Republic of the Philippines In addition to the foregoing the accused are sentenced to suffer perpetual
SUPREME COURT disqualification from public office.
Manila
THIRD DIVISION
G.R. No. 39519 November 21, 1991
PEOPLE OF THE PHILIPPINES, petitioner-appellee
vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants.
The Solicitor General for petitioner-appellee.
K.V. Faylona & Associates for defendants-appellants.
FERNAN, C.J.:p
As an aftermath of the mission of the Legazpi City Police Department to serve on Christmas day in 1970 a
search warrant on Francisco Bello who was allegedly training a private army, patrolmen Daniel Pinto, Jr. and
Narciso Buenaflor, Jr. were found guilty beyond reasonable doubt by the then Circuit Criminal Court in said
city, of killing not only Bello but also 9-year-old Richard Tiongson and Rosalio Andes and seriously wounding
Maria Theresa Tiongson. The dispositive portion of the decision of June 13, 1974. 1 reads:
WHEREFORE, the Court finds the accused Narciso Buenaflor, Jr. and Daniel Pinto, Jr.
GUILTY beyond reasonable doubt of crime of:
(a) MURDER in CCC-X-288-Albay, and hereby sentences each of
them to suffer imprisonment for the rest of their lives (Reclusion
Perpetua); to indemnify the heir of Rosalie Andes in the amount of
Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and
to pay the costs;
(b) MURDER in CCC-X-289-Albay, and hereby sentences each of
them to suffer imprisonment for the rest of their lives (Reclusion
Perpetua); to indemnify the heirs of Francisco Bello in the amount of
Twenty-five Thousand (P25,000.00) Pesos, jointly and severally; and
to pay the costs;
(c) MURDER in CCC-X-298-Legazpi City, and hereby sentences each
of them to suffer imprisonment for the rest of their lives (Reclusion
Perpetua); to indemnify the heirs of Richard Tiongson in the amount
of Twenty-five Thousand (P25,000.00) Pesos, jointly and severally;
and to pay the costs;
(d) FRUSTRATED MURDER in CCC-X-299 Legazpi City, and hereby
sentences each of them to imprisonment of from Six (6) Years and
One (1) Day of Prision Mayor as Minimum, to Twelve (12) Years and
One (1) Day of Reclusion Temporal as Maximum; to indemnify the
victim, Maria Theresa Tiongson, in the amount of Eight Thousand
(P8,000.00) Pesos, jointly and severally; and to pay the costs.
According to the prosecution, on December 25, 1970, the Legazpi City Police secured from the City Court of
Legazpi a warrant for the search of the house and premises of Francisco Bello in Mariawa, Legazpi City on
the ground that the police had probable cause to believe that Bello illegally possessed a garand rifle, a
thompson submachinegun and two automatic pistols. 2 The police had earlier undertaken a surveillance of
Bello on the basis of information it had received that he was conducting an "obstacle course" or training
men for combat since October, 1970. 3
Upon receipt of the search warrant, the Chief of Police, Dr. Solomon Adornado, 4 called his officers to a
"confidential conference" at the residence of Mayor Gregorio Imperial. Present at the said conference were
the mayor, his secretary, and the officers of the patrol division, secret service and the administration of the
city police. The Chief of Police was assisted by Major Alfredo Molo, head of the intelligence division of the
city police, in briefing the group on how to serve the search warrant and to arrest Bello as the latter had
been identified as the one who shot Salustiano Botin the night before. At the time of the briefing, no
warrant of arrest had yet been issued against Bello. 5
The policemen were divided into three teams and around five members of the Philippine Constabulary (PC)
who were also present were assigned to the different teams. 6 Team 3 was placed under the charge of Sgt.
Salvador de la Paz with a policeman named Luna and appellants Buenaflor and Pinto as members. Wilfredo
Romero was the PC member assigned to the team. 7 Except for Romero and Pinto who were each armed
with a carbine, the policemen of Team 3 each carried a .38 caliber pistol. 8
Loaded in four vehicles, the three teams proceeded from the residence of the Mayor to barrio Homapon
arriving there at around seven o'clock in the evening. The four vehicles met at the junction of Homapon and
the road to Mariawa. They had decided to ride on the way to Mariawa when one of the jeeps bogged down
because of the muddy road. Hence, the three teams had to walk in single file on the right side of the road
with the teams had to walk in single file on the right side of the road with the teams maintaining a distance
o around ten meters between them. 9
Suddenly, Romero noticed the members of his team running. He ran with them and then he heard someone
shout, "Pondo!" (stop). The shout was followed by a shot and then a burst of gunfire. The team had by then
deployed to the right side of the road. When Romero checked the men by shouting the agreed password of
"bayawas" for which the person challenged answered "santol", 10 he found that Buenaflor was 5 meters in
front of him "at the bank of the road", Pinto was two meters to the right of Buenaflor, Sgt. de la Paz was
two meters to his (Romero's) right, Luna who was holding a walkie-talkie was to his left and another
policeman was in front of Luna. 11 When Romero heard the gunburst, he saw "flashes of fire" "just in front"
of him or from the place where Buenaflor was. 12
The area where the team deployed was lower in elevation than the road but Romero heard the rumbling of
a jeep going towards the direction of Homapon when he heard the burst of gunfire and saw the flashes of
fire from the direction of Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr. Felix Cappellan, Mrs. Zenaida Stilianopolous
Tiongson, her six children and the driver. They had just come from a lechonada party in the hacienda in
Mariawa of Mrs. Purificacion Napal Anduiza, the mother of Francisco Bello. Fr. Capellan had celebrated
mass to commemorate the death anniversary of Mrs. Anduiza's father. When Fr. Capellan decided to go
back to his parish, the Anduiza's offered their jeep for his transportation. 14 Seated on the front seat of the
"McArthur type" jeep which had only a canvass top but no cover on the sides and back, 15 were the driver,
Mrs. Tiongson with a child on her lap and Fr. Capellan. 16 Richard Tiongson was seated on the steel seat
behind the driver while his sister Maria Theresa was beside him. 17 The three other children were also
seated at the back.
After crossing the creek on their way to Homapon and as the driver "changed to high gear with a
dual", 18 Mrs. Tiongson saw blinking lights some 300 yards ahead. 19 Fearing that there might be "people
with bad intentions" or hold-uppers, Fr. Capellan told the driver to go faster. 20 Then Fr. Capellan heard one
shot and after a few seconds and around 50 meters ahead, there was rapid firing with some of the bullets
hitting the jeep. 21 According to Mrs. Tiongson, the widow of Col. Angel Tiongson of the PC, the rapid firing
sounded "automatic". 22 The firing came from the left rear side of the jeep. 23
Before they were fired upon, Maria Theresa saw a man lying flat on his stomach while holding a gun on the
left side of the road just ahead of the jeep. 24 Through the light of the jeep, Maria Theresa noticed that the
man was wearing a jacket and a hat and he was on the shoulder of the road. 25 After passing the man, the
rapid firing ensued. Richard said "ugh" and fell on the floor of the jeep. Maria Theresa was about to hold
Richard when she felt herself hit at the buttocks. Then they all screamed. 26
The jeep continued its fast uphill climb until it reached a level area and almost fell into a ditch were it not
for a clump of banana plants. The jeep came to a full stop. Fr. Capellan saw three men with flashlights but
he could not distinguish their faces as it was dark and their flashlights were focused on the ground. 27 Mrs.
Tiongson saw a PC jeep and some cars and, believing that one of the cars was that of the Mayor, she called
Tia Citang, the mother of the mayor, at the same time identifying herself. 28She must have managed to
take Richard from the jeep and was cuddling him on the ground near the left rear end of the jeep when she
requested Fr. Capellan to administer extreme unction on Richard. As Fr. Capellan had no holy oil, he gave
the boy absolution. 29
Even after Mrs. Tiongson had identified herself as the widow of Col. Tiongson to the men around, nobody
listened to her appeal for help. When she approached Chief of Police Adornado, she hit him and asked him
why they shot her and her companions. The Chief of Police replied that the shooting was no longer his fault
because Mrs. Tiongson and her companions did not stop when told to do so. She requested the Chief of
Police for a car in which to take Richard to the hospital or for a driver and even for a walkie-talkie so she
could talk to Mayor Imperial but the Chief of Police did not heed her pleas. 30 (TSN, February 9, 1972, pp.
17-22).
A few minutes later, a jeep driven by Fernando Anduiza arrived. Mrs. Tiongson and her children boarded the
jeep. At the intersection of the road to Legazpi City proper and the road to Mariawa, the area was brightly
lighted and armed men ordered them to put their hands up. They were told to alight from the jeep to be
searched but Mrs. Tiongson begged the lieutenant manning the area to let them pass so they could bring
her two children to the hospital. 31
Richard and Maria Theresa were brought to the Sacred Heart Clinic in Legazpi City. Thirteen-year-old Maria
Theresa was treated for a gunshot wound at the "right upper quadrant of the right buttocks." 32 Her pelvis
and abdomen were x-rayed. One of the x-ray plates 33 revealed an oval spot indicating a foreign body in
Maria Theresa's pelvis. The attending physician decided not to extract the foreign body as Maria Theresa
was not a "very good surgical risk".34 The hospital charged P282.90 for Theresa's hospitalization. 35 She
was later brought by an army plane to the PC Station Hospital in Camp Crame, Quezon City for further
treatment and hospitalization 36 but the foreign body was never removed from her pelvic area.
Richard sustained a gunshot wound at the back about the level of the 5th lumbar vertebrae. The bullet
travelled obliquely to the left kidney, the lesser sac, the liver and the right auricle.37 Richard was operated
at the hospital but he died at 8:45 the following morning due to massive hemorrhage caused by the gunshot
wound. 38 When he was autopsied, a lead slug was found embedded in his heart.39 His mother paid
P862.35 40 for his hospitalization and was charged P200 by the church. Mayor Imperial paid P500 to
Funeraria Oro for Richard's burial.41
Meanwhile, according to Chief of Police Adornado, after the shooting incident involving the Tiongsons, the
police pursued their mission to serve the search warrant on Bello. When they reached Bello's residence in
Mariawa, they were met by a "volley of fire." Suddenly, the house was lighted and a certain Escober met
him. Although Bello and his parents, Mr. and Mrs. Anduiza, were not around, the police searched the area
and found a Japanese Springfield rifle, ammunition of a garand rifle, ammunition of a carbine, live
ammunition for a .38 caliber pistol and 380 bullets for an automatic pistol. 42 Thereafter, the Chief of Police
declared the search terminated and the entire searching party left for headquarters. 43 The following day,
he issued Special Order No. 24 which states:
To All Concerned:
The following men mentioned below are hereby assigned at Homapon until their
mission is accomplished, effective as of today, December 26, 1970:
1 Sgt. Salvador de la Paz, In-charge
2. Pfc. Carlos Barbin, member
3. Pat. Eduardo Arcinue, member
4. Pat. Juan Luna, member
5. Pat. Daniel Pinto, member
6. Pat. Celedonio Abordo, member
7. Pat. Narciso Buenaflor, member
Report progress of mission any time of day through the radio system. For strict
compliance.
Chief of Police
 Copy furnished: The Honorable City Mayor, The Patrol Command, LCPD, the OIC and file
.44
The mission was to keep peace and order in the specified place and to determine the whereabouts of
Bello.45 It was not necessary to specify the mission in the order itself because the Chief of Police "had a
close understanding with the squad that went to Homapon".46 For a "convenient tactical deployment," Sgt.
De la Paz further divided Team 3 into three groups with patrolmen Buenaflor and Pinto composing Group
II.47
At noontime of December 26, 1970, Francisco Bello, more popularly known as Paquito, arrived at the
residence of Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was with Inocencia's brother,
Francisco Andes, Francisco's son Ananias, and Leoncio Mostoles. Rosalio, another son of Francisco, also
arrived with the group. 48Bello requested Inocencia and her husband that he and his group be allowed to
spend the night in Inocencia's house. 49
Inocencia woke up at around 5:00 o'clock in the morning of December 27, 1970. At the sala, on her way
from her room to the kitchen, she saw Bello sleeping alone. From the kitchen, Inocencia went to the
balcony through the sala. On her way back to the kitchen, she noticed that Bello, who was wearing a red
shirt and an underwear, had awakened. Bello opened the window, spat out and went to the balcony. He
reentered the sala and saying that it was cold, Bello put on his clothes and pants. He also wore his jacket. He
went back to the balcony and asked for water. Inocencia's husband gave Bello a glass of water. After
gurgling, Bello placed the glass on the window sill and ask Inocencia's husband for a cup of coffee.50
Inocencia's husband was about to offer Bello a cup of coffee when she heard a successive burst of gunfire.
Bello, who was the balcony facing the copra kiln ("agonan") with his back towards the pili tree, gradually fell
to the floor with his hands above his head. Then there was another burst of gunfire. From the kitchen,
Inocencia rushed to the door from where she saw a man holding a long firearm, whom she later identified
as Pinto, near the pili tree which was around eight meters from where Bello was, and another man, also
holding a gun, crouching near the stairs. 51
Inocencia, with her two-year-old child in her arms, 52 was about to rush to Bello when her husband pulled
her. Just then a man, whom Inocencia identified as Buenaflor, came up the house, pointed a gun at
Inocencia and her husband and told them to lay flat on the floor. The man asked them where the gun was.
Inocencia told him that there was no gun in the house but then, when she looked around, she saw a long
firearm with its muzzle pointed upward leaning against the wall near the door around two meters from
where Bello laid flat on his back. Bello himself had a gun but it was in its holster tucked on his waist. 53 It
was Buenaflor who took both the long firearm and the gun in Bello's holster.54
When Francisco Andes went up the house, he told Inocencia that Rosalio was dead. 55 Inocencia went near
the pili tree where Rosalio's body was, knelt down and asked the man with a long firearm why he killed
Rosalio. The man answered that Rosalio fought back. However, Inocencia did not notice any weapon near
Rosalio's body. 56
Bello's hands and feet were tied together and a bamboo pole was inserted between them so that two men,
one of them being Francisco Andes, could carry the cadaver. 57 Bello died because of "shock secondary to
massive hemorrhage due to multiple gunshot wounds". 58 A former pilot and 28 years old at the time of his
death, Bello sustained a gunshot wound at the left temple, an inch above the highest point of the pinna of
the left ear. The bullet which entered his head through the squamous temporal bone travelled towards the
occipital region down to the floor of the left middle cranial fosa until it reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet entered the superior part of the right scapular area
about the level of the third thoracic vertebrae. The bullet travelled to the right inna in a slightly upward
direction making its exit at the lateral part of the right supraclavicular fossa above the clavicle. The second
gunshot wound was at the left side interscapular area. The bullet travelled upwards and to the right
fracturing the 7th rib, entered the lower lobe of the left lung, punctured the pulmonary conus, went
through the junction of the right auricular appendage and the right auricle, the anteromedial side of the
pericardium, grazed the medial surface of the middle lobe of the right lung and exited at the right side of
the chest. The third gunshot wound was below the right nipple. The bullet went to the chest cavity, the
lower lobe of the right lung, the dome of the diaphragm, the right lobe of the liver, the 8th thoracic
vertebrae and exited at the left of the midline at the inferior interscapular area. 59
While Bellos corpse was being autopsied, a slug fell from his jacket. A bullet jacket and lead fragments were
found at the base of his skull and a slug was extracted from the floor of his mouth. 60
Rosalio Andes, 23 years old, also died of shock due to multiple gunshot wounds. A bullet entered his right
temporal area, macerated the brain, fractured both parietal bones and exited at the left parietal bone.
Another bullet entered the left scapular area below the level of the 6th rib, travelled to the dome of the left
diaphragm, the left lobe of the liver, the pancreas, the small intestines, and the perineum below the ramus
of the right pubis. The slug was found at the gluteoperineal junction about 2 inches below the tip of the
coccys and 2 1/2 inches above the gluteal line. A third bullet entered the left knee and exited at the medial
side of the leg. 61
The slugs and parts of bullets which were extracted from the bodies of the victims were turned over to the
National Bureau of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino Bonto for safekeeping
purposes.62 The empty shells and slugs which both the PC and the Legazpi City police found in Talahib were
also turned over to the NBI 63 in the same manner that the four empty carbine shells 64 found by the PC
near the coconut tree a meter from the shoulder of the road to Mariawa were also turned over to the
NBI.65 Also submitted to the NBI for ballistic examination were twelve Smith & Wesson caliber .38
revolvers, two Smith & Wesson "paltik" caliber .22, four Tell caliber revolvers, one Bosque automatic pistol
caliber .380, four carbine Inland rifles caliber .30, three US Springfield rifles caliber.30, one Thompson
submachine gun caliber .45 and one Colt automatic pistol caliber.45. 66
Defendants Pinto and Buenaflor both denied having fired at the jeep bearing the Tiongson family.67 Pinto,
who admitted carrying a caliber .30 carbine during the incident, 68 testified that the shooting occurred
because the Tiongsons' jeep "was going towards" them. 69
According to Pinto, when they reached Mariawa, it was he who fired one shot in the air. 70 After the search
had been conducted in Bello's premises, Team 3 was instrued by a "superior officer" "to remain and
maintain peace and order in (the) vicinity including Mariawa". 71While he and Buenaflor were patrolling the
area, at around midnight, they "chanced upon a house" wherein Bello and his group were staying. They
captured four of Bello's bodyguards and tied them to a pili tree with the torn shirt of one of the captives.72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor, who was behind him, called Bello. Then a
single shot coming from the house rang out. It was answered by a burst of fire which Pinto "presumed"
came from Buenaflor. By reflex action, Pinto transferred from the pili tree to a nearby coconut tree. But
before he reached the coconut tree, he saw a man with a bolo in his hand running towards him. As the man
was menacingly near him, Pinto shot him. 73
After a lull in the firing, he went up the house to look for Bello's other companions. He saw the body of Bello
on the porch and "near" it was a garand which he took. He also got Bello's short firearm "from a holster."
He turned over both the garand and the short firearm to Buenaflor. One of the captured persons kicked
Bello's body saying that if not for Bello, his son would not have been killed. Thereafter, the two dead
persons were carried by the captured bodyguards to Mariawa. 74
In Mariawa, Pinto contacted (through the radio) police outpost No. 5 in Banquerohan and two jeeps arrived.
When they reached the junction in Homapon, Major Molo, who was with Fiscal Benito Se, told Pinto to go
back with him to Talahib. Although Pinto warned Major Molo that it would be dangerous to go back
because one of Bello's men had escaped, they nevertheless proceeded to Talahib. With three other
policemen, they arrived there between eight and nine in the morning where they were instructed to "look
for evidence specifically . . . for a thompson." He found in the porch two shells and the others found a hat
and a flashlight. Thereafter, they returned to Mariawa and later, to Legazpi City proper. 75
On cross-examination, Pinto stated that he did not know that they found Bello in an area which was beyond
the jurisdiction of Legazpi City. He admitted that while they were instructed patrol the area, they were also
told to effect the arrest of Bello even if no complaint had been lodged against him. 76 According to Pinto, of
the fifteen bullets in the magazine of his carbine, only two remained. He fired "most" of the thirteen shots
during the "Bello incident". 77
Pinto shot the man later identified as Rosalio Andes when he was at a distance of around three meters.
Rosalio was "face to face" with him when Pinto shot him. As Rosalio did not fall from the first shot, Pinto
continued shooting him. 78 When he went up the porch he saw the garand "lying on the floor" but the gun
tucked on Bello's waist was still in its holster. 79
On the Tiongson incident, Pinto asserted that he did not fire his
carbine. 80 When he saw the headlight of the Tiongsons' jeep, he also saw a flashlight being waved. A little
later, he heard a shout ordering the jeep to stop. Then he heard one shot and immediately after, the volley
of fire as the jeep was going towards his direction. As it passed by him, he heard the jeep's passengers
shriek. 81
For his part, Buenaflor declared that during the mission to serve the search warrant on Bello, he carried the
".38 caliber revolver Tel." (sic) which had been issued to him by the Legazpi City Police Department. He did
not fire his gun at the Tiongsons and, "as a matter of fact," he surrendered his firearm for ballistic
examination. 82 In the afternoon of December 26, however, Major Molo issued him a Thompson
submachinegun. 83
While patrolling Homapon, he and Pinto "chanced upon" some persons who told them that they could
guide them to where Bello was. At the place which they later found to be Talahib, they went near a pili tree
from where they saw a house "below." Then he saw a man who turned out to be Mostoles. Buenaflor
apprehended Mostoles because the latter was Bello's bodyguard and he had a .22 caliber firearm with him.
He came by another man with a bolo, named "Banteque" and apprehended him also. Then, from behind the
pili tree, Pinto appeared with yet another man. They waited for a while until another man, who turned out
to be Francisco Andes, came within four meters of him. Buenaflor pointed his submachinegun at him so
Andes approached him. Buenaflor confiscated Andes' .22 caliber firearm. 84
From the group, Buenaflor learned that Bello provided them with firearms and that Bello himself had a
pistol tucked in his holster as well as a garand. He and Pinto then tied the men to the pili tree. Later, he saw
a person in the balcony of the house below and Buenaflor shouted twice: "Paquito, mag-surrender ka!"
Then Buenaflor heard a "a shot coming from the direction of the balcony followed by successive shots." He
sought cover behind the pili tree and, while in a crouching position, fired his submachinegun towards the
balcony. Pinto was then behind him. As Pinto shifted his position while firing his carbine, Buenaflor went
down to the "elevated portion going down to the nipa shack" until he was near the coconut tree. There he
found a person lying with his face down. He later found out that the person was the son of Francisco
Andes. 85
After the firing had stopped, Pinto told him that Bello was dead. Pinto then went up the house. Buenaflor
went back to the pili tree, untied the four persons they had captured, and told them to do something so
they could carry the bodies of Bello and (Rosalio) Andes. 86
Like Pinto, on cross-examination, Buenaflor also asserted that he did not fire his gun at the jeep carrying the
Tiongsons. 87 While admitting that the person who led them to Bello had told them that the latter was in
Talahib, Buenaflor did not know that Talahib was a barrio of Daraga, Albay and not of Legazpi City.88 He
reiterated that he shouted at Bello urging him to surrender 89 but he was not able to fire a warning shot or
identify himself as a member of the police force "because after the second shot there was already a burst of
gunfire".90
Buenaflor affirmed that the first shot emanating from the balcony of the house in Talalib which was around
fifteen meters from the pili tree, came from a "high caliber firearm". 91 After they had found out that Bello
was dead, Pinto went up the house. Later, Pinto gave him Bello's 380 automatic pistol and
garand. 92 Although he looked at those firearms, he did not determine whether they had been fired. 93 He
noticed, however, that the magazine of the garand was "intact". 94 Aside from Bello's firearms, Buenaflor
and Pinto confiscated two .22 caliber revolvers and two bolos found on Bello's bodyguards. 95
Buenaflor stated that his Thompson submachinegun had two clips with each clip containing 30 bullets.
When he gave back the firearm to Major Molo, only four bullets were left of the one clip he had used. 96 He
remembered having squeezed twice the trigger of his Thompson submachinegun or automatic rifle in
Talahib.97 His service revolver was still with him then. 98
As a result of this series of events, four separate informations were filed against Pinto and Buenaflor. The
information charging Pinto and Buenaflor for the murder of Andes which was filed on July 26, 1971 reads:
That on or about the 27th day of December, 1970, in sitio Ando, Barrio Talahib, Daraga,
Albay and within the jurisdiction of this Honorable Court the accused, conspiring and
confederating together and mutually helping one another, without any justifiable cause
or motive, with intent to kill, did, then and there, willfully, unlawfully and feloniously,
with treachery and evident premeditation, accused Pat. Narciso Buenaflor, Jr. and Pat.
Daniel Pinto, Jr., and by means of a Cal. 45 Thompson Sub-Machine Gun, SN-213436 and
a US Carbin Inland, Cal. 30, SN-5099407, owned respectively by said accused, shoot one
Rosalio Andes, inflicting upon him gunshot wounds as described in the attached Autopsy
Report marked as Annex "A" and being made an integral part of this Information,
thereby causing upon said Rosalio Andes serious and mortal wounds which led to his
instantaneous death.
Contrary to law.
