Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 177727 January 19, 2010

HAROLD V. TAMARGO, Petitioner,

vs.
ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR., Respondents.

DECISION

CORONA, J.:

This is a petition for review on certiorari1 of the November 10, 2006 decision2 and May 18, 2007
resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 93610.

Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at
around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila.
The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced
and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told
him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda
and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the
Tamargo family what he knew and that the sketch of the suspect closely resembled Columna.4

After conducting a preliminary investigation and on the strength of Geron’s affidavit, the investigating
prosecutor5issued a resolution dated December 5, 2003 finding probable cause against Columna
and three John Does.6 On February 2, 2004, the corresponding Informations for murder were filed
against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 27 for the death of
Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail
Franzielle.7 Columna was arrested in the province of Cagayan on February 17, 2004 and brought to
Manila for detention and trial.8

On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he
admitted his participation as "look out" during the shooting and implicated respondent Romulo
Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He also tagged as masterminds
respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda.9 The former was the ex-
mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio
Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private
prosecutor.

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint
against those implicated by Columna in the Office of the City Prosecutor of Manila.10

On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor11 who subjected
him to clarificatory questions.12

Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for
mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his
political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was
their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd
and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a
kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were
dismissed as Lloyd emerged as the winner in the elections and Licerio was acquitted by the
Sandiganbayan.13

During the preliminary investigation, respondent Licerio presented Columna’s unsolicited

handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columna’s jail cell in Manila. In
the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had
been tortured until he signed the extrajudicial confession. He stated that those he implicated had no
participation in the killings.14 Respondent Licerio also submitted an affidavit of Columna dated May
25, 2004 wherein the latter essentially repeated the statements in his handwritten letter.

Due to the submission of Columna’s letter and affidavit, the investigating prosecutor set a
clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited
letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship
and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that
any violence had been employed to obtain or extract the affidavit from him.15 1avv phi 1

Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the
charges. This was approved by the city prosecutor.

Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October
29, 2004, Columna said that he was only forced to withdraw all his statements against respondents
during the October 22, 2004 clarificatory hearing because of the threats to his life inside the jail. He
requested that he be transferred to another detention center.16

Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice
(DOJ).17 On May 30, 2005, the DOJ, through then Secretary Raul M. Gonzalez, reversed the
dismissal and ordered the filing of the Informations for murder.18 He opined that the March 8, 2004
extrajudicial confession was not effectively impeached by the subsequent recantation and that there
was enough evidence to prove the probable guilt of respondents.19Accordingly, the Informations
were filed and the cases were consolidated and assigned to the RTC of Manila, Branch 29.20

However, on August 12, 2005, Secretary Gonzales granted the Antipordas’ motion for
reconsideration (MR) and directed the withdrawal of the Informations.21 This time, he declared that
the extrajudicial confession of Columna was inadmissible against respondents and that, even if it
was admissible, it was not corroborated by other evidence.22 As a result, on August 22, 2005, the
trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez
denied petitioner’s MR.

The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in
an order dated October 26, 2005.23 Petitioner filed an MR but the judge voluntarily inhibited herself
without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R.
Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She
ruled that, based on Columna’s March 8, 2004 affidavit which he affirmed before the investigating
prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the
Antipordas in an order dated February 6, 2006.

Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA
docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case
docketed as CA-G.R. SP No. 94188.

In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge
gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the
substantial matters that the DOJ Secretary had fully taken into account in concluding that there was
no probable cause against all the accused. It also held that Columna’s extrajudicial confession was
not admissible against the respondents because, aside from the recanted confession, there was no
other piece of evidence presented to establish the existence of the conspiracy. Additionally, the
confession was made only after Columna was arrested and not while the conspirators were engaged
in carrying out the conspiracy.

After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No.
94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated
August 24, 2007, the CA likewise granted the petition for certiorari of respondents Antiporda.24

Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an
amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-
G.R. SP No. 94188. The Court treated this as a supplemental petition.

The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had
committed grave abuse of discretion in denying the withdrawal of the Informations for murder against
respondents.

Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable
cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did
not give credit to Columna’s recantation.

Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her
evaluation and assessment only to evidence that supported probable cause while completely
disregarding contradicting evidence. They also contend that Columna’s extrajudicial confession was
inadmissible against respondents because of the rule on res inter alios acta.

We find no merit in the petition.

It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of
probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial
court has the duty to make an independent assessment of the merits of the motion.25 It may either
agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the
Secretary would be an abdication of the trial court’s duty and jurisdiction to determine a prima
facie case.26 The court must itself be convinced that there is indeed no sufficient evidence against
the accused.27

We agree with the CA that Judge Daguna limited herself only to the following: (1) Columna’s affidavit
dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this
affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4)
the May 30, 2005 DOJ resolution upholding the prosecutor’s recommendation to file the murder
charges.28

She completely ignored other relevant pieces of evidence such as: (1) Columna’s May 3, 2004 letter
to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation
in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that
neither he nor the respondents had any involvement in the murders and (3) his testimony during the
October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and
May 25, 2004 affidavit.

We declared in Jimenez v. Jimenez29 that

[although] there is no general formula or fixed rule for the determination of probable cause since the
same must be decided in the light of the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before the judge nor run counter to
the clear dictates of reason. The judge or fiscal, therefore, should not go on with the
prosecution in the hope that some credible evidence might later turn up during trial for this
would be a flagrant violation of a basic right which the courts are created to
uphold.30 (Emphasis supplied)

Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside
from the pieces of evidence she relied on, there were others which cast doubt on them. We quote
with approval the reflections of the CA on this point:

The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the
informationseffectively sidetracked the guidelines for an independent assessment and evaluation of
the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused.
Instead, she should have made a circumspect evaluation by looking at everything made available to
her at that point of the cases. No less than that was expected and required of her as a judicial
officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the
merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended
to the Information; the records of the public prosecutor which the court may order the latter to
produce before the court; or any evidence already adduced before the court by the accused at the
time the motion is filed by the public prosecutor.31

Moreover, Judge Daguna failed to consider that Columna’s extrajudicial confession in his March 8,
2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter
alios acta.

Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of
a party cannot be prejudiced by an act, declaration, or omission of another.32 Consequently, an
extrajudicial confession is binding only on the confessant, is not admissible against his or her co-
accused33 and is considered as hearsay against them.34 The reason for this rule is that:

on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and
are evidence against him. So are his conduct and declarations. Yet it would not only be rightly
inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought
their acts or conduct be used as evidence against him.35

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30,
Rule 130 of the Rules of Court:

Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and
during its existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act or declaration. 1av vphi1
This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and
during its existence may be given in evidence against co-conspirators provided that the conspiracy is
shown by independent evidence aside from the extrajudicial confession.36 Thus, in order that the
admission of a conspirator may be received against his or her co-conspirators, it is necessary that
(a) the conspiracy be first proved by evidence other than the admission itself (b) the admission
relates to the common object and (c) it has been made while the declarant was engaged in carrying
out the conspiracy.37 Otherwise, it cannot be used against the alleged co-conspirators without
violating their constitutional right to be confronted with the witnesses against them and to cross-
examine them.38

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of
evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence,
direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted
confession of Columna, which was the sole evidence against respondents, had no probative value
and was inadmissible as evidence against them.

Considering the paucity and inadmissibility of the evidence presented against the respondents, it
would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a
sufficient belief as to the guilt of the accused, they should be relieved from the pain of going through
a full blown court case.39 When, at the outset, the evidence offered during the preliminary
investigation is nothing more than an uncorroborated extrajudicial confession of an alleged
conspirator, the criminal complaint should not prosper so that the system would be spared from the
unnecessary expense of such useless and expensive litigation.40 The rule is all the more significant
here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the
warrant of arrest issued by Judge Daguna.41

Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself
whether there was probable cause or sufficient ground to hold respondents for trial as co-
conspirators. Given that she had no sufficient basis for a finding of probable cause against
respondents, her orders denying the withdrawal of the Informations for murder against them were
issued with grave abuse of discretion.

Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of
respondents.

WHEREFORE, the petition is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

Tamargo vs. Awingan

G.R. No. 177727; January 19, 2010

Facts:

Atty. Franklin V. Tamargo and his 8-year-old daughter were shot and killed in 2003. The police
had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and
executed an affidavit wherein he stated that a certain Lucio Columna told him during a drinking
spree that Atty. Tamargo was ordered killed by Lloyd Antiporda and that he (Columna) was one
of those who killed Atty. Tamargo. Columna was arrested.

On March 8, 2004, Columna executed an affidavit wherein he admitted his participation as “look
out” during the shooting and implicated Romulo Awingan as the gunman and one Richard
Mecate. He also tagged as masterminds Licerio Antiporda, Jr. and his son, Lloyd Antiporda, ex-
mayor and mayor, respectively, of Buguey, Cagayan.

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a
complaint against those implicated by Columna in the Office of the City Prosecutor of Manila.
Columna affirmed his affidavit before the investigating prosecutor.

