Rendered by Presiding Judge Mercedes Posada-Lacap; records, pp. 62-66.

5
Id. at 1.

Rollo, p. 34.
6

7
Id. at 33-34.

8
Records, pp. 64-65.

9
Id. at 63-64.

10
Rollo, p. 34; TSN, February 8, 2006, pp. 14-15.

11
Records, p. 9.

12
TSN, January 29, 2007, p. 5.

13
Records, p. 66.

14
Id. at 65-66.

15
Id. at 70-71.

16
Rollo, pp. 35-36.

17
TSN, February 8, 2006, pp. 1-19.

18
TSN, April 19, 2006, pp. 1-15.

19
People, v. PFC Malejana, 515 Phil. 584, 597 (2006).

20
Rollo, p. 17.

21
Boneng, v. People, 363 Phil. 594, 600 (1999).

22
People v. Agulay, 588 Phil. 247, 263 (2008).

23
People v. Villanueva, 427 Phil. 102, 128 (2002).
24
People v. Santos, 388 Phil. 993, 1004 (2000).

25
People v. Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284, 291.

26
Tan v. People, 372 Phil. 93, 105 (1999).

27
People v. Ayola, 416 Phil. 861, 872 (2001).

28
CA rollo, p. 88.

29
TSN, February 8, 2006, pp. 4-5.

30
Id. at 5; TSN April 19, 2006, p. 5.

31
TSN, August 28, 2006, pp. 6-7.

32
CA rollo, pp. 90-91.

33
Rollo, p. 66.

34
G.R. No. 188969, February 27, 2013, 692 SCRA 217.

35
Id. at 222, citing People v. Caliso, 675 Phil. 742, 755 (2011).

36
TSN, April 19, 2006, pp . 4-5.

37
Id. at 111.

38
Id. at 12.

39
TSN, January 29, 2007, pp. 5-9.

40
TSN, April 19, 2006, p. 12.

41
Id. at 10.

42
TSN, August 28, 2006, pp. 6-7.

43
TSN, February 8, 2006, p. 11.

44
TSN, April 19, 2006, p. 10.

45
People v. Anabe, 644 Phil. 261, 281 (2010).

People v. Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364, 373, citing People v. Remorosa, G.R. No. 8 1768,
46

August 7, 1091, 200 SCRA 350, 360.

47
Rollo, p. 48.

48
Id. at 54-55.

49
Sec. 19. Classes of Documents. - For the purpose of their presentation in evidence, documents are either public or
private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of a
foreign country;
(b) Documents acknowledge before a notary public except last wills and testaments;
and
(c) Public records kept in the Philippines, or private documents required by law to be
entered therein.
All other writings are private.

50
Sanvicente v. People, 441 Phil. 139, 151 (2002).

51
TSN, August 28, 2006, pp. 7, 14.

52
TSN, March 19, 2007, p. 4.

53
Rollo, p. 66.

54
People v. Deunida, G.R. Nos. 105199-200, March 28, 1994, 231 SCRA 520, 532.

55
652 Phil. 512 (2010).

56
Id. at 581.

57
Rollo, p. 24.

58
People v. Anabe, supra note 45.

59
People v. Tan, 432 Phil. 171, 199 (2002).

60
Rollo, pp. 45-46.

61
TSN, January 29, 2007, pp. 5-6.

62
People v. Ladrillo, 377 Phil. 904, 917 (1999).

63
People v. Caete, 364 Phil. 423, 435 (1999).

64
People v. Mejia, 612 Phil. 668, 687 (2009).

65
TSN, February 8, 2006, p. 6.

66
See People v. Manambit, 338 Phil. 57 (1997).

67
Atienza v. People, G.R. No. 188694, February 12, 2014, 716 SCRA 84, 104-105

PEOPLE OF THE PHILIPPINES, G.R. No. 158362

Plaintiff-Appellee,
Present:

CARPIO MORALES, Chairperson,

- versus - BRION,
BERSAMIN,
VILLARAMA, JR., and
GILBERTO VILLARICO, SR. @ SERENO, JJ.
BERTING, GILBERTO Promulgated:
VILLARICO, JR., JERRY
RAMENTOS, and RICKY April 4, 2011
VILLARICO,
Accused-Appellants.
x-----------------------------------------------------------------------------------------x
 DECISION

BERSAMIN, J:

The identification of the accused as the person responsible for the imputed crime is the primary
duty of the State in every criminal prosecution. Such identification, to be positive, need not
always be by direct evidence from an eyewitness, for reliable circumstantial evidence can
equally confirm it as to overcome the constitutionally presumed innocence of the accused.

On appeal by the accused is the decision of the Court of Appeals (CA) promulgated on
June 6, 2003,[1] finding Gilberto Villarico, Sr., Gilberto Villarico, Jr., Jerry Ramentos, [2] and
Ricky Villarico guilty of murder for the killing of Haide Cagatan, and imposing the penalty
of reclusion perpetua on each of them, thereby modifying the decision of the Regional Trial
Court (RTC), Branch 16, in Tangub City that had pronounced them guilty of homicide
aggravated by dwelling.[3]

With treachery having attended the killing, we affirm the CA but correct the civil liability
to accord with pertinent law and jurisprudence.

Antecedents

On October 7, 1999, an information for murder was filed in the Regional Trial Court in
Misamis Occidental (RTC) against all the accused,[4] the accusatory portion of which reads:

That on or about August 8, 1999, at about 7:50 oclock in the morning at Barangay
Bolinsong, Municipality of Bonifacio, Province of Misamis Occidental, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with intent to kill, armed with a short firearms (sic), did then and
there willfully, unlawfully, feloniously suddenly and treacherously shoot HAIDE CAGATAN at
the back penetrating through the neck which cause(d) the instant death of said victim and that he
had no chance to avoid or defend himself from the attack.

CONTRARY TO LAW.

All the accused pleaded not guilty at their December 15, 1999 arraignment.

Version of the Prosecution

At around 7:50 p.m. on August 8, 1999, Haide was busy preparing dinner in the kitchen
of his familys residence in Bolinsong, Bonifacio, Misamis Occidental. The kitchen, located at
the rear of the residence, had a wall whose upper portion was made of three-feet high bamboo
slats (sa-sa) and whose lower portion was also made of bamboo slats arranged like a chessboard
with four-inch gaps in between. At that time, Haides sister-in-law Remedios Cagatan was
attending to her child who was answering the call of nature near the toilet. From where she was,
Remedios saw all the accused as they stood at the rear of the kitchen aiming their firearms at the
door Ricky Villarico was at the left side, and Gilberto, Jr. stood behind him, while Gilberto, Sr.
was at the right side, with Ramentos behind him. When Gilberto, Jr. noticed Remedios, he
pointed his gun at her, prompting Remedios to drop to the ground and to shout to
Lolita Cagatan, her mother-in-law and Haides mother: Nay, Nay tawo Nay (Mother, mother,
there are people outside, mother). At that instant, Remedios heard three gunshots.[5]

Francisco Cagatan, the father of Haide, also heard the gunshots just as he was coming out
of the toilet, making him instinctively jump into a hole, from where he was able to see and
recognize Gilberto, Sr., Gilberto, Jr. and Ricky who were then standing by the kitchen door.
They were aiming their guns upward, and soon after left together with Ramentos.[6]

Lolita also heard the gunshots while she was in the sala. She recalled that Haide then
came towards her from the kitchen, asking for help and saying: Tabang kay gipusil ko ni
Berting (I was shot by Berting).[7] At that, she and Remedios brought the wounded Haide to
Clinica Ozarraga, where he was treated for gunshot wounds on his left scapular region (back of
left shoulder) and right elbow. He succumbed shortly thereafter due to hypovolemic shock or
massive loss of blood.[8]

Version of the Defense

The accused denied the accusations and each proffered an alibi.