The information charging Pinto and Buenaflor with having murdered Bello contains basically the same
allegations as the above and it was filed on the same date. On August 24, 1971 two other informations were
filed against Pinto and Buenaflor: one for the murder of Richard Tiongson and another for the frustrated
murder of Maria Theresa Tiongson. On arraignment, Pinto and Buenaflor both pleaded not guilty to all the
charges.
After trial, the trial court rendered the aforementioned judgment of conviction. For the killing of Bello and
Andes, the trial court appreciated evident premeditation as a qualifying circilmstance and treachery,
nighttime and use of public position as aggravating circumstances. For the incident involving the Tiongson
children, it considered the crimes as qualified by treachery and aggravated by the use of public position.
Pinto and Buenaflor instituted the instant appeal praying for exoneration mainly on the basis of their
claim that the killings were perpetrated in the course of the performance of their official duties as peace
officers in obedience to the lawful order of their superiors.
In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code
may be successfully invoked, the defense has to prove that these two requisites are present: (a) the
offender acted in the performance of a duty and (b) the injury or offense committed be the necessary
consequence of the due performance or lawful exercise of such duty. In the absence of the second
requisite, the justification becomes an incomplete one thereby converting it into a mitigating circumstance
under Articles 13 and 69 of the same Code. 99
Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal
duty: the service of a search warrant on Bello. In the process, however, appellants abused their authority
resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the
oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two
other persons of their lives.
While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds
ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his
stepfather, and that he was "dangerous while under the influence of liquor", 100 there was no proof that he
had been convicted of any offense or that he was a dangerous fugitive from justice which would warrant a
"shoot to-kill" order from police authorities. Proof of bad moral character of the victim only establishes a
probability that he committed a crime but it certainly cannot be the reason for annihilating him nor may it
prevail over facts proven showing that the same victim had been cold-bloodedly killed. 101 As such, the
suspicion that Bello was maintaining a private army was not a sufficient justification for his being rubbed
out without due process of law.
The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a
justification for his arrest without a warrant. It should be observed that while the police had obtained a
search warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to
be a holiday, no such effort was made in securing warrant of arrest for Bello's alleged frustrated killing of
Botin. The improbability of the defense evidence through the testimony of Botin himself that Bello had shot
him in the evening of December 24, 1970 is bolstered by the same testimony showing that while he was
shot by Bello in the presence of the police force who were converging at the junction of Homapon and
Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact that no other eyewitness
corroborated Botin's testimony even in the face of his own admission that Bello had no reason to shoot
him, no complaint was ever lodged against Bello for the alleged shooting. 102
On the other hand, the prosecution, through eyewitness Rogelio Escober, tried to establish that during said
shooting incident the police were looking for Bello at the store of a certain Serrano. 103 Unable to find
Bello, the police, specifically Pinto, mauled Escober while asking him to testify against Bello for allegedly
shooting Botin. 104 The police had focused their vehicles' headlights near the bodega of ex-Mayor Los
Baos in their effort to flush out Bello who, unknown to the police, had earlier left the vicinity. It was when
the police fired at the said bodega that Botin must have been accidentally shot. 105 This story was
uncorroborated but if true, would show the police's dangerous propensity for using otherwise official
operations in an unlawful manner.
A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children.
Since the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the
belief that Bello was its passenger and posthaste they fired upon it even without any inquiry as to the
identity of its passengers.106 Granting that the police indeed fired a warning shot, sound discretion and
restraint dictated that, there being no responding shots from its passengers after the alleged warning shot
and considering the condition of the road which was not only muddy but uphill, instead of directing aimless
gunburst at the jeep, the most that they could have done was to render the jeep immobile by shooting its
tires. That way, they could have verified the identity of the passengers. As it were, they riddled the jeep
with bullets injuring in the process innocent passengers who were completely unaware of what they were
up against.
Appellants' stark denial of firing their guns upon the Tiongson family falls flat in the face of various
circumstantial evidence which point to their culpability. There is the unflinching testimony of Sgt. Romero
that he saw "flashes of fire" from the direction of Buenaflor as the jeep bearing the Tiongsons passed by.
Said testimony was corroborated by that of Rafael Jacob, the PC member of team 2, that while no one in his
team fired his gun, the "sporadic firing" came from team 3 after the first of fire which occurred while the
jeep was "abreast of team 2". 107Even defense witness Mariano Rico, a policeman who led team 1, was
"sure" that he heard gunshots at the moment when "the jeep had just passed team 2". 108
Then there are the four empty .30 caliber carbine shells which were found near the coconut tree where,
according to Romero, Pinto was deployed. While he himself carried a carbine, Romero did not fire it and his
testimony was never contradicted. The four empty shells were compared with the test shells which were
fired from the US carbine, caliber .30 Inland Division, SN-5099407, which, according to the aforequoted
information charging appellant with having killed Andes, was used by Pinto, they were found to have
"significant similar individual characteristics". 109
While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired
from a Smith & Wesson type firearm 110 and Buenaflor was proven to be carrying a .38 caliber Tell revolver,
the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .38
weapon as the source of Richard's wound only serves as a guide for the courts after considering all the facts
of the case.111 The undisputed fact is that Buenaflor was specifically pointed by Romero as the one who
fired his firearm as the Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that
Romero would prevaricate to pin responsibility on Buenaflor was ever presented, there is, therefore, no
reason to discredit his testimony. 112
In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such
motive provided a circumstantial evidence leading to the inference that indeed he fired his
gun. 113 According to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda and
constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named Santos
Urbana, Jr. borrowed Bello's jeep on the pretext that they needed it to transfer Moscoso, the suspect in the
Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had bloodstains. Bello and
Escober later learned from a PC officer that the jeep had been used in dumping in Guinobatan the body of
Moscoso. Confronted by the PC officer, Bello admitted that the jeep was borrowed by Buenaflor and Urbina
and agreed to execute a sworn statement on the matter. Consequently, the PC authorities notified Mayor
Imperial of the solution of the Moscoso killing.
Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement,
just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might
happen to you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said
that it was up to Bello but he repeated that he was giving Bello a brotherly warning that something might
happen to him 114 (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor.
However, as between the positive declaration of a prosecution witness and the negative denial of the
accused, the former deserves more credence. 115
All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired
their guns in defiance of their superior officer's order only "to find the whereabouts" of Bello 116 and to
desist from using their weapons "without clearance from the Chief of Police". 117 Since there is more than
one circumstance and the facts from which the inferences are derived are proven, the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt. 118
The fact that the victims were different from the ones the appellants intended to injure cannot save them
from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the
accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the
accused had acted with such a disregard for the life of the victim(s) without checking carefully the latter's
identity as to place himself on the same legal plane as one who kills another willfully, unlawfully and
feloniously. 119 Neither may the fact that the accused made a mistake in killing one man instead of another
be considered a mitigating circumstance. 120
It is not even necessary to pinpoint who between Pinto and Buenaflor actually caused the death of Richard
or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in
conspiracy with each other. 121 Prior agreement between the appellants to lull their intended victim is not
essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and
design. 122 In this case, such unity of purpose and design is shown by the fact that only the two of them
fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order
of their superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or
culpability is imposable on both appellants in equal degrees. 123
The same conspiracy was evident in the killing of Bello and Andes. The appellants' concerted action was
shown by the manner by which they killed the two. In this incident, however, they invoke self-defense as a
justifying circumstance. Evidence at hand, however, do not favor their claim.
Under Article 11 (1) of the Rules of Court, an accused must prove the presence of all the following elements
of said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means employed
to prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending
himself. 124 The presence of unlawful aggression is a condition sine qua non. There can be no self-defense,
complete or incomplete, unless the victim has committed an unlawful aggression on the person defending
himself. 125
In this case, Buenaflor insists that he fired at Bello because, after calling out to him to surrender, his shout
was answered by a gunshot. Pinto corroborates his story but the principal prosecution eyewitness in this
incident, Inocencia Malbas, swears that she heard no such shout to surrender nor a gunshot from Bello's
direction before Bello was fired upon by the appellants. Physical evidence as well as the testimonies of
Buenaflor himself and Pinto show that Inocencia, and not the appellants, was telling the truth.
Rafael Seora, the NBI agent who went to Talahib and the road to Mariawa to investigate as well as to take
pictures, found no bullet marks at the crime scene which would pertain to a .22 caliber "paltik" firearm
which Bello's men allegedly used. 126 As no other "paltik" firearms were recovered from the crime scene
other than the two which Buenaflor confiscated from Mostoles and Francisco Andes, the possibility of said
firearms or one of its kind having been used by Bello's men against the appellant particularly the one who
escaped is nil.
Buenaflor claimed that the shot after his call to Bello belonged to a high-powered gun 127 obviously
referring to the firearms recovered from Bello himself. According to Buenaflor however, when he found the
rifle, its magazine was "intact" and he did not manipulate the rifle to know how many of its bullets had been
used. 128 Moreover, if Bello indeed fired a gun, it must be the firearm in his holster and not the garand
which was found a couple of meters from where Bello had fallen. That Bello did not fire any of his two
firearms is buttressed by Pinto's own testimony that Bello was smoking with his back towards them when
he was shot at and that at that moment, he did not see Bello holding a gun. 129 We cannot help, therefore,
but conclude that the defense claim that Buenaflor's call to Bello was answered by a gunshot is but a
figment of their imagination designed for their own exoneration.
Appellants' claim of unlawful aggression on the part of Bello or his men would have been clarified had any
of Bello's men whom they had captured been presented in court. These men, Leoncio Mostoles, Francisco
Andes, Domingo Bantique and Ananias Andes had executed statements before the Legazpi City police to the
effect that they heard Buenaflor's call for Bello to surrender and that Bello fired his gun at the appellants.
However, all four of them later executed statements before the NBI retracting said earlier statements in
view of the fact that the police had threatened them to make the statements favorable to the
appellants. 130
As regards the unlawful aggression of Rosalio Andes against Pinto, we find that if we are to believe Pinto,
we have to stamp full credibility on his statement alone. Even Buenaflor admitted that he did not see
Rosalio Andes attack Pinto. 131 Inocencia swore that she did not see any weapon near the fallen Rosalio.
Indeed, if the aggression did occur, Pinto would not have lost time in presenting in court the bolo which
Andes threatened to use on him. But granting that Rosalio had a bolo, Pinto was not justified in inflicting the
wounds sustained by Rosalio because a mere threatening attitude of the victim will not constitute unlawful
aggression. 132 Moreover, Pinto's testimony that Rosalio menacingly approached him with a
bolo after Buenaflor had released a sunburst directed at the house where Bello was, is contrary to human
behavior if not totally ridiculous. On the contrary, by his own admission, Pinto continued firing until he saw
Rosalio fell.
An accused who admits inflicting fatal injury on his victim and invokes self-defense must rely on the
strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the
prosecution evidence gains more credibility. 133 Unfortunately, in this case, inspire of the fact that the
prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented
sufficiently strong evidence to shore up their claim of self-defense.
We agree with the trial court that treachery attended the commission of all four crimes in this case. The
killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa
Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the testimonial condonation should be the rule; otherwise we would offer a premium to crime in the
evidence on the commission of the crimes but also by the nature and location of the wounds of all the shelter of official actuation.
victims. 134 The presence of treachery qualifies the killings to murder and the wounding of Maria Theresa WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants
to frustrated murder. Nighttime, however, may not be appreciated as there is no proof that it was shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they
specifically sought in the commission of the crime and therefore we deem it absorbed by treachery. committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the
Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten (10) years
appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the and one (1) day of prision mayor maximum as maximum.
Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. There Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes
being no mitigating circumstance to temper the penalty and there being only the aggravating circumstance were committed, let a copy of this decision be furnished the Office of the President for whatever action may
of taking advantage of their public office under Article 14 (1) of the said Code, the proper penalty is be proper to temper his penalty. 138
death. 135 However, in view the constitutional abolition of the death penalty, the penalty of reclusion SO ORDERED.
perpetua shall be imposed on the appellants for each of the three murders they committed. Davide, Jr. and Romero, JJ., concur.
For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code, is Gutierrez, Jr., J., I concur but agree with Justice Bidin.
prision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty
by one degree pursuant to the provision of Article 250, and there being one aggravating circumstance and Separate Opinions
no mitigating circumstance, the penalty should be within the range of prision mayor maximum to reclusion
temporal medium. Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated
murder of Maria Theresa is six (6) years of prision correccional maximum as minimum to ten (10) years and # Separate Opinions
one (1) day of prision mayor maximum as maximum. The indemnity of eight thousand pesos imposed by the Bidin, J., concurs :
lower court should be respected considering that while there is evidence as to the actual amount she spent Since appellants had been sentenced to suffer three (3) life imprisonments, the Indeterminate Sentence
while confined at the Sacred Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred Law should no longer be applied.
after she was transferred to the Camp Crame Hospital in Quezon City.
As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The
crimes committed here ought to have no place in this democratic and civilized society. True it is that a
police officer is sometimes left in a quandary when faced with a situation where a decisive but legal action
is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]),
"(t)he judgment and discretion of public officers, in the performance of their duties, must be exercised
neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal
provision to the contrary, they must act in conformity with the dictates of a sound discretion, and with
the spirit and purpose of the law." Police officers must always bear in mind that although they are dealing
with criminal elements against whom society must be protected, these criminals are also human beings
with human rights. In the words of then Justice Moran in the Oanis case (Supra):
It is, however, suggested that a notorious criminal "must be taken by storm" without
regard to his right to life which he has by such notoriety already forfeited. We may
approve of this standard of official conduct where the criminal offers resistance or does
something which places his captors in danger of imminent attack. Otherwise, we cannot
see how, as in the present case, the mere fact of notoriety can make the life of a
criminal a mere trifle in the hands of officers of the law. Notoriety rightly supplies a
basis for redoubled official alertness and vigilance; it never can justify precipitate action
at the cost of human life. Where, as here, the precipitate action of the appellants has
cost an innocent life and there exist no circumstances whatsoever warrant action of
such character in the mind of a reasonably prudent man, condemnationnot
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta,
chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial,
found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an
indeterminate penalty of from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive."
Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of
their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the
above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to
arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same
instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When
the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of
loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate
some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see
anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two
groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to
the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached
one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida
indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida
trembling, immediately returned to her own room which was very near that occupied by Irene and her
paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping
with his back towards the door where they were, simultaneously or successively fired at him with their .32
and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and
looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire
scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal
Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The
Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the
deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter
brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds
inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to
Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where
Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo
Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and
upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed
Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded,
Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at
Tecson.
On the other hand, Oanis testified that after he had opened the curtain covering the door and after having
said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that
he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and
picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because
they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are
materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching
somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that
Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise.
Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But
Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these
contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at
once belied by the other; but their mutual incriminating averments dovetail with and corroborate
substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed
by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson
when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured
that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the
trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error
was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even
misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every
detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the
findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the
door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo
Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is
whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is
contended that, as appellants acted in innocent mistake of fact in the honest performance of their official
duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this
theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless
imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime
committed by appellants is murder through specially mitigated by circumstances to be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case
of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the
mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having
gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but
received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If
you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been
placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck
and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a
friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend
under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that
his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an
innocent mistake of fact committed without any fault or carelessness because the accused, having no time
or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In
the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever
which would press them to immediate action. The person in the room being then asleep, appellants had
ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according
to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get
him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to
secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using
unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the
arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of
Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person
arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2,
par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo
Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the
community, but these facts alone constitute no justification for killing him when in effecting his arrest, he
offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to
life which he has by such notoriety already forfeited. We may approve of this standard of official conduct
where the criminal offers resistance or does something which places his captors in danger of imminent
attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of
a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life.
Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no
circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man,
condemnation not condonation should be the rule; otherwise we should offer a premium to crime in
the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the killing being intentional and not
accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply
the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of
Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni
intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido,
por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se
produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a
deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence
(People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully
done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence
(People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance
ofalevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a
person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right
or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that
the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or
offense committed be the necessary consequence of the due performance of such duty or the lawful
exercise of such right or office. In the instance case, only the first requisite is present appellants have
acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not
the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get
him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-
anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the
person whom they believed to be Balagtas without any resistance from him and without making any
previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by
one or two degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with
the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of
from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories
of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of
P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions
PARAS, J., dissenting:
Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the
provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva
Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram
dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of
carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a
Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture
of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial
Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the
instructions contained in the telegram," proceeded to the place where the house of Irene was located.
Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the yard,
and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell
where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon
reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are
Balagtas," started shooting the man who was found by them lying down beside a woman. The man was
thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was
one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance
of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced
them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months
of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of
P1,000, and to pay the costs. Oanis and Galanta have appealed.
In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order
issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get
Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became
a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a
public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In
view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have
acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the
fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and
should not be penalized for such prudence. On the contrary, they should be commended for their bravery
and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man
was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to
danger.
The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only
after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to
that effect, was in violation of the express order given by the Constabulary authorities in Manila and which
was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that
matter, any agent of the authority to have waited until they have been overpowered before trying to put
our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by
the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in
conformity with the express order of superior Constabulary authorities, the legality or propriety of which is
not herein questioned.
The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in
view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was
deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the
realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a
loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly
constituted authorities will, upon proper order, enforce the summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact
Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an
order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also
cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio
Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith.
(U.S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as already
stated, not wrongful or felonious.
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the
defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another
by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan,
there being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3
Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after
he had already surrendered and allowed himself to be bound and that the said defendants did not have
lawful instructions from superior authorities to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto
Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:
According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be
taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said
criminal offers resistance or does something which places his captors in danger of imminent attack.
Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in
the afternoon of December 24, 1938, was very similar to this. It must be remembered that both officers
received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said
appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed
that said instructions gave more emphasis to the first part; namely, to take him dead. It appears in the
record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and
Galanta might be decorated for what they had done. That was when all parties concerned honestly believed
that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was
supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon
arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas
was upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you
are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct
easily explained by the fact that he should have felt offended by the intrusion of persons in the room where
he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the part
of the appellants to employ force and to make use of their weapons in order to repel the imminent attack
by a person who, according to their belief, was Balagtas It was unfortunate, however that an innocent man
was actually killed. But taking into consideration the facts of the case, it is, according to my humble opinion,
proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant
case we have, as in the case supra, an innocent mistake of fact committed without any fault or carelessness
on the part of the accused, who having no time to make a further inquiry, had no alternative but to take the
facts as they appeared to them and act immediately.
The decision of the majority, in recognition of the special circumstances of this case which favored the
accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked,
and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one
which is lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is
that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment
of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is
not proper. Article 69 of the Revised Penal Code provides as follows:
Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty
lower by one or two degrees than that prescribed by law shall be imposed if the deed is not
wholly excusable by reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that
the majority of such conditions be present. The courts shall impose the penalty in the period
which may be deemed proper, in view of the number and nature of the conditions of exemption
present or lacking.
This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and
which was also taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of
the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that
the justifying circumstances and circumstances exempting from liability which are the subject matter of this
article are the following: self-defense, defense of relatives, defense of strangers, state of necessity and
injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the
fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal
Code of 1870 which is the source of Article 69 of our Code says:
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado
por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en
cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de
obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa legitima o
insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna
de estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de una sola
condicion. Hay o no perturbacion de la razon; el autor del hecho es o no menor de nueve aos;
existe o no violencia material o moral irresistible, etc., etc.; tal es lo que respectivamente hay que
examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que
acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al autor del
hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la
ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que,
en los casos referidos, la ley no exige multiples condiciones.
It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than
that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some
of the conditions required by the law to justify the same or exempt from criminal liability. The word
"conditions" should not be confused with the word "requisites". In dealing with justifying circumstance No.
5 Judge Guevara states: "There are two requisites in order that this circumstance may be taken into
account: (a) That the offender acted in the performance of his duty or in the lawful exercise of a right; and
(b) That the injury or offense committed be the necessary consequence of the performance of a duty or the
lawful exercise of a right or office." It is evident that these two requisites concur in the present case if we
consider the intimate connection between the order given to the appellant by Capt. Monsod, the showing
to them of the telegram from Manila to get Balagtas who was with a bailarina named Irene, the conduct of
said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both
found him with Irene, and the statement made by Capt. Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor
of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused
ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber
revolver (Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior
officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a corporal of the
Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had
been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused
when he took it from his trunk in the barracks on the night of December 24, 1938, upon order of Captain
Monsod, it was the same revolver which was given to the witness with five .45 caliber bullets and one
empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus completing
his regular equipment of twenty bullets which he had on the morning of December 24, 1938, when
Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot
and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets exhibits F
and O, the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report
Exhibit C and the second found at the place of the shooting, had not been fired from revolver Exhibit L
nor from any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused
Galanta to have substituted his revolver because when Exhibit L was taken from him nobody in the barracks
doubted that the deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and
therefore there was no reason why Galanta should carry along another gun, according to the natural course
of things. On the other hand, aside from wound No. 3 as above stated, no other wound may be said to have
been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2
must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that
wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's
entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-legal
expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with either 11 mm.
or 12 mm. diameter. All other wounds found by the surgeon who performed the autopsy appeared to have
been caused by bullets of a lesser caliber. In consequence, it can be stated that no bullet fired by Galanta
did ever hit or kill Serapio Tecson and therefore there is no reason why he should be declared criminally
responsible for said death.
People vs. Oanis
G.R. No. L-47722 July 27, 1943
Facts: As a group taking the route to Rizal street, Chief of Police Antonio Z. Oanis and his co-accused Corporal
Alberto Galanta were under instructions to arrest Anselmo Balagtas, a notorious criminal and escaped
convict, and if overpowered, to get him dead or alive. Proceeding to the suspected house, they went into a
room and on seeing a man sleeping with his back towards the door, simultaneously fired at him with their .32
and .45 caliber revolvers, without first making any reasonable inquiry as to his identity. The victim turned out
to be a peaceful and innocent citizen, Serapio Tecson who upon autopsy, multiple gunshot wounds were
found on his body which caused his death.
The defendants alleged and appealed that in the honest performance of their official duties, they acted in
innocent mistake of fact.
Issue: Whether or not Chief of Police Oanis and Corporal Galanta were guilty of murder.
Ruling: New Rules of Court, Rule 109, Section 2 paragraph 2 provides, No unnecessary or unreasonable force
shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than
is necessary for his detention. As the deceased was killed while asleep, the crime committed by both was
murder with the qualifying circumstance of alevosia. Even if it were true that the victim was the notorious
criminal, the accused would not be justified in killing him while the latter was sleeping. In apprehending even
the most notorious criminal, the law does not permit the captor to kill him. It is only when the fugitive from
justice is determined to fight the officers of the law who are trying to capture him that killing him would be
justified.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in
toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of
attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went
to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them
to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig
had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed
because of a land dispute between them and that Mandaya should accompany the four (4) men, otherwise,
he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig,
all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At
the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter,
Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was
in another City and her home was then occupied by her son-in-law and his family. No one was in the room
when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the
five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina
Palangpangan and we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by
the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this
Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of
the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on account
of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead,
the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent
alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent
impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or
accident other than petitioner's and his accused's own spontaneous desistance (Art.
 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this
fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old
Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the person
conceiving the idea should have set about doing the deed, employing appropriate
means in order that his intent might become a reality, and finally, that the result or end
contemplated shall have been physically possible. So long as these conditions were not
present, the law and the courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the
Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not
aimed at something quite impossible or carried out with means which prove inadequate, would constitute a
felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property
because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of
accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a
crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2) there is intention to perform
the physical act; (3) there is a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts
his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket
empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be,
although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his
end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused,
with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out,
however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The
Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where
he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is
well settled principle of criminal law in this country that where the criminal result of an
attempt is not accomplished simply because of an obstruction in the way of the thing to
be operated upon, and these facts are unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he was lying-in wait, the court held him liable for
attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became
impossible by reason of the extraneous circumstance that Lane did not go that way; and
further, that he was arrested and prevented from committing the murder. This rule of
the law has application only where it is inherently impossible to commit the crime. It has
no application to a case where it becomes impossible for the crime to be committed,
either by outside interference or because of miscalculation as to a supposed
opportunity to commit the crime which fails to materialize; in short it has no application
to the case when the impossibility grows out of extraneous acts not within the control
of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was
nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal
intent, no one can seriously doubt that the protection of the public requires the
punishment to be administered, equally whether in the unseen depths of the pocket,
etc., what was supposed to exist was really present or not. The community suffers from
the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and
what is done is a sort to create alarm, in other words, excite apprehension that the evil;
intention will be carried out, the incipient act which the law of attempt takes cognizance
of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the
latter was inside. However, at that moment, the victim was in another part of the house. The court
convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court
sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a difference between the Philippine and the American laws
regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and
made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent
regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an
attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into
two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime
could have been committed had the circumstances been as the defendant believed
them to be, it is no defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an
attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of
prison. The law governing the matter made the act criminal if done without knowledge and consent of the
warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and
the act was performed. However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt but the appellate court
reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to
a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing of this contention, the Court held that the
federal statutes did not contain such provision, and thus, following the principle of legality, no person could
be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct
constitutes the offense of attempt irrespective of legal impossibility until such time as
such legislative changes in the law take place, this court will not fashion a new non-
statutory law of criminal attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit
the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the
offense is legally impossible of accomplishment, the actor cannot be held liable for any crime neither for
an attempt not for an impossible crime. The only reason for this is that in American law, there is no such
thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge that
is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the
phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction
between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere
debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime
impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is
sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of
Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in
Article 4, which makes a person criminally liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances
which prevented the consummation of the offense will be treated as an accident independent of the actor's
will which is an element of attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of
Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner
guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner,
this Court sentences him to suffer the penalty of six (6) months ofarresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.