During the preliminary investigation, Licerio presented Columna’s handwritten letter wherein
the latter disowned the contents of his earlier affidavit and narrated how he had been tortured
until he signed the extrajudicial confession. Licerio also submitted an affidavit of Columna dated
May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter. The
investigating prosecutor set a clarificatory hearing so that Columna could clarify his
contradictory affidavits and his unsolicited letter. During the hearing, Columna categorically
admitted the authorship and voluntariness of the unsolicited letter. Thus, the investigating
prosecutor recommended the dismissal of the charges.

In another handwritten letter addressed to City Prosecutor, however, Columna said that he was
only forced to withdraw all his statements against respondents during the clarificatory hearing
because of the threats to his life inside the jail. The RTC judge denied the motion to withdraw
the informations and held that based on the March 8, 2004 affidavit which Columna affirmed
before the investigating prosecutor, there was probable cause to hold the accused for trial. CA
reversed the decision.

Tamargo appealed. Petitioner argues that, based on the independent assessment of the Judge
Daguna, there was probable cause based on the earlier affidavit of Columna. Awingan and the
Antiporda’s, on the other hand, contend that Columna’s extrajudicial confession was
inadmissible against them because of the rule on res inter alios acta.

Issue:

Whether or not the admission of Columna is admissible against Awingan and the Antipordas

Held:

Columna’s extrajudicial confession in his March 8, 2004 affidavit was not admissible as
evidence against respondents in view of the rule on res inter alios acta. The rule on res inter alios
acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of
another. Consequently, an extrajudicial confession is binding only on the confessant, is not
admissible against his or her co-accused and is considered as hearsay against them.

An exception to the res inter alios acta rule is an admission made by a conspirator under Section
30, Rule 130 of the Rules of Court:

Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy

and during its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.

This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and
during its existence may be given in evidence against co-conspirators provided that the
conspiracy is shown by independent evidence aside from the extrajudicial confession. Thus, in
order that the admission of a conspirator may be received against his or her co-conspirators, it is
necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b)
the admission relates to the common object and (c) it has been made while the declarant was
engaged in carrying out the conspiracy. Otherwise, it cannot be used against the alleged co-
conspirators without violating their constitutional right to be confronted with the witnesses
against them and to cross-examine them.

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of
evidence was presented to prove the alleged conspiracy. There was no other prosecution
evidence, direct or circumstantial, which the extrajudicial confession could corroborate.
Therefore, the recanted confession of Columna, which was the sole evidence against
respondents, had no probative value and was inadmissible as evidence against them.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 191752 June 10, 2013

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
JOSE ARMANDO CERVANTES CACHUELA and BENJAMIN JULIAN CRUZ
IBANEZ, Accused.
BENJAMIN JULIAN CRUZ IBANEZ, Accused-Appellant.

DECISION

BRION, J.:

We decide the appeal filed by appellants Jose Armando Cervantes Cachuela and Benjamin
Julian Cruz Ibanez assailing the August 7, 2009 decision1 of the Court of Appeals (CA) in CA-
G.R. CR.-HC No. 03474. The CA decision affirmed with modification the July 14, 2008
decision2 of the Regional Trial Court (RTC), Branch 196, Parañaque City, finding the appellants
guilty beyond reasonable doubt of the special complex crime of robbery with homicide, and
sentencing them to suffer the penalty of reclusion perpetua.

The prosecution’s evidence revealed that on July 23, 2004, Ibañez went to Weapons System
Corporation (WSC) on board an old car, and told Henessy Auron, WSC’s Secretary and Sales
Representative, that he was the one who bought a gun barrel at the company’s gun show in SM
Megamall. Ibañez inquired from Henessy about the schedule and the rates of WSC’s firing
range and the amount of the membership fee of its gun club. He also asked the days when
there are many people in the firing range, and whether Henessy was WSC’s only female
employee.3

At around 9:00 a.m. of July 26, 2004, Henessy arrived at WSC and rang the doorbell, but no
one opened the door. She went to the back of the office where the firing range was located, and
called Zaldy Gabao, another employee of WSC. Zaldy answered from inside the store but
Henessy did not understand what he said. Henessy returned to the front door and called again.
Zaldy replied that he could not open the door because his hands were tied. Henessy called
Raymundo Sian, the company’s operations manager, and informed him that Zaldy’s hands had
been tied. After one hour, the police arrived; they opened the gate at the back using acetylene.
When Henessy and the police entered the premises, they saw that Zaldy had been handcuffed
to the vault. Zaldy informed the police that the company’s gunsmith, Rex Dorimon, was inside
the firing range. The police entered the firing range, and saw the lifeless body of Rex. 4 Dr.
Voltaire Nulud conducted an autopsy on the body of Rex, and found that the victim suffered
several gunshot wounds on the head, thorax and abdomen, caused by a .45 pistol.5

The National Bureau of Investigation (NBI) received an information from an asset that the group
of Cachuela was involved in the robbery of WSC and in the killing of one of its employees; and
that Cachuela had been looking for prospective buyers of firearms. The NBI formed an
entrapment team and proceeded to Bacoor, Cavite to execute the operation. Upon their arrival,
Melvin Nabilgas approached them and told them that he had been sent by Cachuela and Ibañez
to look for buyers of firearms. The police introduced themselves and told Nabilgas that they
were conducting an entrapment operation against the suspects of the robbery at WSC. Nabilgas
surrendered to the police, and gave the names of the other persons involved in the crime.6

Thereafter, the asset contacted Cachuela and informed him that Nabilgas had already talked to
the buyers, and that they would like to see the firearms being sold. Cachuela set up a meeting
with the buyers at a gasoline station in Naic, Cavite. NBI Special Investigator Allan Lino,
Supervising Agent Jerry Abiera and the asset went to the agreed place. Cachuela came and
talked to them, and brought them inside his house where Cachuela showed them several
firearms. When the agents inquired from Cachuela whether the firearms had legal
documentation, the latter sensed that the meeting was a set-up. The NBI agents arrested
Cachuela before he could make any move. The agents recovered four (4) firearms7 from
Cachuela’s house, including a .9 mm Bernardelli with serial number T1102-03E000151.8

The NBI conducted a follow-up operation on Ibañez whom the asset also contacted. Ibañez
directed the asset to bring the prospective buyers to his residence in Imus, Cavite. The NBI
agents went to Imus and there met Ibañez whom they saw inside a Nissan California car
bearing plate no. PMN 645. Lino, Abiera and the asset entered the car, and asked Ibañez where
the firearms were. Ibañez brought out two (2) firearms, and showed them to the agents. The
agents asked whether the guns had legal documentation; they then arrested Ibañez when they
sensed that he was already becoming suspicious. The agents recovered two guns from Ibañez,
viz.: a .45 Glock 30 with serial number FML 245 and a .45 Llama with serial number 04490Z.9
At the NBI Main Office, Zaldy pointed to the appellants, during a police line-up, as the persons
responsible for the robbery at WSC and for the killing of Rex.10 Nabilgas also executed a
handwritten confession implicating the appellants and Zaldy in the crime.11

The prosecution filed an Information12 for robbery with homicide before the RTC against the
appellants, Nabilgas and Zaldy, docketed as Criminal Case No. 04-0943. The accused all
pleaded not guilty on arraignment.13 Trial on the merits ensued thereafter. During trial, Zaldy
died.14

In its decision dated July 14, 2008, the RTC found the appellants guilty beyond reasonable
doubt of the special complex crime of robbery with homicide, and sentenced them to suffer the
penalty of reclusion perpetua. It also ordered them to pay, jointly and severally, the heirs of Rex
₱50,000.00 as civil indemnity and ₱50,000.00 as moral damages. The trial court likewise
ordered the appellants to pay Hector C. Rodriguez, Jr.15 ₱1,563,300.00, representing the value
of the firearms and ammunitions stolen from WSC. Excepted from the conviction was Nabilgas
whom the RTC acquitted on ground of reasonable doubt.

The appellants filed an appeal with the CA, docketed as CA-G.R. CR.-HC No. 03474. In its
decision of August 7, 2009, the CA affirmed the RTC decision with the following modifications:
(a) the appellants were ordered to pay Arms Depot Philippines, Inc. the amount of
₱1,093,947.50, representing the value of the stolen firearms and ammunitions from WSC, with
interest at the rate of 6% per annum from the date of the decision until fully paid; and (b) they
are likewise ordered to pay, jointly and severally, the heirs of Rex ₱45,000.00 as actual
damages with interest at the rate of 6% per annum from the date of the decision until fully paid.

The CA held that the following pieces of circumstantial evidence showed that the appellants
robbed WSC and killed Rex during the course of this robbery: (1) Ibañez visited WSC two days
before the robbery and asked several questions from Henessy; (2) a robbery occurred at WSC
where 53 firearms and several ammunitions worth ₱1,563,300.00 had been stolen; (3) among
the firearms stolen were a .9 mm Bernardelli with serial number T1102-03E000151 and a .45
Glock 30 with serial number FML 245; (4) Rex, a gunsmith working in WSC, was found dead at
the firing range; (5) Rex sustained gunshot wounds on different parts of his body; (6) Cachuela
and Ibañez were caught trying to sell the .9 mm Bernardelli, with serial number T1102-
03E000151, and the .45 Glock 30, with serial number FML 245, respectively, in separate
entrapment operations; and (7) Cachuela and Ibanez were unable to explain how they came
into possession of the stolen firearms.

