VOL. 240, JANUARY 25, 1995 541 *FIRST DIVISION.
542
People vs. Agustin
G.R. No. 110290. January 25, 1995. *
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs.JAIME “JIMMY” AGUSTIN, WILFREDO
“SONNY” QUIAÑO, MANUEL “JUN” ABENOJA, JR., and
FREDDIE “BOY” CARTEL, accused. JAIME “JIMMY”
AGUSTIN, accused-appellant.
Constitutional Law; Bill of Rights; Custodial
Investigation;Extrajudicial Confessions; Evidence; Words and
Phrases; “Confession” and “Admission,” Distinguished.—
Before we go any further, it should be pointed out that, contrary
to the pronouncement of the trial court and the characterization
given by the appellant himself, the assailed extrajudicial
statement is not an extrajudicial confession. It is only an
extrajudicial admission. We take this opportunity to once more
distinguish one from the other. Sections 26 and 33, Rule 30 of the
Rules of Court clearly show such a distinction. In a confession,
there is an acknowledgment of guilt. Admission is usually applied
in criminal cases to statements of fact by the accused which do
not directly involve an acknowledgment of guilt of the accused or
of the criminal intent to commit the offense with which he is
charged,
Same; Same; Same; Same; Same; Same; Same.—Wharton
defines a confession as follows: “A confession is an
acknowledgment in express terms, by a party in a criminal case,
of his guilt of the crime charged, while an admission is a
statement by the accused, direct or implied, of facts pertinent to
the issue, and tending, in connection with proof of other facts, to
prove his guilt. In other words, an admission is something less
than a confession, and is but an acknowledgment of some fact or
circumstance which in itself is insufficient to authorize a
conviction, and which tends only to establish the ultimate fact of
guilt.”
Same; Same; Same; Same; Same; Same; Same; When what is
involved is the issue of admissibility in evidence under Sec. 12,
Art. III of
_______________
5 SUPREME COURT REPORTS ANNOTATED
42
People vs. Agustin
the Constitution, the distinction between confession and
admission is irrelevant because Par. 3 thereof expressly refers to
both.—Wehave examined the assailed extrajudicial statement of
the appellant, and we are satisfied that nothing therein indicates
that he expressly acknowledged his guilt; he merely admitted
some facts or circumstances which in themselves are insufficient
to authorize a conviction and which can only tend to establish the
ultimate fact of guilt. Nevertheless, when what is involved is the
issue of admissibility in evidence under Section 12, Article III of
the Constitution, the distinction is irrelevant because Paragraph
3 thereof expressly refers to both confession and admission. Thus:
“(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.”
Same; Same; Same; Same; Same; Sec. 20, Art. IV of the 1973
Constitution compared with Sec. 12, Art. III of the 1987
Constitution.—The first two paragraphs of Section 12, Article III
of the present Constitution have broadened the aforesaid Section
20 in these respects: (1) the right to counsel means not just any
counsel, but a “competent and independent counsel, preferably of
his own choice”; (2) the right to remain silent and to counsel can
only be waived in writing and in the presence of counsel; and (3)
the rule on inadmissibility expressly includes admissions, not just
confessions.
Same; Same; Same; Same; Same; Right to be Informed; The
right to be informed carries with it the correlative obligation on
the part of the investigator to explain, and contemplates effective
communication which results in the subject understanding what is
conveyed.—The right to be informed of the right to remain silent
and to counsel contemplates “the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.” It is not enough
for the investigator to merely repeat to the person under
investigation the provisions of Section 20, Article IV of the 1973
Constitution or Section 12, Article III of the present Constitution;
the former must also explain the effects of such provision in
practical terms, e.g., what the person under investigation may or
may not do? and in a language the subject fairly understands. The
right to be informed carries with it a correlative obligation on the
part of the investigator to explain, and contemplates effective
communication which results in the subject understanding what
is conveyed. Since it is comprehension that is sought to be
attained, the degree of explanation required will necessarily vary
and depend on the education, intelligence, and other relevant
personal circumstances of the person undergoing the
investigation.
543
VOL. 240, JANUARY 25, 1995 54
3 grade, to read or decipher its contents. We have to rely solely on
People vs. Agustin
Same; Same; Same; Same; Same; Right to Counsel; The
counsel must be a lawyer.—In further ensuring the right to
counsel, it is not enough that the subject is informed of such right;
he should also be asked if he wants to avail of the same and
should be told that he can ask for counsel if he so desires or that
one will be provided him at his request. If he decides not to retain
counsel of his choice or avail of one to be provided for him and,
therefore, chooses to waive his right to counsel, such waiver, to be
valid and effective, must be made with the assistance of counsel.
That counsel must be a lawyer.
Same; Same; Same; Same; Same; Same; Even if the
confession of an accused speaks the truth, if it was made without
the assistance of counsel, it is inadmissible in evidence regardless
of the absence of coercion or even if it had been voluntarily
given.—The waiver of the right to counsel must be voluntary,
knowing, and intelligent. Consequently, even if the confession of
an accused speaks the truth, if it was made without the
assistance of counsel, it is inadmissible in evidence regardless of
the absence of coercion or even if it had been voluntarily given.
Same; Same; Same; Same; Same; Stenographic Notes; It
should be the transcript of stenographic notes containing the
alleged admissions of a suspect that should be subscribed and
sworn to, not the stenographic notes since the suspect cannot be
expected to read or decipher their contents.—The extrajudicial
admission of the appellant, contained in twenty-two pages of
yellow pad, does, indeed, appear to be signed by him and Atty.
Reynaldo Cajucom. What we find in these yellow pads are
stenographic notes. These were transcribed by the stenographer
who took down the stenographic notes, but for reasons not
explained in the records, the transcript of the notes (Exhibit “C”),
which consists of twelve pages, was not signed by the appellant
and Atty. Cajucom. Assuming that the transcript of the notes is a
faithful and accurate account, it is obvious that this was not
subscribed and sworn to by the appellant since it does not
indicate any jurat. Since we cannot even read or decipher the
stenographic notes in the yellow pads, we cannot expect the
appellant, who is a farmer and who reached only the fourth
the transcript and presume its accuracy. A perusal of the
transcript convinces us that the appellant was not given a fair
deal and was deprived of his rights under Section 12(1), Article
III of the Constitution. Firstly, he was not fully and properly
informed of his rights.
Same; Same; Same; Same; Same; Right to Counsel; Where
the fiscal immediately suggested the availability of a particular
counsel without first distinctly asking the suspect if he had a
counsel of his own
544
5 SUPREME COURT REPORTS ANNOTATED
44
People vs. Agustin
choice, and if he had one, whether he could hire such counsel,
or whether he would agree to have one provided for him, then such
counsel provided was foisted upon the suspect and not one who
was voluntarily and intelligently “accepted” by the suspect.—
Secondly, Atty. Cajucom can hardly be said to have been
voluntarily and intelligently “accepted” by the appellant as his
counsel to assist him in the investigation. Atty. Cajucom’s
presence in the Office of the City Fiscal at the time the appellant
was brought there for investigation is unclear to us. At least two
possibilities may explain it: it was a mere coincidence in the sense
that he happened to be attending to some professional matter, or
he was earlier called by the City Fiscal for the purpose of giving
free legal aid to the appellant, These possibilities are not remote
but whether it was one or the other, it is clear to us that Atty.
Cajucom was in fact foisted upon the appellant, for as shown in
the above-quoted portion of Exhibit “C,” the City Fiscal
immediately suggested the availability of Atty. Cajucom without
first distinctly asking the appellant if he had a counsel of his own
choice and if he had one, whether he could hire such counsel; and
if he could not, whether he would agree to have one provided for
him; or whether he would simply exercise his right to remain
silent and to counsel. In short, after the appellant said that he
wanted to be assisted by counsel, the City Fiscal, through
suggestive language, immediately informed him that Atty.
Cajucom was ready to assist him. While it is true that in custodial
investigations the party to be investigated has the final choice of
counsel and may reject the counsel chosen for him by the
investigator and ask for another one, the circumstances obtaining
in the custodial interrogation of the appellant left him no freedom
to intelligently and freely do so. For as earlier stated, he was not
even asked if he had a lawyer of his own choice and whether he
could afford to hire such lawyer; on the other hand, the City
Fiscal clearly suggested the availability of Atty. Cajucom.
Same; Same; Same; Same; Same; The presence during the
custodial investigation before the fiscal of military officers who
had earlier threatened the suspect with death vitiated the latter’s
free will.—Then too, present at that time were Capt. Antonio Ayat
and Sgt. Roberto Rambac, military officers of RUCI, who brought
him to the City Fiscal’s Office for investigation in the afternoon of
the day when he was unlawfully arrested in Sto. Tomas,
Pangasinan. Along Kennon Road, on the way to Baguio City, he
was coerced and threatened with death if he would not admit
knowing “Jun” and “Sonny” and his participation in the crime.
This testimony was unrebutted by the prosecution. The presence
of the military officers and the continuing fear that if he did not
cooperate, something would happen to him, was like a Damocles
sword which vitiated his free will.
545
VOL. 240, JANUARY 25, 1995 54
5 and Tagalog when he could only understand Ilocano.—Then we
People vs. Agustin
Same; Same; Same; Same; Same; Criminal Procedure; It is
not for a City Fiscal to conduct custodial investigations.—Why it
was the City Fiscal who had to conduct the custodial investigation
is beyond us. Nothing in the records shows that at that time the
criminal cases against the culprits had already been filed with the
City Fiscal’s Office for preliminary investigation and had,
therefore, ceased to be a police matter. If they had been so filed,
then the City Fiscal should have followed the usual course of
procedure in preliminary investigations. It appears, however,
from the informations in Criminal Cases Nos. 4647R and 4648-R
that it was Assistant City Fiscal Octavio M. Banta who conducted
the preliminary investigation and who prepared, signed, and
certified the informations. City Fiscal Balajadia merely approved
them and administered the jurat in the certification. The
conclusion then is inevitable that he did not conduct the
preliminary investigation.
Same; Same; Same; Same; Same; Right to Counsel; A counsel
appointed to assist a suspect must be an independent counsel, and
he could not be one where he is an associate of the private
prosecutor in the same case.—Even assuming for the sake of
argument that the appellant voluntarily agreed to be assisted by
Atty. Cajucom, we doubt it very much if he was
an independentcounsel. While we wish to give him the benefit of
the doubt because he is an officer of the court upon whose
shoulders lies the responsibility to see to it that protection be
accorded the appellant and that no injustice be committed to him,
and. moreover, he generally has in his favor the presumption of
regularity in the performance of his duties, there are special
circumstances in these cases which convince us that he was
unable to assist the appellant in a satisfactory manner. For one,
he admitted on cross-examination that at that time, and even
until the time he took the witness stand, he was an associate of
the private prosecutor, Atty. Arthur Galace, in these and the
companion cases.
Same; Same; Same; Same; Same; Same; Right to be
Informed; It is doubtful for a suspect to have understood his
constitutional rights if he was informed of the same in English
have misgivings on whether Atty. Cajucom was in fact understood
by the appellant when the former informed the appellant of his
constitutional rights in English and Tagalog considering that the
appellant, a fourth grader and a farmer, could only understand
Ilocano.
Same; Same; Same; Same; Same; Same; Same; It is error for
the counsel to impress upon the suspect that he was only a witness,
not an accused.—lt appears to us that Atty. Cajucom did not
actually impress
546
5 SUPREME COURT REPORTS ANNOTATED
46
People vs. Agustin
upon the appellant that he was one of the accused; rather,
Atty. Cajucom made the appellant believe that he was only a
witness.
Same; Same; Same; Same; Same; Same; Same; Same; Arrests
and Seizures; No arrest without a warrant could have been legally
and validly effected five months after the commission of the crime,
and the counsel should have forthwith taken the appropriate
measures for the immediate release of the suspect instead of
allowing the City Fiscal to investigate him.—Finally, Atty.
Cajucom knew, as admitted by him on cross-examination, that
the appellant was picked up on 10 February 1987 by military men
in Pangasinan without a warrant for his arrest. Since the crimes
with which the appellant was charged were allegedly committed
on 6 September 1986 or more than five months earlier, no arrest
without a warrant could have been legally and validly effected. A
warrantless arrest should comply with the conditions prescribed
in Section 5, Rule 113 of the Rules of Court. Atty. Cajucom knew
or ought to have known that the arrest was unlawful. If he were
then truly moved by his duty to fully assist the appellant, he
should have forthwith taken the appropriate measures for the
immediate release of the appellant instead of allowing the City
Fiscal to investigate him. Needless to say, the conduct of Atty.
Cajucom under the circumstances only strengthen our belief that
the appellant had all the cards stacked against him.
APPEAL from a decision of the Regional Trial Court of
Baguio City, Br. 3.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
DAVIDE, JR., J.:
In five separate informations filed on 22 May 1987 with the
Regional Trial Court (RTC), Branch 3, Baguio City, the
accused were charged with murder in Criminal Cases Nos.
4647-R and 4648-R, with frustrated murder in Criminal
Case No. 4649-R, and with attempted murder in Criminal
Cases Nos. 4650-R and 4651-R. The crimes were allegedly
committed on 6 September 1986 in Baguio City and resulted
in the deaths of Dr. Napoleon Bayquen and Anna Theresa
Francisco and the wounding of Anthony Bayquen, Dominic
Bayquen, and Danny Ancheta.
547
VOL. 240, JANUARY 25, 1995 547
People vs. Agustin
The informations in the murder cases charged that the
accused acted in conspiracy and alleged the presence of the
qualifying circumstance of treachery and the ordinary
aggravating circumstances of evident premeditation and
price.
1
Only the appellant and Wilfredo Quiaño were arrested.
However, before Quiaño could be arraigned, he escaped on
12 July 1987 while under the custody of the Philippine
Constabulary/ PNP Regional Command I at Camp Dangwa,
La Trinidad, Benguet. The cases, which were consolidated
2
and jointly tried, proceeded only against the appellant.
After the appellant pleaded not guilty at his arraignment
on 4 September 1987, trial on the merits was held on
various dates from 11 May 1988 until 10 January 1990.
On 30 May 1990, the trial court promulgated its
decision in the consolidated cases acquitting the appellant
3
in Criminal Case No. 4649-R (frustrated murder) and
Criminal Cases Nos. 4650-R and 4651-R (attempted
murder) for insufficiency of evidence but convicting him in
the two murder cases, Criminal Cases Nos. 4647-R and
4648-R, with treachery as the qualifying circumstance. It
also ruled that the aggravating circumstances of evident
premeditation and price had been duly established. It then
sentenced the appellant as follows:
“Upon these premises, the accused Jaime Agustin is found
GUILTY of two (2) counts of murder, the prosecution having
proven his guilt beyond reasonable doubt. In each of the criminal
cases aforesaid, he should be sentenced to the maximum penalty
of Death, there being two aggravating circumstances. However,
since the death penalty is not imposable at this time, the accused
is sentenced to Reclusion Perpetua. He is further ordered to
indemnify the heirs of the victims; Anna Theresa Francisco the
sum of Sixty Three Thousand Pesos (P63,000.00) as actual
damages (Exhibits “F,” “I” and “G”); and Dr. Napoleon Bayquen,
the sum of Thirty Thousand Pesos (P30,000.00).
_______________
1 Original Records (OR), Criminal Case No. 4647-R, 1–2; Id., Criminal Case
No. 4648-R, 1–2. The records of the three other cases were not anymore
forwarded to this Court in view of the acquittal therein of the appellant.
2 Id., Criminal Case No. 4647-R, 33.
3 ld., 406–416; Rollo, 25–35. Per Judge Marcelino F. Bautista, Jr.
4 Id., 415; Id., 34.
548
548 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
With costs against the accused, Jaime Agustin.
SO ORDERED.” 5
The version of the prosecution is based on the testimonies of
(1) Isidoro Magpantay, a member of the Baguio City Police
Force, who identified the initial report (Exhibit “A”); (2)
Christie Napeñas, a stenographic reporter in the Office of
the City Fiscal of Baguio City, who took down the
stenographic notes of City Fiscal Erdolfo Balajadia’s
investigations of accused Wilfredo Quiaño (Exhibit “D”) on
30 January 1987 and of the appellant on 10 February 1987,
and who identified her stenographic notes containing the
statement of the appellant (Exhibit “B”) and the transcript
of said stenographic notes (Exhibit “C”); (3) Dominic
4 Bayquen, the victim in Criminal Case No. 4650-R, who
testified on the shooting incident; (4) Danny Ancheta, the
victim in Criminal Case No. 4651-R, who testified on how
they were shot; (5) Eulogio Francisco, the father of Anna
Theresa Francisco, who identified her death certificate
(Exhibit “I”) and testified on the list of expenses (Exhibit
“G”); (6) Rogelio Mumar, a supervising ballistics expert, who
declared that the fourteen shells recovered from the scene of
the crime were not fired from any of the three armalite rifles
submitted to him; (7) Atty. Reynaldo Cajucom, who testified
that he was the lawyer who assisted the appellant and
accused Wilfredo Quiaño while they were being investigated
by City Fiscal Balajadia; and (8) Lilian San Luis Bayquen,
wife of Dr. Napoleon Bayquen and mother of Dominic
Bayquen, who testified on what she did after Dominic
informed her by telephone about the shooting incident
The evidence for the prosecution established the
following facts. At past 7:30 p.m. of 6 September 1986 in
Baguio City, Dr. Napoleon Bayquen, a dentist, together with
his son, Anthony; Anthony’s girlfriend, Anna Theresa
Francisco; his daughter, Dominic; and Danny Ancheta, a
family friend, were on their way aboard their Brasilia to the
doctor’s residence at Trancoville at 21-D Malvar Street,
Baguio City, from his clinic at Hamada Building along
Mabini Street. Anthony was driving the car. While they
were cruising along Malvar Street and nearing the Baptist
Church, a man came out from the right side of a car
_______________
5OR, Criminal Case No. 4647-R, 415–416; Rollo, 34–35.
549
VOL. 240, JANUARY 25, 1995 549
People vs. Agustin
parked about two meters to the church. The man
approached the Brasilia, aimed his armalite rifle through its
window, and fired at the passengers. The Brasilia swerved
and hit a fence. The gunman immediately returned to the
parked car which then sped away.
All those in the car were hit and Dr. Bayquen and Anna
Theresa died on the spot. Dr. Bayquen’s head was blown off.
Dominic was able to get out of the Brasilia to run to the
Alabanza store where she telephoned her mother and told
her what had happened. Later, she and her mother brought
her father and Anthony to the hospital. Danny Ancheta
6
went home and was then brought to the Notre Dame
Hospital for treatment. Anna Theresa Francisco was
7
brought to the funeral parlor. The police later arrived at the
8
crime scene and conducted an investigation. They recovered
some empty shells of an armalite rifle.9
On 30 January 1987, accused Wilfredo “Sonny” Quiaño,
an alleged former military agent or “asset” who had been
picked up in La Union by the police authorities, confessed
during the investigation conducted by Baguio City Fiscal
Erdolfo Balajadia in his office that he was the triggerman in
the fatal shooting of Dr. Bayquen and Anna Theresa
Francisco. He implicated Manuel “Jun” Abenoja, Jr.,
allegedly a fellow military agent and the “bagman” who
engaged him to kill Dr. Bayquen for a fee, Freddie “Boy”
Cartel, who provided the armalite, and a certain “Jimmy.”
During the investigation, Wilfredo Quiaño was assisted by
Atty. Reynaldo Cajucom, a representative of the Integrated
Bar of the Philippines (IBP). Ms. Christie Napeñas, a
stenographic reporter in the Office of Fiscal Balajadia, took
down stenographic notes of the proceedings during the
investigation. Thereafter, she transcribed the notes and the
10
transcription became the sworn statement of Wilfredo
Quiaño which he signed, with the assistance of Atty.
Cajucom, and swore to before City Fiscal Balajadia. 11
_______________
6 TSN, 11 May 1988, 23–24.
TSN, 12 May 1988, 7–10.
7
8 TSN, 20 May 1988, 3–4.
9 Police Report, Exhibit “A,” OR, 96–97; TSN, 11 May 1988, 3–11.
10 TSN, 11 May 1988,14–18.
11 Exhibit “D,” OR, 131–142.
550
550 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
In the morning of 10 February 1987, “Jimmy,” who turned
out to be appellant Jaime Agustin, was picked up in Sto.
Tomas, Pangasinan, by military personnel and brought to
Baguio City. At 4:00 p.m. of that date, he was taken to the
office of City Fiscal Erdolfo Balajadia where he was
investigated in connection with the crime. Atty. Reynaldo
Cajucom assisted the appellant during the investigation.
Ms. Christie Napeñas took down stenographic notes of the
proceedings during the investigation. The stenographic
notes consisted of 22 pages (Exhibit “B”), each of which was
signed afterwards by the appellant and Atty. Cajucom. Ms.
Napeñas subsequently transcribed these notes which the
prosecution marked as Exhibit “C.” The appellant narrated
therein his knowledge of the shooting of Dr. Bayquen and
revealed the identities of his cohorts in the crime. In a
confrontation two days later, he identified Quiaño as
“Sonny,” the triggerman.
The defense presented the appellant and his wife,
Elizabeth Agustin. The appellant, who is a farmer and
whose highest educational attainment was grade four,
impugned the validity of his extrajudicial statement. He
alleged that in the morning of 10 February 1987, he went to
Carmen, Pangasinan, to buy some fertilizer and upon his
return he was met by two armed men who took him to their
car where two other companions, armed with armalites,
were waiting. They then brought him out of Pangasinan. He
later learned that they were on their way to Baguio City.
 Inside the car, he was asked if he knew Boy and Jun,and
he answered that he did not. Along Kennon Road, he was
made to stoop down at the back seat whenever they would
reach a toll booth, and then brought out three times near
the ravines and made to kneel at gunpoint in order to force
him to admit his involvement in the shooting, which he
finally did out of fear. Then he was brought to the Office of
the City Fiscal of Baguio City.
While he was giving his statement at the fiscal’s office,
the armed men stayed with him and their presence deterred
him from telling the investigating fiscal that he was being
threatened. He further declared that although he was given
a lawyer, Atty. Reynaldo Cajucom, to assist him, he,
nevertheless, asked for his uncle who is a lawyer, Atty.
Oliver Tabin, and that Atty. Cajucom interviewed him for
only two minutes in English and
551
VOL. 240, JANUARY 25, 1995 551
People vs. Agustin
Tagalog but not in Ilocano, the dialect he understands. Then
later, at Camp Dangwa to where he was taken, he told his
wife to get in touch and talk with Atty. Tabin. Finally, he
asserted that he was promised by his captors that he would
be discharged as a state witness if he cooperates, but the
plan did not push through because his co-accused, Quiaño,
escaped.12
Elizabeth Agustin corroborated her husband’s story that
he went to Carmen in the morning of 10 February 1987 to
buy some fertilizer and that he failed to return. Her efforts
to locate him proved futile until days later when she finally
learned that he was detained at Camp Dangwa. 13
The trial court admitted the appellant’s extrajudicial
statement and gave scant consideration to his claim of force,
intimidation, and other irregularities because of the
following reasons: (a) the presence of material
improbabilities in his tale of when and how he was allegedly
taken at gunpoint from his hometown in Pangasinan; (b) it
was improbable that he was made to kneel thrice at
gunpoint along Kennon Road considering the vehicles which
were passing along that road; (c) it was unbelievable that
when he was in the Fiscal’s Office he asked for his uncle,
Atty. Tabin, considering that when he met his wife in Camp
Dangwa, he told her to talk to Atty. Tabin if he could not go
home for a period of one month; (d) no less than the City
Fiscal of Baguio City interrogated him and yet he did not
tell the fiscal that he was being forced to give a statement;
(e) the fiscal even provided him with a lawyer who conferred
with him and apprised him of his rights; (f) he signed each
and every page of the stenographic notes of his statement
and this was witnessed by no less than the City Fiscal of
Baguio and the lawyer who assisted him; and (g) he
disclosed in his statement that he voluntarily gave it
because of his ill feeling against his co-accused who did not
give him any money.
The trial court then concluded that “[t]here was
conspiracy and the accused was a direct participant in the
crime,” and that while he tried to minimize his culpability,
his “extrajudicial
_______________
TSN, 11 May 1989, 3–16; 10 January 1990, 2–23; 10 April 1989, 2–12
12
TSN, 10 April 1989, 3–4, 9.
13
552
552 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
confession” shows that “he was in on the plan,” and even
“expected to be paid, to be rewarded monetarily”; and that
he “decided to give a statement only when he was not given
the money.” Since the proof of corpus delicti required in
Section 3, Rule 133 of the Rules of Court was established by
the prosecution’s evidence, it found his conviction for
murder inevitable.
 The appellant filed a notice of appeal. In his brief, he VOL. 240, JANUARY 25, 1995 553
imputes upon the trial court the commission of this lone People vs. Agustin
error: After a careful study of the records of Criminal Cases Nos.
“THE COURT A QUO COMMITTED A REVERSIBLE ERROR 4647-R and 4648-R and a painstaking evaluation of the
IN CONSIDERING ACCUSED-APPELLANT’S evidence, we find this appeal to be impressed with merit.
EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE Indeed, the extrajudicial admission—not extrajudicial
AGAINST HIM.”
confession—of the appellant, which is the only evidence of
14

The appellant insists that his extrajudicial confession was

the prosecution linking him to the commission of the crime
taken in violation of his rights under Section 11, Article III
charged, is wholly inadmissible because it was taken in
of the Constitution. He argues that the lawyer who assisted
violation of Section 12, Article III of the Constitution. We
him, Atty. Reynaldo Cajucom, was not of his own choice but
also see in these cases a blatant disregard of the appellant’s
was foisted upon him by the City Fiscal. Worse, the said
right under Section 2 of Article III when he was unlawfully
lawyer is a law partner of the private prosecutor, Atty.
arrested.
Arthur Galace, and conferred with him in English and
Before we go any further, it should be pointed out that,
Tagalog although he understood only Ilocano. Moreover,
contrary to the pronouncement of the trial court and the
when Atty. Cajucom briefly conferred with him and when
characterization given by the appellant himself, the assailed
the City Fiscal interrogated him, his military escorts were
extrajudicial statement is not an extrajudicial confession. It
present.
is only an extrajudicial admission. We take this opportunity
He stresses that the lawyer “who assists the suspect
to once more distinguish one from the other. Sections 26 and
under custodial interrogation should be of the latter’s
33, Rule 30 of the Rules of Court clearly show such a
18

choice, not one foisted on him by the police investigator or

distinction.
other parties,” and that where there are serious doubts on
In a confession, there is an acknowledgment of guilt.
15

the voluntariness of the extrajudicial confession, the doubts

Admission is usually applied in criminal cases to statements
must be resolved in favor of the accused. He then concludes
of fact by the accused which do not directly involve an
16

that his extrajudicial confession is inadmissible and his

acknowledgment of guilt of the accused or of the criminal
conviction cannot stand, there being no other evidence
intent to commit the offense with which he is
linking him to the crimes charged.
charged. Wharton defines a confession as follows:
19 20

In its brief, the appellee, reiterating the reasons of the

17
“A confession is an acknowledgment in express terms, by a party
trial court in upholding the validity of the confession, prays in a criminal case, of his guilt of the crime charged, while an
for the affirmance of the appealed decision. admission
_______________ _______________