Intod v. CA
G.R. No. 103119 October 21, 1992
Lessons Applicable:
Laws Applicable:
FACTS:
February 4, 1979: Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador
Mandaya's house and asked him to go with them to the house of Bernardina Palangpangan. Thereafter,
they had a meeting with Aniceto Dumalagan who told Mandaya that he wanted Palangpangan to be killed
because of a land dispute between them and that Mandaya should accompany them. Otherwise, he would
also be killed.
February 4, 1979 10:00 pm: All of them armed arrived at Palangpangan's house and fired at
Palangpangan's bedroom but there was no one in the room.
RTC: convicted Intod of attempted murder based on the testimony of the witness
ISSUE: W/N Intod is guilty attempted murder since it is an impossible crime under Art. 4 (2)
HELD: YES. petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner
guilty of Attempted Murder is hereby MODIFIED. sentences him to suffer the penalty of six (6) months of
arresto mayor, together with the accessory penalties provided by the law, and to pay the costs
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on account of the employment of inadequate or
ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions
riddled it with bullets made the crime inherently impossible.
The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability to
punish criminal tendencies in Art. 4(2)
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime
Legal impossibility would apply to those circumstances where
1. the motive, desire and expectation is to perform an act in violation of the law
2. there is intention to perform the physical act
3. there is a performance of the intended physical act
4. the consequence resulting from the intended act does not amount to a crime
o Ex: The impossibility of killing a person already dead
Factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control
prevent the consummation of the intended crime this case
o Ex: man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet
and finds the pocket empty
United States: where the offense sought to be committed is factually impossible or accomplishment -
attempt to commit a crime; legally impossible of accomplishment - cannot be held liable for any crime.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 188551 February 27, 2013
EDMUNDO ESCAMILLA y JUGO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari 1 dated 20 August 2009. It seeks a review of the 10 June 2009
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR. No. 30456, which denied the Motion for
Reconsideration3 of the 10 November 2008 CA Decision4 affirming the conviction of Edmundo Escamilla
(petitioner) for frustrated homicide.
BACKGROUND
The facts of this case, culled from the records, are as follows:
Petitioner has a house with a sari-sari store along Arellano Street, Manila.5 The victim, Virgilio Mendol
(Mendol), is a tricycle driver whose route traverses the road where petitioner's store is located.6
Around 2:00 a.m. of 01 August 1999, a brawl ensued at the comer of Estrada and Arellano Streets,
Manila.7Mendol was about to ride his tricycle at this intersection while facing Arellano Street.8 Petitioner,
who was standing in front of his store, 30 meters away from Mendol,9 shot the latter four times, hitting him
once in the upper right portion of his chest.10 The victim was brought to Ospital ng Makati for
treatment11 and survived because of timely medical attention.12
The Assistant City Prosecutor of Manila filed an Information13 dated 01 December 1999 charging petitioner
with frustrated homicide. The Information reads:
That on or about August 1, 1999, in the City of Manila, Philippines, the said accused, with intent to kill, did
then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the
person of one Virgilio Mendol, by then and there shooting the latter with a .9mm Tekarev pistol with Serial
No. 40283 hitting him on the upper right portion of his chest, thereby inflicting upon him gunshot wound
which is necessarily fatal and mortal, thus performing all the acts of execution which should have produced
the crime of Homicide as a consequence, but nevertheless did not produce it by reason of causes,
independent of his will, that is, by the timely and able medical assistance rendered to said Virgilio Mendol
which prevented his death.
CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty.14 During trial, the prosecution presented the testimonies
of Mendol, Joseph Velasco (Velasco) and Iluminado Garcelazo (Garcelazo), who all positively identified him
as the shooter of Mendol.15 The doctor who attended to the victim also testified.16 The documentary
evidence presented included a sketch of the crime scene, the Medical Certificate issued by the physician,
and receipts of the medical expenses of Mendol when the latter was treated for the gunshot wound.17 In
the course of the presentation of the prosecution witnesses, the defense requested an ocular inspection of
the crime scene, a request that was granted by the court.18 On the other hand, the defense witnesses are
petitioner himself, his wife, Velasco and Barangay Tanod George Asumbrado (Asumbrado).19 The defense
offered the results of the paraffin test of petitioner and the transcript of stenographic notes taken during
the courts ocular inspection of the crime scene.20
The Regional Trial Court (RTC) held that the positive testimonies of eyewitnesses deserve far more weight
and credence than the defense of alibi.21 Thus, it found petitioner guilty of frustrated homicide.22 The
dispositive portion reads:
WHEREFORE, the Court finds the accused Edmund Escamilla Y Jugo GUILTY beyond reasonable doubt of the
crime of Frustrated Homicide under Articles 249 and 50 [sic] of the Revised Penal Code, and hereby
sentences the accused to suffer an indeterminate sentence of six (6) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1) day of prision mayor as maximum. Accused is
hereby ordered to indemnify complainant Virgilio Mendol the sum of 34,305.16 for actual damages,
30,000.00 for moral damages.
SO ORDERED.23
Petitioner filed a Notice of Appeal dated 14 July 2006.24 In the brief that the CA required him to file,25 he
questioned the credibility of the prosecution witnesses over that of the defense.26 On the other hand, the
Appellees Brief27 posited that the prosecution witnesses were credible, because there were no serious
discrepancies in their testimonies.28 Petitioner, in his Reply brief,29 said that the prosecution witnesses did
not actually see him fire the gun.30 Furthermore, his paraffin test yielded a negative result.31
The CA, ruling against petitioner, held that the issue of the credibility of witnesses is within the domain of
the trial court, which is in a better position to observe their demeanor.32 Thus, the CA upheld the RTCs
appreciation of the credibility of the prosecution witnesses in the present case.33 Also, the CA ruled that the
victims positive and unequivocal identification of petitioner totally destroyed his defense of alibi. Hence, it
found no reason to disbelieve Mendols testimony.34 In addition, it said that a paraffin test is not a
conclusive proof that a person has not fired a gun and is inconsequential when there is a positive
identification of petitioner.35
A Motion for Reconsideration36 dated 08 December 2008 was filed by petitioner, who asserted that the
defense was able to discredit the testimony of the victim.37
In its 10 June 2009 Resolution,38 the CA denied petitioners Motion for Reconsideration for being without
merit, because the matters discussed therein had already been resolved in its 10 November 2008
Decision.39
Hence, this Petition40 assailing the application to this case of the rule that the positive identification of the
accused has more weight than the defense of alibi.41 This Court resolved to require the prosecution to
comment on the Petition.42 In his Comment43 dated 15 December 2009, the victim said that his positive
identification of petitioner was a direct evidence that the latter was the author of the crime.44 Furthermore,
what petitioner raised was allegedly a question of fact, which is proscribed by a Rule 45 petition. 45 Thus, the
victim alleged, there being no new or substantial matter or question of law raised, the Petition should be
denied.46
We then obliged petitioner to file a reply.47 In his Reply dated 01 March 2010,48 he assigned as an error the
application by the CA of the rule that the positive identification of the accused has more weight than the
defense of alibi.49 He posits that the lower court manifestly overlooked relevant facts not disputed by the
parties, but if properly considered would justify a different conclusion.50 This Court, he said, should then
admit an exception to the general rule that the findings of fact of the CA are binding upon the Supreme
Court.51
ISSUES
The questions before us are as follows:
I. Whether the prosecution established petitioners guilt beyond reasonable doubt. 52
II. Whether a defense of alibi, when corroborated by a disinterested party, overcomes the positive
identification by three witnesses.53
COURTS RULING
We deny the Petition.
I. The prosecution proved petitioners guilt beyond reasonable doubt.
A. Petitioner was positively identified by three witnesses.
Petitioner argues that there was reasonable doubt as to the identity of the shooter.54 He is wrong. As
correctly held by the RTC and affirmed by the CA, the identity of the assailant was proved with moral
certainty by the prosecution, which presented three witnesses the victim Mendol, Velasco, and Garcelazo
who all positively identified him as the shooter.55 We have held that a categorical and consistently positive
identification of the accused, without any showing of ill motive on the part of the eyewitnesses, prevails
over denial.56 All the three witnesses were unswerving in their testimonies pointing to him as the shooter.
None of them had any ulterior motive to testify against him.
Mendol said that he was about to ride his tricycle at the corner of Arellano and Estrada Streets, when
petitioner, who was in front of the formers store, shot him.57 The first shot hit its target, but petitioner
continued to fire at the victim three more times, and the latter then started to run away.58
Velasco, who was also at the corner of Estrada and Arellano Streets, heard the first shot, looked around,
then saw petitioner firing at Mendol three more times.59
Lastly, Garcelazo testified that while he was buying bread from a bakery at that same street corner, he
heard three shots before he turned his head and saw petitioner pointing a gun at the direction of the victim,
who was bloodied in the right chest.60 Garcelazo was just an arms length away from him.61
The three witnesses had a front view of the face of petitioner, because they were all facing Arellano Street
from its intersection with Estrada Street, which was the locus criminis.62 Although the crime happened in
the wee hours of the morning, there was a street lamp five meters from where petitioner was standing
when he shot the victim, thus allowing a clear view of the assailants face.63 They all knew petitioner,
because they either bought from or passed by his store.64
B. The intent to kill was shown by the continuous firing at the victim even after he was hit.
Petitioner claims that the prosecution was unable to prove his intent to kill.65 He is mistaken. The intent to
kill, as an essential element of homicide at whatever stage, may be before or simultaneous with the
infliction of injuries.66 The evidence to prove intent to kill may consist of, inter alia, the means used; the
nature, location and number of wounds sustained by the victim; and the conduct of the malefactors before,
at the time of, or immediately after the killing of the victim.67
Petitioners intent to kill was simultaneous with the infliction of injuries. Using a gun,68 he shot the victim in
the chest. 69 Despite a bloodied right upper torso, the latter still managed to run towards his house to ask
for help. 70Nonetheless, petitioner continued to shoot at him three more times,71 albeit
unsuccessfully.72 While running, the victim saw his nephew in front of the house and asked for help.73 The
victim was immediately brought to the hospital on board an owner-type jeep.74 The attending physician,
finding that the bullet had no point of exit, did not attempt to extract it; its extraction would just have
caused further damage.75 The doctor further said that the victim would have died if the latter were not
brought immediately to the hospital.76 All these facts belie the absence of petitioners intent to kill the
victim.
II. Denial and alibi were not proven.
In order for alibi to prosper, petitioner must establish by clear and convincing evidence that, first, he was in
another place at the time of the offense; and, second, it was physically impossible for him to be at the scene
of the crime. 77 The appreciation of the defense of alibi is pegged against this standard and nothing else.
Petitioner, as found by both the RTC and CA, failed to prove the presence of these two requisite conditions.
Hence, he was wrong in asserting that alibi, when corroborated by other witnesses, succeeds as a defense
over positive identification.78
A. Petitioner was unable to establish that he was at home at the time of the offense.
The alibi of petitioner was that he was at home asleep with his wife when Mendol was shot.79 To support
his claim, petitioner presented the testimonies of his wife and Asumbrado.80
1. The wife of petitioner did not know if he was at home when the shooting happened.
The wife of petitioner testified that both of them went to sleep at 9:00 p.m. and were awakened at 3:00
a.m. by the banging on their door.81 However, she also said that she did not know if petitioner stayed inside
their house, or if he went somewhere else during the entire time she was asleep.82 Her testimony does not
show that he was indeed at home when the crime happened. At the most, it only establishes that he was at
home before and after the shooting. Her lack of knowledge regarding his whereabouts between 1:00 a.m.
and 3:00 a.m. belies the credibility of his alibi. Even so, the testimonies of relatives deserve scant
consideration, especially when there is positive identification83 by three witnesses.
2. Asumbrano did not see the entire face of the shooter.
Petitioner is questioning why neither the RTC nor the CA took into account the testimony of Asumbrado,
theBarangay Tanod on duty that night.84 Both courts were correct in not giving weight to his testimony.
Asumbrado said that he was there when the victim was shot, not by appellant, but by a big man who was in
his twenties.85 This assertion was based only on a back view of the man who fired the gun 12 meters away
from Asumbrado.86 The latter never saw the shooters entire face.87 Neither did the witness see the victim
when the latter was hit.88 Asumbrado also affirmed that he was hiding when the riot took place. 89 These
declarations question his competence to unequivocally state that indeed it was not petitioner who fired at
Mendol.
B. Petitioner's home was just in front of the street where the shooting occurred.
Physical impossibility refers to the distance between the place where the accused was when the crime
transpired and the place where it was committed, as well as the facility of access between the two
places. 90 Petitioner failed to prove the physical impossibility of his being at the scene of the crime at the
time in question.
Both the prosecution and the defense witnesses referred to the front of appellant's house or store
whenever they testified on the location of the shooter. Petitioner was in front of his house when he shot
the victim, according to Velasco's testimony.91 Meanwhile the statement of Asumbrado that the gate of the
store of the petitioner was closed when the shooting happened92 can only mean that the latter's house and
store were both located in front of the scene of the crime.1wphi1
Petitioner proffers the alibi that he was at home, instead of showing the impossibility of his authorship of
the crime. His alibi actually bolsters the prosecution's claim that he was the shooter, because it placed him
just a few steps away from the scene of the crime. The charge is further bolstered by the testimony of his
wife, who could not say with certainty that he was at home at 2:00a.m.- the approximate time when the
victim was shot.
Based on the foregoing, it cannot be said that the lower courts overlooked any fact that could have justified
a different conclusion. Hence, the CA was correct in affirming the R TC 's Decision that petitioner, beyond
reasonable doubt, was the assailant.
WHEREFORE, in view of the foregoing, the Petition is DENIED. The 10 June 2009 Resolution93 and 10
November 2008 Decision94 of the Court of Appeals in CA-G.R. CR. No. 30456 are hereby AFFIRMED in toto.
SO ORDERED
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson
WE CONCUR:
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Edmundo Escamilla Vs People of the Philippines G.R. No. 188551 Feb. 27, 2013 Facts: Petitioner has a house
with a sari-sari store along Arellano Street, Manila.5 The victim, Virgilio Mendol (Mendol), is a tricycle driver
whose route traverses the road where petitioner's store is located. Around 2:00 a.m. of 01 August 1999, a
brawl ensued at the comer of Estrada and Arellano Streets, Manila.7 Mendol was about to ride his tricycle
at this intersection while facing Arellano Street.8 Petitioner, who was standing in front of his store, 30
meters away from Mendol, shot the latter four times, hitting him once in the upper right portion of his
chest.10 The victim was brought to Ospital ng Makati for treatment11 and survived because of timely
medical attention. The Regional Trial Court (RTC) held that the positive testimonies of eyewitnesses deserve
far more weight and credence than the defense of alibi. Thus, it found petitioner guilty of frustrated
homicide. The CA, ruling against petitioner, held that the issue of the credibility of witnesses is within the
domain of the trial court, which is in a better position to observe their demeanor. Thus, the CA upheld the
RTCs appreciation of the credibility of the prosecution witnesses in the present case. Issue: Whether or
not the prosecution has proved his intent to kill Ruling: Yes, the intent to kill was shown by the continuous
firing at the victim even after he was hit. The intent to kill, as an essential element of homicide at whatever
stage, may be before or simultaneous with the infliction of injuries. The evidence to prove intent to kill may
consist of, inter alia, the means used; the nature, location and number of wounds sustained by the victim;
and the conduct of the malefactors before, at the time of, or immediately after the killing of the victim.
Petitioners intent to kill was simultaneous with the infliction of injuries. Using a gun, he shot the victim
in the chest. Despite a bloodied right upper torso, the latter still managed to run towards his house to ask
for help. Nonetheless, petitioner continued to shoot at him three more times, albeit unsuccessfully. While
running, the victim saw his nephew in front of the house and asked for help. The victim was immediately
brought to the hospital on board an owner-type jeep. The attending physician, finding that the bullet had
no point of exit, did not attempt to extract it; its extraction would just have caused further damage. The
doctor further said that the victim would have died if the latter were not brought immediately to the
hospital. All these facts belie the absence of petitioners intent to kill the victim. The Petition is DENIED.
People vs. Reyes G.R. No. 173307 July 17, 2013 Facts: AAA and her 9-year-old sister, BBB, had watched
television at his house just across the street from their house. By 9:00 p.m., AAA and BBB rose to go
home, but as they were leaving, Reyes suddenly pulled AAA into the store attached to thesala of his house.
Inside the store, Reyes kissed AAA and mashed her breasts. He threatened her: If you will shout, I will kill
you. He pulled down her long pants and panties below her knees, took out his penis, grabbed her by the
waist, and used his body to anchor her back to a nearby table. She fought back by boxing and pushing him
away, but her efforts were futile. Reyes penis achieved only a slight penetration of her vagina, he
succeeded in satisfying his lust, as confirmed later on when CCC, the mother of the victim, found semen on
AAAs panties. Issue: Whether or not slightest penetration of the labia of the female victims
genitalia consummates the crime of rape Ruling: Yes, slightest penetration of the labia of the female
victims genitalia consummates the crime of rape In objective terms, carnal knowledge, the other
essential element in consummated statutory rape, does not require full penile penetration of the female.
The Court has clarified in People v. Campuhan that the mere touching of the external genitalia by a penis
capable of consummating the sexual act is sufficient to constitute carnal knowledge. All that is necessary to
reach the consummated stage of rape is for the penis of the accused capable of consummating the sexual
act to come into contact with the lips of the pudendum of the victim. This means that the rape is
consummated once the penis of the accused capable of consummating the sexual act touches either labia
of the pudendum. Accordingly, the conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape proceeds from the physical fact that the labias are
physically situated beneath the mons pubis or the vaginal surface, such that for the penis to touch either
of them is to attain some degree of penetration beneath the surface of the female genitalia. It is required,
however, that this manner of touching of the labias must be sufficiently and convincingly established.
People vs Labiaga G.R. No. 202867 July 15, 2013 Facts: On December 23 2000, Gregorio Conde, and his two
daughters, Judy and Glenelyn Conde, were in their home at Barangay Malayu-an, Ajuy, Iloilo. Thereafter,
Gregorio stepped outside. Glenelyn was in their store, which was part of their house. Shortly thereafter,
Regie Labiaga (appellant), who was approximately five meters away from Gregorio, shot the latter. Gregorio
called Judy for help. When Judy and Glenelyn rushed to Gregorios aid, appellant shot Judy in the
abdomen. The two other accused were standing behind the appellant. Appellant said, she is already
dead, and the three fled the crime scene. Gregorio and Judy were rushed to the Sara District Hospital.
Judy was pronounced dead on arrival while Gregorio made a full recovery after treatment of his gunshot
wound. Issue: Whether or not the appellant is guilty of frustrated murder in the case of Gregorio Ruling: No,
the appellant is guilty of attempted murder and not frustrated murder. In frustrated murder, there must be
evidence showing that the wound would have been fatal were it not for timely medical intervention. If the
evidence fails to convince the court that the wound sustained would have caused the victims death
without timely medical attention, the accused should be convicted of attempted murder and not frustrated
murder. In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal.
This was admitted by Dr. Edwin Figura, who examined Gregorio after the shooting incident. Since
Gregorios gunshot wound was not mortal, we hold that appellant should be convicted of attempted
murder and not frustrated murder. Appellant Regie Labiaga is GUILTY of Attempted Murder. People vs.
Joseph Barra G.R. No. 198020 July 10, 2013 Facts: At around 9:00 p.m. on October 9, 2003, in the light of a
bright moon, Joseph Barra (appellant) enter the house of Elmer Lagdaan, which was lit with a lamp, and
poked a gun to the victims right forehead and demanded money. When the victim stated that the
money was not in his possession, appellant shot him. Issue: Whether or not the accused-appellant is guilty
of crime of Attempted Robbery with Homicide Ruling: Yes. In the case before us, appellants intention
was to extort money from the victim. By reason of the victims refusal to give up his personal property
- his money - to appellant, the victim was shot in the head, causing his death. The Supreme Court, however,
agree with the Court of Appeals that the element of taking was not complete, making the crime one of
attempted robbery with homicide as opposed to the crime appellant was convicted in the RTC. Appellant
is, therefore, liable under Article 297 of the Revised Penal Code, not under Article 294 as originally held by
the RTC. Article 297 of the Revised Penal Code states: Article 297. Attempted and frustrated robbery
committed under certain circumstances. When by reason or on occasion of an attempted or frustrated
robbery a homicide is committed, the person guilty of such offenses shall be punished by reclusion
temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a
higher penalty under the provisions of this Code. The elements to be convicted under Article 297 were
discussed in People v. Macabales, to wit: The elements of Robbery with Homicide as defined in Art. 297
of the Revised Penal Code are: (1) There is an attempted or frustrated robbery. (2) A homicide is
committed. In the present case, the crime of robbery remained unconsummated because the victim refused
to give his money to appellant and no personal property was shown to have been taken. It was for this
reason that the victim was shot. Appellant can only be found guilty of attempted robbery with homicide,
thus punishable under Article 297 of the Revised Penal Code.
EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every attempt
at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any
attempted fornication would be considered consummated rape and punished as such. A mere strafing of
the citadel of passion would then be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the
victim since by it he attained his objective. All the elements of the offense were already present and nothing
more was left for the offender to do, having performed all the acts necessary to produce the crime and
accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female
organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips
of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to
warrant conviction for consummated rape. We distinguished consummated rape from attempted rape
where there was no penetration of the female organ because not all acts of execution were performed as
the offender merely commenced the commission of a felony directly by overt acts.[3] The inference that
may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated
stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of
the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the lips of the female organ was
considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora,
etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation
to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary
sense. In other words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed amounts merely to attempted
rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in
its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the
two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused - a reclusive life that is not even perpetua but only
temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if
the case at bar cannot be deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree
with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a
quo to the extreme penalty of death,[5] hence this case before us on automatic review under Art. 335 of
the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma.
Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of
their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer
located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was
busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to
rush upstairs. Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel
whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused,
"P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants.
He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus
prompting her brother, a cousin and an uncle who were living within their compound, to chase the
accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They
held the accused at the back of their compound until they were advised by their neighbors to call the
barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed
the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal
to run an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on
his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this
fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused
him of raping her child. He got mad but restrained himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him
and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the
accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and
neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or
possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of
statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her
narration should not be given any weight or credence since it was punctured with implausible statements
and improbabilities so inconsistent with human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that Crysthels younger sister was also in the room
playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as
possible eyewitnesses and the fact that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been enough to deter him from committing
the crime. Besides, the door of the room was wide open for anybody to see what could be taking place
inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the
alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of
the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical
injuries or of penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw
Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were
supposedly "already removed" and that Primo was "forcing his penis into Crysthels vagina." The gravamen
of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335,
par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising
the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec.