Gilberto, Sr. claimed that he was sleeping in his home with a fever when he heard a
gunshot. He insisted that he learned that Haide had been shot only in the next morning. [9] His
denial and alibi were corroborated by his wife Carmelita[10] and his daughter Jersel.[11]

Gilberto, Jr. testified that on the day of the incident, he went to Liloan, Bonifacio,
Misamis Occidental at around 5:00 p.m. to visit his girlfriend together with Charlie Bacus and
Randy Hernan. They stayed there until 9:00 p.m. Thereafter, they proceeded to Tiaman to attend
the wake for one Helen Oligario Cuizon, and were there for an hour. They then returned to
Bolinsong and spent the night in the house of Randy. It was only in the morning that Randys
father informed them that Haide had been shot. [12]

Ricky declared that he stayed throughout the whole evening of August 8, 1999 in the
house of his aunt Flordeliza.[13] Myrna Hernan, a neighbor of Flordeliza, corroborated his
testimony.[14]

Ramentos alleged that he was drinking tuba with others at the store owned by Cinderella
Bacus at the time of the shooting; and that he went home at around 9:00 p.m. after his group
was done drinking. He did not recall hearing any gunshots while drinking and came to know of
the shooting only from a certain Anecito Duyag on the following morning.
 To discredit the testimony about Haide being able to identify his assailants, the Defense
presented Peter Ponggos, who narrated that he had been on board a motorcycle (habal-habal)
when Lolita and Remedios asked for his help; and that he then aided Lolita and Remedios in
bringing Haide to the hospital. According to Peter, he asked Haide who had shot him, but Haide
replied that there had been only one assailant whom he did not recognize.[15]
Ruling of the RTC

After trial, the RTC convicted the four accused of homicide aggravated by dwelling,
disposing:[16]

WHEREFORE, premises considered, the Court finds all the accused guilty beyond
reasonable doubt of the crime of Homicide, with one aggravating circumstance of dwelling, and
applying the Indeterminate Sentence Law, hereby sentences each one of them to a penalty of
imprisonment ranging from 6 years and 1 day, as its minimum to 17 years, 4 months and 1 day,
as its maximum, to suffer the accessory penalties provided for by law, to pay jointly and
solidarily, the heirs of the victim P50,000.00, as civil liability and to pay the costs.

Let all the accused be credited of the time that they were placed in jail under preventive
imprisonment, applying the provisions of Art. 29 of the Revised Penal Code, as amended.
SO ORDERED.

The RTC accorded faith to the positive identification of the accused by the Prosecutions
witnesses, and disbelieved their denial and alibis due to their failure to show the physical
improbability for them to be at the crime scene, for the distances between the crime scene and
the places where the accused allegedly were at the time of the commission of the crime were
shown to range from only 100 to 700 meters.[17] The RTC found, however, that the Prosecution
was not able to prove treachery because:

xxx The medical report of gunshot wound left scapular region which the doctor interpreted to be
at the back of the left shoulder is not sufficient to prove treachery, it being susceptible to 2
different interpretations: one: that victim had his back towards his assailants, and two: that he
was actually facing them but he turned around for cover upon seeing the armed group of Berting.
The Court is inclined to believe the second interpretation because the victim was able to see and
identify his assailants. Two prosecution witnesses testified that the victim identified to them who
shot him.[18]
Ruling of the CA

On intermediate review, the CA modified the RTCs decision, holding instead that murder was
established beyond reasonable doubt because the killing was attended by treachery, viz: [19]

WHEREFORE, the appealed Decision is hereby MODIFIED. Pursuant to Section 13, paragraph
2 of Rule 124 of the Rules of Criminal Procedure, We render JUDGMENT without entering it, as
follows:

1. We find all accused guilty beyond reasonable doubt of MURDER. Each

accused is hereby SENTENCED TO SUFFER the penalty of reclusion
perpetua.
 2. The Division Clerk of Court is hereby directed to CERTIFY and ELEVATE the
entire records of this case to the Supreme Court for review.

SO ORDERED.[20]

Citing People v. Valdez,[21] the CA explained that the attendance of treachery did not
depend on the position of the victim at the time of the attack, for the essence of treachery was in
the element of surprise the assailants purposely adopted to ensure that the victim would not be
able to defend himself. Considering that the accused had purposely positioned themselves at
night outside the door to the kitchen from where they could see Haide, who was then busy
preparing dinner, through the holes of the kitchen wall, the CA concluded that Haide was thus
left unaware of the impending assault against him.

Issues

In this recourse, the accused raise the following errors:

I
THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING ACCUSED-
APPELLANTS OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE
THE IDENTITY OF THE ASSAILANT AS WELL AS ACCUSED-APPELLANTS GUILT
BEYOND REASONABLE DOUBT.

II
THE COURT OF APPEALS GRAVELY ERRED IN CONSIDERING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY, ON THE ASSUMPTION THAT INDEED ACCUSED-
APPELLANTS ARE GUILTY.

The accused contend that the Prosecution witnesses failed to positively identify them as
the persons who had actually shot Haide; that treachery was not attendant because there was no
proof showing that they had consciously and deliberately adopted the mode of attacking the
victim; and that assuming that they committed the killing, they could only be convicted of
homicide.

The decisive queries are, therefore, the following:

(a) Should an identification, to be positive, have to be made by a witness who

actually saw the assailants?

(b) Was treachery attendant in the killing of Haide as to qualify the crime as
murder?

Ruling
 We affirm the finding of guilt for the crime of murder, but modify the civil liability.

1.
Positive identification refers to
proof of identity of the assailant

The first duty of the prosecution is not to prove the crime but to prove the identity of the
criminal, for, even if the commission of the crime can be established, there can be no conviction
without proof of the identity of the criminal beyond reasonable doubt. [22] In that regard, an
identification that does not preclude a reasonable possibility of mistake cannot be accorded any
evidentiary force.[23] The intervention of any mistake or the appearance of any weakness in the
identification simply means that the accuseds constitutional right of presumption of innocence
until the contrary is proved is not overcome, thereby warranting an acquittal, [24] even if doubt
may cloud his innocence.[25]Indeed, the presumption of innocence constitutionally guaranteed to
every individual is forever of primary importance, and every conviction for crime must rest on
the strength of the evidence of the State, not on the weakness of the defense.[26]

The accused contend that the Prosecution witnesses did not actually see who had shot
Haide; hence, their identification as the malefactors was not positively and credibly made.

We cannot uphold the contention of the accused.

The established circumstances unerringly show that the four accused were the
perpetrators of the fatal shooting of Haide. Their identification as his assailants by Remedios
and Francisco was definitely positive and beyond reasonable doubt. Specifically, Remedios saw
all the four accused near the door to the kitchen immediately before the shots were fired and
recognized who they were. She even supplied the detail that Gilberto, Jr. had trained his firearm
towards her once he had noticed her presence at the crime scene. On his part, Francisco attested
to seeing the accused near the door to the kitchen holding their firearms right after he heard the
gunshots, and also recognized them.

The collective recollections of both Remedios and Francisco about seeing the four
accused standing near the door to the kitchen immediately before and after the shooting of
Haide inside the kitchen were categorical enough, and warranted no other logical inference than
that the four accused were the persons who had just shot Haide. Indeed, neither Remedios nor
Francisco needed to have actually seen who of the accused had fired at Haide, for it was enough
that they testified that the four armed accused: (a) had strategically positioned themselves by
the kitchen door prior to the shooting of Haide; (b) had still been in the same positions after the
gunshots were fired; and (c) had continuously aimed their firearms at the kitchen door even as
they were leaving the crime scene.

The close relationship of Remedios and Francisco with the victim as well as their
familiarity with the accused who were their neighbors assured the certainty of their
identification as Haides assailants. In Marturillas v. People,[27] the Court observed that the
familiarity of the witness with the assailant erased any doubt that the witness could have erred;
and noted that a witness related to the victim had a natural tendency to remember the faces of
the person involved in the attack on the victim, because relatives, more than anybody else,
would be concerned with seeking justice for the victim and bringing the malefactor before the
law.[28]

Moreover, the following portions of Lolitas testimony show that Haide himself
recognized and identified his assailants, to wit:

Atty. Fernandez:
Q. And where were you at that time when he was shot?
A. In the sala.
Q. Could you possibly tell the Honorable Court what actually took place when your son was
shot?
A. He came from the kitchen at that time when I heard gunreports, he said Nay help me
because I was shot by Berting.[29]
xxx
Atty. Anonat:
Q. And that affidavit was executed by you at the Bonifacio Police Station?
A. Yes.
xxx
Q. And you affirm to the truth of what you have stated in this affidavit?
A. Yes.
Q. On question No. 7 you were asked in this manner Giunsa man nimo pagkasayod nga sila
maoy responsible sa kamatayon sa imong anak? How do you know that they were
responsible (for) the death of your son? And your answer is this Tungod kay ang
biktima nakasulti pa man sa wala pa siya namatay ug ang iyang pulong mao nga
TABANG NAY KAY GIPUSIL KO NILA NI BERTING ug nasayod ako nga sila
gumikan sa akong mga testigos. which translated into English Because the victim was
able to talk before he died and the words which he told me help me Nay I am shot by
the group of Berting and I know this because of my witnesses. [30]
xxx
The statement of Haide to his mother that he had just been shot by the group of
Berting uttered in the immediate aftermath of the shooting where he was the victim was a true
part of the res gestae. The statement was admissible against the accused as an exception to the
hearsay rule under Section 42, Rule 130 of the Rules of Court, which provides:

Section 42. Part of the res gestae. - Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a legal significance, may be
received as part of the res gestae. (36 a)

The term res gestae refers to those circumstances which are the undesigned incidents of a
particular litigated act and which are admissible when illustrative of such act. [31] In a general
way, res gestae includes the circumstances, facts, and declarations that grow out of the main
fact and serve to illustrate its character and which are so spontaneous and contemporaneous
with the main fact as to exclude the idea of deliberation and fabrication. [32] The rule
on res gestae encompasses the exclamations and statements made by either the
participants, victims, or spectators to a crime immediately before, during, or immediately after
the commission of the crime when the circumstances are such that the statements were made as
a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no
opportunity for the declarant to deliberate and to fabricate a false statement.[33]

The test of admissibility of evidence as a part of the res gestae is whether the act, declaration, or
exclamation is so intimately interwoven or connected with the principal fact or event that it
characterizes as to be regarded a part of the principal fact or event itself, and also whether it
clearly negatives any premeditation or purpose to manufacture testimony. [34] A declaration or an
utterance is thus deemed as part of the res gestae that is admissible in evidence as an exception
to the hearsay rule when the following requisites concur: (a) the principal act, the res gestae, is
a startling occurrence; (b) the statements were made before the declarant had time to contrive or
devise; and (c) the statements must concern the occurrence in question and its immediately
attending circumstances.[35]

We find that the requisites concurred herein. Firstly, the principal act the shooting of Haide was
a startling occurrence. Secondly, his statement to his mother about being shot by the group of
Berting was made before Haide had time to contrive or to devise considering that it was
uttered immediately after the shooting. And, thirdly, the statement directly concerned the
startling occurrence itself and its attending circumstance (that is, the identities of the assailants).
Verily, the statement was reliable as part of the res gestae for being uttered in spontaneity and
only in reaction to the startling occurrence.

In the face of the positive identification of all the four accused, it did not matter whether
only one or two of them had actually fired the fatal shots. Their actions indicated that a
conspiracy existed among them. Indeed, a conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to commit it. [36] Direct proof of
a previous agreement among the accused to commit the crime is not necessary, [37] for conspiracy
may be inferred from the conduct of the accused at the time of their commission of the crime
that evinces a common understanding among them on perpetrating the crime. [38] Thus, the
concerted acts of the four manifested their agreement to kill Haide, resulting in each of them
being guilty of the crime regardless of whether he actually fired at the victim or not. It is
axiomatic that once conspiracy is established, the act of one is the act of all; [39] and that all the
conspirators are then liable as co-principals.[40]

But did not the fact that the name Berting without any surname being too generic open the
identification of the accused as the assailants to disquieting doubt about their complicity?

We hold that there was no need for a surname to be attached to the nickname Berting in order to
insulate the identification by Haide from challenge. The victims res gestaestatement was only
one of the competent and reliable pieces of identification evidence. As already shown, the
accused were competently incriminated also by Remedios and Francisco in a manner that
warranted the logical inference that they, and no others, were the assailants. Also, that Berting
was the natural nickname for a person whose given name was Gilberto, like herein accused
Gilberto, Sr. and Gilberto, Jr., was a matter of common knowledge in the Philippines. In fine,
the pieces of identification evidence, including Haides res gestae statement, collaborated to
render their identification unassailable.

Relevantly, the Court has distinguished two types of positive identification in People v.
Gallarde,[41] namely: (a) that by direct evidence, through an eyewitness to the very commission
of the act; and (b) that by circumstantial evidence, such as where the accused is last seen with
the victim immediately before or after the crime. The Court said:

xxx Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identify a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a witness may
not have actually seen the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as for instance when
the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification,
which forms part of circumstantial evidence, which, when taken together with other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is
that the accused is the author of the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the
exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it
is basic and elementary that there can be no conviction until and unless an accused is positively
identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the
commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion
and finding of guilt. If resort to circumstantial evidence would not be allowed to prove identity
of the accused on the absence of direct evidence, then felons would go free and the community
would be denied proper protection.[42]
To conclude, the identification of a malefactor, to be positive and sufficient for
conviction, does not always require direct evidence from an eyewitness; otherwise, no
conviction will be possible in crimes where there are no eyewitnesses. Indeed, trustworthy
circumstantial evidence can equally confirm the identification and overcome the
constitutionally presumed innocence of the accused.

Faced with their positive identification, the four accused had to establish convincing defenses.
They opted to rely on denial and their respective alibis, however, but both the RTC and the CA
rightly rejected such defenses.

The rejection was warranted. Long judicial experience instructs that their denial and
alibis, being too easy to invent, could not overcome their positive identification by credible
Prosecution witnesses whose motives for the identification were not shown to be ill or vile.
Truly, a positive identification that is categorical, consistent, and devoid of any showing of ill or
vile motive on the part of the Prosecution witnesses always prevails over alibi and denial that
are in the nature of negative and self-serving evidence. [43] To be accepted, the denial and alibi
must be substantiated by clear and convincing evidence establishing not only that the accused
did not take part in the commission of the imputed criminal act but also that it was physically
impossible for the accused to be at or near the place of the commission of the act at or about the
time of its commission. In addition, their proffered alibis were really unworthy of credit because
only the accused themselves and their relatives and other intimates substantiated them.[44]
2.
The essence of treachery is in the mode of attack,
not in the relative position of the victim and the assailant

The RTC ruled out the attendance of treachery due to its persuasion that the victim must have
been facing his assailants at the time of the assault and was thus not taken by surprise. The CA
differed from the RTC, however, and stressed that regardless of the position of the victim, the
essence of treachery was the element of surprise that the assailants purposely adopted to ensure
that the victim was not able to defend himself.[45]

We uphold the ruling of the CA.

There is treachery when: (a) at the time of the attack, the victim was not in a position to
defend himself; and (b) the accused consciously and deliberately adopted the particular means,
methods, or forms of attack employed by him.[46] The essence of treachery lies in the suddenness
of the attack that leaves the victim unable to defend himself, thereby ensuring the commission
of the offense.[47] It is the suddenness of the attack coupled with the inability of the victim to
defend himself or to retaliate that brings about treachery; consequently, treachery may still be
appreciated even if the victim was facing the assailant.[48]

Here, the elements of treachery were present. His assailants gunned Haide down while he
was preoccupied in the kitchen of his own abode with getting dinner ready for the household.
He was absolutely unaware of the imminent deadly assault from outside the kitchen, and was
for that reason in no position to defend himself or to repel his assailants.

The argument of the accused that the Prosecution did not show that they had consciously
and deliberately adopted the manner of killing Haide had no substance, for the testimonies of
Remedios and Francisco disclose the contrary.