14 Rollo, 51. 18 These sections provide:

15 Citing People vs. Jimenez, 204 SCRA 719 [1991]. “SEC. 26. Admission of a party.—The act, declaration or omission of a party as to a
16 Citing People vs. Solis, 182 SCRA 182 [1990]. relevant fact may be given in evidence against him.
17 Rollo, 92.
xxx
553
 SEC. 33. Confession.—The declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein, may be given in evidence
against him.”
U.S. vs. Corrales, 28 Phil. 362 [1914].
19
2 Wharton’s Criminal Evidence § 337 (12th ed. 1955). See also 2
20
Underhill’s Criminal Evidence § 385 (5th ed. 1956); 3 Wigmore on Evidence §
821 (3rd ed. 1940).
554
554 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
is a statement by the accused, direct or implied, of facts pertinent
to the issue, and tending, in connection with proof of other facts,
to prove his guilt. In other words, an admission is something less
than a confession, and is but an acknowledgment of some fact or
circumstance which in itself is insufficient to authorize a
conviction, and which tends only to establish the ultimate fact of
guilt.”
We have examined the assailed extrajudicial statement of
the appellant, and we are satisfied that nothing therein
indicates that he expressly acknowledged his guilt; he
merely admitted some facts or circumstances which in
themselves are insufficient to authorize a conviction and
which can only tend to establish the ultimate fact of guilt.
Nevertheless, when what is involved is the issue of
admissibility in evidence under Section 12, Article III of the
Constitution, the distinction is irrelevant because
Paragraph 3 thereof expressly refers to both confession and
admission. Thus:
“(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.”
The first two paragraphs of Section 12 read:
“SEC. 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.”
These first and second paragraphs are taken from Section
20, Article IV (Bill of Rights) of the 1973 Constitution which
read:
“SEC. 20. No person shall be compelled to be a witness against
himself. Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and
to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will shall
be used against him. Any confession obtained in violation of this
section shall be inadmissible in
555
VOL. 240, JANUARY 25, 1995 555
People vs. Agustin
evidence.”
The first two paragraphs of Section 12, Article III of the
present Constitution have broadened the aforesaid Section
20 in these respects: (1) the right to counsel means not just
any counsel, but a”competent and independent counsel,
preferably of his own choice”; (2) the right to remain silent
and to counsel can only be waived in writing and in the
presence of counsel; and (3) the rule on inadmissibility
expressly includes admissions, not just confessions.
In Morales vs. Enrile, this Court, applying Section 20,
21
Article IV of the 1973 Constitution, laid down the duties of
an investigator during custodial investigation and ruled
that the waiver of the right to .counsel would not be valid
unless made with the assistance of counsel:
“At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed
of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him.
The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient
means—by telephone if possible—or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that
this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down,
whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.”
We reiterated the above ruling in People vs. Galit, People 22
vs. Lumayok, People 23 vs. Albofera, People 24 vs.
Marquez, People vs.
25
_______________
121 SCRA 538 [1983].
21
22 135 SCRA 465 [1985].
23 139 SCRA 1 [1985].
24 152 SCRA 123 [1987].
25 153 SCRA 700 [1987].
556
556 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
Penillos, and People vs. Basay, among other cases.
26 27
The right to be informed of the right to remain silent and
to counsel contemplates “the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.” It is not
28
enough for the investigator to merely repeat to the person
under investigation the provisions of Section 20, Article IV
of the 1973 Constitution or Section 12, Article III of the
present Constitution; the former must also explain the
effects of such provision in practical terms, e.g., what the
person under investigation may or may not do, and in a
language the subject fairly understands. The right to be
informed carries with it a correlative obligation on the part
of the investigator to explain, and contemplates effective
communication which results in the subject understanding
what is conveyed. Since it is comprehension that is sought to
be attained, the degree of explanation required will
necessarily vary and depend on the education, intelligence,
and other relevant personal circumstances of the person
undergoing the investigation.
In further ensuring the right to counsel, it is not enough
that the subject is informed of such right; he should also be
asked if he wants to avail of the same and should be told
that he can ask for counsel if he so desires or that one will
be provided him at his request. If he decides not to retain
counsel of his choice or avail of one to be provided for him
and, therefore, chooses to waive his right to counsel, such
waiver, to be valid and effective, must be made with the
assistance of counsel. That counsel must be a lawyer. 29
The waiver of the right to counsel must be voluntary,
knowing, and intelligent. Consequently, even if the
30
confession of an
_______________
26 205 SCRA 546 [1992].
27 219 SCRA 404 [1993].
28 People vs. Nicandro, 141 SCRA 289 [1986]. See People vs. Duhan, 142
SCRA 100 [1986]; People vs. Albofera, supra at note 24, People vs.
Canela, 208 SCRA 842 [1992]; People vs. Basay, supra at note 27.
29 People vs. Basay, supra at note 27, citing People vs. Pecardal, 145
SCRA 647 [1986]; People vs. Lasac, 148 SCRA 624 [1987]; People vs.
Decierdo, 149 SCRA 496 [1987].
30 People vs. Nolasco, 163 SCRA 623 [1988].
557
VOL. 240, JANUARY 25, 1995 557
People vs. Agustin
accused speaks the truth, if it was made without the
assistance of counsel, it is inadmissible in evidence
regardless of the absence of coercion or even if it had been
voluntarily given. 31
The extrajudicial admission of the appellant, contained 32
in twenty-two pages of yellow pad, does, indeed, appear to
be signed by him and Atty. Reynaldo Cajucom. What we
find in these yellow pads are stenographic notes. These were
transcribed by the stenographer who took down the
stenographic notes, but for reasons not explained in the
records, the transcript of the notes (Exhibit “C”), which
consists of twelve pages, was not signed by the appellant
33
and Atty. Cajucom. Assuming that the transcript of the
notes is a faithful and accurate account, it is obvious that
this was not subscribed and sworn to by the appellant since
it does not indicate any jurat. On the other hand, the same
stenographic reporter, who took down the stenographic
notes when accused Wilfredo Quiaño was being investigated
by City Fiscal Balajadia, transcribed the notes, and the
transcription was subscribed and sworn to by the accused
34
before City Fiscal Balajadia and also signed by Atty.
Cajucom, who represented the accused in the investigation.
Since we cannot even read or decipher the stenographic
notes in the yellow pads, we cannot expect the appellant,
who is a farmer and who reached only the fourth grade, to
read or decipher its contents. We have to rely solely on the
transcript and presume its accuracy. A perusal of the
transcript convinces us that the appellant was not given a
fair deal and was deprived of his rights under Section 12(1),
Article III of the Constitution. Firstly, he was not fully and
properly informed of his rights. The transcript (Exhibit “C”)
shows the following preliminary questions of the City Fiscal
and the answers of the appellant:
“01. QUESTION—Mr. Jaime Agustin, I am informing you that
you are under investigation in connection with the death of Dr.
Nap Bayquen of which you are one of the principal
_______________
31 People vs. Repe, 175 SCRA 422 [1989]; People vs. Estevan, 186 SCRA
34[1990]; People vs. Javar, 226 SCRA 103 [1993].
32 Exhibit “B” and sub-markings; OR, 98–118a.
33 OR, 119–130.
34 Exhibit “D”; Id., 131–132.
558
558 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
suspects. I am informing you of your constitutional rights before
you give any statement. First, you have the right to remain silent
meaning, you may give a statement or you may not give any
statement. If you will not give a statement, you will not be forced
to do so, do you understand this right?
ANSWER—I understand, sir.
02. Q—If you will give a statement, you have the right to be
assisted by a lawyer of your own choice, if you cannot afford to
secure the services of a lawyer the government will provide a
lawyer for you, do you understand this right?
A—I understand, sir. . 03. Q—Now, do you want to be assisted by
a lawyer?
A—Yes, sir.
04. Q—I am now informing you that a lawyer in the person of
Atty. Reynaldo Cajucom is now present in this investigation
room, do you wish to avail of his assistance in connection with
this investigation?
A—I want, sir.
05. Q—I am also informing you that whatever you say in this
investigation can be used as evidence in your favor and it can
also be used as evidence against you in any criminal or civil
case, do you understand that?
A—Yes, sir, I understand.
06. Q—After informing you of your constitutional rights, are you
now willing to give a statement?
A—Yes, sir, I agree.
Investigator—Atty. Reynaldo Cajucom, the witness or respondent
Jaime Agustin has chosen you to give him assistance in this
investigation, are you willing to assist him? Answer—I am
willing, Fiscal, to assist the witness.
Investigator—Have you conferred with him before he will give his
statement?
Answer—Yes, fiscal.
Investigator—Have you appraised [sic] him of his constitutional
rights?
Answer—Yes, fiscal.
Investigator—Do you know after examining him whether or not
he is giving a free and voluntary statement of his own volition
without any intimidation or force exerted on him?
A—As stated by him, fiscal, he is willing to give a free and
voluntary statement in relation to what really happened.”
559
VOL. 240, JANUARY 25, 1995 559
People vs. Agustin
lt is at once observed that the appellant was not explicitly
told of his right to have a competent and independentcounsel
of his choice, specifically asked if he had in mind any such
counsel and, if so, whether he could afford to hire his
services, and, if he could not, whether he would agree to be
assisted by one to be provided for him. He was not
categorically informed that he could waive his rights to
remain silent and to counsel and that this waiver must be in
writing and in the presence of his counsel. He had, in fact,
waived his right to remain silent by agreeing to be
investigated. Yet, no written waiver of such right appears in
the transcript and no other independent evidence was
offered to prove its existence.
Secondly, Atty. Cajucom can hardly be said to have been
voluntarily and intelligently “accepted” by the appellant as
his counsel to assist him in the investigation. Atty.
Cajucom’s presence in the Office of the City Fiscal at the
time the appellant was brought there for investigation is
unclear to us. At least two possibilities may explain it: it
was a mere coincidence in the sense that he happened to be
attending to some professional matter, or he was earlier
called by the City Fiscal for the purpose of giving free legal
aid to the appellant. These possibilities are not remote but
whether it was one or the other, it is clear to us that Atty.
Cajucom was in fact foisted upon the appellant, for as shown
in the above-quoted portion of Exhibit “C,” the City Fiscal
immediately suggested the availability of Atty. Cajucom
without first distinctly asking the appellant if he had a
counsel of his own choice and if he had one, whether he
could hire such counsel; and if he could not, whether he
would agree to have one provided for him; or whether he
would simply exercise his right to remain silent and to
counsel. In short, after the appellant said that he wanted to
be assisted by counsel, the City Fiscal, through suggestive
language, immediately informed him that Atty. Cajucom
was ready to assist him.
While it is true that in custodial investigations the party
to be investigated has the final choice of counsel and may
reject the counsel chosen for him by the investigator and ask
for another one, the circumstances obtaining in the
35
custodial interrogation
_______________
35 People vs. Parojinog, 203 SCRA 673 [1991]; People vs. Baello, 224
SCRA 218 [1993].
560
560 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
of the appellant left him no freedom to intelligently and
freely do so. For as earlier stated, he was not even asked if
he had a lawyer of his own choice and whether he could
afford to hire such lawyer; on the other hand, the City Fiscal
clearly suggested the availability of Atty. Cajucom. Then
too, present at that time were Capt. Antonio Ayat and Sgt.
Roberto Rambac, military officers of RUC I, who brought
him to the City Fiscal’s Office for investigation in the
afternoon of the day when he was unlawfully arrested in
Sto. Tomas, Pangasinan. Along Kennon Road, on the way to
Baguio City, he was coerced and threatened with death if he
would not admit knowing “Jun” and “Sonny and his
participation in the crime. This testimony was unrebutted
by the prosecution. The presence of the military officers and
the continuing fear that if he did not cooperate, something
would happen to him, was like a Damocles sword which
vitiated his free will.
Why it was the City Fiscal who had to conduct the
custodial investigation is beyond us. Nothing in the records
shows that at that time the criminal cases against the
culprits had already been filed with the City Fiscal’s Office
for preliminary investigation and had, therefore, ceased to
be a police matter. If they had been so filed, then the City
Fiscal should have followed the usual course of procedure in
preliminary investigations. It appears, however, from the
informations in Criminal Cases Nos. 4647-R and 4648-R
that it was Assistant City Fiscal Octavio M. Banta who
conducted the preliminary investigation and who prepared,
signed, and certified the informations. City Fiscal Balajadia
merely approved them and administered the jurat in the
certification. The conclusion then is inevitable that he did
not conduct the preliminary investigation.
Even assuming for the sake of argument that the
appellant voluntarily agreed to be assisted by Atty.
Cajucom, we doubt it very much if he was
an independentcounsel. While we wish to give him the
benefit of the doubt because he is an officer of the court
upon whose shoulders lies the responsibility to see to it that
protection be accorded the appellant and that no injustice be
committed to him, and, moreover, he generally has in his
36
favor
_______________
36People vs. Alvarez, 201 SCRA 364 [1991]; People vs. Pinzon, 206 SCRA
93 [1992]; People vs. Remollo, 227 SCRA 375 [1993].
561
VOL. 240, JANUARY 25, 1995
People vs. Agustin
the presumption of regularity in the performance of his
duties, there are special circumstances in these cases which
37
convince us that he was unable to assist the appellant in a
satisfactory manner. For one, he admitted on cross-
examination that at that time, and even until the time he
took the witness stand, he was an associate of the private
prosecutor, Atty. Arthur Galace, in these and the companion
cases. Thus:
“q Mr. Witness, at the time you assisted the accused you belonged to the
office of Atty. Galace, you were an associate at the time when you
assisted the accused?
a I was represented [sic] then as IBP Legal Aid.
q The question is not answered, we are only requesting him if he was
an associate of Atty. Galace up to the present?
a Yes.”38
Then we have misgivings on whether Atty. Cajucom was in
fact understood by the appellant when the former informed
the appellant of his constitutional rights in English and
Tagalog considering that the appellant, a fourth grader and
a farmer, could only understand Ilocano. Thus: .
“ATTY. TABIN:
So in other words when you appraised [sic] him of his constitutional
rights using English Language and Tagalog Dialect you did not have
any llocano dialect lnterpreter. . . .
xxx
WITNESS:
As far as I can remember, I explained it in Tagalog and English.” 39
And when asked whether he was sure if the appellant
understood him, Atty. Cajucom merely answered: “a At least
I put out everything as far as I could give to him to appraise
[sic] him of his constitutional rights.” 40
_______________
37 People vs. Barlis, 231 SCRA 428 [1994].
561 38 TSN, 19 July 1988, 17.
39 TSN, 19 July 1988, 12.
40 Id.
562
562 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
Then too, even if he were fully understood by the appellant,
we are not satisfied that his explanations were adequate.
On direct examination, he gave the following answers:
“q—Did you explain the constitutional rights of the accused to
caution him. of the consequences of his statement?
a—I explained to him that he has the right to remain silent, to
confront in person the witnesses against him and that he has the
right to choose a counsel to assist him in the hearing of the case
which was being investigated then.
q—And what was his reply regarding the consequences of this
statement?
a—He told me that he is willing to give a truthful statement
and in order to shed light.” 41
It appears to us that Atty. Cajucom did not actually impress
upon the appellant that he was one of the accused; rather,
Atty. Cajucom made the appellant believe that he was only
a witness. Thus:
“q [by the prosecutor]
—But, nevertheless, you gave the precautionary measure
entitled to any witness?
a—Yes, sir.
q—Why do you say that it was given voluntarily?
a—Before presenting him to the investigation we were given
time to talk personally without any other people and that was the
time that I explained to him all his rights and
consequences pertaining to him as witness to this case.”
42
On cross-examination, Atty. Cajucom also declared:
“ATTY. TABIN:
That is why I am requesting him how he explained in that language,
Your Honor.
WITNESS:
I told him that this is a grave case which he would be giving some
narrations as a witness and his involvement would mean the most
grievous offense and if found guilty will
_______________
41 TSN, 19 July 1988, 9.
42 Id. (Emphasis supplied).
563
VOL. 240, 563
JANUARY
25, 1995
People vs. Agustin
bring him for some years in jail and I told him that I
could help him if he will be presenting the truth and if he
is innocent,.and the only thing he would narrate is the
truth. This is in combination, English and Tagalog, and
most of the time, I made it in Tagalog.”43
Moreover, considering that the appellant is familiar
only.with.: Ilocano, the Court has serious doubts about his
ability to understand Atty. Cajucom’s explanation of his
constitutional rights since Atty. Cajucom did so in English
and Tagalog. Finally, Atty. Cajucom knew, as admitted by
him on crossexamination, that the appellant was picked up
on 10 February 1987 by military men in Pangasinan
without a warrant for his arrest. Since the crimes with
44
which the appellant was charged were allegedly committed
on 6 September 1986 or more than five months earlier, no
arrest without a warrant could have been legally and validly
effected. A warrantless arrest should comply with the
conditions prescribed in Section 5, Rule 113 of the Rules of
Court. Said section provides:
“SEC. 5. Arrest without warrant when lawful.—A peace officer or
a private person may, without a warrant, arrest a person:
1. (a)When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
2. (b)When an offense has in fact just been committed, and
he ‘has personal knowledge of facts indicating that the
person to be arrested has committed it; and
3. (c)When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his
 case is pending, or has escaped while being transferred
from one confinement to another.”
None of these exceptional circumstances were present at the
time the appellant was arrested on 10 February 1987. The
prosecution did not even insinuate that the crimes were
committed in the presence of the arresting officers .(for
otherwise they
_______________
Id., 14.
43
TSN, 19 July 1988, 15–16.
44
564
564 SUPREME COURT REPORTS ANNOTATED
People vs. Agustin
could have arrested the appellant on 6 September 1986 yet)
or that the appellant was a prisoner who had escaped from
his place of detention; or that the crimes had just been
committed for they were in fact committed more than five
months earlier. Atty. Cajucom knew or ought to have known
that the arrest was unlawful. If he were then truly moved
by his duty to fully assist the appellant, he should have
forthwith taken the appropriate measures for the immediate
release of the appellant instead of allowing the City Fiscal
to investigate him. Needless to say, the conduct of Atty.
Cajucom under the circumstances only strengthen our belief
that the appellant had all the cards stacked against him. .
Thus, we do not hesitate to declare the appellant’s
extrajudicial statement inadmissible in evidence because it
was obtained in violation of Section 12(1), Article III of the
Constitution. Since it is the only evidence which links him
to the crimes of which he was convicted, he must then be
acquitted.
His acquittal must not write finis to these murder cases.
These crimes must be solved and the triggerman and the
mastermind apprehended. We see in these cases the failure
of the Government to exert the necessary efforts to bring the
guilty parties to the bar of justice, Until now, the accused,
who were implicated by the triggerman as having ordered
for a price the murder of Dr. Bayquen, remain at large and
the records do not show any diligent effort to effect their
arrest. The triggerman escaped while in the custody of the
PC/INP at Camp Dangwa. Why he was able to do so has not
been adequately explained. The City Prosecutor’s Office of
Baguio City should then use all the resources at its
command, in coordination with the law-enforcement
agencies of the Government, such as the National Bureau of
Investigation and the Philippine National Police, to
immediately arrest the other accused.
WHEREFORE, judgment is hereby rendered
REVERSING the challenged judgment of the Regional Trial
Court, Branch 3, Baguio City, in Criminal Case No. 4647-R
and Criminal Case No. 4648-R, and ACQUITTING
appellant JAIME “JIMMY” AGUSTIN. His immediate
release from confinement is hereby ORDERED unless for
some other lawful cause his continued detention is
warranted.
Costs de oficio.
565
VOL. 240, JANUARY 25, 1995 565
Adelfa Properties, Inc. vs. Court of Appeals
SO ORDERED.
Padilla (Chairman), Bellosillo, Quiason and Kapuna
n, JJ., concur,
Judgment reversed, accused-appellant acquitted.
Notes.—An inadmissible written confession can be
treated as an oral one which may be established through the
testimony of the person who heard it. (People vs. Carido, 167
SCRA 462 [1988])
A search to be valid must generally be authorized by a
search warrant duly issued by the proper authority. (People
vs. Rodrigueza, 205 SCRA 791 [1992])
 ——o0o——

© Copyright 2018 Central Book Supply, Inc. All rights reserved.

 VOL. 198, JUNE 19, 367 Same; Same; Circumstantial Evidence; Requisites in order
1991 that circumstantial evidence may be the basis for conviction.––For
People vs. Salguero circumstantial evidence to be sufficient to convict an accused, it is
necessary that the following requisites must be satisfied: (a) there
368 SUPREME COURT REPORTS
must be more than one circumstance, (b) the facts from which the
ANNOTATED
inferences are derived are proven, and (c) the combination of all
People vs. Tiozon the circumstances is such as to produce a conviction beyond a
G.R. No. 89823. June 19, 1991. *
reasonable doubt.
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs.EUTROPIO TIOZON y ACID, accused- _______________
appellant. *THIRD DIVISION.
Criminal Law; Evidence; Double Jeopardy; The killing of a 369
person with the use of an unlicensed firearm may give rise to VOL. 198, JUNE 19, 1991 369
separate prosecution for violation of Section 1 of P.D. No. 1866 People vs. Tiozon
and violation of either Article 248 (murder) or Article 249
Same; Same; Same; Res Gestae; Court does not agree with the
(Homicide) of the Revised Penal Code; Rule against double
observation that the statement made by the accused-appellant to
jeopardy cannot be invoked.––In fine then, the killing of a person
the wife of the victim immediately after the shooting that he
with the use of an unlicensed firearm may give rise to separate
accidentally shot the victim is covered by the rule on res gestae.––
prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b)
We do not, however, agree with the additional observation of the
violation of either Article 248 (Murder) or Article 249 (Homicide)
trial court, in respect to the sixth circumstance, that the
of the Revised Penal Code. The accused cannot plead one as a bar
statement made by the accused-appellant to the wife of the victim
to the other; or, stated otherwise, the rule against double jeopardy
immediately after the shooting incident that he accidentally shot
cannot be invoked because the first is punished by a special law
the victim is covered by the rule on res gestae. This is a
while the second, homicide or murder, is punished by the Revised
misapplication of the rule in the instant case.
Penal Code.
Same; Same; Same; Same; A testimony of a witness as to
Same; Same; Same; It is a cardinal rule that the protection
what he heard other persons say about the facts in dispute cannot
against double jeopardy may be invoked only for the same offense
be admitted because it is hearsay evidence; Statements as part of
or identical offenses.––“It is a cardinal rule that the protection
the res gestae is one of the exceptions.––Accordingly, a testimony
against double jeopardy may be invoked only for the same offense
of a witness as to what he heard other persons say about the facts
or identical offenses. A simple act may offend against two (or
in dispute cannot be admitted because it is hearsay evidence.
more) entirely distinct and unrelated provisions of law, and if one
There are, however, exceptions to this rule. One of them is
provision requires proof of an additional fact or element which the
statements as part of the res gestae under Section 36 of Rule 130
other does not, an acquittal or conviction or a dismissal of the
of the Revised Rules of Court. The exceptions assume that the
information under one does not bar prosecution under the other.
testimony offered is in fact hearsay; but it is to be admitted in
Phrased elsewise, where two different laws (or articles of the
evidence. Under the aforesaid Section 36, statements may be
same code) defines two crimes, prior jeopardy as to one of them is
deemed as part of the res gestae if they are made by a person
no obstacle to a prosecution of the other, although both offenses
while a startling occurrence is taking place or immediately prior
arise from the same facts, if each crime involves some important
or subsequent thereto with respect to the circumstances thereof.
act which is not an essential element of the other.”
Statements accompanying an equivocal act material to the issue
and giving it a legal significance may also be received as part of
the res gestae.
Same; Same; Illegal Possession of Firearm; Prosecution failed
to present any evidence to prove that the accused-appellant was
not authorized to possess the firearm alleged in the information.––
Our pains-taking review of the records and the evidence fails to
disclose that the prosecution presented any evidence to prove that
the accused-appellant was not authorized to possess the firearm
alleged in the information.
Same; Same; Same; Same; The lack or absence of a license is
an essential ingredient of the offense which the prosecution must
allege and prove.––Undoubtedly, there is unlawful possession
under the foregoing section if one does not have the license to
possess the firearm. Even if he has the license, he cannot carry
the firearm outside his residence without legal authority therefor.
It follows then that the lack or absence of a license is an essential
ingredient of the offense which the prosecution must allege and
prove. Every element of the crime must be alleged and proved.
370
3 SUPREME COURT REPORTS ANNOTATED
70
People vs. Tiozon
Same; Same; Qualifying Circumstance; Treachery; When is
treachery present.––There is treachery when the offender commits
any of the crimes against persons employing means, methods or
forms in the execution thereof which tend directly and specially to
insure its execution without risk to himself arising from the
defense which the offended party might make, which means that
no opportunity was given to the latter to do so. It cannot be
presumed; it must be proved by clear and convincing evidence or
as conclusively as the killing itself.
Same; Same; Same; Same; Same; Treachery cannot be
considered where the lone witness did not see the commencement
of the assault.––For, as held in U.S. vs. Perdon where no
particulars are known as to the manner in which the aggression
was made or how the act which resulted in the death of the victim
began and developed, it can in no way be established from mere
suppositions, drawn from circumstances prior to the very moment
of the aggression, that an accused perpetrated the killing with
treachery. Accordingly, treachery cannot be considered where the
lone witness did not see the commencement of the assault.
APPEAL from a decision of the Regional Trial Court of
Caloocan City, Branch 131.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Lorenzo G. Parungao for accused-appellant.
DAVIDE, JR., J.:
In an information filed by the Asst. City Prosecutor of
Caloocan City on 27 February 1989 with Branch 131 of the
Regional Trial Court (Caloocan City) of the National Capital
Judicial Region, accused-appellant was charged for violation
of Presidential Decree 1866, as amended, committed as
follows:
“That on or about the 24th day of February 1989 in Kalookan
City, Metro Manila and within the jurisdiction of this Honorable
Court, the above-named accused, without any lawful motive or
purpose, did then and there wilfully, unlawfully and feloniously
have in his possession, custody and control one .38 cal. revolver,
marked Squires Bingham with SN 180169 with three live
ammunitions without authority of law, which firearm was used
with treachery and evident premeditation in shooting one
Leonardo Bolima y Mesia,
371
VOL. 198, JUNE 19, 1991 371
People vs. Tiozon
which caused his death.” 1
Accused-appellant pleaded not guilty when arraigned on 15
March 1989. Pre-trial was conducted and thereafter the
2
trial court received the evidence for the parties. In a
decision promulgated on 30 June 1989, the court a 3
quofound accused-appellant guilty and sentenced him as
follows:
“WHEREFORE, in view of all the foregoing, the court finds the
accused EUTROPIO TIOZON y ACID guilty beyond reasonable
doubt of the crime of P.D. 1866 and Murder qualified by treachery
and hereby sentences him to suffer life imprisonment; to
indemnify the heirs of the deceased Leonardo Bolima the sum of
P30,000.00; to reimburse the heirs of the victim the sum of
P50,000.00 as reasonable expenses for the wake and burial
expenses and to pay the costs.”
According to the trial court, were it not for its abolition, “the
death penalty, the sentence imposable under 2nd pa.,
Section 1 of P.D. 1866, as amended”, should have been
imposed.
On 5 July 1989 Accused-appellant filed a motion to
reconsider the decision which, however, was denied by the
4
court in its order of 16 August 1989. On 17 August accused-
5
appellant filed a Notice of Appeal. Hence, the case is now
6
before Us.
The facts as found by the court a quo are as follows:
“That at around 11:00 o’clock in the evening of February 24, 1989,
while she and her husband were sleeping inside their house, they
were awakened by the loud knocks on their door; Her husband
opened the door and they saw that the person who was knocking
was their “Pareng Troping”, accused herein; her husband invited
the accused, who appeared to be very drunk, to come inside their
house; once inside their house, accused sat down and the two
(accused and victim) exchanged pleasantries; she even saw the
accused showing a gun to her husband and the latter even toyed
with it; she got irritated by her
_______________
1 Original records, 1.
2 Original records, 2.
3 Id., 71-78.
4 Id., 82-86.
5 Id., 87-88.
6 Id., 89.
372
372 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
husband’s playing with the gun, so she took a few steps away
from the two, however, when she looked back to the place where
her husband and the accused was, she found out that the two had
already left; five minutes later and/or after she had heard two
successive gunshots, she heard accused knocking at their door
and at the same time informing her that he accidentally shoot
(sic) her husband, “Mare, mare, nabaril ko si Pare, hindi ko
sinasadya” she got scared by the appearance of the accused who
was full of bloodstains so she pushed him away from her; she
immediately went to her sister-in-law Marilyn Bolima and both of
them proceeded to the house of the accused; thereat, they saw the
victim lying with his face up; she took her husband’s pulse and
when she still felt some warmth on his body, she sought help that
her husband be brought to the hospital; accused extended his help
by helping them in carrying the victim towards the main road,
however, after a few steps, he changed his mind and put down the
victim; accused reasoned out that the victim was already dead;
she pushed the accused and even without the latter’s help, they
were able to reach the main road; afterwhich, some of her
neighbors arrived bringing with them lights; thereafter, Kalookan
policemen arrived and so she caused the arrest of the accused; she
spent about P100,000.00 in connection with burial and wake of
her husband.
Pat. Orlando Valencia of the Kalookan Police Force on the
witness stand testified that on February 24, 1989 in line with his
duty as policemen, a shooting incident was reported to him; he
responded to the said report by proceeding to the crime scene,
thereat, he saw the lifeless body of the victim as well as the
accused whose clothing was full of bloodstains; the cadaver of the
victim was referred to the Philippine Constabulary Crime
Laboratory (PCCL) while the person of the accused was turned
over to the Homicide Section of the Kalookan City Police Station;
the day after, at around 10:00 o’clock in the evening and upon
instruction of Pfc. Alilam, he together with some Kalookan
policemen accompanied the accused in retrieving the firearm
(Exh. “F”) whom the accused threw at the grassy area
particularly at the back of the latter’s house; aside from the
firearm they also recovered two (2) spent bullets (Exh. G-6 and G-
7) and three live ammunitions (Exh. G-12, G-13 and G-14).
NBI Ballistician Ernie Magtibay testified that he has been a
ballistician of the NBI since 1984; that pertinent to this case, he
happened to examine a caliber .38 Squires Bingham with serial
number 180169 (Exh. “F”); that as per his findings the evidence
shells (Exhs. G-6 and G-7) were fired from the gun, subject matter
of this case.
Forensic chemist from the NBI Edwin Purificando testified
that the paraffin test he conducted on the dorsal aspect of the left
and right
373
VOL. 198, JUNE 19, 1991 373
People vs. Tiozon
hands, that is, from the wristbones to the fingertips, of the
deceased, gave negative result on the presence of nitrates (Exh.
“I). Likewise, the paraffin test he conducted on the dorsal aspects
of the left hand and right hand of the accused yielded negative
results on the presence of nitrates (Exh. “J”).
On the other hand, the version of the defense as testified to
by the accused is as follows:
That at about 11:30 in the evening of February 24, 1989 accused
on his way home, after coming from his work, passed by the house
of his Pareng Nardo, the victim herein; while passing infront of
the said house, his Pareng Nardo called him up; when he was
about to enter the door of the house of the victim, the latter, from
the back of the door, poked a gun at him; he grabbed the gun from
his Pareng Nardo and at that instance, Rosalina Bolima emerging
from her room, saw him holding the gun; he returned the gun to
his Pareng Nardo and the latter tucked it in his waistline; he was
served with a beer and after he and the victim consumed about
two bottles of beer, they went out to buy some more; after they
were able to buy some more bottles of beer, victim carried the
same and left ahead of the accused; accused was left behind to
answer the call of nature; while in the act of urinating, he heard
two successive gunshots; he followed the victim and he saw the
latter already sprawled on the ground; he inquired from his
Pareng Nardo as to what had happened to him, “Pareng Nardo,
ano ang nangyari sa iyo? and the victim’s replied (sic) was “Pare,
binaril ako”, he further inquired as to who shot him but the
victim who was gasping for breath could no longer talk;
thereafter, he saw a gun near the body of his Pareng Nardo;
moved by his desire to bring the said gun to the wife of the victim,
he picked the same, but after he got hold of the gun, he suddenly
realized that the policemen might see him holding it, so he threw
the very same gun to the grassy area; he then ran towards the
house of the victim and he informed the wife of the latter that his
Pareng Nardo was shot to death; he returned to the place where
he left the body of the victim but the body of the latter was no
longer there; he later found out that townspeople carried the body
of the victim towards the main road; when the policemen arrived
he was ordered to go with them at the Kalookan Police
Headquarters; when he was asked by the policemen as to who
shoot (sic) the victim, his answer was, he did not see the actual
shooting incident; never did he declare nor utter before her
Mareng Lina or before any police authorities that he accidentally
shoot (sic) the victim. However, he admitted that it was him who
accompanied the policemen in retrieving the fatal gun at the
grassy area at the back of his house.”
374
374 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
In holding the accused-appellant guilty as above-stated, the
court a quo relied on circumstantial evidence because the
prosecution failed to present an eyewitness who could give
an account as to the actual shooting incident. It considered
the following circumstances which it deemed sufficient to
convict the accused-appellant pursuant to Rule 133, Section
5, of the Revised Rules of Court:
“The following are among the circumstances which points to the
culpability of the accused.
1. 1)That the widow of the victim saw the accused holding a
gun immediately before shooting incident happened;
 2. 2)That accused was the last person seen in the company of
the victim immediately before the latter was shot to
death;
3. 3)That it was the accused who purposely went to the house
of the victim on that fatal evening; The testimony of the
accused that he was merely passing in front of the house
of the victim when the latter who was standing at the
window of his house called him up is less credible than
the testimony of the widow of the victim, that they were
already aslept (sic) inside their house when or the
aforesaid time accused knocked at their door.
4. 4)That it was the accused who guided the policemen as to
the place where the fatal gun was recovered. Here the
Court believes that the gun was purposely hid at the
grassy area at the back portion of accused’s house. The
story of the accused that he picked the gun for the
purpose of bringing it to the widow of the victim but for
fear that the policemen might see him holding the gun,
he then decided to throw it to the place where it was
recovered, was too flimsy to merit belief. Firstly, what is
his reason for bringing it to the widow of the victim when
he surely knew fully well that it will be the policemen
who will investigate the case. Secondly, he knew for a
fact, that the said gun could lead as to the identity of the
assailant of the victim, why then he threw it at the
grassy area when he could easily leave the same to the
place where he picked it up.
5. 5)The testimony of the wife that after hearing two
successive gunshots, accused went back to her house and
informed ther (sic) that he accidentally shot her husband
deserves merit. Besides, the Court sees no reason for the
wife to concoct such story that would point to the accused
as the culprit specially so that had not the accused
became (sic) the prime suspect in this case, he would be
the best person to be used as a prosecution
375
VOL. 198, JUNE 19, 1991 375
People vs. Tiozon
1. witness, with more reason that from the evidence
presented, it appears that the widow of the victim
harbours no ill-feeling towards the accused otherwise, she
would have prevented accused’s entry in her house on
that fatal evening.
2. 6)The testimony of the wife that accused, immediately
after the shooting incident took place admitted to her
having accidentally shoot (sic) the victim is admissible
evidence against the accused declarant since this is
covered by the rule on res gestae or one of an exception to
the hearsay rule.
Part of the res gestae––Statement made by a person while a startling
occurrence is taking place or immediately prior tor (sic) subsequent
thereto with respect to the circumstance thereof, may be given in
evidence as a part of res gestae. x x x. (Sec. 36, Rule 130, Revised Rules
of Court, as amended).
1. 7)The testimony of the accused that he does not own the
gun and that it is but (sic) the accused (sic) who owns the
same and in fact the latter even tucked it in his waistline
immediately before the shooting incident happened is
improbable, for, how come then that the assailant was
able to drew (sic) the gun from the waistline of the victim
and fired (sic) the same towards the back portion of the
victim’s body. Is it not that the natural reaction of a
person was to face the person who suddenly and without
permission drew something from one’s waistline. (sic)
While there is no eyewitness who testified to having seen
accused shoot (sic) the victim, yet all the foregoing circumstances
meet the criteria set by Sec. 5, Rule 133 of the Revised Rules of
Court, as amended, and therefore points (sic) to the accused as
the person who unlawfully owns the fatal gun as well as the same
person who shoot (sic) to death the victim. “Circumstantial (sic)
evidence is admissible in the absence of an eyewitness to the
commission of the crime” (People vs. Albofera, 152 SCRA
125[1983]).
 The Court does not give credence to the denial of the accused
that he was not the one who shoot (sic) the victim as he was some
distance away from the victim answering the call of nature when
the victim was killed. Instead, the Court gives credence to the
testimony of the widow that it was the accused whom he saw in
possession of the gun, that it was the accused who was the last
person seen in the company of the victim shortly before the latter
died and it was the same accused who lead (sic) the policemen in
retrieving the fatal gun.
Admittedly, as per findings of the NBI Forensic Chemist, the
accused’s right and left hand yielded negative result to the test of
376
376 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
nitrates. However, the same witness testified that even when a
person fired a gun, it does not necessarily follows (sic) that his
hand would be positive to the test of nitrates, as there are still
several factors which affects the presence or absence of nitrates in
the hands of a person.
xxx
Although the fact of death of the victim (Exh. “E”) is
undisputed, still the presence of the qualifying circumstance of
treachery and evident premeditation being alleged in the
Information, must be proven like the crime itself.
To properly appreciate evident premeditation it is necessary to
establish with proof, as clear as the evidence of the crime itself (1)
the time when the offender determined to commit the crime; (2)
an act manifestly indicating that the culprit had clung to his
determination; and (3) a sufficient lapse of time to reflect upon
the consequence of his act (People vs. Lorenzo, 132 SCRA
17(1984); People vs. Obengue, 147 SCRA 1987). Although alleged
in the Information, the record of this case is bereft of any
indication that evident premeditation attended the killing of the
victim.
However, the qualifying circumstance of treachery is
appreciated in this case since its presence could be established by
the position/ location of the wound of the victim, that is at the
back portion of his torso which necessarily imply that he was
treacherously shot by his assailant.” 7
Accused-appellant assigns only one error in this appeal:
“THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIME OF ILLEGAL
POSSESSION WITH MURDER AS DEFINED UNDER
SECTION 1 OF P.D. 1866. THE CIRCUMSTANTIAL
EVIDENCES RELIED UPON BY THE TRIAL COURT IN ITS
JUDGMENT OF CONVICTION ARE INSUFFICIENT TO
PROVE BEYOND REASONABLE DOUBT THE GUILT OF
ACCUSED-APPELLANT.” 8
and prays that the decision appealed from be reversed and
another be entered acquitting him.
In support of the assigned error accused-appellant
submits that:
1. (a)Contrary to the conclusion of the trial court, he was
_________________
7Original records, p. 75-78.
8Brief for Appellant, 4; Rollo, 43.
377
VOL. 198, JUNE 19, 1991 377
People vs. Tiozon
1. not the one holding the gun immediately before the
shooting incident, for as admitted by the victim’s
wife, her husband also “toyed or played with the
gun”;9
2. (b)The testimony of the victim’s wife that he was the
last person seen in the company of the victim is
unrealiable because she was left in the house when
the victim and accused-appellant went out to the
store which is about 145 to 150 meters away;
3. (c)That the accused-appellant pointed the place where
the gun allegedly used in the killing was recovered,
should not create the unfavorable inference that he
purposely hid the gun and should not be taken
 against him, for knowing the reputation of police
authorities, what he did was dictated by the instinct
of self-preservation rather than guilt;
4. (d)The testimony of the wife of the victim that after
hearing two successive gunshots accused-appellant
went back to her house and informed her that he
accidentally shot her husband, should not have been
considered by the trial court as part of the res
gestae; and
5. (e)The “raciocination” of the trial court regarding the
improbability of the testimony of accused-appellant
that he does not own the gun but that it was the
deceased who owned it which the latter tucked in his
waistline before the shooting incident is baseless as
the records show that the deceased was walking
ahead of the accused-appellant who was left behind
to answer a call of nature; therefore, it is not highly
improbable that some other person whom the
deceased might have met in the street could have
taken the gun from the waistline and shot him with
it. It would not also be highly improbable that a
person from whose waistline a gun was grabbed
could not face his assailant especially when he is
carrying something with his both hands, like the
deceased who was carrying one case of Gold Eagle
beer when he was shot at. Moreover, accused-
appellant was found negative for nitrates when a
paraffin test was conducted on him by a forensic
chemist of the NBI. 10
______________
9TSN, April 18, 1989, 13.
Brief for Appellant, 5-11; Rollo, 44-50.
10
378
378 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
The People, in its Brief filed by the Solicitor General on 18
April 1990, disagrees with the accused-appellant, maintains
that the prosecution was able to establish his guilt beyond
reasonable doubt, and prays that subject decision be
affirmed in toto. It stresses that accused-appellant himself
admitted and confirmed that he and the victim went out
together to buy some more bottles of beer; he was with the
victim after they bought the beer, and they separated only
when he had the urge to urinate seconds before the incident.
The widow did not testify that she saw what happened in
the street; what she testified was that the accused and the
victim went out together and five minutes later she heard
two shots. There was, therefore, nothing improbable about
her testimony.
Appellee likewise contends that the conclusion of the trial
court on the hiding of the gun was based on the evidence on
record; the accused himself testified that he threw the gun
on a grassy area. It further argues that the conclusion of the
court on the improbability of appellant’s testimony
concerning the ownership of the gun is not baseless; on the
contrary, it is the theory of the appellant that it is probable
that another person may have grabbed the gun from the
victim that is highly improbable. Since appellant was
behind the victim he could have seen a third person
grabbing the gun. He did not testify that he saw one. The
negative result of the paraffin test cannot be singled out to
absolve the accused-appellant from liability.11
No Reply-Brief was filed.
We are now called upon to determine whether, on the
basis of the evidence adduced, the judgment appealed from
should be affirmed or the accused-appellant be acquitted.
We shall first focus our attention on the law under which
accused-appellant is indicted.
 Section 1 of P.D. No. 1866 imposes the penalty invoked because the first is punished by a special law while
of reclusion temporal in its maximum period to reclusion the second, homicide or murder, is punished by the Revised
perpetua “upon any person who shall unlawfully Penal Code.
manufacture, deal in, acquire, dispose or possess any In People vs. Doriguez, We held:
12