The CA ruled that the totality of these circumstances point to the appellants as the perpetrators
of the special complex crime of robbery with homicide. It disregarded the appellants’ defenses
of alibi, denial and frame-up for being self-serving. The CA likewise found unmeritorious the
appellants’ argument that the firearms confiscated from them were inadmissible in evidence,
pointing out that the seizures were the result of lawful entrapment operations. It further held that
the appellants failed to impute any ill or improper motive against the police officers who
conducted the entrapment operations.

Our Ruling

In this final review, we deny the appeal, and resolve to increase the amount for restitution by the
appellants to Arms Depot Philippines, Inc. from ₱1,093,947.50 to ₱1,481,000.00.

"A special complex crime of robbery with homicide takes place when a homicide is committed
either by reason, or on the occasion, of the robbery. To sustain a conviction for robbery with
homicide, the prosecution must prove the following elements: (1) the taking of personal property
belonging to another; (2) with intent to gain; (3) with the use of violence or intimidation against a
person; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in
its generic sense, was committed. A conviction requires certitude that the robbery is the main
purpose, and objective of the malefactor and the killing is merely incidental to the robbery. The
intent to rob must precede the taking of human life but the killing may occur before, during or
after the robbery."16

Admissibility of the out-of-court

identification and the extrajudicial
confession

Lino testified that Zaldy identified the appellants as the persons involved in the robbery of WSC
and in the killing of Rex in a police line-up held at the NBI Main Office on Taft Avenue, Manila.
We note that Zaldy did not testify in court since he was brought to the National Center for
Mental Health, and subsequently died there during the trial. For this reason, we examine with
greater scrutiny Lino’s testimony regarding Zaldy’s alleged out-of-court identification.

People v. Algarme17 explains the procedure for out-of-court identification and the test to
determine its admissibility, as follows:

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups
where the suspect alone is brought face-to-face with the witness for identification. It is done thru
mug shots where photographs are shown to the witness to identify the suspect. It is also done
thru line-ups where a witness identifies the suspect from a group of persons lined up for the
purpose x x x In resolving the admissibility of and relying on out-of-court identification of
suspects, courts have adopted the totality of circumstances test where they consider the
following factors, viz.: (1) the witness' opportunity to view the criminal at the time of the crime;
(2) the witness' degree of attention at that time; (3) the accuracy of any prior description, given
by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the
length of time between the crime and the identification; and, (6) the suggestiveness of the
identification procedure. [italics and emphasis supplied]

In the present case, Lino merely stated that Zaldy, during a police line-up, identified the
appellants as the persons involved in the robbery of WSC and in the killing of Rex. Lino did not
state when the line-up took place; how this line-up had been conducted; who were the persons
in the line-up with the appellants (if there were indeed other persons included in the line-up);
and whether the line-up was confined to persons of the same height and built as the appellants.
Lino likewise did not indicate who accompanied Zaldy before and during the line-up, and
whether there had been the possibility of prior or contemporaneous improper insinuations on
Zaldy regarding the appearance of the appellants.

To our mind, Lino’s failure to state relevant details surrounding the police line-up is a glaring
omission that renders unreliable Zaldy’s out-ofcourt identification. No way exists for the courts to
evaluate the factors used in determining the admissibility and reliability of out-of-court
identifications, such as the level of certainty demonstrated by the witness at the identification;
the length of time between the crime and the identification; and the suggestiveness of the
identification procedure. The absence of an independent in-court identification by Zaldy
additionally justifies our strict treatment and assessment of Lino’s testimony.

The records also bear out that Nabilgas executed an extrajudicial confession18 at the NBI Main
Office, where he implicated the appellants and Zaldy in the crime charged. During trial, he
repudiated this confession, and claimed that he had been tortured by the NBI agents, and that
he was forced to copy a previously prepared statement.

After a careful examination of the evidence on hand, we hold that Nabilgas’ extrajudicial
confession is inadmissible in evidence. The Court has consistently held that an extrajudicial
confession, to be admissible, must satisfy the following requirements: "(1) the confession must
be voluntary; (2) it must be made with the assistance of a competent and independent counsel,
preferably of the confessant's choice; (3) it must be express; and (4) it must be in writing." 19

We point out that Nabilgas was already under custodial investigation by the authorities when he
executed the alleged written confession. "A custodial investigation is understood x x x as x x x
any questioning initiated by law enforcement authorities after a person is taken into custody or
otherwise deprived of his freedom of action in any significant manner. x x x It begins when there
is no longer a general inquiry into an unsolved crime and the investigation has started to focus
on a particular person as a suspect, i.e., when the police investigator starts interrogating or
exacting a confession from the suspect in connection with an alleged offense.20

In People v. Rapeza,21 we explained that the lawyer called to be present during custodial
investigations should, as far as reasonably possible, be the choice of the individual undergoing
questioning. If the lawyer is furnished by the police for the accused, it is important that the
lawyer should be competent, independent and prepared to fully safeguard the constitutional
rights of the accused, as distinguished from one who would merely be giving a routine,
peremptory and meaningless recital of the individual's constitutional rights.

After a close reading of the records, we rule that Nabilgas’ confession was not made with the
assistance of a competent and independent counsel. The services of Atty. Melita Go, the lawyer
who acted in Nabilgas’ behalf, were provided by the very same agency investigating Nabilgas –
the NBI itself; she was assigned the task despite Nabilgas’ open declaration to the agency’s
investigators that he already had a lawyer in the person of Atty. Donardo Paglinawan. Atty.
Paglinawan confirmed this fact when he stated that he was already representing Nabilgas at the
time his client made the alleged confession. Nabilgas also testified that Atty. Go did not disclose
that she was a lawyer when she was called to assist him; she merely represented herself to be
a mere witness to the confession. There was also nothing in the records to show that Atty. Go
ascertained whether Nabilgas’ confession was made voluntarily, and whether he fully
understood the nature and the consequence of his extrajudicial confession and its impact on his
constitutional rights.

To be sure, this is not the kind of assistance required of lawyers in a custodial investigation. "An
‘effective and vigilant counsel’ necessarily and logically requires that the lawyer be present and
be able to advise and assist his client from the time the confessant answers the first question
asked by the investigating officer until the signing of the extrajudicial confession."22 In addition,
the extrajudicial confession of Nabilgas was not corroborated by a witness who was present at
the time the written confession was made. We note in this regard that the prosecution did not
present Atty. Go at the witness stand despite hints made during the early stages of the trial that
she would be presented.

At any rate, Nabilgas’ extrajudicial confession is inadmissible in evidence against the appellants
in view of the res inter alios acta rule. This rule provides that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial
confession is binding only on the confessant and is not admissible against his or her co-accused
because it is considered as hearsay against them.

An exception to the res inter alios acta rule is an admission made by a conspirator under
Section 30, Rule 130 of the Rules of Court. This provision states that the act or declaration of a
conspirator relating to the conspiracy, and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown by evidence other than such act or
declaration. Thus, in order that the admission of a conspirator may be received against his or
her co-conspirators, it is necessary that: (a) the conspiracy be first proved by evidence other
than the admission itself; (b) the admission relates to the common object; and (c) it has been
made while the declarant was engaged in carrying out the conspiracy.23

This exception, however, does not apply in the present case since there was no other piece of
evidence presented, aside from the extrajudicial confession, to prove that Nabilgas conspired
with the appellants in committing the crime charged. Conspiracy cannot be presumed and must
be shown as distinctly and conclusively as the crime itself. Nabilgas, in fact, was acquitted by
the trial court due to insufficiency of evidence to prove his participation in the crime.