11, the offended party being below seven (7) years old. We have said often enough that in concluding that
carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the
rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of
consummating the sexual act is sufficient to constitute carnal knowledge.[10] But the act of touching should
be understood here as inherently part of the entry of the penis into the labias of the female organ and not
mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis
merely touched the external portions of the female genitalia were made in the context of the presence or
existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had
a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her
pudendum as the victim felt his organ on the lips of her vulva,[12] or that the penis of the accused touched
the middle part of her vagina.[13] Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer
of the victims vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that
the penis indeed touched the labias or slid into the female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of consummated rape.[14] As the labias, which are required
to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence,
the conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal
area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons
pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface.
The next layer is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia minora.[15] Jurisprudence dictates that the labia
majora must be entered for rape to be consummated,[16] and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis
of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be
no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female
organ,"[17] but has also progressed into being described as "the introduction of the male organ into the
labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our mind, the case at bar
merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the
citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving
that Primos penis was able to penetrate Crysthels vagina however slight. Even if we grant arguendo that
Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of
her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw
upon entering her childrens room Corazon plunged into saying that she saw Primo poking his penis on the
vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon
Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim,
while his right hand is holding his penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the victim
would have provided Corazon an unobstructed view of Primos penis supposedly reaching Crysthels external
genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have
hidden his movements from Corazons sight, not to discount the fact that Primos right hand was allegedly
holding his penis thereby blocking it from Corazons view. It is the burden of the prosecution to establish
how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that
her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot
conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise
would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right
of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely
appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where he is and
persist in satisfying his lust even when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of
Primo upon learning of Corazons presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the
court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in
this case was consummated. It has foreclosed the possibility of Primos penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying penetration,[21] obviously induced by a
question propounded to her who could not have been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child,
whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly
sophistication, an adult interpretation that because the penis of the accused touched her organ there was
sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused
touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed
to establish sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not
even hint that Primo's penis was erect or that he responded with an erection.[23] On the contrary, Corazon
even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own
assertion that she resisted Primos advances by putting her legs close together;[24] consequently, she did
not feel any intense pain but just felt "not happy" about what Primo did to her.[25] Thus, she only shouted
"Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court
had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she
felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible.[26] None was shown in this case.
Although a child's testimony must be received with due consideration on account of her tender age, the
Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony
of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external
signs of physical injuries on complaining witness body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the
manifest variance in the medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin
line that separates attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in
the instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is
reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying
the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be taken from the medium period of
reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17)
years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which
is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its
periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of
statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of
ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten
(10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20)
days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Panganiban, J., in the result.
PEOPLE v. CAMPUHAN
G.R. No. 129433. March 30, 2000.
Stages of rape
In the case of People v. Orita, the SC held that rape was consummated from the moment the offender had
carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were
already present and nothing more was left for the offender to do, having performed all the acts necessary
to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any
penetration of the female organ by the male organ, however slight, was sufficient. The Court further held
that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the
vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape
from attempted rape where there was no penetration of the female organ because not all acts of execution
were performed as the offender merely commenced the commission of a felony directly by overt acts. The
inference that may be derived therefrom is that complete or full penetration of the vagina is not required
for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its
consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of
the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the lips of the female organ was
considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,
the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as
an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In
other words, the touching must be tacked to the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female
genitalia has not been established, the crime committed amounts merely to attempted rape.
Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which
could not fit into the victims vagina, the Court nonetheless held that rape was consummated on the basis
of the victims testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina
and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva,
or that the penis of the accused touched the middle part of her vagina. Thus, touching when applied to rape
cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape
of the penis on the external layer of the victims vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and
not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As
the labias, which are required to be touched by the penis, are by their natural situs or location beneath
the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the
pudendum constitutes consummated rape.
Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.
PEOPLE v. BALTAZAR
G.R. No. 115990. March 31, 2000
Elements of Rape
Evidentiary value of medical examinations
Held:
The more pressing issue is whether all the elements of rape as alleged in the Information were duly proved
by the prosecution. Here we find the following duly established beyond reasonable doubt. First, appellant
had carnal knowledge with the victim. Second, carnal knowledge took place by using force or intimidation.
Appellant insists that the complainant did not offer any tenacious resistance to the alleged sexual assault.
Nowhere is it required in our law or jurisprudence, however, that a woman must offer tenacious
resistance to a sexual assault. The law does not impose upon the rape victim the burden of proving
resistance. We have held countless of times that the force or violence required in rape cases is relative.
When applied, it need not be overpowering or irresistible; it is enough that it has enabled the offender to
consummate his purpose or to bring about the desired result. For rape to exist, it is not necessary that the
force or intimidation employed in accomplishing the crime be so great or of such character as could not be
resisted. What is necessary is that the force or intimidation be sufficient to consummate the purpose which
the accused had in mind. Thus we have held that physical resistance need not be established in rape cases
when intimidation is exercised upon her and she submits herself against her will to the rapists lust because
of fear for her life and personal safety. The victims failure to resist the accuseds assault successfully and to
escape when the opportunity presented itself should not be construed as a manifestation of consent.
Thirdly, the coitus was against her will and without her consent.
Insofar as the evidentiary value of a medical examination is concerned, we have held that a medical
examination of the victim, as well as the medical certificate, is merely corroborative in character and is not
an indispensable element in rape. What is important is that the testimony of private complainant about the
incident is clear, unequivocal and credible. A medical examination is not indispensable to the prosecution
of rape as long as the evidence on hand convinces the court that a conviction for rape is proper.
People v Campuhan 2000
Facts:
On 25 April 1996, at around 4p.m., Ma. Corazon Pamintuhan, the mother of four year old Crysthel
Pamintuhan, went down to the second floor of their house to prepare Milo chocolate drinks for her two
children.
At the ground floor, she met Primo who was then filling small plastic bags with water to be frozen into ice in
the freezer located at the second floor; Primo was the helper of Corazons brother;
As Corazon was busy preparing the drinks, she heard one of her daughters cry Ayoko, ayoko! prompting
Corazon to rush upstairs;
Thereupon, she saw Primo inside her childrens room kneeling before Chrysthel whose pajamas or jogging
pants and panty were already removed, while his short pants were down to his knees;
According to Corazon, Primo was forcing his penis into Chrysthels vagina; She cursed and boxed the
accused several times; He evaded and pulled up his pants; he pushed her when she tried to block his path;
Corazon then run out for help; Her brother, cousin and an uncle chased Primo and eventually held him at
the back of their compound until they decided to turn him over to the barangay officials;
Physical examination of the victim yielded negative results: No evident sign of extra genital physical injury
was noted by the medico-legal officer; Chrysthels hymen was intact and her its orifice was only 0.5cm in
diameter;
In Primos defence, he maintained his innocence. He assailed the charge as a mere scheme of Corazon who
allegedly bore an ill will against him for his refusal to run an errand. He says Chrysthel was in a playing mood
and wanted to ride his back when she suddenly pulled him down causing both of them fall to the floor. it
was in this fallen position when Corazon chance upon them
The trial court convicted the accused of statutory rape, sentenced him the penalty of death.
ISSUE:
WON the acts of the accused constitute attempted or consummated rape.
RULING:
The court ruled that there are only two stages in rape attempted and consummated; it held that rape was
consummated from the moment the offender had carnal knowledge of the victim since by it he attained his
objective. Penis must have touched the labias or slid into the female organ, not merely stroked the external
surface thereof.
In cases where penetration was not fully established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the
hymenal tags were no longer visible. None was shown in this case.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in
the instant case; hence, the accused should be punished only for it.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-21860 February 28, 1974
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VIOLETO VILLACORTE, alias BONGING, et al., defendants. CRISANTO INOFERIO Y ALINDAO alias SANTE, and
MARCIANO YUSAY alias MANCING (appeal withdrawn res. of 7/10/67), defendants-appellants.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Bernardo P. Pardo and
Solicitor Jesus V. Diaz, for plaintiff-appellee.
Peralta Law Offices for defendants-appellants.
FERNANDEZ, J.:p
The charge in this case was for robbery with homicide and the penalty imposed upon the appellant Crisanto
Inoferio and his co-accused Violeto Villacorte and Marciano Yusay was reclusion perpetua and the payment
of indemnity to the heirs of the deceased Benito Ching in the sum of P6,000.00. This case is now before this
Court only on the appeal of Inoferio, because although the lower court convicted him and his co-accused
Villacorte and Yusay (Alfredo Handig, a fourth accused was acquitted), Villacorte did not appeal, while the
appeal of Yusay was withdrawn upon his motion which was granted by this Court on July 10, 1967.
In the evening of August 27, 1959, Benito Ching, a Chinese merchant, left his sari-sari store in the public
market of Caloocan 1 to go home, bringing with him the proceeds of his sales of the day which were placed
in a paper bag. He was accompanied by his two employees, Pedro Libantino and Modesto Galvez, who
acted as his bodyguards. On the way towards his home located at 133 F. Roxas, Grace Park, Caloocan,
Benito Ching and his two companions were accosted by four persons near the corner of an alley at F. Roxas
street. At that time, Libantino was some three or four meters in front of Ching, while Galvez was walking
directly behind the Chinese merchant.
One of the holduppers pointed a .45 cal. pistol at Ching. Another placed his left arm around the neck of
Galvez, while the third held both his arms. The first who pointed a pistol at Ching snatched from him the
paper bag containing the money. The fourth got that paper bag from the snatcher.
Ching shouted for help, crying aloud "Pedie, Pedie"; his companion Libantino turned around to respond to
his employer's call; but upon seeing the bag snatcher pointing a pistol at Ching, Libantino fled. When Ching
shouted: "Pedie, Pedie," the pistol-holder fired at him. Galvez, Ching's other companion, was able to free
himself from two of the holduppers holding him, and he too ran away. Ching fell down sprawled on the
street and the four holduppers ran away. Benito Ching, notwithstanding his wound, was able to walk,
staggering towards his home. His common-law wife immediately called for a taxicab, brought Ching to the
North General Hospital in Manila where he died the following day.
Later that evening when Galvez was interrogated by police officers of Caloocan who were investigating the
incident, the interrogation proved fruitless for Galvez was able to furnish the investigators any information
on the identities of the holduppers. But when investigated by the CIS, Philippine Constabulary, at Camp
Crame on September 11, 1959, Galvez declared that Ching was accosted by three persons, one of them
pointing his pistol at the right ribs of his employer. He identified the gunman as Violeto Villacorte alias
Bonging and even described the shirt and pants the gunman was then wearing. He could not identify the
two other companions of Villacorte.
Libantino, when examined by the investigators of the Caloocan police department on the same night of
August 27, 1959, declared that the holdup and shooting incident took place in a dark "kalyehon" and that he
could not identify the gunman nor the latter's companions. But, in his written statement taken by the CIS at
Camp Crame, Quezon City on September 11, 1959, he declared positively that he saw Violeto Villacorte alias
Bonging as the person who grabbed the paper bag containing money from Ching and fired a pistol at Ching.
He further said that aside from Villacorte he saw three other persons, two of them were holding the hands
of his companion, Galvez. He admitted however, that he could not recognize the two persons who were
holding Galvez.
Villacorte who, in the meantime, had been positively identified by Galvez and Libantino as the bag snatcher
and as the gunman who shot down Ching, when interrogated by the investigators of the Criminal
Investigation Service at Camp Crame on September 12, 1959 admitted that he was the one who snatched
the paper bag from Benito Ching and shot him. He identified his companions as "Roque", "Sante" and
"Fred".
In the information for robbery with homicide filed in the Court of First Instance of Rizal on September 12,
1959, Violeto Villacorte was so named therein; "Roque" and "Fred" were already identified as Roque
Guerrero and Alfredo Handig, respectively while "Sante" was not yet identified and was named "John Doe
alias Sante". On September 24 of the same year, the information was amended by changing the name of the
accused John Doe alias Sante to Crisanto Inoferio y Alindao; and another person, Marciano Yusay, was
included among the accused. Before the trial, upon motion, the trial court discharged Roque Guerrero to be
used as a State witness.
As already above stated, the trial court, in its decision of May 15, 1963, acquitted Handig, convicted
Villacorte who did not appeal, and Yusay who appealed but who withdrew his appeal, and Inoferio who
pursued his appeal.
Upon a careful review of the evidence, We hold that the accused-appellant Crisanto Inoferio should be
acquitted upon the ground that although his defense, in the nature of an alibi, is inherently a weak defense,
it should be considered sufficient as in this case, to tilt the scale of justice in favor of the accused because
the evidence for the prosecution is itself weak and unconvincing and, therefore, by and large, insufficient to
prove the guilt of the accused beyond reasonable doubt.
Only Modesto Galvez and the State witness, Roque Guerrero, identified the appellant Inoferio as one of the
holduppers. So, let us now review and analyze their testimonies, especially insofar as they refer to Inoferio,
on the one hand, and the evidence of Inoferio, on the other.
At the time he testified in Court, Modesto Galvez was 21 years old, married and unemployed. In synthesis,
he declared that: In August, 1957, he was working as a helper in the store of Benito Ching inside the market
in Grace Park. Between 7 and 8 o'clock in the evening of August 27 that year, he and another store helper,
Pedro Libantino accompanied Ching in going home. While they were at F. Roxas Street, they were waylaid
by four men. 2
He was able to recognize two of them, namely Villacorte and the herein appellant Crisanto Inoferio who
were pointed to by him in open court. Villacorte snatched the bag from Benito Ching and fired at him once.
The bag contained money. Two persons held him. Inoferio was one of them. He did not know the other one.
Inoferio held him, Inoferio was behind and to the right of Galvez, placing his left hand over the nape of the
latter. He was able to recognize Inoferio because he looked at his left, removed his hand around the front
part of his neck, and he saw tattoo on his forearm. It was the figure of a woman with a bird. The place
where they were waylaid was bright. 3
On cross examination, Galvez admitted that he saw accused-appellant Inoferio for the first time only on that
night of August 27, 1959. The place was lighted from two electric posts; one in the alley and the other east
of the alley, corner of the alley and F. Roxas street. He was scared at the time he was held up. When he was
held by two persons, one at his back (by appellant Inoferio) and another at his front, he was scared. He did
not move nor run away until they released him. Inoferio was holding him with his left arm, held him tight
around the neck; it was difficult to unloose his hold; the left forearm was so close to his neck that he could
hardly breathe; and immediately after being released, he ran away. 4
On further cross examination, the witness testified: The morning following August 27, 1959, he went to the
police station in Caloocan. Three officers interrogated him. He was still scared and was not able to tell them
anything. 5
On September 11, 1957, he was brought by some PC officers to the CIS office, Camp Crame. He was
interrogated by agents Rodolfo Estevez and Florencio Suela. They asked him to relate the details of the
incident as best as he could. His statement was taken down in writing. He signed that statement under oath
before Assistant Fiscal Castillo. The last question asked of him was: "Do you have anything more to say?"
And his answer was: "No more". In that investigation, he said that he saw only three holduppers. In that
sworn statement, although he did not mention the name of Inoferio, he stated that he saw a tattoo on the
arm of the person who held his neck that night. His sworn statement consisting of two pages has been
marked as Exh. "1-Inoferio".
Reading the sworn statement of Modesto Galvez (Exh. "1-Inoferio"), it appears that it was taken on
September 11, 1959 but subscribed and sworn to before Assistant Fiscal Jose Castillo on September 12,
1959. It is a fact that in this statement, he mentioned that they were held up only by three persons. But,
contrary to his statement in Court, he did not mention in this sworn statement (Exh. "1-Inoferio") that the
one who held him by the neck had a tattoo on his arm.
Let us now go to the testimony of Roque Guerrero. On direct examination, he declared: He knows the
accused Violeto Villacorte. He had known him for a long time already. He knows the accused Alfredo
Handig. He also knows the accused Crisanto Inoferio alias "Sante". He came to know him because they used
to play cara y cruz in 1959. As far as he knows, Crisanto Inoferio is a Visayan. He also knows the accused
Marciano Yusay.
In July, 1959, while he was driving a tricycle, Violeto Villacorte called him and asked if he wanted to make
some money by waylaying somebody. He did not agree and he continued driving the tricycle. After two
weeks, they saw each other again when he was driving a tricycle. Villacorte again asked him if he wanted to
make some money. He did not agree. Then, in the afternoon of August 29, 1959, Villacorte met him again.
His companions then were Alfredo Handig, Marciano Yusay and "Sante". Villacorte asked him if he was not
really going with them. His answer was how could he go when "Sante" did not want to tell him the person
to be waylaid. Handig told him to go. "Sante" also told him that he go with them. Yusay even pulled out his
.45 caliber gun and threatened him, telling him: "Don't be afraid, this is what we are going to use." Guerrero
told them that he could not go with them because "he is my kuya," referring to Benito Ching. When
Villacorte told him that they were going to rob Ching, he left them but Alfredo Handig and "Sante" followed
him. They told him that they would kill him if he would approach anybody. He continued driving his tricycle
but they followed him. They left already however at about 7 o'clock that evening. 6
On cross examination, Guerrero declared: At the time he met "Sante", he was dressed in long sleeve he
was always wearing long sleeve shirt in the same manner that he was dressed while Inoferio was in Court at
the time this witness was cross examined. 7
On the night of August 8, 1959, he was arrested in connection with an attempt to rob the store of Benito
Ching. He was prosecuted for vagrancy and he pleaded guilty. He was sentenced to ten days imprisonment.
Subsequently, he was charged with attempted robbery. When investigated by the CIS agents, he did not
reveal to them anything. He gave a written statement at Camp Crame on September 21, 1959. In that
statement, he told "the entire truth of what you (Guerrero) knew about the entire case." 8 In this
statement, Guerrero mentioned only "Sante" as among those who talked to him, but did not mention his
name Crisanto Inoferio.
The appellant Crisanto Inoferio, testifying in his defense, stated that he was 39 years old, single, house
painter, and a resident of 1691 Alvarez St., Sta. Cruz, Manila. 9 He came to know the accused Violeto
Villacorte for the first time only in Camp Crame on September 12, 1959. He came to know the accused
Alfredo Handig for the first time also on September 12, 1959 but in the Caloocan Police Department. He
came to know the accused who became a State witness, Roque Guerrero, for the first time sometime
before August, 1959 at Caloocan. He used to ride in his tricycle and they often played cara y cruz together.
10
He had been to the CIS office at Camp Crame two times. The first was on September 12, 1959. In the
morning of that date, he was invited by the policemen of Caloocan to go to their headquarters. He was
made to wait there because some CIS agents would come. They came at about 1 to 2 o'clock in the
afternoon. The Caloocan police officers and the CIS agents talked to each other. After a while, the CIS said
that they would bring him to their headquarters. The Caloocan police officers answered that they
themselves would take him to Camp Crame which they did. They were Pat. Cadoy, Cpl. Mauricio and
another police lieutenant whom he did not know. He was brought to the CIS headquarters at Camp Crame
at about 3 o'clock already that afternoon. 11
When he, Inoferio, was brought upstairs, the accused Villacorte was going down. He did not mind him
because he did not know him then. Upon reaching the office of Capt. Calderon, he was made to sit down.
Later on, Villacorte and his companion came in. His companion asked Villacorte if he knew him (Inoferio)
and Villacorte answered in the negative. He was also asked if he knew Villacorte and his answer was in the
negative. Then the accused Handig was brought and in the confrontation, both of them stated that they did
not know each other. 12
Then he was brought to another room by the CIS agent who said: "You are lucky you don't know those
people. "After that, he told them that he was not "Sante" because his nickname was "Santing." 13
Towards the afternoon, he was given food to eat. While he was eating, the Caloocan policemen told him not
to finish eating anymore as they were going home. And they left Camp Crame at about past 6 o'clock in the
afternoon of September 12, 1959. When they reached Grace Park, Caloocan, the Policemen told him to go
home because he had no case. 14
The second time he was at Camp Crame was on September 21, 1959. At about 2 o'clock in the afternoon,
some CIS agents went to his house and upon their invitation, he went with them to Camp Crame. They
arrived there at about 5 o'clock in the afternoon. While they were walking at the corridor, they saw Capt.
Calderon talking with Roque Guerrero. The CIS agent asked him if he knew Guerrero and he said yes.
Guerrero was asked if he knew him and he answered in the affirmative. Then he was brought to a cell at the
groundfloor. At about 6 o'clock in the afternoon, CIS agent Morales came and brought him upstairs. He was
asked if he was drinking wine and when he answered in the affirmative, wine was brought. Morales opened
the bottle and he was asked to drink. While he was drinking, Morales told him: "I want to help you but you
also help me." His answer was: "What help can I do?" And the reply was: "I'll make you a witness for the
government." He asked Morales what he would testify and the answer was: "At the trial, point to Violeto
Villacorte, Alfredo Handig and Roque Guerrero as the persons who robbed the Chinese and that they were
inviting you to join them." His answer was: "That is bad Mr. Morales. I do not know anything about the case
you are talking about. I even do not know Alfredo Handig and Violeto Villacorte." Morales stood up, took
him downstairs and told him to think about the matter. He was again brought to his cell. 15
The following morning, after Inoferio had just taken his breakfast, Morales came and told him: "What about
the matter we talked about last night, have you come to think about it?" He said: "I am sorry, I cannot do
what you are asking me." Then Morales replied: "You might regret, I can also secure another witness," and
he left. At about 11 o'clock that morning, Morales returned with somebody named Galvez whom he did not
know. Morales then told him to take off his clothes. After he had taken off his shirt, Morales saw the tattoo
on his arms (anterior portion of his left forearm). Morales then told him to show his arm with the tattoo to
Galvez. After a few minutes, Morales and Galvez left. At about 5 o'clock in the afternoon, Morales came,
brought him out of his cell and conducted him upstairs. While they were inside a room, Morales asked him
questions which he, the latter, typed. Whenever he would not be able to answer Morales, Morales would
slap him. Morales even tied his belt around his neck and whenever he could not answer the questions,
Morales would just pull the belt. After the questioning by Morales in that afternoon of September 22, 1959,
he was made to sign his statement. At that time, Capt. Calderon was passing by the corridor. Then he was
placed in his cell. 16
The next day, he was brought out his cell, was brought to the stockade and then afterwards, to the
provincial jail in Pasig. 17
Inoferio categorically denied the testimony of Roque Guerrero that he was with Handig, Yusay, and
Villacorte on August 27, 1959, and that before that date, he and his companions were inviting him
(Guerrero) to join them to holdup somebody. And the reason why Roque Guerrero testified against him was
that Guerrero thought that he was arrested because Inoferio pointed to him when they met at Camp
Crame. But Inoferio said that he pointed to Guerrero only when he was asked by the CIS where Guerrero
was. 18
Inoferio denied the testimony of Galvez that he (Inoferio) was one of those that embraced him (Galvez)
during the holdup. 19 He categorically stated that he had not known Galvez nor have met him prior to
August 27, 1959. He came to know Villacorte for the first time on September 12, 1959 when they met at the
stairway of a building Camp Crame where he was interrogated. It was while he was coming up said stairway
when he met Violeto Villacorte for the first time. Villacorte was then coming down the stairs. He admitted
that before August, 1959, he already knew Roque Guerrero. 20
Violeto Villacorte, the person identified as the bag snatcher and the one who shot Benito Ching, declared:
He came to know Crisanto Inoferio for the first time when he met at Camp Crame on September 12, 1959.
Before August 27, 1959, he had not yet met Inoferio. 21
Another co-accused, Alfredo Handig, testified that he came to know Crisanto Inoferio for the first time on
September 12, 1959 in the municipal building of Caloocan. He categorically declared that prior to this date,
he did not know said Crisanto Inoferio. 22
By way of background to our findings of facts which justify the acquittal of appellant Inoferio, we now
recapitulate the evidence against the accused Violeto Villacorte, Marciano Yusay, and Alfredo Handig.
Violeto Villacorte was positively identified by prosecution witnesses Libantino and Galvez. And in an
extrajudicial statement secured from him by CIS investigators and which he signed and swore to before the
Assistant Fiscal of Rizal in Pasig, Villacorte admitted his role as mastermind of the plan to waylay Benito
Ching and his having grabbed the paper bag containing the proceeds of the sales of the sari-sari store of the
Chinaman. He likewise admitted responsibility for firing the pistol that snuffed the life of Benito Ching.
Marciano Yusay was equally identified positively by Pedro Libantino and Modesto Galvez as one of those
present when Villacorte was planning the holdup and at the time of the holdup. And in the ante mortem
statement of Benito Ching made to his wife Candida Pasion, he said that Marciano Yusay was one of those
who held him up.