Remedios testimony about seeing the four accused taking positions near the door to the
kitchen immediately preceding the shooting of Haide was as follows:

Atty. Fernandez:
xxx
Q. Were you present when the late Haide Cagatan was shot?
A. Yes, I was present.
Q. Could you possibly tell the Court in what particular place you were when the alleged incident
took place?
A. I was in the ground floor.
Q. What were you doing there?
A. I attended my child (to) answer(ing) the call of his (sic) nature.
Q. Now, could you possibly describe before this Honorable Court, Mrs. Cagatan, the exact event
that took place when the alleged shooting incident took place in your presence?
A. At that time, I attended my child (to) answer(ing) the call of (his) nature and after doing
that when I was about to stand up to go up I saw the Villaricos was (sic) at the back of
the kitchen.
Q. At the time you saw them was (sic) any one of them saw you likewise?
A. There was.
Q. Who was he?
A. Gilberto Villarico, Jr.
Q. At that precise time when you saw them and one of them saw you, what did Villarico, Jr.
do?
A. He aimed his gun to me.
Q. Could you possibly demonstrate that to the Court?
A. (Witness demonstrated by squatting position)
Q. Now at that precise moment when you saw Villarico, Jr. on a squatting position pointing
his gun at you, what was the exact action that you did?
A. When he aimed his gun to me I immediately dropped to the ground.
xxx
Q. Since you were personally present could you still remember Mrs. Cagatan how many
gun burst you head at that precise moment when you dropped to the ground because
Villarico Jr. was aiming his gun at you. How many gun burst did you hear?
 A. Three gunbursts.
Q. Let us go back to the time when Villarico, Jr. pointed his gun to you. Do you still
remember what were the other accused doing or where were they at that time?
A. I can remember.
Q. Please tell the Honorable Court.
A. Gilberto Villarico, Sr. was on the right side; Ricky Villarico was on the left side and
behind Gilberto Villarico, Sr. was Jerry Ramientos and behind Ricky Villarico is (sic)
Gilberto Villarico Jr.
Q. What were Ricky and Gilberto Villarico, Jr. doing at the time?
A. They were also dropping themselves on the ground and aimed their guns.
Q. To what particular object that they were aiming their guns?
A. To the door of our kitchen.

Q. How about Ramientos, where was he at that time when you saw the accused pointing
their guns towards the door of your kitchen?
A. Ramientos was standing behind Gilberto Villarico Sr.[49]

Likewise, Francisco saw the four accused in the same positions that Remedios had seen
them moments prior to the shooting. He claimed that they were aiming their firearms at the
kitchen and continued aiming their firearms even as they were leaving the crime scene, viz:

Atty. Fernandez:
xxx
Q. Now you said that you saw all of the accused at the time when your late son Haide Cagatan
was murdered in the evening of August 8. Could you possibly explain to this Honorable
Court at the very first time what did you see?
A. After I came from the toilet I was proceeding to the kitchen because Haide was preparing
food and he was calling for dinner. When Haide Cagatan was calling for dinner and at the
time I was proceeding to the door of the kitchen, when I was near the door I heard the gun
shots.
Q. At the time when you heard gunshots, what did you do?
A. I laid down flat on the ground while my head is (sic) looking up and there I saw the 3
Villaricos bringing a revolver. They came from aiming their guns towards upstairs
and they are about to withdraw from that place together with Jerry Ramientos.
xxx
Q. Now, since you said that you saw the accused Villaricos, could you possibly tell the
Court, what were their responsible position(s) in relation to the door of the kitchen?
A. They were in shooting position as they aimed upward and they were bringing revolver
aiming upstairs.
 Q. In relation to the door of the kitchen, could you possibly tell the Court what were their
responsible position at that time when you saw them?
A. The four of them were situated in front of the kitchen door. Villarico Jr. and Villarico Sr.
were facing each other while Ricky Villarico and Jerry Ramientos were also facing
each other.[50]

The testimonies of Remedios and Francisco on how and where the four accused had
deliberately and strategically positioned themselves could not but reveal their deliberate design
to thereby ensure the accomplishment of their design to kill Haide without any possibility of his
escape or of any retaliation from him. Aptly did the CA observe:

A perusal of the information shows that treachery was properly alleged to qualify the killing of
Heide [sic] Cagatan to murder. The prosecution was likewise able to prove treachery through the
element of surprise rendering the victim unable to defend himself. In this case, the evidence
shows that the victim, who was in the kitchen preparing dinner, could be seen from the outside
through the holes of the wall. The witnesses consistently described the kitchens wall as three feet
high bamboo splits (sa-sa), accented with bamboo splits woven to look like a chessboard with 4-
inch holes in between. The accused-appellants, likewise, positioned themselves outside the
kitchen door at night where the victim could not see them. When the accused-appellants shot
him, he was caught unaware.[51]

3.
Penalty and Damages

There is no question that the CA justly pronounced all the four accused guilty beyond
reasonable doubt of murder, and punished them with reclusion perpetua pursuant to Article
248[52] of the Revised Penal Code, in relation to Article 63, paragraph 2, of the Revised Penal
Code, considering the absence of any generic aggravating circumstance.

However, the CA did not explain why it did not review and revise the grant by the RTC
of civil liability in the amount of only P50,000.00. Thereby, the CA committed a plainly
reversible error for ignoring existing laws, like Article 2206 of the Civil Code,[53] which
prescribes a death indemnity separately from moral damages, and Article 2230 of the Civil
Code,[54] which requires exemplary damages in case of death due to crime when there is at least
one aggravating circumstance; and applicable jurisprudence, specifically, People v. Gutierrez,
[55]
where we held that moral damages should be awarded to the heirs without need of proof or
pleading in view of the violent death of the victim, and People v.Catubig,[56] where we ruled that
exemplary damages were warranted whenever the crime was attended by an aggravating
circumstance, whether qualifying or ordinary. Here, the aggravating circumstance of treachery,
albeit attendant or qualifying in its effect, justified the grant of exemplary damages.

Plain oversight might have caused both the RTC and the CA to lapse into the serious
omissions. Nonetheless, a rectification should now be made, for, indeed, gross omissions,
intended or not, should be eschewed. It is timely, therefore, to remind and to exhort all the trial
and appellate courts to be always mindful of and to apply the pertinent laws and jurisprudence
on the kinds and amounts of indemnities and damages appropriate in criminal cases lest
oversight and omission will unduly add to the sufferings of the victims or their heirs. Nor
should the absence of specific assignment of error thereon inhibit the sua sponte rectification of
the omissions, for the grant of all the proper kinds and amounts of civil liability to the victim or
his heirs is a matter of law and judicial policy not dependent upon or controlled by an
assignment of error. An appellate tribunal has a broad discretionary power to waive the lack of
proper assignment of errors and to consider errors not assigned, [57] for technicality should not be
allowed to stand in the way of equitably and completely resolving the rights and obligations of
the parties. Indeed, the trend in modern day procedure is to accord broad discretionary power
such that the appellate court may consider matters bearing on the issues submitted for resolution
that the parties failed to raise or that the lower court ignored.[58]

Consistent with prevailing jurisprudence, we grant to the heirs of Haide P75,000.00 as

death indemnity;[59] P75,000.00 as moral damages;[60] and P30,000.00 as exemplary damages.
[61]
As clarified in People v. Arbalate,[62] damages in such amounts are to be granted whenever the
accused are adjudged guilty of a crime covered by Republic Act No. 7659, like the murder
charged and proved herein. Indeed, the Court, observing in People v. Sarcia,[63] citing People v.
Salome[64] and People v. Quiachon,[65]that the principal consideration for the award of damages
xxx is the penalty provided by law or imposable for the offense because of its heinousness, not
the public penalty actually imposed on the offender, announced that:

The litmus test[,] therefore, in the determination of the civil indemnity is the heinous
character of the crime committed, which would have warranted the imposition of the death
penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua.

WHEREFORE, we affirm the decision promulgated on June 6, 2003 in CA-G.R. CR

No. 24711, finding GILBERTO VILLARICO, SR., GILBERTO VILLARICO, JR.,
JERRY RAMENTOS, and RICKY VILLARICO guilty of murder and sentencing each of
them to suffer reclusion perpetua, subject to the modification that they are held jointly and
solidarily liable to pay to the heirs of the late Haide Cagatan death indemnity of P75,000.00,
moral damages of P75,000.00, and exemplary damages of P30,000.00.

