1
G.R. No. 80762 March 19, 1990 5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR.,
CUSTODIO GONZALES, JR., NERIO GONZALES and ROGELIO LANIDA,
accused, CUSTODIO GONZALES, SR., accused-appellant.
SARMIENTO, J.:
In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo,
Branch XXXVIII (38), in Criminal Case No. 13661, entitled "People of the
Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales,
Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the
accused, except Rogelio Lanida who eluded arrest and up to now has
remain at large and not yet arrained, guilty beyond reasonable doubt of
the crime of murder as defined under Article 248 of the Revised Penal
Code. They were sentenced "to suffer the penalty of imprisonment of
twelve (12) years and one (1) day to seventeen (17) years and four (4)
months of reclusion temporal, to indemnify the heirs of the deceased
victim in the amount of P40,000.00, plus moral damages in the sum of
P14,000.00 and to pay the costs." 2 The victim was Lloyd Peñacerrada,
44, landowner, and a resident of Barangay Aspera, Sara, Iloilo.
Through their counsel, all the accused, except of course Rogelio Lanida,
filed a notice of appeal from the trial court's decision. During the
pendency of their appeal and before judgment thereon could be rendered
by the Court of Appeals, however, all the accused-appellants, except
Custodio Gonzales, Sr., withdrew their appeal and chose instead to pursue
their respective applications for parole before the then Ministry, now
Department, of Justice, Parole Division. 3
On October 27, 1987, the Court of Appeals rendered a decision 4 on the
appeal of Custodio Gonzales, Sr. It modified the appealed decision in that
the lone appellant was sentenced to reclusion perpetua and to indemnify
the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other
respect, the decision of the trial court was affirmed. Further, on the basis
of our ruling in People vs. Ramos, 5 the appellate court certified this case
to us for review. 6
The antecedent facts are as follows:
At around 9:00 o'clock in the evening of February 21, 1981, Bartolome
Paja, the barangay captain of Barangay Tipacla, Ajuy, Iloilo, was
awakened from his sleep by the spouses Augusto and Fausta Gonzales.
Augusto informed Paja that his wife had just killed their landlord, Lloyd
Peñacerrada, and thus would like to surrender to the authorities. Seeing
Augusto still holding the knife allegedly used in the killing and Fausta
with her dress smeared with blood, Paja immediately ordered a nephew
of his to take the spouses to the police authorities at the Municipal Hall in
Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales
spouses, who "backrode" on his motorcycle, to the municipal
building. 7 Upon reaching the Ajuy Police sub-station, the couple
informed the police on duty of the incident. That same night, Patrolman
Salvador Centeno of the Ajuy Police Force and the Gonzales spouses went
back to Barangay Tipacla. Reaching Barangay Tipacla the group went to
Paja's residence where Fausta was made to stay, while Paja, Patrolman
Centeno, and Augusto proceeded to the latter's residence at Sitio
Nabitasan where the killing incident allegedly occurred. 8 There they saw
the lifeless body of Lloyd Peñacerrada, clad only in an underwear,
sprawled face down inside the bedroom. 9 The group stayed for about an
hour during which time Patrolman Centeno inspected the scene and
started to make a rough sketch thereof and the immediate
surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock
in the morning, Patrolman Centeno, accompanied by a photographer,
went back to the scene of the killing to conduct further investigations.
Fausta Gonzales, on the other hand, was brought back that same day by
Barangay Captain Paja to the police substation in Ajuy. When Patrolman
Centeno and his companion arrived at Sitio Nabitasan, two members of
the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been
informed of the incident, were already there conducting their own
investigation. Patrolman Centeno continued with his sketch; photographs
of the scene were likewise taken. The body of the victim was then brought
to the Municipal Hall of Ajuy for autopsy.
The autopsy of Lloyd Peñacerrada's cadaver was performed at about
11:20 a.m. on February 22, 1981; after completed, a report was made
with the following findings:
PHYSICAL FINDINGS
1. Deceased is about 5 ft. and 4 inches in height, body moderately built
and on cadaveric rigidity.
EXTERNAL FINDINGS
1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower
3rd anterior aspect of the arm, right, directed upward to the right axillary
pit.
2. Stab wound, thru and thru, located at the proximal 3rd, forearm right,
posterior aspect with an entrance of 5 cm. in width and 9 cm. in length
with an exit at the middle 3rd, posterior aspect of the forearm, right, with
1 cm. wound exit.
3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect
of the forearm right, 1 cm. in width.
4. Incised wound, 4 cm. long, depth visualizing the right lateral border of
the sternum, 6th and 7th ribs, right located 1.5 inches below the right
nipple.
thoracic cavity right, located at the left midclavicular line at the level of
the 5th rib left.
6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right
thoracic cavity, located at the mid left scapular line at the level of the 8th
intercostal space.
7. Puncture wound, 1 cm. in width, located at the base of the left armpit
directed toward the left thoracic cavity.
8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the
left deltoid muscle, located at the upper 3rd axilla left.
9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the
anterior aspect, proximal 3rd arm left, directed downward.
10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length,
medial aspect, palm right.
11. Stabwound, 4 cm.in width, iliac area, right, directed inward with
portion of large intestine and mysentery coming out.
12. Stab wound, 4 cm. in width, located at the posterior portion of the
shoulder, right, directed downward to the aspex of the light thoracic
cavity.
13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial
portion of the medial border of the right scapula.
14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the
posterior aspect of the right elbow.
15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior
portion, middle 3rd, forearm, right.
16. Lacerated wound at the anterior tantanelle with fissural fracture of
the skull.
INTERNAL FINDINGS:
1. Stab wound No. 5, injuring the left ventricle of the heart.
2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.
3. Stab wound No. 7, injuring the right middle lobe of the lungs.
4. Stab wound No. 11, injuring the descending colon of the large intestine,
thru and thru.
5. Stab wound No. 12, severely injuring the apex of the right lungs (sic).
CAUSE OF DEATH:
MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED, STABBED
(sic), INCISED AND PUNCTURED WOUNDS.
JESUS D. ROJAS, M.D.
Rural Health Physician
Ajuy, Iloilo 11
The autopsy report thus showed that Dr. Rojas "found sixteen (16)
wounds, five (5) of which are fatal because they penetrated the internal
organs, heart, lungs and intestines of the deceased." 12
On February 23, two days after the incident, Augusto Gonzales appeared
before the police sub-station in the poblacion of Ajuy and voluntarily
surrendered to Police Corporal Ben Sazon for detention and protective
custody for "having been involved" in the killing of Lloyd Peñacerrada. He
requested that he be taken to the P.C. headquarters in Sara, Iloilo where
his wife, Fausta, was already detained having been indorsed thereat by
the Ajuy police force. 13
Based on the foregoing and on the investigations conducted by the Ajuy
police force and the 321st P.C. Company, an information for murder dated
August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the
spouses Augusto and Fausta Gonzales. The information read as follows:
The undersigned Provincial Fiscal accuses FAUSTA GONZALES and
AUGUSTO GONZALES of the crime of MURDER committed as follows:
That on or about the 21st day of February, 1981, in the Municipality of
Ajuy, Province of Iloilo, Philippines, and within the jurisdiction of this
Court, the above-named accused with four other companions whose
identities are still unknown and are still at large, armed with sharp-
pointed and deadly weapons, conspiring, confederating and helping each
other, with treachery and evident premeditation, with deliberate intent
and decided purpose to kill, and taking advantage of their superior
strength and number, did then and there wilfully, unlawfully and
feloniously attack, assault, stab, hack, hit and wound Lloyd D.
Peñacerrada, with the weapons with which said accused were provided at
the time, thereby inflicting upon said Lloyd D. Peñacerrada multiple
wounds on different parts of his body as shown by autopsy report
attached to the record of this case which multifarious wounds caused the
immediate death of said Lloyd D. Peñacerrada.
CONTRARY TO LAW.
Iloilo City, August 26, 1981. 14
When arraigned on September 16, 1981, Augusto and Fausta both
entered a plea of not guilty. Before trial, however, Jose Huntoria 15 who
claimed to have witnessed the killing of Lloyd Peñacerrada, presented
himself to Nanie Peñacerrada, the victim's widow, on October 6, 1981,
and volunteered to testify for the prosecution. A reinvestigation of the
case was therefore conducted by the Provincial Fiscal of Iloilo on the
basis of which an Amended Information, 16 dated March 3, 1982, naming
as additional accused Custodio Gonzales, Sr. (the herein appellant),
Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed.
Again, all the accused except as earlier explained, Lanida, pleaded not
guilty to the crime.
At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health
physician of Ajuy who conducted the autopsy on the body of the victim;
Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman
Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt.
(ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C.
 2
Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the
widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of the
deceased Lloyd Penacerrada at around 11:20 a.m. on February 22, 1981
after it was taken to the municipal hall of Ajuy. 17 His findings revealed
that the victim suffered from 16 wounds comprising of four (4)
punctured wounds, seven (7) stab wounds, four (4) incised wounds, and
one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the
possibility that only one weapon might have caused all the wounds
(except the lacerated wound) inflicted on the victim, nevertheless opined
that due to the number and different characteristics of the wounds, the
probability that at least two instruments were used is high. 18 The police
authorities and the P.C. operatives for their part testified on the aspect of
the investigation they respectively conducted in relation to the incident.
Nanie Peñacerrada testified mainly on the expenses she incurred by
reason of the death of her husband while Barangay Captain Bartolome
Paja related the events surrounding the surrender of the spouses Augusto
and Fausta Gonzales to him, the location of the houses of the accused, as
well as on other matters.
By and large, the prosecution's case rested on Huntoria's alleged
eyewitness account of the incident. According to Huntoria, who gave his
age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the
afternoon on February 21, 1981, he left his work at Barangay Central, in
Ajuy, Iloilo where he was employed as a tractor driver by one Mr. Piccio,
and walked home; 20 he took a short-cut route. 21 While passing at the
vicinity of the Gonzales spouses' house at around 8:00 o'clock in the
evening, he heard cries for help. 22 Curiosity prompted him to approach
the place where the shouts were emanating. When he was some 15 to 20
meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging
upon and takings turns in stabbing and hacking the victim Lloyd
Peñacerrada, near a "linasan" or threshing platform. He said he clearly
recognized all the accused as the place was then awash in
moonlight. 24 Huntoria further recounted that after the accused were
through in stabbing and hacking the victim, they then lifted his body and
carried it into the house of the Gonzales spouses which was situated some
20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on
his way home. Upon reaching his house, he related what he saw to his
mother and to his wife 26 before he went to sleep. 27 Huntoria explained
that he did not immediately report to the police authorities what he
witnessed for fear of his life. 28 In October 1981 however, eight months
after the extraordinary incident he allegedly witnessed, bothered by his
conscience plus the fact that his father was formerly a tenant of the victim
which, to his mind, made him likewise a tenant of the latter, he thought of
helping the victim's widow, Nanie Peñacerrada. Hence, out of his volition,
he travelled from his place at Sitio Nabitasan, in Barangay Tipacla
Municipality of Ajuy, to Sara, Iloilo where Mrs. Peñacerrada lived, and
related to her what he saw on February 21, 1981. 29
Except Fausta who admitted killing Lloyd Peñacerrada in defense of her
honor as the deceased attempted to rape her, all the accused denied
participation in the crime. The herein accused-appellant, Custodio
Gonzales, Sr., claimed that he was asleep 30 in his house which was
located some one kilometer away from the scene of the crime 31when the
incident happened. He asserted that he only came to know of it after his
grandchildren by Augusto and Fausta Gonzales went to his house that
night of February 21, 1981 to inform him. 32
The trial court disregarded the version of the defense; it believed the
testimony of Huntoria.
On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone
appellant, contended that the trial court erred in convicting him on the
basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and
in not appreciating his defense of alibi.
The Court of Appeals found no merit in both assigned errors. In
upholding Huntoria's testimony, the appellate court held that:
. . . Huntoria positively identified all the accused, including the herein
accused-appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27,
1982) The claim that Huntoria would have difficulty recognizing the
assailant at a distance of 15 to 20 meters is without merit, considering
that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not
say who was hacking and who was stabbing the deceased, it was only
because the assailant were moving around the victim.
As for the delay in reporting the incident to the authorities, we think that
Huntoria's explanation is satisfactory. He said he feared for his life. (Id.,
pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980):
"The natural reticence of most people to get involved in a criminal case is
of judicial notice. As held in People v. Delfin, '. . . the initial reluctance of
witnesses in this country to volunteer information about a criminal case
and their unwillingness to be involved in or dragged into criminal
investigations is common, and has been judicially declared not to affect
credibility.'"
It is noteworthy that the accused-appellant self admitted that he had
known Huntoria for about 10 years and that he and Huntoria were in
good terms and had no misunderstanding whatsoever. (TSN, p. 33, July
18, 1984) He said that he could not think of any reason why Huntoria
should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is beyond
question. 33
The Court of Appeals likewise rejected the appellant's defense of
alibi. 34 The appellate court, however, found the sentence imposed by the
trial court on the accused-appellant erroneous. Said the appellate court:
Finally, we find that the trial court erroneously sentenced the accused-
appellant to 12 years and 1 day to 17 years and 4 months of reclusion
temporal. The penalty for murder under Article 248 is reclusion
temporal in its maximum period to death. As there was no mitigating or
aggravating circumstance, the imposible penalty should be reclusion
perpetua. Consequently, the appeal should have been brought to the
Supreme Court. With regard to the indemnity for death, the award of
P40,000.00 should be reduced to P30,000.00, in accordance with the
rulings of the Supreme Court. (E.g., People v. De la Fuente, 126 SCRA 518
(1983); People v. Atanacio, 128 SCRA 31 (1984); People v. Rado, 128
SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987). 35
The case, as mentioned earlier, is now before us upon certification by the
Court of Appeals, the penalty imposed being reclusion perpetua.
After a careful review of the evidence adduced by the prosecution, we
find the same insufficient to convict the appellant of the crime charged.
To begin with, the investigation conducted by the police authorities leave
much to be desired. Patrolman Centeno of the Ajuy police force in his
sworn statements 36 even gave the date of the commission of the crime
as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of
little help. While indicated thereon are the alleged various blood stains
and their locations relative to the scene of the crime, there was however
no indication as to their quantity. This is rather unfortunate for the
prosecution because, considering that there are two versions proferred
on where the killing was carried out, the extent of blood stains found
would have provided a more definite clue as to which version is more
credible. If, as the version of the defense puts it, the killing transpired
inside the bedroom of the Gonzales spouses, there would have been more
blood stains inside the couple's bedroom or even on the ground directly
under it. And this circumstance would provide an additional mooring to
the claim of attempted rape asseverated by Fausta. On the other hand, if
the prosecution's version that the killing was committed in the field near
the linasan is the truth, then blood stains in that place would have been
more than in any other place.
The same sloppiness characterizes the investigation conducted by the
other authorities. Police Corporal Ben Sazon who claimed that accused
Augusto Gonzales surrendered to him on February 23, 1981 failed to
state clearly the reason for the "surrender." It would even appear that
Augusto "surrendered" just so he could be safe from possible revenge by
the victim's kins. Corporal Sazon likewise admitted that Augusto never
mentioned to him the participation of other persons in the killing of the
victim. Finally, without any evidence on that point, P.C. investigators of
the 321st P.C. Company who likewise conducted an investigation of the
killing mentioned in their criminal complaint 38 four other unnamed
persons, aside from the spouses Augusto and Fausta Gonzales, to have
conspired in killing Lloyd Peñacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that the
sixteen wounds described in the autopsy report were caused by two or
more bladed instruments. Nonetheless, he admitted the possibility that
one bladed instrument might have caused all. Thus, insofar as Dr. Rojas'
testimony and the autopsy report are concerned, Fausta Gonzales'
admission that she alone was responsible for the killing appears not at all
too impossible. And then there is the positive testimony of Dr. Rojas that
there were only five wounds that could be fatal out of the sixteen
described in the autopsy report. We shall discuss more the significance of
these wounds later.
It is thus clear from the foregoing that if the conviction of the appellant by
the lower courts is to be sustained, it can only be on the basis of the
testimony of Huntoria, the self-proclaimed eyewitness. Hence, a
meticulous scrutiny of Huntoria's testimony is compelling.
To recollect, Huntoria testified that he clearly saw all the accused,
including the appellant, take turns in hacking and stabbing Lloyd
Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981,
in the field near a "linasan" while he (Huntoria) stood concealed behind a
clump of banana trees some 15 to 20 meters away from where the crime
was being committed. According to him, he recognized the six accused as
the malefactors because the scene was then illuminated by the moon. He
further stated that the stabbing and hacking took about an hour. But on
cross-examination, Huntoria admitted that he could not determine who
among the six accused did the stabbing and/or hacking and what
particular weapon was used by each of them.
ATTY. GATON (defense counsel on cross-examination):
Q And you said that the moon was bright, is it correct?
A Yes, Sir.
Q And you would like us to understand that you saw the hacking and the
stabbing, at that distance by the herein accused as identified by you?
A Yes, sir, because the moon was brightly shining.
Q If you saw the stabbing and the hacking, will you please tell this
Honorable Court who was hacking the victim?
A Because they were surrounding Peñacerrada and were in constant
movement, I could not determine who did the hacking.
ATTY. GATON:
The interpretation is not clear.
COURT:
They were doing it rapidly.
 3
A The moving around or the hacking or the "labu" or "bunu" is rapid. I
only saw the rapid movement of their arms, Your Honor, and I cannot
determine who was hacking and who was stabbing. But I saw the hacking
and the stabbing blow.
ATTY. GATON:
Q You cannot positively identify before this Court who really hacked
Lloyd Peñacerrada?
A Yes sir, I cannot positively tell who did the hacking.
Q And likewise you cannot positively tell this Honorable Court who did
the stabbing?
A Yes sir, and because of the rapid movements.
Q I noticed in your direct testimony that you could not even identify the
weapons used because according to you it was just flashing?
A Yes, sir. 39
(Emphasis supplied)
From his very testimony, Huntoria failed to impute a definite and specific
act committed, or contributed, by the appellant in the killing of Lloyd
Peñacerrada.
It also bears stressing that there is nothing in the findings of the trial
court and of the Court of Appeals which would categorize the criminal
liability of the appellant as a principal by direct participation under
Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is
nothing in the evidence for the prosecution that inculpates him by
inducement, under paragraph 2 of the same Article 17, or by
indispensable cooperation under paragraph 3 thereof. What then was the
direct part in the killing did the appellant perform to support the ultimate
punishment imposed by the Court of Appeals on him?
Article 4 of the Revised Penal Code provides how criminal liability is
incurred.
Art. 4. Criminal liability — Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means.
(Emphasis supplied.)
Thus, one of the means by which criminal liability is incurred is through
the commission of a felony. Article 3 of the Revised Penal Code, on the
other hand, provides how felonies are committed.
Art. 3. Definition — Acts and omissions punishable by law are felonies
(delitos).
Felonies are committed not only by means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent; and
there is fault when the wrongful act results from imprudence, negligence,
lack of foresight, or lack of skill.
(Emphasis supplied.)
Thus, the elements of felonies in general are: (1) there must be an act or
omission; (2) the act or omission must be punishable under the Revised
Penal Code; and (3) the act is performed or the omission incurred by
means of deceit or fault.
Here, while the prosecution accuses, and the two lower courts both
found, that the appellant has committed a felony in the killing of Lloyd
Peñacerrada, forsooth there is paucity of proof as to what act was
performed by the appellant. It has been said that "act," as used in Article 3
of the Revised Penal Code, must be understood as "any bodily movement
tending to produce some effect in the external world." 40 In this instance,
there must therefore be shown an "act" committed by the appellant
which would have inflicted any harm to the body of the victim that
produced his death.
Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he
did not see who "stabbed" or who "hacked" the victim. Thus this principal
witness did not say, because he could not whether the appellant "hacked
or "stabbed" victim. In fact, Huntoria does not know what specific act was
performed by the appellant. This lack of specificity then makes the case
fall short of the test laid down by Article 3 of the Revised Penal Code
previously discussed. Furthermore, the fact that the victim sustained only
five fatal wounds out of the total of sixteen inflicted, as adverted to above,
while there are six accused charged as principals, it follows to reason that
one of the six accused could not have caused or dealt a fatal wound. And
this one could as well be the appellant, granted ex gratia argumenti that
he took part in the hacking and stabbing alleged by Huntoria. And why
not him? Is he not after all the oldest (already sexagenarian at that time)
and practically the father of the five accused? And pursuing this argument
to the limits of its logic, it is possible, nay even probable, that only four, or
three, or two of the accused could have inflicted all the five fatal wounds
to the exclusion of two, three, or four of them. And stretching the logic
further, it is possible, nay probable, that all the fatal wounds, including
even all the non-fatal wounds, could have been dealt by Fausta in rage
against the assault on her womanhood and honor. But more importantly,
there being not an iota of evidence that the appellant caused any of the
said five fatal wounds, coupled with the prosecution's failure to prove the
presence of conspiracy beyond reasonable doubt, the appellant's
conviction can not be sustained.
Additionally, Huntoria's credibility as a witness is likewise tarnished by
the fact that he only came out to testify in October 1981, or eight long
months since he allegedly saw the killing on February 21, 1981. While
ordinarily the failure of a witness to report at once to the police
authorities the crime he
had witnessed should not be taken against him and should not affect his
credibility, 41 here, the unreasonable delay in Huntoria's coming out
engenders doubt on his veracity. 42 If the silence of coming out an alleged
eyewitness for several weeks renders his credibility doubtful, 43 the
more it should be for one who was mute for eight months. Further,
Huntoria's long delay in reveiling what he allegedly witnessed, has not
been satisfactorily explained. His lame excuse that he feared his life
would be endangered is too pat to be believed. There is no showing that
he was threatened by the accused or by anybody. And if it were true that
he feared a possible retaliation from the accused, 44 why did he finally
volunteer to testify considering that except for the spouses Augusto and
Fausta Gonzales who were already under police custody, the rest of the
accused were then still free and around; they were not yet named in the
original information, 45 thus the supposed danger on Huntoria's life
would still be clear and present when he testified.
Moreover, Huntoria is not exactly a disinterested witness as portrayed by
the prosecution. He admitted that he was a tenant of the deceased. In fact,
he stated that one of the principal reasons why he testified was because
the victim was also his landlord.
xxx xxx xxx
Q Now, Mr. Huntoria, why did it take you so long from the time you saw
the stabbing and hacking of Lloyd Peñacerrada when you told Mrs.
Peñacerrada about what happened to her husband?
A At first I was then afraid to tell anybody else but because I was haunted
by my conscience and secondly the victim was also my landlord I
revealed what I saw to the wife of the victim. 46
xxx xxx xxx
(Emphasis ours.)
At this juncture, it may be relevant to remind that under our
socioeconomic set-up, a tenant owes the very source of his livelihood, if
not existence itself, from his landlord who provides him with the land to
till. In this milieu, tenants like Huntoria are naturally beholden to their
landlords and seek ways and means to ingratiate themselves with the
latter. In this instance, volunteering his services as a purported
eyewitness and providing that material testimony which would lead to
the conviction of the entire family of Augusto Gonzales whose wife,
Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a
perverted sense, be a way by which Huntoria sought to ingratiate himself
with the surviving family of his deceased landlord. This is especially so
because the need to get into the good graces of his landlord's family
assumed a greater urgency considering that he ceased to be employed as
early as May 1981. 47 Volunteering his services would alleviate the
financial distress he was in. And Huntoria proved quite sagacious in his
choice of action for shortly after he volunteered and presented himself to
the victim's widow, he was taken under the protective wings of the
victim's uncle, one Dr. Biclar, who gave him employment and provided
lodging for his family. 48 Given all the foregoing circumstances, we can
not help but dismiss Huntoria as an unreliable witness, to say the least.
At any rate, there is another reason why we find the alleged participation
of the appellant in the killing of Lloyd Peñacerrada doubtful — it is
contrary to our customs and traditions. Under the Filipino family
tradition and culture, aging parents are sheltered and insulated by their
adult children from any possible physical and emotional harm. It is
therefore improbable for the other accused who are much younger and at
the prime of their manhood, to summon the aid or allow the participation
of their 65-year old 49 father, the appellant, in the killing of their lone
adversary, granting that the victim was indeed an adversary. And
considering that the appellant's residence was about one kilometer from
the scene of the crime, 50 we seriously doubt that the appellant went
there just for the purpose of aiding his three robust male sons (Custodia
Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio
and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a
perceived enemy.
Finally, while indeed alibi is a weak defense, 51 under appropriate
circumstances, like in the instant case in which the participation of the
appellant is not beyond cavil it may be considered as exculpatory. Courts
should not at once look with disfavor at the defense of alibi for if taken in
the light of the other evidence on record, it may be sufficient to acquit the
accused. 52
In fine, the guilt of the appellant has not been proven beyond reasonable
doubt.
WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET
ASIDE and the appellant is hereby ACQUITTED. Costs de oficio.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
G.R. No. L-35748 December 14, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.
VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to this court from the
judgment of the Court of First Instance of Bulacan convicting them upon
the information of the crime of arson as follows: The former as principal
 4
by direct participation, sentenced to fourteen years, eight months, and
one day of cadena temporal, in accordance with paragraph 2 of article
550, Penal Code; and the latter as accomplice, sentenced to six years and
one day of presidio mayor; and both are further sentenced to the
accessories of the law, and to pay each of the persons whose houses were
destroyed by the fire, jointly and severally, the amount set forth in the
information, with costs.
Counsel appointed by the court to defend the accused- appellants de
oficio, after delivering his argument, prayed for the affirmance of the
judgment with reference to the appellant Martin Atienza, and makes the
following assignments of error with reference to Romana Silvestre, to wit:
1. The lower court erred in convincing Romana Silvestre as accomplice of
the crime charged in the information.
2. Finally, the court erred in not acquitting said defendant from the
information upon the ground of insufficient evidence, or at the least, of
reasonable doubt.
The following facts were proved at the hearing beyond a reasonable
doubt:
Romana Silvestre, wife of Domingo Joaquin by her second marriage,
cohabited with her codefendant Martin Atienza from the month of March,
1930, in the barrio of Masocol, municipality of Paombong, Province of
Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin,
filed with the justice of the peace for that municipality, a sworn complaint
for adultery, supported by affidavits of Gerardo Cabigao and Castor de la
Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were
arrested on a warrant issued by said justice of the peace. On the 20th of
the month, they were released on bail, each giving a personal bond of
P6,000. Pending the preliminary investigation of the case, the two
defendants begged the municipal president of Paombong, Francisco
Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to
withdraw the complaint, the two accused binding themselves to
discontinue cohabitation, and promising not to live again in the barrio of
Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The
municipal president transmitted the defendants' petition to the
complaining husband, lending it his support. Domingo Joaquin acceded to
it, and on May 20, 1930, filed a motion for the dismissal of his complaint.
In consideration of this petition, the justice of the peace of Paombong
dismissed the adultery case commenced against the accused, and
cancelled the bonds given by them, with the costs against the
complainant.
The accused then left the barrio of Masocol and went to live in that of
Santo Niño, in the same municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son by
her former marriage, Nicolas de la Cruz, in the barrio of Santo Niño, and
under pretext of asking him for some nipa leaves, followed him home to
the village of Masocol, and remained there. The accused, Martin Atienza,
who had continued to cohabit with said Romana Silvestre, followed her
and lived in the home of Nicolas de la Cruz. On the night of November 25,
1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were
gathered together with the appellants herein after supper, Martin Atienza
told said couple to take their furniture out of the house because he was
going to set fire to it. Upon being asked by Nicolas and Antonia why he
wanted to set fire to the house, he answered that that was the only way
he could be revenged upon the people of Masocol who, he said, had
instigated the charge of adultery against him and his codefendant,
Romana Silvestre. As Martin Atienza was at that time armed with a pistol,
no one dared say anything to him, not even Romana Silvestre, who was
about a meter away from her codefendant. Alarmed at what Martin
Atienza had said, the couple left the house at once to communicate with
the barrio lieutenant, Buenaventura Ania, as to what they had just heard
Martin Atienza say; but they had hardly gone a hundred arms' length
when they heard cries of "Fire! Fire!" Turning back they saw their home
in flames, and ran back to it; but seeing that the fire had assumed
considerable proportions, Antonia took refuge in the schoolhouse with
her 1 year old babe in her arms, while Nicolas went to the home of his
parents-in-law, took up the furniture he had deposited there, and carried
it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas
Santiago coming from the barrio artesian well, and Tomas Gonzalez,
teacher at the barrio school of Masocol, and Felipe Clemente, an old man
61 years of age, coming from their homes, to the house on fire, saw
Martin Atienza going away from the house where the fire started, and
Romana Silvestre leaving it.lawphil.net
As stated in the beginning, counsel appointed by this court to defend the
accused-appellant de oficio, prays for the affirmance of the judgment
appealed from with reference to defendant Martin Atienza. The facts
related heretofore, proved beyond a reasonable doubt at the hearing,
justify this petition of the de oficio counsel, and establish beyond a
reasonable doubt said defendant's guilt of arson as charged, as principal
by direct participation.
With respect to the accused-appellant Romana Silvestre, the only
evidence of record against her are: That, being married, she lived
adulterously with her codefendant Martin Atienza, a married man; that
both were denounced for adultery by Domingo Joaquin, Romana
Silvestre's second husband; that in view of the petition of the accused,
who promised to discontinue their life together, and to leave the barrio of
Masocol, and through the good offices of the municipal president of
Paombong, the complaining husband asked for the dismissal of the
complaint; that in pursuance of their promise, both of the accused went to
lived in the barrio of Santo Niño, in the same municipality; that under
pretext for some nipa leaves from her son by her former marriage,
Nicolas de la Cruz, who had gone to the barrio of Santo Niño, Romana
Silvestre followed him to his house in the barrio of Masocol on November
23, 1930, and remained there; that her codefendant, Martin Atienza
followed her, and stayed with his coaccused in the same house; that on
the night of November 25, 1930, at about 8 o'clock, while all were
gathered together at home after supper, Martin Atienza expressed his
intention of burning the house as the only means of taking his revenge on
the Masocol resident, who had instigated Domingo Joaquin to file the
complaint for adultery against them, which compelled them to leave the
barrio of Masocol; that Romana Silvestre listened to her codefendant's
threat without raising a protest, and did not give the alarm when the
latter set fire to the house. Upon the strength of these facts, the court
below found her guilty of arson as accomplice.
Article 14 of the Penal Code, considered in connection with article 13,
defines an accomplice to be one who does not take a direct part in the
commission of the act, who does not force or induce other to commit it,
nor cooperates in the commission of the act by another act without which
it would not have been accomplished, yet cooperates in the execution of
the act by previous or simultaneous actions.
Now then, which previous or simultaneous acts complicate Romana
Silvestre in the crime of arson committed by her codefendant Martin
Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and
Antonia de la Cruz, to take away their furniture because he was going to
set fire to their house as the only means of revenging himself on the
barrio residents, her passive presence when Martin Atienza set fire to the
house, where there is no evidence of conspiracy or cooperation, and her
failure to give the alarm when the house was already on fire?
The complicity which is penalized requires a certain degree of
cooperation, whether moral, through advice, encouragement, or
agreement, or material, through external acts. In the case of the accused-
appellant Romana Silvestre, there is no evidence of moral or material
cooperation, and none of an agreement to commit the crime in question.
Her mere presence and silence while they are simultaneous acts, do not
constitute cooperation, for it does not appear that they encouraged or
nerved Martin Atienza to commit the crime of arson; and as for her failure
to give the alarm, that being a subsequent act it does not make her liable
as an accomplice.
The trial court found the accused-appellant Martin Atienza guilty of
arson, defined and penalized in article 550, paragraph 2, of the Penal
Code, which reads as follows:
ART. 550. The penalty of cadena temporal shall be imposed upon:
xxx xxx xxx
2. Any person who shall set fire to any inhabited house or any building in
which people are accustomed to meet together, without knowing
whether or not such building or house was occupied at the time, or any
freight train in motion, if the damage caused in such cases shall exceed six
thousand two hundred and fifty pesetas.
While the defendant indeed knew that besides himself and his
codefendant, Romana Silvestre, there was nobody in De la Cruz's house at
the moment of setting fire to it, he cannot be convicted merely arson less
serious than what the trial court sentenced him for, inasmuch as that
house was the means of destroying the others, and he did not know
whether these were occupied at the time or not. If the greater seriousness
of setting fire to an inhabited house, when the incendiary does not know
whether there are people in it at the time, depends upon the danger to
which the inmates are exposed, not less serious is the arson committed
by setting fire to inhabited houses by means of another inhabited house
which the firebrand knew to be empty at the moment of committing the
act, if he did not know whether there were people or not in the others,
inasmuch as the same danger exists.
With the evidence produced at the trial, the accused-appellant Martin
Atienza might have been convicted of the crime of arson in the most
serious degree provided for in article 549 of the Penal Code, if the
information had alleged that at the time of setting fire to the house, the
defendant knew that the other houses were occupied, taking into account
that barrio residents are accustomed to retire at the tolling of the bell for
the souls in purgatory, i.e., at 8 o'clock at night.
For all the foregoing considerations, we are of the opinion and so hold,
that: (1) Mere passive presence at the scene of another's crime, mere
silence and failure to give the alarm, without evidence of agreement or
conspiracy, do not constitute the cooperation required by article 14 of the
Penal Code for complicity in the commission of the crime witnessed
passively, or with regard to which one has kept silent; and (2) he who
desiring to burn the houses in a barrio, without knowing whether there
are people in them or not, sets fire to one known to be vacant at the time,
which results in destroying the rest, commits the crime of arson, defined
and penalized in article 550, paragraph 2, Penal Code.
By virtue wherefore, the judgment appealed from is modified as follows:
It is affirmed with reference to the accused-appellant Martin Atienza, and
reversed with reference to the accused-appellant Romana Silvestre, who
is hereby acquitted with
one-half of the costs de oficio. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez,
and Imperial, JJ., concur.
THE UNITED STATES, Plaintiff-Appellee, v. CATALINO
APOSTOL, Defendant-Appellant.
 5
Francisco Ortigas for Appellant.
Solicitor-General Harvey for Appellee.
SYLLABUS
1. ARSON; EDIFICE USED AS DWELLING. — The words "Edifice used as a
dwelling" in paragraph 1 of article 553 of the Penal Code, signify and
edifice intended for human habitation, in an uninhabited place, at a time
when it is unoccupied.
DECISION
ARELLANO, C.J. :
The judgment entered in this case by the Court of First Instance of Nueva
Ecija finds that on the 16th of December, 1907, five individuals, among
them being the accused herein, went to the house where Pedro
Tabilisima, Celestino Vergara, and Tranquilino Manipul were living, and
there inquired after some carabaos that had disappeared, and because
these above-mentioned inmates answered that they knew nothing about
the matter, ordered them to leave the house, but as the three men named
above refused to do so, the accused, Catalino Apostol, set fire to the hut
and the same was burnt down.
In the opinion of the trial court the responsibility of the accused has been
fully established by the testimony of the injured parties. And inasmuch
as,, according to the same, the act comes within the provisions of article
549 of the Penal Code, Catalino Apostol was sentenced to sixteen years
and one day of cadena temporal, to the accessories of the law, to
indemnity the value of the burnt hut in the sum of P1, and to pay the
costs.
An appeal having been taken to this court, the defense claimed, on behalf
of the offender: (1) The absence of proof of criminal intent; (2) that in
view of the fact that the burnt hut was situated in an uninhabited place, it
is not proper to apply article 549, but article 554 of the Penal Code.
Criminal intent as well as the will to commit a crime are always presumed
to exist on the part of the person who executes an act which the law
punishes, unless the contrary shall appear. (Art. 1, Penal Code.)
As to the circumstances connected with the burning of the hut, Pedro
Tabilisima testified that he and his friends were in the same; that the
accused and his companions arrived at 8 p.m. and questioned them about
carabaos that they said had been stolen from them; that after they replied
that they knew nothing, the former set fire to the house and they jumped
out of it; that the witness and two companions lived in the house; that it
was situated in an uninhabited place, surrounded by fields; that the
nearest houses were far away, and cries could not be heard from one
house to another; and that the burnt house was not worth more than P1,
because it was a small one, the witness himself having constructed it.
Celestino Vergara says that several individuals arrived at 8 o’clock at
night, asked them for carabaos that they claimed to have lost, wounded
Tranquilino Manipul, who was asleep, and Pedro Tabilisima, forced them
to leave the house, and as they did not want to do so for fear of being
assaulted the accused set fire to the same; they tried to put out the fire as
long as they could, but when no longer able jumped out of the house. The
house was in an uninhabited locality, in the fields, the nearest house
being a small store to which the cry of a person might carry, and the
neighboring houses could be seen.
Tranquilino Manipul testified in almost the same terms as this last
witness. The argument which the defense advances, based on article 554,
which in connection with 553 punishes the setting fire to a building
intended for habitation, in an uninhabited place, does not apply, because
the article in question refers to an edifice intended for human habitation
in an uninhabited place at a time when the same is unoccupied. It is
article 549, which punishes with the very severe penalties of cadena
temporal to cadena perpetua "those who shall set fire to any edifice,
farmhouse, hut, shed, or vessel in port, with knowledge that one or more
persons were within the same," that must be applied.
The law must be applied as laid down in the abovequoted excerpt.
But the court, in view of the nature of the crime and considering the
circumstances attending the same, recognizes the extreme severity of the
penalty; therefore we apply the remedy afforded it by article 2, paragraph
2, of the Penal Code, when a strict application of the provisions of the
code would result in an excessive penalty, taking into consideration the
degree of malice and the injury caused by the crime.
For the reasons above set forth the judgment appealed from is hereby
affirmed with costs against the Appellant. Ten days from date let a
confirming judgment be entered, and ten days thereafter let the case be
remanded to the lower court for action.
Without prejudice to the immediate execution of the judgment, let the
clerk of this court, as provided in the said article 2 of the Penal Code,
respectfully address a communication to the Honorable, the Governor-
General of these Islands, giving the result of this decision and the
sentence, requesting him, should he so desire, to make use of the
prerogative with which he is invested in order to reduce or mitigate the
penalty imposed. So ordered.
Torres, Johnson, Carson and Moreland, JJ., concur.
G.R. No. L-6486 March 2, 1911
THE UNITED STATES, plaintiff-appellee,
vs.
RAFAEL B. CATOLICO, defendant-appellant.
B. Pobre for appellant.
Acting Attorney-General Harvey for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the
Province of Cagayan, Hon. Charles A. Low presiding, convicting the
defendant of the crime of malversation of public funds and sentencing
him to two months' imprisonment, to perpetual disqualification to hold
public office or public employment of any kind, and to the payment of the
costs.
It appears from the proofs of the prosecution that the accused as justice
of the peace of Baggao, Province of Cagayan, on the 2d day of October,
1909, had before him sixteen separate civil cases commenced by Juan
Canillas against sixteen distinct individuals, each one for damages
resulting from a breach of contract; that said cases were all decided by
the appellant in favor of the plaintiff; that each one of the defendant in
said cases appealed from the decision of the justice of the peace and
deposited P16 as required by law, at the same time giving a bond of P50,
each one of which was approved by the court; that on the 12th day of said
month the plaintiff in said cases presented a writing to the appellant as
said justice of the peace, alleging that the sureties on the said bonds were
insolvent and later demonstrated this to the satisfaction of the appellant;
that thereupon the latter ordered the cancellation of the said bonds and,
in the same order, required each of the appellants to file another bond
within fifteen days, that, inasmuch as none of the appellants in said
causes presented new bonds within the time fixed, the plaintiff in said
causes applied to the appellant, as said court, for an order declaring final
the judgment entered in each of the said sixteen cases and commanding
the execution of the same, at the same time asking that the sums
deposited by the defendants in said actions be attached (so called in the
record) and delivered to him in satisfaction of said judgments; that the
accused acceded to the petition of the plaintiff, ordered said sums
attached and delivered same to the plaintiff, at the same time requiring of
the plaintiff a bond of P50 for each attachment, conditioned that he would
respond for the damages which should result from such attachment.
After this attachment (so called) the attorney for the defendants in the
said sixteen cases presented a complaint against the appellant to the
Court of First Instance, by virtue of which said court ordered that the
plaintiff, Juan Canillas, deliver to the clerk of the Court of First Instance
the sums deposited by the defendants in said actions. Canillas obeyed the
order of the court and made the delivery as required.
Upon these facts the Acting Attorney-General recommends the acquittal
of the accused. We are in entire accord with that recommendation. The
case made against the appellant lacks many of the essential elements
required by law to be present in the crime of malversation of public
funds. The accused did not convert the money to his own use or to the use
of any other person; neither did he feloniously permit anybody else to
convert it. Everything he did was done in good faith under the belief that
he was acting judicially and correctly. The fact that he ordered the sums,
deposited in his hands by the defendants — appellants in the sixteen
actions referred to, attached for the benefit of the plaintiff in those
actions, after the appeals had been dismissed and the judgments in his
court had become final, and that he delivered the said sums to the
plaintiff in satisfaction of the judgment which he held in those cases, can
not be considered an appropriation or a taking of said sums within the
meaning of Act No. 1740. He believed that, as presiding officer of the
court of justice of the peace, he had a perfect right under the law to cancel
the bonds when it was clearly shown to him that the sureties thereon
were insolvent, to require the filing of new undertakings, giving the
parties ample time within which to do so, to dismiss the appeals in case
said undertakings were not filed, and to declare the judgment final. He
believed that after said appeals had been dismissed and said judgment
had become final, the sums deposited were subject to be applied in
payment of the judgments in the actions in which said sums had been
deposited and that he was acting judicially and legally in making such
applications.
To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences, as, in law, is equivalent to
criminal intent. The maxim is, actus non facit reum, nisi mens rea — a
crime is not committed if the mind of the person performing the act
complained of be innocent.
 6
In the case at bar the appellant was engaged in exercising the functions of
a court of justice of the peace. He had jurisdictions of the actions before
him. He had a right and it was his duty to require the payment by each
appellant of P16, as well as the giving of a proper undertaking with
solvent sureties. While, in dismissing the appeals and delivering the P256
to the plaintiff in the said cases, he may have exceeded his authority as
such court and passed beyond the limits of his jurisdiction and power, a
question we do not now discuss or decide, it was, so far as appears from
the record, at most a pure mistake of judgment, an error of the mind
operating upon a state of facts. Giving the act complained of the
signification most detrimental to the appellant, it, nevertheless, was
simply the result of the erroneous exercise of the judicial function, and
not an intention to deprive any person of his property feloniously. His act
had back of it the purpose to do justice to litigants and not to embezzle
property. He acted that honest debts might be paid to those to whom they
were legally and justly due, and not to enrich himself or another
by criminalmisappropriation. It was an error committed by a court, not
an act done by a criminal-minded man. It was a mistake, not a crime.
It is true that a presumption of criminal intention may arise from proof of
the commission of a criminal act; and the general rule is that, if it is
proved that the accused committed the criminal act charged, it will be
presumed that the act was done with criminal intention, and that it is for
the accused to rebut this presumption. But it must be borne in mind that
the act from which such presumption springs must be a criminal act. In
the case before us the act was not criminal. It may have been an error; it
may have been wrong and illegal in the sense that it would have been
declared erroneous and set aside on appeal or other proceeding in the
superior court. It may well be that his conduct was arbitrary to a high
degree, to such a degree in fact as properly to subject him to reprimand
or even suspension or removal from office. But, from the facts of record, it
was not criminal. As a necessary result no presumption of criminal
intention arises from the act.
Neither can the presumption of a criminal intention arise from the act
complained of, even though it be admitted that the crime, if any, is that of
malversation of public funds as defined and penalized in Act No. 1740. It
is true that that Act provides that "In all prosecutions for violations of the
preceding section, the absence of any of the public funds or property of
which any person described in said section has charge, and any failure or
inability of such person to produce all the funds and property properly in
his charge on the demand of any officer authorized to examine or inspect
such person, office, treasury, or depositary shall be deemed to be prima
facie evidence that such missing funds or property have been put to
personal uses or used for personal ends by such person within the
meaning of the preceding section." Nevertheless, that presumption is a
rebuttable one and constitutes only a prima facie case against the person
accused. If he present evidence showing that, in fact, he has not put said
funds or property to personal uses, then that presumption is at an end
and the prima facie case destroyed. In the case at bar it was necessary for
the accused to offer any such evidence, for the reason that the people's
own pleading alleged, and its own proofs presented, along with the
criminal charge, facts which showed, of themselves, that said money had
not been put to personal uses or used for personal ends. In other words,
the prosecution demonstrated, both by the allegations in its information
filed against the accused and by its proofs on the trial, that the absence of
the funds in question was not due to the personal use thereof by the
accused, thus affirmatively and completely negativing the presumption
which, under the act quoted, arises from the absence of the funds. The
presumption was never born. It never existed. The facts which were
presented for the purpose of creating such presumption were
accompanied by other facts which absolutely prevented its creation.
On the other hand, if it be admitted that the crime, if any, is that of estafa,
as defined in paragraph 5 of article 535 of the Penal Code, then the
presumption just referred to does not arise. Mere absence of the funds is
not sufficient proof of conversion. Neither is the mere failure of the
accused to turn over the funds at any given time sufficient to make even
a prima facie case. (U. S. vs. Morales, 15 Phil. Rep., 236; U.
S. vs. Dominguez, 2 Phil. Rep., 580.) Conversion must be affirmatively
proved, either by direct evidence or by the production of facts from which
conversion necessarily follows. (U. S. vs. Morales, supra.)
The judgment of conviction is reversed and the defendant ordered
discharged from custody forthwith.
Arellano, C. J., Mapa and Trent, JJ., concur.
G.R. No. 97471 February 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y
PUNO, alias "Enry," accused-appellants.
The Solicitor General for plaintiff-appellee.
Edward C. Castañeda for accused-appellants.
REGALADO, J.:
The primal issue for resolution in this case is whether accused-appellants
committed the felony of kidnapping for ransom under Article 267 of the
Revised Penal Code, as charged in the information; or a violation of
Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law
of 1974), as contended by the Solicitor General and found by the trial
court; or the offense of simple robbery punished by Paragraph 5, Article
294 of the Revised Penal Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial
Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof,
appellants were charged with kidnapping for ransom allegedly
committed in the following manner:
That on or about the 13th day of January, 1988 in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, the said
accused, being then private individuals, conspiring together,
confederating with and mutually helping each other, did, then and there,
wilfully, unlawfully and feloniously kidnap and carry away one MARIA
DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting
ransom, to the damage and prejudice of the said offended party in such
amount as may be awarded to her under the provisions of the Civil
Code. 1
On a plea of not guilty when arraigned, 2 appellants went to trial which
ultimately resulted in a judgment promulgated on September 26, 1990
finding them guilty of robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532, with this disposition in
the fallo thereof:
ACCORDINGLY, judgment is hereby rendered finding the accused
ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery
with extortion committed on a highway and, in accordance with P.D. 532,
they are both sentenced to a jail term of reclusion perpetua.
The two accused are likewise ordered to pay jointly and severally the
offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as
actual damages and P3,000.00 as temperate damages. 3
Before us now in this appeal, appellants contend that the court a
quo erred (1) in convicting them under Presidential Decree No. 532 since
they were not expressly charged with a crime therein; (2) in applying
Sections 4 and 5, Rule 120 of the Rules of Court since the charge under
said presidential decree is not the offense proved and cannot rightly be
used as the offense proved which is necessarily included in the offense
charged. 4
For the material antecedents of this case, we quote with approval the
following counter-statement of facts in the People's brief 5 which adopted
the established findings of the court a quo, documenting the same with
page references to the transcripts of the proceedings, and which we note
are without any substantial divergence in the version proffered by the
defense.
This is a prosecution for kidnapping for ransom allegedly done on
January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta
Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of
her own just as her husband does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo
Puno, who is the personal driver of Mrs. Sarmiento's husband (who was
then away in Davao purportedly on account of local election there)
arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred
had to go to Pampanga on an emergency (something bad befell a child),
so Isabelo will temporary (sic) take his place (Id., pp. 8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she
got into the Mercedes Benz of her husband with Isabelo on (sic) the
wheel. After the car turned right in (sic) a corner of Araneta Avenue, it
stopped. A young man, accused Enrique Amurao, boarded the car beside
the driver (Id., pp. 9-10).
Once inside, Enrique clambered on top of the back side of the front seat
and went onto where Ma. Socorro was seated at the rear. He poke (sic) a
gun at her (Id., p. 10).
Isabelo, who earlier told her that Enrique is his nephew announced,
"ma'm, you know, I want to get money from you." She said she has money
inside her bag and they may get it just so they will let her go. The bag
contained P7,000.00 and was taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro
agreed to give them that but would they drop her at her gas station in
Kamagong St., Makati where the money is? The car went about the Sta.
Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed.
Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown,
perfumed neck. He said he is an NPA and threatened her (Id., p.15).
The car sped off north towards the North superhighway. There Isabelo,
Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00.
Ma. Socorro complied. She drafted 3 checks in denominations of two for
P30 thousand and one for P40 thousand. Enrique ordered her to swallow
a pill but she refused (Id., pp. 17-23).
Beloy turned the car around towards Metro Manila. Later, he changed his
mind and turned the car again towards Pampanga. Ma. Socorro, according
to her, jumped out of the car then, crossed to the other side of the
superhighway and, after some vehicles ignored her, she was finally able
to flag down a fish vendors van. Her dress had blood because, according
to Ma. Socorro, she fell down on the ground and was injured when she
jumped out of the car. Her dress was torn too (Id., pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id.,
p. 27).
Both accused were, day after, arrested. Enrique was arrested trying to
encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18,
1989, pp. 10-13) 6
As observed by the court below, the defense does not dispute said
narrative of complainant, except that, according to appellant Puno, he
stopped the car at North Diversion and freely allowed complainant to
step out of the car. He even slowed the car down as he drove away, until
 7
he saw that his employer had gotten a ride, and he claimed that she fell
down when she stubbed her toe while running across the highway. 7
Appellants further testified that they brought the Mercedez Benz car to
Dolores, San Fernando, Pampanga and parked it near a barangay or police
outpost. They thereafter ate at a restaurant and divided their loot. 8 Much
later, when he took the stand at the trial of this case, appellant Puno tried
to mitigate his liability by explaining that he was in dire need of money
for the medication of his ulcers. 9
On these relatively simple facts, and as noted at the start of this opinion,
three theories have been advanced as to what crime was committed by
appellants. The trial court cohered with the submission of the defense
that the crime could not be kidnapping for ransom as charged in the
information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in
the determination of the crime for which the accused should be held
liable in those instances where his acts partake of the nature of variant
offenses, and the same holds true with regard to the modifying or
qualifying circumstances thereof, his motive and specific intent in
perpetrating the acts complained of are invaluable aids in arriving at a
correct appreciation and accurate conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be relevant
or essential to determine the specific nature of the crime as, for instance,
whether a murder was committed in the furtherance of rebellion in which
case the latter absorbs the former, or whether the accused had his own
personal motives for committing the murder independent of his
membership in the rebellious movement in which case rebellion and
murder would constitute separate offenses. 10 Also, where injuries were
inflicted on a person in authority who was not then in the actual
performance of his official duties, the motive of the offender assumes
importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would
be direct assault; otherwise, it would only be physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had any
motive, nurtured prior to or at the time they committed the wrongful acts
against complainant, other than the extortion of money from her under
the compulsion of threats or intimidation. This much is admitted by both
appellants, without any other esoteric qualification or dubious
justification. Appellant Puno, as already stated, candidly laid the blame
for his predicament on his need for funds for, in his own testimony,
"(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I
know your family very well and I know that your (sic) not (a) bad person,
why are you doing this?" I told her "Mam, (sic), because I need money and
I had an ulcer and that I have been getting an (sic) advances from our
office but they refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that
they had kidnapped the victim, we can rely on the proverbial rule of
ancient respectability that for this crime to exist, there must be
indubitable proof that
the actual intent of the malefactors was to deprive the offended party of
her liberty, 13 and not where such restraint of her freedom of action was
merely an incident in the commission of another offense primarily
intended by the offenders. Hence, as early as United States
vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held
that the detention and/or forcible taking away of the victims by the
accused, even for an appreciable period of time but for the primary and
ultimate purpose of killing them, holds the offenders liable for taking
their lives or such other offenses they committed in relation thereto, but
the incidental deprivation of the victims' liberty does not constitute
kidnapping or serious illegal detention.
That appellants in this case had no intention whatsoever to kidnap or
deprive the complainant of her personal liberty is clearly demonstrated in
the veritably confessional testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed (sic) the bag containing the
P7,000.00 to your nephew?
A Santo Domingo Exit.
Q And how about the checks, where were you already when the checks
was (sic) being handed to you?
A Also at the Sto. Domingo exit when she signed the checks.
Q If your intention was just to robbed (sic) her, why is it that you still did
not allow her to stay at Sto. Domingo, after all you already received the
money and the checks?
A Because we had an agreement with her that when she signed the checks
we will take her to her house at Villa (sic) Verde.
Q And why did you not bring her back to her house at Valle Verde when
she is (sic) already given you the checks?
A Because while we were on the way back I (sic) came to my mind that if
we reach Balintawak or some other place along the way we might be
apprehended by the police. So when we reached Santa Rita exit I told her
"Mam (sic) we will already stop and allow you to get out of the car." 16
Neither can we consider the amounts given to appellants as equivalent to
or in the nature of ransom, considering the immediacy of their obtention
thereof from the complainant personally. Ransom, in municipal criminal
law, is the money, price or consideration paid or demanded for
redemption of a captured person or persons, a payment that releases
from captivity. 17 It can hardly be assumed that when complainant
readily gave the cash and checks demanded from her at gun point, what
she gave under the circumstances of this case can be equated with or was
in the concept of ransom in the law of kidnapping. These were merely
amounts involuntarily surrendered by the victim upon the occasion of a
robbery or of which she was summarily divested by appellants.
Accordingly, while we hold that the crime committed is robbery as
defined in Article 293 of the Code, we, however, reject the theory of the
trial court that the same constitutes the highway robbery contemplated
in and punished by Presidential Decree No. 532.
The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the
allegation in the information that the victim was carried away and
extorted for more money. The accused admitted that the robbery was
carried on from Araneta Avenue up to the North Superhighway. They
likewise admitted that along the way they intimidated Ma. Socorro to
produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .
In view of the foregoing the court is of the opinion that the crimes
committed is that punishable under P.D. 532 (Anti-Piracy and Anti-
Highway Robbery Law of 1974) under which where robbery on the
highway is accompanied by extortion the penalty is reclusion
perpetua. 18
The Solicitor General concurs, with the observation that pursuant to the
repealing clause in Section 5 of said decree, "P.D. No- 532 is a
modification of the provisions of the Revised Penal Code, particularly
Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission
consequently necessitate an evaluation of the correct interplay between
and the legal effects of Presidential Decree No. 532 on the pertinent
Provisions of the Revised Penal Code, on which matter we are not aware
that any definitive pronouncement has as yet been made.
Contrary to the postulation of the Solicitor General, Presidential Decree
No. 532 is not a modification of Article 267 of the Revised Penal Code on
kidnapping and serious illegal detention, but of Articles 306 and 307 on
brigandage. This is evident from the fact that the relevant portion thereof
which treats of "highway robbery" invariably uses this term in the
alternative and synonymously with brigandage, that is, as "highway
robbery/brigandage." This is but in line with our previous ruling, and
which still holds sway in criminal law, that highway robbers (ladrones)
and brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in
order to put our discussion thereon in the proper context and
perspective, we find that a band of brigands, also known as highwaymen
or freebooters, is more than a gang of ordinary robbers. Jurisprudence on
the matter reveals that during the early part of the American occupation
of our country, roving bands were organized for robbery and pillage and
since the then existing law against robbery was inadequate to cope with
such moving bands of outlaws, the Brigandage Law was passed. 21
The following salient distinctions between brigandage and robbery are
succinctly explained in a treatise on the subject and are of continuing
validity:
The main object of the Brigandage Law is to prevent the formation of
bands of robbers. The heart of the offense consists in the formation of a
band by more than three armed persons for the purpose indicated in art.
306. Such formation is sufficient to constitute a violation of art. 306. It
would not be necessary to show, in a prosecution under it, that a member
or members of the band actually committed robbery or kidnapping or any
other purpose attainable by violent means. The crime is proven when the
organization and purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is committed by a
band, whose members were not primarily organized for the purpose of
committing robbery or kidnapping, etc., the crime would not be
brigandage, but only robbery. Simply because robbery was committed by
a band of more than three armed persons, it would not follow that it was
committed by a band of brigands. In the Spanish text of art. 306, it is
required that the band "sala a los campos para dedicarse a
robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia, indiscriminate highway
robbery. If the purpose is only a particular robbery, the crime is only
robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating
Presidential Decree No. 532 for the objectives announced therein, could
not have been unaware of that distinction and is presumed to have
adopted the same, there being no indication to the contrary. This
conclusion is buttressed by the rule on contemporaneous construction,
since it is one drawn from the time when and the circumstances under
which the decree to be construed originated. Contemporaneous
exposition or construction is the best and strongest in the law. 24
Further, that Presidential Decree No. 532 punishes as highway robbery or
brigandage only acts of robbery perpetrated by outlaws indiscriminately
against any person or persons on Philippine highways as defined therein,
and not acts of robbery committed against only a predetermined or
particular victim, is evident from the preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless
elements are still committing acts of depredation upon the persons and
properties of innocent and defenseless inhabitants who travel from one
place to another, thereby disturbing the peace, order and tranquility of
the nation and stunting the economic and social progress of the people:
WHEREAS, such acts of depredations constitute . . . highway
robbery/brigandage which are among the highest forms of lawlessness
condemned by the penal statutes of all countries;
 8
WHEREAS, it is imperative that said lawless elements be discouraged
from perpetrating such acts of depredaions by imposing heavy penalty on
the offenders, with the end in view of eliminating all obstacles to the
economic, social, educational and community progress of the people.
(Emphasis supplied).
Indeed, it is hard to conceive of how a single act of robbery against a
particular person chosen by the accused as their specific victim could be
considered as committed on the "innocent and defenseless inhabitants
who travel from one place to another," and which single act of
depredation would be capable of "stunting the economic and social
progress of the people" as to be considered "among the highest forms of
lawlessness condemned by the penal statutes of all countries," and would
accordingly constitute an obstacle "to the economic, social, educational
and community progress of the people, " such that said isolated act would
constitute the highway robbery or brigandage contemplated and
punished in said decree. This would be an exaggeration bordering on the
ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles
306 and 307 of the Revised Penal Code by increasing the penalties, albeit
limiting its applicability to the offenses stated therein when committed on
the highways and without prejudice to the liability for such acts if
committed. Furthermore, the decree does not require that there be at
least four armed persons forming a band of robbers; and the presumption
in the Code that said accused are brigands if they use unlicensed firearms
no longer obtains under the decree. But, and this we broadly underline,
the essence of brigandage under the Code as a crime of depredation
wherein the unlawful acts are directed not only against specific, intended
or preconceived victims, but against any and all prospective victims
anywhere on the highway and whosoever they may potentially be, is the
same as the concept of brigandage which is maintained in Presidential
Decree No. 532, in the same manner as it was under its aforementioned
precursor in the Code and, for that matter, under the old Brigandage
Law. 25
Erroneous advertence is nevertheless made by the court below to the fact
that the crime of robbery committed by appellants should be covered by
the said amendatory decree just because it was committed on a highway.
Aside from what has already been stressed regarding the absence of the
requisite elements which thereby necessarily puts the offense charged
outside the purview and intendment of that presidential issuance, it
would be absurd to adopt a literal interpretation that any unlawful taking
of property committed on our highways would be covered thereby. It is
an elementary rule of statutory construction that the spirit or intent of
the law should not be subordinated to the letter thereof. Trite as it may
appear, we have perforce to stress the elementary caveat that he who
considers merely the letter of an instrument goes but skin deep into its
meaning, 26 and the fundamental rule that criminal justice inclines in
favor of the milder form of liability in case of doubt.
If the mere fact that the offense charged was committed on a highway
would be the determinant for the application of Presidential Decree No.
532, it would not be farfetched to expect mischievous, if not absurd,
effects on the corpus of our substantive criminal law. While we eschew
resort to a reductio ad absurdum line of reasoning, we apprehend that
the aforestated theory adopted by the trial court falls far short of the
desideratum in the interpretation of laws, that is, to avoid absurdities and
conflicts. For, if a motor vehicle, either stationary or moving on a
highway, is forcibly taken at gun point by the accused who happened to
take a fancy thereto, would the location of the vehicle at the time of the
unlawful taking necessarily put the offense within the ambit of
Presidential Decree No. 532, thus rendering nugatory the categorical
provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is
one where the subject matter of the unlawful asportation is large cattle
which are incidentally being herded along and traversing the same
highway and are impulsively set upon by the accused, should we apply
Presidential Decree No. 532 and completely disregard the explicit
prescriptions in the Anti-Cattle Rustling Law of 1974? 28
We do not entertain any doubt, therefore, that the coincidental fact that
the robbery in the present case was committed inside a car which, in the
natural course of things, was casually operating on a highway, is not
within the situation envisaged by Section 2(e) of the decree in its
definition of terms. Besides, that particular provision precisely defines
"highway robbery/brigandage" and, as we have amply demonstrated, the
single act of robbery conceived and committed by appellants in this case
does not constitute highway robbery or brigandage.
Accordingly, we hold that the offense committed by appellants is simple
robbery defined in Article 293 and punished under Paragraph 5 of Article
294 of the Revised Penal Code with prision correccional in its maximum
period to prision mayor in its medium period. Appellants have
indisputably acted in conspiracy as shown by their concerted acts
evidentiary of a unity of thought and community of purpose. In the
determination of their respective liabilities, the aggravating
circumstances of craft 29 shall be appreciated against both appellants and
that of abuse of confidence shall be further applied against appellant
Puno, with no mitigating circumstance in favor of either of them. At any
rate, the intimidation having been made with the use of a firearm, the
penalty shall be imposed in the maximum period as decreed by Article
295 of the Code.
We further hold that there is no procedural obstacle to the conviction of
appellants of the crime of simple robbery upon an information charging
them with kidnapping for ransom, since the former offense which has
been proved is necessarily included in the latter offense with which they
are charged. 30 For the former offense, it is sufficient that the elements of
unlawful taking, with intent to gain, of personal property through
intimidation of the owner or possessor thereof shall be, as it has been,
proved in the case at bar. Intent to gain (animus lucrandi) is presumed to
be alleged in an information where it is charged that there was unlawful
taking (apoderamiento) and appropriation by the offender of the things
subject of the robbery. 31
These foregoing elements are necessarily included in the information
filed against appellants which, as formulated, allege that they wilfully,
unlawfully and feloniously kidnapped and extorted ransom from the
complainant. Such allegations, if not expressly but at the very least by
necessary implication, clearly convey that the taking of complainant's
money and checks (inaccurately termed as ransom) was unlawful, with
intent to gain, and through intimidation. It cannot be logically argued that
such a charge of kidnapping for ransom does not include but could negate
the presence of any of the elements of robbery through intimidation of
persons. 32
WHEREFORE, the assailed judgment of the trial court is hereby SET
ASIDE and another one is rendered CONVICTING accused-appellants
Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
Punished in Paragraph 5 of Article 294, in relation to Article 295, of the
Revised Penal Code and IMPOSING on each of them an indeterminate
sentence of four (4) years and two (2) months of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, and jointly
and severally pay the offended party, Maria del Socorro M. Sarmiento, the
amounts of P7,000.00 as actual damages and P20,000.00 as moral
damages, with costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.
[G.R. No. 142773. January 28, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM,
LEON DELIM, MANUEL DELIM alias BONG (At Large), ROBERT DELIM (At
Large), and RONALD DELIM alias BONG, accused-appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision,[1] dated January
14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding
accused-appellants Marlon Delim, Leon Delim and Ronald Delim guilty
beyond reasonable doubt of the crime of murder and sentencing them to
suffer the supreme penalty of death. The court also ordered accused-
appellants to pay, jointly and severally, the heirs of the victim the sums of
P75,000.00 as moral damages and P25,000.00 as exemplary damages.
Accused-appellants Marlon, Ronald and Leon, together with Manuel alias
Bong and Robert, all surnamed Delim, were indicted for murder under an
Information dated May 4, 1999 which reads:
That on or about January 23, 1999, in the evening at Brgy. Bila, Sison,
Pangasinan, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with short firearms barged-in and entered
the house of Modesto Delim and once inside with intent to kill, treachery,
evident premedidation (sic), conspiring with one another, did then and
there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a
piece of cloth, brought out and abduct Modesto Delim, accused Leon
Delim and Manuel Delim stayed in the house guarded and prevented the
wife and son of Modesto Delim from helping the latter, thereafter with
abuse of superior strength stabbed and killed said Modesto Delim, to the
damage and prejudice of his heirs.
CONTRARY to Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659.[2]
Only accused-appellants Marlon (Bongbong), Leon and Ronald, all
surnamed Delim, were apprehended. Accused Robert and Manuel remain
at-large.
At their arraignment, Marlon, Ronald and Leon, with the assistance of
their counsel, pleaded not guilty to the charge.
At the trial, the prosecution established the following relevant facts[3]
Marlon, Manuel and Robert Delim are brothers. They are the uncles of
Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an
Igorot and a carpenter. He took the surname Delim after he was adopted
by the father of Marlon, Manuel and Robert. However, Modestos wife,
Rita, an illiterate, and their 16-year old son, Randy, continued using
Manalo Bantas as their surname. Modesto, Rita and Randy considered
Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and
Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to
visit Modesto and his family. Modesto and his family and the Delim kins
resided in Barangay Bila, Sison, Pangasinan.
On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and
Randy were preparing to have their supper in their home. Joining them
were Modesto and Ritas two young grandchildren, aged 5 and 7 years
old. They were about to eat their dinner when Marlon, Robert and Ronald
suddenly barged into the house and closed the door. Each of the three
intruders was armed with a short handgun. Marlon poked his gun at
Modesto while Robert and Ronald simultaneously grabbed and hog-tied
the victim. A piece of cloth was placed in the mouth of
Modesto.[4] Marlon, Robert and Ronald herded Modesto out of the house
on their way towards the direction of Paldit, Sison, Pangasinan. Rita and
Randy were warned by the intruders not to leave the house. Leon and
Manuel, who were also armed with short handguns, stayed put by the
 9
door to the house of Modesto and ordered Rita and Randy to stay where
they were. Leon and Manuel left the house of Modesto only at around
7:00 a.m. the following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his
uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident the
night before and sought his help for the retrieval of Modesto. Randy was
advised to report the matter to the police authorities. However, Randy
opted to first look for his father. He and his other relatives scoured the
vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison,
Pangasinan, around 200 meters away from Modestos house, to locate
Modesto but failed to find him there. On January 25, 1999, Randy and his
relatives returned to the housing project in Paldit, Sison, Pangasinan to
locate Modesto but again failed to find him there. On January 26, 1999,
Randy reported the incident to the police authorities.
At around 3:00 in the afternoon of January 27, 1999, Randy, in the
company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and
Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan
and this time they found Modesto under thick bushes in a grassy area. He
was already dead. The cadaver was bloated and in the state of
decomposition. It exuded a bad odor. Tiny white worms swarmed over
and feasted on the cadaver. Randy and his relatives immediately rushed
to the police station to report the incident and to seek assistance.
When informed of the discovery of Modestos cadaver, the local chief of
police and SPO2 Jovencio Fajarito and other policemen rushed to the
scene and saw the cadaver under the thick bushes. Pictures were taken of
the cadaver.[5] Rita and Randy divulged to the police investigators the
names and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom
they claimed were responsible for the death of Modesto. Rita and Randy
were at a loss why the five malefactors seized Modesto and killed
him. Rita and Randy gave their respective sworn statements to the police
investigators.[6] Police authorities proceeded to arrest Marlon, Ronald,
Robert, Manuel and Leon but failed to find them in their respective
houses. The police officers scoured the mountainous parts of Barangays
Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared
her autopsy report, which reads:
SIGNIFICANT EXTERNAL FINDINGS:
- Body - both upper extremities are flexed
- both lower extremities are flexed
- (+) body decomposition
- (+) worms coming out from injuries
- 10 x 10 ml. GSW, pre-auricular area, right
- 20 x 20 ml. GSW, mandibular areas, right
- 10 x 10 ml. GSW, maxillary area, right
- 10 x 10 ml. GSW, below middle nose, directed upward (POE)
- 30 x 40 ml. GSW, mid parieto occipital area (POEx)
- 2 x 1 cms. lacerated wound, right cheek
- 1 x 1 cm. stabbed wound, axillary area, left
- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm
- #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect,
M/3rd, left forearm
- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
- 10 x 6 cms. Inflamed scrotum
- penis inflamed
SIGNIFICANT INTERNAL FINDINGS:
- no significant internal findings
CAUSE OF DEATH:
GUN SHOT WOUND, HEAD.[7]
The stab wounds sustained by Modesto on his left arm and forearm were
defensive wounds. The police investigators were able to confirm that
Marlon, Ronald, Robert, Leon and Manuel had no licenses for their
firearms.[8]
Records of the PNP Criminal Investigation and Detection Group in Baguio
City show that Marlon had pending cases for robbery in the Regional Trial
Court of Baguio City in Criminal Case No. 16193-R, and for robbery in
band in Criminal Cases Nos. 9801 and 9802 pending with the Regional
Trial Court in Urdaneta, Pangasinan.[9]
To exculpate themselves, Marlon, Ronald and Leon interposed denial and
alibi.[10]
Ronald claimed that on January 23, 1999, he, his wife and children, his
mother, his brothers and sisters were in their house at Asan Norte, Sison,
Pangasinan about two kilometers away from Modestos house.
He denied having been in the house of Modesto on January 23, 1999 and
of abducting and killing him. He theorized that Rita and Randy falsely
implicated him upon the coaching of Melchor Javier who allegedly had a
quarrel with him concerning politics.
Leon for his part averred that on January 23, 1999, he was in the house of
his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte
where he had been living since 1997 after leaving Asan Norte, Sison,
Pangasinan. Since then, he had been working for Sally Asuncion at a
hollow-block factory in that city where he was a stay-in worker.
Sally Asuncion corroborated Leons alibi. She testified that Leon Delim
never went home to his hometown in Pangasinan during his
employment. His sister, Hermelita Estabillo, likewise averred that on
January 23, 1999, his brother was at her house to give her his
laundry. She claimed that the distance between Laoag City and Bila, Sison,
Pangasinan can be traversed in six hours by bus. Leon presented a
Barangay Certificate to prove that he was a resident of Laoag City from
January 1998 up to February 1999.[11]
Marlon asserted that he was on vacation in Dumaguete City from
December 26, 1998 up to January 29, 1999. During his stay there, he lived
with his sister, Francisca Delim. Upon his return to Manila on January 29,
1999, he immediately proceeded to Baguio to visit his cousin. Marlon
denied setting foot in Bila, Sison, Pangasinan after his sojourn in
Dumaguete City.
The trial court rendered judgment finding accused-appellants guilty of
murder. The dispositive portion of the trial courts decision reads:
WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is
hereby rendered against Ronald Delim, Marlon Delim and Leon Delim
(for) the commission of Aggravated Murder, an offense defined and
penalized under Article 248 of the Revised Penal Code, as amended by
R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon
Delim to suffer the penalty of DEATH, to be implemented in the manner
as provided for by law; the Court likewise orders the accused, jointly and
solidarily, to indemnify the heirs of Modesto Delim the sum of P75,000.00
as moral damages, plus the amount of P25,000.00 as exemplary damages.
The Branch Clerk of Court is hereby ordered to transmit the entire
records of this case to the Honorable Supreme Court, and to prepare the
mittimus fifteen (15) days from date of promulgation.
The Jail Warden, Bureau of Jail Management and Penology, Urdaneta
District Jail, Urdaneta City is hereby ordered to transmit the persons of
Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons,
Muntinlupa City, fifteen days from receipt of this decision.
SO ORDERED.[12]
The trial court appreciated treachery as a qualifying circumstance and of
taking advantage of superior strength, nighttime and use of unlicensed
firearms as separate of aggravating circumstances in the commission of
the crime. Marlon, Ronald and Leon, in their appeal brief, assail the
decision alleging that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY
EXISTED IN THE CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND
CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI.[13]
Before resolving the merits of the case at bar, we first resolve the matter
of whether the crime charged in the Information is murder or
kidnapping. During the deliberation, some distinguished members of the
Court opined that under the Information, Marlon, Ronald and Leon are
charged with kidnapping under Article 267 of the Revised Penal Code and
not with murder in its aggravated form in light of the allegation therein
that the accused willfully, unlawfully and feloniously grab(bed), h(e)ld,
hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed)
Modesto Delim (while) Leon Delim and Manuel Delim stayed in the house
(and) guarded and prevented the wife and son of Modesto Delim from
helping the latter. They submit that the foregoing allegation constitutes
the act of deprivation of liberty of the victim, the gravamen in the crime of
kidnapping. They contend that the fact that the Information went further
to charge accused with the killing of the victim should be of no moment,
the real nature of the criminal charge being determined not from the
caption or the preamble of the Information nor from the specification of
the law alleged to have been violated these being conclusions of law but
by the actual recital of facts in the complaint or information. They further
submit that since the prosecution failed to prove motive on the part of
Marlon, Ronald and Leon to kill Modesto, they are not criminally liable for
the death of the victim but only for kidnapping the victim.
It bears stressing that in determining what crime is charged in an
information, the material inculpatory facts recited therein describing the
crime charged in relation to the penal law violated are controlling. Where
the specific intent of the malefactor is determinative of the crime charged
such specific intent must be alleged in the information and proved by the
prosecution. A decade ago, this Court held in People v. Isabelo Puno, et
al.,[14] that for kidnapping to exist, there must be indubitable proof that
the actual specific intent of the malefactor is to deprive the offended party
of his liberty and not where such restraint of his freedom of action is
merely an incident in the commission of another offense primarily
intended by the malefactor. This Court further held:
x x x. Hence, as early as United States vs. Ancheta, and consistently
reiterated thereafter, it has been held that the detention and/or forcible
taking away of the victims by the accused, even for an appreciable period
of time but for the primary and ultimate purpose of killing them, holds
the offenders liable for taking their lives or such other offenses they
committed in relation thereto, but the incidental deprivation of the
victims liberty does not constitute kidnapping or serious illegal
detention.[15]
If the primary and ultimate purpose of the accused is to kill the victim, the
incidental deprivation of the victims liberty does not constitute the felony
of kidnapping but is merely a preparatory act to the killing, and hence, is
 10
merged into, or absorbed by, the killing of the victim.[16] The crime
committed would either be homicide or murder.
What is primordial then is the specific intent of the malefactors as
disclosed in the information or criminal complaint that is determinative
of what crime the accused is charged with--that of murder or kidnapping.
Philippine and American penal laws have a common thread on the
concept of specific intent as an essential element of specific intent
crimes. Specific intent is used to describe a state of mind which exists
where circumstances indicate that an offender actively desired certain
criminal consequences or objectively desired a specific result to follow
his act or failure to act.[17]Specific intent involves a state of the mind. It is
the particular purpose or specific intention in doing the prohibited
act. Specific intent must be alleged in the Information and proved by the
state in a prosecution for a crime requiring specific
intent.[18] Kidnapping and murder are specific intent crimes.
Specific intent may be proved by direct evidence or by circumstantial
evidence. It may be inferred from the circumstances of the actions of the
accused as established by the evidence on record.[19]
Specific intent is not synonymous with motive. Motive generally is
referred to as the reason which prompts the accused to engage in a
particular criminal activity. Motive is not an essential element of a crime
and hence the prosecution need not prove the same. As a general rule,
proof of motive for the commission of the offense charged does not show
guilt and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder.[20] The
history of crimes shows that murders are generally committed from
motives comparatively trivial.[21] Crime is rarely rational. In murder, the
specific intent is to kill the victim. In kidnapping, the specific intent is to
deprive the victim of his/her liberty. If there is no motive for the crime,
the accused cannot be convicted for kidnapping.[22] In kidnapping for
ransom, the motive is ransom. Where accused kills the victim to avenge
the death of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific
intent of the malefactors in barging into the house of Modesto was to kill
him and that he was seized precisely to kill him with the attendant
modifying circumstances. The act of the malefactors of abducting
Modesto was merely incidental to their primary purpose of killing
him. Moreover, there is no specific allegation in the information that the
primary intent of the malefactors was to deprive Modesto of his freedom
or liberty and that killing him was merely incidental to
kidnapping.[23] Irrefragably then, the crime charged in the Information is
Murder under Article 248 of the Revised Penal Code and not Kidnapping
under Article 268 thereof.
The threshold issue that now comes to fore is whether or not the
prosecution mustered the requisite quantum of evidence to prove that
Marlon, Ronald and Leon are guilty of murder.
In criminal prosecutions, the prosecution is burdened to prove the guilt of
the accused beyond cavil of doubt. The prosecution must rely on the
strength of its own evidence and not on the weakness of the evidence of
the accused. The proof against the accused must survive the test of
reason; the strongest suspicion must not be permitted to sway
judgment.[24]
In the case at bar, the prosecution was burdened to prove the corpus
delicti which consists of two things: first, the criminal act and second,
defendants agency in the commission of the act.[25] Wharton says
that corpus delicti includes two things: first, the objective; second, the
subjective element of crimes.[26] In homicide (by dolo) and in murder
cases, the prosecution is burdened to prove: (a) the death of the party
alleged to be dead; (b) that the death was produced by the criminal act of
some other than the deceased and was not the result of accident, natural
cause or suicide; and (c) that defendant committed the criminal act or
was in some way criminally responsible for the act which produced the
death.[27] To prove the felony of homicide or murder, there must be
incontrovertible evidence, direct or circumstantial, that the victim was
deliberately killed (with malice); in other words, that there was intent to
kill. Such evidence may consist inter alia in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the
victim and the words uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the victim dies because of a
deliberate act of the malefactor, intent to kill is conclusively presumed.
The prosecution is burdened to prove corpus delicti beyond reasonable
doubt either by direct evidence or by circumstantial or presumptive
evidence.[28]
In the case at bar, the prosecution adduced the requisite quantum of
proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He
also sustained seven (7) stab wounds,[29]defensive in nature. The use by
the malefactors of deadly weapons, more specifically handguns and
knives, in the killing of the victim as well as the nature, number and
location of the wounds sustained by said victim are evidence of the intent
by the malefactors to kill the victim with all the consequences flowing
therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps v.
State:[31]
This rule, that every person is presumed to contemplate the ordinary and
natural consequences of his own acts, is applied even in capital
cases. Because men generally act deliberately and by the determination of
their own will, and not from the impulse of blind passion, the law
presumes that every man always thus acts, until the contrary
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not
intended, but was accidental, it is presumed that the death of the
deceased was designed by the slayer; and the burden of proof is on him to
show that it was otherwise.
The prosecution did not present direct evidence to prove the authors of
the killing of Modesto. It relied on circumstantial evidence to discharge its
burden of proving the guilt of accused-appellants of
murder. Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience.[32] What was once a rule of
account respectability is now entombed in Section 4, Rule 133 of the
Revised Rules of Evidence which states that circumstantial evidence,
sometimes referred to as indirect or presumptive evidence, is sufficient
as anchor for a judgment of conviction if the following requisites concur:
x x x if (a) there is more than one circumstance; (b) the facts from which
the inferences are derived have been established; and (c) the combination
of all the circumstances is such as to warrant a finding of guilt beyond
reasonable doubt.[33]
The prosecution is burdened to prove the essential events which
constitute a compact mass of circumstantial evidence, and the proof of
each being confirmed by the proof of the other, and all without exception
leading by mutual support to but one conclusion: the guilt of accused for
the offense charged.[34] For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with each
other, consistent with the hypothesis that accused is guilty and at the
same time inconsistent with the hypothesis that he is innocent, and with
every other rational hypothesis except that of guilt.[35] If the prosecution
adduced the requisite circumstantial evidence to prove the guilt of
accused beyond reasonable doubt, the burden of evidence shifts to the
accused to controvert the evidence of the prosecution.
In the present case, the prosecution mustered the requisite quantum of
circumstantial evidence to prove that accused-appellants, in
confabulation with their co-accused, conspired to kill and did kill
Modesto:
1. Randy Bantas testified that Marlon and Ronald barged into the house of
Modesto, each armed with a handgun. Marlon poked his gun on Modesto
while Ronald hog-tied Modesto.They then seized Modesto and herded
him out of his house:
FISCAL TOMBOC: What were you doing then at that time in your house?
A We were eating, sir.
Q You said we, who were your companions eating then at that time?
A My father, my mother and the two children and myself, sir.
Q While taking your supper that time, do you recall if there was anything
unusual that happened at that time?
A When we were about to start to eat three armed men entered our
house.
Q Do you know these three armed men who entered your house?
A Yes, sir.
Q Who are they, name them one by one?
A Marlon Delim, Robert Delim and Ronald Delim.
Q Are these three persons inside the courtroom now?
A Two of them, sir.
Q Who are these two who are inside the courtroom?
A Marlon and Ronald, sir.
Q Will you please stand up and point to them?
A (Witness is pointing to a person seated on the bench inside the
courtroom, who, when his name was asked answered Marlon
Delim. Likewise, witness is pointing unto a person seated on the bench
inside the courtroom, who, when his name was asked he answered
Ronald Delim).
Q You said that these two armed persons entered your house, what kind
of arm were they carrying at that time?
A Short handgun, sir.
Q When these three armed persons whom you have mentioned, armed
with short firearms, what did they do then when they entered your
house?
A They took my father, sir.
Q Who took your father?
A Marlon Delim, Robert Delim and Ronald Delim, sir.
Q When these three persons took your father, what did you do then?
A None, sir.
COURT: How did they get your father?
A They poked a gun and brought him outside the house, sir.
FISCAL TOMBOC: Who poked a gun?
A Marlon Delim, sir.
Q Again, Mr. Witness, will you point to the person who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of the accused).
Q After bringing your father out from your house, what transpired next?
A Manuel Delim and Leon Delim said, Stay in your house, and guarded us.
COURT: You said your father was taken out, who?
A Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons bring your father?
A I do not know where they brought my father, sir.
COURT: Was your father taken inside your house or outside?
A Inside our house, sir.
Q You said that Marlon poked a gun at your father, is that correct?
A Yes, sir.
 11
Q What did Ronald and Robert do while Marlon was poking his gun to
your father?
A Ronald and Robert were the ones who pulled my father out, sir.[36]
Randys account of the incident was corroborated by his mother, Rita, who
testified:
PROSECUTION TOMBOC: You said during the last hearing that on January
23, 1999 at around 6:30 in the evening while preparing for your supper
three (3) armed men entered inside your house, who were these three (3)
men who entered your house?
A I know, Marlon, Bongbong and Robert, sir.
ATTY. FLORENDO: We just make of record that the witness is taking her
time to answer, Your Honor.
PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and
Bongbong entered your house, are these three (3) persons who entered
your house in Court now?
A They are here except the other one, sir.
Q Will you please step down and point to the persons who entered your
house?
A Witness is pointing to Marlon Delim, Robert Delim is not in Court and
Bongbong is Ronald Delim.
Q After these three (3) armed men entered your house, what happened
then?
A My husband was brought out, sir.
Q What is the name of your husband?
A Modesto Delim, sir.[37]
2. Randy said that when Marlon and Ronald barged into their house,
Leon, armed with a handgun, acted as a lookout when he stood guard by
the door of the house of Modesto and remained thereat until 7:00 a.m. of
the next day:
FISCAL TOMBOC: When your father was pulled out from your house by
these three persons, what did you and your mother do while these three
persons were taking out of your house?
A We did not do anything because Manuel and Leon Delim guarded us.
COURT: Where, in your house?
A Yes, sir.
FISCAL TOMBOC: From that very time that your father was pulled out by
these three persons Marlon, Robert and Ronal (sic), where were Leon and
Manuel then?
A They were at the door, sir.
COURT: Why do you know that they were guarding you?
A Because they were at the door, sir.
FISCAL TOMBOC: What was their appearance that time when these two
persons were guarding you, these Leon and Manuel?
A They were armed, sir.
Q What do you mean by armed?
A They have gun, sir.
Q What kind of firearm?
A Short firearm, sir.
Q By the way, where are these Leon and Manuel now, if you know?
A Leon is here, sir.
Q About Manuel?
A None, sir.
Q Will you please stand up and point at Leon, Mr. Witness?
A (Witness pointed to a person seated on the bench inside the courtroom,
who when his name was asked, answered, Leon Delim).[38]
3. Rita and Randy were ordered by Leon not to leave the house as Ronald
and Marlon left the house with Modesto in tow. Rita and Randy were
detained in their house up to 7:00 a.m. of January 24, 1999 to prevent
them from seeking help from their relatives and police authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m.,
the cadaver of Modesto was found under the thick bushes in a grassy area
in the housing project located about 200 meters away from the house of
Modesto. The cadaver exuded bad odor and was already in the state of
decomposition:
Q So what did you do then on January 27, where did you look for your
father?
A The same place and at 3:00 oclock P.M., we were able to find my father.
COURT: Where?
A At the housing project at Paldit, Sison, Pangasinan, sir.
FISCAL TOMBOC: Do you have companions at that time when you were
able to look for your father on January 27, 1999 at 3:00 oclock P.M.?
A Yes, sir.
Q Who?
A My Aunt, sir.
Q What is the name of your Aunt?
A Nida Pucal, sir.
Q Who else?
A Pepito Pucal, Bernard Osias and Daniel Delim, sir.
COURT: When you found your father, what was his condition?
A He was dead, sir.
COURT: Go ahead.
FISCAL TOMBOC: You said that he was already dead, what was his
appearance then when you saw him dead?
A He has bad odor, sir, in the state of decompsition (sic).[39]
The testimony of Randy was corroborated by Dr. de Guzman who
testified that the cadaver of Modesto was in a state of decomposition,
with tiny white worms crawling from his wounds, and that his penis and
scrotum were inflamed. The victim sustained five gunshot wounds and
defensive wounds on the left arm and forearm:
PROS. TOMBOC:
Q Will you please tell the Honorable Court your findings, Doctora?
WITNESS:
A First finding: Upon seeing the cadaver, this is the position of the body,
both upper extremities are flexed and both lower extremities are flexed
(Nakakukot).
Q How many days had already elapsed when you autopsied the cadaver of
the victim, Doctora?
A Four (4) days upon the recovery of the body, sir.
Q And what was your findings Doctora?
A The body was already under the state of decomposition, sir, with foul
odor and there were so many worms coming out from the injuries, there
were tiny white worms, sir.
Q What else did you observe Doctora?
A Upon seeing the cadaver I asked the relative to refer it to the NBI
sir. Actually the victim was an igorot (sic) and they have tradition that
they will bury immediately. Whether they like it or not I should do it, sir.
Q What else Doctora?
A And the penis was inflammed (sic), the scrotum was also inflammed
(sic), sir.
And for the head injuries there was 10 x 10 ml. GSW pre-auricular area,
right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot
also determine the exit.
Q So there were two (2) gunshot wounds (GSW) Doctora?
A Yes sir.
And there was also 10 x 10 ml. GSW, maxillary area, right; there was also
10 x 10 ml. GSW, below middle nose, directed upward (POE); and there
was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx).
Q How many all in all are the gunshot wound?
A Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm.
stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect
M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1
x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed
wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each
other, stabbed wound, medial aspect, M/3rd, left forearm.
Q How many stabbed wound are there Doctora?
A There were seven (7) stabbed wounds, sir.
Q Those stabbed wounds were defensive wounds, Doctora?
A Yes sir.[40]
The state of decomposition of the cadaver, with tiny white worms
swarming and feasting on it and the distention of his scrotum and penis
are evidence that the cadaver was in the stage of putrefaction and that the
victim had been dead for a period ranging from three to six
days.[41] Admittedly, there are variant factors determinative of the exact
death of the victim. An equally persuasive authority states:
Chronological Sequence of Putrefactive Changes Occurring in Tropical
Region:
Time Since Death Condition of the Body
48 hours Ova of flies seen.
Trunk bloated. Face discolored and swollen. Blisters present.
Moving maggots seen.
72 hours Whole body grossly swollen and
disfigured. Hair and nails loose.
Tissues soft and discolored.[42]
The lapse of two or three to four days from the seizure of the victim in the
evening of January 23, 1999 to the discovery of his cadaver which was
already in the state of putrefaction in the afternoon of January 27, 1999,
about 200 meters away from his house, is consistent with and
confirmatory of the contention of the prosecution that the victim was
killed precisely by the very malefactors who seized him on January 23,
1999.
5. When police authorities went to the residences of all the malefactors,
the latter had flown the coop and were nowhere to be found:
COURT: In connection with this case, you investigated the wife and son of
Modesto Delim?
A Yes, sir.
Q In the course of the investigation did you come to know who were the
suspects?
A Yes, sir, she elaborated that the suspects were their neighbors, Marlon
Delim and his brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the others, sir.
Q By reason of that information were you able to apprehend any of them
for investigation?
A No, sir.
Q Why?
A Because when we were dispatched by the Chief of Police no Delim
brothers could be found, they all left the place, sir.
Q In what place did you look for the brothers Delim?
A Within the vicinity, sir.
Q In what place?
A Brgy. Bila and the place where the crime was committed in Brgy. Bila
and the place where the cadaver was found in Paldit, sir.
Q Where did you look for the Delim brothers?
A Nearby barangays, Immalog, sir.
 12
Q Wherelse (sic)?
A Labayog, Sison, sir.
Q Wherelse?
A In mountainous part of Immalog, part of Tuba Benguet, sir.
Q What was the result?
A Negative result, sir.[43]
6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald
used to go to the house of Modesto and Rita:
COURT: These Leon and Manuel Delim are they known to you prior to
that day, January 23, 1999?
A Yes, sir, I know them.
Q Why do you know Manuel and Leon prior to January 23, 1999?
A They are my neighbors, sir.
Q How about Marlon, Robert and Bongbong do you know them before
January 23, 1999?
A I know them, sir.
Q Why do you know them?
A They used to go to our house, sir.
Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all
Delims and your husbands name is Modesto Delim are they related with
each other?
A Yes, sir.[44]
The sudden disappearance of Marlon, Ronald and Leon from their houses
in Barangay Bila, Sison is strong circumstantial evidence of their guilt for
the death of Modesto. Although flight after the commission of an offense
does not create a legal presumption of guilt, nevertheless, the same is
admissible in evidence against them and if not satisfactorily explained in
a manner consistent with their innocence, will tend to show that they, in
fact, killed Modesto.[45]
It is true that the prosecution failed to prove motive on the part of the
malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified
that they were not aware of any misunderstanding or grudge between
Modesto on the one hand and Marlon, Ronald and Leon and their co-
accused on the other before the incident, or any motivation on the part of
the three malefactors to cause harm to Modesto. Nonetheless, it cannot
thereby be concluded that a person or persons other than Marlon, Ronald
and Leon were criminally responsible for the death of the victim. It is a
matter of judicial notice that nowadays persons have killed or committed
serious crimes for no reason at all.[46] In this case, the inscrutable facts
are that Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hogtied, put a piece
of cloth in his mouth and after Ronald and Marlon had left the house with
Modesto in tow, Rita heard three gunshots or so and the cadaver of
Modesto was found concealed under the bushes and already in a state of
putrefaction in the afternoon of January 27, 1999. Modesto sustained
several gunshot wounds and died because of a gunshot wound on the
head. The criminal acts and the connection of Marlon, Ronald and Leon
with said acts having been proved by the prosecution beyond reasonable
doubt, the act itself furnishes the evidence, that to its perpetration there
was some causes or influences moving the mind.[47] The remarkable
tapestry intricately woven by the prosecution should not be trashed
simply because the malefactors had no motive to kill Modesto.
Ranged against the evidence of the prosecution, the burden of evidence
shifted on Marlon, Ronald and Leon to rebut the same and explain what
happened to the victim after taking him from his house in the evening of
January 23, 1999. They may have freed the victim shortly after taking
him, or the victim may have been able to escape and that thereafter a
person or some other persons may have killed him. However, Marlon,
Ronald and Leon failed to give any explanation. Instead, they merely
denied having seized and killed the victim and interposed alibi as their
defense.
Leon is equally guilty for the death of Modesto because the evidence on
record shows that he conspired with accused-appellants Marlon and
Ronald and accused Robert and Manuel in killing the victim.
There is conspiracy when two or more persons agree to commit a felony
and decide to commit it.[48] Conspiracy must be proven with the same
quantum of evidence as the felony itself, more specifically by proof
beyond reasonable doubt. Conspiracy is not presumed. It may be proved
by direct evidence or by circumstantial evidence. Conspiracy is deducible
from the acts of the malefactors before, during and after the commission
of the crime which are indicative of a joint purpose, concerted action and
concurrence of sentiment.[49] To establish conspiracy, it is not essential
that there be proof as to the existence of a previous agreement to commit
a crime.[50] It is sufficient if, at the time of the commission of the crime,
the accused had the same purpose and were united in its execution. If
conspiracy is established, the act of one is deemed the act of all. It matters
not who among the accused actually shot and killed the victim.[51]This is
based on the theory of a joint or mutual agency ad hoc for the prosecution
of the common plan:
x x x The acts and declarations of an agent, within the scope of his
authority, are considered and treated as the acts and declarations of his
principal. What is so done by an agent, is done by the principal through
him, as his mere instrument. Franklin Bank of Baltimore v. Pennsylvania
D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). If the conspiracy be
proved to have existed, or rather if evidence be given to the jury of its
existence, the acts of one in furtherance of the common design are the
acts of all; and whatever one does in furtherance of the common design,
he does as the agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1,
710.[52]
In the eyes of the law, conspirators are one man, they breathe one breath,
they speak one voice, they wield one arm and the law says that the acts,
words and declaration of each, while in the pursuit of the common design,
are the acts, words and declarations of all.[53]
In the case at bar, Marlon, Ronald and Leon arrived together in the house
of Modesto, each armed with a handgun. Marlon and Ronald barged into
said house while Leon stood guard by the door thereof. After Marlon and
Ronald had left with Modesto in tow, Leon stood by the door and warned
Randy and Rita not to leave the house. Leon stood guard by the door of
the house until 7:00 a.m. of January 24, 1999 when he left the house. The
overt acts of all the malefactors were so synchronized and executed with
precision evincing a preconceived plan or design of all the malefactors to
achieve a common purpose, namely the killing of Modesto. Irrefragably,
the tasks assigned to Leon in the commission of the crime were (a) to act
as a lookout; (b) to ensure that Rita and Randy remain in their house to
prevent them from seeking assistance from police authorities and their
relatives before their mission to kill Modesto shall have been a fait
accompli as well as the escape of Marlon and Ronald.[54] Patently, Leon,
a lookout for the group, is guilty of the killing of Modesto.[55] Leon may
not have been at the situs criminis when Modesto was killed by Marlon
and Ronald nevertheless he is a principal by direct participation.[56] If
part of a crime has been committed in one place and part in another, each
person concerned in the commission of either part is liable as
principal. No matter how wide may be the separation of the conspirators,
if they are all engaged in a common plan for the execution of a felony and
all take their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct connection
between the actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the testimonies of Randy and
Rita alleging that the same were marred by inconsistencies:
1. Randy initially stated that he did not know where the assailants
brought his father. Later however, Randy claimed that the malefactors
proceeded to the direction of Paldit, Sison, Pangasinan;
2. Rita on the other hand identified Leon, Marlon and Ronald as those
who barged into their house. She later changed her testimony and
declared that it was Robert, together with Marlon and Ronald who barged
into the house;
3. Rita likewise testified that two men stood outside the house guarding
them. Later, she testified that after the three men brought out the victim,
the two other accused entered the house and guarded them there;
4. Rita claimed that she went out to look for her husband the next day, or
on January 25, 1999, and she was accompanied by her son
Randy. However, Randy testified that he was alone when he looked for his
father from January 24 to 26, 1999.[58]
We do not agree with Marlon, Ronald and Leon. Case law has it that the
findings of facts of the trial court, its calibration of the collective
testimonies of witnesses and its assessment of the probative weight
thereof and its conclusions culled from its findings are accorded by the
appellate court great respect, if not conclusive effect, because of its
unique advantage of observing at close range the demeanor, deportment
and conduct of the witnesses as they give their testimonies before the
court. In the present case, the trial court gave credence and full probative
weight to the testimonies of the witnesses of the prosecution. Moreover,
there is no evidence on record that Randy and Rita were moved by any
improper or ill motive in testifying against the malefactors and the other
accused; hence, their testimonies must be given full credit and probative
weight.[59] The inconsistencies in the testimonies of Rita and Randy do
not render them incredible or their testimonies barren of probative
weight. It must be borne in mind that human memory is not as unerring
as a photograph and a persons sense of observation is impaired by many
factors including the shocking effect of a crime. A truth-telling witness is
not always expected to give an error-free testimony considering the lapse
of time and the treachery of human memory. What is primordial is that
the mass of testimony jibes on material points, the slight clashing of
statements dilute neither the witnesses credibility nor the veracity of his
testimony.[60] Variations on the testimony of witnesses on the same side
with respect to minor, collateral or incidental matters do not impair the
weight of their united testimony to the prominent
facts.[61] Inconsistencies on minor and trivial matters only serve to
strengthen rather than weaken the credibility of witnesses for they erase
the suspicion of rehearsed testimony.[62]
Moreover, the testimony of a witness should be construed in its entirety
and not in truncated terms and the true meaning of answers to isolated
questions propounded to a witness is to be ascertained by due
consideration of all the questions propounded to the witness and his
answers thereto.[63]
Randys testimony that he did know where the malefactors brought his
father is not inconsistent with his testimony that Ronald and Marlon
brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accused-
appellants but he saw the direction to which they went. While it may be
true that when asked to identify the three who barged into their house,
Rita pointed to Leon as one of them, however, Rita had been consistent
throughout her testimony that those who barged into their house were
Ronald and Marlon. Leons counsel never cross-examined Rita and
impeached her testimony on her identification of Leon as one of those
 13
who barged into their house to give her an opportunity to explain her
perceived inconsistency conformably with Rule 132, Section 13 of the
Revised Rules of Evidence which reads:
Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places
and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to
him concerning them.[64]
Hence, the presentation of the inconsistent statements made by Rita is
insufficient for the desired impeachment of her.[65] As to whether Rita
and Randy were together in looking for Modesto or Leon merely stood
guard by the door of the house or entered the house are
inconsequential. The fact is that Leon stood guard throughout the night to
prevent Rita and Randy from seeking assistance for the seizure and
killing of Modesto.
This Court is convinced, as the trial court was, that the respective
testimonies of Randy and Rita bear the earmarks of truth and
sincerity. Despite intense and grueling cross-examination, they
responded with consistency upon material details that could only come
from a firsthand knowledge of the shocking events which unfolded before
their eyes. The Court thus finds no cogent reason to disregard the
findings of the trial court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court committed a
reversible error in not giving credence and probative weight to their
evidence to prove their defense of alibi. They aver that their collective
evidence to prove their defense is strong.
We do not agree. Case law has it that the defense of alibi is one of the
weakest of defenses in criminal prosecution because the same is easy to
concoct between relatives, friends and even those not related to the
offender.[66] It is hard for the prosecution to disprove. For alibi to merit
approbation by the trial court and this Court, Marlon, Ronald and Leon
are burdened to prove with clear and convincing evidence that they were
in a place other than the situs criminis at the time of the commission of
the crime; that it was physically impossible for them to have committed
the said crime.[67] They failed to discharge their burden. Moreover, Rita
and Randy positively and spontaneously identified Marlon, Ronald and
Leon as the culprits. The house of Ronald, where he claimed he was when
the crime was committed, was only two kilometers away from the house
of Modesto and can be negotiated by a tricycle. Leon failed to adduce any
documentary evidence to prove his employment by Sally Asuncion. The
barefaced fact that he was a resident of Laoag City does not constitute
proof that he was in Laoag City on the day of the commission of the
crime. With respect to Marlon, he failed to adduce evidence aside from his
self-serving testimony that he resided in, left Dumaguete City and arrived
in Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of murder with the
qualifying circumstance of treachery in the killing of Modesto. The trial
court likewise appreciated nighttime and abuse of superior strength and
the use of unlicensed firearms as separate aggravating
circumstances. The Office of the Solicitor General contends that indeed
treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald
and Leon are guilty of murder defined in and penalized by Article 248 of
the Revised Penal Code.
The Court however finds that Marlon, Ronald and Leon are guilty only of
homicide defined in and penalized by Article 248 of the Revised Penal
Code.
Qualifying circumstances such as treachery and abuse of superior
strength must be alleged and proved clearly and conclusively as the crime
itself. Mere conjectures, suppositions or presumptions are utterly
insufficient and cannot produce the effect of qualifying the crime.[68] As
this Court held: No matter how truthful these suppositions or
presumptions may seem, they must not and cannot produce the effect of
aggravating the condition of defendant.[69] Article 14, paragraph 16 of
the Revised Penal Code provides that there is treachery when the
offender commits any of the crimes against the person, employing means,
methods or forms in the execution thereof which tend directly and
especially to insure its execution, without risk to himself arising from the
defense which the offended party might make. For treachery to be
appreciated as a qualifying circumstance, the prosecution is burdened to
prove the following elements: (a) the employment of means of execution
which gives the person attacked no opportunity to defend himself or
retaliate; (b) the means of execution is deliberately or consciously
adopted.[70] Although the victim may have been defenseless at the time
he was seized but there is no evidence as to the particulars of how he was
assaulted and killed, treachery cannot be appreciated against the
accused.[71] In this case, the victim was defenseless when seized by
Marlon and Ronald. However, the prosecution failed to present any
witness or conclusive evidence that Modesto was defenseless
immediately before and when he was attacked and killed. It cannot be
presumed that although he was defenseless when he was seized the
victim was in the same situation when he was attacked, shot and stabbed
by the malefactors. To take advantage of superior strength means to
purposely use force that is out of proportion to the means of defense
available to the person attacked.[72] What is primordial, this Court held
in People v. Rogelio Francisco[73] is that the assailants deliberately took
advantage of their combined strength in order to consummate the
crime. It is necessary to show that the malefactors cooperated in such a
way as to secure advantage from their superiority in strength.[74]In this
case, the prosecution failed to adduce evidence that Marlon and Ronald
deliberately took advantage of their numerical superiority when Modesto
was killed. The barefaced facts that the malefactors outnumbered
Modesto and were armed while Modesto was not does not constitute
proof that the three took advantage of their numerical superioty and their
handguns when Modesto was shot and stabbed.[75]
In sum then, we believe that Marlon, Ronald and Leon are guilty only of
Homicide defined in and penalized by Article 249 of the Revised Penal
Code with reclusion temporal in its full period.
Although the special aggravating circumstance of the use of unlicensed
firearms was proven during the trial, there is no allegation in the
Information that Marlon, Ronald and Leon had no license to possess the
firearm. Lack of license to possess a firearm is an essential element of the
crime of violation of PD1866 as amended by Republic Act No. 8294, or as
a special aggravating circumstance in the felony of homicide or
murder.[76] Neither can dwelling, although proven, aggravate the crime
because said circumstance was not alleged in the Information as required
by Rule 110, Section 8 of the Revised Rules of Court.[77] Although this
rule took effect on December 1, 2000, after the commission of the offense
in this case, nonetheless it had been given retroactive effect considering
that the rule is favorable to the accused.[78]
There being no modifying circumstances in the commission of homicide,
Marlon, Ronald and Leon should be meted an indeterminate penalty, the
minimum of which shall be taken from the entirety of prision
mayor, ranging from 6 years and one day to 12 years and the maximum
period of which shall be taken from the medium period of reclusion
temporal, ranging from 14 years, 8 months and one day to 17 years and 4
months.
Consequently, the award for damages in favor of the heirs of the victim
should be modified. The sum of P75,000.00 awarded as moral damages
should be reduced to P50,000.00 in accordance with prevailing
jurisprudence.[79] The amount of P25,000.00 as exemplary damages is in
order.[80] In addition, civil indemnity in the amount of P50,000.00
should be awarded without need of proof, likewise in consonance with
prevailing jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is
AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim,
Ronald Delim and Leon Delim are hereby found guilty beyond reasonable
doubt of the felony of Homicide defined in and penalized by Article 249 of
the Revised Penal Code. There being no modifying circumstances in the
commission of the crime, each of accused-appellants is hereby meted an
indeterminate penalty of from ten (10) years and one (1) day of prision
mayor in its maximum period as minimum to fourteen (14) years, eight
(8) months and one (1) day of reclusion temporal in its medium period as
maximum. Accused-appellants are hereby ordered to pay, jointly and
severally, to the heirs of the victim the amount of P50,000.00 by way of
civil indemnity, the amount of P50,000.00 by way of moral damages and
the amount of P25,000.00 by way of exemplary damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing,
Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.
Vitug, J., see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., joins the dissent of J. Vitug.
G.R. No. L-66884 May 28, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICENTE TEMBLOR alias "RONALD," defendant-appellant.
The Solicitor General for plaintiff-appellee.
Wilfred D. Asis for defendant-appellant.
GRIÑO-AQUINO, J.:
The accused-appellant Vicente Temblor alias "Ronald" was charged with
the crime of murder in Criminal Case No. 1809 of the Court of First
Instance (now Regional Trial Court) of Agusan del Norte and Butuan City
for shooting to death Julius Cagampang. The information alleged:
That on or about the evening of December 30, 1980 at Talo-ao,
Buenavista, Agusan del Norte, Philippines and within the jurisdiction of
this Honorable Court, the said accused conspiring, and confederating with
one another with Anecito Ellevera who is at large, did then and there
wilfully, unlawfully and feloniously, with treachery and with intent to kill,
attack, assault and shoot with firearms one Julius Cagampang, hitting the
latter on the vital parts of the body thereby inflicting mortal wounds,
causing the direct and instantaneous death of the said Julius Cagampang.
CONTRARY TO LAW: Article 248 of the Revised Penal Code.
Upon arraignment on June 8, 1982, he entered a plea of not guilty. After
trial, he was convicted and sentenced to suffer the penalty of reclusion
perpetua, with the accessory penalties thereof under Articles 41 and 42
of the Revised Penal Code, and to indemnify the heirs of the victim in the
amount of P12,000 without subsidiary imprisonment in case of
insolvency. He appealed.
The evidence of the prosecution showed that at about 7:30 in the evening
of December 30, 1980, while Cagampang, his wife and their two children,
were conversing in the store adjacent to their house in Barangay Talo-ao,
Buenavista, Province of Agusan del Norte, the accused Vicente Temblor
alias Ronald, arrived and asked to buy a half-pack of Hope cigarettes.
 14
While Cagampang was opening a pack of cigarettes, there was a sudden
burst of gunfire and Cagampang instantly fell on the floor, wounded and
bleeding on the head. His wife Victorina, upon seeing that her husband
had been shot, shouted her husband's name "Jul" Two persons, one of
whom she later Identified as the accused, barged into the interior of the
store through the main door and demanded that she brings out her
husband's firearm. "Igawas mo ang iyang armas!" ("You let out his
firearm!") they shouted. The accused fired two more shots at the fallen
victim. Terrified, Victorina hurried to get the "maleta" (suitcase) where
her husband's firearm was hidden. She gave the suitcase to the accused
who, after inspecting its contents, took her husband's .38 caliber revolver,
and fled.
In 1981, some months after the incident, Victorina was summoned to the
Buenavista police station by the Station Commander Milan, where she
saw and Identified the accused as the man who killed her husband.
The accused's defense was an alibi. He alleged that from 4:00 o'clock in
the afternoon of December 30, 1980, he and his father had been in the
house of Silverio Perol in Barangay Camagong, Nasipit, Agusan del Norte,
where they spent the night drinking over a slaughtered dog as "pulutan,"
until 8:00 o'clock in the morning of the following day, December 31, 1980.
The accused and his companion, admittedly members of the dreaded NPA
(New People's Army) were not apprehended earlier because they hid in
the mountains of Malapong with other members- followers of the New
People's Army. Temblor surrendered to Mayor Dick Carmona of Nasipit
during the mass surrender of dissidents in August, 1981. He was arrested
by the Buenavista Police at the Buenavista public market on November
26, 1981 and detained at the Buenavista municipal jail.
The accused capitalized the fact that the victim's widow, Victorina, did
not know him by name. That circumstance allegedly renders the
Identification of the accused, as the perpetrator of her husband's killing,
insufficient. However, during the trial, the accused was positively
identified by the widow who recognized him because she was less than a
meter away from him inside the store which was well lighted inside by a
40-watt flourescent lamp and by an incandescent lamp outside. Her
testimony was corroborated by another prosecution witness — a tricycle
driver, Claudio Sabanal — who was a long-time acquaintance of the
accused and who knew him as "Ronald." He saw the accused in the store
of Cagampang at about 7:30 o'clock in the evening of December 30, 1980.
He heard the gunshots coming from inside the store, and saw the people
scampering away.
Dr. Alfredo Salonga who issued the post-mortem examination report
certified that the victim sustained three (3) gunshot wounds.
Rebutting the accused's alibi, the prosecution presented a Certification of
the Nasipit Lumber Company's Personnel Officer, Jose F. Tinga (Exh. D),
and the NALCO Daily Time Record of Silverio Perol (Exh. D), showing that
Perol was not at home drinking with the accused and his father, but was
at work on December 30, 1980 from 10:50 o'clock in the evening up to
7:00 o'clock in the morning of December 31, 1980. The accused did not
bother to overcome this piece of rebuttal evidence.
In this appeal, the appellant alleges that the court a quo erred:
1. in finding that he was positively identified by the prosecution witness
as the killer of the deceased Julius Cagampang; and
2. in rejecting his defense of allbi.
The appeal deserves no merit. Was the accused positively Identified as
the killer of Cagampang? The settled rule is that the trial court's
assessment of the credibility of witnesses while testifying is generally
binding on the appellate court because of its superior advantage in
observing their conduct and demeanor and its findings, when supported
by convincingly credible evidence as in the case at bar, shall not be
disturbed on appeal (People vs. Dava, 149 SCRA, 582).<äre||anº•1àw>
The minor inconsistencies in the testimony of the eyewitness Victorina
Vda. de Cagampang did not diminish her credibility, especially because
she had positively Identified the accused as her husband's assailant, and
her testimony is corroborated by the other witnesses. Her testimony is
credible, probable and entirely in accord with human experience.
Appellant's self-serving and uncorroborated alibi cannot prevail over the
positive Identification made by the prosecution witnesses who had no
base motives to falsely accuse him of the crime. Furthermore, the rule is
that in order for an alibi to be acceptable as a defense, it is not enough
that the appellant was somewhere else when the crime was committed; it
must be demonstrated beyond doubt that it was physically impossible for
him to be at the scene of the crime. Here it was admitted that Perol's
house in barrio Camagong, Nasipit is accessible to barrio Talo-ao in
Buenavista by jeep or tricycle via a well-paved road in a matter of 15 to
20 minutes. The testimony of the witnesses who had positively Identified
him could not be overcome by the defendant's alibi. (People vs. Mercado,
97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.)
Appellant's alleged lack of motive for killing Cagampang was rejected by
the trial court which opined that the defendant's knowledge that
Cagampang possessed a firearm was motive enough to kill him as killings
perpetrated by members of the New People's Army for the sole purpose
of acquiring more arms and ammunition for their group are prevalent not
only in Agusan del Norte but elsewhere in the country. It is known as the
NPA's "agaw armas" campaign. Moreover, proof of motive is not essential
when the culprit has been positively Identified (People vs. Tan, Jr., 145
SCRA 615).
The records further show that the accused and his companion fled after
killing Cagampang and taking his firearm. They hid in the mountains of
Agusan del Norte. Their flight was an implied admission of guilt (People
vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).
WHEREFORE, the judgment appealed from is affirmed in all respects,
except as to the civil indemnity payable to the heirs of the Julius
Cagampang which is increased to P30,000.00.
SO ORDERED.
G.R. No. L-68969 January 22, 1988
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
USMAN HASSAN y AYUN, respondent.
SARMIENTO, J.:
This is a pauper's appeal of the decision 1 of the Regional Trial Court of
Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25,
1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond
reasonable doubt as principal of the Crime of MURDER, and there being
neither aggravating nor mitigating circumstance attending the
commission of the crime, and pursuant to Paragraph No. 1 of Article 64 of
the Revised Penal Code, hereby imposes upon the said accused the
penalty of RECLUSION PERPETUA and all its accessory penalties; to
indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the
amount of P12,000.00 and to pay the costs." 2
Usman Hassan was accused of murder for stabbing to death Ramon
Pichel, Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the
time of his death on July 23,1981, the deceased was employed as manager
of the sand and gravel business of his father. On the other hand, Hassan
was an illiterate, 15-year-old pushcart cargador. 4
The quality of justice and the majesty of the law shine ever brightest
when they are applied with more jealousy to the poor, the marginalized,
and the disadvantaged. Usman Hassan, the herein accused-appellant,
belongs to this class. At the time of the alleged commission of the crime,
he was poor, marginalized, and disadvantaged. He was a flotsam in a sea
of violence, following the odyssey of his widowed mother from one
poverty-stricken area to another in order to escape the ravages of
internicine war and rebellion in Zamboanga del Sur. In the 15 years of
Hassan's existence, he and his family had to evacuate to other places for
fear of their lives, six times. His existence in this world has not even been
officially recorded; his birth has not been registered in the Registry of
Births because the Samal tribe, to which he belongs, does not see the
importance of registering births and deaths.
Usman was convicted on the bases of the testimony of a lone eyewitness
for the prosecution and the sloppiness of the investigation conducted by
the police investigator, Police Corporal Rogelio Carpio of the Homicide
and Arson Section of the Zamboanga City Police Station, who also testified
for the prosecution.
We rule that Usman Hassan's guilt was not proved beyond reasonable
doubt and that Usman Hassan must, therefore, be set free.
The lone eyewitness for the prosecution is Jose Samson, 24 years old
when he testified, married, and a resident of Zamboanga City. On the day
of the killing, he was employed at the sand and gravel business of the
father of the deceased but was jobless at the time of his examination-in-
chief on February 3, 1982.
He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the
evening of July 23, 1981; that he was a backrider in the motorcycle of
Ramon when they went to buy mangoes at Fruit Paradise near the Barter
Trade Zone in Zamboanga City that while he was selecting mangoes, he
saw a person stab Ramon who was seated at his red Honda motorcycle
which was parked about two or three meters from the fruit stand where
he Samson) was selecting mangoes; that he saw the assailant stab Ramon
"only once" and that after the stabbing, the assailant ran towards the PNB
Building. When asked at the cross-examination if he knew the assailant,
Samson said, "I know him by face but I do not know his name." 5
This sole eyewitness recounted the stabbing thus: "While Ramoncito
Pichel, Jr. was holding the motorcycle with both of his hands, the assailant
come from behind, held his left hand and stabbed him from behind on his
chest while the victim was sitting on the motorcycle." He claimed that he
was able to see the assailant because it was very bright there that Ramon
was facing the light of a petromax lamp, and that all these happened in
front of the fruit stand a — distance of about 6 to 7 meters from the side
of the road.
Samson described the assailant as wearing a white, short-sleeved t-shirt
and maong pants, but "he did not see if the aggressor was wearing shoes,"
that the assailant stabbed Ramon with a knife but "he did not exactly see
what kind of knife it was, and he did not see how long the knife was He
said he brought the wounded Ramon to the Zamboanga City General
Hospital in a tricycle.
On cross-examination, Samson testified:
xxx xxx xxx
Q When you rushed Ramon Pichel, Jr. to the hospital you came to know
that he was already dead, is that correct?
A Yes, sir, I learned that he was already dead.
Q In the hospital, were you investigated by the police?
A They just asked the description of that person as to his attire and his
appearance.
Q And it was while in the hospital that you told them the description of
the one who stabbed Ramon Pichel, Jr.?
A Yes, Sir.
 15
Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La
Merced?
A Yes, sir,
Q Can you recall what time was that?
A I do not know what time was that.
Q And it was all La Merced Funeraria that the police brought to you the
accused?
A...
Q For Identification?
A Yes, sir.
Q And he was alone when you Identified him?
A Yes he was alone.
Q Aside from working with the Pichel family in their sand and gravel
business, do you have any blood relationship with them?
A Yes. sir. 6
(Emphasis supplied)
xxx xxx xxx
What comes as a surprise is that Samson's statement 7 which was taken
only on July 25, 1981, two days after the stabbing, and sworn to only on
July 27, 1981, also two days after it was taken, or four days after the
killing, was never presented or mentioned by the prosecution at all. The
information was practically forced out of Police Corporal Rogelio P.
Carpio, a witness for the People, during his cross-examination. 8 The
sworn statement contained the following questions and answers:
xxx xxx xxx
Q-14. What and please narrate it to me briefly in your own words, the
incident you are referring?
A-14. While I was busy selecting some mangoes, I saw unidentified
person whom I can recognize by face if seen again embraced my
companion Ramon Pitcher Jr. while the latter was aboard his motorcycle
parked within the area. That this person without much ado, and armed
with a knife suddenly stabbed him (Ramon). That by coincidence to this
incident, our eye met each other and immediately thereafter, he fled the
area toward the Philippine National Bank (PNB). That this unidentified
person was sporting a semi-long hair, dressed in White Polo-Shirt (Short
sleeve), maong pants height to more or less 5'5, Dark Complexion. That as
this unidentified person fled the area I immediately came to aid my
companion, Ramon Pitcher, Jr., and rushed him to Zamboanga General
Hospital, on board a Tricycle. That may companion (Ramon) did not
whispered (sic) any words to me for he was in serious condition and few
minutes later, he expired.
Q-15. Was tills unidentified person was with companion when he attack
(sic) Ramon Pitcher Jr.?
A-15. He was alone Sir.
Q-16. Can you really Identified (sic) this person who attacked and
stabbed your companion, Ramon Pitcher, Jr., that evening in question?
A-16. Yes, Sir,
Q-17. Do you still remember that confrontation we made at the Office of
La Merced Funeral Homes, wherein you were confronted with one Usman
Hassan, whom this Officer brought along?
A-17. Yes, Sir.
Q-18. Was he the very person, who attacked and stabbed your
companion, Ramon Pitcher, Jr.?
A-18. Yes, Sir, he was the very person who attacked and stabbed my
companion, Ramon Pitcher, Jr., that evening in question.
Q-19. Why?
A-19. Because his face and other physical appearance were fully noted by
me and this I cannot forget for the rest of my life.
Q-20. Before this incident, was there any altercation that had ensued
while in the process of buying some mangoes in that area?
A-20. None Sir.
Q-21. Were you able to note what kind of knife used by said Usman
Hassan in stabbing your companion, Ramon Pitcher Jr.?
A-21: None Sir,
Q-22. Well, I have nothing more to ask of you, do you have anything more
to say, add or alter in this statement?
A-22. No more Sir.
Q-23. Are you willing to give a supplemental statement if needed in the
future?
A-23. Yes, Sir. 9
(Emphasis supplied)
xxx xxx xxx
The version of the sole eyewitness appearing in his statement 10 is
substantially the same as that embodied in the "Case Report," Exhibit it
"C", by Police Corporal Carpio, also admitted a s Exhibit "2." This exhibit
for the prosecution confirms the sworn statement of witness Samson that
an unidentified person, whom he recognized only by face, appeared and
without any provocation, the latter embraced the victim and stabbed the
same allegedly with a knife." The rest of the Case Report: is also
significant in that it confirms the confrontation between the accused and
Jose Samson in the funeral parlor arranged by the police Investigator and
prosecution witness, Corporal Carpio.
xxx xxx xxx
From this end, a follow-up was made within the premises of the Old
Barter Trade, wherein the person of USMAN HASSAN Y AYUN, of Paso
Bolong, this City, was arrested in connection with the above stated
incident. That this Officer and companions arrested this person Usman
due to his physical appearance, which was fully described by victim's
companion. Jose Samson. During his arrest, a knife, measuring to more or
less seven (7) inches in blade was confiscated in his possession. The
person of Usman Hassan was brought along at the La Merced Funeral
Homes for a confrontation with victims companion, Jose Samson and in
this confrontation, Jose Samson positively Identified said Usman Hassan
as the very person who stabbed the victim.
Usman Hassan, on the other hand, denied the charges levelled against hub
and admitted ownership of said knife; claiming among other things that
he used said knife for slicing mangoes. 11
xxx xxx xxx
We hold that the evidence for the prosecution in its entirety does not
satisfy the quantum of proof — beyond reasonable doubt — required by
the Constitution, the law, and applicable jurisprudence to convict an
accused person. The said evidence denies us the moral certainty which
would allow us to pronounce, without uneasiness of conscience. Usman
Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y Uro,
and condemn him to life imprisonment and in effect turning him into a
flotsam again in a sea of convicted felons in which he would be a very
young stranger.
In evaluating the worth of the testimony of the lone eyewitness for the
prosecution against the denial and alibi of the accused, value judgment
must not be separated from the constitutionally guaranteed presumption
of innocence.
When the evidence for the prosecution and the evidence for the accused
are weighed, the scales must be tipped in favor of the latter. This is
because of the constitutional presumtion of innocence the accused enjoys
as a counter-foil to the awesome authority of the State that is prosecuting
him.
The element of doubt, if reasonable in this case, must operate against the
inference of guilt the prosecution would draw from its evidence. That
evidence, as it happens, consists only of the uncorroborated statement of
the two policemen which, as previously observed, is flawed and therefore
suspect. 12
The testimony of Jose Samson, the lone eyewitness, is weak and
unconvincing. And so with the evidence sought to be introduced by Police
Corporal Carpio. We discover, for example, that the expert testimony of
the medico-legal officer of the National Bureau of Investigation, Dr.
Valentin Bernalez, presented by the prosecution, contradicted, on
material points, the testimony of the one eyewitness, Jose Samson. While
Samson averred on the witness stand that he saw the assailant stab the
deceased "from behind on his chest" 13 only once, the NBI medico-legal
officer Identified two stab wounds, one at the front portion of the chest at
the level and third rib, (sic) and another stab wound located at the left
arm posterior aspect." 14 The same medical expert also concluded from
the nature and location of the chest wound, which was the cause of death,
that the same was inflicted on the victim while the alleged accused was in
front of him." 15
The investigation of this case by the Homicide/Arson Section of the
Zamboanga Southern Police Sector, 16 at Zamboanga City, particularly by
Police Corporal Rogelio P. Carpio, leaves much to be desired. For one, we
are not satisfied with the procedure adopted by the police investigators in
the Identification of the accused as the assailant. We have no doubt that
Usman Hassan was "presented" alone 17 to Jose Samson by the police
investigator and prosecution witness, Police Corporal Carpio, and his
police companions, at the office of the La Merced Funeral Homes in
Zamboanga City. As correctly termed by the very evidence 18 of the
prosecution, the procedure adopted by the police investigators was a
confrontation" between Jose Samson, Jr. and Usman. Earlier, on direct
examination, Corporal Carpio testified that Usman was alone when he
was brought to Samson for confrontation in the funeral parlor. However,
on cross-examination, Carpio made a turnabout by saying that the
accused was Identified by Samson in a "police line-up;" this tergiversation
we dare say, was an afterthought, more the result of an over or careless
cross-examination, augmented by the leading questions 19 of the trial
judge rather than a fastidiousness if not sincerity, on the part of the police
investigator, to honestly correct erroneous statements in his
examination-in-chief. The fact remains that both Samson and the accused
testified clearly and unequivocably that Usman was alone when
presented to Samson by Carpio. There was no such police line-up as the
police investigator, to honestly correct erreoneous statements in his
examination-in-chief. The fact remains that both Samson and the accused
testified clearly and unequivocably that Usman was alone when
presented to Samson by Carpio. There was no such police investigator
claimed on second thought.
The manner by which Jose Samson, Jr. was made to confront and Identify
the accused alone at the funeral parlor, without being placed in the police
line-up, was "pointedly suggsestive, generated confidence where there
was none, activated visual imagination, and, all told, subserted his
reliability as eyewitness. This unusual, coarse, and highly singular
method of Identification, which revolts against the accepted principles of
scientific crime detection, alienates the esteem of every just man, and
commands neither our respect nor acceptance." 20
Moreover, the confrontation arranged by the police investigator between
the self-proclaimed eyewitness and the accused did violence to the right
of the latter to counsel in all stages of the investigation into the
commission of a crime especially at its most crucial stage — the
Identification of the accused.
 16
As it turned out, the method of Identification became just a confrontation.
At that critical and decisive moment, the scales of justice tipped unevenly
against the young, poor, and disadvantaged accused. The police
procedure adopted in this case in which only the accused was presented
to witness Samson, in the funeral parlor, and in the presence of the
grieving relatives of the victim, is as tainted as an uncounselled
confession and thus falls within the same ambit of the constitutionally
entrenched protection. For this infringement alone, the accused-appellant
should be acquitted.
Moreover, aside from this slipshod Identification procedure, the rest of
the investigation of the crime and the preparation of the evidence for
prosecution were done haphazardly, perfunctorily, and superficially.
Samson was not investigated thoroughly and immediately after the
incident. As previously mentioned, his statement was taken by the
investigator only two days after the murder of Ramon Pichel, Jr. and
sworn only two days after it had been taken. Similarly, there is nothing in
the record to show that the fruit vendor—from whom Samson and the
deceased were buying mangoes that fateful evening and who certainly
must have witnessed the fatal stabbing—was investigated, or why he was
not investigated. Nor is any explanation given as to why the
companion 21 of the accused at the time Corporal Carpio arrested him
(accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00 P.M.,
according to Usman) of that same evening near the scene of the crime,
was not also investigated when he could have been a material witness of
the killing or of the innocence of the accused. In addition, the knife and its
scabbard, 23 Confiscated by Carpio from Usman (tucked on the right side
of his waist") at the time of his arrest, were not even subjected to any
testing at all to determine the presence of human blood which could be
typed and compared with the blood type of the deceased. A crime
laboratory test — had Carpio or the prosecuting fiscal, or even the trial
judge, insisted on it — would have revealed whether or not the knife in
question (confiscated from the accused by Carpio one hour after the
alleged commission of the crime) had indeed been the weapon used to kill
Ramon. The police investigator instead nonchalantly dismissed this sin of
omission by saying that the knife could have been cleaned or the
bloodstain could have been taken away. 24 This presumption of the
deadly weapon's having been "cleaned" of bloodstains is tantamount to
pronouncing the accused of being guilty.
Our doubt about the guilt of the accused is further deepened by a
resolution, 25 in a separate case, 26 of Assistant City Fiscal of Zamboanga
City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly
reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a
similar stabbing took place at Plaza Pershing near the place of the earlier
incident, with the suspect in that frustrated homicide case being a certain
Benhar Isa, 'a notorious and a deadly police character" in Zamboanga
City, with a long record of arrests. In that resolution, Fiscal Murillo said
the same Benhar Isa was tagged as 'also a suspect in the stabbing of
Ramon Pichel, Jr. to death and the stabbing of Pastor Henry Villagracia at
the Fruit Paradise, this City." The said resolution further states that "with
regards to this incident or witnesses ever testified for fear of possible
reprisals." 27
The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself
was killed by a policeman on August 28, 1981, while he (Isa) "was
apparently under the influence of liquor armed with a knife (was)
molesting and extorting money from innocent civilians' and "making
trouble." 28 The records of the case at bar do not show any attempt on
the part of Corporal Carpio, or any other police officer, to investigate or
question Benhar Isa in connection with the killing of Pichel, Jr. Was it fear
of the notorious police character that made the police officers disregard
the possible connection between the slaying of Ramon and that of the
person (Harun Acan y Arang of the Ministry of National Defense) 29 who
was allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.?
And yet questioning Isa might have provided that vital link to the
resolution of Usman's guilt or innocence. But why should the police
officers investigate Isa when Usman Hassan was already in custody and
could be an available fall guy? Usman Hassan, instead, became a victim of
a grave injustice. Indeed, Usman Hassan is too poor to wage a legal fight
to prove his innocence. And he is so marginalized as to claim and deserve
an honest-to-goodness, thorough, and fair police investigation with all
angles and leads pursued to their logical, if not scientific, conclusions.
Sadly circumstanced as he is, the authority of the State was too awesome
for him to counteract.
The appealed decision made much ado of the admission by Usman "that
he was arrested at the former barter trade, which is a place just across
the place of the stabbing at the Fruit Paradise." 30 The trial judge found it
"therefore strange that on the very evening of the stabbing incident he
was still at the barter trade area by 8:00 o'clock in the evening when he
usually comes to the city proper at about 6:00 o'clock in the morning and
goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the
afternoon." 31 Usman's explanation — that, at around 7:00 o'clock P.M.,
he was waiting for transportation to take him home — was found by the
trial court as 'flimsy and weak since he did not explain why he had to go
home late that evening." 32 But the whole trouble is nobody asked him.
The trial judge did not propound any single question to the accused, and
only three to his mother on innocuous matters, by way of clarification, if
only to put on record what the mother and son could articulate with
clarity. Taking into account their poverty and illiteracy, the mother and
son needed as much, if not more, help, than the trial judge extended to the
prosecution witnesses during their examination by asking them
clarificatory and mostly leading questions. In that sense and to that
extent, the accused was disadvantaged.
A fact that looms large, though mutely to testify on the innocence of the
accused but the importance of which was brushed away by the trial judge
was the presence of the accused near the scene (about 100 to 150 meters
away) soon after the stabbing (he testified at around 7:00 P.M. although
Police Corporal Carpio stated it was 8:00 P.M.) where he was found
sitting on his pushcart with a companion. If he were the assailant, he
would have fled. But the trial court instead indulged in conjecture,
foisting the probability that the accused 'was lulled by a false sense of
security in returning to the place (of the stabbing), when no police
officers immediately responded and appeared at the scene of the crime,"
adding 'there are numerous cases in the past where criminals return to
the scene of their crimes, for reasons only psychologist can explain." 33 It
must have escaped the trial court's attention that Usman has no criminal
record, and, therefore, he could not be generally classed with criminals. In
the second place, the trial court's rationalization ignores the biblical
truism recognized by human nature and endorsed with approval by this
Court that "(T)he wicked flee when no man pursueth but the righteous
are as bold as a lion." 34
And now as a penultimate observation, we could not help but note the
total absence of motive ascribed to Usman for stabbing Ramon, a
complete stranger to him. While, as a general rule, motive is not essential
in order to arrive at a conviction, because, after all, motive is a state of
mind, 35 procedurally, however, for purposes of complying with the
requirement that a judgment of guilty must stem from proof beyond
reasonable doubt, the lack of motive on the part of the accused plays a
pivotal role towards his acquittal. This is especially true where there is
doubt as to the Identity of the culprit 36 as when 'the Identification is
extremely tenuous," 37 as in this case.
We can not end this travail without adverting to the cavalier manner in
which the trial court disregarded the claimed young age of Usman
Hassan.
The defense claims that the accused Usman Hassan is a minor, basing
such claim on the testimony of Lahunay Hassan, the mother of said
accused, who declared that her son Usman Hassan, who is one of her four
(4) children, was born in the year 1967. She testified that she was just
told by a person coming from their place about the year of the birth of her
son Usman. However on cross-examination, Lahunay Hassan cannot even
remember the date or year of birth of her other children. The failure of
Lahunay Hassan to remember the date or year of birth of her children is
of course understandable, considering that she is unschooled and she
belongs to a tribe that does not register births, deaths or marriages,
however, it is strange that she only took pains to find out the year of birth
of her son Usman. For this reason, the Court granted a motion of the
defense on September 13, 1982, to have the herein accused examined by
a competent dentist to determine his age. However, the findings of the
dentist of Zamboanga General Hospital which is marked as Exhibit "5"
shows the following: "age cannot be determined accurately under present
mouth conditions. Approximately, he can be from 14 to 21 years of age."
This simply means that the herein accused could either be 14 years of age
or 21 years of age, or any age in between those aforestated years. From
the observation of this court, the accused Usman Hassan was about 18
years of age at the time he committed this crime and this observation is
based on his personal appearance, his size and facial features and other
personal characteristics, hence he can not be classified as a youthful
offender under Article. 189 of Presendential Decree No. 603, as
ammended by Presedential Decree No. 1179. In the case of U.S. vs.
Mallari, 29 Phil. 13 and People vs. Reyes and Panganiban, CA 48 O.G.
1022, cited in the Edition, Page 680, it was ruled by the Supreme Court
that "In cases where the age of the culprit is at issue as a basis for
claiming an exempting mitigating circumstance, it is incumbent upon the
accused to establish that circumstance ad any other elements of
defense. 38
Considering that the age of the accused could exempt him from
punishment or cause the suspension of his sentence under Articles 12
and 80, respectively of the Revised Penal Code, if found guilty, more
meticulousness and care should have been demanded of medical or
scientific sources, and less reliance on the observation of the judge as had
happened in this case. The preliminary findings of the dentist that the
accused could be anywhere between fourteen to twenty one years,
despite the difficulty of arriving at an accurate determination due to
Hassan's mouth condition, would have placed the trial judge on notice
that there is the probability that the accused might be exempted from
criminal liability due to his young age. All the foregoing indicates that the
accused had not been granted the concern and compassion with which
the poor, marginalized, and disadvantaged so critically deserve. It is when
judicial and police processes and procedures are thoughtlessly and
haphazardly observed that cries of the law and justice being denied the
poor are heard. In any event, all this would not be of any moment now,
considering the acquittal of the accused herein ordered.
WHEREFORE, the decision is hereby REVERSED, and the accused Usman
Hassan y Ayun is ACQUITTED of the crime charged. His release from
confinement is hereby Ordered, unless he is held for another legal cause.
With costs de oficio.
SO ORDERED.
Yap (Chairman), Paras and Padilla, JJ., concur.
 17
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is
limited to the testimony of the accused himself, because from the very
nature of these facts and from the circumstances surrounding the
incident upon which these proceedings rest, no other evidence as to these
facts was available either to the prosecution or to the defense. We think,
however, that, giving the accused the benefit of the doubt as to the weight
of the evidence touching those details of the incident as to which there
can be said to be any doubt, the following statement of the material facts
disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters,
No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho.
"Officers' quarters No. 27" as a detached house situates some 40 meters
from the nearest building, and in August, 19087, was occupied solely as
an officers' mess or club. No one slept in the house except the two
servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along
the side of the building, by which communication was had with the other
part of the house. This porch was covered by a heavy growth of vines for
its entire length and height. The door of the room was not furnished with
a permanent bolt or lock, and occupants, as a measure of security, had
attached a small hook or catch on the inside of the door, and were in the
habit of reinforcing this somewhat insecure means of fastening the door
by placing against it a chair. In the room there was but one small window,
which, like the door, opened on the porch. Aside from the door and
window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had received for the night, was suddenly awakened by some trying to
force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at
the door that it was being pushed open by someone bent upon forcing his
way into the room. Due to the heavy growth of vines along the front of the
porch, the room was very dark, and the defendant, fearing that the
intruder was a robber or a thief, leaped to his feet and called out. "If you
enter the room, I will kill you." At that moment he was struck just above
the knee by the edge of the chair which had been placed against the door.
In the darkness and confusion the defendant thought that the blow had
been inflicted by the person who had forced the door open, whom he
supposed to be a burglar, though in the light of after events, it is probable
that the chair was merely thrown back into the room by the sudden
opening of the door against which it rested. Seizing a common kitchen
knife which he kept under his pillow, the defendant struck out wildly at
the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who
immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No. 28,
and ran back to his room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort McKinley not long prior to the
date of the incident just described, one of which took place in a house in
which the defendant was employed as cook; and as defendant alleges, it
was because of these repeated robberies he kept a knife under his pillow
for his personal protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the
door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends, Celestino
Quiambao and Mariano Ibañez, servants employed at officers' quarters
No. 28, the nearest house to the mess hall. The three returned from their
walk at about 10 o'clock, and Celestino and Mariano stopped at their
room at No. 28, Pascual going on to his room at No. 27. A few moments
after the party separated, Celestino and Mariano heard cries for
assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to
No. 28 and called Liuetenants Jacobs and Healy, who immediately went to
the aid of the wounded man.
The defendant then and there admitted that he had stabbed his
roommate, but said that he did it under the impression that Pascual was
"a ladron" because he forced open the door of their sleeping room,
despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief
was playing a trick on his Chinese roommate, and sought to frightened
him by forcing his way into the room, refusing to give his name or say
who he was, in order to make Ah Chong believe that he was being
attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed
to the military hospital, where he died from the effects of the wound on
the following day.
The defendant was charged with the crime of assassination, tried, and
found guilty by the trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and one day presidio mayor,
the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right
of self-defense.
Article 8 of the Penal Code provides that —
The following are not delinquent and are therefore exempt from criminal
liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the
following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
Under these provisions we think that there can be no doubt that
defendant would be entitle to complete exception from criminal liability
for the death of the victim of his fatal blow, if the intruder who forced
open the door of his room had been in fact a dangerous thief or "ladron,"
as the defendant believed him to be. No one, under such circumstances,
would doubt the right of the defendant to resist and repel such an
intrusion, and the thief having forced open the door notwithstanding
defendant's thrice-repeated warning to desist, and his threat that he
would kill the intruder if he persisted in his attempt, it will not be
questioned that in the darkness of the night, in a small room, with no
means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available
weapon to defend himself from such an assault, and in striking promptly,
without waiting for the thief to discover his whereabouts and deliver the
first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he struck
the fatal blow. That there was no such "unlawful aggression" on the part
of a thief or "ladron" as defendant believed he was repelling and resisting,
and that there was no real "necessity" for the use of the knife to defend
his person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction
one can be held criminally responsible who, by reason of a mistake as to
the facts, does an act for which he would be exempt from criminal liability
if the facts were as he supposed them to be, but which would constitute
the crime of homicide or assassination if the actor had known the true
state of the facts at the time when he committed the act. To this question
we think there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that the
alleged ignorance or mistake or fact was not due to negligence or bad
faith.
In broader terms, ignorance or mistake of fact, if such ignorance or
mistake of fact is sufficient to negative a particular intent which under the
law is a necessary ingredient of the offense charged (e.g., in
larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the
presumption of intent," and works an acquittal; except in those cases
where the circumstances demand a conviction under the penal provisions
touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or
misdeamor incurs criminal liability for any wrongful act committed by
him, even though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law,
sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the
only question worthy of consideration is whether malice or criminal
intent is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been said
that since the definitions there given of these as well as most other crimes
and offense therein defined, do not specifically and expressly declare that
the acts constituting the crime or offense must be committed with malice
or with criminal intent in order that the actor may be held criminally
liable, the commission of the acts set out in the various definitions
subjects the actor to the penalties described therein, unless it appears
that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it
is true that contrary to the general rule of legislative enactment in the
United States, the definitions of crimes and offenses as set out in the
Penal Code rarely contain provisions expressly declaring that malice or
criminal intent is an essential ingredient of the crime, nevertheless, the
general provisions of article 1 of the code clearly indicate that malice, or
criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying
the general rule, such as are those touching liability resulting from acts
negligently or imprudently committed, and acts done by one voluntarily
 18
committing a crime or misdemeanor, where the act committed is
different from that which he intended to commit. And it is to be observed
that even these exceptions are more apparent than real, for "There is little
distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal,
and within limits supplies the place of the affirmative criminal intent"
(Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little
difference between a disposition to do a great harm and a disposition to
do harm that one of them may very well be looked upon as the measure
of the other. Since, therefore, the guilt of a crime consists in the
disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is
done by the crime, the consequence is that the guilt of the crime follows
the same proportion; it is greater or less according as the crime in its own
nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has
been otherwise stated, the thing done, having proceeded from a corrupt
mid, is to be viewed the same whether the corruption was of one
particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by
law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be different
from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the
word "voluntary" as used in this article, say that a voluntary act is a free,
intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and
that the word "voluntary" implies and includes the words "con malicia,"
which were expressly set out in the definition of the word "crime" in the
code of 1822, but omitted from the code of 1870, because, as Pacheco
insists, their use in the former code was redundant, being implied and
included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime
can only be said to exempt from criminal responsibility when the act
which was actually intended to be done was in itself a lawful one, and in
the absence of negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article of the code
that in general without intention there can be no crime. (Viada, vol. 1, p.
16.) And, as we have shown above, the exceptions insisted upon by Viada
are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that
where there is no intention there is no crime . . . in order to affirm,
without fear of mistake, that under our code there can be no crime if
there is no act, an act which must fall within the sphere of ethics if there is
no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it made
use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of
his three sons, made by the appellant in the civil registry and in the
parochial church, there can be no crime because of the lack of the
necessary element or criminal intention, which characterizes every action
or ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use
of the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and punished
by law as criminal, is not a necessary question of fact submitted to the
exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be
an essential element of the various crimes and misdemeanors therein
defined becomes clear also from an examination of the provisions of
article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with
malice, would constitute a grave crime, shall be punished with the penalty
of arresto mayor in its maximum degree, to prision correccional in its
minimum degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through
simple imprudence or negligence shall incur the penalty of arresto
mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according to
their discretion, without being subject to the rules prescribed in article
81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in the
first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to
the words "criminal intent," and the direct inference from its provisions is
that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose
any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and
American statute to designate a form of criminal intent. It has been said
that while the word "willful" sometimes means little more than
intentionally or designedly, yet it is more frequently understood to extent
a little further and approximate the idea of the milder kind of legal
malice; that is, it signifies an evil intent without justifiable excuse. In one
case it was said to mean, as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without reasonable grounds to
believe the thing lawful." And Shaw, C. J., once said that ordinarily in a
statute it means "not merely `voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but
"the difference between them is not great;" the word "malice" not often
being understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
(Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the
various modes generally construed to imply a criminal intent, we think
that reasoning from general principles it will always be found that with
the rare exceptions hereinafter mentioned, to constitute a crime evil
intent must combine with an act. Mr. Bishop, who supports his position
with numerous citations from the decided cases, thus forcely present this
doctrine:
In no one thing does criminal jurisprudence differ more from civil than in
the rule as to the intent. In controversies between private parties the quo
animo with which a thing was done is sometimes important, not always;
but crime proceeds only from a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it can
not be. And neither in philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man should be
deemed guilty unless his mind was so. It is therefore a principle of our
legal system, as probably it is of every other, that the essence of an
offense is the wrongful intent, without which it can not exists. We find
this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us such
maxims as Actus non facit reum nisi mens sit rea, "the act itself does not
make man guilty unless his intention were so;" Actus me incito factus non
est meus actus, "an act done by me against my will is not my act;" and
others of the like sort. In this, as just said, criminal jurisprudence differs
from civil. So also —
Moral science and moral sentiment teach the same thing. "By reference to
the intention, we inculpate or exculpate others or ourselves without any
respect to the happiness or misery actually produced. Let the result of an
action be what it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent." The calm
judgment of mankind keeps this doctrine among its jewels. In times of
excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes
the public voice that where the mind is pure, he who differs in act from
his neighbors does not offend. And —
In the spontaneous judgment which springs from the nature given by God
to man, no one deems another to deserve punishment for what he did
from an upright mind, destitute of every form of evil. And whenever a
person is made to suffer a punishment which the community deems not
his due, so far from its placing an evil mark upon him, it elevates him to
the seat of the martyr. Even infancy itself spontaneously pleads the want
of bad intent in justification of what has the appearance of wrong, with
the utmost confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of nature uttering
one of her immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the law itself
proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption
of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the
law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the
courts have recognized the power of the legislature to forbid, in a limited
class of cases, the doing of certain acts, and to make their commission
criminal without regard to the intent of the doer. Without discussing
these exceptional cases at length, it is sufficient here to say that the courts
have always held that unless the intention of the lawmaker to make the
commission of certain acts criminal without regard to the intent of the
doer is clear and beyond question the statute will not be so construed
(cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that
ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break
 19
the law, and if suffices if it is simply to do the thing which the law in fact
forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise
that in strict accord with the principles of abstract justice. On the
contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from
no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and as
laid down by Baron Parke, "The guilt of the accused must depend on the
circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N.
Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say,
the question as to whether he honestly, in good faith, and without fault or
negligence fell into the mistake is to be determined by the circumstances
as they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be
expected to have on his mind, in forming the intent, criminal or other
wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing — or, in terms
more nicely in accord with the principles on which the rule is founded, if
without fault or carelessness he does believe them — he is legally
guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with
reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in acting on the
facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus
supposes the facts to be the law will not punish him though they are in
truth otherwise, and he was really no occassion for the extreme
measures. (Bishop's New Criminal Law, sec. 305, and large array of cases
there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as
a footpad, at night and on a lonely road, "holds up" his friends in a spirit
of mischief, and with leveled pistol demands his money or his life, but is
killed by his friend under the mistaken belief that the attack is a real one,
that the pistol leveled at his head is loaded, and that his life and property
are in imminent danger at the hands of the aggressor. No one will doubt
that if the facts were such as the slayer believed them to be he would be
innocent of the commission of any crime and wholly exempt from
criminal liability, although if he knew the real state of the facts when he
took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his
innocent mistake of the facts overcomes the presumption of malice or
criminal intent, and (since malice or criminal intent is a necessary
ingredient of the "act punished by law" in cases of homicide or
assassination) overcomes at the same time the presumption established
in article 1 of the code, that the "act punished by law" was committed
"voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person
slain had a felonious design against him, and under that supposition
killed him, although it should afterwards appear that there was no such
design, it will not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury in Selfridge's
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward
him, with an outstretched arms and a pistol in his hand, and using violent
menaces against his life as he advances. Having approached near enough
in the same attitude, A, who has a club in his hand, strikes B over the head
before or at the instant the pistol is discharged; and of the wound B dies.
It turns out the pistol was loaded with powder only, and that the real
design of B was only to terrify A. Will any reasonable man say that A is
more criminal that he would have been if there had been a bullet in the
pistol? Those who hold such doctrine must require that a man so attacked
must, before he strikes the assailant, stop and ascertain how the pistol is
loaded — a doctrine which would entirely take away the essential right of
self-defense. And when it is considered that the jury who try the cause,
and not the party killing, are to judge of the reasonable grounds of his
apprehension, no danger can be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain,
cited by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth,
at night, in company only of his wife, without other light than reflected
from the fire, and that the man with his back to the door was attending to
the fire, there suddenly entered a person whom he did not see or know,
who struck him one or two blows, producing a contusion on the shoulder,
because of which he turned, seized the person and took from his the stick
with which he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards striking him
another blow on the head, leaving the unknown lying on the floor, and left
the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who
died in about six days in consequence of cerebral congestion resulting
from the blow. The accused, who confessed the facts, had always
sustained pleasant relations with his father-in-law, whom he visited
during his sickness, demonstrating great grief over the occurrence. Shall
he be considered free from criminal responsibility, as having acted in self-
defense, with all the circumstances related in paragraph 4, article 8, of the
Penal Code? The criminal branch of the Audiencia of Valladolid found that
he was an illegal aggressor, without sufficient provocation, and that there
did not exists rational necessity for the employment of the force used, and
in accordance with articles 419 and 87 of the Penal Code condemned him
to twenty months of imprisonment, with accessory penalty and costs.
Upon appeal by the accused, he was acquitted by the supreme court,
under the following sentence: "Considering, from the facts found by the
sentence to have been proven, that the accused was surprised from
behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with
which they might have executed their criminal intent, because of the
there was no other than fire light in the room, and considering that in
such a situation and when the acts executed demonstrated that they
might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have
defended himself, and in doing so with the same stick with which he was
attacked, he did not exceed the limits of self-defense, nor did he use
means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of the
house and the consteration which naturally resulted from such strong
aggression, it was not given him to known or distinguish whether there
was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did
not find from the accepted facts that there existed rational necessity for
the means employed, and that it did not apply paragraph 4 of article 8 of
the Penal Code, it erred, etc." (Sentence of supreme court of Spain,
February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was
situated in a retired part of the city, upon arriving at a point where there
was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and almost
at the same money, he fired two shots from his pistol, distinguishing
immediately the voice of one of his friends (who had before simulated a
different voice) saying, "Oh! they have killed me," and hastening to his
assistance, finding the body lying upon the ground, he cried, "Miguel,
Miguel, speak, for God's sake, or I am ruined," realizing that he had been
the victim of a joke, and not receiving a reply, and observing that his
friend was a corpse, he retired from the place. Shall he be declared
exempt in toto from responsibility as the author of this homicide, as
having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of
the Audiencia of Malaga did not so find, but only found in favor of the
accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc.
The supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a justifiable and
excusable mistake of fact as to the identity of the person calling to him,
and that under the circumstances, the darkness and remoteness, etc., the
means employed were rational and the shooting justifiable. (Sentence
supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is awakened,
at night, by a large stone thrown against his window — at this, he puts his
head out of the window and inquires what is wanted, and is answered
"the delivery of all of his money, otherwise his house would be burned"
— because of which, and observing in an alley adjacent to the mill four
individuals, one of whom addressed him with blasphemy, he fired his
pistol at one the men, who, on the next morning was found dead on the
same spot. Shall this man be declared exempt from criminal
responsibility as having acted in just self-defense with all of the requisites
of law? The criminal branch of the requisites of law? The criminal branch
of the Audiencia of Zaragoza finds that there existed in favor of the
accused a majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the means,
employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court
acquitted the condemned, finding that the accused, in firing at the
malefactors, who attack his mill at night in a remote spot by threatening
robbery and incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces
us that the defendant Chinaman struck the fatal blow alleged in the
information in the firm belief that the intruder who forced open the door
 20
of his sleeping room was a thief, from whose assault he was in imminent
peril, both of his life and of his property and of the property committed to
his charge; that in view of all the circumstances, as they must have
presented themselves to the defendant at the time, he acted in good faith,
without malice, or criminal intent, in the belief that he was doing no more
than exercising his legitimate right of self-defense; that had the facts been
as he believed them to be he would have been wholly exempt from
criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling
into his mistake as to the facts, or in the means adopted by him to defend
himself from the imminent danger which he believe threatened his
person and his property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which
he is charged and his bail bond exonerated, with the costs of both
instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for
appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and
corporal of the Philippine Constabulary, respectively, were, after due
trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of
from one year and six months to two years and two months of prison
correccional and to indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants appealed separately from
this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information
received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain Monsod accordingly called for
his first sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna
and D. Fernandez, upon order of their sergeant, reported at the office of
the Provincial Inspector where they were shown a copy of the above-
quoted telegram and a newspaper clipping containing a picture of
Balagtas. They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction
was given to the chief of police Oanis who was likewise called by the
Provincial Inspector. When the chief of police was asked whether he
knew one Irene, a bailarina, he answered that he knew one of loose
morals of the same name. Upon request of the Provincial Inspector, the
chief of police tried to locate some of his men to guide the constabulary
soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone
of them he volunteered to go with the party. The Provincial Inspector
divided the party into two groups with defendants Oanis and Galanta, and
private Fernandez taking the route to Rizal street leading to the house
where Irene was supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who was then stripping
banana stalks, and asked her where Irene's room was. Brigida indicated
the place and upon further inquiry also said that Irene was sleeping with
her paramour. Brigida trembling, immediately returned to her own room
which was very near that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the room of Irene, and an
seeing a man sleeping with his back towards the door where they were,
simultaneously or successively fired at him with their .32 and .45 caliber
revolvers. Awakened by the gunshots, Irene saw her paramour already
wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it
turned out later that the person shot and killed was not the notorious
criminal Anselmo Balagtas but a peaceful and innocent citizen named
Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of
the killing, repaired to the scene and when he asked as to who killed the
deceased. Galanta, referring to himself and to Oanis, answered: "We two,
sir." The corpse was thereafter brought to the provincial hospital and
upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted
by a .32 and a .45 caliber revolvers were found on Tecson's body which
caused his death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants
gave, however, a different version of the tragedy. According to Appellant
Galanta, when he and chief of police Oanis arrived at the house, the latter
asked Brigida where Irene's room was. Brigida indicated the place, and
upon further inquiry as to the whereabouts of Anselmo Balagtas, she said
that he too was sleeping in the same room. Oanis went to the room thus
indicated and upon opening the curtain covering the door, he said: "If you
are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke
up and as the former was about to sit up in bed. Oanis fired at him.
Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter
was still lying on bed, and continued firing until he had exhausted his
bullets: that it was only thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was then apparently watching
and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge to
exculpate themselves of the crime, but also because they are materially
contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something
from the floor; on the other hand, Galanta testified that Oasis shot Tecson
while the latter was about to sit up in bed immediately after he was
awakened by a noise. Galanta testified that he fired at Tecson, the
supposed Balagtas, when the latter was rushing at him. But Oanis assured
that when Galanta shot Tecson, the latter was still lying on bed. It is
apparent from these contradictions that when each of the appellants tries
to exculpate himself of the crime charged, he is at once belied by the
other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be
recalled that, according to Requinea, Tecson was still sleeping in bed
when he was shot to death by appellants. And this, to a certain extent, is
confirmed by both appellants themselves in their mutual recriminations.
According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured
that when Galanta shot Tecson, the latter was still lying in bed. Thus
corroborated, and considering that the trial court had the opportunity to
observe her demeanor on the stand, we believe and so hold that no error
was committed in accepting her testimony and in rejecting the
exculpatory pretensions of the two appellants. Furthermore, a careful
examination of Irene's testimony will show not only that her version of
the tragedy is not concocted but that it contains all indicia of veracity. In
her cross-examination, even misleading questions had been put which
were unsuccessful, the witness having stuck to the truth in every detail of
the occurrence. Under these circumstances, we do not feel ourselves
justified in disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in
his room with his back towards the door, Oanis and Galanta, on sight,
fired at him simultaneously or successively, believing him to be Anselmo
Balagtas but without having made previously any reasonable inquiry as
to his identity. And the question is whether or not they may, upon such
fact, be held responsible for the death thus caused to Tecson. It is
contended that, as appellants acted in innocent mistake of fact in the
honest performance of their official duties, both of them believing that
Tecson was Balagtas, they incur no criminal liability. Sustaining this
theory in part, the lower court held and so declared them guilty of the
crime of homicide through reckless imprudence. We are of the opinion,
however, that, under the circumstances of the case, the crime committed
by appellants is murder through specially mitigated by circumstances to
be mentioned below.
In support of the theory of non-liability by reasons of honest mistake of
fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The
maxim is ignorantia facti excusat, but this applies only when the mistake
is committed without fault or carelessness. In the Ah Chong case,
defendant therein after having gone to bed was awakened by someone
trying to open the door. He called out twice, "who is there," but received
no answer. Fearing that the intruder was a robber, he leaped from his bed
and called out again., "If you enter the room I will kill you." But at that
precise moment, he was struck by a chair which had been placed against
the door and believing that he was then being attacked, he seized a
kitchen knife and struck and fatally wounded the intruder who turned out
to be his room-mate. A common illustration of innocent mistake of fact is
the case of a man who was marked as a footpad at night and in a lonely
road held up a friend in a spirit of mischief, and with leveled, pistol
demanded his money or life. He was killed by his friend under the
mistaken belief that the attack was real, that the pistol leveled at his head
was loaded and that his life and property were in imminent danger at the
hands of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused,
having no time or opportunity to make a further inquiry, and being
pressed by circumstances to act immediately, had no alternative but to
take the facts as they then appeared to him, and such facts justified his act
of killing. In the instant case, appellants, unlike the accused in the
instances cited, found no circumstances whatsoever which would press
them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity
without hazard to themselves, and could even effect a bloodless arrest if
any reasonable effort to that end had been made, as the victim was
unarmed, according to Irene Requinea. This, indeed, is the only legitimate
course of action for appellants to follow even if the victim was really
Balagtas, as they were instructed not to kill Balagtas at sight but to arrest
him, and to get him dead or alive only if resistance or aggression is
offered by him.
Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
 21
overcome his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him with
wanton violence, or in resorting to dangerous means when the arrest
could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is
restated in the new Rules of Court thus: "No unnecessary or unreasonable
force shall be used in making an arrest, and the person arrested shall not
be subject to any greater restraint than is necessary for his detention."
(Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from
criminal liability if he uses unnecessary force or violence in making an
arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that
Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from
justice and a menace to the peace of the community, but these facts alone
constitute no justification for killing him when in effecting his arrest, he
offers no resistance or in fact no resistance can be offered, as when he is
asleep. This, in effect, is the principle laid down, although upon different
facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious criminal "must be taken by
storm" without regard to his right to life which he has by such notoriety
already forfeited. We may approve of this standard of official conduct
where the criminal offers resistance or does something which places his
captors in danger of imminent attack. Otherwise we cannot see how, as in
the present case, the mere fact of notoriety can make the life of a criminal
a mere trifle in the hands of the officers of the law. Notoriety rightly
supplies a basis for redoubled official alertness and vigilance; it never can
justify precipitate action at the cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant action of such character in
the mind of a reasonably prudent man, condemnation — not condonation
— should be the rule; otherwise we should offer a premium to crime in
the shelter of official actuation.
The crime committed by appellants is not merely criminal negligence, the
killing being intentional and not accidental. In criminal negligence, the
injury caused to another should be unintentional, it being simply the
incident of another act performed without malice. (People vs. Sara, 55
Phil., 939). In the words of Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en el malicia ni intencion
alguna de dañar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del agente
el causar un mal de tanta gravedad como el que se produjo." (Tomo 7,
Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this
Court, a deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232;
People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully
done, a mistake in the identity of the intended victim cannot be
considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to
support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder
with the qualifying circumstance of alevosia. There is, however, a
mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in article 11, No. 5, of the Revised Penal Code.
According to such legal provision, a person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a right
or office. There are two requisites in order that the circumstance may be
taken as a justifying one: (a) that the offender acted in the performance of
a duty or in the lawful exercise of a right; and (b) that the injury or
offense committed be the necessary consequence of the due performance
of such duty or the lawful exercise of such right or office. In the instance
case, only the first requisite is present — appellants have acted in the
performance of a duty. The second requisite is wanting for the crime by
them committed is not the necessary consequence of a due performance
of their duty. Their duty was to arrest Balagtas or to get him dead or alive
if resistance is offered by him and they are overpowered. But through
impatience or over-anxiety or in their desire to take no chances, they
have exceeded in the fulfillment of such duty by killing the person whom
they believed to be Balagtas without any resistance from him and without
making any previous inquiry as to his identity. According to article 69 of
the Revised Penal Code, the penalty lower by one or two degrees than
that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above
mentioned, and accordingly sentenced to an indeterminate penalty of
from five (5) years of prision correctional to fifteen (15) years
of reclusion temporal, with the accessories of the law, and to pay the heirs
of the deceased Serapio Tecson jointly and severally an indemnity of
P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA
CARMEN @ Mother Perpetuala, CELEDONIA FABIE @ Isabel
Fabie, DELIA SIBONGA @ Deding Sibonga,
ALEXANDER SIBONGA @ Nonoy Sibonga, and REYNARIO
NUEZ @ Rey Nuez, accused-appellants.
DECISION
MENDOZA, J.:
This is an appeal from the decision[1] of the Regional Trial Court,
Branch 14, Cebu City, finding accused-appellants Eutiquia Carmen @
Mother Perpetuala, Celedonia Fabie @ Isabel Fabie, Delia Sibonga @
Deding Sibonga, Alexander Sibonga @ Nonoy Sibonga, and Reynario Nuez
@ Rey Nuez guilty of murder and sentencing them to suffer the penalty
of reclusion perpetua and to pay the heirs of the victim the amount
of P50,000.00 as indemnity as well as the costs.
The information[2] against accused-appellants alleged:
That on or about the 27th day of January, 1997 at about 2:00 oclock p.m.,
in the City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conniving and confederating together
and mutually helping one another, with deliberate intent, with intent to
kill, with treachery and evident premeditation, did then and there inflict
fatal physical injuries on one Randy Luntayao which injuries caused the
death of the said Randy Luntayao.
Accused-appellants pleaded not guilty to the charge, whereupon
they were tried.
The prosecution presented evidence showing the following: At
around 2 oclock in the afternoon of January 27, 1997, Honey Fe Abella,
10, and her friend Frances Claire Rivera, 7, were playing takyan in front of
the house of one Bebing Lastimoso in Quiot, Pardo, Cebu City, when
suddenly they heard a child shout, Tabang ma! (Help mother!). The cry
came from the direction of the house of accused-appellant Carmen, who is
also known in their neighborhood as Mother Perpetuala. The two
children ran towards Mother Perpetualas house.[3] What Honey Fe saw on
which she testified in court, is summarized in the decision of the trial
court, to wit:
While there[,] she saw a boy, whose name . . . she [later] came to know as
one Randy Luntayao, . . . being immersed head first in a drum of
water. Accused Alexander Sibonga was holding the waist of the body
while accused Reynario Nuez held the hands of the boy at the back.
Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were
pushing down the boys head into the water. She heard the boy shouting
Ma, help for two times. Later, she saw accused Reynario or Rey Nuez tie
the boy on the bench with a green rope as big as her little finger. . . . After
that Eutiquia Carmen poured [water from] a plastic container (galon) . . .
into the mouth of the boy. Each time the boy struggled to raise his head,
accused Alexander Sibonga banged the boys head against the bench [to]
which the boy was tied down.She even heard the banging sound
everytime the boys head hit the bench. For about five times she heard
it. According to this witness after forcing the boy to drink water, Eutiquia
Carmen and accused Celedonia Fabie alias Isabel Fabie took turns in
pounding the boys chest with their clenched fists. All the time Rey Nuez
held down the boys feet to the bench. She also witnessed . . . Celedonia
Fabie dropped her weight, buttocks first, on the body of the boy. Later on,
Eutiquia Carmen ordered Delia or Deding Sibonga to get a knife from the
kitchen. Eutiquia Carmen then slowly plunged the stainless knife on the
left side of the boys body and with the use of a plastic gallon container,
the top portion of which was cut out, Eutiquia Carmen [caught] the blood
dripping from the left side of the boys body. Honey Fe heard the moaning
coming from the tortured boy. Much later she saw Nonoy or Alexander
Sibonga, Reynario Nuez, Delia Sibonga, Celedonia Fabie, and Eutiquia
Carmen carry the boy into the house.[4]
Eddie Luntayao, father of the victim, testified that he has five
children, the eldest of whom, Randy, was 13 years old at the time of the
incident. On November 20, 1996, Randy had a nervous breakdown which
Eddie thought was due to Randy having to skip meals whenever he took
the boy with him to the farm. According to Eddie, his son started talking
to himself and laughing. On January 26, 1997, upon the suggestion of
accused-appellant Reynario Nuez, Eddie and his wife Perlita and their
three children (Randy, Jesrel, 7, and Lesyl, 1) went with accused-
appellant Nuez to Cebu. They arrived in Cebu at around 1 oclock in the
afternoon of the same day and spent the night in Nuezs house in Tangke,
Talisay.
The following day, they went to the house of accused-appellant
Carmen in Quiot, Pardo,[5] where all of the accused-appellants were
present. Eddie talked to accused-appellant Carmen regarding his sons
condition. He was told that the boy was possessed by a bad spirit, which
accused-appellant Carmen said she could exorcise. She warned, however,
that as the spirit might transfer to Eddie, it was best to conduct the
healing prayer without him. Accused-appellants then led Randy out of the
house, while Eddie and his wife and two daughters were locked inside a
room in the house.[6]
After a while, Eddie heard his son twice shout Ma, tabang! (Mother,
help!). Eddie tried to go out of the room to find out what was happening
to his son, but the door was locked. After about an hour, the Luntayaos
were transferred to the prayer room which was located near the main
door of the house.[7]
A few hours later, at around 5 oclock in the afternoon, accused-
appellants carried Randy into the prayer room and placed him on the
altar. Eddie was shocked by what he saw. Randys face was bluish and
contused, while his tongue was sticking out of his mouth. It was clear to
Eddie that his son was already dead. He wanted to see his sons body, but
he was stopped from doing so by accused-appellant Eutiquia Carmen who
told him not to go near his son because the latter would be resurrected at
7 oclock that evening.[8]
After 7 oclock that evening, accused-appellant Carmen asked a
member of her group to call the funeral parlor and bring a coffin as the
child was already dead. It was arranged that the body would be
transferred to the house of accused-appellant Nuez. Thus, that night, the
Luntayao family, accompanied by accused-appellant Nuez, took Randys
 22
body to Nunezs house in Tangke, Talisay. The following day, January 28,
1997, accused-appellant Nuez told Eddie to go with him to the Talisay
Municipal Health Office to report Randys death and told him to keep quiet
or they might not be able to get the necessary papers for his sons
burial. Nuez took care of securing the death certificate which Eddie
signed.[9]
At around 3 oclock in the afternoon of January 28, 1997, accused-
appellant Carmen went to Tangke, Talisay to ensure that the body was
buried. Eddie and his wife told her that they preferred to bring their sons
body with them to Sikatuna, Isabela, Negros Occidental but they were told
by accused-appellant Carmen that this was not possible as she and the
other accused-appellants might be arrested. That same afternoon, Randy
Luntayao was buried in Tangke, Talisay.[10]
After Eddie and his family had returned home to Negros Occidental,
Eddie sought assistance from the Bombo Radyo station in Bacolod City
which referred him to the regional office of the National Bureau of
Investigation (NBI) in the city. On February 3, 1997, Eddie filed a
complaint for murder against accused-appellant Nuez and the other
members of his group.[11] He also asked for the exhumation and autopsy
of the remains of his son.[12] As the incident took place in Cebu, his
complaint was referred to the NBI office in Cebu City.
Modesto Cajita, head of NBI, Region VII (Cebu), took over the
investigation of the case. He testified that he met with Eddie Luntayao
and supervised the exhumation and autopsy of the body of Randy
Luntayao.[13] Cajita testified that he also met with accused-appellant
Carmen and after admitting that she and the other accused-appellants
conducted a pray-over healing session on the victim on January 27, 1997,
accused-appellant Carmen refused to give any further statement. Cajita
noticed a wooden bench in the kitchen of Carmens house, which, with
Carmens permission, he took with him to the NBI office for
examination. Cajita admitted he did not know the results of the
examination.[14]
Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted
the autopsy on Randy Luntayao, testified that he, the victims father, and
some NBI agents, exhumed the victims body on February 20, 1997 at
Tangke Catholic Cemetery in the Tangke, Talisay, Cebu. He conducted the
autopsy on the same day and later submitted the following report (Exhs.
E and F):[15]
FINDINGS
Body in advanced stage of decomposition wearing a white shirt and
shorts wrapped in printed blanket (white and orange) placed in white
wooden coffin and buried underground about 4 feet deep.
Contusion, 3.0 x 4.0 cms. chest, anterior, left side.
Fracture, 3rd rib, left, mid-clavicular line.
Fracture, linear, occipital bone right side extending to the bases of middle
cranial fossae right to left down to the occipital bone, left side.
Fracture, diastatic, lamboidal suture, bilateral.
Internal organs in advanced stage of decomposition.
Cranial vault almost empty.
CAUSE OF DEATH: [The victim] could have died due to the internal
effects of a traumatic head injury and/or traumatic chest injury.
Dr. Mendez testified that the contusion on the victims chest was
caused by contact with a hard blunt instrument. He added that the
fracture on the rib was complete while that found on the base of the skull
followed a serrated or uneven pattern. He said that the latter injury could
have been caused by the forcible contact of that part of the body with a
blunt object such as a wooden bench.[16]
On cross-examination, Dr. Mendez admitted that he did not find
any stab wound on the victims body but explained that this could be due
to the fact that at the time the body was exhumed and examined, it was
already in an advanced state of decomposition rendering such wound, if
present, unrecognizable.[17]
Accused-appellants did not testify. Instead, the defense
presented: (a) Ritsel Blase, an alleged eyewitness to the incident; (b)
Maria Lilina Jimenez, Visitacion Seniega, and Josefina Abing, alleged
former patients of accused-appellant Carmen; (c) Dr. Milagros Carloto,
the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador
Solima of the Cebu City Prosecutors Office.
Ritsel Blase, 21, testified that since 1987 she had been with the
group of accused-appellant Carmen, whom she calls Mother
Perpetuala. She recounted that at around 2 oclock in the afternoon of
January 27, 1997, while she was in the house of accused-appellant
Carmen, she saw Eddie Luntayao talking with the latter regarding the
treatment of his son. The boy was later led to the kitchen and given a bath
prior to treatment. After water was poured on the boy, he became unruly
prompting accused-appellant Carmen to decide not to continue with the
treatment, but the boys parents allegedly prevailed upon her to
continue. As the boy continued to resist, accused-appellant Carmen told
accused-appellants Delia Sibonga and Celedonia Fabie to help her
(Carmen) lay the boy on a bench. As the child resisted all the more, Eddie
Luntayao allegedly told the group to tie the boy to the bench. Accused-
appellant Delia Sibonga got hold of a nylon rope which was used to tie the
child to the bench. Then Carmen, Delia Sibonga, and Fabie prayed over
the child, but as the latter started hitting his head against the bench,
Carmen asked Nuez to place his hands under the boys head to cushion the
impact of the blow everytime the child brought down his head. To stop
the boy from struggling, accused-appellant Fabie held the boys legs, while
accused-appellant Nuez held his shoulders. After praying over the boy,
the latter was released and carried inside the house. Accused-appellant
Alexander Sibonga, who had arrived, helped carry the boy inside. After
this, Blase said she no longer knew what happened inside the house as
she stayed outside to finish the laundry.[18]
Blase testified that the parents of Randy Luntayao witnessed the
pray-over of their son from beginning to end. She denied that accused-
appellants Fabie and Delia Sibonga struck the victim on his chest with
their fists. According to her, neither did accused-appellant Carmen stab
the boy. She claimed that Randy was still alive when he was taken inside
the house.[19]
The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega,
39, and Josefina Abing, 39, who testified that accused-appellant Carmen
had cured them of their illnesses by merely praying over them and
without applying any form of physical violence on them.[20]
Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was
also presented by the defense to testify on the death certificate she issued
in which she indicated that Randy Luntayao died of
pneumonia. According to her, Eddie Luntayao came to her office on
January 28, 1997 to ask for the issuance of a death certificate for his son
Randy Luntayao who had allegedly suffered from cough and fever.[21]
On cross-examination, Dr. Carloto admitted that she never saw the
body of the victim as she merely relied on what she had been told by
Eddie Luntayao. She said that it was a midwife, Mrs. Revina Laviosa, who
examined the victims body.[22]
The last witness for the defense, Assistant City Prosecutor Salvador
Solima, was presented to identify the resolution he had prepared (Exh.
8)[23] on the re-investigation of the case in which he recommended the
dismissal of the charge against accused-appellants. His testimony was
dispensed with, however, as the prosecution stipulated on the matters
Solima was going to testify with the qualification that Solimas
recommendation was disapproved by City Prosecutor Primo Miro. [24]
The prosecution recalled Eddie Luntayao to the stand to rebut the
testimonies of Ritsel Blase and Dr. Milagros Carloto. Eddie denied having
witnessed what accused-appellants did to his son. He reiterated his
earlier claim that after accused-appellants had taken Randy, he and his
wife and two daughters were locked inside a room. He disputed Blases
statement that his son was still alive when he was brought into the prayer
room. He said he saw that his sons head slumped while being carried by
accused-appellants.[25]
As for the testimony of Dr. Carloto, Eddie admitted having talked
with her when he and accused-appellant Nuez went to her office on
January 28, 1997. However, he denied having told her that his son was
suffering from fever and cough as he told her that Randy had a nervous
breakdown. He took exception to Dr. Carlotos statement that he was
alone when he went to her office because it was Nuez who insisted that
he (Eddie) accompany him in order to secure the death certificate. [26]
On November 18, 1998, the trial court rendered a decision, the
dispositive portion of which states:
WHEREFORE, in view of the foregoing facts and circumstances, [the]
accused are all found guilty beyond reasonable doubt of the crime of
Murder and are hereby [sentenced] to suffer the penalty of RECLUSION
PERPETUA, with the accessory penalties of the law; to indemnify jointly
and severally the heirs of the deceased Randy Luntayao in the sum
of P50,000.00; and to pay the costs. The accused, are, however, credited
in full during the whole period of their detention provided they will
signify in writing that they will abide by all the rules and regulations of
the penitentiary.[27]
In finding accused-appellants guilty of murder, the trial court
stated:
Killing a person with treachery is murder even if there is no intent to
kill. When death occurs, it is presumed to be the natural consequence of
physical injuries inflicted. Since the defendant did commit the crime with
treachery, he is guilty of murder, because of the voluntary presence of the
qualifying circumstance of treachery (P v. Cagoco, 58 Phil. 530). All the
accused in the case at bar had contributed different acts in mercilessly
inflicting injuries to the victim. For having immersed the head of the
victim into the barrel of water, all the herein accused should be held
responsible for all the consequences even if the result be different from
that which was intended (Art. 4, par. 1, RPC). It is pointed out that in P. v.
Cagoco, 58 Phil. 524, even if there was no intent to kill[,] in inflicting
physical injuries with treachery, the accused in that case was convicted of
murder. In murder qualified by treachery, it is required only that there is
treachery in the attack, and this is true even if the offender has no intent
to kill the person assaulted. Under the guise of a ritual or treatment, the
accused should not have intentionally immersed upside down the head of
Randy Luntayao into a barrel of water; banged his head against the
bench; pounded his chest with fists, or plunged a kitchen knife to his side
so that blood would come out for these acts would surely cause death to
the victim. . . .
One who commits an intentional felony is responsible for all the
consequences which may naturally and logically result therefrom,
whether foreseen or intended or not. Ordinarily, when a person commits
a felony with malice, he intends the consequences of his felonious act. In
view of paragraph 1 of Art. 4, a person committing a felony is criminally
liable although the consequences of his felonious acts are not intended by
him. . . .
....
 23
Intent is presumed from the commission of an unlawful act. The
presumption of criminal intent may arise from the proof of the criminal
act and it is for the accused to rebut this presumption. In the case at bar,
there is enough evidence that the accused confederated with one another
in inflicting physical harm to the victim (an illegal act). These acts were
intentional, and the wrong done resulted in the death of their
victim. Hence, they are liable for all the direct and natural consequences
of their unlawful act, even if the ultimate result had not been intended. [28]
Hence, this appeal. Accused-appellants allege that the trial court
erred in convicting them of murder.[29]
First. It would appear that accused-appellants are members of
a cult and that the bizarre ritual performed over the victim was consented
to by the victims parents. With the permission of the victims parents,
accused-appellant Carmen, together with the other accused-appellants,
proceeded to subject the boy to a treatment calculated to drive the bad
spirit from the boys body. Unfortunately, the strange procedure resulted
in the death of the boy. Thus, accused-appellants had no criminal intent to
kill the boy. Their liability arises from their reckless imprudence because
they ought that to know their actions would not bring about the
cure. They are, therefore, guilty of reckless imprudence resulting in
homicide and not of murder.
Art. 365 of the Revised Penal Code, as amended, states that reckless
imprudence consists in voluntarily, but without malice, doing or failing to
do an act from which material damage results by reason of inexcusable
lack of precaution on the part of the person performing such
act. Compared to intentional felonies, such as homicide or murder, what
takes the place of the element of malice or intention to commit a wrong or
evil is the failure of the offender to take precautions due to lack of skill
taking into account his employment, or occupation, degree of intelligence,
physical condition, and other circumstances regarding persons, time, and
place.
The elements of reckless imprudence are apparent in the acts done
by accused-appellants which, because of their lack of medical skill in
treating the victim of his alleged ailment, resulted in the latters death. As
already stated, accused-appellants, none of whom is a medical
practitioner, belong to a religious group, known as the Missionaries of
Our Lady of Fatima, which is engaged in faith healing.
In United States v. Divino,[30] the accused, who was not a licensed
physician, in an attempt to cure the victim of ulcers in her feet, wrapped a
piece of clothing which had been soaked in petroleum around the victims
feet and then lighted the clothing, thereby causing injuries to the
victim. The Court held the accused liable for reckless imprudence
resulting in physical injuries. It was noted that the accused had no
intention to cause an evil but rather to remedy the victims ailment.
In another case, People v. Vda. de Golez,[31] the Court ruled that the
proper charge to file against a non-medical practitioner, who had treated
the victim despite the fact that she did not possess the necessary
technical knowledge or skill to do so and caused the latters death, was
homicide through reckless imprudence.
The trial courts reliance on the rule that criminal intent is
presumed from the commission of an unlawful act is untenable because
such presumption only holds in the absence of proof to the
contrary.[32]The facts of the case indubitably show the absence of intent to
kill on the part of the accused-appellants. Indeed, the trial courts findings
can be sustained only if the circumstances of the case are ignored and the
Court limits itself to the time when accused-appellants undertook their
unauthorized treatment of the victim. Obviously, such an evaluation of
the case cannot be allowed.
Consequently, treachery cannot be appreciated for in the absence
of intent to kill, there is no treachery or the deliberate employment
of means, methods, and manner of execution to ensure the safety of the
accused from the defensive or retaliatory attacks coming from the
victim.[33] Viewed in this light, the acts which the trial court saw as
manifestations of treachery in fact relate to efforts by accused-appellants
to restrain Randy Luntayao so that they can effect the cure on him.
On the other hand, there is no merit in accused-appellants
contention that the testimony of prosecution eyewitness Honey Fe Abella
is not credible. The Court is more than convinced of Honey Fes credibility.
Her testimony is clear, straightforward, and is far from having been
coached or contrived. She was only a few meters away from the kitchen
where accused-appellants conducted their pray-over healing session not
to mention that she had a good vantage point as the kitchen had no roof
nor walls but only a pantry. Her testimony was corroborated by the
autopsy findings of Dr. Mendez who, consistent with Honey Fes
testimony, noted fractures on the third left rib and on the base of the
victims skull. With regard to Dr. Mendezs failure to find any stab wound
in the victims body, he himself had explained that such could be due to
the fact that at the time the autopsy was conducted, the cadaver was
already in an advanced state of decomposition. Randy Luntayaos cadaver
was exhumed 24 days after it had been buried. Considering the length of
time which had elapsed and the fact that the cadaver had not been
embalmed, it was very likely that the soft tissues had so decomposed that,
as Dr. Mendez said, it was no longer possible to determine whether there
was a stab wound. As for the other points raised by accused-appellants to
detract the credibility of Honey Fes testimony, the same appear to be only
minor and trivial at best.
Accused-appellants contend that the failure of the prosecution to
present the testimony of Frances Claire Rivera as well as the knife used in
stabbing Randy Luntayao puts in doubt the prosecutions evidence. We do
not think so. The presentation of the knife in evidence is not
indispensable.[34]
Finally, accused-appellants make much of the fact that although the
case was tried under Judge Renato C. Dacudao, the decision was rendered
by Judge Galicano Arriesgado who took over the case after the
prosecution and the defense had rested their cases.[35] However, the fact
that the judge who wrote the decision did not hear the testimonies of the
witnesses does not make him less competent to render a decision, since
his ruling is based on the records of the case and the transcript of
stenographic notes of the testimonies of the witnesses.[36]
Second. The question now is whether accused-appellants can be
held liable for reckless imprudence resulting in homicide, considering
that the information charges them with murder. We hold that they can.
Rule 120 of the Revised Rules of Criminal Procedure provides in
pertinent parts:
SEC. 4. Judgment in case of variance between allegation and proof. When
there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another. An offense
charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients
of the former constitute or form part of those constituting the latter.
In Samson v. Court of Appeals,[37] the accused were charged with,
and convicted of, estafa through falsification of public document. The
Court of Appeals modified the judgment and held one of the
accused liable for estafa through falsification by negligence. On appeal, it
was contended that the appeals court erred in holding the accused liable
for estafa through negligence because the information charged him with
having wilfully committed estafa. In overruling this contention, the Court
held:
While a criminal negligent act is not a simple modality of a willful crime,
as we held in Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641,
July 28, 1955, but a distinct crime in itself, designated as a quasi offense
in our Penal Code, it may however be said that a conviction for the former
can be had under an information exclusively charging the commission of
a willful offense, upon the theory that the greater includes the lesser
offense. This is the situation that obtains in the present case. Appellant
was charged with willful falsification but from the evidence submitted by
the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did
not act with criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants as an
ordinary prudent man would do. In other words, the information alleges
acts which charge willful falsification but which turned out to be not
willful but negligent. This is a case covered by the rule when there is a
variance between the allegation and proof. . . .
The fact that the information does not allege that the falsification was
committed with imprudence is of no moment for here this deficiency
appears supplied by the evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the
falsification has been willful, it would be incongruous to allege at the
same time that it was committed with imprudence for a charge of
criminal intent is incompatible with the concept of negligence.
In People v. Fernando,[38] the accused was charged with, and
convicted of, murder by the trial court. On appeal, this Court modified the
judgment and held the accused liable for reckless imprudence resulting in
homicide after finding that he did not act with criminal intent.
Third. Coming now to the imposable penalty, under Art. 365,
reckless imprudence resulting in homicide is punishable by arresto
mayor in its maximum period to prision correccional in its medium
period. In this case, taking into account the pertinent provisions of
Indeterminate Sentence Law, the accused-appellants should suffer the
penalty of four (4) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum.
As to their civil liability, accused-appellants should pay the heirs of
Randy Luntayao an indemnity in the amount of P50,000.00 and moral
damages also in the amount of P50,000.00.[39] In addition, they should pay
exemplary damages in the amount of P30,000.00 in view of accused-
appellants gross negligence in attempting to cure the victim without a
license to practice medicine and to give an example or correction for the
public good.[40]
WHEREFORE, the decision of the Regional Trial Court, Branch 14,
Cebu City, is AFFIRMED with the MODIFICATION that accused-appellants
are hereby declared guilty of reckless imprudence resulting in homicide
and are each sentenced to suffer an indeterminate prison term of four (4)
months of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. In addition, accused-
appellants are ORDERED jointly and severally to pay the heirs of Randy
Luntayao indemnity in the amount of P50,000.00, moral damages in the
amount of P50,000.00, and exemplary damages in the amount
of P30,000.00.
SO ORDERED.