Sufficiency of the proven

circumstantial evidence

In view of the inadmissibility of Zaldy’s out-of-court identification and Nabilgas’ extrajudicial

confession, the prosecution’s case rests purely on circumstantial evidence. Conviction can be
secured "on the basis of circumstantial evidence if the established circumstances constitute an
unbroken chain leading to a fair and reasonable conclusion proving that the accused is the
author of the crime to the exclusion of all others."24 There can be conviction if the prosecution
can establish the appellants’ participation in the crime through credible and sufficient
circumstantial evidence that leads to the inescapable conclusion that the accused, and none
other, committed the imputed crime.25

"Circumstantial evidence consists of proof of collateral facts and circumstances from which the
main fact in issue may be inferred based on reason and common experience. Under Section 4,
Rule 133 of the Revised Rules of Court, circumstantial evidence is sufficient for conviction if the
following requisites concur: (a) there is more than one circumstance; (b) the facts from which
the inferences are derived have been established; and (c) the combination of all the
circumstances unavoidably leads to a finding of guilt beyond reasonable doubt. These
circumstances must be consistent with one another, and the only rational hypothesis that can be
drawn therefrom must be the guilt of the accused."26

In our view, no doubt exists, based on the appellants' actions, that their primary objective was to
rob WSC, and that the killing of Rex was done on occasion, or by reason, of the robbery: first,
Ibañez went to WSC on July 23, 2004, and inquired from Henessy about the schedule and the
rates of the firing range, the amount of the membership fee of the company’s gun club, the days
when there are many people in the firing range, and whether she was the only female employee
of the company; second, when Henessy arrived at WSC at 9:00 a.m. on July 26, 2004, Zaldy
informed her that he cannot open the front door because his hands were tied; third, Henessy
called the company’s operations manager and informed him that Zaldy had been tied; fourth,
the police saw Zaldy handcuffed to the vault when they opened the back gate; fifth, the police
saw the lifeless body of Rex lying on the floor with several gunshot wounds when they entered
the firing range; sixth, the operations manager discovered that 53 guns and several
ammunitions had been missing from the gun store, including a .9 mm Bernardelli with serial
number T1102-03E000151 and a .45 Glock 30 with serial number FML 245; seventh, the NBI
agents caught Cachuela trying to sell the .9 mm Bernardelli with serial number T1102-
03E000151 in an entrapment operation in Cavite; eighth, the NBI agents caught Ibañez trying to
sell the .45 Glock 30 with serial number FML 245 and a .45 Llama with serial number 04490Z in
a follow-up entrapment operation in Cavite; ninth, Cachuela and Ibañez were unable to explain
how they came into possession of the stolen firearms; tenth, Police Inspector Armin Austria, the
PNP Forensic Firearm Examiner, found that the 98 pieces of .45 fired cartridge cases found at
the crime scene were fired from the .45 Llama with serial number 04490Z recovered from
Ibañez;27 and finally, Dr. Nulud conducted an autopsy on the body of Rex, and found that the
victim suffered several gunshot wounds on the head, thorax, and abdomen caused by a .45
pistol.

From these established circumstances, the overriding intention of the appellants cannot but be
to rob WSC; the killing of Rex was merely incidental to the robbery. "Intent to rob is an internal
act, but may be inferred from proof of violent unlawful taking of personal property." 28 Rex was
killed to facilitate the robbery; he was also the person who would have been a witness to the
crime. In People v. De Leon,29 we held that "homicide is said to have been committed by reason
or on the occasion of robbery if, for instance, it was committed (a) to facilitate the robbery or the
escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of
the crime."

In this regard, we cannot overlook the fact that another WSC employee – Zaldy – was not killed,
but merely tied to the vault. The Court cannot second-guess on what could have been behind
the malefactors’ decision to spare Zaldy’s life, but we note that Zaldy became one of the
accused in this case after the Office of the City Prosecutor found probable cause to indict him in
the crime, as the robbery could have been the result of an "inside job." Unfortunately, Zaldy was
unable to testify during trial since the RTC ordered that he be brought to the National Center for
Mental Health for treatment. Accordingly, Nabilgas’ extrajudicial confession (which we ruled to
be inadmissible) was the only evidence linking Zaldy to the crime. For lack of evidence, we
cannot make any definite conclusion and can only speculate on Zaldy’s involvement in the crime
charged.

We find it worthy to stress that the appellants failed to overcome the disputable presumption
that "a person found in possession of a thing taken in the doing of a recent wrongful act is the
taker and the doer of the whole act."30 To recall, Ibañez was at WSC two days before the
robbery, asking questions to the company’s secretary. Several days after the robbery, the
appellants were caught trying to sell firearms that were reported stolen from WSC in separate
entrapment operations; they could not satisfactorily explain how and why these guns came to
their respective possession. The appellants likewise did not impute ill motive on the part of the
arresting officers that would impel the latter to fabricate evidence against them. These factors
lead to no other conclusion than that the appellants, to the exclusion of others, had robbed
WSC.

To our mind, the fact that the cartridge bullet shells found at the firing range (where the lifeless
body of Rex had been discovered) matched with one of the guns recovered from Ibañez during
the entrapment operation clinches the case against the appellants insofar as establishing the
nexus between the robbery and the victim’s killing. Notably, the gunshot wounds suffered by
Rex also came from the same caliber of gun31 recovered from Ibañez. In the final analysis, the
prosecution sufficiently established the direct and intimate connection between the robbery and
the killing, and that the death of Rex had been committed by reason or on the occasion of the
robbery. When homicide is committed by reason or on the occasion of a robbery, all those who
took part as principals in the robbery would also be held liable as principals of the single and
indivisible felony of robbery with homicide, although they did not actually take part in the killing,
unless it clearly appears that they endeavored to prevent the same.32

The penalty and the awarded civil

indemnities

Robbery with homicide is a single indivisible crime punishable with reclusion perpetua to death
under paragraph 1, Article 294 of the Revised Penal Code, as amended. We find that the trial
and appellate courts correctly sentenced the appellants to suffer the penalty of reclusion
perpetua only in the absence of any aggravating circumstance that attended the commission of
the crime.1âwphi 1
We affirm the award of ₱50,000.00 civil indemnity and ₱50,000.00 moral damages to the heirs
of Rex, as these awards conform to prevailing jurisprudence on robbery with homicide when the
penalty imposed is only reclusion perpetua.33 We also affirm the award of ₱45,000.00 as actual
damages, as the prosecution successfully proved this amount through a receipt.

The CA ordered the appellants to restitute the amount of ₱1,093,947.50, representing of the
value of the stolen firearms and ammunitions. We, however, increase this amount to the total
amount of ₱1,481,000.00 as !his is the value of the stolen items as proven by the evidence on
record.34

WHEREFORE, in light of all the foregoing, the decision of the Court of Appeals dated August 7,
2009 in CA-G.R. CR.-HC No. 03474 is AFFIRMED with the MODIFICATION that the amount to
be restituted by the appellants to Arms Depot Philippines, Inc. be increased from ₱1,093,947.50
to ₱1,481,000.00.

SO ORDERED.

CRIMPRO
Title GR No. 191752
People vs Cachuela Date: June 10, 2013
Ponente: Brion, J.
People of the Philippines-Apellee JOSE ARMANDO CERVANTES CACHUELA and
BENJAMIN JULIAN CRUZ IBANEZ, Accused.
BENJAMIN JULIAN CRUZ IBANEZ, Accused-Appellant.
Nature of the case: We decide the appeal filed by appellants Jose Armando Cervantes Cachuela and Benjamin
Julian Cruz Ibanez assailing the August 7, 2009 decision1 of the Court of Appeals (CA) in CA-G.R. CR.-HC No.
03474. The CA decision affirmed with modification the July 14, 2008 decision2 of the Regional Trial Court
(RTC), Branch 196, Parañaque City, finding the appellants guilty beyond reasonable doubt of the special
complex crime of robbery with homicide, and sentencing them to suffer the penalty of reclusion perpetua.
FACTS
1. July 23,2004- Ibanez went to Weapon System Corporation(WSC) to buy a barrel and inquired about
the rates and schedule of it’s firing range.
2. July26 , 2004- an employee was discovered to be handcuffed(Zaldy Gabao) to a vault inside the store
which was unlocked. It was found out later that Rex Dorimon, the company gunsmith, was found
dead inside the firing range later on experts diagnosed that Rex suffered from several gunbshots.

3. The National Bureau of Investigation (NBI) received an information from an asset that the group of
Cachuela was involved in the robbery of WSC and in the killing of one of its employees; and that Cachuela
had been looking for prospective buyers of firearms. The NBI formed an entrapment team and proceeded to
Bacoor, Cavite to execute the operation. Upon their arrival, Melvin Nabilgas approached them and told them
that he had been sent by Cachuela and Ibañez to look for buyers of firearms. The police introduced
themselves and told Nabilgas that they were conducting an entrapment operation against the suspects of the
robbery at WSC. Nabilgas surrendered to the police, and gave the names of the other persons involved in the
crime.6

Thereafter, the asset contacted Cachuela and informed him that Nabilgas had already talked to the buyers,
and that they would like to see the firearms being sold. Cachuela set up a meeting with the buyers at a
gasoline station in Naic, Cavite. NBI Special Investigator Allan Lino, Supervising Agent Jerry Abiera and the
asset went to the agreed place. Cachuela came and talked to them, and brought them inside his house where
Cachuela showed them several firearms. When the agents inquired from Cachuela whether the firearms had
legal documentation, the latter sensed that the meeting was a set-up. The NBI agents arrested Cachuela
before he could make any move. The agents recovered four (4) firearms from Cachuela’s house, including a .9
mm Bernardelli with serial number T1102-03E000151 and soon after the NBI conducted a follow up
operation against Ibanez and was able to arrest him.

4. During the police line-up Zaldy was able to point out the appellants as the persons responsible for the
robbery at WSC and for the killing of Rex. Nabilgas also executed a handwritten confession implicating the
appellants and Zaldy in the crime.

5. Prosecution filed information for Robbery with Homicide against the appellants and they were arraigned to
a plea of not guilty. In the course of the trial Zaldy died.