The accused shall pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

ARTURO D. BRION MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO

Associate Justice

ATT E STAT I O N

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

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

C E R T I FI CAT I O N

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

RENATO C. CORONA
Chief Justice
[1]
CA Rollo, pp. 173-184; penned by Associate Justice Hakim S. Abdulwahid, and concurred by Associate Justice Bennie Adefuin-
Dela Cruz (retired) and Jose I. Sabio, Jr. (retired).
[2]
At times spelled as Ramientos in the records and in the RTC decision.
[3]
Rollo, pp. 45-69; penned by Judge Resurrection T. Inting.
[4]
Records, pp. 1-2.
[5]
TSN, March 29, 2000, pp. 5-6.
[6]
TSN, March 10, 2000, pp. 6-7.
[7]
TSN, February 24, 2000, pp. 19 and 24.
[8]
See Exhibits A and B for the Prosecution (Records, pp. 53-54).
[9]
TSN, May 31, 2000, pp. 4-5.
[10]
TSN, July 21, 2000, pp. 3-17.
[11]
TSN, April 11, 2000, pp. 43-58.
[12]
TSN, May 31, 2000, p. 14-15.
[13]
TSN, June 29, 2000, pp. 4-5.
[14]
TSN, April 4, 2000, pp. 45-57.
[15]
TSN, April 4, 2000, pp. 3-17.
[16]
Records, p. 138.
[17]
The distance between the house of Gilberto, Sr. and Haides house was only 100 meters (TSN, May 31, 2000, p. 21). Gilbert, Jr.
testified that his girlfriends house was only 500 meters away from Bolinsong (TSN, May 31, 2000, pp. 19-21). Ricky claimed that the
house of his aunt was only 700 meters from Haides house (TSN, June 29, 2000, p. 9).
[18]
Records, p. 137.
[19]
CA Rollo, p. 173-184.
[20]
Id., p. 183.
[21]
G.R. No. 127663, March 11, 1999, 304 SCRA 611, where the Court pointed out:
Under paragraph 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the
offender employs means, methods, or forms in the execution of the crime which tend directly and especially to ensure its
execution without risk to himself arising from any defensive or retaliatory act which the victim might make (People vs.
Santos, 270 SCRA 650 [1997]). The settled rule is that treachery can exist even if the attack is frontal if it is sudden and
unexpected, giving the victim no opportunity to repel it or defend himself against such attack. What is decisive is that the
execution of the attack, without slightest provocation from the victim who is unarmed, made it impossible for the victim to
defend himself or to retaliate (People vs. Javier, 269 SCRA 181 [1997]).
[22]
People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478; People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243
SCRA 578.
[23]
People v. Fronda, G.R. No. 130602. March 15, 2000, 328 SCRA 185; Natividad v. Court of Appeals, G.R. No. L-40233, June 25,
1980, 98 SCRA 335, 346; People v. Beltran, L-31860, November 29, 1974, 61 SCRA 246, 250; People v. Manambit, G.R. Nos.
72744-45, April 18, 1997, 271 SCRA 344, 377; People v. Maongco, G.R. Nos. 108963-65, March 1, 1994, 230 SCRA 562, 575.
[24]
People v. Raquel, G.R. No. 119005, December 2, 1996; 265 SCRA 248, 259; People v. Salguero, G.R. No. 89117, June 19, 1991,
198 SCRA 357; Natividad v. Court of Appeals, G.R. L-40233, June 25, 1980, 98 SCRA 335, 346.
[25]
Pecho v. People, G.R. No. 111399, September 27, 1996, 262 SCRA 518, 533; Perez v. Sandiganbayan, G.R. Nos. 76203-04,
December 6, 1989, 180 SCRA 9; People v. Sadie, No. L-66907, April 14, 1987, 149 SCRA 240; U.S. v. Gutierrez, 4 Phil. 493 (1905).
[26]
People v. Pidia, G.R. No. 112264, November 10, 1995, 249 SCRA 687, 702.
[27]
G.R. No. 163217, April 18, 2006, 487 SCRA 273.
[28]
Id., p. 301; see also People v. Evangelista, G.R. No. 84332-33, May 8, 1996, 256 SCRA 611 (holding that where the identification
made by the wife of the victim was held to be reliable because she had known the accused for a long time and was familiar with him,
considering her being positive that it was the accused who had shot her husband although she saw only the back part and the body
contour of the assailant. At the time she saw him, the accused was only four meters away, and there was sufficient illumination from a
lamp post six meters away from the house of the victim and his wife); People v. Jacolo, G.R. No. 94470, December 16, 1992, 216
SCRA 631 (holding that where the conditions of visibility were favorable and the witness did not appear to be biased against the man
on the dock, his or her assertions as to the identity of the malefactor should normally be accepted, more so where the witnesses were
the victims, or near-relatives of the victims, because these people usually strove to remember the faces of the assailants).
[29]
TSN, February 24, 2000, p. 19; bold emphasis supplied.
[30]
Id., p. 24; bold emphasis supplied.
[31]
Alhambra Bldg. & Loan Assn v. DeCelle, 118 P. 2d 19, 47 C.A. 2d 409; Reilly Tar & Chemical Corp. v. Lewis, 61 N.E. 2d 297,
326 Ill. App. 117.
[32]
Kaiko v. Dolinger, 440 A. 2d 198, 184 Conn. 509; Southern Surety Co. v. Weaver, Com. App. 273 S.W. 838.
[33]
People v. Sanchez, G.R. No. 74740, August 28, 1992, 213 SCRA 70.
[34]
Molloy v. Chicago Rapid Transit Co., 166 N.E. 530, 335 Ill. 164; Campbell v. Gladden, 118 A. 2d 133, 383 Pa. 144, 53 A.L.R. 2d
1222.
[35]
People v. Guillermo, G.R. No. 147786, January 20, 2004, 420 SCRA 326; People v. Dela Cruz, G.R. No. 152176, October 1, 2003,
412 SCRA 503; People v. Ignas, G.R. Nos. 140514-15, September 30, 2003, 412 SCRA 311; People v. Lobrigas, G.R. No. 147649,
December 17, 2002, 394 SCRA 170; People v. Peralta, G.R. No. 94570, September 28, 1994, 237 SCRA 218; People v. Maguikay,
G.R. Nos. 103226-28, October 14, 1994, 237 SCRA 587, 600.
[36]
Article 8, Revised Penal Code.
[37]
People v. Ronquillo, G.R. No. 126136, April 5, 2002, 380 SCRA 266; People v. Geguira, G.R. No. 130769, March 13, 2000, 328
SCRA 11, 32-33.
[38]
People v. Geguira, supra.
[39]
People v. Sotes, G.R. No. 101337, August 7, 1996, 260 SCRA 353, 365; People v. Pablo, G.R. Nos. 120394-97, January 16, 2001,
349 SCRA 79.
[40]
People v. Peralta, G.R. No. L-19069, October 29, 1968, 25 SCRA 759, 776-777; People v. Pablo, supra.
[41]
G.R. No. 133025, February 17, 2000, 325 SCRA 835.
[42]
Id., at pp. 849-850; bold emphasis supplied.
[43]
People v. Gonzales, G.R. No. 140676, July 31, 2002, 385 SCRA 573, 580; People v. Ocampo, G.R. No. 80262, September 1, 1993,
226 SCRA 1; People v. Herico, G.R. Nos. 89682-83, December 21, 1990, 192 SCRA 655; People v. Fulinara, G.R. No.
88326, August 3, 1995, 247 SCRA 28; People v. Cardesan, G.R. No. L-29090, April 29, 1974, 56 SCRA 631.
[44]
People v. Abendan, G.R. No. 132026-27, June 28, 2001, 360 SCRA 106, 121-122.
[45]
CA Rollo, p. 182.
[46]
People v. Escote, Jr., G.R. No. 140756, April 4, 2003, 400 SCRA 603, 632; People v. Ave, G.R. Nos. 137274-75, October 18, 2002,
391 SCRA 225, 246.
[47]
People v. Sanchez, G.R. No. 188610, June 29, 2010; People v. Dela Cruz, G.R. No. 188353, February 16, 2010, 612 SCRA 738,
747; People v. Escote, Jr., supra, pp. 632-633.
[48]
People v. Aguilar, 88 Phil 693 (1951).
[49]
TSN, March 29, 2000, pp. 5-6.
[50]
TSN, March 10, 2000, pp. 5-7.
[51]
CA Rollo, pp. 182-183.
[52]
Article 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder
and shall be punished by reclusion perpetua to death, if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or
of means or persons to insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of
an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or
corpse. (As amended by Section 6, Republic Act No. 7659, approved on December 13, 1993).
[53]
Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even
though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the
decedents inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.
[54]
Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed
with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended
party.
[55]
G.R. No. 188602, February 4, 2010, 611 SCRA 633.
[56]
G.R. No. 137842, August 23, 2001, 363 SCRA 621, where the Court explained:
The term aggravating circumstances used by the Civil Code, the law not having specified otherwise, is to be
understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it
breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed
by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the
victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the
attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability
which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended
 party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended
party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal,
rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance,
whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning
of Article 2230 of the Civil Code.
[57]
Bersamin, Appeal and Review in the Philippines, 2nd Edition, Central Professional Books, Quezon City, p. 180; citing Hydro
Resources Contractors Corporation v. Court of Appeals, G.R. No. 85714, November 29, 1991, 204 SCRA 309, 315; and Ortigas, Jr. v.
Lufthansa German Airlines, G.R. No. L-28773, June 30, 1975, 64 SCRA 610.
[58]
Ibid., citing Casa Filipina Realty Corporation v. Office of the President, G.R. No. 99346, February 7, 1995, 241 SCRA 165.
[59]
People v. Satonero, G.R. No. 186233, October 2, 2009, 602 SCRA 769, 782; People v. Arbalate, G.R. No. 183457, September 17,
2009, 600 SCRA 239, 255.
[60]
People v. Martinez, G.R. No. 182687, July 23, 2009, 593 SCRA 732.
[61]
People v. Satonero, supra.
[62]
Supra, note 59.
[63]
G.R. No. 169641, September 10, 2009, 599 SCRA 20,
[64]
G.R. No. 169077, August 31, 2006, 500 SCRA 659, 676.
[65]
G.R. No. 170236, August 31, 2006, 500 SCRA 704, 720.