Alfredo Handig, on the other hand, although mentioned by accused Villacorte as one of his companions in
the planning and in the execution of the robbery, prosecution witnesses Libantino and Galvez never
identified him positively because of which he was acquitted by the trial court.
With respect to the herein appellant Crisanto Inoferio, the evidence of the prosecution to the effect that he
was one of the holduppers is weak and unconvincing.
In the investigations conducted by the Caloocan Police Department, both Modesto Galvez and Pedro
Libantino never mentioned appellant Inoferio as one of those who either planned or executed the robbery
and killing although the name of Villacorte was mentioned by Libantino. In the examination conducted by
the CIS investigators at Camp Crame, again Inoferio's name was never mentioned by both prosecution
witnesses although Villacorte's and Yusay's names were now mentioned and linked to the crime.
When the accused Villacorte was subjected to a thorough investigation by the CIS agents, he admitted his
part in the planning and in the commission of the crime and named Marciano Yusay, Alfredo Handig and a
certain "Sante". Again, Inoferio at this stage of the investigation had as yet to be linked to this person called
"Sante" and to the crime.
In court, Libantino never identified Inoferio. More than that, he contradicted Galvez, for while the latter
testified that the man who had his arm around his neck was Inoferio, Libantino who was the one face to
face with the man who had his arm around Galvez, said that it was the accused Marciano Yusay. 23 And
Libantino declared that the place where the holdup and the shooting incident took place was in a dark
"kalyehon," that was why he could not identify the gunman nor the latter's companions. This contradicts
the testimony of Galvez that the place where the holdup and the shooting took place, was lighted from
electric posts. Libantino said that these two electric posts were quite far from the scene of the crime; they
were 10 meters away.
And as we consider the testimony of Modesto Galvez, even by itself, we conclude that he was not able to
see the face of the man who held him around his neck and therefore could not possibly identify him. He was
scared at the time. The one holding him by the neck was at his back. And immediately after he was
released, he ran away.
Let us now go to the telltale tattoo, the figure of a woman with a bird, on the left forearm of Inoferio. Yes,
Inoferio has that tattoo. And according to Galvez, the one who held him around his neck was Inoferio
because he saw the tattoo of Inoferio when he looked at his left and tried to remove the arm of the man
holding him by his neck. But any other person could have that kind of a tattoo, the figure of a woman with a
bird. But it may be asked: How did Galvez come to know that Inoferio had that tattoo? The answer is
furnished by the testimony of Inoferio. We have taken pains to give the synthesis of his entire testimony,
and we are satisfied that he told the truth, particularly on the point that when he was brought to Camp
Crame for the second time on September 21, 1959, he was told to remove his clothes and show his arm
with the tattoo to Galvez.
On top of all of these, there is the testimony in open court by Galvez that as early as September 11, 1959,
when he was investigated at the CIS office in Camp Crame, he already stated and specifically in his sworn
statement given on that date but subscribed and sworn to before Assistant Fiscal Castillo the following day,
that the one who held him by the neck had a tattoo on his arm. We have gone over this written sworn
statement and we do not see any mention therein by Galvez of a tattoo on the arm of person that held him.
And how could Galvez have seen the tattoo on the arm of the man who held him by the neck when
according to Guerrero, "Sante" was dressed in long sleeve in the afternoon of the holdup (the prosecution
would want to prove that "Sante" is the accused Crisanto Inoferio).
Therefore, the authorities cited by the prosecution that written statements of witnesses to police
authorities are usually sketchy and incomplete; that as a matter of fact, it is natural for even material
matters to be left out when a person gives a sworn statement during a criminal investigation, do not here
apply. The fact is that Galvez told a lie when he said that in his written statement he declared that the man
who held him had a tattoo.
How about the testimony of Roque Guerrero, the second and the only other witness linking the appellant
Inoferio to the robbery holdup in question? He was not there at the scene of the crime. All that he said was
that he was asked three times before the robbery holdup took place to go with the holduppers. But
Villacorte, Yusay and Handig denied this testimony of Guerrero. And of course, Inoferio also denied it.
But what is most significant is the fact that all along, he was referring to "Sante" as the one who was with
the group when he was asked to join them in the robbery holdup. As early as in his written statement given
at Camp Crame on September 21, 1959, he referred to one of the holduppers as "Sante"; he never
mentioned therein the name of Crisanto Inoferio; and yet it is a fact, admitted by both Guerrero and
Inoferio, that they had known each other long before the robbery holdup took place on August 27, 1959.
Therefore, if Inoferio was the "Sante" with the group of the holduppers, Guerrero should have referred to
him as Inoferio in his written statement of September 21, 1959.
And Crisanto Inoferio is not "Sante". He is the best witness to testify on his nickname and he said that his
nickname is "Santing".
Furthermore, this witness Guerrero has very poor credentials as far as his credibility is concerned. He was,
at the time he testified, 18 years old, single and unemployed. And on cross examination, he admitted that
on August 1959, he was arrested in an attempt to rob the store of Benito Ching; he was prosecuted for
vagrancy; pleaded guilty and sentenced to ten days imprisonment. Subsequently, he was charged with
attempted robbery.
And assuming that appellant Inoferio was the "Sante" who took part in the planning of the robbery holdup
in question, which is not the fact in this case, that in itself would not make him incur any criminal liability if
later on there is not that sufficient evidence to prove that he actually took part in the robbery holdup. For
after taking part in the planning, he could have desisted from taking part in the actual commission of the
crime by listening to the call of his conscience. This exempts him from criminal liability whatsoever.
Against the weak and unconvincing evidence of the prosecution regarding appellant Inoferio are his
testimony and those of the witnesses who corroborated him.
At the time he testified, Inoferio was 39 years old, single, and a house painter. The flow of events as related
by him in his testimony, a synopsis of which we have already given earlier, is so natural and convincing as to
set at ease the mind and the conscience of the Court that he was telling the truth. He denied any
participation in the robbery holdup in question. Moreover, that he did not know co-accused Villacorte and
Handig at the time the crime was committed on August 27, 1959. He came to know them only when these
two were already arrested, a fact corroborated by Villacorte and Handig. Even at the confrontation before
police officers and CIS agents, Inoferio, on one hand, and his two co-accused, on the other, already denied
having known each other earlier.
The motive of Guerrero in testifying against Inoferio was explained by the latter, and that is, that Guerrero
thought, when Inoferio pointed to him at Camp Crame that Inoferio was implicating Guerrero in the robbery
holdup. And Galvez, who never implicated Inoferio when investigated by the Caloocan police officers in the
evening of August 27, 1959 and when investigated by the CIS Camp Crame on September 11, 1959, must
have based his testimony in court, where he identified Inoferio, on the erroneous information supplied to
him that "Sante" (one of the holduppers) was Inoferio.
This is good a time as any to emphasize the fact that courts should not at once look with disfavor at the
defense of alibi. Although inherently weak and easily fabricated, the evidence presented by an accused in
support of that defense must be scrutinized with the same care that evidence supporting other defenses
deserves. When an accused puts up the defense of alibi, the court should not at once have a mental
prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him,
as in the case of appellant Inoferio.
WHEREFORE, the decision appealed from convicting the accused-appellant Crisanto Inoferio is hereby
reversed and he is hereby acquitted with costs de oficio. It appearing that he is at present detained at the
New Bilibid Prisons at Muntinlupa, his immediate release is hereby ordered. So ordered.
Zaldivar (Chairman), Fernando, Barredo and Aquino, JJ., concur.
Antonio, J., took no part.
Consequently, in the amended information petitioner was charged with an act entirely different and
distinct from that charged against him in the original information. Hence, the amendment was not merely in
form but in substance.
ISSUES: the appellant Inoferio. The decision appealed from convicting the accused-appellant Crisanto Inoferio is
hereby reversed and he is hereby acquitted with costs
Whether or not the respondent judge acted (a) without or in excess of the courts juri de oficio.
sdiction, or (b) with grave abuse of discretion, in allowing the amendment of the information in this case It appearing that he is at present detained at the New Bilibid Prisons at Muntinlupa, his immediate release is
DECISION: hereby ordered.

Republic of the Philippines

As to the first question, it is a well known rule that a court having jurisdiction over the offense charged and
the territory wherein it is committed, has also jurisdiction to decide all questions incidental to the criminal
proceeding. But to decide erroneously a question which is within the courts jurisdiction to decide, is not
acting
beyond or in excess of its jurisdiction. The respondent judge has not, therefore, acted without or in excess
of the
courts jurisdiction in allowing the amendment of information, however, erroneous that resolution be.
With respect to the second, it goes without saying, for it is common sense, that is a person has no power to
do an act, and therefore no discretion to do or not to do it, it cannot be said that he has acted within, or
with grave abuse of, his discretion in doing or not doing it. The respondent judge has not acted with grave
abuse of discretion in admitting the amendment, even assuming that the amendment is of substance.
Certiorari does not lie in the present case, and the petition is denied.
CASE NO. 41
People vs. Villacorte
G.R. No. L-21860
FACTS:
The charge in this case was for robbery with homicide and the penalty imposed upon the appellant Crisanto
Inoferio and his co-accused Violeto Villacorte and Marciano Yusay was
reclusion perpetua
and the payment of indemnity to the heirs of the deceased Benito Ching in the sum of P6,000. This case is
now before this Court only on appeal of Inoferio, because although the lower court convicted him and his
co-accused Villacorte and Yusay (Alfredo Handig, a fourth was acquitted), Villacorte did not appeal, while
the appeal of Yusay was withdrawn upon his motion which was granted by this Court on July 10, 1967.
ISSUE:
Whether or not the accused-appellant Inoferio is guilty of the charges against him
DECISION:
When an accused puts up the defense of alibi, the court should not at once have a mental prejudice against
him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him, as in the case of
SUPREME COURT
Manila
EN BANC
G.R. No. L-19069 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADEO PERALTA, ET AL., defendants,
ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA, FLORENCIO LUNA and
GERVASIO LARITA, defendants-review.
Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J. R. Nuguid for defendants-review.
PER CURIAM:
In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present automatic
review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio
Luna (six among the twenty-two defendants1 charged therein with multiple murder) were pronounced
guilty, and all sentenced to death, to indemnify jointly and severally the heirs of each of the victims, namely,
Jose Carriego, Eugenio Barbosa and Santos Cruz, in the sum of P6,000, and each to pay his corresponding
share of the costs.
The information recites:
That on or about the 16th day of February, 1958, in the municipality of Muntinglupa, province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, who are convicts
confined in the New Bilibid Prisons by virtue of final judgments, conspiring, confederating and mutually
helping and aiding one another, with evident premeditation and treachery, all armed with deadly weapons,
did, then and there, willfully, unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos Cruz,
also convicts confined in the same institution, by hitting, stabbing and striking them with ice picks, clubs and
other improvised weapons, pointed and/or sharpened, thereby inflicting upon the victims multiple serious
injuries which directly caused their deaths.
That the aggravating circumstance of quasi-recidivism is present in the commission of the crime in that the
crime was committed after the accused have been convicted by final judgments and while they are serving
the said judgments in the New Bilibid Prisons.
Contrary to law with the following aggravating circumstances:
1. That the crime was committed with insult to public authorities;
2. That the crime was committed by a band;
3. That the crime was committed by armed men or persons who insure or afford impunity;
4. That use of superior strength or means was employed to weaken the defense;
5. That as a means to the commission of the crime doors and windows have been broken;
6. That means was employed which add ignominy to the natural effects of the act;
7. That the crime was committed where public authorities were engaged in the discharge of their
duties.
Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of the
accused2 for lack of evidence. After the prosecution had rested its case, the charges against six of the
accused3 were dismissed for failure of the prosecution to establish a prima facie case against them. One of
the defendants died4 during the pendency of the case. After trial, the court a quo acquitted eight5 of the
remaining defendants.
As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa arrayed
themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the former composed predominantly
of Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and Mindanao. Since then the
prison compound has been rocked time and time again by bloody riots resulting in the death of many of
their members and suspected sympathizers. In an effort to avert violent clashes between the contending
groups, prison officials segrerated known members of the "Sigue-Sigue" from those of the "OXO". Building 1
housed "Sigue-Sigue" members, while a majority of the prisoners confined in Bldg. 4 belonged to the
"OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-A and 4-B (upper floor) and 4-C and
4-D (first floor), inmates from Visayas and Mindanao, from whom the "OXO" drew most of its members,
were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were preparing to
attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and "OXO" gangs
occurred in the plaza where the prisoners were assembled, causing a big commotion. The fight was,
however, quelled, and those involved were led away for investigation, while the rest of the prisoners were
ordered to return to their respective quarters. Hardly had conditions returned to normal when a riot broke
out in Bldg. 1, a known lair of the "Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where many
members and sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the
invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg. 4, as the
inmates of brigade 4-A destroyed the lock of their door and then rampaged from one brigade to another.
The invading prisoners from 4-A, mostly "OXO" members and sympathizers, clubbed and stabbed to death
Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the door of 4-C and killed two more
inmates, namely, Eugenio Barbosa and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their death before they could be brought to
the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b) contusion and
hematoma of the back of the neck, about 2 inches in diameter; and (c) five punctured wounds in the chest,
penetrating the lungs. Cause of death: internal hemorrhage from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth; (b) two
penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the right oxilla, 3
cm. in length and 2 cm. in depth; and (d) several bruises at the right and left lower extremities. Cause of
death: shock, secondary to internal hermorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on the upper
lip cutting the lip in two; (d) seven punctured wounds in the chest, two of which were penetrating; (e)
hematoma on the right hand; and (f) three punctured wounds on the left hand. Cause of death: fractured
skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was taking his
breakfast with Jose Carriego, who was at the time the representative of the prisoners confined in 4-B to the
inmate carcel, he "suddenly heard commotion" near the door of their brigade; that his fellow prisoners
started shouting "pinapasok na tayo," as the invading inmates from brigade 4-A stampeded into 4-B; that he
and Carriego took hold of their clubs and stood at the end of the passageway; that he saw Carriego
surrender his club to Andres Factora, an "OXO" member from 4-A; that as Carriego started to walk away,
Factora clubbed Carriego on the nape causing the latter to fall; that Factora turned up the face of his fallen
victim and struck him again in the face; that while Carriego was in this prostrate position, Amadeo Peralta
and Leonardo Dosal, companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino Sauza,
both inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal as the assailants
of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar Fontillas, an
inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among the invading
inmates who forced open the door of 4-C, with help from the inside provided by Visayan prisoners confined
in 4-C, were Factora, Dosal, Angel Parumog, Gervacio Larita, Ernesto Fernandez and Jose Tariman; that he
saw Factora, Larita and Fernandez kill Barbosa, while the rest of their companies instructed the Visayans to
leave their cell and ordered the "Manila boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-
C, declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio Luna, Parumog and Factora clubbed
the hapless victim. Another inmate of 4-C, Jose Halili, not only corroborated the testimony of Fontillas and
Pabarlan but as well added grim details. He declared that while Barbosa was trying to hide under a cot, he
was beaten and stabbed to death by Dosal, Parumog, Factora and Fernandez, with Luna, Larita, Pedro Cogol
and Eilel Tugaya standing guard, armed with clubs and sharp instruments, in readiness to repel any
intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C, declared that he saw Parumog,
Peralta Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO" members
and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and Barbosa. Halili
testified, that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz
knelt down and pleaded for his life, saying, "Maawa kayo sa akin. Marami akong anak;" that Luna and
Peralta were unmoved as they stabbed Santos Cruz to death. Pabarlan declared that after the death of
Barbosa, Santos Cruz was brought to 4-A by the invading inmates but Cruz was able to slip back to his cell
only to be recaptured by Factora, Dosal and Luna and brought to near the fire escape where he was clubbed
and stabbed to death by Parumog, Dosal, Factora and Peralta. Fontillas and Espino corroborated the
declarations of Halili and Pabarlan with respect to the killing of Santos Cruz, and both mentioned Larita as
one of the assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
"... it clearly appears that the three killings in question were an offshoot of the rivalry between the two
organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz, were Tagalogs and well
known as members if not sympathizers of the Sigue Sigue, while the accused so charged with their killing
were mostly members if not sympathizers of the Oxo organization. These three killings were sparked by the
commotion that happened in the plaza between 8:00 and 9:00 in the morning, while the prisoners were
preparing to go the mass ... It was evident that the clash that occurred in the plaza produced a chain
reaction among the members and followers of the two organizations. The inmates of Building No. 1, known
lair of the Sigue Sigues bolted the door of their cells and tried to invade Building No. 4 where a big number
of the Oxo members and their sympathizers were confined, but, however, were forced to retreat by the
timely arrival of the guards who sent them back to their building. When the members of the Oxo in Building
No. 4 learned about this, they went on a rampage looking for members of the Sigue Sigue or their
sympathizers who were confined with them in the same building. As the evidence of the prosecution shows,
the accused who were confined in Brigade 4-A of Building No. 4 led the attack. They destroyed the lock of
their dormitories and with the help of their companions succeeded in bolting the door of the different
brigades, and once they succeeded in bolting the doors of the different brigades, they went inside and tried
to segregate the Tagalogs from their group; that as soon as they discovered their enemies they clubbed and
stabbed them to death ...
Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-defense.
He testified that on the morning of the riot he was attacked by Carriego and Juan Estrella near the door of
4-A while he was returning to his brigade from the chapel with some companions; that Carriego clubbed
him on the head; that he was able to parry the second blow of Carriego and then succeeded in squeezing
Carriego's head with his hands; that forthwith he whipped out an improvised ice pick and stabbed Carriego
several times; that when he (Peralta) was already dizzy due to the head wound he sustained from the
clubbing, Carriego managed to slip away; that he then became unconscious, and when he regained
consciousness he found himself on a tarima with his head bandaged.
Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who saw him
actively participate in the killing of the three victims pointed to him as the aggressor, not the aggrieved.
Pineda, Marayoc and Sauza positively identified him as one of the assailants of Carriego. Contrary to the
pretensions of Peralta, Carriego an alleged "Sigue-Sigue" member, would not have attacked him, knowing
fully well that Building No. 4 was an "OXO" lair where the "Sigue-Sigue" members were outnumbered.
Anent the killing of Barbosa and Santos Cruz, Peralta failed to offer any explicit defense to rebut the
inculpatory declarations of prosecution witnesses Pabarlan and Espino who saw him participate in the
killing of Barbosa and those of Halili, Fontillas and Espino who identified him as one of the murderers of
Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in exculpation. He
declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded 4-A
where he was confined; that a free-for-all forthwith ensued; that he then heard Santos Cruz call Carlos
Espino, and advise the latter to go away as "I will be the one to kill that person (Dosal);" that with a sharp
instrument, Cruz hit him on the head and then on the nose; that as Cruz was about to hit him again, he got
hold of his ice pick and stabbed Cruz repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw him
participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-defense when the
latter together with his companions supposedly invaded Dosal's brigade (4-A), why is it that the body of
Santos Cruz was found at the fire escape near the pasillo between 4-C and 4-D of the first floor of Bldg. 1
instead of in 4-A which is located in the upper floor? Moreover, Dosal failed to explain why he was seen in
4-C, which he does not deny, since he was an inmate of 4-A where he was allegedly attacked. With respect
to the murder of Carriego and Barbosa with which Dosal was also charged, he did not offer any evidence in
his behalf. Hence, the testimonies of Pineda, Marayoc and Sauza identifying him as one of the killers of
Carriego and those of Pabarlan, Halili and Espino implicating him in the death of Santos Cruz, stand
unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-accused who
threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore because the latter
was already dead; that it was his co-accused who actually killed the three victims. Again, the declarations of
the prosecution witnesses, which were accorded full credence by the trial court, expose the guilt of Factora
beyond reasonable doubt. In fact, according to Pineda, whose testimony was corroborated by Marayoc, it
was Factora who started the mass assault by clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and
Espino pointed to Factora as one of the killers of Barbosa, while at least three prosecution witnesses,
namely, Pabarlan, Fontillas and Espino, saw Factora participate in the slaying of Santos Cruz. The active
participation of Factora in the killing, which is clear index of voluntariness, thus negates his claim of
compulsion and fear allegedly engendered by his co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi. Parumog
testified that he did not participate in the killing of the three inmates because he stayed during that entire
hapless day in the office of the trustees for investigation after the fight in the plaza; that he was implicated
in the killing by the prosecution witnesses because of his refusal to accede to their request to testify against
his co-accused; that he is not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he did not know
about the killing until he was informed that three inmates had died; that on the day in question he was
brought to the police trustee brigade for investigation after the incident in the plaza; that he was escorted
back to his brigade only in the afternoon. Luna likewise disclaims any knowledge of the killing and asserts
that for the entire duration of the riot he remained in his cell (brigade 4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies of
prosecution witness identifying them as participants in the killing of Barbosa and Santos Cruz. Pabarlan,
Espino and Fontillas declared that Larita was one of the killers of Barbosa; Espino and Fontillas declared that
they saw Larita kill Santos Cruz; Pabarlan, Halili and Espino testified that they saw Parumog participate in
the murder of Barbosa; Espino, Fontillas and Pabarlan stated that Parumog took part in the killing of Santos
Cruz. Pabarlan and Halili declared that Luna participated in the fatal assault on Barbosa and Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The defense of
alibi is generally weak since it is easy to concoct. For this reason, courts view it with no small amount of
caution, and accept it only when proved by positive, clear and satisfactory evidence.6 In the case at bar, if
Parumog and Larita were really confined in the police trustee brigade for investigation on the day of the
incident, there should have been a record of the alleged investigation. But none was presented. The
testimony of Luna that throughout the riot he stayed in his cell is quite unnatural. He claims that he did not
even help his cellmates barricade their brigade with tarimas in order to delay if not prevent the entry of the
invading inmates. According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face of positive identification by prosecution
witnesses pointing to the accused as particeps criminis.7 Moreover, the defense of alibi is an issue of fact
the resolution of which depends almost entirely on the credibility of witnesses who seek to establish it. In
this respect the relative weight which the trial judge accords to the testimony of the witnesses must, unless
patently inconsistent without evidence on record, be accepted.8 In the case at bar, the trial court, in
dismissing the alibis of Parumog, Larita and Luna, said that "their mere denial cannot prevail over the
positive testimony of the witnesses who saw them participate directly in the execution of the conspiracyto
kill Barbosa, Carriego and Santos Cruz."
The killing of Carriego constitutes the offense of murder because of the presence of treachery as a
qualifying circumstance: Carriego was clubbed by Factora from behind, and as he lay prostrate and
defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow on the nape and the
penetrating chest wounds were all fatal, according to Dr. Bartolome Miraflor. Abuse of superior strength
qualified the killing of Barbosa and Santos Cruz to the category of murder. The victims, who were attacked
individually were completely overwhelmed by their assailants' superiority in number and weapons and had
absolutely no chance at all to repel or elude the attack. All the attackers were armed with clubs or sharp
instruments while the victims were unarmed, as so found by the trial court. In fact, Halili testified that
Barbosa was clubbed and stabbed to death while he was trying to hide under a cot, and Santos Cruz was
killed while he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the commission of the murders.
The resolution of this issue is of marked importance because upon it depends the quantity and quality of
the penalties that must be imposed upon each of the appellants.
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular emphasis on
the facets relating to its nature, the quantum of proof required, the scope and extent of the criminal liability
of the conspirators, and the penalties imposable by mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it.9 Generally, conspiracy is not a crime except when the law specifically
provides a penalty therefor as in treason,10 rebellion11 and sedition.12 The crime of conspiracy known to
the common law is not an indictable offense in the Philippines.13 An agreement to commit a crime is a
reprehensible act from the view-point of morality, but as long as the conspirators do not perform overt acts
in furtherance of their malevolent design, the sovereignty of the State is not outraged and the tranquility of
the public remains undisturbed. However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a conspiracy assumes pivotal importance in the
determination of the liability of the perpetrators. In stressing the significance of conspiracy in criminal law,
this Court in U.S. vs. Infante and Barreto14 opined that
While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime
unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to
commit a crime is in many cases a fact of vital importance, when considered together with the other
evidence of record, in establishing the existence, of the consummated crime and its commission by the
conspirators.