6. In its decision dated July 14, 2008, the RTC found the appellants guilty beyond reasonable doubt of the
special complex crime of robbery with homicide, and sentenced them to suffer the penalty of reclusion
perpetua. It also ordered them to pay, jointly and severally, the heirs of Rex P50,000.00 as civil indemnity
and P50,000.00 as moral damages. The trial court likewise ordered the appellants to pay Hector C. Rodriguez,
Jr. P1,563,300.00, representing the value of the firearms and ammunitions stolen from WSC. Excepted from
the conviction was Nabilgas whom the RTC acquitted on ground of reasonable doubt.

7. The appellants filed an appeal with the CA, docketed as CA-G.R. CR.-HC No. 03474. In its decision of August
7, 2009, the CA affirmed the RTC decision with the following modifications: (a) the appellants were ordered
to pay Arms Depot Philippines, Inc. the amount of P1,093,947.50, representing the value of the stolen
firearms and ammunitions from WSC, with interest at the rate of 6% per annum from the date of the decision
until fully paid; and (b) they are likewise ordered to pay, jointly and severally, the heirs of Rex P45,000.00 as
actual damages with interest at the rate of 6% per annum from the date of the decision until fully paid.

ISSUE/S
I. W/n the out-of-court identification made by Zaldy is admissible?-NO
II. W/n the extrajudicial confession made by Nabilgas is admissible?-NO
RATIO
I. Lino testified that Zaldy identified the appellants as the persons involved in the robbery of WSC and in the
killing of Rex in a police line-up held at the NBI Main Office on Taft Avenue, Manila. We note that Zaldy did
not testify in court since he was brought to the National Center for Mental Health, and subsequently died
there during the trial. For this reason, we examine with greater scrutiny Lino’s testimony regarding Zaldy’s
alleged out-of-court identification.
To our mind, Lino’s failure to state relevant details surrounding the police line-up is a glaring omission that
renders unreliable Zaldy’s out-ofcourt identification. No way exists for the courts to evaluate the factors used
in determining the admissibility and reliability of out-of-court identifications, such as the level of certainty
demonstrated by the witness at the identification; the length of time between the crime and the
identification; and the suggestiveness of the identification procedure. The absence of an independent in-
court identification by Zaldy additionally justifies our strict treatment and assessment of Lino’s testimony.

II. During trial, Nabilgas repudiated his extrajudicial confession as he said he was tortured by NBI agents and
that he was forced to copy a previously prepared statement.
After a close reading of the records, we rule that Nabilgas’ confession was not made with the assistance of a
competent and independent counsel. The services of Atty. Melita Go, the lawyer who acted in Nabilgas’
behalf, were provided by the very same agency investigating Nabilgas – the NBI itself; she was assigned the
task despite Nabilgas’ open declaration to the agency’s investigators that he already had a lawyer in the
person of Atty. Donardo Paglinawan. Atty. Paglinawan confirmed this fact when he stated that he was
already representing Nabilgas at the time his client made the alleged confession. Nabilgas also testified that
Atty. Go did not disclose that she was a lawyer when she was called to assist him; she merely represented
herself to be a mere witness to the confession. There was also nothing in the records to show that Atty. Go
ascertained whether Nabilgas’ confession was made voluntarily, and whether he fully understood the nature
and the consequence of his extrajudicial confession and its impact on his constitutional rights.

In addition, the extrajudicial confession of Nabilgas was not corroborated by a witness who was present at
the time the written confession was made. We note in this regard that the prosecution did not present Atty.
Go at the witness stand despite hints made during the early stages of the trial that she would be presented.

At any rate, Nabilgas’ extrajudicial confession is inadmissible in evidence against the appellants in view of the
res inter alios acta rule. This rule provides that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the
confessant and is not admissible against his or her co-accused because it is considered as hearsay against
them.
RULING
WHEREFORE, in light of all the foregoing, the decision of the Court of Appeals dated August 7, 2009 in CA-
G.R. CR.-HC No. 03474 is AFFIRMED with the MODIFICATION that the amount to be restituted by the
appellants to Arms Depot Philippines, Inc. be increased from P1,093,947.50 to P1,481,000.00.
Notes
A."A special complex crime of robbery with homicide takes place when a homicide is committed either by
reason, or on the occasion, of the robbery. To sustain a conviction for robbery with homicide, the
prosecution must prove the following elements: (1) the taking of personal property belonging to another; (2)
with intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by
reason of the robbery, the crime of homicide, as used in its generic sense, was committed. A conviction
requires certitude that the robbery is the main purpose, and objective of the malefactor and the killing is
merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may
occur before, during or after the robbery."

B. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the
suspect alone is brought face-to-face with the witness for identification. It is done thru mug shots where
photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness
identifies the suspect from a group of persons lined up for the purpose x x x In resolving the admissibility of
and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test
where they consider the following factors, viz.: (1) the witness' opportunity to view the criminal at the time
of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description, given
by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of
time between the crime and the identification; and, (6) the suggestiveness of the identification procedure.

C. extrajudicial confession, to be admissible, must satisfy the following requirements: "(1) the confession
must be voluntary; (2) it must be made with the assistance of a competent and independent counsel,
preferably of the confessant's choice; (3) it must be express; and (4) it must be in writing."

D. Exception to the res inter alios acta rule

An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130
of the Rules of Court. This provision states that the act or declaration of a conspirator relating to the
conspiracy, and during its existence, may be given in evidence against the co-conspirator after the conspiracy
is shown by evidence other than such act or declaration. Thus, in order that the admission of a conspirator
may be received against his or her co-conspirators, it is necessary that: (a) the conspiracy be first proved by
evidence other than the admission itself; (b) the admission relates to the common object; and (c) it has been
made while the declarant was engaged in carrying out the conspiracy.

ONG

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 187536 August 10, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MICHAEL BOKINGO alias "MICHAEL BOKINGCO" and REYNANTE COL, Accused-
Appellants.

DECISION

PEREZ, J.:

For review is the Amended Decision1 dated 14 November 2008 of the Court of Appeals in CA-
G.R. CR-H.C. No. 00658, finding appellants Michael Bokingco2 (Bokingco) and Reynante Col
(Col) guilty as conspirators beyond reasonable doubt of the crime of Murder and sentencing
them to suffer the penalty of reclusion perpetua.

On 31 July 2000, an Information3 was filed against appellants charging them of the crime of
murder committed as follows:

That on or about the 29th day of February, 2000 in the City of Angeles, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping each other, armed with a claw hammer and with
intent to kill by means of treachery, evident premeditation, abuse of confidence, and nighttime,
did then and there willfully, unlawfully and feloniously attack, assault and maul NOLI PASION,
by hitting and beating his head and other parts of his body with said hammer, thereby inflicting
upon said NOLI PASION fatal wounds on his head and body which caused his death.4

On arraignment, Bokingco entered a guilty plea while Col pleaded not guilty. During the pre-trial,
Bokingco confessed to the crime charged.5

The victim, Noli Pasion (Pasion) and his wife, Elsa, were residing in a house along Mac Arthur
Highway in Balibago, Angeles City. Pasion owned a pawnshop, which formed part of his house.
He also maintained two (2) rows of apartment units at the back of his house. The first row had
six (6) units, one of which is Apartment No. 5 and was being leased to Dante Vitalicio (Vitalicio),
Pasion’s brother-in-law, while the other row was still under construction at the time of his death.
Appellants, who were staying in Apartment No. 3, were among the 13 construction workers
employed by Pasion.6

The prosecution’s evidence show that at around 1:00 a.m. on 29 February 2000, Vitalicio was
spin-drying his clothes inside his apartment when Pasion came from the front door, passed by
him and went out of the back door.7A few minutes later, he heard a commotion from Apartment
No. 3. He headed to said unit to check. He peeped through a screen door and saw Bokingco
hitting something on the floor. Upon seeing Vitalicio, Bokingco allegedly pushed open the
screen door and attacked him with a hammer in his hand. A struggle ensued and Vitalicio was
hit several times. Vitalicio bit Bokingco’s neck and managed to push him away. Bokingco tried to
chase Vitalicio but was eventually subdued by a co-worker. Vitalicio proceeded to his house and
was told by his wife that Pasion was found dead in the kitchen of Apartment No. 3. Vitalicio went
back to Apartment No. 3 and saw Pasion’s body lying flat on the kitchen floor. Pasion and
Vitalicio were brought to the hospital. Pasion expired a few hours later while Vitalicio was
treated for his injuries.8

Elsa testified that she was in the master’s bedroom on the second floor of the house when she
heard banging sounds and her husband’s moans. She immediately got off the bed and went
down. Before reaching the kitchen, Col blocked her way. Elsa asked him why he was inside
their house but Col suddenly ran towards her, sprayed tear gas on her eyes and poked a sharp
object under her chin. Elsa was wounded when she bowed her head to avoid the tear gas.9 Col
then instructed her to open the vault of the pawnshop but Elsa informed him that she does not
know the combination lock. Elsa tried offering him money but Col dragged her towards the back
door by holding her neck and pulling her backward. Before they reached the door, Elsa saw
Bokingco open the screen door and heard him tell Col: "tara, patay na siya."10 Col immediately
let her go and ran away with Bokingco. Elsa proceeded to Apartment No. 3. Thereat, she saw
her husband lying on the floor, bathed in his own blood.11

PO3 Quirino Dayrit (PO3 Dayrit) was stationed at Police Station No. 4 in Barangay Salakot,
Balibago, Angeles City. At 1:20 a.m. of 29 February 2000, he received a phone call regarding
the incident. He, together with a certain P/Insp. Maniago, proceeded to Apartment No. 3 and
conducted an investigation. He noticed a pool of blood on the cemented floor of the kitchen. He
also saw a claw hammer with a green lead pipe handle approximately 13 inches long near the
kitchen sink. A lead pipe measuring 40 inches and a chisel were also found in the nearby
construction site. The police went to Angeles University Medical Center afterwards. PO3 Dayrit
saw Pasion lying in one of the beds while Vitalicio was still loitering around the emergency
room. He approached Vitalicio and Elsa who both informed him of the incident.12 He prepared a
police report on the same day narrating the result of his investigation.13

Evelyn Gan, the stenographic reporter of Prosecutor Lucina Dayaon, jotted down notes during
the preliminary investigation. She attests that Bokingco admitted that he conspired with Col to
kill Pasion and that they planned the killing several days before because they got "fed up" with
Pasion.14

The necropsy report prepared by Dr. Joven G. Esguerra (Dr. Esguerra), contained the following
findings:

1. Marked pallor of lips and nailbeds

2. Body in rigor mortis

3. Contusion with hematoma, right medial infraorbital region extending to the right of the
root of the nose.

4. Contusion with hematoma, left post-auricular region.

5. Contusion with hematoma, right angle of mandible.

6. Contusion with hematoma, right mandibular region.

7. Contusion with hematoma, left occipital region.

8. Contusion with hematoma, right fronto-parietal region.

9. Contusion with hematoma, right supraorbital region.

 10. Abrasions, linear, confluent, proximal third, right leg anterior 2 ½ x 6 ½ cm.

11. Contusion with hematoma, left shoulder, level of head of left humerus.

12. Stab wound, anterior chest along the anterior median line, 7 cm above the nipple
line, 0.8cm length, 0.5 cm wide and 1 cm deep, hitting and puncturing the manubrium
sterni, not entering the thoracic cavity. Both extremities round.

13. 2 stab wounds, non-penetrating, anterior chest, 13 cm to the left of the anterior
median line, 3 cm below injury (12) 14 cm the right of the anterior median line 4 ½ on
below injury (12). Wound 0.8 cm in length, both extremities round.

14. Lacerated wound, semi-lunar shape, 3 cm length, left shoulder.

15. Lacerated wound, right eyebrow area, C-shaped 2 ½ cm length.

16. Lacerated wound, lateral angle, right eye, 0.8 cm length.

17. Lacerated wound, right supraorbital region, medial aspect, 2 cm length.

18. Lacerated wound, semi-lunar, 5 cm length, occipital region 5 cm length involving all
layers of the scalp with brain tissue seen on the gaping wound.

19. Lacerated wound, 4 cm length, C-shaped 2 ½ cm to the right of injury (18) 1 ½ cm

below, wound involving the whole scalp.

20. Lacerated wound, left post-auricular region, C-shaped 4 cm length, 3 cm length.

21. Lacerated wound left post-auricular region, region of the squamous part of the left
temporal bone, C-shaped (2) 3.5 cm and 4 cm lengths.

22. Lacerated wound, right mandibular region 4 cm length, 1 cm wide.

23. Lacerated wound, stellate, 5.5 x 5 x 5 cm, right fronto-parietal region with brain
tissue out of the gaping wound.

24. Lacerated wound, right submandibular region 0.3 x 3.5 cm.

25. Lacerated wound, right cheek 0.8 cm length.

26. Depressed, complete fracture, occipital bone right with stellate linear extensions,
with gaping, with brain tissue maseration.

27. Skull fracture, right fronto-parietal region, depressed, complete, C-shaped with linear
extensions, with gaping of bone with brain tissue maceration and expulsion.

28. Hemorrhage, massive, subdural and epidural.

29. Brain tissue damage.15

Dr. Esguerra concluded that the injuries sustained by Pasion on his skull proved fatal.16

Appellants testified on their own behalf. Bokingco recalled that he was sleeping in Apartment
No. 3 at around 1:20 a.m. on 29 February 2000 when he was awakened by Pasion who
appeared to be intoxicated. The latter wanted to know why he did not see Bokingco at the
construction site on 28 February 2000. When Bokingco replied that he just stayed at the
apartment the whole day, Pasion suddenly hit him in the head. This prompted Bokingco to take
a hammer and hit Pasion. They both struggled and Bokingco repeatedly hit Pasion. Bokingco
escaped to Manila right after the incident. He was subsequently arrested in Mindanao on 11
June 2000.17 During the cross-examination, Bokingco admitted that he harbored ill feelings
towards Pasion.18

Col confirmed that he was one of the construction workers employed by Pasion. He however
resigned on 26 February 2000 because of the deductions from his salary. He went home to
Cainta, Rizal, where he was apprehended and brought to Camp Olivas. Upon reaching the
camp, he saw Bokingco who pointed to him as the person who killed Pasion. He insisted that he
doesn’t know Bokingco very well.19

On 16 December 2004, the trial court rendered judgment20 finding appellants guilty beyond
reasonable doubt of murder, viz:

WHEREFORE, the Court finds accused MICHAEL BOKINGO alias MICHAEL BOKINGCO and
REYNANTE COL guilty beyond reasonable doubt of the crime of MURDER, defined and
penalized in Art. 248 of the Revised Penal Code, and there being the two aggravating
circumstances of nighttime and abuse of confidence to be considered against both accused and
the mitigating circumstance of voluntary plea of guilty in favor of accused Bokingo only, hereby
sentences each of them to suffer the penalty of DEATH. Each accused is ordered to indemnify
the heirs of victim Noli Pasion in the amount of Seventy five thousand pesos (P75,000.00) to
pay the heirs of the victim Seventeen thousand six hundred pesos (P17,600.00) as actual
damages, Fifteen thousand pesos (P15,000.00) as attorney’s fees, Twenty five thousand pesos
(P25,000.00) as exemplary damages, and to pay the costs.21

In its Decision dated 24 July 2008, the Court of Appeals affirmed the findings of the trial court
but reduced the penalty to reclusion perpetua in view of Republic Act No. 7659, thus:

WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION. Accused-appellant

REYNANTE COL is found GUILTY as conspirator beyond reasonable doubt of MURDER as
defined in Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,
qualified by treachery and evident premeditation and with the attendant aggravating
circumstances of nighttime and abuse of confidence, with no mitigating circumstances. The
proper imposable penalty would have been death. However, pursuant to Republic Act No. 9346,
appellant is sentenced to suffer the penalty of Reclusion Perpetua. Accused-appellant is further
ordered to indemnify the heirs of victim Noli Pasion in the amount of Seventy five thousand
pesos (₱75,000.00); Fifty thousand pesos (₱50,000.00) as moral damages; Twenty five
thousand pesos (₱25,000.00) as exemplary damages; Twenty five thousand pesos
(₱25,000.00) as temperate damages; Fifteen thousand pesos (₱15,000.00) as attorney’s fees;
and to pay the costs.22

Appellants filed a Motion for Reconsideration23 and called the appellate court’s attention on the
omission to rule on Bokingco’s fate when it rendered the challenged decision. Appellants also
noted the absence of other evidence, aside from Bokingco’s admission, to prove that conspiracy
existed in the instant case. Appellants maintained that the admission made by Bokingco cannot
be used as evidence against his alleged co-conspirator. Appellants also took exception to the
findings of the lower courts that the aggravating circumstances of treachery, evident
premeditation, nighttime and abuse of confidence attended the commission of the crime.24

The Court of Appeals merely modified its Decision by including the criminal liability of Bokingco
in its dispositive portion of its Amended Decision, which reads:

WHEREFORE, the assailed Decision is AFFIRMED with MODIFICATION. Accused-appellants

MICHAEL BOKINGCO and REYNANTE COL are found GUILTY as conspirators beyond
reasonable doubt of MURDER as defined in Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659, qualified by treachery and evident premeditation and with
the attendant aggravating circumstances of nighttime and abuse of confidence, with no
mitigating circumstances. The proper imposable penalty would have been death. However,
pursuant to Republic Act No. 9346, the accused-appellant are sentenced to suffer the penalty of
Reclusion Perpetua without the possibility of parole (in accordance with Section 3 of the said
law). Each of the accused-appellants is further ordered to indemnify the heirs of victim Noli
Pasion in the amount of Seventy five thousand pesos (₱75,000.00); Fifty thousand pesos
(₱50,000.00) as moral damages; Twenty five thousand pesos (₱25,000.00) as exemplary
damages; Twenty five thousand pesos (₱25,000.00) as temperate damages; Fifteen thousand
pesos (₱15,000.00) as attorney’s fees; and to pay the costs.25

Appellants filed a notice of appeal. In its Resolution dated 26 October 2009, this Court required
the parties to submit their Supplemental Briefs within 30 days from notice thereof if they so
desire.26 Appellants manifested that they are no longer filing a Supplemental Brief and are
adopting their arguments in the Appellant’s Brief submitted before the Court of Appeals.27 The
appellee likewise manifested that it is dispensing with the filing of a Supplemental Brief.28The
instant case was thus submitted for deliberation.
In seeking the reversal of the Court of Appeals’ Amended Decision, two issues were raised: 1)
whether the qualifying circumstances were properly appreciated to convict appellant Bokingco
of murder and 2) whether appellant Col is guilty beyond reasonable doubt as a co-conspirator.

There is no question that Bokingco attacked and killed Pasion. Bokingco made two (2) separate
and dissimilar admissions: first, in his extrajudicial confession taken during the preliminary
investigation where he admitted that he and Col planned the killing of Pasion; and second, when
he testified in open court that he was only provoked in hitting Pasion back when the latter hit
him in the head. On the basis of his extrajudicial confession, Bokingco was charged for murder
qualified by evident premeditation and treachery.

Appellants maintain that they could not be convicted of murder. They question the presence of
treachery in the commission of the crime considering that no one from the prosecution
witnesses testified on how Pasion was attacked by Bokingco. They also submit that evident
premeditation was not proven in the case. They belittle Bokingco’s extrajudicial admission that
he and Col planned the killing. The attendance of the aggravating circumstances of nighttime
and abuse of confidence was likewise assailed by appellants. They aver that nighttime was not
purposely sought but it was merely co-incidental that the crime took place at that time. Neither
has trust and confidence been reposed on appellants by the victim to aggravate the crime by
abuse of confidence. Appellants claim that they were living in an apartment owned by Pasion,
not because the latter trusted them but because they worked in the construction of the victim’s
apartment.

On the other hand, the OSG emphasizes that the prosecution has established that Pasion was
defenseless when fatally attacked by Bokingco and there was no opportunity for him to defend
himself from the unexpected assaults of Bokingco. The OSG agrees as well with the trial court’s
findings that evident premeditation, nighttime, and abuse of confidence attended the
commission of the crime.

We agree with appellants that treachery cannot be appreciated to qualify the crime to murder in
the absence of any proof of the manner in which the aggression was commenced. For treachery
to be appreciated, the prosecution must prove that at the time of the attack, the victim was not in
a position to defend himself, and that the offender consciously adopted the particular means,
method or form of attack employed by him.29 Nobody witnessed the commencement and the
manner of the attack. While the witness Vitalicio managed to see Bokingco hitting something on
the floor, he failed to see the victim at that time.30

Bokingco admitted in open court that he killed Pasion.31 But the admitted manner of killing is
inconsistent with evident premeditation. To warrant a finding of evident premeditation, the
prosecution must establish the confluence of the following requisites: (a) the time when the
offender was determined to commit the crime; (b) an act manifestly indicating that the offender
clung to his determination; and (c) a sufficient interval of time between the determination and
the execution of the crime to allow him to reflect upon the consequences of his act.32 It is
indispensable to show how and when the plan to kill was hatched or how much time had
elapsed before it was carried out. 33 In the instant case, no proof was shown as to how and
when the plan to kill was devised. Bokingco admitted in court that he only retaliated when
Pasion allegedly hit him in the head.34 Despite the fact that Bokingco admitted that he was
treated poorly by Pasion, the prosecution failed to establish that Bokingco planned the attack.

It was during the preliminary investigation that Bokingco mentioned his and Col’s plan to kill
Pasion.35 Bokingco’s confession was admittedly taken without the assistance of counsel in
violation of Section 12, Article III of the 1987 Constitution, which provides:

Section 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

xxxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

In People v. Sunga,36 we held that "the right to counsel applies in certain pretrial proceedings
that can be deemed ‘critical stages’ in the criminal process. The preliminary investigation can be
no different from the in-custody interrogations by the police, for a suspect who takes part in a
preliminary investigation will be subjected to no less than the State's processes, oftentimes
intimidating and relentless, of pursuing those who might be liable for criminal prosecution."37 In
said case, Sunga made an uncounselled admission before the police. He later acknowledged
the same admission before the judge in a preliminary investigation. Sunga was thrust into the
preliminary investigation and while he did have a counsel, for the latter’s lack of vigilance and
commitment to Sunga’s rights, he was virtually denied his right to counsel. Thus, the
uncounselled admission was held inadmissible.38 In the instant case, the extrajudicial confession
is inadmissible against Bokingco because he was not assisted at all by counsel during the time
his confession was taken before a judge.

The finding that nighttime attended the commission of the crime is anchored on the presumption
that there was evident premeditation. Having ruled however that evident premeditation has not
been proved, the aggravating circumstance of nighttime cannot be properly appreciated. There
was no evidence to show that Bokingco purposely sought nighttime to facilitate the commission
of the offense.

Abuse of confidence could not also be appreciated as an aggravating circumstance in this case.
Taking into account that fact that Bokingco works for Pasion, it may be conceded that he
enjoyed the trust and confidence of Pasion. However, there was no showing that he took
advantage of said trust to facilitate the commission of the crime.

A downgrade of conviction from murder to homicide is proper for Bokingco for failure of the
prosecution to prove the presence of the qualifying circumstances.

Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is reclusion
temporal. There being no mitigating or aggravating circumstance alleged and proven in the
instant case, the penalty should be applied in its medium period pursuant to Article 64(1) of the
Revised Penal Code, which ranges from a minimum of 14 years, 8 months and 1 day to a
maximum of 17 years and 4 months. Applying the Indeterminate Sentence Law, the imposable
penalty shall be within the range of prision mayor in any of its periods as minimum to reclusion
temporal in its medium period as the maximum. The range of prision mayor is from 6 years and
1 day to 12 years, while reclusion temporal in its medium period, ranges from 14 years, 8
months and 1 day to 17 years and 4 months. Therefore, the indeterminate penalty of six years
and one day of prision mayor as minimum to 14 years, eight months and one day of reclusion
temporal, as maximum is appropriate under the circumstances.39 The award of exemplary
damages should be deleted as no aggravating circumstance was proven.

Col, on the other hand, was charged as a co-conspirator. He contends that to hold him guilty as
co-conspirator, it must be established that he performed an overt act in furtherance of the
conspiracy. Applying Section 30, Rule 130 of the Rules of Court, Col asserts that Bokingco’s
uncounselled testimony that appellants planned to kill Pasion bears no relevance considering
the fact that there was no other evidence which will prove the conspiracy. Col also claims that
Elsa’s statements during trial, such as the presence of Col inside her house and his forcing her
to open the vault of the pawnshop, as well as the alleged statement she heard from Bokingco
"Tara, patay na siya," are not adequate to support the finding of conspiracy.

The Office of the Solicitor General (OSG) justifies Col’s conviction of murder by conspiracy by
mentioning that starting from the declaration of Bokingco, the victim’s wife, Elsa, also positively
declared that Col blocked and attacked her with a knife when she tried to check on her
husband. She was left alone by Col when he was told by Bokingco that the victim was already
dead. For the OSG, appellants’ acts are indicative of conspiracy. The OSG contends that the
prosecution witnesses had no ill-motive to lie and falsely accuse appellants of the crime of
murder.

The lower courts concluded that there was conspiracy between appellants.

We disagree.

This Court is well aware of the policy to accord proper deference to the factual findings of the
trial court, owing to their unique opportunity to observe the witnesses firsthand and note their
demeanor, conduct, and attitude under grueling examination.40 However, this rule admits of
exceptions, namely: 1) when the trial court’s findings of facts and conclusions are not supported
by the evidence on record, or 2) when certain facts of substance and value likely to change the
outcome of the case have been overlooked by the lower court, or 3) when the assailed decision
is based on a misapprehension of facts.41 The second exception obtains in this case.
Indeed, in order to convict Col as a principal by direct participation in the case before us, it is
necessary that conspiracy between him and Bokingco be proved. Conspiracy exists when two
or more persons come to an agreement to commit an unlawful act. It may be inferred from the
conduct of the accused before, during, and after the commission of the crime. Conspiracy may
be deduced from the mode and manner in which the offense was perpetrated or inferred from
the acts of the accused evincing a joint or common purpose and design, concerted action, and
community of interest.42 Unity of purpose and unity in the execution of the unlawful objective are
essential to establish the existence of conspiracy.43

As a rule, conspiracy must be established with the same quantum of proof as the crime itself
and must be shown as clearly as the commission of the crime.44

The finding of conspiracy was premised on Elsa’s testimony that appellants fled together after
killing her husband and the extrajudicial confession of Bokingco.

Nobody witnessed the commencement of the attack. Col was not seen at the apartment where
Pasion was being attacked by Bokingco. In fact, he was at Elsa’s house and allegedly ordering
her to open the pawnshop vault, thus:

Q: Do you remember any unusual incident that happened on that time and date when
you were in your master’s bedroom?

A: I heard a bumping sound (kalabog) at the back portion of our building where we
reside.

xxxx

Q: What did you do when you heard those sounds in the wee hours of the morning on
that day when you were in your master’s bedroom?

A: I wondered why and I immediately went down to the kitchen since the door of the
kitchen was directly leading to the back door or back portion of the building where the
apartments were situated.

Q: Why, on what floor is this master’s bedroom located?

A: Second floor.

Q: Were you actually able to go down and see what was happening?

A: Yes, sir, but I was only able to reach the stairs leading to the kitchen. I was not able to
go out of the kitchen because I was blocked.

Q: You were blocked by whom?

A: By Reynante Col.

Q: Are you referring to the same Reynante Col, the accused in this case?

A: Yes, sir.

xxxx

Q: You said you were blocked by Reynante Col. How did he block you?

A: As soon as I reached the stairs, I was blocked by Reynante Col and he was situated
near the back door of the pawnshop. There is a pawnshop in the front portion of our
residence.

Q: When you saw him near the door of your pawnshop, did you confront him?

A: Yes, sir.

Q: How did you confront him?

A: I asked him, Reynante, what are you doing here?

Q: What was the reaction of Reynante Col?

A: He ran towards me and sprayed something into my eyes and he put a sharp object
under my chin. (Witness demonstrating by putting her hand under her chin)

Q: How far was he before he attacked you?

A: Probably, from the witness stand up to the chair of Fiscal Hilario. Maybe two steps
away from him. (Around 3 meters)

Q: Were you able to identify what this spray is and what part of your body was hit?

A: My eyes were sprayed with tear gas.

Q: What did you feel when your eyes was (sic) sprayed with tear gas?

A: It was "mahapdi" (painful).

Q: When you felt pain in your eyes, how were you able to see something or a sharp
weapon under your chin?

A: Before he sprayed the tear gas to my eyes, I was able to see him poke the sharp
object under my chin and I bowed my head a little to avoid the tear gas. I was wounded
under my chin and I felt the sharpness of the object.45

xxxx

Q: What else happened while he was doing that to you?

A: He sprayed tear gas in my eyes and told me to be silent.

Q: What else, if any, did he tell you?

A: To open the combination of the vault.

Q: Did you comply to his order that you open the combination of the vault?

A: No, sir. I do not know the combination.

Q: What vault are you referring to?

A: Vault of the pawnshop.

Q: Where is that pawnshop located with reference to your residence?

A: At the first floor is the pawnshop and at the back is our kitchen.

Q: When you refused to open the vault of the pawnshop, what did Reynante Col do
about it?

A: He did not say anything.

Q: How about you, was there anything else you did?

A: I offered him money so he will not kill me.

Q: When you offered him money so he will not kill you, did he agree?

A: No, sir.

Q: What else happened next when he did not agree to your offer of money?

A: He dragged me going towards the back door.46

Based on these acts alone, it cannot be logically inferred that Col conspired with Bokingco in
killing Pasion. At the most, Col’s actuations can be equated to attempted robbery, which was
actually the initial information filed against appellants before it was amended, on motion of the
prosecution, for murder.47

Elsa testified that she heard Bokingco call out to Col that Pasion had been killed and that they
had to leave the place. This does not prove that they acted in concert towards the
consummation of the crime. It only proves, at best, that there were two crimes committed
simultaneously and they were united in their efforts to escape from the crimes they separately
committed.

Their acts did not reveal a unity of purpose that is to kill Pasion. Bokingco had already killed
Pasion even before he sought Col. Their moves were not coordinated because while Bokingco
was killing Pasion because of his pent-up anger, Col was attempting to rob the pawnshop. 1avv phi1

In as much as Bokingco’s extrajudicial confession is inadmissible against him, it is likewise

inadmissible against Col, specifically where he implicated the latter as a cohort. Under Section
28, Rule 130 of the Rules of Court, the rights of a party cannot be prejudiced by an act,
declaration or omission of another. Res inter alios acta alteri nocere non debet. Consequently,
an extrajudicial confession is binding only on the confessant, is not admissible against his or her
co-accused, and is considered as hearsay against them.48 An exception to the res inter alios
acta rule is an admission made by a conspirator. Section 30, Rule 130 of the Rules of Court
provides that the act or declaration of the conspirator relating to the conspiracy and during its
existence may be given in evidence against the co-conspirator provided that the conspiracy is
shown by evidence other than by such act or declaration.49 In order that the admission of a
conspirator may be received against his or her co-conspirators, it is necessary that first, the
conspiracy be first proved by evidence other than the admission itself; second, the admission
relates to the common object; and third, it has been made while the declarant was engaged in
carrying out the conspiracy.50 As we have previously discussed, we did not find any sufficient
evidence to establish the existence of conspiracy. Therefore, the extrajudicial confession has no
probative value and is inadmissible in evidence against Col.

Bokingco’s judicial admission exculpated Col because Bokingco admitted that he only attacked
Pasion after the latter hit him in the head.

All told, an acquittal for Col is in order because no sufficient evidence was adduced to implicate
him.

WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 00658 is REVERSED and SET ASIDE. Appellant Reynante Col is ACQUITTED on
ground of reasonable doubt. The Bureau of Corrections is ordered to cause the immediate
release of accused-appellant, unless he is being lawfully held for another cause, and to inform
this Court of action taken within ten (10) days from notice.

Appellant Michael Bokingco is found GUILTY beyond reasonable doubt of the crime of
Homicide. He is hereby sentenced to suffer the penalty of six years (6) and one (1) day of
prision mayor as minimum to 14 years, eight (8) months and one (1) day of reclusion temporal,
as maximum Appellant is further ordered to indemnify the heirs of Noli Pasion in the amount of
Seventy five thousand pesos (₱75,000.00); Fifty thousand pesos (₱50,000.00) as moral
damages; Twenty five thousand pesos (₱25,000.00) as temperate damages; Fifteen thousand
pesos (₱15,000.00) as attorney’s fees; and to pay the costs.

SO ORDERED.

FACTS:

For review is the Amended Decision dated 14 November 2008 of the Court of
Appeals in CA-G.R. CR-H.C. No. 00658, Bokingo and Col guilty as conspirators
beyond reasonable doubt of the crime of Murder and sentencing them to suffer
the penalty of reclusion perpetua. D

An Information was filed against Bokingo and Col, charging them of the crime
of murder wherein they “conspired together armed with a claw hammer and
with intent to kill by means of treachery, evident premeditation, abuse of
confidence, and nighttime, did then and there willfully, unlawfully and
feloniously attack, assault and maul NOLI PASION, by hitting and beating his
head and other parts of his body with said hammer, thereby inflicting upon said
NOLI PASION fatal wounds on his head and body which caused his death.”

During the preliminary investigation. Bokingco admitted that he conspired with

Col to kill Pasion and that they planned the killing several days before because
they got "fed up" with Pasion. On arraignment, Bokingco entered a guilty plea
while Col pleaded not guilty. During the pre-trial, Bokingco confessed to the
crime charged.

The trial court rendered judgment finding appellants guilty beyond reasonable
doubt of murder, there being the two aggravating circumstances of nighttime
and abuse of confidence to be considered against both accused and the
mitigating circumstance of voluntary plea of guilty in favor of accused Bokingo
only, sentencing them to Death.

The Court of appeals affirmed the decision of the trial court however lowering
the penalty to reclusion perpetua pursuant to RA 7659.

ISSUES:

Whether appellant Col is guilty beyond reasonable doubt as a co-conspirator

based on Bakingo’s admission that Col is a co-consiprator

HELD:

No. Col is hereby ACQUITTED beyond reasonable doubt.

In order to convict Col as a principal by direct participation in the case before

us, it is necessary that conspiracy between him and Bokingco be proved.
Conspiracy exists when two or more persons come to an agreement to commit
an unlawful act. It may be inferred from the conduct of the accused before,
during, and after the commission of the crime. Conspiracy may be deduced
from the mode and manner in which the offense was perpetrated or inferred
from the acts of the accused evincing a joint or common purpose and design,
concerted action, and community of interest. Unity of purpose and unity in the
execution of the unlawful objective are essential to establish the existence of
conspiracy.

Their acts did not reveal a unity of purpose that is to kill Pasion. Bokingco had
already killed Pasion even before he sought Col. Their moves were not
coordinated because while Bokingco was killing Pasion because of his pent-up
anger, Col was attempting to rob the pawnshop.

In order that the admission of a conspirator may be received against his or her
co-conspirators, it is necessary that first, the conspiracy be first proved by
evidence other than the admission itself; second, the admission relates to the
common object; and third, it has been made while the declarant was engaged
in carrying out the conspiracy. As we have previously discussed, we did not find
any sufficient evidence to establish the existence of conspiracy. It was during
the preliminary investigation that Bokingco mentioned his and Col’s plan to kill
Pasion. Bokingco’s confession was admittedly taken without the assistance of
counsel in violation of Section 12, Article III of the 1987 Constitution. Therefore,
the extrajudicial confession has no probative value and is inadmissible in
evidence against Col.

WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals is

REVERSED and SET ASIDE. Appellant Reynante Col is ACQUITTED on ground of
reasonable doubt.

Appellant Michael Bokingco is found GUILTY beyond reasonable doubt of the

crime of Homicide.