PEOPLE OF THE G.R. No. 183830

PHILIPPINES,
Plaintiff-Appellee, Present:

CORONA, C.J., Chairperson,

LEONARDO-DE CASTRO,
-versus- BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

Promulgated:
DELFIN CALISO,
Accused-Appellant. October 19, 2011

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

DECISION

BERSAMIN, J.:

The decisive question that seeks an answer is whether the identification of the perpetrator
of the crime by an eyewitness who did not get a look at the face of the perpetrator was reliable
and positive enough to support the conviction of appellant Delfin Caliso (Caliso).

Caliso was arraigned and tried for rape with homicide, but the Regional Trial Court
(RTC), Branch 21, in Kapatagan, Lanao del Norte found him guilty of murder for the killing of
AAA,[1] a mentally-retarded 16-year old girl, and sentenced him to death in its decision
dated August 19, 2002.[2] The appeal of the conviction was brought automatically to the Court.
On June 28, 2005,[3] the Court transferred the records to the Court of Appeals (CA) for
intermediate review pursuant to the ruling in People v. Mateo.[4] On October 26, 2007,[5] the CA,
although affirming the conviction, reduced the penalty to reclusion perpetua and modified the
civil awards. Now, Caliso is before us in a final bid to overturn his conviction.

Antecedents

The information dated August 5, 1997 charged Caliso with rape with
homicide perpetrated in the following manner:

That on or about the 5th day of June, 1997, at Kapatagan, Lanao del Norte, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, by means of force,
violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge upon one AAA, who is a minor of 16 years old and a mentally retarded girl, against
her will and consent; that on the occasion of said rape and in furtherance of the accuseds criminal
designs, did then and there willfully, unlawfully and feloniously, with intent to kill, and taking
advantage of superior strength, attack, assault and use personal violence upon said AAA by
mauling her, pulling her towards a muddy water and submerging her underneath, which caused
the death of said AAA soon thereafter.

CONTRARY to and in VIOLATION of Article 335 of the Revised Penal Code in relation
to R.A. 7659, otherwise known as the Heinous Crimes Law.[6]

At his arraignment on November 12, 1997,[7] Caliso pleaded not guilty to the charge.

The records show that AAA died on June 5, 1997 at around 11:00 am in the river located
in Barangay Tiacongan, Kapatagan, Lanao Del Norte; that the immediate cause of her death
was asphyxia, secondary to drowning due to smothering; that the lone eyewitness, 34-year old
Soledad Amegable (Amegable), had been clearing her farm when she heard the anguished cries
of a girl pleading for mercy: Please stop noy, it is painful noy!; [8] that the cries came from an
area with lush bamboo growth that made it difficult for Amegable to see what was going on;
that Amegable subsequently heard sounds of beating and mauling that soon ended the girls
cries; that Amegable then proceeded to get a better glimpse of what was happening, hiding
behind a cluster of banana trees in order not to be seen, and from there she saw a man wearing
gray short pants bearing the number 11 mark, who dragged a girls limp body into the river,
where he submerged the girl into the knee-high muddy water and stood over her body; that he
later lifted the limp body and tossed it to deeper water; that he next jumped into the other side
of the river; that in that whole time, Amegable could not have a look at his face because he
always had his back turned towards her;[9] that she nonetheless insisted that the man was Caliso,
whose physical features she was familiar with due to having seen him pass by
their barangay several times prior to the incident; [10] that after the man fled the crime scene,
Amegable went straight to her house and told her husband what she had witnessed; and that her
husband instantly reported the incident to the barangay chairman.
 It appears that one SPO3 Romulo R. Pancipanci declared in an affidavit [11] that upon his
station receiving the incident report on AAAs death at about 12:45 pm of June 5, 1997, he and
two other officers proceeded to the crime scene to investigate; that he interviewed Amegable
who identified the killer by his physical features and clothing (short pants); that based on such
information, he traced Caliso as AAAs killer; and that Caliso gave an extrajudicial admission of
the killing of AAA. However, the declarations in the affidavit remained worthless because the
Prosecution did not present SPO3 Pancipanci as its witness.

Leo Bering, the barangay chairman of San Vicente, Kapatagan, Lanao Del Norte, attested
that on the occasion of Calisos arrest and his custodial interrogation, he heard Caliso admit to
the investigating police officer the ownership of the short pants recovered from the crime scene;
that the admission was the reason why SPO3 Pancipanci arrested Caliso from among the
curious onlookers that had gathered in the area; that Amegable, who saw SPO3 Pancipancis
arrest of Caliso at the crime scene, surmised that Caliso had gone home and returned to the
crime scene thereafter.[12]

Municipal Health Officer Dr. Joseph G.B. Fuentecilla conducted the post-mortem
examination on the body of AAA on June 6, 1997, and found the following injuries, to wit:

EXTERNAL FINDINGS:

1. The dead body was generally pale wearing a heavily soiled old sleeveless shirt and garter
skirts.
2. The body was wet and heavily soiled with mud both nostrils and mouth was filled with
mud.
3. The skin of hands and feet is bleached and corrugated in appearance.
4. 2 cm. linear lacerated wound on the left cheek (sic).
5. Multiple small (sic) reddish contusions on anterior neck area.
6. Circular hematoma formation 3 inches in diameter epigastric area of abdomen.
7. Four erythematus linear abrasion of the left cheek (sic).
8. Presence of a 6x8 inches bulge on the back just below the inferior angle of both scapula
extending downwards.
9. The body was wearing an improperly placed underwear with the garter vertically
oriented to the right stained with moderate amount of yellowish fecal material.
10. Minimal amount of pubic hair in the lower pubis with labia majora contracted and
retracted.
11. Theres no swelling abrasion, laceration, blood hematoma formation in the vulva. There
were old healed hymenal lacerations at 5 and 9 oclock position.
12. Vaginal canal admits one finger with no foreign body recovered (sic).
13. Oval shaped contusion/hematoma 6 cm at its greatest diameter anterior surface middle
3rd left thigh.
14. Presence of 2 contusion laceration 1x0.5 cm in size medial aspect left knee.[13]

Dr. Fuentecilla also conducted a physical examination on the body of Caliso and summed
up his findings thusly:

P.E. FINDINGS:
 1. Presence of a 7x0.1 cm. horizontally averted linear erythematus contusion left side of
neck (Post ).
2. 8x0.2 cm. reddish linear abrasion (probably a scratch mark) from the left midclavicular
line extending to the left anterioraxillary line.
3. Presence of 2 erythematus abrasion 3 cmx0.1 cm in average size dorsal surface (probably
a scratch mark) middle 3rd left arm.
4. 2.5 cm. abrasion dorsal surface middle and right forearm.
5. Presence of a linear erythematus contusion (probably a scratch mark) 2x7 cm. in average
size lateral boarder of scapula extending to left posterior axillary line.
6. Presence of 2 oblique oriented erythematus contusion (probably a scratch mark) 14x022
cm. and 5x0.2 cm. in size respectively at the upper left flank of the lower back extending
downward to the midline.
7. Presence of 5 linear reddish pressure contusion parallel to each other with an average 5
cm left flank area.[14]

In his defense, Caliso denied the accusation and interposed an alibi, insisting that on the
day of the killing, he plowed the rice field of Alac Yangyang from 7:00 am until 4:00 pm.