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless
of the extent and character of their respective active participation in the commission of the crime or crimes
perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of
all.15 The foregoing rule is anchored on the sound principle that "when two or more persons unite to
accomplish a criminal object, whether through the physical volition of one, or all, proceeding severally or
collectively, each individual whose evil will actively contributes to the wrong-doing is in law responsible for
the whole, the same as though performed by himself alone."16 Although it is axiomatic that no one is liable
for acts other than his own, "when two or more persons agree or conspire to commit a crime, each is
responsible for all the acts of the others, done in furtherance of the agreement or conspiracy."17 The
imposition of collective liability upon the conspirators is clearly explained in one case18 where this Court
held that
... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration
the close and inseparable relation of each of them with the criminal act, for the commission of which they
all acted by common agreement ... The crime must therefore in view of the solidarity of the act and intent
which existed between the ... accused, be regarded as the act of the band or party created by them, and
they are all equally responsible ...
Verily, the moment it is established that the malefactors conspired and confederated in the commission of
the felony proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and
the court shall not speculate nor even investigate as to the actual degree of participation of each of the
perpetrators present at the scene of the crime. Of course, as to any conspirator who was remote from the
situs of aggression, he could be drawn within the enveloping ambit of the conspiracy if it be proved that
through his moral ascendancy over the rest of the conspirators the latter were moved or impelled to carry
out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply
justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is
generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape
committed in furtherance of a common design.
The crime of malversation is generally committed by an accountable public officer who misappropriates
public funds or public property under his trust.19 However, in the classic case of People vs. Ponte20 this
Court unequivocally held that a janitor and five municipal policemen, all of whom were not accountable
public officers, who conspired and aided a municipal treasurer in the malversation of public funds under the
latter's custody, were principally liable with the said municipal treasurer for the crime of malversation. By
reason of conspiracy, the felonious act of the accountable public officer was imputable to his co-
conspirators, although the latter were not similarly situated with the former in relation to the object of the
crime committed. Furthermore, in the words of Groizard, "the private party does not act independently
from the public officer; rather, he knows that the funds of which he wishes to get possession are in the
latter's charge, and instead of trying to abstract them by circumventing the other's vigilance he resorts to
corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means of
accomplishing a deed which by having a public officer as its moral instrument assumes the character of a
social crime."21 In an earlier case22 a non-accountable officer of the Philippine Constabulary who conspired
with his superior, a military supply officer, in the malversation of public funds was adjudged guilty as co-
principal in the crime of malversation, although it was not alleged, and in fact it clearly appeared, that the
funds misappropriated were not in his custody but were under the trust of his superior, an accountable
public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the separate
and distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal knowledge of the
offended woman only once but his liability includes that pertaining to all the rapes committed in
furtherance of the conspiracy. Thus, in People vs. Villa,23 this Court held that
... from the acts performed by the defendants front the time they arrived at Consolacion's house to the
consummation of the offense of rape on her person by each and everyone of them, it clearly appears that
they conspired together to rape their victim, and therefore each one is responsible not only for the rape
committed personally by him, but also that committed by the others, because each sexual intercourse had,
through force, by each one of the defendants with the offended was consummated separately and
independently from that had by the others, for which each and every one is also responsible because of the
conspiracy.
The rule enunciated in People vs. Villa was reiterated in People vs. Quitain24 where the appellant Teofilo
Anchita was convicted of forcible abduction with double rape for having conspired and cooperated in the
sexual assault of the aggrieved woman, although he himself did not actually rape the victim. This Court
observed:
We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the accused inserted his
fingers in the woman's organ, and widened it. Whether he acted out of lewdness or to help his brother-in-
law consummate the act, is immaterial; it was both maybe. Yet, surely, by his conduct, this prisoner
conspired and cooperated, and is guilty.
With respect to robbery in band, the law presumes the attendance of conspiracy so much so that "any
member of a band who is present at the commission of a robbery by the band, shall be punished as
principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the
same."25 In this instance, conspiracy need not be proved, as long as the existence of a band is clearly
established. Nevertheless, the liability of a member of the band for the assaults committed by his group is
likewise anchored on the rule that the act of one is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence,26 direct
proof is not essential to show conspiracy.27 Since by it nature, conspiracy is planned in utmost secrecy, it
can seldom be proved by direct evidence.28 Consequently, competent and convincing circumstantial
evidence will suffice to establish conspiracy. According to People vs. Cabrera,29 conspiracies are generally
proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes
to be accomplished. If it be proved that the defendants pursued by their acts the same object, one
performing one part and another another part of the same, so as to complete it, with a view to the
attainment of the same object, one will be justified in the conclusion that they were engaged in a
conspiracy to effect the object." Or as elucidated in People vs. Carbonel30 the presence of the concurrence
of minds which is involved in conspiracy may be inferred from "proofs of facts and circumstances which,
taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that
two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each
doing a part so that their acts, though apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred
though no actual meeting among to concert means is proved ..." In two recent cases,31 this Court ruled that
where the acts of the accused, collectively and individually, clearly demonstrate the existence of a common
design toward the accomplishment of the same unlawful purpose, conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish
conspiracy, "it is not essential that there be proof as to previous agreement to commit a crime, it being
sufficient that the malefactors committed shall have acted in concert pursuant to the same objective."32
Hence, conspiracy is proved if there is convincing evidence to sustain a finding that the malefactors
committed an offense in furtherance of a common objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once conspiracy is
proved, all of the conspirators who acted in furtherance of the common design are liable as co-principals.33
This rule of collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted
action of the conspirators in consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise they must be held solidarity liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established
that he performed an overt act in furtherance of the conspiracy, either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-conspirators by being present at the scene
of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to
executing the conspiracy. The difference between an accused who is a principal under any of the three
categories enumerated in Art. 17 of the Revised Penal Code and a co-conspirator who is also a principal is
that while the former's criminal liability is limited to his own acts, as a general rule, the latter's responsibility
includes the acts of his fellow conspirators.
In People vs. Izon, et al.,34 this Court acquitted appellant Francisco Robles, Jr., who was convicted by the
trial court of robbery with homicide as a conspirator, on the ground that although he may have been
present when the conspiracy to rob was proposed and made, "Robles uttered not a word either of approval
or disapproval. There are authorities to the effect that mere presence at the discussion of a conspiracy,
even approval of it, without any active participation in the same, is not enough for purposes of conviction."
In a more recent case,35this Court, in exonerating one of the appellants, said:
There is ample and positive evidence on record that appellant Jose Guico was absent not only from the
second meeting but likewise from the robbery itself. To be sure, not even the decision under appeal
determined otherwise. Consequently, even if Guico's participation in the first meeting sufficiently involved
him with the conspiracy (as he was the one who explained the location of the house to be robbed in
relation to the surrounding streets and the points thereof through which entrance and exit should be
effected), such participation and involvement, however, would be inadequate to render him criminally
liable as a conspirator. Conspiracy alone, without the execution of its purpose, is not a crime punishable by
law, except in special instances (Article 8, Revised Penal Code) which, however, do not include robbery.
Imposition of multiple penalties where conspirators commit more than one offense. Since in conspiracy, the
act of one is the act of all, then, perforce, each of the conspirators is liable for all of the crimes committed in
furtherance of the conspiracy. Consequently, if the conspirators commit three separate and distinct crimes
of murder in effecting their common design and purpose, each of them is guilty of three murders and shall
suffer the corresponding penalty for each offense. Thus in People vs. Masin,36 this Court held:
... it being alleged in the information that three crimes were committed not simultaneously indeed but
successively, inasmuch as there was, at least, solution of continuity between each other, the accused (seven
in all) should be held responsible for said crimes. This court holds that the crimes are murder ... In view of all
these circumstances and of the frequently reiterated doctrine that once conspiracy is proven each and
every one of the conspirators must answer for the acts of the others, provided said acts are the result of the
common plan or purpose ... it would seem evident that the penalty that should be imposed upon each of
the appellants for each of their crimes should be the same, and this is the death penalty ... (emphasis
supplied).
In the aforesaid case, however, the projected imposition of three death penalties upon each of the
conspirators for the three murders committed was not carried out due to the lack of the then requisite
unanimity in the imposition of the capital penalty.
In another case,37 this Court, after finding that conspiracy attended the commission of eleven murders, said
through Mr. Justice Tuason:
Some members of this Court opine that the proper penalty is death, under the circumstances of the case,
but they fall short of the required number for the imposition of this punishment. The sentence
consequently is reclusion perpetua; but each appellant is guilty of as many crimes of murder as there were
deaths (eleven) and should be sentenced to life imprisonment for each crime, although this may be a
useless formality for in no case can imprisonment exceed forty years. (Emphasis supplied.)
In People vs. Masani,38 the decision of the trial court imposing only one life imprisonment for each of the
accused was modified by this Court on appeal on the ground that "inasmuch as their (the conspirators')
combined attack resulted in the killing of three persons, they should be sentenced to suffer said penalty
(reclusion perpetua) for each of the three victims (crimes)." (Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court consistently stressed that once
conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-principals) but also
multiple in relation to the number of felonies committed in furtherance of the conspiracy. It can also be said
that had there been a unanimous Court in the Masin and Macaso cases, multiple death penalties would
have been imposed upon all the conspirators.
Legality and practicality of imposing multiple death penalties upon conspirators. An accused who was
charged with three distinct crimes of murder in a single information was sentenced to two death penalties
for two murders,39 and another accused to thirteen (13) separate death penalties for the 13 killings he
perpetrated.40 Therefore there appears to be no legal reason why conspirators may not be sentenced to
multiple death penalties corresponding to the nature and number of crimes they commit in furtherance of a
conspiracy. Since it is the settled rule that once conspiracy is established, the act of one conspirator is
attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a
result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by
law.
The rule on the imposition of multiple penalties where the accused is found guilty of two or more separate
and distinct crimes charged in one information, the accused not having interposed any objection to the
multiplicity of the charges, was enunciated in the leading case of U.S. vs. Balaba,41 thus: Upon conviction of
two or more offenses charged in the complaint or information, the prescribed penalties for each and all of
such offenses may be imposed, to be executed in conformity with the provisions of article 87 of the Penal
Code [now article 70 of the Revised Penal Code]. In other words, all the penalties corresponding to the
several violations of law should be imposed. Conviction for multiple felonies demands the imposition of
multiple penalties.
The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of the Revised
Penal Code and the special complex crime (like robbery with homicide). Anent an ordinary complex crime
falling under article 48, regardless of the multiplicity of offenses committed, there is only one imposable
penalty the penalty for the most serious offense applied in its maximum period. Similarly, in special
complex crimes, there is but a single penalty prescribed by law notwithstanding the number of separate
felonies committed. For instance, in the special complex crime of robbery with hommicide the imposible
penalty is reclusion perpetua to death42 irrespective of the number of homicides perpetrated by reason or
on occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The accused went to trial without
objection to the said information which charged him with more than one offense. The trial court found the
accused guilty of two murders and one homicide but it imposed only one death penalty. In its review en
consulta, this Court modified the judgment by imposing separate penalties for each of the three offenses
committed. The Court, thru Mr. Justice Carson (with Mr. Justice Malcolm dissenting with respect to the
imposition of two death penalties), held:
The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of which the
accused was convicted should be imposed in accord with the provisions of article 89 of the Penal Code. That
article is only applicable to cases wherein a single act constitutes two or more crimes, or when one offense
is a necessary means for committing the other. (U.S. vs. Ferrer, 1 Phil. Rep., 56)
It becomes our duty, therefore, to determine what penalty or penalties should have been imposed upon the
accused upon conviction of the accused of three separate felonies charged in the information.
There can be no reasonable doubt as to the guilt of the convict of two separate crimes of asesinato
(murder) marked with the generic aggravating circumstances mentioned in the decision of the trial judge ...
It follows that the death penalty must and should be imposed for each of these offenses ...
Unless the accused should be acquitted hereafter on appeal of one or both the asesinatos with which he is
charged in the information, it would seem to be a useless formality to impose separate penalties for each of
the offenses of which he was convicted, in view of the nature of the principal penalty; but having in mind
the possibility that the Chief Executive may deem it proper to grant a pardon for one or more of the
offenses without taking action on the others; and having in mind also the express provisions of the above
cited article 87 of the Penal Code, we deem it proper to modify the judgment entered in the court below by
substituting for the penalty imposed by the trial judge under the provisions of article 89 of the Code, the
death penalty prescribed by law for each of the two separate asesinatos of which he stands convicted, and
the penalty of 14 years, 8 months and 1 day of reclusion temporal (for the separate crime of homicide) ...
these separate penalties to be executed in accord with the provisions of article 87 of the Penal Code.
(Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad43 where a unanimous Court, speaking again thru
Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba ruling), opined:
For all the offenses of which the accused were convicted in the court below, the trial judge imposed the
death penalty, that is to say the penalty prescribed for the most serious crime committed, in its maximum
degree, and for this purpose made use of the provisions of article 89 of the Penal Code [now article 48 of
the Revised Penal Code]. But as indicated in the case of the United States vs. Balaba, recently decided
wherein the controlling facts were substantially similar to those in the case at bar, "all of the penalties
corresponding to the several violations of law" should have been imposed under the express provisions of
article 87 [now engrafted in article 70 of the Revised Penal Code] and under the ruling in that case, the trial
court erred in applying the provision of article 89 of the code.
We conclude that the judgment entered in the court below should be reversed, ... and that the following
separate penalties should be imposed upon him [the accused Jamad], to be executed in accordance with
article 87 of the Penal Code: (1) The penalty of death for the parricide of his wife Aring; (2) the penalty of
life imprisonment for the murder of Labonete; (3) the penalty of life imprisonment for the murder of Torres;
(4) the penalty of 12 years and one day of cadena temporal for the frustrated murder of Taclind ...
The doctrine in Balaba was reechoed in People vs. Guzman,44 which applied the pertinent provisions of the
Revised Penal Code, where this Court, after finding the accused liable as co-principals because they acted in
conspiracy, proceeded to stress that where an "information charges the defendants with the commission of
several crimes of murder and frustrated murder, as they failed to object to the multiplicity of the charges
made in the information, they can be found guilty thereof and sentenced accordingly for as many crimes
the information charges them, provided that they are duly established and proved by the evidence on
record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority in Balaba for imposing all the penalties (two
deaths and one life imprisonment) corresponding to the offense charged and proved was article 87 of the
old Penal Code which provided:
When a person is found guilty of two or more felonies or misdemeanors, all the penalties corresponding to
the several violations of law shall be imposed, the same to be simultaneously served, if possible, according
to the nature and effects of such penalties.
in relation to article 88 of the old Code which read:
When all or any of the penalties corresponding to the several violations of the law can not be
simultaneously executed, the following rules shall be observed with regard thereto:
1. In the imposition of the penalties, the order of their respective severity shall be followed so that
they may be executed successively or as nearly as may be possible, should a pardon have been granted as
to the penalty or penalties first imposed, or should they have been served out.
The essence and language, with some alterations in form and in the words used by reason of style, of the
above-cited provisions have been preserved in article 70 of the Revised Penal Code which is the product of
the merger of articles 87 and 88 of the old Penal Code. Article 70 provides:
When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity shall be followed so that they may
be executed successively or as nearly as may be possible, should a pardon have been granted as to the
penalty or penalties first imposed, or should they have been served out.
Although article 70 does not specifically command, as the former article 87 clearly did, that "all the
penalties corresponding to the several violations of law shall be imposed," it is unmistakable, however, that
article 70 presupposes that courts have the power to impose multiple penalties, which multiple penal
sanctions should be served either simultaneously or successively. This presumption of the existence of
judicial power to impose all the penalties corresponding to the number and nature of the offenses charged
and proved is manifest in the opening sentence of article 70: "When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties will so permit ..." (Emphasis
supplied.) Obviously, the two or more penalties which the culprit has to serve are those legally imposed by
the proper court. Another reference to the said judicial prerogative is found in the second paragraph of
article 70 which provides that "in the imposition of the penalties, the order of their respective severity shall
be followed ..." Even without the authority provided by article 70, courts can still impose as many penalties
as there are separate and distinct offenses committed, since for every individual crime committed, a
corresponding penalty is prescribed by law. Each single crime is an outrage against the State for which the
latter, thru the courts ofjustice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory prohibition or
jurisprudential injunction against it. On the contrary, article 70 of the Revised Penal Code presumes that
courts have the power to mete out multiple penalties without distinction as to the nature and severity of
the penalties. Moreover, our jurisprudence supports the imposition of multiple death penalties as initially
advocated in Balaba and thunderously reechoed in Salazar where the accused was sentenced on appeal to
thirteen (13) death penalties. Significantly, the Court in Balaba imposed upon the single accused mixed
multiple penalties of two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It
is contended, undeniably enough, that a death convict like all mortals, has only one life to forfeit. And
because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple
death penalties is impractical and futile because after the service of one capital penalty, the execution of
the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the
multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of
imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of
sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it
overlooks the practical merits of imposing multiple death penalties.
The imposition of a penalty and the service of sentence are two distinct, though related, concepts. The
imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses
charged and, proved, whereas service of sentence is determined by the severity and character of the
penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not
concern itself with the possibility or practicality of the service of the sentence, since actual service is a
contingency subject to varied factors like successful escape of the convict, grant of executive clemency or
natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate,
are the nature, gravity and number of the offenses charged and proved and the corresponding penalties
prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be executed simultaneously.
A cursory reading of article 70 will show that there are only two modes of serving two or more (multiple)
penalties: simultaneously or successively. The first rule is that two or more penalties shall be served
simultaneously if the nature of the penalties will so permit. In the case of multiple capital penalties, the
nature of said penal sanctions does not only permit but actually necessitates simultaneous service.
The imposition of multiple death penalties, far from being a useless formality, has practical importance. The
sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity,
which may not be accurately projected by the imposition of only one death sentence irrespective of the
number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in
its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small
measure. Hence, the imposition of multiple death penalties could effectively serve as a deterrent to an
improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the
proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in
his behalf.
Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of
the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death
penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the
maximum of forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is
commuted to life imprisonment, the convict will have to serve a maximum of only thirty years
corresponding to a single life sentence.
Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that conspiracy
attended the commission of the murders. We quote with approval the following incisive observations of the
court a quo in this respect:
Although, there is no direct evidence of conspiracy, the Court can safely say that there are several
circumstances to show that the crime committed by the accused was planned. The following circumstances
show beyond any doubt the acts of conspiracy: First, all those who were killed, Barbosa, Santos Cruz and
Carriego, were Tagalogs. Although there were many Tagalogs like them confined in Building 4, these three
were singled out and killed thereby showing that their killing has been planned. Second, the accused were
all armed with improvised weapons showing that they really prepared for the occasion. Third, the accused
accomplished the killing with team work precision going from one brigade to another and attacking the
same men whom they have previously marked for liquidation and lastly, almost the same people took part
in the killing of Carriego, Barbosa and Santos Cruz.
It is also important to note that all the accused were inmates of brigade 4-A; that all were from either the
Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails from Nueva Ecija; that all
were either "OXO" members or sympathizers; and that all the victims were members of the "Sigue-Sigue"
gang.
The evidence on record proves beyond peradventure that the accused acted in concert from the moment
they bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is true
that Parumog, Larita and Luna did not participate in the actual killing of Carriego, nonetheless, as co-
conspirators they are equally guilty and collectively liable for in conspiracy the act of one is the act of all. It
is not indispensable that a co-conspirator should take a direct part in every act and should know the part
which the others have to perform. Conspiracy is the common design to commit a felony; it is not
participation in all the details of the execution of the crime. All those who in one way or another help and
cooperate in the consummation of a felony previously planned are co-principals.45 Hence, all of the six
accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz each is guilty of three separate
and distinct crimes of murder.
We cannot agree, however, with the trial court that evident premeditation was also present. The facts on
record and the established jurisprudence on the matter do not support the conclusion of the court a quo
that evident premeditation "is always present and inherent in every conspiracy." Evident premeditation is
not inherent in conspiracy as the absence of the former does not necessarily negate the existence of the
latter.46 Unlike in evident premeditation where a sufficient period of time must elapse to afford full
opportunity for meditation and reflection for the perpetrator to deliberate on the consequences of his
intended deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith decide to commit it.47 This view finds added support in People vs. Custodia,48
wherein this Court stated:
Under normal conditions, where the act of conspiracy is directly established, with proof of the attendant
deliberation and selection of the method, time and means of executing the crime, the existence of evident
premeditation can be taken for granted. In the case before us, however, no such evidence exists; the
conspiracy is merely inferred from the acts of the accused in the perpetration of the crime. There is no
proof how and when the plan to kill Melanio Balancio was hatched, or what time elapsed before it was
carried out; we are, therefore, unable to determine if the appellants enjoyed "sufficient time between its
inception and its fulfillment dispassionately to consider and accept the consequences." (cf. People vs.
Bangug, 52 Phil. 91.) In other words, there is no showing of the opportunity of reflection and the
persistence in the criminal intent that characterize the aggravating circumstance of evident premeditation
(People vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166; People vs. Lesada
70 Phil., 525.)
Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as they did
neither allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the six
accused at the time of the commission of the offenses were serving sentences49 in the New Bilibid Prison at
Muntinlupa by virtue of convictions by final judgments the penalty for each offense must be imposed in its
maximum period, which is the mandate of the first paragraph of article 160 of the Revised Penal Code.
Viada observes, in apposition, that the severe penalty imposed on a quasi-recidivist is justified because of
his perversity and incorrigibility.50
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora,
Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of three
separate and distinct crimes of murder, and are each sentenced to three death penalties; all of them shall,
jointly and severally, indemnify the heirs of each of the three deceased victims in the sum of P12,000;51
each will pay one-sixth of the costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro, Angeles, Fernando and Capistrano, JJ.,
concur.
Zaldivar, J., is on leave.
Criminal Case: People vs Amadeo Peralta, et al. G.R. No. L-19069 October 29, 1968
People vs Amadeo Peralta, et al.
G.R. No. L-19069
October 29, 1968
Digested Cases
Facts:
On February 16, 1958, in the municipality of Muntinglupa, province of Rizal, two known warring gangs
inside the New Bilibid Prison as Sigue-Sigue and OXO were preparing to attend a mass at 7 a.m.
However, a fight between the two rival gangs caused a big commotion in the plaza where the prisoners
were currently assembled. The fight was quelled and those involved where led away to the investigation
while the rest of the prisoners were ordered to return to their respective quarters.
In the investigation, it was found out that the accused, OXO members, Amadeo Peralta, Andres Factora,
Leonardo Dosal, Angel Paramog, Gervasio Larita and Florencio Luna (six among the twenty-two defendants
charged therein with multiple murder), are also convicts confined in the said prisons by virtue of final
judgments.
They conspired, confederated and mutually helped and aided each other, with evident premeditation and
treachery, all armed with deadly weapons, did, then and there, willfully, unlawfully and feloniously killed
Sigue-Sigue sympathizers Jose Carriego, Eugenio Barbosa and Santos Cruz, also convicts confined in the
same institution, by hitting, stabbing, and striking them with ice picks, clubs and other improvised weapons,
pointed and/or sharpened, thereby inflicting upon the victims multiple serious injuries which directly
caused their deaths.
Issues
(a) Whether or not there was conspiracy in the commission of the multiple murder?
(b) Whether or not an aggravating circumstance of quasi-recidivism is present in the commission of the
crime?
Held:
A conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. Generally, conspiracy is not a crime unless when the law specifically
provides a penalty thereof as in treason, rebellion and sedition. However, when in resolute execution of a
common scheme, a felony is committed by two or more malefactors, the existence of a conspiracy assumes
a pivotal importance in the determination of the liability of the perpetrators. Once an express or implied
conspiracy is proved, all of the conspirators are liable as co-principals regardless of the extent and character
of their respective active participation in the commission of the crime/s perpetrated in furtherance of the
conspiracy because in contemplation of law the act of one is the act of all.
The collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action of
the conspirators in consummating their common purpose is a patent display of their evil partnership, and
for the consequences of such criminal enterprise they must be held solidarity liable. However, in order to
hold an accused guilty as co-principal by reason of conspiracy, it must be established that he performed an
overt act in furtherance of the conspiracy, either by actively participating in the actual commission of the
crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy.
Conspiracy alone, without execution of its purpose, is not a crime punishable by law, except in special
instances (Article 8, Revised Penal Code) which, do not include robbery.