firearm, part of firearm, ammunition or machinery, tool or “It is a cardinal rule that the protection against double jeopardy
instrument used or intended to be used in the manufacture may be invoked only for the same offense or identical offenses. A
of any firearm or ammunition.” It goes further simple act may offend against two (or more) entirely distinct and
unrelated provisions of law, and if one provision requires proof of
_______________ an additional fact or element which the other does not, an
acquittal or conviction or a dismissal of the information under one
Brief for Appellee, 6-13.
11
does not bar prosecution under the other. Phrased elsewise,
379 where two different laws (or articles of the same code) defines two
VOL. 198, JUNE 19, 1991 379 crimes, prior jeopardy as to one of them is no obstacle to a
People vs. Tiozon prosecution of the other, although both offenses arise from the
by providing that “if homicide or murder is committed with same facts, if each crime involves some important act which is not
the use of an unlicensed firearm, the penalty of death shall an essential element of the other.” 13

be imposed.”
_______________
It may be loosely said that homicide or murder qualifies
the offense penalized in said Section 1 because it is a 1224 SCRA 163, 171.
circumstance which increases the penalty. It does not, 13Citing People vs. Bacolod, 89 Phil. 621; People vs. Capurro, 7 Phil.
however, follow that the homicide or murder is absorbed in 24; People vs. Alvarez, 45 Phil. 472.
380
the offense; otherwise, an anomalous absurdity results
380 SUPREME COURT REPORTS ANNOTATED
whereby a more serious crime defined and penalized in the
People vs. Tiozon
Revised Penal Code is absorbed by a statutory offense,
In People vs. Bacolod, supra., from the act of firing a shot
which is just a malum prohibitum. The rationale for the
from a sub-machine gun which caused public panic among
qualification, as implied from the exordium of the decree, is
the people present and physical injuries to one, informations
to effectively deter violations of the laws on firearms and to
for physical injuries through reckless imprudence and for
stop the “upsurge of crimes vitally affecting public order and
serious public disturbance were filed. Accused pleaded
safety due to the proliferation of illegally possessed and
guilty and was convicted in the first and he sought to
manufactured firearms, x x x.” In fine then, the killing of a
dismiss the second on the ground of double jeopardy. We
person with the use of an unlicensed firearm may give rise
ruled:
to separate prosecutions for (a) violation of Section 1 of P.D.
“The protection against double jeopardy is only for the same
No. 1866 and (b) violation of either Article 248 (Murder) or
offense. A simple act may be an offense against two different
Article 249 (Homicide) of the Revised Penal Code. The provisions of law and if one provision requires proof of an
accused cannot plead one as a bar to the other; or, stated additional fact which the other does not, an acquittal or
otherwise, the rule against double jeopardy cannot be conviction under one does not bar prosecution under the other.”
Since the informations were for separate offense––the first
against a person and the second against public peace and
order––one cannot be pleaded as a bar to the other under
the rule on double jeopardy.
However, to justify the imposition of the increased
penalty under Section 1 of P.D. No. 1866 because of the
resulting crime of homicide or murder, the prosecution must
allege in the information and prove by the quantum of
evidence required for conviction violation of said section
and, more specifically, the use of an unlicensed firearm and
the commission of homicide or murder. In this regard, the
information in this case is sufficient in form and substance.
It alleges illegal possession of a firearm and of murder. The
latter is covered by the clause “which firearm was used with
treachery and evident premeditation in shooting one
Leonardo Bolima y Mesia, which caused his death.”
We agree with the findings and conclusion of the court a
quo that more than one circumstantial evidence were duly
proved and that these circumstances point, beyond
reasonable doubt, to the accused-appellant as the one who
shot and killed the deceased Leonardo Bolima y Mesia. For
circumstantial evidence to be sufficient to convict an
accused, it is necessary that the following requisites must be
satisfied: (a) there must be more than one circumstance, (b)
the facts from which the inferences are derived are proven,
and (c) the combination of all the circumstances is such as to
produce a conviction beyond a
381
VOL. 198, JUNE 19, 1991 381
People vs. Tiozon
reasonable doubt. Or, as jurisprudentially formulated, a
14
judgment of conviction based on circumstantial evidence can
be upheld only if the circumstances proven constitute “an
unbroken chain which leads to one fair and reasonable
conclusion which points to the defendant, to the exclusion of
all others, as the guilty person, i.e., the circumstances
15
proved must be consistent with each other, consistent with
the hypothesis that the accused is guilty, and at the same
time inconsistent with any other hypothesis except that of
guilty.16
The first to the sixth circumstances mentioned by the
trial court were duly established and constitute an
unbroken chain which leads to one fair and reasonable
conclusion that the accused-appellant, and no other else,
shot and killed the victim. We do not, however, agree with
the additional observation of the trial court, in respect to the
sixth circumstance, that the statement made by the
accused-appellant to the wife of the victim immediately
after the shooting incident that he accidentally shot the
victim is covered by the rule on res gestae. This is a
misapplication of the rule in the instant case. Statements as
part of the res gestae are among the exceptions to the
hearsay rule. The rule is that a witness “can testify only to
those facts which he knows of or his own knowledge; that is,
which are derived from his own perceptions.” Accordingly, a
17
testimony of a witness as to what he heard other persons
say about the facts in dispute cannot be admitted because it
is hearsay evidence. There are, however, exceptions to this
rule. One of them is statements as part of the res gestae
under Section 36 of Rule 130 of the Revised Rules of Court.
The exceptions assume that the testimony offered is in fact
hearsay; but it is to be admitted in evidence. Under the
aforesaid Section 36, statements may be deemed as part of
the res gestae if they are made by a person
_______________
14 Sec. 5, Rule 133, Revised Rules of Court; People vs. Alcantara, 163
SCRA 783, 786.
15 U.S. vs. Villos, 6 Phil. 510, 512; People vs. Subano, 73 Phil. 692,
693; People vs. Colinares, 163 SCRA 313, 320.
16 People vs. Trinidad, 162 SCRA 714, 723, citing People vs. Ludday, 61
Phil. 216; People vs. Cotante, 12 SCRA 653. See also People vs.
Tolentino, 166 SCRA 469, 482.
 Sec. 30, Rule 130, Revised Rules of Court.
17
382
382 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
while a startling occurrence is taking place or immediately
prior or subsequent thereto with respect to the
circumstances thereof. Statements accompanying an
equivocal act material to the issue and giving it a legal
significance may also be received as part of the res gestae.
In the instant case, however, the questioned testimony of
the wife of the victim is not hearsay. She testified on what
the accused-appellant told her, not what any other party,
who cannot be cross-examined, told her. The accused-
appellant’s statement was an “oral confession”, not a part of
res gestae, which he can easily deny if it were not true,
which he did in this case.
In People vs. Tulagan, 143 SCRA 107, 116-117, We
declared that a statement allegedly made by one of the
accused to Natalia Macaraeg that “we killed him” (referring
to himself and his co-accused) and which Natalia repeated
in her testimony in open court was merely an “oral
confession” and not part of the res gestae.
Moreover, even assuming that the testimony of the wife
of the victim on the alleged statement of the accused-
appellant is hearsay, the latter is barred from questioning
its admission due to his failure to object thereto at the time
the testimony was given. The transcript of the stenographic
notes of the testimony of Rosalina Magat vda. de Bolima,
wife of the victim, clearly shows the absence of an objection,
thus:
“Atty. Villano:
You said when you turned your back after taking a few steps and
when you turned your back, they were no longer there, will you please
tell what happened after that?
A And that was when they left it was 11:30 and when he came back
11:35 he was already knocking (referring to the person of the accused)
telling me while he was knocking: “Mare, mare nabaril ko si pare,
hindi ko sinasadya.”
Q By the way Mrs. Witness, who is that “pare” you are telling us?
A Troping, sir (as the witness pointed to).
Q The same Troping here, is your “kumpare”?
A Yes, sir.”
(TSN, April 18, 1989, p. 13).
383
VOL. 198, JUNE 19, 1991 383
People vs. Tiozon
The seventh circumstance mentioned by the court below is
haphazardly formulated. Something is wrong with the
opening clause reading:
“The testimony of the accused that he does not own the gun and
that it is but the accused who owns the same and in fact the latter
even tucked it.”
The words but the accused should have been the deceased.
Two more basic issues are left for determination, to wit:
whether the prosecution has established beyond reasonable
doubt that the accused is liable for illegal possession of
firearms and whether the killing was attended by the
qualifying circumstances of treachery and evident
premeditation as alleged in the information.
Our painstaking review of the records and the evidence
fails to disclose that the prosecution presented any evidence
to prove that the accused-appellant was not authorized to
possess the firearm alleged in the information. And,
contrary to the finding of the trial court, there was no
sufficient evidence to prove the presence of treachery.
It must be stated, however, that had illegal possession of
firearms been duly proven as alleged, it would not have
mattered whether the killing was simple homicide or
murder since Section 1 of P.D. No. 1866 expressly provides
that:
xxx
 “If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be imposed.”
which penalty, however, had been automatically reduced
to reclusion perpetua in view of the abolition of the death
penalty. 18
The issue concerning the failure of the prosecution to
prove that he had no authority to possess the firearm has
not been raised in this appeal. Interestingly, accused-
appellant raised it in his motion to reconsider the decision of
the trial court. In its
19
_______________
Section 19(1), Article III, 1987 Constitution.
18
Original records, 82-86.
19
384
384 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
resolution denying the motion, the trial court admitted, in
effect, that the prosecution did not offer any evidence to
prove that the accused-appellant had no license to possess
or carry the firearm in question; it however, threw the
burden on the accused-appellant to prove that he has that
authority. Thus, it ruled:
“Where accused relies as a matter of defense on an exception in a
statute which is not in the enacting clause by which the offense is
described and forbidden, he has the burden of proving that he is
within the exception.
‘Where the subject matter of a negative averment in the
information, or a fact relied upon by defendant as a justification
or excuse, relates to him personally or otherwise lie peculiarly
within his knowledge, the general rule is that the burden of proof
of such averment or fact is on him’ (16 C.J. sec. 998, p. 530). An
illustrative case of this rule may be found in prosecution for
exercising a trade or profession, or doing other acts, without a
license. In such cases, it would greatly inconvenience the
prosecution to prove that the defendant had no license, whereas
the defendant could easily prove that he did have one.
In cases of illegal possession of firearms, the burden of proof as
to the negative averments in the information to the effect that the
accused possesses the firearms without the corresponding license
is on the defense. It is the accused who is called upon to prove
that he possesses the license. In other words, the fact relied upon
by the accused as a justification or excuse being one that is
related to him personally or otherwise within his peculiar
knowledge, ‘the general rule is that the burden of proof as to such
averment or fact is on the accused’ (Francisco, Handbook on
Evidence, pp. 379-380, 1984 Ed., citing cases).” 20
Section 1 of P.D. No. 1866 reads:
“SECTION 1. Unlawful Manufacture, Sale Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture of
Firearms or Ammunition.––The penalty of reclusion temporal in
its maximum period to reclusion perpetua shall be imposed upon
any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any
_____________
20 Original Records, 87.
385
VOL. 198, JUNE 19, 1991 385
People vs. Tiozon
firearm, part of firearm, ammunition or machinery, tool or
instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be imposed.
xxx
The penalty of prision mayor shall be imposed upon any
person who shall carry any licensed firearm outside his residence
without legal authority therefor.”
Undoubtedly, there is unlawful possession under the
foregoing section if one does not have the license to possess
the firearm. Even if he has the license, he cannot carry the
firearm outside his residence without legal authority
therefor. It follows then that the lack or absence of a license
is an essential ingredient of the offense which the
prosecution must allege and prove. Every element of the
crime must be alleged and proved. 21
In People vs. Pajenado, L-27680-81, 27 February
1970, We said:
22
“It is true that People vs. Lubo, 101 Phil. 179 and People vs.
Ramos, 8 SCRA 758 could be invoked to support the view that it
is incumbent upon a person charged with illegal possession of a
firearm to prove the issuance to him of a license to possess the
firearm, but we are of the considered opinion that under the
provisions of Section 2, Rule 131 of the Rules of Court which
provide that in criminal cases the burden of proof as to the offense
charged lies on the prosecution and that a negative fact alleged by
the prosecution must be proven if ‘it is an essential ingredient of
the offense charged’, the burden of proof was with the prosecution
in this case to prove that the firearm used by appellant in
committing the offense charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an
essential ingredient of the offense of illegal possession of a
firearm. The information filed against appellant in Criminal Case
No. 3558 of the lower court (now G.R. No. 27681) specifically
alleged that he had no ‘license or permit to possess’ the .45 caliber
pistol mentioned therein. Thus it seems clear that it was the
prosecution’s duty not merely to allege that negative fact but to
prove it. This view is
_______________
21 People vs. Sy Gesiong, 60 Phil. 614.
22 31 SCRA 812, 816-817.
386
386 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil.
303, the accused was charged with ‘having criminally inscribed
himself as a voter knowing that he had none of the qualifications
required to be a voter. It was there held that the negative fact of
lack of qualification to be a voter was an essential element of the
crime charged and should be proved by the prosecution. In
another case (People vs. Quebral, 68 Phil. 564) where the accused
was charged with illegal practice of medicine because he had
diagnosed, treated and prescribed for certain diseases suffered by
certain patients from whom he received monetary compensation,
without having previously obtained the proper certificate of
registration from the Board of Medical Examiners, as provided in
Section 770 of the Administrative Code, this Court held that if the
subject of the negative averment like, for instance, the act of
voting without the qualifications provided by law is an essential
ingredient of the offense charged, the prosecution has the burden
of proving the same, although in view of the difficulty of proving a
negative allegation, the prosecution, under such circumstance,
need only establish a prima facie case from the best evidence
obtainable. In the case before Us, both appellant and the Solicitor
General agree that there was not even a prima facie case upon
which to hold appellant guilty of the illegal possession of a
firearm. Former Chief Justice Moran upholds this view as follows:
‘The mere fact that the adverse party has the control of the better means
of proof of the fact alleged, should not relieve the party making the
averment of the burden of proving it. This is so, because a party who
alleges a fact must be assumed to have acquired some knowledge
thereof, otherwise he could not have alleged it. Familiar instance of this
is the case of a person prosecuted for doing an act or carrying on a
business, such as, the sale of liquor without a license. How could the
prosecution aver the want of a license if it had acquired no knowledge of
that fact? Accordingly, although proof of the existence or non-existence
of such license can, with more facility, be adduced by the defendant, it is
nevertheless, incumbent upon the party alleging the want of the license
to prove the allegation. Naturally, as the subject matter of the averment
is one which lies peculiarly within the control or knowledge of the
accused prima facie evidence thereof on the part of the prosecution shall
suffice to cast the onus upon him.’ (6 Moran, Comments on the Rules of
Court, 1963 edition, p. 8).”
There being no proof that accused-appellant had no license
to possess the firearm in question, he could not be convicted
for
387
VOL. 198, JUNE 19, 1991 387
People vs. Tiozon
illegal possession of a firearm. The trial court then
committed an error in holding the accused-appellant guilty
thereof. However, as above-stated, the accused-appellant did
not touch this issue in his Brief. Be that as it may, the rule
is well-settled that an appeal in a criminal case opens the
whole case for review and this includes the review of the
penalty, indemnity and the damages involved. 23
In People vs. Borbano, 76 Phil. 702, 708, We ruled:
“x x x In a criminal case, an appeal to the Supreme Court throws
the whole case open for review, and it becomes the duty of the
Court to correct such errors as may be found in the judgment
appealed from, whether they are made the subjects of assignments
of error or not. (People vs. Ofindo, 47 Phil. 1).”
Accordingly, it is proper for this Court to consider in favor of
the accused-appellant the absence of proof of illegal
possession of a firearm. But, may accused-appellant be
convicted for murder under the information for which he
was tried? The answer is in the affirmative since, as We
stated earlier, the information sufficiently alleges the
commission of murder; hence, a conviction for murder, if
warranted by the facts, can be had under the information. If
murder is not proved by reason of the absence of any
qualifying circumstance, conviction for the lesser crime of
homicide is also proper. 25
We are also unable to agree with the trial court that the
qualifying circumstance of treachery was duly established.
There is treachery when the offender commits any of the
crimes against persons employing means, methods or forms
in the execution thereof which tend directly and specially to
insure its execution without risk to himself arising from the
defense which the offended party might make, which means
that no opportunity was given to the latter to do so. It
cannot
_______________
23 IV Moran, Comments on the Rules of Court, 1980 Ed., 348.
24 Section 4, Rule 120, Revised Rules of Court.
U.S. vs. Macalintal, et al., 2 Phil. 448; U.S. vs. Idica, 3 Phil. 313; U.S.
25
vs. Sadlucap, 3 Phil. 437; U.S. vs. Asilo, 4 Phil. 175; U.S. vs. Andrada, 5
Phil. 464.
26 Article 14, par. 16, Revised Penal Code; People vs. Gimongala,
388
388 SUPREME COURT REPORTS ANNOTATED
People vs. Tiozon
be presumed; it must be proved by clear and convincing
evidence or as conclusively as the killing itself. For, as held27
in U.S. vs. Perdon where no particulars are known as to
28
the manner in which the aggression was made or how the
act which resulted in the death of the victim began and
developed, it can in no way be established from mere
suppositions, drawn from circumstances prior to the very
moment of the aggression, that an accused perpetrated the
killing with treachery. Accordingly, treachery cannot be
29
considered where the lone witness did not see the
commencement of the assault. 30
In People vs. Manalo, supra, We ruled:
“The fact that the fatal wounds were found at the back of the
24
deceased does not, by itself, compel a finding of treachery. Such a
finding must be based on some positive proof and not merely an
inference drawn more or less logically from hypothetical facts.
This Court has ruled that the suddenness of an attack is not, of
itself, enough to constitute treachery when the method of the
killing does not positively show that the assailant thereby
knowingly intended to ensure the accomplishment of his purpose
without risk to himself from any defense which the victim might
put up. In other words, to sustain a finding of treachery, the
means, method or form of attack must be shown to have been
deliberately adopted by the appellant.” (citing People vs.
Carsano, 95 SCRA 146; People vs. Cabiling, 74 SCRA 185; People
26
vs. Satone, 74 SCRA 106; People vs. Bongo, 55 SCRA 547).
In People vs. Ablao, 183 SCRA 65, 669, We said:
“There being no direct evidence on how the shooting was
committed, treachery cannot be appreciated.”
_______________
170 SCRA 632; People vs. Bustos, 171 SCRA 243; People vs.
Samson, 176 SCRA 710; People vs. Manzanares, 177 SCRA 427.
27 People vs. Manalo, 148 SCRA 98; People vs. Gaddi, 170 SCRA 549.
28 4 Phil. 141.
29 See also People vs. Ablao, 183 SCRA 658.
30 People
vs. Durante, 53 Phil. 363; People vs. Cananowa, 92 SCRA
427; People vs. Repe, et al., 175 SCRA 422; People vs. Villapando, 178 SCRA
341.
389
VOL. 198, JUNE 19, 1991 389
People vs. Tiozon
In the instant case, no witness who could have seen how the
deceased was shot was presented. Absent the quantum of
evidence required to prove it, treachery cannot be
considered against the accused-appellant.
Accordingly, accused-appellant could only be liable for
HOMICIDE, which is punished by RECLUSION
TEMPORAL. It shall be imposed in its medium period,
whose duration is from 14 years, 8 months and 1 day to 17
years and 4 months, since neither aggravating nor
mitigating circumstances had been proved. 31
The Indeterminate Sentence Law benefits the accused-
appellant. Applying it in this case, he may be sentenced to
suffer an indeterminate penalty of eight years and one day
of prision mayor, as minimum, to fourteen years, eight
months and one day of reclusion temporal as maximum.
The civil indemnity imposed by the trial court should be
increased from P30,000.00 to P50,000.00 conformably with
our ruling in People vs. Sison, G.R. No. 86455, 14 September
1990 and in People vs. Sazon, G.R. No. 89684, 18 September
1990.
WHEREFORE, judgment is hereby rendered
MODIFYING the subject decision of the trial court, and as
Modified, FINDING the accused-appellant EUTROPIO
TIOZON Y ACID guilty beyond all reasonable doubt of the
crime of HOMICIDE, as defined and penalized under Article
249 of the Revised Penal Code, for the killing of Leonardo
Bolima, and applying the Indeterminate Sentence Law, he
is hereby SENTENCED to suffer an indeterminate penalty
of imprisonment ranging from EIGHT YEARS AND ONE
DAY of prision mayor, as Minimum, to FOURTEEN
YEARS, EIGHT MONTHS AND ONE DAY of reclusion
temporal as Maximum, with the accessory penalties
therefor, to INDEMNIFY the heirs of Leonardo Bolima in
the sum of FIFTY THOUSAND PESOS (P50,000.00),
without subsidiary imprisonment in case of insolvency, and
to REIMBURSE said heirs in the sum of FIFTY
THOUSAND PESOS (P50,000.00) as reasonable expenses
for the wake and burial of Leonardo Bolima.
Accused-appellant shall be given full credit for the period
of
_______________
Paragraph 1, Article 64, Revised Penal Code.
31
390
390 SUPREME COURT REPORTS ANNOTATED
State Investment House, Inc. vs. Court of Appeals
his preventive imprisonment.
Costs against accused-appellant.
SO ORDERED.
Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin,
JJ., concur.
Judgment affirmed with modification.
Note.––It does not always follow that because the attack
is sudden and unexpected it is tainted with treachery.
(People vs. Sabanal, 172 SCRA 430.)
––––o0o––––
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
 VOL.215,NOVEMBER13,1992 559
People vs. Tujon
G.R. No. 66034.November 13, 1992. *
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs.JOVITO TUJON y TAPEL, ERNESTO
PAROLA y CORTINA, AND CESAR PAREDES @ Cesar (At
Large), accused. JOVITO TUJON y TAPEL, accused-
appellant.
Constitutional Law; Extrajudicial confession; The right of a
person under custodial interrogation to be informed of his right to
remain silent and to counsel implies a correlative obligation on the
part of the police investigator to explain and contemplate an
effective communication that results in an understanding of what
is conveyed.—This Court has ruled that the right of a person
under custodial interrogation to be informed of his right to
remain silent and to counsel, implies a correlative obligation on
the part of the police investigator to explain and contemplate an
effective communication that results in an understanding of what
is conveyed. Short of this, there is a denial of the right, as it
cannot truly be said that the accused has been “informed” of his
right (People v. Newman, 163 SCRA 496, [1988]). When the
Constitution requires a person under investigation to be informed
to remain silent and to counsel, it must be presumed to
contemplate the transmission of meaningful information rather
than just the ceremonial and perfunctory recitation of an abstract
constitutional principle (People v. Flores, 165 SCRA 71 [1988]). It
is the duty of the police officer to explain their practical effects
(People v. Nicandro, 141 SCRA 289 [1986]). Thus, it would not
suffice for a police officer just to report
_______________
*THIRD DIVISION.
560
5 SUPREMECOURTREPORTSANNOTATED
60
People vs. Tujon
to the person under investigation the provision of Section 20,
Article IV of the Constitution.
Same; Same; On the investigator is reposed the duty to
explain the effects of the constitutional rights in practical terms.—
In the case at bar, and in the testimony of the police officer, it is
undeniable that no serious effort was shown to have been exerted
by the investigators to explain the consequences of the
investigation. On the investigator is reposed the duty to explain
the effects of the constitutional rights in practical terms (People v.
Duhan, 142 SCRA 100 [1986]).
Same; Same; Right to counsel; The court has consistently
ruled that waiver of right to counsel to be valid must be in writing
and in the presence of counsel.—This Court has consistently ruled
that waiver of right to counsel to be valid, must be in writing and
in the presence of counsel. Extra-judicial confessions taken
without the assistance of counsel is inadmissible in evidence
(People v. Albofera, 152 SCRA 123 [1987]).
Same;Same; Same; Any waiver made without observance of
the requirements is null and void.—Hence, while the right to
counsel may be waived, such waiver must be done voluntarily,
knowingly and intelligently, and made in the presence of the
accused’s lawyer. If the records do not show that the accused was
assisted by counsel in making his waiver, this defect nullifies and
renders inadmissible in evidence his confession (People v.
Nolasco, 163 SCRA 623, [1988]. In the case of People v. Hizon,
163 SCRA 760 (1988), this Court, citing the procedure laid down
in the case of People v. Galit, 135 SCRA 465 [1985]), ruled that
the suspect must be informed that he has a right to the assistance
of counsel and assured that he will be provided with one for free.
While he may choose to waive the right, such waiver must be a
knowing and intelligent one and in any case must be made only
with the assistance of counsel. Any waiver made without
observance of these requirements is null and void.
APPEAL from the decision of the Regional Trial Court of
Rizal, Br. 17.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
 Public Attorney’s Office for Jovito Tujon.
561
VOL.215,NOVEMBER13,1992 561
People vs. Tujon
BIDIN,J.:
This is an appeal interposed by the accused-appellant Jovito
Tujon from the decision of the Court of First Instance of
Rizal, Seventh Judicial District, Quezon City, Branch XVII,
in Criminal Case No. Q-8808 finding him and Ernesto
Parola guilty of the crime of Robbery with Homicide, defined
and penalized under Article 294, paragraph 1 of the Revised
Penal Code as amended and sentencing them to suffer the
penalty of reclusion perpetua,with the accessory penalties
prescribed by law.
The dispositive portion of the said decision reads:
“WHEREFORE, judgment is hereby rendered, finding Jovito
Tujon and Ernesto Parola guilty beyond reasonable doubt of the
crime of Robbery with Homicide, described and penalized under
Article 294, par. 1 of the Revised Penal Code as amended. There
being no modifying circumstance attending the commission of the
crime, the said accused are sentenced to the penalty of reclusion
perpetua, with the accessory penalties prescribed by law, to pay
jointly and severally, the heirs of the deceased Rolando Abellana
the amounts of P18,000.00 representing indemnification for death
and P180.00 representing the money stolen, without subsidiary
imprisonment in case of insolvency, and to pay the proportionate
cost.
“IT IS SO ORDERED.” (Rollo, p. 9)
The aforesaid judgment as to accused Ernesto Parola has
not yet been promulgated by the court a quo since the said
accused escaped after arraignment and has not been re-
arrested to date. Accused Cesar Paredes, on the other hand,
remains at large and does not appear to have been
arraigned before the trial court.
The antecedent facts of the case are as follows:
On November 3, 1977, the dead body of Rolando
Abellana, a taxi driver, was found at Doña Faustina Village,
Quezon City, with stab wounds. Dr. Rolando Madrid,
Medico-Legal Officer of the NBI, conducted an autopsy on
the corpse and found that the cause of death is hemorrhage,
acute, profuse, secondary to multiple stab wounds on the
chest and neck.
On November 23, 1977, accused Jovito Tujon and Ernesto
Parola were arrested by the police and turned over to the
Criminal Investigation Division, Quezon City Police Depart-
562
562 SUPREME COURT REPORTS ANNOTATED
People vs. Tujon
ment, where they allegedly confessed to the commission of
the crime.
On December 1, 1977, an information was filed by
Assistant Fiscal Jesus T. Baldonado before the Court of
First Instance of Rizal, Seventh Judicial District, Quezon
City, charging the accused of robbery with homicide having
been committed as follows:
“That on or about the 3rd day of November, 1977, in Quezon City,
Philippines, the above-named accused, with intent of gain, by the
use of violence and intimidation, conspiring with, confederating
together and mutually helping one another, with co-accused,
ANTONIO MENA Y BALDESIMO, a minor who is also charged
with the same offense in the Juvenile and Domestic Relations
Court, Quezon City, did, then and there wilfully, unlawfully and
feloniously rob one ROLANDO ABELLANA Y FABROA, a taxi
driver of EH taxi in the following manner, to wit: on the date and
in the place aforementioned, said accused pursuant to their
conspiracy boarded the taxicab and thereafter, the above-named
accused, armed with a (sic) knives and pointed their knives to the
said victim, who struggled and in the course of struggle was
stabbed at the chest and neck, thereby inflicting upon him serious
and mortal wounds which were the direct and immediate cause of
his untimely death; that after the said attack upon said Rolando
Abellana y Fabroa, said accused, did then and there take, rob and
carry away his day’s earning in the amount of P180.00, Philippine
Currency, to the damage and prejudice of the heirs of the said
Rolando Abellana y Fabroa and in such amount as may be
awarded to them under the provisions of the Civil Code.
“CONTRARY TO LAW.” (Rollo, p. 2)
Upon arraignment, accused-appellant and Ernesto Parola
entered a plea of not guilty. Thereafter trial on the merits
ensued.
There is no eyewitness for the prosecution. To establish
the case against the accused, the prosecution relied mainly SAGOT:
on the extra-judicial confessions of the former taken down 02 T:
by Det. Armando Estrada.
The extra-judicial confession of Ernesto Parola y Cortina
(Exhibit “A”, Original Records) reads: 03
“MALAYA AT KUSANG LOOB NA SALAYSAY NI ERNESTO
PAROLA Y CORTINA NA KINUHA NI DET. ARMANDO B.
ESTRADA 04
563
VOL.215,NOVEMBER13,1992 563
People vs. Tujon
DITO SA CRIMINAL INVESTIGATION DIVISION, STATION 1,
NPD, MPF NGAYONG ALAS 10:15 NG UMAGA, 23 NG 05
NOVEM-BER, 1977 SA HARAP NG MGA SAKSI . . . . . . . . . . . . .
............
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-
x-x
06
01Tanong: Bago kita siyasatin ay gusto kong malaman mo ang iyong
564
mga karapatan at gusto kong malaman mo na ikaw ay 564
sinisiyasat sa salang pagpatay ng tao na may kasamang
pagnanakaw. Gusto kong maunawaan mo na ang iyong mga
karapatan ay ang mga sumusunod:
1. Na ikaw ay may karapatang manatiling tahimik sa
07
pagsisiyasat na ito.
2. Na ikaw ay may karapatang kumuha ng iyong sariling
abogado para tulungan ka sa pagsisiyasat na ito.
3. Na ikaw ay may karapatang pagkalooban ng abogado kung
ikaw ay walang ikakayang kumuha ng iyong sariling
abogado.
4. Na ang lahat ng sasabihin mo rito ay maaring gamitin laban o
panig sa yo sa alin mang hukuman sa Pilipinas. Naunawaan
mo ba ang iyong mga karapatan at handa ka pa rin bang
magbigay ng isang malaya at kusang loob na salaysay na
hindi ka tinakot, sinaktan o pinangakuan ng ano mang
pabuya?
Opo. (SGD) ERNESTO PAROLA Y CORTINA
Ikaw ba ay marunong bumasa at umintindi ng wikang
tagalog?
S: Opo.
T: Ano ang pinakamataas na inabot mo sa iyong pagaaral?
S: Grade six lang po.
T: Ano ang iyong pangalan at iba pang bagay na may kinalaman
sa iyong pagkatao?
S: ERNESTO PAROLA Y CORTINA, 18 na taong gulang,
binata, pahinante sa PIER 8, tubo sa Macrohon, Southern
Leyte at naninirahan sa No. 3377 Mithi St., Tondo, Manila.
T: Ano ang dahilan kung bakit ka naririto sa aming tanggapan at
nagbibigay ng isang malaya at kusang loob na salaysay?
S: Dahil sa hinuli po kami ng mga pulis na hindi ko kilala na
sila raw taga YOUTH AID BUREAU at kami po ay ibinigay
dito sa Criminal Investigation Division, Station 1, NPD, MPF
dahil sa salang pagpatay at pagholdup.
T: Kailan ba kayo nahuli ng mga pulis?
SUPREME COURT REPORTS ANNOTATED
People vs. Tujon
S: Noon pong mga alas 3:00 ng hapon, Linggo, 20 ng November,
1977 doon po sa Mithi St., Tondo, Manila.
T: Ipinapakita ko sa iyo ang isang litrato, ano ang masasabi mo sa
taong ito at natandaan mo ba ang taong ito? (Affiant being
shown the picture of one ROLANDO ABEL- LANA Y
FABROA, 27 years old, married, EH TAXI driver,native of
 Davao Del Sur and residing at No. 188 Sauyo Road, Novaliches, People vs. Tujon
Quezon City who was killed after having been held up and the ang nagmaneho ng taxi ay si CESAR
body of which (sic) was dumped at Tandang Sora, Quezon City. PAREDES na nakatira sa Mithi St.,
S: Opo.Nakilala ko po yan. Yan po ang taong hinoldup namin at Tondo, Manila. Pagkatapos po ay
aming pinatay at pagkatapos po ay itinapon namin doon sa ipinagbili po nila ang metro ng taxi.
Tandang Sora, Quezon City subalit hindi ko po matiyak ang Hindi ko po alam kung magkano nila
exactong lugar. ibinenta at kung saan nila ibinenta
08 T: Kailan at saan ninyo hinoldup itong taong ito? sapagkat hindi na po kasama noon, pero
S: Hindi ko po matandaan kung kailan subalit natatandaan ko po na binigyan po ako ng P20.00. Ako po
sa unang linggo ng November, 1977 doon po sa Moriones, noon ay nagpaiwan na dito sa may
Tondo, Manila subalit dinala namin siya sa Balintawak, Quezon Blumentrit, (palengke) at sila ay dala pa
City doon po sa may highway na hindi ko masyadong matiyak rin nila ang taxi.
ang lugar at doon namin siya sinaksak at kinunan ng pera at nang 11 T: Hindi mo ba alam kung saan nila dinala
siya ay patay na ay isinakay namin uli sa taxi at dinala namin sa yong taxi?
Tandang Sora, Quezon City at doon namin itinapon. S: Hindi ko po alam sir.
09 T: Natatandaan mo ba kung ano ang pagkatao ng taong yan sa 12 T: Magkano naman ang nakuha niyong
sinasabi mong pinatay ninyo at itinapon sa Tandang Sora, pera doon sa driver na pinatay niyo?
Quezon City? S: Ang sabi po ni CESAR PAREDES at
S: Siya po ay driver ng TAXI na hindi ko natatandaan ang pangalan saka si JUNIOR ay P180.00.
na ang kulay po ng taxi ay kulay pula na may guhit na dilaw sa 13 T: Magkano naman and ibinigay sa yo
katawan. bilang parte mo doon sa perang
10 T: Maari bang isalaysay mo sa akin kung papano ninyo hinoldup naholdup niyo?
ang taong yan? S: Binigyan po kami ng P20.00. Ang sabi
S: Noon pong mga alas 10:00 ng gabi, linggo, 20 November, 1977 po ni CESAR at saka ni JUNIOR ay
pinara po namin ang taxing minamaneho nitong taong ito tama na raw and parte naming P20.00.
(affiant referring to the picture of ROLANDO ABELLANA) at 14 T: Sino-sino ba ang mga kasama mo sa
kami ay sumakay at pagkatapos ay dinala namin sa Balintawak, pagholdup dito sa taxi driver na ito?
Quezon City. Pagdating po namin doon ay pinahinto po namin S: Sina CESAR PAREDES na nakatira sa
ang taxi at pagkatapos ay kinuha namin ang kanyang pera at Mithi St., Tondo, Manila, si JUNIOR
pagkatapos ay nakatakbo. Nang tumakbo siya ay hinabul namin na taga Mithi din, si JOVITO TUJON
at nang inabutan namin ay sinaksak namin. Nang siya ay patay na taga Mithi St., Moriones, Tondo,
na ay isinakay namin uli sa taxi at pagkatapos ay tinapon namin Manila at saka si ANTONIO MENA na
doon sa Tandang Sora, Quezon City. Pagkatapos naming itapon taga Mithi St. din at saka ako.
ay dinala namin ang taxi at 15 T: Ano ang partisipasyon mo sa pagpatay
565 doon sa taxi driver (ROLANDO
VOL.215,NOVEMBER13,1992 565 ABELLANA)?
 S: Ako po ang humawak sa kamay niya at 22 T: Alin yong napatay niyo na kasama ka?
pagkatapos po ay sinaksak ko rin siya. S: Yong pong itinapon namin sa Tandang Sora, Quezon City.
16 T: Ano naman ang partisipasyon noong 23 T: Bakit niyo pinatay ang taong ito?
mga kasama mo? S: Sapagkat sinabi po ni CESAR at saka ni JUNIOR na patayin
S: Si CESAR PAREDES ang humawak sa daw namin kaya po namin pinatay.
ulo at pagkatapos ay sinaksak niya, si 24 T: Ilang beses ka nakasama sa pangho-holdup?
JUNIOR ay sumaksak din, si JOVITO S: Apat na beses na po ako nakasama sa kanila. Dalawang jeep at
TUJON ay sumaksak din, at si saka dalawang taxi. Nakalimutan ko na po ang pangalan nang
ANTONIO MENA ay sumaksak din. mga taxi.
17 T: Ano ang ginamit mo sa pagsaksak doon 25 T: Sabihin mo kung saan at kung kailan niyo hinoldup ang
sa taxi driver? binanggit mo?
S: Isang kutsilyong stainless at ang aking S: Yon pong dalawang jeep ay doon sa Novaliches, Quezon City at
mga kasama ay balisong at ice pick ang yong isang taxi ay sa Balintawak, Quezon City at yong isa ay sa
kanilang ginamit. Novaliches, Quezon City.
18 T: Nasaan ngayon ang kutsilyong 26 T: Ilan bang grupo ang sinasamahan mo?
pinangsaksak mo? S: Ang sinasamahan ko lang ay ang grupo ni CESAR at saka si
S: Naki JUNIOR po at ang lahat ng JUNIOR.
kutsilyong ginamit namin ay sa kanya. 27 T: Maliban sa pagholdup ng taxi ay umaakyat din ba kayo ng bahay
19 T: Nasaan naman ang mga kasama mong para magnakaw?
binanggit mo? S: Opo. Umaakyat din po kami ng bahay para magnakaw.
S: Ang dalawa na sina JOVITO TUJON at 28 T: Ilang beses na kayo umakyat sa bahay?
si ANTONIO MENA ay kasama kong S: Dalawang beses po yong nasamahan ko sa kanila na umakyat
nahuli subalit sila CESAR at si kami ng bahay.
566 29 T: Natatandaan mo ba kung saang bahay yong inakyat ninyo?
566 SUPREME COURT REPORTS ANNOTATED S: Hindi ko po alam sabihin ang lugar subalit alam ko po kung
People vs. Tujon pupuntahan ko.
JUNIOR ay nakatakas at sila ngayon ay nagtatago. 30 T: Ano-ano ang mga bagay na nakuha niyo nang kayo’y umakyat
20 T: Maari bang ilarawan mo yong taxi driver na pinatay niyo sa bahay?
matapos niyong kunin ang kanyang kita at itinapon niyo sa S: Ang nakuha po namin ay PHONO, RADIO, SAPATOS,
Tandang Sora, Quezon City? DAMIT, CALDERO, KALAN NA BUMBA.
S: Siya po ay mahabang buhok, katamtaman lang ang katawan, 31 T: Saan ninyo ibinebenta ang mga ninakaw niyo?
mga 27 na taong gulang, may kaunting biguti, kayumanggi ang S: Ibinebenta namin doon din sa Mithi St., Moriones, Tondo,
kulay. 567
21 T: Natatandaan mo ba kung ilan nang tao ang pinapatay niyo dahil VOL.215,NOVEMBER13,1992 567
sa holdup? People vs. Tujon
S: Isa lang ang napatay na kasama po ako. Manila.
 32 T: Magkano niyo ibinenta yong PHONO Armando B.Estrada on November 23, 1977 (Exhibit “B”,
at saka yong RADIO? Original Records),reads:
S: Yong pong PHONO ay P150.00 at “MALAYA AT KUSANG LOOB NA SALAYSAY NI JOVITO
yong radio ay P125.00. TUJON Y TAPEL NA KINUHA NI DET. ARMANDO B.
33 T: Yong bang grupo niyo nina CESAR, ESTRADA DITO SA CRIMINAL INVESTIGATION DIVISION,
JUNIOR, JOVITO, at si ANTONIO ay STATION 1, NPD, MPF NGAYONG ALAS 1:45 NG HAPON, 23
mayroon bang baril? NG NOVEMBER, 1977 SA HARAP NG MGA SAKSI . . . . . . . . . . .
..........................
S: Si CESAR po ay may baril na .22 568
caliber. Si JUNIOR ay Parolee. 568 SUPREME COURT REPORTS ANNOTATED
34 T. Yong mga metro ng taxi na kinuha People vs. Tujon
ninyo, saan ninyo ibinibenta?
01 Tanong:Bago kita tanongin ay gusto kong malaman mo ang
S: Hindi ko po alam kung saan nila
iyong mga karapatan sa ilalim ng ating bagong saligang batas na
ibinibenta. Ang nakakaalam ay si
ikaw ay:
CESAR, si JUNIOR at si JOVITO.
1. May karapatang manatiling tahimik sa pagsisiyasat na ito.
35 T: Wala na akong itatanong sa yo,
2. May karapatang kumuha ng iyong sariling abogado para
mayroon ka bang nais bawasin o
tulungan ka sa pagsisiyasat na ito.
idagdag sa salaysay mong ito?
3. May karapatang pagkalooban ng abogado kung ikaw ay walang
S: Wala na po.
ikakayang kumuha ng iyong sariling abogado.
36 T: Lalagdaan mo ba ang salaysay mong ito
4. Ang lahat ng sasabihin mo rito ay maaring gamitin laban o
bilang patunay na ang mga sinabi mo
panig sa yo sa alin mang hukuman sa Pilipinas.
rito ay pawang katotohanan?
Gusto ko ring malaman mong ikaw ay sinisiyasat sa kasong pagpatay ng
S: Opo.
tao na may kasamang pagnanakaw. Ikaw ba ay handa pa ring magbigay
37 T: Ang paglagda mong ito ay hindi kita
ng isang malaya at kusang loob na salaysay na hindi ka tinakot, sinaktan
tinakot, sinaktan at pinangakuan ng ano
o pinangakuan ng ano mang pabuya o kaluwagan sa katawan?
mang pabuya or kaluwagan sa buhay?
Sagot: Opo. (SGD) JOVITO TUJON Y TAPEL
S: Opo.
02 T: Ikaw ba ay marunong bumasa at umintindi ng wikang tagalog?
(SGD) ERNESTO PAROLA Y CORTINA
S: Opo.
Nagsalaysay
03 T: Ano ang pinakamataas na inabot mo sa iyong pagaaral?
“Statement taken by:
S: Grade six lang po.
Det. ARMANDO B. ESTRADA
04 T: Ano ang iyong pangalan at iba pang bagay na may kinalaman sa
Investigator, H & A Sec.
iyong pagkatao?
MGA SAKSI SA PAGLAGDA:
S: JOVITO TUJON Y TAPEL, 22 na taong gulang, binata,
1. (SGD) 2. (SGD)
trabahador, tubo sa Ogbong Biga, Catanduanes at naninirahan sa
Det. Enrico Larga Augusto Perlada”
No. ___ Mithi St., Moriones, Tondo, Manila.
On the other hand, the extra-judicial confession of 05 T: Ano ang dahilan kung bakit ka naririto sa aming tanggapan at
appellantJovito Tujon y Tapel, likewise taken by Det.
 nagbibigay ng isang malaya at kusang loob na salaysay? 13 T: Maari bang isalaysay mo sa akin kung
S: Dahil po sa pagpatay doon po sa taxi driver na hindi ko po papano ninyo hinoldup at pinatay yong
nakikilala. tao na taxi driver?
06 T: Nalalaman mo ba kung anong taxi ang minamaneho noong taong S: Noon pong mga alas 9:00 ng gabi hindi
pinatay niyo? ko na po matandaan ang petsa subalit
S: Hindi ko na natandaan yong pangalan ng taxi subalit ang natatandaan ko po na unang linggo ng
natatandaan ko po ay kulay blue at mayroon pang ibang kulay na November, 1977 kami po ay sumakay
hindi ko po natandaan. sa taxi na hindi ko po matandaan ang
07 T: Kailan at saan niyo pinatay ang driver ng taxi na yan? pangalan at pagkatapos po ay dinala po
S: Hindi ko po natandaan ang petsa pero unang linggo ng November, namin siya sa Sta. Maria, Bulacan.
1977 doon po sa papuntang Sta. Maria, Bulacan at nang patay na Pagdating po namin doon ay tinutukan
ay dinala po namin doon po sa may Tandang Sora, Novaliches, po namin ng kutsilyo at tinutukan
Quezon City. naman ni CESAR ng baril at
08 T: Papano niyo pinatay ang taxi driver na ito? pagkatapos ay ibinalik namin doon sa
S: Sinaksak po namin. may tulay doon din sa Sta.
569 Maria,Bulacan at pagkatapos po ay
VOL.215,NOVEMBER13,1992 569 pinahinto po namin doon sa may tulay
People vs. Tujon at pagkatapos po ay kinuha namin ang
09 T: Anong uri ng patalim ang ginamit niyo kanyang pera. Pagkatapos po niyang
sa pagsaksak sa kanya? iyabot yong pera ay parang natakot
S: Kutsilyo po na pangkusina na stainless yong driver at biglang tumakbo at
na may ganito kahaba po. (Affiant pagkatapos po ay hinabul namin.
demonstrating a length of about 8-1/2 Ngayon po ay inabutan ng aking mga
inch) Yong mga kasama ko po ay kasama at pagkatapos po ay ibinalik po
talagang dagger at yong iba naman po namin doon sa may taxi at pagkatapos
ay ice pick. po ay nagtaas ng kamay yong driver at
10 T: Ilang beses mo sinaksak ang taong ito? pagkatapos po ay sinaksak na ni
S: Dalawa po. CESAR. Pagkatapos po ay sinaksak ni
11 T: Mayroon ka bang nalalamang dahilan NESTOR (Real name is ERNESTO
kung bakit niyo sinaksak ang taong ito? PAROLA). Pagkatapos po ay itinulak
S: Hinoldup po namin pagkatapos po ay po ni CESAR sa akin at sinabing
pinatay po namin. saksakin mo rin kaya ko po sinaksak
12 T: Magkano namang pera ang nakuha din. Pagkatapos po ay naghihingalo na
ninyo sa kanya? po yong driver ay isinakay po namin
S: P180.00 na perang cash ang nakuha siya sa taxi niya at pagkatapos po ay
namin sa kanya. dinala namin doon sa may Tandang
 Sora, Novaliches, Quezon City at doon S: Hindi ko na po natandaan ang kulay ng kanyang pantalon subalit
namin itinapon. Ang lugar na natandaan ko po na ang kanyang polo shirt ay kulay abo (gray).
pinagtaponan po namin ay canal. 18 T: Isa-isahin mo nga kung sino-sino yong mga kasama mo doon sa
Pagkatapos po noon ay sumakay na holdup at nagpatay doon sa taxi driver na yon?
naman po kami doon sa kanyang taxi at S: Si CESAR PAREDES, si JUNIOR, ERNESTO PAROLA
kami po ay nagtuloy sa may (NESTOR-alias), at si ANTONIO MENA na lahat ay taga Mithi
MORIONES, Tondo, Manila. Kami po St., Moriones, Tondo, Manila (Squatter’s Area).
ni ANTONIO MENA at si ERNESTO 19 T: Ano-ano ang mga armas na dala ninyo doon nang hinoldup
PAROLA ay nagpaiwan na po doon sa ninyo itong taxi driver na ito?
Moriones, Tondo, Manila. Kami pong S: Ang may baril po ay si CESAR (.45 caliber), si JUNIOR ay may
tatlo ay umuwi na .22 caliber revolver, at lahat na kami ay puro kutsilyo na. Pero
570 maliban doon sa baril ni CESAR at ni JUNIOR ay mayroon pa
570 SUPREME COURT REPORTS ANNOTATED po silang panaksak.
People vs. Tujon 20 T: Nasaan ngayon yong mga panaksak na ginamit niyo sa pagpatay
subalit sina CESAR at si JUNIOR ay dinala nila yong taxi at doon sa taxi driver?
hindi ko po alam kung saan nila dinala yong taxi. S: Dala po ni JUNIOR at saka ni CESAR pati yong baril po ay nasa
14 T: Magkano naman ang parte mo doon sa perang hinoldup ninyo kanila.
doon sa taxi driver? 21 T: Ilang beses ka na pumatay ng tao?
S: P30.00 po ang ibinigay sa akin ni CESAR. 571
15 T: Maari bang ilarawan mo sa akin ang itsura noon taong taxi VOL.215,NOVEMBER13,1992 571
driver na hinoldup ninyo? People vs. Tujon
S: Ang edad po noong driver ay mga 27 0 28 na taong gulang, mga S: Dalawa na po na kasama po ako.
5’1" ang taas, payat po, kayumanggi po na may biguti, hindi po 22 T: Liwanagin mo nga kung saang lugar at
masyadong mahaba ang buhok, medyo maliit ang mukha na kung kailan?
mabuto at kung makikita ko ang litrato po niya ay makikilala ko S: Ang una po ay October, 1977, hindi ko
po. na po matandaan ang petsa pero pinatay
16 T: Ipinapakita ko sa yo ngayon ang isang litrato, natatandaan mo ba po namin doon sa Novaliches, Quezon
kung naririto yong taxi driver na hinoldup ninyo? City at iniwan lang po namin doon.
S: Ito po yong taong hinoldup po namin at aming pinatay doon po Yong pangalawa po ay yong taxi driver
sa Sta. Maria, Bulacan. (Affiant pointing to the picture of one po na hinoldup po namin ay pinatay
ROLANDO ABELLANA Y FABROA, an EH TAXI driver who namin sa Sta. Maria, Bulacan.
was discovered lifeless along Charles Conrad St. near Alan 23 T: Sigurado ka bang patay din yong unang
Beam St., Doña Faustina Subd ivision, Bo. Culiat, Tandang sinaksak niyong iniwan ninyo sa
Sora, Quezon City as he was shown by this investigator). Novaliches, Quezon City?
17 T: Natatandaan mo ba kung ano ang suot noong driver na pinatay S: Hindi po namin alam kung namatay yon
niyo doon sa Sta. Maria, Bulacan? o hindi.
24 T: Maari bang ilarawan mo sa akin kung damit, television (dalawa) kaserola,
ano ang itsura ni CESAR at saka si alak, Shellane na kalan, caldero, wala
JUNIOR? na po.
S: Siya po ay mga 19 na taong gulang, 28 T: Ilang lahat ang bahay na inakyat ninyo?
mga 5’3" ang taas, malaki ang katawan, S: Lima pong bahay. Hindi ko po alam
maputi, hindi masyadong mahaba ang ang address subalit alam po naming
buhok, medyo bilog ang mukha at puntahan.
matangos ang ilong, medyo guapo, ang 29 T: Saan ninyo ibinibenta ang mga
buhok ay may hati sa kanan, medyo ninanakaw ninyo?
kuba kung lumakad, mayroong S: Doon po sa Mithi St., Moriones St.,
kaunting biguti at ang hinlalaki ng Tondo, Manila. Yong television ay
kaliwang paa ay parang pataas. Si ibenenta namin sa Pasay City sa Tia ni
CESAR ay may tatlong SPUTNIK sa 572
kanang likod. Si JUNIOR naman ay 572 SUPREME COURT REPORTS ANNOTATED
mga 25 taong, gulang, mga 5’1" ang People vs. Tujon
taas, medyo maliit ang katawan, CESAR. Naibenta po namin ng P400.00.
maputi, maiksi po ang buhok dahil sa 30 T: Magkano ang parte mo rito sa lahat ng nanakaw ninyong ito?
siya ay nagpakalbo, may pagkaguapo S: P400.00 ang parte ko po.
na medyo matangos ang kanyang ilong, 31 T: Ang mga metro ng taxi na ninanakaw niyo, saan niyo ibinibenta?
may manipis na biguti, may tattoo sa S: Sa Moriones po namin ibinibenta yong iba at yong iba naman ay
tiyan. sa Marikina. Ang kasama po naming nagbenta nito ay si
25 T: Maliban sa pangholdup, kayo ba ay JUNIOR.
umaakyat din ng bahay? 32 T: Ilang metro na ang naibenta niyo?
S: Opo. Umaakyat din po kami ng bahay S: Mga walong (8) metro na po. Tatlo (3) ang naibenta sa Marikina
doon po sa Novaliches, Quezon City. at lima naman sa Moriones.
26 T: Ilang beses na kayo umakyat ng bahay? 33 T: Ilang taxi at ilang jeep ang inyong naholdup?
S: Sa Novaliches ay dalawang beses na po S: Dalawang jeep at tatlong taxi ang tinutukan namin.
umakyat ng bahay at diyan lang po 34 T: Saang lugar ninyo ninakaw ang mga taxi meter na ito?
kami umakyat ng bahay. S: Sa PIER 12 ay dalawa, sa Pier 10, tatlo, sa Moriones tatlo po.
27 T: Ano-anong mga bagay ang mga nakuha 35 T: Saan natin makukuha itong si CESAR at saka si JUNIOR?
ninyo nang kayo umakyat ng bahay? S: Si JUNIOR ay maaring sa PIER 8 si CESAR ay hindi ko po
S: Isang RADIO PHONO, pantalon, alam.
damit, kalan na di bumba, guitara. Ito 36 T: Pansamantala ay wala na akong itatanong sa yo, mayroon ka
ay isang bahay lang sa Novaliches, bang nais bawasin o idagdag sa salaysay mong ito?
Quezon City. Doon sa isang bahay ay S: Wala na po.
mayroon po kaming kinuhang pantalon, 37 T: Lalagdaan mo ba ang salaysay mong ito bilang patunay na ang
 mga sinabi mo rito ay pawang katotohanan na hindi ka tinakot,
sinaktan o pinangakuan ng ano mang pabuya o kaluwagan sa
katawan?
S: Opo.
(SGD) JOVITO TUJON Y TAPEL
STATEMENT TAKEN BY:
DET. ARMANDO B. ESTRADA
NILAGDAAN SA HARAP NG MGA SAKSI:
1. (SGD) 2. (SGD)
Det. Enrico Larga Cpl. Augusto Peralta
SUBSCRIBED AND SWORN TO BEFORE ME THIS 30 DAY
OF NOV. 1977 HERE IN QUEZON CITY, PHILIPPINES.
573
VOL.215,NOVEMBER13,1992
People vs. Tujon
(SGD) ADMINISTERING OFFICER”
In addition, the prosecution presented the following
witnesses, whose testimonies are as follows:
Det. Armando B. Estrada, a police detective of the
Northern Police District, Criminal Investigation Division,
Station I, Quezon City, identified the extra-judicial
confessions and testified that he was the officer who
received custody of the accused from the members of the
Youth Aid Bureau for investigation on November 23, 1977
(TSN, June, 21, 1978, pp. 1-2), and declared that before he
took the extra-judicial confessions of the accused-appellants,
he advised them of their constitutional rights to remain
silent, to secure the services of a counsel to assist them and
if they cannot afford to secure the services of counsel, they
will be provided with one, and that everything they will say
may be used for or against them in any court of the
Philippines (TSN, June 21, 1978, pp. 2-3). Immediately
thereafter, he asked them if after knowing their rights, they
were still willing to give their statements freely and
voluntarily. Both accused-appellants answered in the
affirmative (TSN, June 21, 1978, pp. 3-4). Appellants
allegedly further declared that they will give their
statements even without the assistance of counsel,
considering that what they will state therein would only be
the truth. Accordingly, he took the statements of the
accused without a lawyer, and both signed their confessions
in his presence (TSN, June 21, 1978, pp. 4-7).
Dr. Romulo Madrid, resident physician of the Polymedic,
Mandaluyong, testified that on November 3, 1977, he was
the one who conducted an autopsy on the corpse of one
Rolando Abellana at Funeraria Popular, one of the official
morgues of the National Bureau of Investigation and issued
Necropsy Report No. N-77-1779 (Exhibit “D”, Rollo). His
findings revealed that the victim died of hemorrhage
573
secondary to multiple stab wounds on the chest and neck
and that the probable weapon used in inflicting said stab
wounds on the victim was a sharppointed bladed instrument
(TSN, November 7, 1979, pp. 2-4).
Fiscal Jesus T. Baldonado, of the Quezon City Fiscal’s
Office, was presented as a rebuttal witness of the
prosecution. He testified that on November 23, 1977, the
accused Jovito Tujon and Ernesto Parola accompanied by
policemen were brought to
574
574 SUPREME COURT REPORTS ANNOTATED
People vs. Tujon
his office for investigation; that before he proceeded with the
said investigation, he apprised first the accused of their
constitutional rights, which was his standard operating
procedure; that he asked both accused if the statements
they executed before the police were freely given, which was
answered in the affirmative by the accused; that he let them
affix anew their respective signatures on the said
statements in his presence. He further stated that during
the said investigation, both accused did not in any way
complain that they had been maltreated by the policemen
nor did he notice any sign of injury on their persons. He
declared that it was likewise his standard operating
procedure that should he notice any sign of injury on the
persons of the accused, he would readily refer them to the
City Health Office for medical treatment (TSN, February
26, 1982, pp. 1-5).
After the presentation of the foregoing testimonial and
documentary evidence, the prosecution rested its case.
During the pendency of this case, accused Ernesto Parola
escaped from the Quezon City Jail; consequently the defense
presented only accused Jovito Tujon as its lone witness, who
vehemently denied the accusation against him.
Jovito Tujon testified that he arrived in Manila only on
November 2, 1977 and that he came from the province of
Catanduanes. He came to Manila to look for a job and while
in Manila, he stayed with his uncle named Alberto Ubal in
Tondo, Manila. He was in his uncle’s house on November 3,
1977, helping him do some odd jobs. Two weeks after his
arrival, he was arrested for unknown reasons. He also
testified that he did not know his other co-accused, namely:
Ernesto Parola, Cesar Paredes and Antonio Mena. He came
to know the other accused Ernesto Parola only at the police
precinct when they were arrested.
Accused-appellant Tujon further testified that while he
was at the police precinct, he was made to face the wall and
was kicked from behind for which reason he fell on the floor
in a sitting position. He was then brought to a room where
he was given fist blows. Then he was asked to lie on a bench
with his hands tied behind him. A rag was placed inside his
mouth and water was poured in his nose while his stomach
was being boxed, causing him to vomit. He further testified
that the policemen asked him to admit his participation in
the crime and
575
VOL.215,NOVEMBER13,1992 575
People vs. Tujon
if not, they would box him again. The policemen asked him
to sign a paper the contents of which he did not know. He
did not have a chance to read the said piece of paper
considering that all parts of his body were painful as a
result of the said mauling. Neither did he have a chance to
receive medical attention (TSN, February 24, 1982, pp. 1-2).
He further declared that he did not know that accused
Ernesto Parola implicated him in the alleged robbery holdup
of a certain Rolando Abellana. He had nothing to do with
the offense charged against him and that he could not
remember having been investigated by Det. Armando
Estrada regarding this case (TSN, February 24, 1982, pp. 2-
3).
The trial court gave more weight to the evidence of the
prosecution consisting mainly of the extra-judicial
confessions of the accused, and, as earlier stated, found both
accused Ernesto Parola and Jovito Tujon, guilty as charged.
Hence, this appeal.
On March 18, 1987, accused-appellant Jovito Tujon filed
an urgent motion to withdraw appeal (Rollo, p. 110) but
counsel for appellant in his comment on the motion, prayed
that the said urgent motion to withdraw appeal filed by
Tujon be disregarded, as it was merely a by-product of
misjudgment. The motion to withdraw appeal was then
denied by this Court.
Among others, counsel for appellant contends that the
court a quo gravely erred in convicting the two accused of
the crime charged by relying heavily on their respective
extra-judicial confessions, which are clearly not admissible
in evidence in the instant case.
The Solicitor General agrees with counsel for appellant
that the evidence presented is not sufficient to sustain
conviction. He correctly observed that it was not even shown
by the evidence how appellant came to be suspected of the
robbery and killing and subsequently arrested. The evidence
against the accused consists solely of their extrajudicial
confessions. There is no eyewitness and not even a single
circumstantial evidence pointing to the accused as the
perpetrators of the crime (Rollo, pp. 89-90). Compared with
the evidence of the prosecution, the claim of Tujon that he
has just arrived in Manila to look for a job when he was
arrested by the police for unknown reason, is more
persuasive.
576
576 SUPREME COURT REPORTS ANNOTATED
People vs. Tujon
Furthermore, it was observed that the extra-judicial
confessions are not even consistent with each other nor
credible. In the extra-judicial confession of Ernesto Parola y
Cortina, the victim was killed in Quezon City and his body
was dumped at Tandang Sora, Quezon City while in the
extra-judicial confession of Jovito Tujon y Tapel, the victim
was killed in Sta. Maria, Bulacan. Similarly, in the former,
it was stated that the killing occurred on November 20,
1977, while in the latter, the killing was supposed to have
taken place in the first week of November, 1977. Notably,
the body was found on November 3, 1977. Still further,
Parola stated that the color of the taxi is red while according
to Tujon, the color is blue (Rollo, pp. 90-96). It is therefore,
evident that the veracity of aforesaid confessions is not
acceptable.
But more importantly, while it is clear from the records
that the accused were informed of two (2) constitutional
rights, namely: (1) the right to remain silent and (2) the
right to be assisted by counsel of their own choice, it is not
clear that they were actually offered the services of a lawyer
and they refused. In any event, it is undisputed that the
waiver of the accused of their right to counsel was made
without the assistance of counsel.
This Court has ruled that the right of a person under
custodial interrogation to be informed of his right to remain
silent and to counsel, implies a correlative obligation on the
part of the police investigator to explain and contemplate an
effective communication that results in an understanding of
what is conveyed. Short of this, there is a denial of the right,
as it cannot truly be said that the accused has been
“informed” of his right (People v. Newman, 163 SCRA 496,
[1988]). When the Constitution requires a person under
investigation to be informed to remain silent and to counsel,
it must be presumed to contemplate the transmission of
meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle
(People v. Flores, 165 SCRA 71 [1988]). It is the duty of the
police officer to explain their practical effects (People v.
Nicandro, 141 SCRA 289 [1986]). Thus, it would not suffice
for a police officer just to report to the person under
investigation the provision of Section 20, Article IV of the
Constitution (now Art. III, Section 12, 1987 Constitution;
People
577
VOL.215,NOVEMBER13,1992 577
People vs. Tujon
v. Flores, supra.
As pointed out by this Court in People v.
Nicandro, supra):
“When the Constitution requires a person under investigation ‘to
be informed’ of his right to remain silent and to counsel, it must
be presumed to contemplate the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle. As a rule,
therefore, it would not be sufficient for a police officer just to
repeat to the person under investigation the provisions of Section
20, Article IV of the Constitution. He is not only duty-bound to
tell the person the rights to which the latter is entitled; he must
also explain their effects in practical terms x x x. In other words,
the right of a person under interrogation ‘to be informed’ implies
a correlative obligation on the part of the police investigator to
explain, and contemplates an effective communication that
results in understanding what is conveyed. Short of this, there is
a denial of the right, as it cannot truly be said that the person has
been ‘informed’ of his rights. Now, since the right ‘to be informed’
implies comprehension, the degree of explanation required will
necessarily vary, depending upon the education, intelligence and
other relevant personal circumstances of a person under
investigation. Suffice it to say that a simpler and more lucid
explanation is needed where the subject is unlettered.”
In the case at bar, and in the testimony of the police officer,
it is undeniable that no serious effort was shown to have
been exerted by the investigators to explain the
consequences of the investigation. On the investigator is
reposed the duty to explain the effects of the constitutional
rights in practical terms (People v. Duhan, 142 SCRA
100[1986]).
Furthermore, this Court has consistently ruled that
waiver of right to counsel to be valid, must be in writing and
in the presence of counsel. Extra-judicial confessions taken
without the assistance of counsel is inadmissible in evidence
(People v. Albofera, 152 SCRA 123 [1987]). Hence, while the
right to counsel may be waived, such waiver must be done
voluntarily, knowingly and intelligently and made in the
presence of the accused’s lawyer. If the records do not show
that the accused was assisted by counsel in making his
waiver, this defect nullifies and renders inadmissible in
evidence his confession (People v. Nolasco, 163 SCRA 623,
[1988]. In the case of People v. Hizon, 163 SCRA 760 (1988),
this Court, citing the procedure laid
578
578 SUPREME COURT REPORTS ANNOTATED
People vs. Tujon
down in the case of People v. Galit, 135 SCRA 465 [1985]),
ruled that the suspect must be informed that he has a right
to the assistance of counsel and assured that he will be
provided with one for free. While he may choose to waive the
right, such waiver must be a knowing and intelligent one
and in any case must be made only with the assistance of
counsel. Any waiver made without observance of these
requirements is null and void. Thus:
“At the time the person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed
of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him.
The person arrested shall have the right to communicate with his
lawyer, a relative, or anyone he chooses by the most expedient
means—by telephone if possible—or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that
this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived but the waiver
shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down,
whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.” (Morales, Jr. v. Ponce Enrile, 121
SCRA 538 [1983]).
Indeed, the ban against uncounseled confessions is even
more pronounced under Sec. 12, Art. III of the 1987
Constitution which states that:
“SEC.12.(1)Any person under investigation for the commission of
an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
xxx xxx xxx
3)Any confession or admission obtained in violation of this xxx
shall be inadmissible in evidence against him.” (See also People v.
Nicolas, 204 SCRA 191 [1991]).
579
 VOL.215,NOVEMBER13,1992 579 remaining at large up to now, we have to concede, however, that
People vs. Tujon our disquisition in this case is applicable and favorable to him,
It is a matter of record that the interrogation was made in hence he is affected by and shall benefit from the acquittal that
we hand down in this appeal.”
the absence of counsel de parte or de oficio and the waiver of
WHEREFORE, the appealed decision is REVERSED and
counsel, if made at all, was not made with the assistance of
SET ASIDE and both accused are hereby ACQUITTED.
counsel as required. Under the circumstances, there is no 580
question that proof of guilt beyond reasonable doubt has not 580 SUPREME COURT REPORTS ANNOTATED
been established. As ruled by this Court, when the evidence Caltex (Philippines), Inc. vs. Intermediate Appellate Court
for the prosecution and the evidence for the accused are
SO ORDERED.
weighed, the scales must be tipped in favor of the latter.
Gutierrez, Jr. (Chairman), Davide,
This is because of the constitutional presumption of
Jr., Romero and Melo, JJ., concur.
innocence the accused enjoys as a counterfoil to the
Decision reversed.
awesome authority of the State that is prosecuting him.
Note.—Waiver of right to counsel must be voluntary,
Undoubtedly, if a life is taken, justice demands that the
knowingly, intelligently and must be with the assistance of
wrong be redressed, but the same justice that calls for
counsel (People vs. Ampo-an, 187 SCRA 173).
retribution cannot convict the prisoner at bar whose guilt
has not been proved beyond reasonable doubt. The element ——o0o—–
of doubt, if reasonable as in this case, must operate against
the inference of guilt the prosecution would draw from its © Copyright 2018 Central Book Supply, Inc. All rights reserved.
evidence (People v. Pecardal, 145 SCRA 647-648 [1986]).
As aforesaid, no promulgation of judgment was rendered
with respect to Ernesto Parola who managed to escape from
jail shortly after arraignment.
Considering, however, that the crime charged had not
been proven beyond reasonable doubt and the disposition
herein arrived at is favorable to accused Ernesto Parola, he
shall benefit from the judgment of this Court which is
acquittal despite the fact that he jumped bail. In this
regard, apropos is the pronouncement of this Court in
People vs. Fernandez (186 SCRA 834 [1990]), viz.:
“While, in effect, he committed an act of defiance of the law by
escaping, we are not without other prior incidents where such
undesirable conduct, which should not be condoned, has
sometimes been ascribed to a sense of desperation of those who
believe they are guiltless but fear that they cannot prove their
innocence. While we castigate and reprove his jumping bail and
 VOL. 370, NOVEMBER 27, 2001 531
People vs. Ladao
G.R. Nos. 100940-41. November 27, 2001. *
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs.AGUSTIN LADAO y LORETO, ALEX DE
GUZMAN y MAGAT, HENRY PONSECA y SORIANO,
ANTONIO PANGANIBAN y AQUINO, VICTORIO
EUGENIO y ROQUE, John Doe, Peter Doe and Charlie Doe,
accused. HENRY PONSECA y SORIANO, accused-
appellant.
Constitutional Law; Confessions; A confession is admissible
until the accused successfully proves that it was given as a result
of violence, intimidation, threat, or promise of reward or
leniency.—Settled is the rule that once the prosecution has shown
that there was compliance with the constitutional requirement on
pre-interrogation advisories, a confession is presumed to be
voluntary and the declarant bears the burden of proving that his
confession was involuntary and untrue. The burden is on the
accused to destroy this presumption. A confession is admissible
until the accused successfully proves that it was given as a result
of violence, intimidation, threat, or promise of reward or leniency.
Same; Same; Having been obtained without infringing the
Constitutional safeguards, accused-appellant’s confession
constitutes evidence of the highest order.—Having been obtained
without infringing the Constitutional safeguards, accused-
appellant’s confession constitutes evidence of the highest order
since it is backed up by the strong presumption that no person of
normal mind would deliberately and knowingly confess to a crime
unless he is prompted by truth and his conscience.
APPEAL from a decision of the Regional Trial Court of
Kalookan City, Br. 131.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Angara, Abello, Concepcion, Regala & Cruz Law
Offices for accused-appellant.
_______________
*FIRST DIVISION.
532
532 SUPREME COURT REPORTS ANNOTATED
People vs. Ladao
YNARES-SANTIAGO, J.:
Accused-appellant Henry Ponseca y Soriano appeals from
the Decision of the Regional Trial Court of Caloocan City,
1
Branch 131, convicting him and his four co-accused of the 2
crime of robbery with homicide, sentencing them to suffer
the penalty of reclusion perpetua, and ordering them to pay
the heirs of the victim the amounts of P30,000.00, as civil
indemnity and P10,500.00, as burial and wake expenses.
The information against accused-appellant reads:
That on or about the 29th day of January, 1990 in Caloocan City,
Metro Manila and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring together and mutually
helping one another, with intent to gain and by means of force
and violence employed upon the person of ALFONSO DELA
CRUZ Y QUIAMBAO, that is, by tying the latter’s both hands
and feet and subsequently dumping his body at the estero in
Tanigue St., Dagat-Dagatan, this city, did then and there wilfully,
unlawfully and feloniously take, rob and carry away
undetermined amount, belonging to the said complainant, to the
damage and prejudice of the latter in undetermined amount; and
as a result of aforesaid force and violence employed to said victim,
the latter drowned at the estero which incident directly caused
his death.
Contrary to law. 3
Upon arraignment on February 19, 1990, accused-appellant
pleaded not guilty.
The records show that accused-appellant was among
those apprehended by the Caloocan Police on the night of
February 9, 1990, in connection with the rampant robbery
and hold-up incidents in Caloocan. In the ensuing
investigation conducted by Police Inspector Antonio Paras SAGOT: OPO.
and Ricardo Concepcion, accused-appellant and his co- 2- Karapatan mong malaman ang reklamo laban sa iyo, nauunawan mo
accused executed, with the assistance of Atty. Juanito R. ba ito?
Crisostomo of the Public Attorney’s Office, Caloocan City, SAGOT: OPO.
their 3- Karapatan mong kumuha ng ayuda ng abogadong sariling pili mo at
kung hindi mo kaya ito ay bibigyan ka ng ating pamahalaan para
_______________ umayuda sa iyo, nauunawaan mo ito?
1 Penned by Judge Antonio J. Fineza. SAGOT: OPO.
2 Accused Agustin Ladao y Loreto was further convicted for Illegal 4- At anumang sasabihin mo’y maaring gamiting laban sa iyo sa alin
Possession of Firearms. mang hukuman ng pag-uusig, nauunawan mo ba ito?
3 Rollo, p. 6.
SAGOT: OPO.
533
TANONG: Matapos mong malaman at maunawaan ang iyong mga
VOL. 370, NOVEMBER 27, 2001 533
karapatan bilang isang taong nasa ilalim ng pagsisiyasat, ikaw ba’y
People vs. Ladao
nakahandang magbigay ng malaya at kusang loob na salaysay na
extra-judicial confession admitting authorship of the crime
ang sasabihin mo’y pawang katutuhanan lamang?
of robbery with homicide.
SAGOT: Opo, magbibigay po ako ng salaysay at aayudahan ako ni
In his extra-judicial confession, accused-appellant
Atty. Juanito Crisostomo ng Caloocan Public Assistance Office.
declared that he and his four co-accused, together with three .
others who were able to escape, held up the passenger 534
jeepney driven by the victim. He further stated that they 534 SUPREME COURT REPORTS ANNOTATED
tied the hands and feet of the victim and threw him into People vs. Ladao
the estero not knowing that the place was filled with water. 02. T: Kung gayon, sabihin mong muli ang pangalan mo’t mga bagay-
Using the jeepney of the victim, they plied the Recto- bagay na lubos na pagkikilanlan sa iyong pagkatao?
Caloocan route and picked up passengers whom they S: HENRY PONSECA y SORIANO, 30 taong gulang, may asawa,
likewise robbed. Thereafter, they abandoned the jeepney walang trabaho at kasalukuyang naninirahan sa 2741-G Santos
somewhere in the corner of P. Sevilla Street and 10th St., Gagalangin, Tondo, Manila.
Avenue. 03. T: Marunong ka bang sumulat, bumasa at umintindi ng salitang
The full text of accused-appellant’s extra-judicial Tagalog?
confession states: S: Marunong po.
PAUNAWA: Ikaw, Henry Ponseca ay nasa ilalim ng pagsisiyasat 04. T: Inaakusahan ka Henry Ponseca ng Pangho-HOLD-UP na may
ng tanggapang ito hinggil sa kasong panghohold-up na may
kasamang pagpatay, na naganap nuong petsa-29 ng Enero 1990,
kasamang pagpatay, dahil dito, nais kong malaman mo na sa
mga bandang alas-10 ng gabi duon sa Tanigue St., Dagat-
ilalim ng ating umiiral na Bagong Saligang-Batas, Ikaw ay may
mga karapatang katulad ng mga sumusunod: Dagatan, Caloocan City, ano ang masasabi mo rito?
1- Karapatang manatiling tahimik o tumangging magbigay ng S: Tutuo po iyun, kasama po ako.
salaysay; nauunawan mo ba ito? 05. T: Nakikilala mo ba kung sino ang namatay sa insidenteng
nabanggit?
 S: Ang namatay po duon dahil nalunod ay ang driver ng
pampasaherong jeep na aming na-HOLD-UP at dito po sa
opisina ninyo ay nakilala ko sa pangalang: Alfredo dela Cruz y
Quiambao.
06. T: Ano ba mismong naging partisipasyon mo dito sa nasabing
kaso?
S: Ako po ang umupo sa dulo ng jeep, lumimas sa mga gamit at
pera ng mga pasahero at gumapos at naghulog doon sa driver ng
jeep sa may estero duon sa Dagat-Dagatan na hindi ko alam ay
may tubig pala kaya’t nalunod itong driver.
07. T: May mga kasama ka ba dito sa pangyayaring ito?
S: Mayruon po, sila po ang ilan (Affiant at this juncture is pointing
and referring to the persons who are presently inside the
investigation room and who when asked gave their names as:
VICTORIO EUGENIO y ROQUE @ Itoy, AGUSTIN LADAO
y LORETO @ Agustin, ALEX DE GUZMAN y MAGAT @
Alex and ANTONIO PANGANIBAN y AQUINO @ Tony)
kasama pa rin po namin [sina] BAYANI @ Onse, REY at
ROWELL na taga-Caloocan din pero nakatakas.
08. T: Isalaysay mo nga ang mga pangyayaring may kinalaman sa
holdup na may kasamang pagpatay na ito?
535
VOL. 370, 535
NOVEMBER
27, 2001
People vs. Ladao
S: Nagkita-kita po kaming magkakasama sa Letre at duon
ay nagplano kaming mangho-HOLD-UP nga. Sumakay
po kami ng jeep at nagpunta kami ng Malinta,
Valenzuela. Pagdating duon, bale walo (8) kaming
magkakasama ay muli kaming sumakay ng jeep
patungong Monumento naman at itong jeep nga ay
minamaneho ng napatay namin. Ako po ay pumuesto sa
dulo ng jeep, itong sina Bayani at Alex ay lumagay
naman sa harapan ng jeep, katabi ng driver si Alex.
Ang ibang mga kasama namin ay pawang nasa loob ng
jeep. Bale anim (6) po ang pasahero ng jeep at
pagdating duon sa may Del Monte ay nag-anounce na
kami ng hold-up at inilabas na rin ni Agustin itong baril
na dala niya. Pinakanan po namin ang jeep sa Del
Monte, diretso ng Acacia at tuloy ng Caloocan. Nuon
po namin nilimas ang mga gamit at pera ng mga
pasahero at saka ibinaba sila sa ilang na lugar sa
Caloocan. Ang orihinal na driver naman po ay iginapos
namin at itong si Bayani ang nagmaneho. Pinadapa po
namin ang driver na sa kalaunan nga ay nakilala kong
si Alfredo dela Cruz sa loob mismo ng jeep at
pagdating duon sa Tanigue St. Dagat-Dagatan,
Caloocan, ay ibinaba namin siya, pinalakad ng inut-inot
patungong estero at lima (5) kami nina Bayani, Alex,
Rowel, at Rey na bumuhat sa kanya at naglaglag sa
estero, na hindi namin alam na may tubig kaya’t
namatay itong driver sa pagkalunod. Sumakay kaming
muli sa jeep at bumiyahe pa kami na si Bayani pa rin
ang driver at mula sa Recto patungong Monumento ay
hinold-up namin itong mga pasahero namin sa bandang
Manuguit at nang matapos namin silang pababain ay
inabandona namin ang jeep sa may P. Sevilla, 10th
Ave., Calookan City.
09. T: Anu-ano ba ang mga na-hold-up ninyo sa unang banat
ng gabing iyun?
S: Halu-halo na po, relo, alahas, pera, at iba pa at pumarte
po ako ng halos P170.00 lamang.
10. T: Sino’ng nagparte ng mga nahold-up ninyo?
S: Kami-kami na rin po.
11. T: Saan kayo nagparte-parte?
S: Duon na po sa Letre.
12. T: Saan mismo sa Letre?
S: Duon po sa Caltex Gasoline Station.
536
536 SUPREME COURT REPORTS ANNOTATED
People vs. Ladao
13. T: Duon ba ang tagpuan ninyo? the hold-uppers, there were four passengers, including her.
S: Opo. Hilda
14 T: Paanong nasakote ng mga alagad ng batas ang grupo ninyo?
S: Kasi po ay nagtipon-tipon kami sa Letre uli para manghold-up sa _______________

Malolos pero may naghudas pala na kasama namin kaya’t 4Exh. “D”, Records, pp. 63-64.
nasakote kami. 537
15. T: Sinong naghudas sa inyo? VOL. 370, NOVEMBER 27, 2001 537
S: Hindi po namin alam. People vs. Ladao
16. T: Ano ang mga armas na ginamit ninyo sa nasabing hold-up na pointed to accused Eugenio as the one who announced the
may kasamang pagpatay? hold-up; accused-appellant Ponseca as the one who divested
S: Puro matalas po maliban kay Alex at Agustin na kapwa may her of her bag, and accused Ladao and de Guzman as the
baril. persons who took their jewelries. The following day, she
17. T: Ano ba ang masasabi mo sa mga baril na nasa ibabaw ng aking reported the incident to the police.5

mesa ngayon?
S: Iyan po mismo ang kargada nina Alex at Agustin. Iyun pong .38
ay kay Alex at .22 naman ang kay Agustin. (Affiant at this
juncture is pointing and referring to the handguns on top of this
investigator’s table particularly described as one (1) .38 cal rev
marked Squires Bingham with SN-1102937 loaded w/ four live
ammos in its cylinder and one (1) .22 cal rev. marked
Commanche Chief with SN-105818 with four live ammos in its
cylinder.)
18. T: Pansamantala ay wala muna akong itatanong sa iyo, may nais ka
bang sabihin pa?
On January 30, 1990, Dominga dela Cruz, widow of the
victim, informed the authorities that her husband was
missing. On the same day, the police were able to locate the
abandoned jeepney of the victim. Recovered therefrom was
Hilda Castro’s bag containing her address and telephone
number.
On January 31, 1990, the cadaver of the victim was found
in Dagat-Dagatan, Caloocan City. The Certificate of Post
Mortem Examination issued by Dr. Valentin Bernales of the
National Bureau of Investigation revealed that the cause of
death of the victim was “Asphyxia by Drowning.” 6

S: Wala na po. For his defense, accused-appellant testified that on

19. T: Lalagdaan mo ba ang salaysay mong ito bilang patunay sa lahat
ng nasasaad dito?
S: Opo. (End of Statement, 6:00 p. m./10 February 1990)
Prosecution witness Hilda Castro, a public school teacher
and a victim in one of the hold-up incidents staged by
accused-appellant and his cohorts on the night of January
29, 1990, testified that at about 10:00 in the evening of
January 29, 1990, she boarded a passenger jeepney in
Blumentritt bound for Sta. Cruz, Manila. As they
approached Tayuman Street, the culprits declared a hold-up
and divested them of their personal belongings. Aside from
February 9, 1990, while he was in an eatery in Caloocan, he
was arrested by armed Caloocan policemen. Prior to his
4
arrest, accused-appellant declared that he did not know his
four co-accused. He denied participation in the commission
of the crime and claimed that he was tortured and forced to
sign an extra-judicial confession. Accused-appellant insisted
that he does not know Atty. Juanito Crisostomo and that he
was never assisted by him during the custodial
investigation.
 Relying on accused-appellant and his co-accused’s extra-
judicial confession, as well as on circumstantial evidence,
the trial court rendered the instant judgment of conviction.
The dispositive portion thereof reads:
WHEREFORE, the guilt of accused ALEX DE GUZMAN y
MAGAT, AGUSTIN LADAO y LORETO, HENRY PONSECA y
SORIANO, ANTONIO PANGANIBAN y AQUINO and
VICTORIO EUGENIO y ROQUE having been proven beyond
reasonable doubt, this Court hereby adjudged them GUILTY for
the crime of Robbery with Homicide sentences them to
suffer RECLUSION PERPETUA; to indemnify the heirs of the
deceased
_______________
5 TSN, July 26, 1990, pp. 16-18.
6 Exh. “F”, Records, p. 67.
538
538 SUPREME COURT REPORTS ANNOTATED
People vs. Ladao
Alfonso dela Cruz the sum of Thirty Thousand (P30,000.00)
Pesos; and to pay the sum of Ten Thousand Five Hundred
(P10,500.00) Pesos representing expenses for the wake and burial
of herein victim.
In addition, accused AGUSTIN LADAO y LORETO is likewise
adjudged GUILTY for having violated Presidential Decree No.
1866, as amended and hereby sentences him to suffer
imprisonment of SEVENTEEN (17) YEARS, FOUR (4) MONTHS
and ONE (1) DAY as minimum to TWENTY (20) YEARS as
maximum.
SO ORDERED. 7
Only Henry Ponseca appealed the trial court’s decision,
raising the following errors:
I Aliposa when he swore to the truth of his statement.
THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE
THE SIGNED CONFESSION OF MR. PONSECA AS THE SAME
WAS OBTAINED BY FORCE, TORTURE AND DURESS.
II
THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE
THE CONFESSION ALLEGEDLY SIGNED BY MR. PONSECA,
AS THE SAME WAS EXTRACTED WITHOUT THE PRESENCE
OF COUNSEL AND WITHOUT THE ACCUSED BEING
INFORMED OF HIS CONSTITUTIONAL RIGHTS. 8
The contentions are without merit. Settled is the rule that
once the prosecution has shown that there was compliance
with the constitutional requirement on pre-interrogation
advisories, a confession is presumed to be voluntary and the
declarant bears the burden of proving that his confession
was involuntary and untrue. The burden is on the accused
to destroy this presumption. A confession is admissible until
the accused successfully proves that it was given as a result
of violence, intimidation, threat, or promise of reward or
leniency. 9
_______________
7 Rollo, p. 42.
8 Rollo, p. 209.
9 People v. Suarez, 267 SCRA 119, 134-135 [1997]; citing People v. Solis,
et al., 182 SCRA 182 [1990]; People v. Estevan, 186 SCRA 34 [1990];
539
VOL. 370, NOVEMBER 27, 2001 539
People vs. Ladao
In the case at bar, aside from his bare allegations, accused-
appellant failed to present any proof that force and violence
were employed to coerce him to sign the extra-judicial
confession. He did not submit himself to an examination by
a physician to bolster his claim. Neither did he complain of
the alleged torture to his relatives or to Prosecutor Neptali
Likewise, he filed no criminal complaint or administrative
charge against the police officers concerned. As similarly
held in People v. Fabro, citing People v. Pia, all the
10 11
foregoing circumstances sufficiently show that no force or
violence was employed on accused-appellant and that his
confession was in fact given on his own volition.
Moreover, this Court agrees with the Solicitor General,
that the language of the confession and the details thereof,
could only come from a participant in the commission of the
crime. Every aspect thereof jibes with the sworn statements
given by his co-accused. His confession reflects the manner
in which the crime was committed; the kind of weapon used;
the place where they boarded the victim’s jeepney; the role
of each accused; and their relative positions inside the jeep.
Furthermore, accused-appellant’s admission that they threw
the victim in an estero filled with water confirms the result
of the post mortem examination indicating that the victim
drowned to death.
Accused-appellant contends that the extra-judicial
confession is unworthy of belief because it allegedly accepts
full responsibility for the crime charged. A guilty person,
accused-appellant argued, seldom admits his guilt fully and
completely and has the tendency to explain or minimize his
fault. A reading of accused-appellant’s confession, however,
discloses that, indeed, he tried to limit his liability by
implying that he had no intention to kill the victim as he
was not aware that the estero where they threw the victim
was filled with water. The exculpatory tone of accused-
appellant’s con-
_______________
People v. Prudente, et al., 133 SCRA 651 [1984]; People v. Parojinog, et
al., 203 SCRA 673 [1991]; and People v. Dasig, et al., 221 SCRA 549[1993].
10 277 SCRA 19, 37-38 [1997].
11 145 SCRA 581 [1986].
540
540 SUPREME COURT REPORTS ANNOTATED
People vs. Ladao
fession is demonstrative of its voluntariness rather than
compulsion. 12
Accused-appellant’s allegation that he and his co-accused
were not assisted by counsel during the custodial
investigation is belied by the affidavit executed by Atty.
Crisostomo attesting to the voluntariness of accused-
appellant’s confession and the legal assistance he rendered
during the investigation. Moreover, Atty. Crisostomo
testified that he informed accused-appellant and his co-
accused of their constitutional rights and assisted them
during the custodial investigation.
Having been obtained without infringing the
Constitutional safeguards, accused-appellant’s confession
constitutes evidence of the highest order since it is backed
up by the strong presumption that no person of normal
mind would deliberately and knowingly confess to a crime
unless he is prompted by truth and his conscience.13
It bears stressing that apart from the extra-judicial
confession, the instant judgment of conviction is supported
by other competent evidence. Hilda Castro’s testimony,
positively identifying accused-appellant and his co-accused
as the persons who robbed them between Tayuman and
Blumentritt, is on all fours with the confession of accused-
appellant and that of his co-accused that after dumping the
victim in the estero, they used the latter’s jeepney and
robbed the passengers they picked up in the Recto-Caloocan
route and vice-versa. In fact, Hilda Castro’s bag was
recovered from the abandoned jeepney of the victim, which
shows that accused-appellant and his companions were the
same persons who took away the jeepney of the victim and
killed him, and thereafter staged another hold-up where
Hilda Castro happened to be one of the victims.
Prescinding from all the foregoing, we find no reason to
alter the trial court’s judgment of conviction. We agree with
the court a quo
_______________
 12 People v. Mada-I Santalani, 93 SCRA 315, 325 [1979]; citing People v.
awarded by the trial court for wake and burial expenses is
Palencia, 71 SCRA 679 [1976].
13 People v. Aquino, et al., 310 SCRA 437, 438 [1999]; citing People v.
DELETED for lack of basis.
Calvo, Jr., 269 SCRA 676 [1997]. SO ORDERED.
541 Davide, Jr. (C.J.,
VOL. 370, NOVEMBER 27, 2001 541 Chairman), Puno, Kapunan and Pardo, JJ., concur.
People vs. Ladao
_______________
that accused-appellant’s denial of his participation in the
crime is unconvincing. The assessment of a witness’ 14 People v. Clemente, 316 SCRA 667, 672-673 [1999]; citing People v.

credibility is the sole province of the trial court. Being in 14
the best position to observe the deportment and demeanor of
accused-appellant on the witness stand, the Court accords
Dela Cruz, 190 SCRA 335 [1990].
15 People v. Panaga, 306 SCRA 695, 708-709 [1999]; citing Del Rosario v.
Court of Appeals, 267 SCRA 158 [1997].
16 People v. Dubria, G.R. No. 138887, September 26, 2000, 341 SCRA 134.

full faith and credence to its findings and conclusions. 542

Under Art. 294(1) of the Revised Penal Code, the penalty 542 SUPREME COURT REPORTS ANNOTATED
for robbery with homicide is reclusion perpetua to death. People vs. Plana
There being neither mitigating nor aggravating Judgment affirmed with modification.
circumstance, the lesser penalty of reclusion perpetuashould Note.—Confessions extracted without the assistance of
be imposed on accused-appellant. counsel are taboo and useless in a court of law. (People vs.
With respect to accused-appellant’s civil liability, the Muleta, 309 SCRA 148 [1999])
Court has consistently ruled that actual or compensatory
damages must be duly proved and established with ——o0o——
reasonable degree of certainty, and courts cannot rely on
conjecture or guesswork on the fact and extent of © Copyright 2018 Central Book Supply, Inc. All rights reserved.
damages. Upon examination of the records, we find that the
15

award of P10,500.00 as burial and wake expenses is without

basis, and should therefore be deleted. As to the indemnity
for the death of the victim, the award should be increased to
P50,000.00 consistent with prevailing jurisprudence. 16

WHEREFORE, the Decision of the Regional Trial Court

of Caloocan City, Branch 131, finding accused-appellant
Henry Ponseca y Soriano guilty beyond reasonable doubt of
the crime of robbery with homicide, and sentencing him to
suffer the penalty of reclusion perpetua, is AFFIRMED with
the MODIFICATION that the indemnity to the heirs of the
victim should be increased to P50,000.00. The P10,500.00
478 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
No. L-70091. December 29, 1986. *
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. BRIGIDO ENCIPIDO, CHARLITO
MANATAD, JESUS RUBIO, RUDY LUMARDA, JOSE
CABAGERAN, EDDIE DE LA PEÑA, CRIS RAMIREZ, and
JESUS or JOHN DOE, accused, BRIGIDO ENCIPIDO,
CHARLITO MANATAD, and EDDIE DE LA PEÑA,
accused-appellants.
Evidence; Eyewitness account that jibes with the autopsy
findings becomes credible.—Eyewitness Felicisimo Alciso
positively identified APPELLANTS as among the group who led
the DECEASED out of his hut, with his hands tied behind his
back, and thereafter mauled him and hacked his neck in the
afternoon of March 30, 1982. The autopsy findings, particularly,
the "incised wound of the neck," "contusions left lumbar region"
and "both hands tied at the back with rattan" confirm his
description of what he had wit
Same; Specific statements of distances would be inexact,
particularly with provincial folk. The important fact is that where
he was the witness observed the incident and was corroborated by
admissions of the accused.—The defense further claims that
Alciso could not have recognized the assailants because he was at
a distance of 80 to 90 meters away from the scene of the crime. In
another instance, however, he said that the place of the killing
was about "20 arms length" from the hut of the DECEASED,
while he was also about the same distance from the hut at that
time. The distances stated were
________________
*EN BANC.
479
VOL. 146, DECEMBER 29, 1986 47
9
People vs. Encipido
merely his estimates and can be moderately exact or
moderately inexact specially with provincial folk. The important
fact is that even from where he was, he witnessed the incident
and his description of it was corroborated by the admission of
APPELLANTS themselves and supported by the autopsy findings
on the cadaver. As this Court ruled in People vs. Hamtig, et al.,
"the credibility of the testimony of a witness is not affected by
some flaws and inconsistencies in minor details, if as regards the
main incident, the identities of the malefactors, the testimonies
appear to be consistent with each other."
Same; A person observing a startling occurrence would strive
to know their faces.—And although it was admittedly the first
time that Alciso saw the malefactors, it does not necessarily f
ollow that he could not have recognized their faces. Persons
observing a startling occurrence would strive to know the ones
involved specially where as in this case the DECE ASED was not
unknown to Alciso.
Same; Fact that witness went to the jail to verify the identity
of the malefactors does not make his testimony suspect the reason
therefor being given.—Next, it is argued that Alciso's testimony
that he went to the jail to verify the identity of the malefactors is
not worthy of credence. Concededly, that actuation was unusual.
However, as the witness explained, he did so because he feared
that he may be the next one to be killed. And the fact that he
asked DE LA PEÑA why the latter was in jail does not
necessarily lead to the conclusion, as alleged, that he had not
witnessed the occurrence. a friendly question was more likely to
evoke a candid answer.
Same; Failure to mention the names of the culprits in the
sworn statement does not affect credibility. Such affidavits are not
infrequently incomplete.—There is nothing strange either in
Alciso's not having mentioned the culprits by name in his sworn
statement taken more than three months after the incident,
having referred to them merely as "five persons." As is well
known "an affidavit is not prepared by the affiant himself.
Omissions and misunderstandings are not infrequent,
particularly under circumstances of hurry and impatience."
Same; Admissions made before the Mayor and Station
Commander during a conference that defendants were responsible
for killing the victims is an admission.—ENCIPIDO and DE LA
PEÑA verbally acknowledged their guilt before Station
Commander Ortega and Municipal Mayor Espina when they
individually boasted that they had killed the DECEASED so that
the latter could no longer
480
4 SUPREME COURT REPORTS ANNOTATED
80
People vs. Encipido
harm other people with his witchcraft. They admitted that
they had beheaded the DECEASED. DE LA PEÑA even showed
the Mayor the DECEASED's dried ear which he had severed.
Further, while in jail, DE LA PEÑA also admitted to Alciso, when
the latter asked him the reason for their confinement, that it was
because they were the ones who had beheaded the DECEASED.
These oral confessions indicating complicity in the commission of
the crime with which they are charged are admissible in evidence
against the declarants ENCIPIDO and DE LA PEÑA pursuant to
Sections 22 and 29 of the Rules of Court. It is the fact that
admissions were made by APPELLANTS and against their own
interest which gives them their evidentiary value.
Same; Confessions; Extrajudicial confessions that are
identical in their material respects are admissible, respectively,
against all declarants.—It is also to be noted that APPELLANTS'
extrajudicial confessions were independently made without
collusion, are identical with each other in their material respects
and confirmatory of the other. They are, therefore, also
admissible as circumstantial evidence against their co-accused
implicated therein to show the probability of the latter's actual
participation in the commission of the crime. They are also
admissible as corroborative evidence against the others, it being
clear from other facts and circumstances presented that persons
other than the declarants themselves participated in the com-
\ mission of the crime charged and proved. They are what is
commonly known as interlocking confessions and constitute an
exception to the general rule that extrajudicial
confessions/admissions are admissible in evidence only against
the declarants thereof.
Same; Same; Non-presentation by fiscal of a confession by one
accused gives rise to no adverse presumption.—And while it may
be that ENCIPIDO's written statement before the PC on May 6,
1982 confessing to the killing of the DECE ASED was not
presented at the trial, no presumption of wilfull suppression of
evidence may be levelled against the prosecution on account of its
non-production. Apparently, for the prosecution, it was not
important or necessary to bolster up its case.
Same; Same; Witnesses may testify on what accused confessed
to them orally.—The argument that the testimonies of Station
Commander Ortega, Mayor Espina, and Alciso as to the
extrajudicial admissions made to them respectively by
ENCIPIDO and/or DE LA PEÑA constitute hearsay, and thus
inadmissible, is not well taken.
481
VOL. 146, DECEMBER 29, 1986 48
1
People vs. Encipido
Oral confessions may be proved by any competent witness by
whom they were heard, the same as any other fact.
Same; Same; A statement involving guilt does not lose its
character as a confession although accompanied by exculpatory
expressions.—True, DE LA PEÑA exculpated himself by stating
that he was only forced to join the group and was merely standing
by when the killing occurred. A statement involving guilt does
not, however, lose its character as a confession from the fact that
it was accompanied by statements of an exculpatory nature, it
being "the natural tendency of every transgressor, with perhaps
very rare exceptions, to acquit himself while he can do so from all
liability that might arise from his act, or at least mitigate it in the
eyes of the law and those of his fellowmen." Like other evidence,
it must be weighed, believed, or disbelieved in whole or in part, as
reason may decide. Herein, the exculpatory statement has been
proven false by Alciso's credible account that upon ENCIPIDO's
orders, DE LA PEÑA hacked the DECEASED's neck with a bolo
which almost severed the latter's head, which testimony is
confirmed by the autopsy finding of "incised wound on the neck."
It was likewise proven false by DE LA PEÑA's own extrajudicial
admission to the Municipal Mayor that he had hacked the
DECEASED's neck and severed his ear, which is buttressed by
the post mortem finding of "removed right external ear."
Same; Same; A judicial admission by one accused is
admissible against his co-accused as distinguished from an
extrajudicial confession which, as a rule, is admissible only
against the one making it—DE LA PEÑA's judicial admission is
admissible not only against him but against his co-accused
ENCIPIDO and MANATAD as well. The general rule that the
confession of an accused may be given in evidence against him
but that it is not competent evidence against his co-accused,
admits of exceptions. Thus, this Court has held that where
several accused are tried together for the same complaint, the
testimony lawfully given by one during the trial implicating the
others is competent evidence against the latter. "The extrajudicial
admission or confession of a co-conspirator out of court is different
from the testimony given by a co-accused during trial. The first is
admissible against the declarant alone, but the second is perfectly
admissible against his co-accused," who had the right and
opportunity to cross-examine the declarant.
Same; Same; Attorneys; Criminal Procedure; Defense counsel
should cross-examine an accused, who is one of his clients, when
said
482
4 SUPREME COURT REPORTS ANNOTATED
82
People vs. Encipido
accused turns hostile, as against his co-accused, or else
present rebuttal testimony.—ln other words, the reason counsel
refrained from cross examination was not because he was not
given the opportunity to do so but because DE LA PEÑA did not
follow counsel's bidding as to the nature of his testimony. The
coached testimony failed but the truth prevailed. Besides, defense
counsel could have presented rebuttal evidence to overcome DE
LA PEÑA's testimony if he had chosen to do so but did not.
Same; Same; Alibi cannot prevail over positive identification
and interlocking confessions.—The defense of alibi separately
interposed by ENCIPIDO and MANATAD cannot prevail over
their positive identification by eyewitness Alciso, by ENCIPIDO's
verbal acknowledgments of guilt, and by DE LA PEÑA's judicial
and extrajudicial admission/confession, which are interlocking
and admissible as against themselves and as against the others
whom they also implicated. Neither were ENCIPIDO and
MANATAD able to prove that they were at some place for such a
period of time that it was impossible for them to have been at the
scene of the crime at the time of its commission. Barangay Boa
where ENCIPIDO was allegedly sawing lumber was
approximately 60 kilometers away, and Barangay Malinao where
MANATAD was supposedly plowing the field, about 12
kilometers, from Barangay Mabini, Tubajon, Surigao where the
incident occurred.
YAP, J., dissenting:
Criminal Procedure; It was prejudicial error in a joint trial to
use testimony of one accused against the accused in the other case
where all are represented by one counsel.—Firstly, it was
prejudicial error for the trial court, in a joint trial of the accused,
to use the testimony of one of the accused against the other
accused, where the latter had no opportunity to cross-examine the
former because all of the accused were represented by one and the
same counsel de oficio.
Same; Evidence; A purely exculpatory testimony by one
accused who puts the blame on the other accused is not admissible
against the latter.—The trial court, in the first place, erred in
applying the above doctrine since the accused Eddie de la Peña, in
his testimony, did not admit his guilt. In other words, his
declaration was not an admission against interest, but is merely
an exculpatory statement. It was purely a self-serving statement,
throwing the blame for the offense on the other co-accused; hence,
it should not have been admitted as evidence against them.
483
VOL. 146, DECEMBER 29, 1986 48
3
People vs. Encipido
Same; Same; Where an accused becomes hostile towards his
coaccused and they are represented by the same counsel, trial
judge must suspend trial and appoint another counsel for the
others or the hostile defendant—They were all represented by the
same lawyer de oficio. Counsel de oficio could not and did not
cross-examine his own client, Eddie de la Peña, who was not a
mere witness but also an accused testifying in his own behalf.
Thus, when it became apparent that the interest of one accused
was in conflict with the interest of the other two co-accused, it
should have been immediately obvious to the trial court that the
three accused could not be represented by one and the same
counsel. The trial court should have suspended the trial and
appointed another counsel de oficio to represent the accused de la
Peña or the other co-accused in order to provide the latter the
opportunity to cross-examine the former. Unfortunately, this was
not done. Hence, for the trial court to have considered the
testimony of De la Peña against his co-accused was a serious
prejudicial error.
Same; Same; Oral confessions which are conflicting in
material respects should not be admitted.—It was grave error for
the trial court to consider as evidence against the accused the
supposed extrajudicial oral confession or admission of guilt by the
accused, where there were vital discrepancies in the testimonies
of the witnesses who were presented by the prosecution to
establish the same. Police Commander Jorge Ortega testified that
Brigido Encepido told him that he was the one who beheaded Jose
Lacumbes. Mayor Mariano Espina, on the other hand, testified
that Eddie de la Peña told him that he was the one who beheaded
the deceased Jose Lacumbes.
Evidence; Testimony of Felicisimo Alciso suffers from several
inconsistencies.—Without the testimonies of Mayor Espina and
Police Commander Jorge Ortega and that of the accused Eddie de
la Peña, the only testimony that remains to support the judgment
of the trial court is that of Felicisimo Alciso who claimed to have
witnessed the killing. However, the testimony of this witness
suffers from some serious flaws which raise grave doubts as to its
value. Hence, his testimony alone cannot be used as the sole basis
for convicting the accused.
APPEAL from the judgment of Regional Trial Court of
Surigao City, Br. XXXII.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Ignacio P. Moleta for accused-appellants.
484
484 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
MELENCIO-HERRERA, J.:
On March 30, 1982, Jose Lacumbes (hereinafter referred to
as the DECEASED), a resident of Barangay Mabini in the
Municipality of Tubajon, Surigao del Norte, was found killed
by his wife and children near the hut in their farm in Sitio
Capacohan in the same barangay. Post Mortem findings
perf ormed the following morning were:
1. "1)Incised wound of the neck.
2. 2)Eight [8] multiple stab wounds at the back; one [1]
inch in length and two and a half [2½] inches in
depth.
3. 3)Removed right external ear.
4. 4)Contusions left lumbar region.
5. 5)Both hands tied at the back with rattan.
CAUSE OF DEATH: Hemorrhage, severe, secondary to
incised wounds of the neck and multiple stab wounds at the
back."
On February 2, 1983, in Criminal Case No. 14 of the
Regional Trial Court, 10th Judicial Region, Branch 32 (the
CASE BELOW), the following eight (8) persons: (1) Brigido
ENCIPIDO, (2) Charlito MANATAD, (3) Eddie DE LA
PEÑA (hereinafter referred to as APPELLANTS), (4) Jesus
Rubio, (5) Rudy Lumarda, (6) Jose Cabageran, (7) Cris
Ramirez, and (8) Jesus or John Doe were charged with
Murder for the death of the DECEASED. Only
APPELLANTS were tried, the other five accused having
remained at large.
 A review of the prosecution evidence presented in the C
ASE BELOW can begin with the testimony of Felicisimo
Alciso. This witness narrated that he went to the hut of the
DECEASED in the afternoon of March 30, 1982, in order to
get some chickens which the latter had promised him but
that, before reaching the hut, he heard a gunshot. He
stopped and saw that the DECEASED was being tied and
subjected to fist blows. There were three persons who
mauled the DECEASED, while others stayed at a distance.
Then, somebody struck the DECE ASED with the butt of a
gun causing the latter to fall to the ground. He described
that the hands of the DECEASED were tied at the back,
ENCIPIDO was behind the DE-
485
VOL. 146, DECEMBER 29, 1986 485
People vs. Encipido
CEASED, while MANATAD and DE LA PEÑA were on the
sides. On orders of ENCIPIDO, also known as "Commander
1
Tanga," DE LA PEÑA, also called "Agosto de la Peña,"
struck the DECEASED's neck with a bolo which almost
severed the latter's head. Frightened, witness Alciso fled
from the scene.
After learning from friends and neighbors that those who
had killed the DECE ASED were detained, Alciso went to
the jail to find out for himself if they were among the group
responsible for the death of the DECEASED, and because "I
was afraid that I will be the next one to be killed by them."
He recognized APPELLANTS as among the suspects. When
he asked DE LA PEÑA why he was in jail, the latter
answered that it was because they were the ones who had
beheaded the DECEASED. Alciso was unable to talk to
ENCIPIDO and MANATAD.
Before Alciso, there was another prosecution witness
presented, Armando Bagacay, whose testimony turned out
to be hearsay but which nevertheless is reproduced here to
complete the evidence for the prosecution. He testified that
while he was massaging one of the accused, Rudy Lamarda,
on March 10, 1982, the latter told him that his ailment was
caused by witchcraft of the victim, Jose Lacumbes, and that
he would seek the aid of the rebels to cut Lacumbes' head.
Four days later, Bagacay met one of those originally
indicted, Jesus Rubio, who confided to him that they would
cut Lacumbes' neck f or making Lumarda sick and for being
responsible f or all the witchcraft in the community.
Subsequently, witness Bagacay heard of the death of
Lacumbes at the hands of the rebels.
Two other prosecution witnesses supported the testimony
of Alciso. Jorge Ortega, INP Station Commander of Loreto,
Agusan del Norte, testified that when he had just arrived
from Surigao City at about 2:30 o'clock P.M. of May 1, 1982,
and while still at the wharf, he was met by ENCIPIDO, who
introduced himself as "Commander Tanga," invited him
(Ortega) for a drink so he could talk to the latter personally.
Having ac-
________________
1T.s.n., June 20, 1983, p. 51.
486
486 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
cepted the invitation, the two proceeded to a store where
ENCIPIDO's fourteen companions were already waiting.
They introduced themselves as rebels and offered to help
the municipal government. In the course of the
conversation, ENCIPIDO and DE LA PEÑA disclosed to the
Station Commander that they were the ones who had
beheaded the DECEASED, killed a certain Benny and one
Balaba, and who were responsible for all the killings in
Dinagat Island.
The other prosecution witness, Mariano Espina, the
Municipal Mayor of Loreto, testified that in the evening of
that same day of May 1, 1982, Station Commander Jorge
Ortega informed him that Commander Tanga" and his men
wanted to pay him a courtesy call. They arrived at about
8:00 in the evening at his house. They introduced
themselves and placed their sidearms on a table as a sign of
goodwill. At the time, there were about 2 policemen and 3
CHDF men outside the house but no arrests were made, nor
were firearms confiscated, as a sign of reciprocal goodwill.
"Commander Tanga" then confided to the Mayor his mission
to cooperate with his administration as they had heard that
he was a good Mayor. He also informed the Mayor that he
had been a member of the NPA since he was 13 years old;
that he had already killed many people, including the
DECEASED, so that the latter could no longer harm other
people with his witchcraft. For his part, DE LA PEÑA
brought out a sharp-pointed knife and tried to test its
sharpness, admitted having cut the neck of the DECEASED,
and even showed the latter's ear, dried by that time.
The foregoing testimonies were buttressed from a most
unexpected source. DE LA PEÑA, to the surpise of
APPELLANTS' common counsel, testified in open Court
that, although he belonged to the group of "Commander
Tanga," the latter, MANATAD and a third individual
merely forced him to join, threatening to kill him if he
refused; that he was with the group from March 28, 1982;
that he was present on March 30, 1982 when "Commander
Tanga" and MANATAD killed the DECEASED but that he
was merely standing by; that the duo were the first ones
apprehended, and after them he was also arrested by the
CHDF.
487
VOL. 146, DECEMBER 29, 1986 487
People vs. Encipido
In their defense, ENCIPIDO and MANATAD denied having
killed the victim and interposed the defense of alibi.
ENCIPIDO claimed that on March 30, 1982, he was sawing
lumber from morning till 3:00 P.M. at Barangay Boa for a
certain Norberto Bukid. After working he rested in Bukid's
house and did not leave the place. He further testified that
he did not know the DECEASED nor the Station
Commander, nor the Municipal Mayor except when he
surrendered his .45 caliber pistol to the latter on May
2,1982 after which he was arrested. He decided to surrender
his pistol because he was afraid he might be apprehended
for having an unlicensed firearm. MANATAD and DE LA
PEÑA were also placed in jail with him. Thereafter, with
seven others, he was taken to PC headquarters at Surigao
City where they were severely maltreated and he was forced
to sign an affidavit admitting that he is "Commander
Tanga" responsible for the killing of the DECEASED and
other persons. He denied having admitted to the Station
Commander and to the Municipal Mayor his identity as
"Commander Tanga" or that he had killed the DECE ASED
and other persons besides.
MANATAD, for his part, also denied all imputations
against him, stating that he only came to know ENCIPIDO
in jail; that he did not know the DECEASED nor who killed
him; that during the whole day of March 30, 1982, he was
plowing the field tenanted by his mother-in-law at Barangay
Malinao; that he started plowing early in the morning and
stopped at about 5:00 o'clock P.M. after which he stayed
home. Barangay Captain Sergio Peniones partially
corroborated MANATAD's testimony by stating that he saw
MANATAD plowing the field in the morning of March 30,
1982. MANATAD's wife, Bienvenida Edusma, also testified
that her husband stayed home after 5:00 o'clock P.M. of that
day as he was tired after the day's work; that, in fact, she
quarreled with her husband because he refused to
accompany her in bringing their sick child to Tubajon so
that she went alone carrying the child even though she was
then seven months pregnant.
 In a Decision promulgated by the Trial Court on
December 5, 1984, APPELLANTS were found guilty of
Murder and sentenced to reclusion perpetua, to pay
damages to the heirs of the
488
488 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
DECEASED in the amount of P12,000.00 and to pay 3/8 of
the costs.
On behalf of APPELLANTS, counsel de officio filed a
Motion for Reconsideration before the Trial Court on
December 26, 1984, which the latter denied for having been
filed more than fifteen (15) days after the promulgation date
of December 5, 1984. A Notice of Appeal filed before the
then Intermediate Appellate Court was allowed as an
appeal, not from the judgment but from the Order denying
the Motion for Reconsideration. The penalty imposed by the
Trial Court being reclusion perpetua, the appeal was
indorsed to this instance, which we accepted in the interest
of substantial justice.
APPELLANTS raise the f ollowing Assignments of Error:
"A
"The lower Court erred in giving credence to the hearsay
testimonies of prosecution witnesses Mariano Espina and George
Ortega basing therefrom its findings of conviction;
"B
"The lower Court erred in giving credence to the incredible and
hearsay testimony of Felicisimo Alciso, the alleged eyewitness;
"C
"The lower Court erred in appreciating the so-called judicial
admission of accused Eddie de la Peña as against his co-accused
Brigido Encipido and Charlito Manatad;
"D
"The lower Court erred in convicting appellants Brigido
Encipido and Charlito Manatad;
"E
"The lower Court erred in refusing to give due course to
appellants' motion for reconsideration holding that it was filed
out of time when its judgment accordingly has become final;
489
VOL. 146, DECEMBER 29, 1986 489
People vs. Encipido
"F
"The lower Court erred in convicting appellant Eddie de la Peña."
The evidence against APPELLANTS, taken "en conjunto"
justifies the finding of guilt beyond reasonable doubt.
1. Eyewitness Felicisimo Alciso positively identified
APPELLANTS as among the group who led the DECEASED
out of his hut, with his hands tied behind his back, and
thereafter mauled him and hacked his neck in the afternoon
of March 30, 1982. The autopsy findings, particularly, the
"incised wound of the neck," "contusions left lumbar region"
and "both hands tied at the back with rattan" confirm his
description of what he had witnessed.
The defense contents, however, that said witness could
not have recognized APPELLANTS.
It is true that at the start of his testimony, he had stated
that he did not recognize the assailants. Thus:
"Q. Who were the persons who mauled Jose Lacumbes during that time?
"A. I saw that there were three of them but I could not recognize them;
and there were some other persons who were staying from a
distance.
2
That testimony, however, referred to the early stage of the
incident when the victim was being mauled. Subsequently,
in respect of the killing itself, the witness declared:
"Fiscal Sandangal:
"Could you not recognize the three persons who killed Jose
Lacumbes?
"Witness:
"I could recognize the three persons who killed Jose
instance, however, he said that the place of the killing was
about "20 arms length" from the hut of the DECEASED,
while he was also about the same distance from the hut at
that time. The distances stated were merely his estimates
and can be moderately exact or moderately inexact specially
with provincial folk. The important fact is that even from
where he was, he witnessed the incident and his description
of it was corroborated by the admission of APPELLANTS
themselves and supported by the autopsy findings on the
cadaver. As this Court ruled in People vs. Hamtig, et
al., "the credibility of the testimony of a witness is not
6

Lacumbes." 3
affected by some flaws and inconsistencies in minor details,
if as regards the main incident, the identities of the
________________
malefactors, the testimonies appear to be consistent with
2ibid., p. 30. each other."
3ibid., pp. 30-31. And although it was admittedly the first time that Alciso
490 saw the malefactors, it does not necessarily follow that he
490 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido ________________
Then he described specifically: 4 ibid., p. 35.
"'Q. What else did you see, if any? 5 ibid., p. 33.
A. I saw that somebody was beating Jose Lacumbes with the use of a 6 29 SCRA 14 (1969).

gun, and when Jose Lacumbes fell down, Commander Tanga
commanded Eddie de la Peña to cut the head of the victim, but the
head was not severed from the body." 4
After pointing to the APPELLANTS in the Courtroom, and
replying to a question by the Court, Alciso further
explained:
"Court: (addressing to the witness) When did you know the accused
by their names?
"WITNESS: In the jail, your Honor. Before I met them in the jail, I
already recognize' their faces but I just do not know their
names. Later on, I already know their names."5
The defense further claims that Alciso could not have
recognized the assailants because he was at a distance of 80
to 90 meters away from the scene of the crime. In another
491
VOL. 146, DECEMBER 29, 1986 491
People vs. Encipido
could not have recognized their faces. Persons observing a
startling occurrence would strive to know the ones involved
specially where as in this case the DECEASED was not
unknown to Alciso.
Next, it is argued that Alciso's testimony that he went to
the jail to verify the identity of the malefactors is not worthy
of credence. Concededly, that actuation was unusual.
However, as the witness explained he did so because he
feared that he may be the next one to be killed. And the fact
that he asked DE LA PEÑA why the latter was in jail does
not necessarily lead to the conclusion, as alleged, that he
had not witnessed the occurrence. A friendly question was
more likely to evoke candid answer.
There is nothing strange either in Alciso's not having
mentioned the culprits by name in his sworn statement
taken more than three months after the incident, having
referred to them merely as "five persons." As is well known
"an affidavit is not prepared by the affiant himself.
Omissions and misunderstandings are not infrequent,
particularly under circumstances of hurry and impatience."
ENCIPIDO and DE LA PEÑA verbally acknowledged
their guilt before Station Commander Ortega and Municipal
Mayor Espina when they individually boasted that they had
killed the DECE ASED so that the latter could no longer
harm other people with his witchcraft. They admitted that
they had beheaded the DECEASED. DE LA PEÑA even
showed the Mayor the DECEASED's dried ear which he had
severed. Further, while in jail, DE LA PEÑA also admitted
to Alciso, when the latter asked him the reason for their
confinement, that it was because they were the ones who
had beheaded the DECEASED. These oral confessions
indicating complicity in the commission of the crime with
which they are charged are admissible in evidence against
the declarants ENCIPIDO and DE LA PEÑA pursuant to
Sections 22 and 29 of the Rules of
8 9
________________
7 People vs. Mori, 55 SCRA 382 (1974).
8 SEC. 22. Admissions of a party.—The act, declaration or omission of a
party as to a relevant fact may be given in evidence against him.
9 SEC. 29. Confession.—The declaration of an accused ex
492
492 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
Court. It is the fact that admissions were made by
APPELLANTS and against their own interest which gives
them their evidentiary value. 10
It is also to be noted that APPELLANTS' extrajudicial
confessions were independently made without collusion, are
identical with each other in their material respects and
confirmatory of the other. They are, therefore, also
admissible as circumstantial evidence against their co-
accused implicated therein to show the probability of the
latter's actual participation in the commission of the
crime. They are also admissible as corroborative evidence
11
7 against the others, it being clear from other facts and
circumstances presented that persons other than the
declarants themselves participated in the commission of the
crime charged and proved. They are what is commonly
12
known as interlocking confession and constitute an
exception to the general rule that extrajudicial
confessions/admissions are admissible in evidence only
against the declarants thereof.
And while it may be that ENCIPIDO's written statement
before the PC on May 6, 1982 confessing to the killing of the
DECEASED was not presented at the trial, no presumption
of wilful suppression of evidence may be levelled against the
prosecution on account of its non-production. Apparently, for
the prosecution, it was not important or necessary to bolster
up its case.
The argument that the testimonies of Station
Commander Ortega, Mayor Espina, and Alciso as to the
extrajudicial admissions made to them respectively by
ENCIPIDO and/or DE LA PEÑA constitute hearsay, and
thus inadmissible, is not well taken. Oral confessions may
be proved by any competent witness by whom they were
heard, the same as any other fact:
"The rule is that 'any person, otherwise competent as a witness,
who heard the confession, is competent to testify as to the
substance pressly acknowledging his guilt of the offense charged,
may be given in evidence against him.
________________
 10 U.S. vs. Corrales, 28 Phil. 362, 366 (1914).
11 People vs. Domondon, 43 SCRA 486 (1972).
12 People vs. Aquino, 57 SCRA 43 (1974).
493
VOL. 146, DECEMBER 29, 1986 493
People vs. Encipido
of what he heard if he heard and understood all of it. An oral
confession need not be repeated verbatim, but in such case it
must be given in its substance.' (23 C.J.S. 196).
"Proof of the contents of an oral extrajudicial confession may
be made by the testimony of a person who testifies that he was
present, heard, understood, and remembers the substance of the
conversation or statement made by the accused.' (Underhill's
Criminal Evidence, 4th Ed., Niblack, sec. 278, p. 551)."
13
ENCIPIDO's and DE LA PEÑA's extrajudicial
acknowledgments of guilt to the Municipal Mayor and the
INP Station Commander are not necessarily incredible for,
in their minds, they were not "confessing" but bragging of
their exploits in the belief that they were saving the
community from the witchcraft of the DECEASED and the
evil doings of some people. There is no proof whatsoever
that the extrajudicial admissions in question were coerced
or concocted by those officials, who are responsible public
officers and presumed to have regularly performed their
functions and against whose impartiality nothing has been
proven. The fact that no arrest were made by them
immediately after the disclosures do not necessarily belie
their testimonies since the spirit of "reciprocal goodwill"
pervaded the encounters. Arrests were made, however, the
day after, or on May 2,1982.
APPELLANTS had the opportunity during the trial to
refute their verbal admissions as in fact, they denied having
made them, but their denials do not ring with truth in the
face of other inculpating evidence.
3. The additional incriminating evidence was furnished
by DE LA PEÑA who, in open Court, under oath, testified
that he belonged to "Commander Tanga's" group, was with
them since two days before the incident, and that he was
with ENCIPIDO and MANATAD when they killed the
DECEASED. DE LA PEÑA's declaration confirms the
existence of the group, their responsibility for the killing
and, at the very least, his presence during the commission of
the crime.
True, DE LA PEÑA exculpated himself by stating that he
was only forced to join the group and was merely standing
by
________________
cited in People vs. Tawat, 129 SCRA 431 (1984).
13
494
494 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
when the killing occurred. A statement involving guilt does
not, -however, lose its character as a confession from the
fact that it was accompanied by statements of an
exculpatory nature, it being "the natural tendency of every
14
transgressor, with perhaps very rare exceptions, to acquit
himself while he can do so from all liability that might arise
from his act, or at least mitigate it in the eyes of the law and
those of his fellowmen". Like other evidence, it must be
15
weighed, believed, or disbelieved in whole or in part, as
reason may decide. Herein, the exculpatory statement has
been proven false by Alciso's credible account that upon
ENCIPIDO's orders, DE LA PEÑA hacked the
DECEASED's neck with a bolo which almost severed the
latter's head, which testimony is confirmed by the autopsy
finding of "incised wound on the neck." It was likewise
proven false by DE LA PEÑA's own extrajudicial admission
to the Municipal Mayor that he had hacked the
DECEASED's neck and severed his ear, which is buttressed
by the post mortem finding of "removed right external ear."
 DE LA PEÑA's judicial admission is admissible not only
against him but against his co-accused ENCIPIDO and
MANATAD as well. The general rule that the confession of
an accused may be given in evidence against him but that it
is not competent evidence against his co-accused, admits of
exceptions. Thus, this Court has held that where several
accused are tried together for the same complaint, the
testimony lawfully given by one during the trial implicating
the others is competent evidence against the latter. "The 16
extrajudicial admission or confession of a co-conspirator out
of court is different from the testimony given by a co-accused
during trial. The first is admissible against the declarant
alone, but the second is perfectly admissible against his co-
accused," who had the right and opportunity to cross-
17
examine the declarant. In this case, counsel de officio had
such opportunity to cross-examine DE LA PEÑA but did not
avail of it because in his own words:
________________
14 Bortimore vs. State, 25 Wyo., 452; 162 Pac. 766.
15 People vs. Layos, 60 Phil. 760 (1934).
16 People vs. Gumaling, 61 Phil. 165 (1935); U.S. vs. Macamay, 36 Phil.
893 (1917); People vs. Borromeo, 60 Phil. 691 (1934).
17 People vs. Mabassa, 65 Phil 538 (1938).
495
VOL. 146, 495
DECEMBER 29,
1986
People vs. Encipido
"Atty. Moleta: I would like to inform the Honorable Court that I am
in quandary. It is my duty as counsel-de-oficio to be
candid to this Honorable Court. The witness has not
actually followed what I intimated to him to be the
nature of his testimony.
18
In other words, the reason counsel refrained from cross
examination was not because he was not given the
opportunity to do so but because DE LA PEÑA did not
follow counsel's bidding as to the nature of his testimony.
The coached testimony failed but the truth prevailed.
Besides, defense counsel could have presented rebuttal
evidence to overcome DE LA PEÑA's testimony if he had
chosen to do so but did not.
Thus, MANATAD's direct participation in the
commission of the crime with which he is charged has been
established by DE LA PEÑA's declaration in open Court
that "Commander Tanga and Charlito Manatad killed a
certain person," and the corroborative testimony of Alciso,
who categorically testified that MANATAD was on one side
of the DECEASED, DE LA PEÑA on the other and
ENCIPIDO at the back when they perpetrated the offense
with which they are changed. In MANATAD's respect,
therefore, it is not necessary to invoke "conspiracy" to
support his conviction.
The defense of alibi separately interposed by ENCIPIDO
and MANATAD cannot prevail over their positive
identification by eyewitness Alciso, by ENCIPIDO's verbal
acknowledgments of guilt, and by DE LA PEÑA's judicial
and extrajudicial admission/confession, which are
interlocking and admissible as against themselves and as
against the others whom they also implicated. Neither were
ENCIPIDO and MANATAD able to prove that they were at
some place for such a period of time that it was impossible
for them to have been at the scene of the crime at the time
of its commission. Barangay Boa where ENCIPIDO was
allegedly sawing lumber was approximately 60 kilometers
away, and Barangay
19
________________
T.s.n., December 1, 1983, p. 136.
18
T.s.n.. September 27, 1983, p. 98.
19
496
496 SUPREME COURT REPORTS ANNOTATED
 People vs. Encipido 497
Malinao where MANATAD was supposedly plowing the VOL. 146, DECEMBER 29, 1986 497
field, about 12 kilometers, from Barangay Mabini, Tubajon,
20 People vs. Encipido
Surigao where the incident occurred.
In the last analysis, the core issue addresses itself to the YAP, J., dissenting:
credibility of witnesses, a matter that the Trial Court had
I disagree with the majority opinion. This dissent will not
unequalled competence to consider and decide since it was
alter the results, but there are two points I wish to stress.
in a vantage position to observe the conduct and demeanor
Firstly, it was prejudicial error for the trial court, in a
of the witnesses of both sides while testifying, an
joint trial of the accused, to use the testimony of one of the
opportunity not afforded to Appellate Courts. Its findings as
accused against the other accused, where the latter had no
to credibility should not be disturbed and are entitled to
opportunity to cross-examine the former because all of the
great weight unless there is some fact of record that has
accused were represented by one and the same counsel de
been overlooked or the significance of which has been
oficio.
misconstrued, which exceptions we find absent herein.
21

In the instant case, Eddie de la Peña, one of the co-

The last assigned error delving on the refusal of the Trial
accused, testified in court that, under threat of being killed,
Court to give due course to appellants' Motion for
he was forced to join the group of the accused Brigido
Reconsideration on the ground that the judgment had
Encepido, alias Commander Tanga, on March 28,1982; that
become final is no longer of any consequence since all the
the group forcibly took him along with them; and that he
grounds therefor have been elevated to and considered by
was present when they killed Jose Lacumbes on March 30,
this Court on appeal.
1982. The trial court held that the testimony of De la Peña
In fine, the threads of evidence woven together establish
was admissible not only against him, but also against the
APPELLANTS' guilt to a moral certainty.
other co-accused. The court cited the doctrine that "if a
WHEREFORE, the judgment appealed from is hereby
defendant testifies as a witness in a joint trial against him
affirmed except as to the civil indemnity, which is hereby
and his co-accused and admits his guilt and at the same
increased to P30,000.00 in accordance with recent
time implicating the co-accused, the testimony is admissible
jurisprudence. With proportionate costs.
against the latter who may crossexamine him (U.S. v.
SO ORDERED.
Macamay, 36 Phil. 893; People v. Nakpil, 52 Phil.
Feria, Fernan, Narvasa, Alampay, Gutierrez,
985; People v. Tundia, L-2576, May 25, 1951)."
Jr., Cruz,Paras and Feliciano, JJ., concur.
The trial court, in the first place, erred in applying the
Teehankee, C.J., reserves his vote.
above doctrine since the accused Eddie de la Peña, in his
Yap, J., I dissent.
testimony, did not admit his guilt. In other words, his
________________ declaration was not an admission against interest, but is
merely an exculpatory statement. It was purely a self-
20T.s.n., December 1, 1983, p. 149. serving statement, throwing the blame for the offense on the
21People vs. Ancheta, 60 SCRA 333 (1974); People vs. Caoile, 61 SCRA
73 (1974).
other co-accused; hence, it should not have been admitted as
evidence against them.
Moreover, under the doctrine cited by the trial court, the
testimony of an accused is admissible against his co-
accused who may cross-examine him. In the case at bar, the
other coaccused, Brigido Encepido and Charlito Manatad
did not have the opportunity to cross-examine Eddie de la
Peña. They were all represented by the same lawyer de
oficio. Counsel de oficio could not and did not cross-examine
his own client, Eddie de la Peña, who was not a mere
witness but also an accused testifying in his own behalf.
Thus, when it became apparent that the
498
498 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
interest of one accused was in conflict with the interest of
the other two co-accused, it should have been immediately
obvious to the trial court that the three accused could not be
represented by one and the same counsel. The trial court
should have suspended the trial and appointed another
counsel de oficio to represent the accused de la Peña or the
other co-accused in order to provide the latter the
opportunity to crossexamine the former. Unfortunately, this
was not done. Hence, for the trial court to have considered
the testimony of De la Peña against his co-accused was a
serious prejudicial error.
Furthermore, the version of the killing given by De la
Peña did not jibe with the version given by the principal
prosecution witness, Felicisimo Alciso, who claimed that he
saw the killing, nor with the autopsy report. Testifying on
cross-examination, Dela Peña stated: 1
"Q: How did they kill him?
A: They beat him; Commander Tanga kicked him; then, they shot him."
But the autopsy report showed that the deceased had no
2
bullet wounds but only stab wounds and incised wounds.
Secondly, it was grave error for the trial court to consider
as evidence against the accused the supposed
extrajudicial oral confession or admission of guilt by the
accused, where there were vital discrepancies in the
testimonies of the witnesses who were presented by the
prosecution to establish the same. Police Commander Jorge
Ortega testified that Brigido Encepido told him that he was
the one who beheaded Jose Lacumbes. Mayor Mariano
3
Espina, on the other hand, testified that Eddie de la Peña
told him that; he was the one who beheaded the deceased
Jose Lacumbes. There was, therefore, a conflict between the
4
version of Espina and that of Ortega on the oral confession
of the accused. Apparently, the trial court did not notice this
vital discrepancy. In fact, the
________________
1 T.s.n., December 1, 1983, p. 143.
2 Rollo, p. 16.
3 T.s.n., August 1, 1983, p. 77.
4 T.s.n., July 20, 1983, p. 58.
499
VOL. 146, DECEMBER 29, 1986 499
People vs. Encipido
court also overlooked another obviously untrue statement of
Mayor Espina when he testified categorically that the
accused Eddie de la Peña not only admitted to him that he
cut off the two ears of the deceased and, in fact, showed him
the two ears, already dried up, ,which he carried in his
pocket. This testimony is obviously false because the
5
autopsy showed that only one ear of the deceased was cut
off. The autopsy also showed that the neck of the deceased
was hacked with a bolo, and yet, Mayor Espina, in his
testimony, recounted vividly how, in his presence, Eddie de
la Peña brought out a sharp pointed knife which according
to him, he used in cutting "little by little" the neck of the
deceased. These material discrepancies in the testimonies of
6
Mayor Espina, as well as the conflicting versions between
his testimony and that of Police Commander Ortega, were
simply overlooked by the trial court. These discrepancies
cast a serious doubt on their testimonies that the accused
orally confessed or admitted their guilt to them. Such doubt
should be resolved in favor of the accused.
Without the testimonies of Mayor Espina and Police
Commander Jorge Ortega and that of the accused Eddie de
la Peña, the only testimony that remains to support the
judgment of the trial court is that of Felicisimo Alciso who
claimed to have witnessed the killing. However, the
testimony of this witness suffers from some serious flaws
which raise grave doubts as to its value. Hence, his
testimony alone cannot be used as the sole basis for
convicting the accused.
1. (1)In this testimony, Felicisimo Alciso at first said
that he could not recognize the person who killed the
deceased Jose Lacumbes, but later, upon prodding
by the prosecutor, he changed his testimony and said
he could recognize three of them and pointed to the
three accused who were present in court and who
were the only ones in custody, the other accused
being at large and were never tried.
2. (2)He testified that he came to know the names of the
killers when he visited them in jail after they were
caught on May 2, 1982. His testimony regarding this
visit strains one's
________________
5Ibid., p. 69.
6Ibid., p. 58.
500
500 SUPREME COURT REPORTS ANNOTATED
People vs. Encipido
1. credulity. According to him, he asked Eddie de la
Peña why he was inside the jail; and the latter
answered that he was inside the jail because they
were the ones who beheaded Jose Lacumbes. Why
De la Peña should volunteer to confess his crime to a
perfect stranger is incredible. It is also rather hard
to believe that Felicisimo Alciso, after being
supposedly told by a friend that he would be the next
one to be killed by the accused, would have the
temerity to visit them in jail.
2. (3)Felicisimo Alciso executed an affidavit on July 13,
1982 in which he declared that he witnessed the
killing of Jose Lacumbes on March 30, 1982, but did
not identify who the killers were, although at the
time when he executed the affidavit, he was already
supposed to know who the killers were, having
visited them in jail shortly after their apprehension
on May 2,1982.
In the light of all the above, it cannot be said that the
evidence presented by the prosecution is convincing enough
and sufficient to establish the guilt of the accused with
moral certainty.
It is true that the accused Encepido and Manatad,
relying on alibi as their defense, may have a weak case. But
their conviction should rest on the strength of the evidence
of the prosecution, and not on the weakness of the defense.
The accused should, therefore, be acquitted since their
guilt has not been established beyond reasonable doubt.
Judgment affirmed.
Notes.—Testimony of a single witness even if
uncorroborated is sufficient to conviction provided it is clear
and convincing. (People vs. Martinez, 127 SCRA 260.)
Star witness of the prosecution has no motive to testify
falsely against the appellants. His testimony was clear,
coherent and consistent. (People vs. Villeza, 127 SCRA 349.)
 ——o0o——

501
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Case law teaches that the issue as to the identity of the
drugs allegedly sold is commonly resolved by a scrutiny of
the chain of custody of the recovered drugs. (People vs.
Bernardino, 602 SCRA 270 [2009])
——o0o——
G.R. No. 188314. January 10, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs.KHADDAFY JANJALANI, GAMAL B.
BAHARAN a.k.a. Tapay, ANGELO TRINIDAD a.k.a. Abu
Khalil, GAPPAL BANNAH ASALI a.k.a. Maidan or Negro,
JAINAL SALI a.k.a. Abu Solaiman, ROHMAT
ABDURROHIM a.k.a. Jackie or Zaky, and other JOHN and
JANE DOES, accused,
GAMAL B. BAHARAN a.k.a. Tapay, ANGELO TRINIDAD
a.k.a. Abu Khalil, and ROHMAT ABDURROHIM a.k.a. Abu
Jackie or Zaky, accused-appellants.
Criminal Procedure; Plea of Guilty; All trial judges must
refrain from accepting with alacrity an accused’s plea of guilty, for
while justice demands a speedy administration, judges are duty
bound to be extra solicitous in seeing to it that when an accused
pleads guilty, he understands fully the meaning of his plea and
the import of an inevitable conviction; The requirement for a judge
to conduct a searching inquiry applies more so in cases of re-
arraignment.—As early as in People v. Apduhan, 24 SCRA 798
the Supreme Court has ruled that “all trial judges … must refrain
from accepting with alacrity an accused’s plea of guilty, for while
justice demands a speedy administration, judges are duty bound
to be extra solicitous in seeing to it that when an accused pleads
guilty, he understands fully the meaning of his plea and the
import of an inevitable conviction.” Thus, trial court judges are
required to observe the following procedure under Section 3, Rule
116 of the Rules of Court: SEC. 3.
_______________
* THIRD DIVISION.
158
1 SUPREME COURT REPORTS ANNOTATED
58
People vs. Baharan
Plea of guilty to capital offense; reception of evidence.—When
the accused pleads guilty to a capital offense, the court shall
conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea and
shall require the prosecution to prove his guilt and the precise
degree of culpability. The accused may also present evidence in
his behalf. The requirement to conduct a searching inquiry
applies more so in cases of re-arraignment. In People v. Galvez,
378 SCRA 389 (2002), the Court noted that since accused-
appellant’s original plea was “not guilty,” the trial court should
have exerted careful effort in inquiring into why he changed his
plea to “guilty.”
Same; Same; The requirement to conduct a searching inquiry
should not be deemed satisfied in cases in which it was the defense
counsel who explained the consequences of a “guilty” plea to the
accused—the conduct of a searching inquiry remains the duty of
judges, as they are mandated by the rules to satisfy themselves
that the accused had not been under coercion or duress; mistaken
impressions; or a misunderstanding of the significance, effects,
and consequences of their guilty plea.—The requirement to
conduct a searching inquiry should not be deemed satisfied in
cases in which it was the defense counsel who explained the
consequences of a “guilty” plea to the accused, as it appears in
this case. In People v. Alborida, 359 SCRA 495 (2001), this Court
found that there was still an improvident plea of guilty, even if
the accused had already signified in open court that his counsel
had explained the consequences of the guilty plea; that he
understood the explanation of his counsel; that the accused
understood that the penalty of death would still be meted out to
him; and that he had not been intimidated, bribed, or threatened.
We have reiterated in a long line of cases that the conduct of a
searching inquiry remains the duty of judges, as they are
mandated by the rules to satisfy themselves that the accused had
not been under coercion or duress; mistaken impressions; or a
misunderstanding of the significance, effects, and consequences of
their guilty plea. This requirement is stringent and mandatory.
Same; Same; Convictions based on an improvident plea of
guilt are set aside only if such plea is the sole basis of the
judgment.—In People v. Oden, 427 SCRA 634 (2004), the Court
declared that even if the requirement of conducting a searching
inquiry was not complied with, “[t]he manner by which the plea of
guilt is made … loses much of great significance where the
conviction can be based on independ-
159
VOL. 639, JANUARY 10, 2011 15
9 a judicial admission, making the testimony admissible as to both
People vs. Baharan
ent evidence proving the commission by the person accused
of the offense charged.” Thus, in People v. Nadera, 324 SCRA 490
(2000), the Court stated: Convictions based on an
improvident plea of guilt are set aside only if such plea is
the sole basis of the judgment. If the trial court relied on
sufficient and credible evidence to convict the accused,
the conviction must be sustained, because then it is
predicated not merely on the guilty plea of the accused but on
evidence proving his commission of the offense charged.
Criminal Law; Conspiracy; Principals; One who gave
instructions and training to another on how to make bombs—
coupled with their careful planning and persistent attempts to
bomb different areas in Metro Manila and his confirmation that
another would be getting TNT from one of the accused as part of
their mission—make him a principal by inducement since it is his
co-inducement which was the determining cause of the commission
of the crime.—In the light of the foregoing evidence, the Court
upholds the finding of guilt against Rohmat. Article 17 of the
Revised Penal Code reads: Art. 17. Principals.—The following are
considered principals: 1. Those who take a direct part in the
execution of the act 2. Those who directly force or induce others to
commit it 3. Those who cooperate in the commission of the offense
by another act without which it would not have been
accomplished Accused Rohmat is criminally responsible under the
second paragraph, or the provision on “principal by inducement.”
The instructions and training he had given Asali on how to make
bombs—coupled with their careful planning and persistent
attempts to bomb different areas in Metro Manila and Rohmat’s
confirmation that Trinidad would be getting TNT from Asali as
part of their mission—prove the finding that Rohmat’s co-
inducement was the determining cause of the commission of the
crime. Such “command or advice [was] of such nature that,
without it, the crime would not have materialized.”
Same; Same; Evidence; While it is true that statements made
by a conspirator against a co-conspirator are admissible only
when made during the existence of the conspiracy, if the declarant
repeats the statement in court, his extrajudicial confession becomes
conspirators.—Accused contend that the testimony of Asali is
inadmissible pursuant to Sec. 30, Rule 130 of the Rules of Court.
It is true that
160
1 SUPREME COURT REPORTS ANNOTATED
60
People vs. Baharan
under the rule, statements made by a conspirator against a
co-conspirator are admissible only when made during the
existence of the conspiracy. However, as the Court ruled in People
v. Buntag, 427 SCRA 180 (2004), if the declarant repeats the
statement in court, his extrajudicial confession becomes a judicial
admission, making the testimony admissible as to both
conspirators. Thus, in People v. Palijon, 343 SCRA 486 (2000), the
Court held the following: … [W]e must make a distinction
between extrajudicial and judicial confessions. An extrajudicial
confession may be given in evidence against the confessant but
not against his co-accused as they are deprived of the opportunity
to cross-examine him. A judicial confession is admissible against
the declarant’s co-accused since the latter are afforded
opportunity to cross-examine the former. Section 30, Rule 130
of the Rules of Court applies only to extrajudicial acts or
admissions and not to testimony at trial where the party
adversely affected has the opportunity to cross-examine
the declarant. Mercene’s admission implicating his co-accused
was given on the witness stand. It is admissible in evidence
against appellant Palijon. Moreover, where several accused are
tried together for the same offense, the testimony of a co-accused
implicating his co-accused is competent evidence against the
latter.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Office of the Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
SERENO, J.:
Before the Court is an appeal from the Decision of the
Court of Appeals (CA) dated 30 June 2008, which affirmed
the Decision of the Regional Trial Court of Makati City in
Criminal Case Nos. 05-476 and 05-4777 dated 18 October
2005. The latter Decision convicted the three accused-
appellants—namely, Gamal B. Baharan a.k.a. Tapay,
Angelo Trinidad a.k.a. Abu Khalil, and Rohmat Abdurrohim
a.k.a. Abu Jackie or Zaky—of the complex crime of multiple
murder and multiple frustrated murder, and sentenced
them to suffer the pen-
161
VOL. 639, JANUARY 10, 2011
People vs. Baharan
alty of death by lethal injection. The CA modified the
sentence to reclusion perpetua as required by Republic Act
No. 9346 (Act Abolishing the Imposition of Death Penalty).
Statement of Facts
The pertinent facts, as determined by the trial court, are
as follows:
On 14 February 2005, an RRCG bus was plying its usual
southbound route, from its Navotas bus terminal towards its
Alabang bus terminal via Epifanio de los Santos Avenue
(EDSA). Around 6:30 to 7:30 in the evening, while they were
about to move out of the Guadalupe-EDSA southbound bus
stop, the bus conductor noticed two men running after the
bus. The two insisted on getting on the bus, so the conductor
obliged and let them in.
According to Elmer Andales, the bus conductor, he
immediately became wary of the two men, because, even if
they got on the bus together, the two sat away from each
other—one sat two seats behind the driver, while the other
sat at the back of the bus. At the time, there were only 15
passengers inside the bus. He also noticed that the eyes of
one of the men were reddish. When he approached the
person near the driver and asked him whether he was
paying for two passengers, the latter looked dumb struck by
the question. He then stuttered and said he was paying for
two and gave PhP20. Andales grew more concerned when
the other man seated at the back also paid for both
passengers. At this point, Andales said he became more
certain that the two were up to no good, and that there
might be a holdup.
Afterwards, Andales said he became more suspicious
because both men kept on asking him if the bus was going to
161
stop at Ayala Avenue. The witness also noticed that the
man at the back appeared to be slouching, with his legs
stretched out in front of him and his arms hanging out and
hidden from view as if he was tinkering with something.
When Andales
162
162 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
would get near the man, the latter would glare at him.
Andales admitted, however, that he did not report the
suspicious characters to the police.
As soon as the bus reached the stoplight at the corner of
Ayala Avenue and EDSA, the two men insisted on getting
off the bus. According to Andales, the bus driver initially did
not want to let them off the bus, because a Makati ordinance
prohibited unloading anywhere except at designated bus
stops. Eventually, the bus driver gave in and allowed the
two passengers to alight. The two immediately got off the
bus and ran towards Ayala Avenue. Moments after, Andales
felt an explosion. He then saw fire quickly engulfing the
bus. He ran out of the bus towards a nearby mall. After a
while, he went back to where the bus was. He saw their bus
passengers either lying on the ground or looking
traumatized. A few hours after, he made a statement before
the Makati Police Station narrating the whole incident.
The prosecution presented documents furnished by the
Department of Justice, confirming that shortly before the
explosion, the spokesperson of the Abu Sayyaf Group—Abu
Solaiman—announced over radio station DZBB that the
group had a Valentine’s Day “gift” for former President
Gloria Macapagal-Arroyo. After the bombing, he again went
on radio and warned of more bomb attacks.
As stipulated during pretrial, accused Trinidad gave
ABS-CBN News Network an exclusive interview some time
after the incident, confessing his participation in the
Valentine’s Day bombing incident. In another exclusive
interview on the network, accused Baharan likewise
admitted his role in the bombing incident. Finally, accused
Asali gave a television interview, confessing that he had
supplied the explosive devices for the 14 February 2005
bombing. The bus conductor identified the accused Baharan
and Trinidad, and confirmed that they were the two men
who had entered the RRCG bus on the evening of 14
February.163
VOL. 639, JANUARY 10, 2011 163
People vs. Baharan
Members of the Abu Sayyaf Group—namely Khaddafy
Janjalani, Gamal B. Baharan, Angelo Trinidad, Gappal
Bannah Asali, Jainal Asali, Rohmat Abdurrohim a.k.a. Abu
Jackie or Zaky, and other “John” and “Jane Does”—were
then charged with multiple murder and multiple frustrated
murder. Only Baharan, Trinidad, Asali, and Rohmat were
arrested, while the other accused remain at-large.
On their arraignment for the multiple murder charge
(Crim. Case No. 05-476), Baharan, Trinidad, and Asali all
entered a plea of guilty. On the other hand, upon
arraignment for the multiple frustrated murder charge
(Crim. Case No. 05-477), accused Asali pled guilty. Accused
Trinidad and Baharan pled not guilty. Rohmat pled not
guilty to both charges. During the pretrial hearing, the
parties stipulated the following:
1.) The jurisdiction of this court over the offenses
charged.
2.) That all three accused namely alias Baharan,
Trinidad, and Asali admitted knowing one another
before February 14, 2005.
3.) All the same three accused likewise admitted that a
bomb exploded in the RRCG bus while the bus was
plying the EDSA route fronting the MRT terminal
which is in front of the Makati Commercial Center.
4.) Accused Asali admitted knowing the other accused
alias Rohmat whom he claims taught him how to make
explosive devices.
5.) The accused Trinidad also admitted knowing
Rohmat before the February 14 bombing incident.
6.) The accused Baharan, Trinidad, and Asali all
admitted to causing the bomb explosion inside the
RRCG bus which left four people dead and more or less
forty persons injured.
7.) Both Baharan and Trinidad agreed to stipulate that
within the period March 20-24 each gave separate
interviews to the ABS-CBN news network admitting
their participation in the commission of the said
crimes, subject of these cases.164
164 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
 8.) Accused Trinidad and Baharan also admitted to 1 Omnibus Decision of the Trial Court at 6, CA Rollo at p. 97.
2 TSN, 18 April 2005, at 3-17.
pleading guilty to these crimes, because they were
165
guilt-stricken after seeing a man carrying a child in VOL. 639, JANUARY 10, 2011 165
the first bus that they had entered.
People vs. Baharan
9.) Accused Asali likewise admitted that in the middle
laiman and Rohmat, to secure eight kilos of TNT, a
of March 2005 he gave a television news interview in
soldering gun, aluminum powder, a tester, and Christmas
which he admitted that he supplied the explosive
lights, all of which he knew would be used to make a bomb.
devices which resulted in this explosion inside the
He then recalled that sometime in November to December
RRCG bus and which resulted in the filing of these
2004, Trinidad asked him for a total of 4 kilos of TNT—that
charges.
is, 2 kilos on two separate occasions. Rohmat allegedly
10.) Finally, accused Baharan, Trinidad, and Asali
called Asali to confirm that Trinidad would get TNT from
admitted that they are members of the Abu Sayyaf.1
Asali and use it for their first mission. The TNT was
In the light of the pretrial stipulations, the trial court
allegedly placed in two buses sometime in December 2004,
asked whether accused Baharan and Trinidad were
but neither one of them exploded.
amenable to changing their “not guilty” pleas to the charge
Asali then testified that the night before the Valentine’s
of multiple frustrated murder, considering that they pled
Day bombing, Trinidad and Baharan got another two kilos
“guilty” to the heavier charge of multiple murder, creating
of TNT from him. Late in the evening of 14 February, he
an apparent inconsistency in their pleas. Defense counsel
received a call from Abu Solaiman. The latter told Asali not
conferred with accused Baharan and Trinidad and
to leave home or go to crowded areas, since the TNT taken
explained to them the consequences of the pleas. The two
by Baharan and Trinidad had already been exploded in
accused acknowledged the inconsistencies and manifested
Makati. Thirty minutes later, Trinidad called Asali,
their readiness for re-arraignment. After the Information
repeating the warning of Abu Solaiman. The next day, Asali
was read to them, Baharan and Trinidad pled guilty to the
allegedly received a call from accused Rohmat,
charge of multiple frustrated murder.2
congratulating the former on the success of the
After being discharged as state witness, accused Asali
mission.3According to Asali, Abu Zaky specifically said, “Sa
testified that while under training with the Abu Sayyaf in
wakas nag success din yung tinuro ko sayo.”
2004, Rohmat, a.k.a Abu Jackie or Zaky, and two other
persons taught him how to make bombs and explosives. The Assignment of Errors
trainees were told that they were to wage battles against
the government in the city, and that their first mission was Accused-appellants raise the following assignment of
to plant bombs in malls, the Light Railway Transit (LRT), errors:
and other parts of Metro Manila. I. The trial court gravely erred in accepting accused-
As found by the trial court, Asali, after his training, was appellants’ plea of guilt despite insufficiency of
required by the Abu Sayyaf leadership, specifically Abu So- searching inquiry into the voluntariness and full
comprehension of the consequences of the said plea.
_______________
_______________
3 CA Rollo at p. 29.
166
166 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
II. The trial court gravely erred in finding that the guilt
of accused-appellants for the crimes charged had been
proven beyond reasonable doubt.4
First Assignment of Error
Accused-appellants Baharan and Trinidad argue that the
trial court did not conduct a searching inquiry after they
had changed their plea from “not guilty” to “guilty.” The
transcript of stenographic notes during the 18 April 2005 re-
arraignment before the Makati Regional Trial Court is
reproduced below:
Court :Anyway, I think what we should have to do,
considering the stipulations that were agreed upon
during the last hearing, is to address this matter of
pleas of not guilty entered for the frustrated murder
charges by the two accused, Mr. Trinidad and Mr.
Baharan, because if you will recall they entered pleas
of guilty to the multiple murder charges, but then
earlier pleas of not guilty for the frustrated multiple
murder charges
remain… [I]s that not inconsistent considering the
stipulations that were entered into during the initial
pretrial of this case? [If] you will recall, they admitted
to have caused the bomb explosion that led to the
death of at least four people and injury of about forty
other persons and so under the circumstances, Atty
Peña, have you discussed this matter with your
clients?
………
Atty. Peña :Then we should be given enough time to talk
with them. I haven’t conferred with
_______________
4 Brief for the Accused-Appellants at 1-2, CA Rollo at 73-74.
167
VOL. 639, JANUARY 10, 2011 167
People vs. Baharan
them about this with regard to the multiple murder case.
………
Court :Okay. So let us proceed now. Atty. Peña, can you
assist the two accused because if they are interested in
withdrawing their [pleas], I want to hear it from your
lips.
Atty. Peña : Yes, your Honor.
(At this juncture, Atty. Peña confers with the two
accused, namely Trinidad and Baharan)
I have talked to them, your Honor, and I have
explained to them the consequence of their pleas, your
Honor, and that the plea of guilt to the murder case
and plea of not guilty to the frustrated multiple
murder actually are inconsistent with their pleas.
Court :With matters that they stipulated upon?
Atty. Peña:Yes, your Honor. So, they are now, since they
already plead guilt to the murder case, then they are
now changing their pleas, your Honor, from not guilty
to the one of guilt. They are now ready, your Honor, for
re-arraignment.
………
INTERPRETER:(Read again that portion [of the
information] and translated it in Filipino in a clearer
way and asked both accused what their pleas are).
Your Honor, both accused are entering separate pleas
of guilt to the crime charged.
COURT:All right. So after the information was re-read to
the accused, they have withdrawn their pleas of not
guilty and changed it to the pleas of guilty to the
 charge of frustrated murder. Thank you. Are there any
matters you need to address at pretrial
168
168 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
now? If there are none, then I will terminate pretrial and
accommodate…5
As early as in People v. Apduhan, the Supreme Court has
ruled that “all trial judges … must refrain from accepting
with alacrity an accused’s plea of guilty, for while justice
demands a speedy administration, judges are duty bound to
be extra solicitous in seeing to it that when an accused
pleads guilty, he understands fully the meaning of his plea
and the import of an inevitable conviction.”6 Thus, trial
court judges are required to observe the following procedure
under Section 3, Rule 116 of the Rules of Court:
SEC. 3. Plea of guilty to capital offense; reception of evidence.—
When the accused pleads guilty to a capital offense, the court
shall conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of his
plea and shall require the prosecution to prove his guilt and the
precise degree of culpability. The accused may also present
evidence in his behalf. (Emphasis supplied)
The requirement to conduct a searching inquiry applies
more so in cases of re-arraignment. In People v. Galvez, the
Court noted that since accused-appellant’s original plea was
“not guilty,” the trial court should have exerted careful
effort in inquiring into why he changed his plea to
“guilty.”7According to the Court:
“The stringent procedure governing the reception of a plea of
guilt, especially in a case involving the death penalty, is imposed
upon the trial judge in order to leave no room for doubt on the
possibility that
_______________
5 TSN, 18 April 2005, at 3-4, 14-15.
6 People v. Apduhan, G.R. No. L-19491, 30 August 1968, 24 SCRA 798.
7 People v. Galvez, G.R. No. 135053, 6 March 2002, 378 SCRA 389; see
alsoPeople v. Chua, G.R. No. 137841, 1 October 2001, 366 SCRA 283.
169
VOL. 639, JANUARY 10, 2011 169
People vs. Baharan
the accused might have misunderstood the nature of the charge
and the consequences of the plea.”8
Likewise, the requirement to conduct a searching inquiry
should not be deemed satisfied in cases in which it was the
defense counsel who explained the consequences of a
“guilty” plea to the accused, as it appears in this case.
In People v. Alborida, this Court found that there was still
an improvident plea of guilty, even if the accused had
already signified in open court that his counsel had
explained the consequences of the guilty plea; that he
understood the explanation of his counsel; that the accused
understood that the penalty of death would still be meted
out to him; and that he had not been intimidated, bribed, or
threatened.9
We have reiterated in a long line of cases that the
conduct of a searching inquiry remains the duty of judges,
as they are mandated by the rules to satisfy themselves that
the accused had not been under coercion or duress;
mistaken impressions; or a misunderstanding of the
significance, effects, and consequences of their guilty
plea.10 This requirement is stringent and mandatory.11
Nevertheless, we are not unmindful of the context under
which the re-arraignment was conducted or of the factual
milieu surrounding the finding of guilt against the accused.
The Court observes that accused Baharan and Trinidad
previously pled guilty to another charge—multiple murder—
based on the same act relied upon in the multiple frustrated
_______________
8 People v. Galvez, G.R. No. 135053, 6 March 2002, 378 SCRA 389,
citing People v. Magat, 332 SCRA 517, 526 (2000).
9 People v. Alborida, G.R. No. 136382, 25 June 2001, 359 SCRA 495.
 10 People v. Dayot, G.R. No. 88281, 20 July 1990, 187 SCRA 637; People
v. Alborida, G.R. No. 136382, 25 June 2001, 359 SCRA 495, citing People v.
Sevilleno, 305 SCRA 519 (1999)
11 People v. Galvez, G.R. No. 135053, 6 March 2002, 378 SCRA 389.
170
170 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
murder charge. The Court further notes that prior to the
change of plea to one of guilt, accused Baharan and Trinidad
made two other confessions of guilt—one through an
extrajudicial confession (exclusive television interviews, as
stipulated by both accused during pretrial), and the
other via judicial admission (pretrial stipulation).
Considering the foregoing circumstances, we deem it
unnecessary to rule on the sufficiency of the “searching
inquiry” in this instance. Remanding the case for re-
arraignment is not warranted, as the accused’s plea of guilt
was not the sole basis of the condemnatory judgment under
consideration.12
Second Assignment of Error
In People v. Oden, the Court declared that even if the
requirement of conducting a searching inquiry was not
complied with, “[t]he manner by which the plea of guilt is
made … loses much of great significance where the
conviction can be based on independent evidence proving
the commission by the person accused of the offense
charged.”13 Thus, in People v. Nadera, the Court stated:
“Convictions based on an improvident plea of guilt are set
aside only if such plea is the sole basis of the judgment. If
the trial court relied on sufficient and credible evidence to
convict the accused, the conviction must be sustained,
because then it is predicated not merely on the guilty plea of the
accused but on evidence proving his commission of the offense
charged.”14 (Emphasis supplied.)
In their second assignment of error, accused-appellants
assert that guilt was not proven beyond reasonable doubt.
They
_______________
12 People v. Alborida, G.R. No. 136382, 25 June 2001, 359 SCRA 495.
13 People v. Oden, G.R. Nos. 155511-22, 14 April 2004, 427 SCRA 634,
citing People v. Galas, 354 SCRA 722 (2001).
14 People v. Nadera, G.R. Nos. 131384-87, 2 February 2000, 324 SCRA
490.
171
VOL. 639, JANUARY 10, 2011 171
People vs. Baharan
pointed out that the testimony of the conductor was merely
circumstantial, while that of Asali as to the conspiracy was
insufficient.
Insofar as accused-appellants Baharan and Trinidad are
concerned, the evidence for the prosecution, in addition to
that which can be drawn from the stipulation of facts,
primarily consisted of the testimonies of the bus conductor,
Elmer Andales, and of the accused-turned-state-witness,
Asali. Andales positively identified accused Baharan and
Trinidad as the two men who had acted suspiciously while
inside the bus; who had insisted on getting off the bus in
violation of a Makati ordinance; and who had scampered
away from the bus moments before the bomb exploded. On
the other hand, Asali testified that he had given accused
Baharan and Trinidad the TNT used in the bombing
incident in Makati City. The guilt of the accused Baharan
and Trinidad was sufficiently established by these
corroborating testimonies, coupled with their respective
judicial admissions (pretrial stipulations) and extrajudicial
confessions (exclusive television interviews, as they both
stipulated during pretrial) that they were indeed the
perpetrators of the Valentine’s Day bombing.15 Accordingly,
the Court upholds the findings of guilt made by the trial
court as affirmed by the Court of Appeals.
Anent accused Rohmat, the evidence for the prosecution
consisted of the testimony of accused-turned-state-witness
Asali. Below is a reproduction of the transcript of
stenographic notes on the state prosecutor’s direct 16 TSN, 26 May 2005, at 24-36.
173
examination of state-witness Asali during the 26 May 2005 VOL. 639, JANUARY 10, 2011 173
trial: People vs. Baharan
Q: You stated that Zaky trained you and Trinidad. Under what circumstances A: He told me that Abu Solaiman instructed me to get the TNT so that he
did he train you, Mr. Witness, to assemble those explosives, you and could detonate a bomb
Trinidad? ………
Q: Were there any other person, besides Abu Solaiman, who called you up,
_______________
with respect to the taking of the explosives from you?
A: There is, sir… Abu Zaky, sir, called up also.
15 Alano v. Court of Appeals, G.R. No. 111244, 15 December 1997, 283 SCRA 269, citing People v.
Hernandez, 260 SCRA 25 (1996). Q: What did Abu Zaky tell you when he called you up?
172 A: He told me that “this is your first mission.”
172 SUPREME COURT REPORTS ANNOTATED Q: Please enlighten the Honorable Court. What is that mission you are
referring to?
People vs. Baharan A: That is the first mission where we can show our anger towards the
A: Abu Zaky, Abu Solaiman, Khadaffy Janjalani, the three of them, that Christians.
Angelo Trinidad and myself be the one to be trained to make an ………
explosive, sir. Q: The second time that he got a bomb from you, Mr. witness, do you know if
Q: Mr. witness, how long that training, or how long did it take that training? the bomb explode?
A: If I am not mistaken, we were thought to make bomb about one month and A: I did not know what happened to the next 2 kilos taken by Angelo
two weeks. Trinidad from me until after I was caught, because I was told by the
……… policeman that interviewed me after I was arrested that the 2 kilos were
Q: Now, speaking of that mission, Mr. witness, while you were still in planted in a bus, which also did not explode.
training at Mr. Cararao, is there any mission that you undertook, if any, Q: So besides these two incidents, were there any other incidents that Angelo
with respect to that mission? Trinidad and Tapay get an explosive for you, Mr. witness?
……… ………
A: Our first mission was to plant a bomb in the malls, LRT, and other parts of A: If I am not mistaken, sir, on February 13, 2005 at 6:30 p.m.
Metro Manila, sir.16 Q: Who got from you the explosive Mr. witness?
The witness then testified that he kept eight kilos of TNT A: It’s Angelo Trinidad and Tapay, sir.
for accused Baharan and Trinidad. ………
Q: How many explosives did they get from you, Mr. witness, at that time?
Q: Now, going back to the bomb. Mr. witness, did you know what happened to
A: They got 2 kilos TNT bomb, sir.
the 2 kilos of bomb that Trinidad and Tapay took from you sometime in
Q: Did they tell you, Mr. witness, where are they going to use that explosive?
November 2004?
A: No, sir.174
A: That was the explosive that he planted in the G-liner, which did not
explode. 174 SUPREME COURT REPORTS ANNOTATED
Q: How did you know, Mr. witness? People vs. Baharan
A: He was the one who told me, Mr. Angelo Trinidad, sir. Q: Do you know, Mr. witness, what happened to the third batch of explosives,
……… which were taken from you by Trinidad and Tapay?
Q: What happened next, Mr. witness, when the bomb did not explode, as told ………
to you by Trinidad? A: That is the bomb that exploded in Makati, sir.
A: On December 29, Angelo Trinidad got 2 more kilos of TNT bombs. Q: Why did you know, Mr. witness?
……… A: Because I was called in the evening of February 14 by Abu Solaiman. He
Q: Did Trinidad tell you why he needed another amount of explosive on that told me not to leave the house because the explosive that were taken by
date, December 29, 2004? Will you kindly tell us the reason why? Tapay and Angelo Trinidad exploded.
……… ………
Q: Was there any other call during that time, Mr. Witness?
_______________
 ………
A: I was told by Angelo Trinidad not to leave the house because the explosive
that he took exploded already, sir.
Q: How sure were you, Mr. witness, at that time, that indeed, the bomb
exploded at Makati, beside the call of Abu Solaiman and Trinidad?
A: It was told by Abu Solaiman that the bombing in Makati should coincide
with the bombing in General Santos.
………
A: He told it to me, sir… I cannot remember the date anymore, but I know it
was sometime in February 2005.
Q: Any other call, Mr. witness, from Abu Solaiman and Trinidad after the
bombing exploded in Makati, any other call?
………
A: There is, sir… The call came from Abu Zaky.
Q: What did Abu Zaky tell you, Mr. witness?
A: He just greeted us congratulations, because we have a successful mission.
………
A: He told me that “sa wakas, nag success din yung tinuro ko sayo.”
… … …175
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People vs. Baharan
Q: By the way, Mr. witness, I would just like to clarify this. You stated that
Abu Zaky called you up the following day, that was February 15, and
congratulating you for the success of the mission. My question to you, Mr.
witness, if you know what is the relation of that mission, wherein you
were congratulated by Abu Zaky, to the mission, which have been
indoctrinated to you, while you were in Mt. Cararao, Mr. witness?
A: They are connected, sir.
Q: Connected in what sense, Mr. witness?
A: Because when we were undergoing training, we were told that the Abu
Sayyaf should not wage war to the forest, but also wage our battles in the
city.
Q: Wage the battle against who, Mr. witness?
A: The government, sir.17
What can be culled from the testimony of Asali is that the
Abu Sayyaf Group was determined to sow terror in Metro
Manila, so that they could show their “anger towards the
Christians.”18 It can also be seen that Rohmat, together with
Janjalani and Abu Solaiman, had carefully planned the
Valentine’s Day bombing incident, months before it
happened. Rohmat had trained Asali and Trinidad to make
bombs and explosives. While in training, Asali and others
were told that their mission was to plant bombs in malls,
the LRT, and other parts of Metro Manila. According to
Asali, Rohmat called him on 29 December 2004 to confirm
that Trinidad would get two kilos of TNT from Asali, as they
were “about to commence” their “first mission.”19 They made
two separate attempts to bomb a bus in Metro Manila, but
to no avail. The day before the Valentine’s Day bombing,
Trinidad got another two kilos of TNT from Asali. On
Valentine’s Day, the Abu Sayyaf Group announced that they
had a gift for the former President, Gloria Macapagal-
Arroyo. On their third try, their plan finally
_______________
17 Id., at pp. 24-51.
18 Id., at p. 36.
19 Id., at pp. 24-51.
176
176 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
succeeded. Right after the bomb exploded, the Abu Sayyaf
Group declared that there would be more bombings in the
future. Asali then received a call from Rohmat, praising the
former: “Sa wakas nag success din yung tinuro ko sayo.”20
In the light of the foregoing evidence, the Court upholds
the finding of guilt against Rohmat. Article 17 of the
Revised Penal Code reads:
“Art. 17. Principals.—The following are considered
principals:
1. Those who take a direct part in the execution of the
act
2. Those who directly force or induce others to commit it
3. Those who cooperate in the commission of the offense
by another act without which it would not have been
accomplished.”
Accused Rohmat is criminally responsible under the
second paragraph, or the provision on “principal by
inducement.” The instructions and training he had given
Asali on how to make bombs—coupled with their careful
planning and persistent attempts to bomb different areas in
Metro Manila and Rohmat’s confirmation that Trinidad
would be getting TNT from Asali as part of their mission—
prove the finding that Rohmat’s co-inducement was the
determining cause of the commission of the crime.21 Such
“command or advice [was] of such nature that, without it,
the crime would not have materialized.”22
Further, the inducement was “so influential in producing
the criminal act that without it, the act would not have been
performed.”23 In People v. Sanchez, et al., the Court ruled
that,
_______________
20 Id., at p. 49.
21 See generally U.S. v. Indanan, 24 Phil. 203 (1913); People v. Kiichi
Omine, 61 Phil. 609 (1935).
22 People v. Cruz, G.R. No. 74048, 14 November 1990, 191 SCRA 377,
385.
23 LUIS B. REYES, THE REVISED PENAL CODE: CRIMINAL LAW–BOOK ONE,
529 (2008).
177
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People vs. Baharan
notwithstanding the fact that Mayor Sanchez was not at
the crime scene, evidence proved that he was the
mastermind of the criminal act or the principal by
inducement. Thus, because Mayor Sanchez was a co-
principal and co-conspirator, and because the act of one
conspirator is the act of all, the mayor was rendered liable
for all the resulting crimes.24 The same finding must be
applied to the case at bar.
The Court also affirms the finding of the existence of
conspiracy involving accused Baharan, Trinidad, and
Rohmat. Conspiracy was clearly established from the
“collective acts of the accused-appellants before, during and
after the commission of the crime.” As correctly declared by
the trial court in its Omnibus Decision:
“Asali’s clear and categorical testimony, which remains
unrebutted on its major points, coupled with the judicial
admissions freely and voluntarily given by the two other accused,
are sufficient to prove the existence of a conspiracy hatched
between and among the four accused, all members of the terrorist
group Abu Sayyaf, to wreak chaos and mayhem in the metropolis
by indiscriminately killing and injuring civilian victims by
utilizing bombs and other similar destructive explosive devices.
While said conspiracy involving the four malefactors has not
been expressly admitted by accused Baharan, Angelo Trinidad,
and Rohmat, more specifically with respect to the latter’s
participation in the commission of the crimes, nonetheless it has
been established by virtue of the aforementioned evidence, which
established the existence of the conspiracy itself and the
indispensable participation of accused Rohmat in seeing to it that
the conspirators’ criminal design would be realized.
It is well-established that conspiracy may be inferred from the
acts of the accused, which clearly manifests a concurrence of
wills, a common intent or design to commit a crime (People v.
Lenantud, 352 SCRA 544). Hence, where acts of the accused
collectively and individually demonstrate the existence of a
common design towards the
_______________
24 People v. Sanchez, et al., G.R. No. 131116, 27 August 1999, 313 SCRA
254.
178
178 SUPREME COURT REPORTS ANNOTATED
People vs. Baharan
accomplishment of the same unlawful purpose, conspiracy is
evident and all the perpetrators will be held liable as principals
(People v. Ellado, 353 SCRA 643).”25
In People v. Geronimo, the Court pronounced that it
would be justified in concluding that the defendants therein
were engaged in a conspiracy “when the defendants by their
acts aimed at the same object, one performing one part and
the other performing another part so as to complete it, with evidence against appellant Palijon. Moreover, where several
a view to the attainment of the same object; and their acts, accused are tried together for the same offense, the testimony of a
though apparently independent, were in fact concerted and co-accused implicating his co-accused is competent evidence
cooperative, indicating closeness of personal association, against the latter.”28
concerted action and concurrence of sentiments.”26 WHEREFORE, the Petition is DENIED. The Decision of
Accused contend that the testimony of Asali is the Regional Trial Court of Makati, as affirmed with
inadmissible pursuant to Sec. 30, Rule 130 of the Rules of modification by the Court of Appeals, is hereby AFFIRMED.
Court. It is true that under the rule, statements made by a SO ORDERED.
conspirator against a co-conspirator are admissible only Carpio-Morales (Chairperson), Brion,
when made during the existence of the conspiracy. However, Bersamin and Villarama, Jr., JJ., concur.
as the Court ruled in People v. Buntag, if the declarant Appeal denied.
repeats the statement in court, his extrajudicial confession Notes.—It bears to note that a searching inquiry must
becomes a judicial admission, making the testimony focus on the voluntariness of the plea and the full
admissible as to both conspirators.27Thus, in People v. comprehension of the consequences of the plea. (People vs.
Palijon, the Court held the following: Aranzado, 365 SCRA 649 [2001])
“… [W]e must make a distinction between extrajudicial and The procedure is mandatory and a judge who fails to
judicial confessions. An extrajudicial confession may be given in observe it commits grave abuse of discretion. (People vs.
evidence against the confessant but not against his co-accused as Chua, 366 SCRA 283 [2001])
they are deprived of the opportunity to cross-examine him. A ——o0o——
judicial confession is admissible against the declarant’s co-
accused since the latter are afforded opportunity to cross-examine _______________
the former. Section 30, Rule 130 of the Rules of Court
28 People v. Palijon, G.R. No. 123545, 18 October 2000, 343 SCRA 486,
applies only to extrajudicial
citing People v. Flores, 195 SCRA 295, 308 (1991); People v. Ponce, 197
SCRA 746, 755 (1991).
_______________
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25 Omnibus Decision of the Trial Court at 6, CA Rollo at p. 123.
26 People v. Geronimo, G.R. No. L-35700, 15 October 1973, 53 SCRA 246,
254, citing People v. Cabrera, 43 Phil. 64, 66 (1922); People v. Carbonell, 48 Phil.
868 (1926).
27 People v. Buntag, G.R. No. 123070, 14 April 2004, 427 SCRA 180; see
also People v. Palijon, 343 SCRA 486 (2000).
179
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People vs. Baharan
acts or admissions and not to testimony at trial where the
party adversely affected has the opportunity to cross-
examine the declarant. Mercene’s admission implicating his co-
accused was given on the witness stand. It is admissible in