Yangyang corroborated Calisos alibi, recalling that Caliso had plowed his rice field from
8 am to 4 pm of June 5, 1997. He further recalled that Caliso was in his farm around 12:00 noon
because he brought lunch to Caliso. He conceded, however, that he was not aware where Caliso
was at the time of the killing.

Ruling of the RTC

After trial, the RTC rendered its judgment on August 19, 2002, viz:

WHEREFORE, in view of the foregoing considerations, accused DELFIN CALISO is

hereby sentenced to death and to indemnify the heirs of AAA in the amount of P50,000.00. The
accused is also hereby ordered to pay the said heirs the amount of P50, 000.00 as exemplary
damages.

SO ORDERED.[15]
The RTC found that rape could not be complexed with the killing of AAA because the
old-healed hymenal lacerations of AAA and the fact that the victims underwear had been
irregularly placed could not establish the commission of carnal knowledge; that the examining
physician also found no physical signs of rape on the body of AAA; and that as to the killing of
AAA, the identification by Amegable that the man she had seen submerging AAA in the murky
river was no other than Caliso himself was reliable.

Nevertheless, the RTC did not take into consideration the testimony of Bering on Calisos
extrajudicial admission of the ownership of the short pants because the pants were not presented
as evidence and because the police officers involved did not testify about the pants in court.
[16]
The RTC cited the qualifying circumstance of abuse of superior strength to raise the crime
from homicide to murder, regarding the word homicide in the information to be used in its
generic sense as to include all types of killing.
 Ruling of the CA

On intermediate review, the following errors were raised in the brief for the accused-
appellant,[17] namely:

i. The court a quo gravely erred in convicting the accused-appellant of the crime of murder
despite the failure of the prosecution to prove his guilt beyond reasonable doubt;

ii. The court a quo gravely erred in giving weight and credence to the incredible and
inconsistent testimony of the prosecution witnesses.

iii. The court a quo gravely erred in appreciating the qualifying aggravating circumstance
of taking advantage of superior strength and the generic aggravating circumstance of disregard of
sex[; and]

iv. The court a quo gravely erred in imposing the death penalty.

As stated, the CA affirmed Calisos conviction for murder based on the same
ratiocinations the RTC had rendered. The CA also relied on the identification by Amegable of
Caliso, despite his back being turned towards her during the commission of the crime. The CA
ruled that she made a positive identification of Caliso as the perpetrator of the killing, observing
that the incident happened at noon when the sun had been at its brightest, coupled with the fact
that Amegables view had not been obstructed by any object at the time that AAAs body had
been submerged in the water; that the RTC expressly found her testimony as clear and
straightforward and worthy of credence; that no reason existed why Amegable would falsely
testify against Caliso; that Caliso did not prove the physical impossibility for him to be at the
crime scene or at its immediate vicinity at the time of the incident, for both Barangay San
Vicente, where AAAs body was found, and Barangay Tiacongan, where the rice field of
Yangyang was located, were contiguous; that the attendant circumstance of abuse of superior
strength qualified the killing of AAA to murder; that disregard of sex should not have been
appreciated as an aggravating circumstance due to its not being alleged in the information and
its not being proven during trial; and that the death penalty could not be imposed because of the
passage of Republic Act No. 9346, prohibiting its imposition in the Philippines.

The CA decreed in its judgment, viz:

WHEREFORE, the Decision of the Regional Trial Court dated August 19, 2002, finding
appellant guilty of Murder, is hereby AFFIRMED with the MODIFICATION that appellant
Delfin Caliso is sentenced to reclusion perpetua, and is directed to pay the victims heirs the
amount of P50,000.00 as moral damages, as well as the amount of P25,000.00 as exemplary
damages, in addition to the civil indemnity of P50,000.00 he had been adjudged to pay by the
trial court.

SO ORDERED.[18]
 Issue

The primordial issue is whether Amegables identification of Caliso as the man who killed
AAA at noon of July 5, 1997 was positive and reliable.

Ruling

The appeal is meritorious.

In every criminal prosecution, the identity of the offender, like the crime itself, must be
established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to
prove the crime but to prove the identity of the criminal, for even if the commission of the
crime can be established, there can be no conviction without proof of identity of the criminal
beyond reasonable doubt.[19]

The CA rejected the challenge Caliso mounted against the reliability of his identification
as the culprit by Amegable in the following manner:[20]

As to the first two errors raised, appellant contends that the testimony of Soledad Amegable was
replete with discrepancies. Appellant avers, for instance, that Soledad failed to see the assailants
face. Moreover, considering the distance between where Soledad was supposedly hiding and
where the incident transpired, appellant states that it was inconceivable for her to have heard and
seen the incident. According to appellant, witness Soledad could not even remember if at that
time, she hid behind a banana plant, or a coconut tree.

At bench, the incident happened at noon, when the sun was at its brightest. Soledad could very
well recognize appellant. Furthermore, notwithstanding the fact that it was his back that was
facing her, she asserted being familiar with the physical features of appellant, considering that he
frequented their barangay. Even during her cross-examination by the defense counsel, Soledad
remained steadfast in categorically stating that she recognized appellant:

Q: Mrs. Amegable, you said during your direct examination that you saw
Delfin Caliso, the accused in this case, several times passed by your barangay,
am I correct?
A: Several times.

Q: By any chance prior to the incident, did you talk to him?

A: No, sir.

Q: Are you acquainted with him?

A: Yes, sir.

Q: Even if he is in his back position?

 A: Yes, sir. (Emphasis Supplied)

Given the circumstances as stated above, it was even probable that Soledad caught glimpses of
the profile of the appellant at the time of the incident. She related, in addition, that when the
victim was being submerged in the water, there was no object obstructing her view.

The inconsistencies as alleged by appellant, between Soledad Amegables declaration in court and
her affidavit, such as the tree or plant from where she was hiding behind at the time of the
incident, are insignificant and cannot negate appellants criminal liability. Her whole attention
was riveted to the incident that was unfolding before her. Besides, any such inconsistencies are
minor. Slight contradictions are indicative of an unrehearsed testimony and could even serve to
strengthen the witness credibility. A witness who is telling the truth is not always expected to
give a perfectly concise testimony, considering the lapse of time and the treachery of human
memory.

In fact, the testimony of a single eye-witness is sufficient to support a conviction, so long as such
testimony is found to be clear and straightforward and worthy of credence by the trial
court.Furthermore, over here, witness Soledad had no reason to testify falsely against appellant.

Besides, the credibility of witnesses and their testimonies is a matter best undertaken by the trial
court, because of its unique opportunity to observe the witnesses firsthand and to note their
demeanor, conduct and attitude. Findings of the trial court on such matters are binding and
conclusive on the appellate court.

Contrary to the CAs holding that the identification of Caliso based on Amegables
recognition of him was reliable, the Court considers the identification not reliable and beyond
doubt as to meet the requirement of moral certainty.

When is identification of the perpetrator of a crime positive and reliable enough for
establishing his guilt beyond reasonable doubt?

The identification of a malefactor, to be positive and sufficient for conviction, does not
always require direct evidence from an eyewitness; otherwise, no conviction will be possible in
crimes where there are no eyewitnesses. Indeed, trustworthy circumstantial evidence can
equally confirm the identification and overcome the constitutionally presumed innocence of the
accused. Thus, the Court has distinguished two types of positive identification in People v.
Gallarde,[21] to wit: (a) that by direct evidence, through an eyewitness to the very commission of
the act; and (b) that by circumstantial evidence, such as where the accused is last seen with the
victim immediately before or after the crime. The Court said:

xxx Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identify a suspect or accused in a criminal case as the
perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a witness may
not have actually seen the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as for instance when
the latter is the person or one of the persons last seen with the victim immediately before
 and right after the commission of the crime. This is the second type of positive identification,
which forms part of circumstantial evidence, which, when taken together with other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is
that the accused is the author of the crime to the exclusion of all others. If the actual
eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the
exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it
is basic and elementary that there can be no conviction until and unless an accused is positively
identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the
commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion
and finding of guilt. If resort to circumstantial evidence would not be allowed to prove identity
of the accused on the absence of direct evidence, then felons would go free and the community
would be denied proper protection.[22]
Amegable asserted that she was familiar with Caliso because she had seen him pass by in
her barangay several times prior to the killing. Such assertion indicates that she was
obviously assuming that the killer was no other than Caliso. As matters stand, therefore, Calisos
conviction hangs by a single thread of evidence, the direct evidence of Amegables identification
of him as the perpetrator of the killing. But that single thread was thin, and cannot stand sincere
scrutiny. In every criminal prosecution, no less than moral certainty is required in establishing
the identity of the accused as the perpetrator of the crime. Her identification of Caliso as the
perpetrator did not have unassailable reliability, the only means by which it might be said to be
positive and sufficient. The test to determine the moral certainty of an identification is its
imperviousness to skepticism on account of its distinctiveness. To achieve such distinctiveness,
the identification evidence should encompass unique physical features or characteristics, like
the face, the voice, the dentures, the distinguishing marks or tattoos on the body,
fingerprints, DNA, or any other physical facts that set the individual apart from the rest of
humanity.

A witness familiarity with the accused, although accepted as basis for a positive
identification, does not always pass the test of moral certainty due to the possibility of mistake.

No matter how honest Amegables testimony might have been, her identification of Caliso
by a sheer look at his back for a few minutes could not be regarded as positive enough to
generate that moral certainty about Caliso being the perpetrator of the killing, absent other
reliable circumstances showing him to be AAAs killer. Her identification of him in that manner
lacked the qualities of exclusivity and uniqueness, even as it did not rule out her being
mistaken. Indeed, there could be so many other individuals in the community where the crime
was committed whose backs might have looked like Calisos back. Moreover, many factors
could have influenced her perception, including her lack of keenness of observation, her
emotional stress of the moment, her proneness to suggestion from others, her excitement, and
her tendency to assume. The extent of such factors are not part of the records; hence, the trial
court and the CA could not have taken them into consideration. But the influence of such varied
factors could not simply be ignored or taken for granted, for it is even a well-known
phenomenon that the members of the same family, whose familiarity with one another could be
easily granted, often inaccurately identify one another through a sheer view of anothers back.
Certainly, an identification that does not preclude a reasonable possibility of mistake cannot be
accorded any evidentiary force.[23]

Amegables recollection of the perpetrator wearing short pants bearing the number 11 did
not enhance the reliability of her identification of Caliso. For one, such pants were not one-of-a-
kind apparel, but generic. Also, they were not offered in evidence. Yet, even if they had been
admitted in evidence, it remained doubtful that they could have been linked to Caliso without
proof of his ownership or possession of them in the moments before the crime was perpetrated.

Nor did the lack of bad faith or ill motive on the part of Amegable to impute the killing to
Caliso guarantee the reliability and accuracy of her identification of him. The dearth of
competent additional evidence that eliminated the possibility of any human error in Amegables
identification of Caliso rendered her lack of bad faith or ill motive irrelevant and immaterial, for
even the most sincere person could easily be mistaken about her impressions of persons
involved in startling occurrences such as the crime committed against AAA. It is neither fair nor
judicious, therefore, to have the lack of bad faith or ill motive on the part of Amegable raise her
identification to the level of moral certainty.

The injuries found on the person of Caliso by Dr. Fuentecilla, as borne out by the medical
certificate dated June 9, 1997,[24] did not support the culpability of Caliso. The injuries, which
were mostly mere scratch marks,[25] were not even linked by the examining physician to the
crime charged. Inasmuch as the injuries of Caliso might also have been due to other causes,
including one related to his doing menial labor most of the time, their significance as evidence
of guilt is nil.

In the absence of proof beyond reasonable doubt as to the identity of the culprit, the
accuseds constitutional right to be presumed innocent until the contrary is proved is not
overcome, and he is entitled to an acquittal,[26] though his innocence may be doubted.[27] The
constitutional presumption of innocence guaranteed to every individual is of primary
importance, and the conviction of the accused must rest not on the weakness of the defense he
put up but on the strength of the evidence for the Prosecution.[28]

WHEREFORE, the decision promulgated on October 26, 2007

is REVERSED and SET ASIDE for insufficiency of evidence, and accused-appellant Delfin
Caliso is ACQUITTED of the crime of murder.

The Director of the Bureau of Corrections in Muntinlupa City is directed to forthwith

release Delfin Caliso from confinement, unless there is another lawful cause warranting his
further detention.

No pronouncement on costs of suit.

SO ORDERED.
 LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

C E R T I FI CAT I O N

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

RENATO C. CORONA
Chief Justice
[1]
The real name of the victim and her immediate family are withheld per R.A. No. 7610 and R.A. No. 9262 ( Anti-Violence Against
Women and Their Children Act of 2004) and its implementing rules. See People v. Cabalquinto, G.R. No. 167693, September 19,
2006, 502 SCRA 419.
[2]
Records, pp, 174-191.
[3]
CA rollo, p. 122.
[4]
G.R. Nos. 147678-87, July 7, 2004,433 SCRA 640.
[5]
CA rollo, pp. 125-133; penned by Associate Justice Michael P. Elbinias, with Associate Justice TeresitaDy-Liacco Flores (retired)
and Associate Justice Rodrigo F. Lim concurring.
[6]
Records, p. 1.
[7]
Id., p. 25.
[8]
TSN, July 8, 1998, p. 4.
[9]
TSN, September 2, 1998, p. 11.
[10]
Id, p. 3.
[11]
Records, p. 3.
[12]
TSN, September 2, 1998, p. 12.
[13]
Records, p. 73.
[14]
Id., p. 74.
[15]
Id., p. 191.
[16]
Id., p. 186.
[17]
CA rollo, pp. 54-68.
[18]
Id., p. 133.
[19]
People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478; People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243
SCRA 578; Tuason v. Court of Appeals, G.R. Nos. 113779-80, February 23, 1995, 241 SCRA 695.
[20]
CA rollo, pp. 129-130.
[21]
G.R. No. 133025, February 17, 2000, 325 SCRA 835.
[22]
Id., at pp. 849-850; bold emphasis supplied.
[23]
People v. Fronda, G.R. No. 130602, March 15, 2000; 328 SCRA 185; Natividad v. Court of Appeals, 98 SCRA 335, 346
[1980]; People v. Beltran, L-31860, November 29, 1974, 61 SCRA 246, 250; People v. Manambit, G.R. No. 1274445, April 18, 1997,
271 SCRA 344, 377; People v. Maongco, G.R. No. 108963-65, March 1, 1994, 230 SCRA 562, 575.
[24]
Records, p. 74.
[25]
TSN, June 16, 1999, pp. 11.
[26]
See Natividad v. Court of Appeals, G.R. No. L-40233, June 25, 1980, 98 SCRA 335, 346.
[27]
Pecho v. People, G.R. No. 111399, September 27, 1996, 262 SCRA 518, 533, Perez v. Sandiganbayan, G.R. Nos. 76203-04,
December 6, 1989, 180 SCRA 9; People v. Sadie, No. L-66907, April 14, 1987, 149 SCRA 240; U.S. v. Gutierrez, No. 1877, 4 Phil.
493 April 29, [1905].
[28]
People v. Pidia, G.R. No. 112264, November 10, 1995, 249 SCRA 687, 702.

It is well settled rule that the possession of stolen goods is prima facie evidence that the possessor is the thief, and
throws on him the necessity of accounting for his possession. (State vs. Weston, 9 Conn., 527; 25 Am Dec., 46;
Jones vs. The State of Mississippi, 30 Miss., 653; 64 Am. Dec., 175; State vs. Raymond, 46 Conn., 345; 2
Wharton's Criminal Law, section 1231.)

http://sc.judiciary.gov.ph/jurisprudence/2010/september2010/179033.htm

http://sc.judiciary.gov.ph/jurisprudence/2010/september2010/182555_carpio.htm

http://www.lawphil.net/judjuris/juri2012/jul2012/gr_192250_2012.html

http://www.lawphil.net/judjuris/juri2013/sep2013/gr_157943_2013.html

The Bill of Rights guarantees the right of an accused to be presumed innocent until the contrary is proved. In order
to overcome the presumption of innocence, the Prosecution is required to adduce against him nothing less than
proof beyond reasonable doubt. Such proof is not only in relation to the elements of the offense, but also in relation
to the identity of the offender. If the Prosecution fails to discharge its heavy burden, then it is not only the right of the
accused to be freed, it becomes the Courts constitutional duty to acquit him.