Reverting now to the case at bar, the trial court correctly ruled that conspiracy attended the commission of
the murders. To wit, although there is no direct evidence of conspiracy, the court can safely say that there
are several circumstances to show that the crime committed by the accused was planned. First, all the
deceased were Tagalogs and members of sympathizers of Sigue-Sigue gang (OXO members were from
either Visayas or Mindanao), singled out and killed thereby, showing that their killing has been planned.
Second, the accused were all armed with improvised weapons showing that they really prepared for the
occasion. Third, the accused accomplished the killing with team work precision going from one brigade to
another and attacking the same men whom they have previously marked for liquidation and lastly, almost
the same people took part in the killing of the Carriego, Barbosa and Cruz.
In view of the attendance of the special aggravating circumstances of quasi-recidivism, as all of the six
accused at the time of the commission of the offenses were serving sentences in the New Bilibid Prison by
virtue of convictions by final judgments that penalty for each offense must be imposed in its maximum
period, which is the mandate of the first paragraph of article 160 of the RPC. Hence, severe penalty imposed
on a quasi-recidivist is justified because of the perversity and incorrigibility of the crime.
Accordingly, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora, Leonardo
Dosal, Angel Paramog, Gervasio Larita and Florencio Luna are each pronounced guilty of three separate and
distinct crimes of murder, and are each sentenced to three death penalties; all of them shall, jointly and
severally, indemnify the heirs of each of the three deceased victims in the sum of P12,000; each will pay
one-sixth of the costs.
THIRD DIVISION
[G.R. No. 128966. August 18, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DE VERA y GARCIA, RODERICK GARCIA y
GALAMGAM, KENNETH FLORENDO and ELMER CASTRO, accused, EDWIN DE VERA y GARCIA, appellant.
DECISION
PANGANIBAN, J.:
When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the
two?
Statement of the Case
These are the main questions passed upon by the Court in resolving the present appeal, which assails the
March 12, 1997 Decision[1] of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-
92-31323, finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of
murder and sentencing them to reclusion perpetua.
In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder
Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently
identified during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as
follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully and
feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack,
assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and
there shooting him with the use of a .22 cal. with trade mark Paspar Armas bearing SN-29069 with five (5)
pieces of caliber 22 ammo inside, hitting him between his eyes and striking him with the use of a baseball
bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and
immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick
Capulong y Dizon.[2]
On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to
include the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the
Motion, and the Amended Information now reads as follows:
That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and]
confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully and
feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack,
assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and
there shooting him with the use of a .22 cal. with trade mark Paspar Armas bearing SN-29069 with five (5)
pieces of caliber 22 ammo inside and a .32 cal. firearm of still undetermined make, hitting him between his
eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and
mortal wounds which were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of the said Frederick Capulong y Dizon.[3]
On their arraignment, Appellant Edwin De Vera[4] and Roderick Garcia[5] pleaded not guilty. The other two
accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial
court rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and RODERICK
GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are hereby
accordingly sentenced to suffer reclusion perpetua, including all its accessory penalties; to indemnify the
heirs of Frederick Capulong y Dizon, as follows:
a) P50,000.00, as death indemnity;
b) P211,670.00, as compensatory damages;
c) P600,000.00, as indemnification for loss of earning capacity;
d) P500,000.00, as moral damages;
e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and,
f) Costs of suit.[6]
Only Edwin De Vera filed a Notice of Appeal.[7]
The Facts
Version of the Prosecution
In its Brief,[8] the Office of the Solicitor General presented the following narration of facts:[9]
As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a resident of
Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street, Caloocan City. He was
residing at Filinvest II, together with his wife and children, at the time of the incident on June 28, 1992 in
the house owned by David Lim. He was then employed at a Kodak branch in Caloocan City, while his wife
served as secretary of the homeowners association.

About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car passing
by, driven by victim Frederick Capulong together with four (4) other passengers. He knew the victim by
name who was a resident of the subdivision. He recognized and identified two of the passengers as Kenneth
Florendo and Roderick Garcia, both familiar in the subdivision.
Cacao did not at first notice anything unusual inside the car while it passed by him, but then he heard
unintelligible voices coming from the car as it was cruising around Denver Loop Street, a circular road whose
entrance and exit were through the same point (ibid, p. 12). His curiosity taking [the] better part of him,
Cacao walked to the opposite side of the road from where he saw the car already parked. Moments later,
he saw the victim dragged out of the car by Florendo and brought to a grassy place. Florendo was holding a
gun (ibid, p. 13). Upon reaching the grassy spot, Florendo aimed and fired the gun at the victim, hitting him
between the eyes. After the shooting, Florendo and his companions fled in different directions.
When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of the
crime scene prepared by police officers, indicating therein his relative position at the time of the incident.
While testifying in court, Cacao identified Garcia and pointed to appellant as among the companions of
Florendo.
Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division, Station 5,
Central Police District, Quezon City received a report about the shooting incident from a security guard of
the subdivision. The officer immediately dispatched a team to Filinvest II, composed of PO2 Armando
Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to investigate and gather evidence (TSN, p. 5,
September 13, 1993). A security guard guided the team to the corner of Denver and Doa Justina Streets, site
of the shooting, where they discovered blood stains and damaged grass (ibid, p. 6). The guard informed
them that the victim was rushed to the East Avenue Medical Center by other security guards. The
policemen then found a color red sports car with plate no. NBZ 869, with engine still running and its doors
opened. They recovered inside the car several class cards and a license belonging to one Ric Capulong, who
was later identified as Frederick Capulong.
The policemen went around the subdivision to look for possible suspects. They came upon a person wearing
muddied maong pants and white t-shirt standing and walking around near the clubhouse of the subdivision.
When asked his name, the person identified himself as Edwin de Vera, herein appellant. Explaining the mud
stains on his pants, appellant declared that he was a victim of a hold-up. Suspicious [of] his conduct, the
policemen brought appellant to Station 5 and turned him over to the desk officer for investigation.
Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to
investigate the shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2 Armando
Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police officers.
Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center where
he saw the victim lying inside the intensive care unit receiving medical treatment. The victim was
unconscious. After conferring with the victims parents and relatives, SPO3 Guspid returned to Station 5. On
his arrival, the desk officer referred appellant to him for questioning. He was told that appellant was picked
up near the crime scene acting suspiciously. When appellant was asked about his participation in the
shooting, he was reluctant at first to talk, but later relented after SPO3 Guspid told him that his conscience
would bother him less if he would tell the truth.
Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and
implicated Roderick Garcia. He was then persuaded to accompany a group of policemen to the residence of
Garcia, which turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia at home, SPO3
Guspid informed him that he was implicated by appellant [in] the crime. He was then invited to the station
to shed light [on] the incident. Garcia consented.
At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia revealed
the place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia, Florendo asked
them to wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro,
together with the suspects, went back to the subdivision and proceeded to a grassy portion near the
boundary of Filinvest II and San Mateo, Rizal. The place was near a creek and about 50 meters away from
the residence of Garcia (TSN, pp. 9-14, September 30, 1993). Truly, the policemen recovered a .22 caliber
revolver, black t-shirt and black cap (TSN, pp. 12-13, August 24, 1993). While there, SPO3 Guspid and SPO2
Rivera prepared a sketch of the crime scene to reflect the explanations and answers given by appellant and
Garcia in response to their questions. As identifying marks, SPO3 Gacute placed his initials OG (acronym for
his first name and family name) between the handle and cylinder of the gun, and on the neck of the t-shirt,
as well as in the inner lining of the black cap.
From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid asked them if
they were willing to give their written statements, to which they assented. Consequently, they were
brought to the Integrated Bar of the Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon
City. They were then introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid of the IBP.
Also, present at that time were appellants relatives, including his mother and sisters, and other lawyers of
the IBP.
SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, a competent lawyer.
They replied in the affirmative. Thereafter, the two conferred with Atty. Sansano.
Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his office,
he requested the policemen, as a matter of policy, to step outside the building in order to assure that no
pressure would be exerted on the suspects even by their mere presence (TSN, p. 6, November 6, 1996).
After they left, Atty. Sansano interviewed the suspects for about twenty minutes, informing them of their
rights under the constitution and inquiring from them if they indeed wanted to give voluntary statements.
To the query, the suspects answered positively. They also affirmed their earlier declaration that they were
willing to be assisted by the IBP (ibid, pp. 8-9). He further advised them of their right during the
investigation to answer or not to answer the questions which they thought would incriminate them, but
they retorted that they fully understood their right.
Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested the
suspects to show their upper bodies to enable him to determine any telltale signs of torture or bodily harm.
Finding no such signs, he then summoned the policemen to re-enter the building. The investigators readied
two typewriters and each suspect was assigned to an investigator. He served as the lawyer of the suspects,
cautioning them against answering questions that they did not understand, and to seek xxx a clarification, if
needed.
According to Atty. Sansano, the interrogation took place in his office, a single separate room from where his
five staff members were visible. He sat between the two tables used by the investigators for typing the
questions and answers, involving himself from beginning to end of the investigation until the signing of the
statements. He never left the office to attend to anything else, consistent with [the] standing policy of the
IBP to properly safeguard the rights of suspects during investigation.
He recalled that the investigators first typed the headings of the statements, then informed the suspects
before starting the investigation about their rights under the constitution, specifically, the right of the
suspects to have a lawyer of their own choice; if not, the police would provide them with one who would
assist them; that they could answer or refuse to answer the questions. The investigators also asked him if
he was willing to serve as counsel of the suspects. They also asked the suspects if they were willing to
accept him as their counsel. They agreed expressly by saying: Oho.
SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the question
and answer investigation in Pilipino. The statement of appellant was marked as Exhibit O and that of Garcia
was marked as Exhibit N. The statements were signed by the suspects and Atty. Sansano.
For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements of the
suspects (TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of Atty. Sansano.
Before proceeding, he reminded appellant of the constitutional warnings, consisting of four (4) questions
under the heading Paunawa, to which the latter gave positive answers. The statement was signed by
appellant and Atty. Sansano. After taking down the statement, he turned over appellant to SPO3 Guspid.
Following the investigation, the policemen brought the suspects to the Philippine National Police Crime
Laboratory for paraffin testing. The result: both hands of Edwin de Vera y Garcia @ Boy/Bong gave positive
results [in] the test for gunpowder nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave
negative result [in] the test for gunpowder nitrates.
After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her own
statement. Next, he obtained a death certificate and prepared a referral to the Quezon City Prosecution
Office which was signed by Senior Inspector Ernesto Collado, Chief of the Station Investigation Division.
During the inquest, the prosecutor asked the suspects some clarificatory questions.
Surveillance and follow-up operations were conducted against Florendo and his other companion, Elmer
Castro. However, the two were never arrested and brought to trial.
Version of the Defense
Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the
victim. He avers that he merely accompanied to Filinvest the other accused and Florendo, who was his
friend, upon the latters request. A few hours after the shooting incident, appellant was picked up by the
police, who subsequently tortured and coerced him into signing his Statement regarding the incident. The
trial court summarized appellants evidence in this wise:[10]
Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close friends for
about a year, sometimes sleeping in the latters house at No 106 Kamias Road, Quezon City. His own
residence at the time was at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of Elmer
Castro, his and Kenneths friend.
Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8, 1992 and went home at 7:00 am
of June 8th. Later at around 10:30 am, Kenneth passed by Edwins house to invite him back to [the formers]
house that morning and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were
then with him, would be going somewhere first. Deo, or Roderick Garcia, was another friend of Kenneths.
Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am. Kenneth, his girlfriend, and Deo
were already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin to go with him to
Filinvest without telling why. It was Deo who mentioned to Edwin that Kenneth was going to see a friend.
Edwin was not aware if Kenneth had also asked the others to go with him to Filinvest, but the four of them
Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n Kenneths car. Edwin sat at the back seat.
The time was past 12:00 noon.
Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them alighted in
front of the house. Edwin did not know whose house it was. Kenneth and Elmer told Edwin and Deo to wait
near the car because they were going to see a friend. At that point in time, Edwin knew the person[,] whom
Kenneth and Elmer went to see[,] by name, never having met him personally before then. From his
conversation with Deo, Edwin found out that the house was where Deo stayed.
Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (x x x x parang
nagtatalo sila). The voices came from some twenty-two (22) meters away. Not before long, Edwin also
heard a gunshot which came from where Kenneth and Elmer had gone to. He was shocked because he was
not used to hearing gunfire. Frightened, he panicked and ran away from the place. His singular thought
while running was to get out of Filinvest. Deo also ran away.
Edwin denied that either he or Deo carried any firearm on that occasion.

Edwin was arrested by the police at past 2:00 pm when he was already outside of Filinvest subdivision in
front of Batasan. He was brought to Station 5 where four (4) persons in civilian attire tortured him by
forcing him to lie down on a bench, tying his feet together and binding his hands from his back with
handcuffs, and then covering his face with a piece of dirty cloth into which water was poured little by little
into his face and mouth, while one of them sat on his thighs. This maltreatment lasted for about 20 or 25
minutes, because they wanted him to admit something and to name my companions but he refused to
admit or to name anyone. They next took him outside to a mango tree where they repeated his ordeal for
30 minutes. At one point during the torture, a policeman untied his feet and hands and poked a gun to his
temple, telling him to run as it was his chance to escape, but he did not escape because he could see that
they were merely frightening him.
None of the policemen told him that he could xxx get a lawyer[;] instead, one of them, whose name he [did]
not know, told him that I should listen only to them and not to anyone else. He claimed that he saw one [of]
his tormentors in court, and he identified him as police officer Rivera. Guspid did not participate in his
torture, because he merely took down his statement. His tormentors were not drunk or under the influence
of drugs, but Guspid seemed to be under the influence of drugs when he took his statement because of his
troubled appearance.
Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact his
relatives or lawyer was turned down. His intimidation continued (x x x x puro pananakot and ginawa nila sa
akin). After his torture at the mango tree, he was returned inside and thrown into a cell, where he remained
until the following day (June 9th). During the night, an inmate named Cesar boxed him once in the upper
body upon instruction of a policeman. He was not given any dinner.
At around noontime of the next day (June 9th), Edwin was taken out of the cell and brought to the IBP
office by police officers Guspid and Selvido. Also with them were Deo Garcia and two other police officers.
At the IBP office, the officers talked with one of the lawyers there, whom Edwin came to know to be Atty.
Sansano only after the lawyer was introduced (present) to him and Deo. That was the first he met and saw
Atty. Sansano.
Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin could
not make any comment because wala po ako sa sarili ko. Then, Atty. Sansano warned Edwin substantially
that: Alam nyo ba na ang salaysay na ito ay maaring hindi ninyo sumpaan, referring to the statement taken
from Edwin by officers Guspid at around past 8 pm until 9 pm on the day before (June 8, 1992) at the police
station. He was not assisted by counsel, and had no relatives present. Guspid appeared to be like drunk or
tipsy, when he took down Edwins statement that night.
At the IBP office, Edwins and Deos statement were taken separately by Guspid and Selvido, respectively. At
the time, Edwin and Deo were about six (6) meters from each other, but he could hear what was being
asked of Deo. Guspid asked the questions and typed both the questions and his answers, which were given
in Tagalog. All the while, Atty. Sansano was inside his office, which was about seven (7) meters away from
where he and Guspid were situated. The office of Atty. Sansano was separated by a divider, so that he could
not see what Atty. Sansano was doing at the time. After the questioning, he signed a paper which he was
not able to read. He did not see Atty. Sansano sign the paper.
xxxxxxxxx
On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay, which he
swore to before Prosecutor Tobia of Quezon City, for the purpose of recanting his statements given at the
precinct in the evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they were
given under coercion, intimidation, and in violation of his constitutional rights.
Ruling of the Trial Court
Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth
Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal,
however, because the scientific and forensic findings on the criminal incident directly and substantially
confirmed the existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro,
Edwin de Vera, and Roderick Garcia.[11]
The Issues
Appellant submits for the consideration of this Court the following alleged errors:
I
THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD
TESTIFIED TO NO CRIMINAL ACT OF APPELLANT;
II
THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE
VICTIM AND THAT APPELLANT WAS A CO- CONSPIRATOR;
III
THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED STATEMENT OF APPELLANT; AND IN NOT
DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER
WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTERS
CONSTITUTIONAL RIGHTS;
IV
THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED THE
APPELLANTS GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.[12]
In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the
admissibility of appellants extrajudicial statement, and (3) the nature of his liability.
The Courts Ruling
The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.
First and Third Issues:
Sufficiency of Prosecution Evidence and Appellants Liability
Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.
Eyewitness Account
In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court
relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following
facts: appellant was seen with the other accused inside the victims car; the victim was clearly struck with a
blunt object while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover, it
was impossible for De Vera and Garcia to have been unaware of Florendos dark design on Roderick.
We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt.[13] In
the present case, the bare testimony of Cacao fails to do so.
Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he
saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head
moments later.
Cacaos testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside
the car, no other act was imputed to him. Mere presence does not amount to conspiracy.[14] Indeed, the
trial court based its finding of conspiracy on mere presumptions, and not on solid facts indubitably
indicating a common design to commit murder. Such suppositions do not constitute proof beyond
reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be founded on facts, not on
mere surmises or conjectures. Clearly, Cacaos testimony does not establish appellants culpability.
Appellants Extrajudicial Statement
Aside from the testimony of Cacao, the prosecution also presented Appellant De Veras extrajudicial
statement, which established three points.
First, appellant knew of Kenneth Florendos malevolent intention.
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.[15]
Second, appellants companions were armed that day, a fact which revealed the unmistakable plan of the
group.
T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]?
S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at
Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at
itong si Elmer ay mayroong nang dalang baseball bat.
Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain
distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of
his statement:
S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08,
1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming
lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya
itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic]
ay uunahan na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo,
para ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw
itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay xxx lalakad na raw po
kami. Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay
naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa
kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami. Pagkatapos noon ay umalis
na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo malayo-layo sa bahay
nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin
ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni Deo. P[a]gkaraan ng ilang minuto ay sumunod po
kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar upang tignan kung mayroong
darating na tao. Samantalang si Kenneth ay lumapit kina Deo at Frederick at kasunod noon ay nagkaroon ng
sagutan itong si Kenneth at Frederick at nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil
itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon ay binunot niya ang kanyang baril na kalibre
.38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay natumba sa lupa. Lumapit si
Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick at kasunod po noon ay lumapit sa akin si
Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako po ay nahuli ng mga security
guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina Kenneth at Elmer ay hindi
pa nahuhuli.[16]
Appellant an Accomplice, Not a Conspirator
In other words, appellants presence was not innocuous. Knowing that Florendo intended to kill the victim
and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He
was not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the
crime. These facts, however, did not make him a conspirator; at most, he was only an accomplice.
The Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.[17] To prove conspiracy, the prosecution
must establish the following three requisites: (1) that two or more persons came to an agreement, (2) that
the agreement concerned the commission of a crime, and (3) that the execution of the felony [was] decided
upon.[18] Except in the case of the mastermind of a crime, it must also be shown that the accused
performed an overt act in furtherance of the conspiracy.[19] The Court has held that in most instances,
direct proof of a previous agreement need not be established, for conspiracy may be deduced from the acts
of the accused pointing to a joint purpose, concerted action and community of interest.[20]
On the other hand, the Revised Penal Code defines accomplices as those persons who, not being included in
Article 17,[21] cooperate in the execution of the offense by previous or simultaneous acts.[22] The Court
has held that an accomplice is one who knows the criminal design of the principal and cooperates knowingly
or intentionally therewith by an act which, even if not rendered, the crime would be committed just the
same.[23] To hold a person liable as an accomplice, two elements must be present: (1) the community of
criminal design; that is, knowing the criminal design of the principal by direct participation, he concurs with
the latter in his purpose; and (2) the performance of previous or simultaneous acts that are not
indispensable to the commission of the crime.[24]
The distinction between the two concepts needs to be underscored, in view of its effect on appellants
penalty. Once conspiracy is proven, the liability is collective and not individual. The act of one of them is
deemed the act of all.[25] In the case of an accomplice, the liability is one degree lower than that of a
principal.
Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such
course of action. Accomplices come to know about it after the principals have reached the decision, and
only then do they agree to cooperate in its execution. Conspirators decide that a crime should be
committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the
authors of a crime; accomplices are merely their instruments who perform acts not essential to the
perpetration of the offense.
Thus, in People v. Castro,[26] the Court convicted Rufino Cinco, together with two others, as a principal,
although he had acted merely as a lookout. The Court held that their concerted action in going armed and
together to their victims house, and there, while one stayed as a lookout, the other two entered and shot
the mayor and his wife, leaving again together afterwards, admits no other rational explanation but
conspiracy. It may be noted further that Cinco executed a Sworn Statement that the three of them,
together with some others, had planned to kill the victim on the promise of a P5,000 reward.
In People v. Tawat et al.,[27] the lookout, Nestor Rojo, was convicted as a principal for conspiring with two
others. The Court ruled that the conspiracy was shown by their conduct before, during and after the
commission of the crime. The Court also noted that, upon their arrest, they disclosed that they had
intended to rob the victims store and that they did so in accordance with their plan. In that case, it was clear
that all three of them, including the lookout, were the authors of the crime.
In People v. Loreno,[28] the Supreme Court convicted all the accused as principals because they had acted
in band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he
gave his companions effective means and encouragement to commit the crime of robbery and rape.
Upon the other hand, in People v. Corbes,[29] the Court noted that Manuel Vergel knew of the criminal
design to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the
crime scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he was
merely approached by one of the robbers who was tasked to look for a getaway vehicle. He was not with
the robbers when they resolved to commit a robbery. When his services were requested, the decision to
commit the crime had already been made.
In People v. Tatlonghari,[30] the Court was asked to resolve the responsibility of some appellants who
knowingly aid[ed] the actual killers by casting stones at the victim, and distracting his attention. The Court
ruled that they were accomplices and not co-conspirators, [i]n the absence of clear proof that the killing
was in fact envisaged by them.
In People v. Suarez et al.,[31] Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to
perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court
noted that there was no evidence showing that he took part in the planning or execution of the crime, or
any proof indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his
part.
In People v. Balili,[32] the Court convicted appellant as an accomplice, holding that in going with them,
knowing their criminal intention, and in staying outside of the house with them while the others went inside
the store to rob and kill, [he] effectively supplied the criminals with material and moral aid, making him
guilty as an accompliance. The Court noted that there was no evidence that he had conspired with the
malefactors, nor that he actually participated in the commission of the crime.
In People v. Doble,[33] the Court held that Cresencio Doble did not become a conspirator when he looked
for a banca that was eventually used by the robbers. Ruled the Court: Neither would it appear that Joe
Intsik wanted to draft Crescencio into his band of malefactors that would commit the robbery more than
just asking his help to look for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate
the crime, the commission of which needed planning and men to execute the plan with full mutual
confidence of each other, which [was] not shown with respect to appellants by the way they were asked to
look and provide for a banca just a few hours before the actual robbery.
In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the
time, and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong;
that decision was made by Florendo and the others. He joined them that afternoon after the decision to kill
had already been agreed upon; he was there because nagkahiyaan na. This is clear from his statement,
which we quote again for the sake of clarity:
T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging
kasapakat nito?
S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at
napilitan akong sumama.[34]
Significantly, the plan to kill could have been accomplished without him. It should be noted further that he
alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat.
In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill
the victim. His participation, as culled from his own Statement, was made, after the decision to kill was
already a fait accompli. Thus, in several cases, the Court has held:
[L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals or
accomplices in the perpetration of the offense, impels this Court to resolve in their favor the question, by
holding x x x that they were guilty of the milder form of responsibility, i.e., guilty as mere accomplices.[35]
Second Issue:
Admissibility of Extrajudicial Statement
Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the
Constitution, provides:
(1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
xxxxxxxxx
(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in
evidence against him.
If the confession meets these requirements, it is subsequently tested for voluntariness, i.e., if it was given
freely -- without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was
consistent with the normal experience of mankind. [36]
Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence
of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly
assisted him and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the
lawyer was in his office, not with them, at the time. Appellant adds that he was tortured.
Appellants claims must be rejected. Atty. Sansano testified that he did not leave them at any time.
Q: You were involved in the interrogation from the very start?
A: Yes, from the beginning to the end of the interview until the boys signed their statements.
Q: Did you recall having at any time left your office to attend to some official matters?
A: I never left the office to attend to anything.
Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial
investigation is concerned?
A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused
or suspects are properly [protected] during the course of the entire interrogation.[37]
In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and
interviewed the two to make sure that they understood what they were doing.
Q: What was your purpose in asking the police officers to leave the room?
A: My purpose in asking the police officers to step out of the building was to assure myself that no pressure
could be exerted on the two boys by the presence of the police officers during my personal interview.
Before we allow any police officers to take the statements of people brought before us[,] we see to it [that]
we interview the persons personally out of hearing and sight of any police officer.
Q: After the police officers left the room, completely left the room[,] you were able to interview the two
accused namely Mr. de Vera and Mr. Garcia?
A: Yes, I spent about 15 to 20 minutes interviewing the boys.
Q: What was the nature of your initial interview with these two accused?
A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements
to the police?
Q: And what did they say?
A: They said yes, sir.
Q: What was your reaction to that?
A: Routinely[,] I informed them about their rights under the constitution.
xxxxxxxxx
Q: Having obtained their answers, what next transpired?
A: After telling them the statements they may give to the police could be used against them for a [sic] in any
court of the Phil., I was satisfied that nobody coerced them, that they were never threatened by anybody
much less by the police officers to give these statements. Casually I asked the two boys to raise their upper
clothes.
xxxxxxxxx
Q: What was your purpose in requiring these persons to show you or remove their upper clothing?
A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on
the[m] prior to their [being brought] to the office. In spite of their [personal] assurances xxx, verbal
assurance that they were never hurt.[38]
The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress
and undue influence in the execution of extrajudicial confessions.[39] In the present case, the Court is
satisfied that Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover,
appellants allegations of torture must be disregarded for being unsubstantiated. To hold otherwise is to
facilitate the retraction of solemnly made statements at the mere allegation of torture, without any proof
whatsoever.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a
high order, because of the strong presumption that no person of normal mind would deliberately and
knowingly confess to a crime unless prompted by truth and conscience.[40] The defense has the burden of
proving that it was extracted by means of force, duress or promise of reward.[41] Appellant failed to
overcome the overwhelming prosecution evidence to the contrary.
Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession made by an accused
shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. In the
present case, the prosecution presented other evidence to prove the two elements of corpus delicti: (a) a
certain result has been proven for example, a man has died; and (b) some person is criminally
responsible.[42] It is indubitable that a crime has been committed, and that the other pieces of prosecution
evidence clearly show that appellant had conspired with the other accused to commit the crime. He himself
does not deny that he was at the crime scene. In fact, he was seen by the prosecution eyewitness in the
company of the gunman. Furthermore, Atty. Sansano and the police officers testified to the voluntariness of
his confession. It must be stressed that the aforementioned rule merely requires that there should be some
other evidence tending to show the commission of the crime apart from the confession. [43]
Criminal and Civil Liability
In ruling that the crime committed was murder, the trial court found that the killing was attended by
treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify the
crime as murder; the two others constituted generic aggravating circumstances. The lower court explained
that the evidence established evident premeditation, for Florendos group acted with deliberate forethought
and tenacious persistence in the accomplishment of the criminal design. Treachery was also proven,
because the attack was planned and performed in such a way as to guarantee the execution of the criminal
design without risk to the group. There was also abuse of superior strength, because the attackers took
advantage of their superiority in numbers and weapons.
We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength.[44] Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty,
because the crime was committed before the effectivity of the Death Penalty Law.
In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal,
which in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the
benefits of the Indeterminate Sentence Law.
We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be awarded without need of
proof other than the commission of the crime. The award of P211,670 as compensatory damages was duly
supported by evidence. Based on the evidence presented, moral damages is also warranted, but only in the
amount of P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of
interest.[45] However, the grant of P600,000 for loss of earning capacity lacks factual basis. Such
indemnification partakes of the nature of actual damages, which must be duly proven.[46] In this case, the
trial court merely presumed the amount of Capulongs earnings. Since the prosecution did not present
evidence of the current income of the deceased, the indemnity for lost earnings must be rejected.
WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an accomplice,
not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8 years and 1
day of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum. We
AFFIRM the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory damages and (c)
interest of six percent per annum on these two amounts. The award of moral damages is however
REDUCED to P50,000 and the award for the loss of earning capacity is DELETED. No pronouncement as to
costs.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., Please see separate opinion.
SEPARATE OPINION
VITUG, J.:
I share the ponencia of my colleagues in its affirmance of the conviction of appellants except, with all due
respect, insofar as it has concluded that appellant De Vera is guilty merely as an accomplice.
There is conspiracy under Article 8 of the Revised penal Code when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it. Conspiracy of, course, by itself is
legally inconsequential unless the criminal plot is, in fact, carried out. Once the offense is perpetrated, the
responsibility of the conspirators is collective, not individual, that render, all of them equally liable
regardless of the extent of their respective participations, the act of one being deemed to be the act of the
other or the others, in the commission of the felony. An accomplice, under Article 18 of the same Code, is
one who, not being a principal who (a) takes a direct part in the execution of the act, (b) directly forces or
induces others to commit, (c) cooperates in the commission of the offense by another act without which
the offense would not have been accomplished (per Article 17 of the Code), collaborates in the execution of
the offense by previous or simultaneous acts.
In the case at bar, De Vera, knowing that Florendo intended to kill the victim and that the three co-accused
were carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent
spectator; he was at the locus criminis in order to aid and abet the commission of the crime (ponencia).
I cannot bring myself to accept any material variance between the terms to decide, on the one hand, and to
concur or to assent, on the other hand, in defining, i.e., whether as a conspirator or as an accomplice, the
specific criminal liability of the criminal offender. Where there is concurrence or assent by one to a plan,
even when previously hatched by another or others, to commit a felony which concurrence or assent is
made prior to the actual perpetration of the offense, and he then actually participates in its commission,
regardless of the extent of such participation, his liability should be deemed, in my view, that of a
conspirator rather than that of an accomplice. I would equate the liability of an accomplice to one who,
knowing of the criminal design, but neither concurring nor assenting to it, cooperates in the execution of
the crime short of taking a direct part in, and short of taking an indispensable act for, the commission of the
offense. In the last two instances (taking a direct part in, or taking an indispensable act for, the commission
of the felony), his participation would be that of a principal under Article 17 of the Revised Penal Code.
When appellant De Vera, aware of the plan to kill the victim, agreed to be lookout during the commission of
the crime which, in fact, so took place as planned, he rendered himself liable no less than that incurred by
his co-accused.
People v. De Vera y Garcia
G.R. No. 128966. August 18, 1999.
Panganiban, J.
Facts: Edwin de Vera y Garcia, together with Roderick Garcia, Kenneth Florendo and Elmer Castro, was
charged with Murder before the Regional Trial Court of Quezon City in connection with the killing of one
Frederick Capulong. De Vera and Garcia pleaded not guilty during arraignment. The other two accused,
Florendo and Castro, were at large. During trial, the prosecution presented as witness one Bernardino
Cacao who testified that he saw De Vera in the car, where an altercation later occurred. Thereafter, he saw
Florendo drag out of the vehicle an apparently disabled Capulong and shot him in the head moments later.
Aside from Cacaos testimony, the prosecution also presented De Veras extrajudicial statement which
established that he knew that Florendo intended to kill the victim and that the three co-accused were
carrying weapons and that he acted as a lookout to watch for passersby. Thereafter, the trial court
convicted De Vera and his co-accused Garcia of the crime charged and sentenced them to suffer the penalty
of reclusion perpetua and ordered to indemnify the heirs of the victim.
In ruling that the crime committed was murder, the trial court found that the killing was attended
by treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify the
crime as murder; the two others constituted generic aggravating circumstances. The trial court explained
that the evidence established evident premeditation, for Florendos group acted with deliberate
forethought and tenacious persistence in the accomplishment of the criminal design. Treachery was also
proven, because the attack was planned and performed in such a way as to guarantee the execution of the
criminal design without risk to the group. There was also abuse of superior strength, because the attackers
took advantage of their superiority in numbers and weapons.
Furthermore, the trial court found that it was indeed Florendo who actually shot the victim.
However, it convicted De Vera as a principal because the scientific and forensic findings on the criminal
incident directly and substantially confirmed the existence of conspiracy among the four accused.
Aggrieved, de Vera appealed his conviction before the Supreme Court.
Issue: Whether or not the trial court erred in convicting De Vera as principal?
Held: Yes. The testimony of the prosecution eyewitness contained nothing that could inculpate De Vera.
Aside from the fact that he was inside the car, no other act was imputed to him. Mere presence does not
amount to conspiracy. Indeed, the trial court based its finding of conspiracy on mere presumptions, and not
on solid facts indubitably indicating a common design to commit murder. Such suppositions do not
constitute proof beyond reasonable doubt. The fact that De Vera was at the locus criminis in order to aid
and abet the commission of the crime did not make him a conspirator; at most, he was only an accomplice.
Moreover, the prosecution evidence has not established that De Vera was part of the conspiracy to kill
Capulong. De Veras participation, as culled from his own statement, was made after the decision to kill was
already a fait accompli.
The trial court erred in appreciating two generic aggravating circumstances, because treachery
absorbs abuse of superior strength. Hence, there is only one generic aggravating circumstance, not two.
Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty,
because the crime was committed before the effectivity of the Death Penalty Law.
When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes
evidence of a high order. The defense has the burden of proving that it was extracted by means of force,
duress or promise of reward. De Vera failed to overcome the overwhelming prosecution evidence to the
contrary.
In the present case, De Vera knew that Kenneth Florendo had intended to kill Capulong at the
time, and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong;
that decision was made by Florendo and the others. He joined them that afternoon after the decision to kill
had already been agreed upon; he was there because nagkahiyaan na. Consequently, he is convicted as
an accomplice, not as a principal, in the crime of murder.

WHEREFORE, the appeal is hereby partially GRANTED.

 That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping
one another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means
of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and shoot Gregorio Conde with said unlicensed firearm, hitting him on the posterior aspect, middle
third right forearm 1 cm. In diameter; thereby performing all the acts of execution which would produce the
crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of
the will of the accused; that is by the timely and able medical assistance rendered to said Gregorio Conde
which prevented his death.
CONTRARY TO LAW.
Alias Balatong Barcenas remained at large. Both appellant and Demapanag pled not guilty in both cases and
joint trial ensued thereafter. The prosecution presented four witnesses: Gregorio Conde, the victim in
Republic of the Philippines Criminal Case No. 2002-1777; Glenelyn Conde, his daughter; and Dr. Jeremiah Obaana and Dr. Edwin Jose
SUPREME COURT Figura, the physicians at the Sara District Hospital where the victims were admitted. The defense, on the
Manila other hand, presented appellant, Demapanag, and the latters brother, Frederick.
SECOND DIVISION Version of the prosecution
G.R. No. 202867 July 15, 2013 The prosecutions version of the facts is as follows: At around 7:00 p.m. on 23 December 2000, Gregorio
PEOPLE OF THE PHILIPPINES, Appellee, Conde, and his two daughters, Judy and Glenelyn Conde, were in their home at Barangay Malayu-an, Ajuy,
vs. Iloilo. Thereafter, Gregorio stepped outside. Glenelyn was in their store, which was part of their house.
REGIE LABIAGA, Appellant. Shortly thereafter, appellant, who was approximately five meters away from Gregorio, shot the latter.
DECISION Gregorio called Judy for help. When Judy and Glenelyn rushed to Gregorios aid, appellant shot Judy in the
CARPIO, J.: abdomen. The two other accused were standing behind the appellant. Appellant said, "she is already dead,"
The Case and the three fled the crime scene.
Before the Court is an appeal assailing the Decision1 dated 18 October 2011 of the Court of Appeals-Cebu Gregorio and Judy were rushed to the Sara District Hospital. Judy was pronounced dead on arrival while
(CA-Cebu) in CA-G.R. CEB CR-HC No. 01000. The CA-Cebu affirmed with modification the Joint Gregorio made a full recovery after treatment of his gunshot wound.
Decision2 dated 10 March 2008 of the Regional Trial Court of Barotac Viejo, Iloilo, Branch 66 (RTC), in Dr. Jeremiah Obaana conducted the autopsy of Judy. His report stated that her death was caused by
Criminal Case No. 2001-155) convicting Regie Labiaga alias "Banok" (appellant) of murder and Criminal Case "cardiopulmonary arrest secondary to Cardiac Tamponade due to gunshot wound."5
No. 2002-1777 convicting appellant of frustrated murder. Dr. Jose Edwin Figura, on the other hand, examined Gregorio after the incident. He found that Gregorio
The Facts sustained a gunshot wound measuring one centimeter in diameter in his right forearm and "abrasion
In Criminal Case No. 2001-1555, appellant, together with a certain Alias Balatong Barcenas and Cristy wounds hematoma formation" in his right shoulder.6
Demapanag (Demapanag), was charged with Murder with the Use of Unlicensed Firearm under an Version of the defense
Information3which reads: Appellant admitted that he was present during the shooting incident on 23 December 2000. He claimed,
That on or about December 23, 2000 in the Municipality of Ajuy, Province of Iloilo, Philippines, and within however, that he acted in self-defense. Gregorio, armed with a shotgun, challenged him to a fight. He
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping attempted to shoot appellant, but the shotgun jammed. Appellant tried to wrest the shotgun from
one another, armed with unlicensed firearm, with deliberate intent and decided purpose to kill, by means Gregorio, and during the struggle, the shotgun fired. He claimed that he did not know if anyone was hit by
of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, that gunshot.
assault and shoot JUDY CONDE alias JOJO with said unlicensed firearm, hitting her and inflicting gunshot Demapanag claimed that at the time of the shooting, he was in D&D Ricemill, which is approximately 14
wounds on the different parts of her breast which caused her death thereafter. kilometers away from the crime scene. This was corroborated by Frederick, Demapanags brother.
CONTRARY TO LAW. The Ruling of the RTC
The same individuals were charged with Frustrated Murder with the Use of Unlicensed Firearm in Criminal In its Joint Decision, the RTC acquitted Demapanag due to insufficiency of evidence. Appellant, however,
Case No. 2002-1777, under an Information4 which states: was convicted of murder and frustrated murder. The dispositive portion of the Joint Decision reads:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the Crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the
said accused to reclusion perpetua together with accessory penalty provided by law, to pay the heirs of Judy
CondeP50,000.00 as civil indemnity, without subsidiary imprisonment in case of insolvency and to pay the
costs.
In Crim. Case No. 2002-1777, the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable
doubt of the crime of Frustrated Murder and hereby sentences the said accused to a prison term ranging
from six (6) years and one (1) day of prision mayor as minimum to ten (10) years and one (1) day of
reclusion temporal as maximum, together with the necessary penalty provided by law and without
subsidiary imprisonment in case of insolvency and to pay the costs.
Accuseds entire period of detention shall be deducted from the penalty herein imposed when the accused
serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crimes charged in both cases.
The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused
Cristy Demapanag from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.7
The Ruling of the CA-Cebu
Appellant impugned the RTCs Joint Decision, claiming that "the RTC gravely erred in convicting the
appellant of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable
doubt."8 The CA-Cebu, however, upheld the conviction for murder and frustrated murder.
The CA-Cebu also modified the Joint Decision by imposing the payment of moral and exemplary damages in
both criminal cases. The CA-Cebu made a distinction between the civil indemnity awarded by the RTC in
Criminal Case No. 2001-1555 and the moral damages. The CA-Cebu pointed out that:
The trial court granted the amount of P50,000.00 as civil indemnity in Criminal Case No. 2001-1555. It did
not award moral damages. Nonetheless, the trial court should have awarded both, considering that they are
two different kinds of damages. For death indemnity, the amount of P50,000.00 is fixed "pursuant to the
current judicial policy on the matter, without need of any evidence or proof of damages. Likewise, the
mental anguish of the surviving family should be assuaged by the award of appropriate and reasonable
moral damages."9
The dispositive portion of the Decision of the CA-Cebu reads:
WHEREFORE, premises considered, the appeal is DENIED. The Joint Decision dated March 10, 2008 of the
Regional Trial Court, Branch 66, in Barotac Viejo, Iloilo is AFFIRMED with MODIFICATIONS. The dispositive
portion of the said Joint Decision should now read as follows:
WHEREFORE, in light of the foregoing, the court hereby finds the accused Regie Labiaga @ "Banok" GUILTY
beyond reasonable doubt of the crime of Murder in Crim. Case No. 2001-1555 and hereby sentences the
said accused to reclusion perpetua together with the accessory penalty provided by law, to pay the heirs of
Judy Conde P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary
damages, without subsidiary imprisonment in case of insolvency and to pay the costs.
In Crim. Case No. 2002-1777 the court finds accused Regie Labiaga @ "Banok" GUILTY beyond reasonable
doubt of the crime of Frustrated Murder and hereby sentences the said accused to suffer the indeterminate
penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal, as maximum, together with the accessory penalty provided by law, to pay
Gregorio Conde P25,000.00 as moral damages andP25,000.00 as exemplary damages, without subsidiary
imprisonment in case of insolvency and to pay the costs Accused(s) entire period of detention shall be
deducted from the penalty herein imposed when the accused serves his sentence.
For lack of sufficient evidence, accused Cristy Demapanag is acquitted of the crime(s) charged in both cases.
The Provincial Warden, Iloilo Rehabilitation Center, Pototan, Iloilo is hereby directed to release accused
Cristy Demapanag from custody unless he is being held for some other valid or lawful cause.
SO ORDERED.
SO ORDERED.10
Hence, this appeal.
The Ruling of the Court
Our review of the records of Criminal Case No. 2002-1777 convinces us that appellant is guilty of attempted
murder and not frustrated murder. We uphold appellants conviction in Criminal Case No. 2001-1555 for
murder, but modify the civil indemnity awarded in Criminal Case No. 2001-1555, as well as the award of
moral and exemplary damages in both cases.
Justifying circumstance of self-defense
Appellants feeble attempt to invoke self-defense in both cases was correctly rejected by the RTC and the
CA-Cebu. This Court, in People v. Damitan,11 explained that:
When the accused admits killing a person but pleads self-defense, the burden of evidence shifts to him to
prove by clear and convincing evidence the elements of his defense. However, appellants version of the
incident was uncorroborated. His bare and self-serving assertions cannot prevail over the positive
identification of the two (2) principal witnesses of the prosecution. 12
Appellants failure to present any other eyewitness to corroborate his testimony and his unconvincing
demonstration of the struggle between him and Gregorio before the RTC lead us to reject his claim of self-
defense. Also, as correctly pointed out by the CA-Cebu, appellants theory of self-defense is belied by the
fact that:
x x x The appellant did not even bother to report to the police Gregorios alleged unlawful aggression and
that it was Gregorio who owned the gun, as appellant claimed. And, when appellant was arrested the
following morning, he did not also inform the police that what happened to Gregorio was merely
accidental.13
Appellants claim that he did not know whether Gregorio was hit when the shotgun accidentally fired is also
implausible.
In contrast, we find that the Condes account of the incident is persuasive. Both the CA-Cebu and the RTC
found that the testimonies of the Condes were credible and presented in a clear and convincing manner.
This Court has consistently put much weight on the trial courts assessment of the credibility of witnesses,
especially when affirmed by the appellate court.14 In People v. Mangune,15 we stated that:
It is well settled that the evaluation of 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 first hand and to
note their demeanor, conduct, and attitude under grilling examination. These are important in determining
the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies.
For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness
credibility, and the trial court has the opportunity to take advantage of these aids. 16
Since the conclusions made by the RTC regarding the credibility of the witnesses were not tainted with xxxx
arbitrariness or oversight or misapprehension of relevant facts, the same must be sustained by this Court. Court (to the witness)
Attempted and Frustrated Murder Q: The nature of these injuries, not serious?
Treachery was correctly appreciated by the RTC and CA-Cebu. A treacherous attack is one in which the A: Yes, Your Honor, not serious. He has also abrasion wounds hematoma formation at the anterior aspect
victim was not afforded any opportunity to defend himself or resist the attack.17 The existence of treachery right shoulder.22
is not solely determined by the type of weapon used. If it appears that the weapon was deliberately chosen Since Gregorios gunshot wound was not mortal, we hold that appellant should be convicted of attempted
to insure the execution of the crime, and to render the victim defenseless, then treachery may be properly murder and not frustrated murder. Under Article 51 of the Revised Penal Code, the corresponding penalty
appreciated against the accused.18 for attempted murder shall be two degrees lower than that prescribed for consummated murder under
In the instant case, the Condes were unarmed when they were shot by appellant. The use of a 12-gauge Article 248, that is, prision correccional in its maximum period to prision mayor in its medium period.
shotgun against two unarmed victims is undoubtedly treacherous, as it denies the victims the chance to Section 1 of the Indeterminate Sentence Law provides:
fend off the offender. x x x the court shall sentence the accused to an indeterminate sentence the maximum term of which shall
We note, however, that appellant should be convicted of attempted murder, and not frustrated murder in be that which, in view of the attending circumstances, could be properly imposed under the rules of the
Criminal Case No. 2002-1777. Revised Penal Code, and the minimum which shall be within the range of the penalty next lower to that
Article 6 of the Revised Penal Code defines the stages in the commission of felonies: prescribed by the Code for the offense.1wphi1
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which Thus, appellant should serve an indeterminate sentence ranging from two (2) years, four (4) months and
are frustrated and attempted, are punishable. one (1) day of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor
A felony is consummated when all the elements necessary for its execution and accomplishment are in its medium period.
present; and it is frustrated when the offender performs all the acts of execution which would produce the Award of damages
felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the In light of recent jurisprudence, we deem it proper to increase the amount of damages imposed by the
will of the perpetrator. lower court in both cases. In Criminal Case No. 2001-1555, this Court hereby awards P75,000.00 as civil
There is an attempt when the offender commences the commission of a felony directly by overt acts, and indemnity23 andP30,000.00 as exemplary damages.24 The award of P50,000.00 as moral damages in the
does not perform all the acts of execution which should produce the felony by reason of some cause or foregoing case is sustained. Appellant is also liable to pay P40,000.00 as moral damages and P30,000.00 as
accident other than his own spontaneous desistance. exemplary damages, in relation to Criminal Case No. 2002-1777.
In Serrano v. People,19 we distinguished a frustrated felony from an attempted felony in this manner: WHEREFORE, we AFFIRM the 18 October 2011 Decision of the Court of Appeals-Cebu in CA-G.R. CEB CR-HC
1.) In a frustrated felony, the offender has performed all the acts of execution which should No. 01000 with MODIFICATIONS. In Criminal Case No. 2002-1777, we find that appellant Regie Labiaga is
produce the felony as a consequence; whereas in an attempted felony, the offender merely GUILTY of Attempted Murder and shall suffer an indeterminate sentence ranging from two (2) years, four
commences the commission of a felony directly by overt acts and does not perform all the acts of (4) months and one (1) day of prision correccional as minimum, to eight (8) years and one (1) day of prision
execution. mayor as maximum, and pay P40,000.00 as moral damages and P30,000.00 as exemplary damages. In
2.) In a frustrated felony, the reason for the non-accomplishment of the crime is some cause Criminal Case No. 2001-1555, appellant shall pay P75,000.00 as civil indemnity, P50,000.00 as moral
independent of the will of the perpetrator; on the other hand, in an attempted felony, the reason damages, and P30,000.00 as exemplary damages.
for the non-fulfillment of the crime is a cause or accident other than the offenders own SO ORDERED.
spontaneous desistance.20 ANTONIO T. CARPIO
In frustrated murder, there must be evidence showing that the wound would have been fatal were it not for Associate Justice
timely medical intervention.21 If the evidence fails to convince the court that the wound sustained would WE CONCUR:
have caused the victims death without timely medical attention, the accused should be convicted of MARIANO C. DEL CASTILLO
attempted murder and not frustrated murder. Associate Justice
In the instant case, it does not appear that the wound sustained by Gregorio Conde was mortal. This was JOSE PORTUGAL PEREZ JOSE C. MENDOZA*
admitted by Dr. Edwin Figura, who examined Gregorio after the shooting incident: Associate Justice Associate Justice
Prosecutor Con-El:
ESTELA M. PERLAS-BERNABE
Q: When you examined the person of Gregorio Conde, can you tell the court what was the situation of the Associate Justice
patient when you examined him?
ATTESTATION
A: He has a gunshot wound, but the patient was actually ambulatory and not in distress.
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.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice