ARTICLE 14.
AGGRAVATING CIRCUMSTANCES The penalty imposed by the lower court upon the appellant
THE PEOPLE OF THE PHILIPPINE ISLANDS,
PLAINTIFF AND APPELLEE, VS. MAGDALENA CALISO,
DEFENDANT AND APPELLANT.
The appellant in this case was convicted of the crime of
murder by the Court of First Instance of Occidental Negros,
and sentenced to suffer the penalty of reclusion perpetua,
to indemnify the parents of the deceased in the sum of
P1,000, with the accessory penalties prescribed by law,
and to pay the costs. On this appeal, her counsel de oficio
attacks the findings of fact of the trial court, but does not
raise any question of law.
The questions of fact involved in this case are fully
discussed in a well considered decision of the trial court,
presided over by the then Judge Quirico Abeto.
We agree to the conclusions of fact reached by the trial
court. As to the application of the law to the facts of the
case, we are inclined to the proposition advanced by the
Attorney-General that in the commission of the crime the
aggravating circumstance of grave abuse of confidence
was present since the appellant was the domestic servant
of the family and was sometimes the deceased child's
amah. The circumstance of the crime having been
committed in the dwelling of the offended party, considered
by the lower court as another aggravating circumstance,
should be dis- regarded as both the victim and the
appellant were living in the same house. (U. S. vs.
Rodriguez, 9 Phil., 136; U S. vs. Destrito and De Ocampo,
23 Phil., 28.) Likewise, threachery cannot be considered to
aggravate the penalty as it is inherent in the offense of
murder by means of poisoning (3 Viada, p. 29). Similarly
the finding of the trial court that the appellant acted under
an impulse so powerful as naturally to have produced
passion and obfuscation should be discarded because the
accused, in poisoning the child, was actuated more by a
spirit of lawlessness and revenge than by any sudden
impulse of natural and uncontrollable fury (People vs.
Hernandez, 43 Phil., 104, 111) and because such sudden
burst of passion was not provoked by prior unjust or
improper acts of the victim or of his parents (U. S. vs.
Taylor, 6 Phil., 162), since Flora Gonzalez had the perfect
right to reprimand the defendant for indecently converting
the family's bedroom into a rendezvous of herself and her
lover.
The aggravating circumstance of abuse of confidence
being offset by the extenuating circumstance of defendants
lack of instruction considered by the lower court, the
medium degree of the prescribed penalty should, therefore,
be imposed, which, in this case, is reclusion perpetua.
being thus within the limits fixed by law, the judgment
appealed from is affirmed with costs. So ordered.
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. BELINDA LORA Y VEQUIZO ALIAS LORENA
SUMILEW, ACCUSED-APPELLANT.
The defendant Belinda Lora y Vequizo alias Lorena
Sumilew was accused in the Court of First Instance of
Davao of serious illegal detention with murder in an
amended information which reads as follows:
The undersigned accuses the above-named accused of the
crime of Serious Illegal Detention with Murder under Art.
267 in relation to Articles 248 and 48 of the Revised Penal
Code, committed as follows:
That on or about May 28, 1975, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, being then a private
person, wilfully, unlawfully and feloniously and for the
purpose of extorting ransom from spouses Ricardo Yap
and Myrna Yap, illegally detained their three (3) year old
child Oliver Yap, a minor, from May 28 to 29, 1975 and with
treachery, evident premeditation and with intent to kill,
wilfully, unlawfully and feloniously attacked, assaulted
Oliver Yap by tying his mouth with stocking, placing him
inside a Pallmall cigarette box, covering the said box with a
mat and piece of sack and filing the same with other boxes
in the third floor (bodega) of the house owned by said
spouses Ricardo Yap and Myrna Yap, thereby inflicting
upon said Oliver Yap the following to wit: "Asphyxia due to
suffocation" which caused the death of said Oliver Yap.
That the commission of the foregoing offense was attended
by the following aggravating circumstances: (1) taking
advantage of superior strength; (2) disregard of the respect
due the offended party on account of his age; (3) that the
crime was committed in the dwelling of the offended party;
(4) that the crime was committed with abuse of confidence,
she being a domestic helper (maid) or obvious
ungratefulness; (5) that craft, fraud and disguise was
employed; and (6) that the crime was committed with
cruelty, by deliberately and inhumanly augmenting the
suffering of the victim.
Contrary to law.
According to the trial judge, "he has appointed as counsel
de oficio Atty. Hildegardo Iñigo a bar topnothcer with
considerable practice," in view of the gravity of the offense.
Upon motion of the counsel for the accused, the
arraignment was postponed to enable him to study the
charge against the accused. Thereafter, after being
arraigned, the accused Belinda Lora, in the presence and
with the assistance of her counsel, entered a plea of guilty
in Visayan dialect, which is her native dialect.
The Court thereafter directed the prosecution to present its
evidence and the counsel for the accused manifested that
the evidence of the defense would be presented only for
proving mitigating circumstances.
Eight witnesses for the prosecution, namely: Myrna Yap,
David Cortez, Fidencio Bisnar, Ricardo Yap, Agaton
Bonahos, Emmanuel Mesias, Rolando Estillori and Juan
Abear, Jr. were presented.
The facts are undisputed.
On May 26, 1975, accused Belinda Lora, using the name
"Lorena Sumilew", applied as a housemaid in the
household of the spouses Ricardo Yap and Myrna Yap at
373 Ramon Magsaysay Avenue, Davao City. The spouses
had a store on the ground floor; a mezzanine floor was
used as their residence; while the third floor was used as a
bodega for their stocks. They had two children, Emily and
Oliver Yap. Oliver was 3 years and five months old.[1]
Belinda Lora was accepted as a housemaid in the re-
sidence of the Yaps and reported for work the following
day, May 27, 1975. Her duties were to wash clothes and to
look after Oliver Yap.[2]
On May 28, 1975, Mrs. Myrna Yap returned home from the
market to find her mother-in-law and her husband panicky
because their son, Oliver, and the maid, accused Belinda
Lora, were missing. The mother-in-law had found a ransom
note at the stairway to the mezzanine floor. The note said
that Oliver was to be sold to a couple and that the writer
(defendant herein) needed money for her mother's
hospitalization.[3] Four pieces of residence certificates were
also found inside the paper bag of the maid. One residence
certificate bore the No. 1941785 with the name "Sumiliw,
Lorena Pamintil."[4]
The incident was reported immediately to the police. Mrs.
Yap, accompanied by one Mrs. Erlinda Velez, went to look
for Oliver and the housemaid. Not finding them in Davao
City, they went to Digos and Bansalan (Davao) and looked
in the hospitals there. The residence certificate in the name
of Lorena Sumiliw was issued in Digos and the ransom
letter stated that the mother of the defendant was very
sick.[5]
In the evening of May 28, 1975, the Yaps received two
telephone calls at their residence. The first call was
received by Mrs. Yaps's mother-in-law while the second
call was received by Ricardo Yap. Lorena Sumiliw
(defendant), the caller, instructed Ricardo Yap to bring the
amount of P3,000.00 to the island infront of the (Davao)
Regional Hospital and to go there alone without any
policeman or companion, after which his son (Oliver) would
be left to the security guard of the hospital at the
emergency exit.[6]
The Yaps borrowed the amount of P3,000.00. Upon
instructions of the NBI, the money was marked with Mrs.
Yap's initials "MY".[7]
Ricardo Yap wrapped the P3,000.00 in a piece of paper
and went to the Regional Hospital at 9:30 in the evening of
May 28, 1975. He placed the money near the Imelda
Playground. He proceeded to the hospital and looked for
his child from the security guard. However, the security
guard said nobody left a boy with him.[8] Ricardo Yap
stayed at a corner looking and calling for his child but could
not locate him. After ten minutes, he went back to where he
had placed the money but the money was not there
anymore. He waited until 11:00 o'clock, after which he went
home.[9]
The following morning, May 29, 1975, Mrs. Yap received a
phone call from the accused informing her that her son was
at the Minrapco Terminal and that she was asking for
another P3,000.00. Mrs. Yap proceeded to the terminal
whereupon she learned that the terminal had moved to a
place near a theatre. When Myrna Yap arrived at the place,
she saw the accused board a Minica bus. She followed and
grabbed the accused.[10] As the accused said that Mrs.
Yap's son was brought to the Regional Hospital, they pro-
ceeded there. Upon arriving there, a couple, Mr. and Mrs.
Bonahos, said that the Yap son was in Panacan. Mrs. Yap
and the accused went to Panacan. After arriving at
Panacan, the accused told Mrs. Yap that her son was in the
custody of a woman whom she paid P100.00 and that the
woman would return her son at 6:00 o'clock P.M. that day.
Mrs. Yap therefore, made the accused sign a promisory
note that she would return Oliver on the same day.[11] After
the accused boarded a bus for Surigao, Mrs. Yap listed
down the bus number and the seat number and reported to
Lt. Mesias of the Davao City Police Force that the
"kidnapper" was on board the Surigao bus.[12]
Lt. Mesias stopped the bus and placed the accused under
arrest. From the body of the accused was taken an
improvised pouch containing 36 pieces of P50.00 bills and
24 pieces of P20.00 bills. The money had initials reading
"MY" below the serial numbers.[13]
The following morning, May 30, 1975, upon waking up at
around 6 o'clock in his house, Ricardo Yap noticed that
blood was dripping from the ceiling. He went upstairs,
which was being utilized as a bodega, to verify, and found
his son placed inside the carton of Marlboro cigarettes. The
head of the child was inside the carton while his feet
protruded outside.[14] His mouth was tied with stockings.[15]
The child was already dead.[16] He had died of "asphyxhia
due to suffocation."[17]
The defendant presented evidence only for the purpose of
proving alleged mitigating circumstances. She claims that
she did not intend to kill the child.[18]
To support her plea for mercy, she stated that she had
three children aged from one to five years whom she left in
Pagadian.[19] On objection to the materiality of the
evidence, the appellant's counsel pleaded that she be
allowed to prove those facts for "humanitarian
consideration" which might enable the Supreme Court to
review the penalty with compassion.[20]
The defendant capped her testimony with the following
plea:
"A I would request the Honorable Court that LIFE
IMPRISONMENT will be the penalty imposed upon me
because I really committed the crime. I did not really intend
to kill the child.
Q Would you like to make any further appeal?
A I really repent to what I have done, sir." [21]
On cross-examination, the defendant admitted that she
gagged the child's mouth with stockings; placed the child
inside the box with head down and legs up; that she
covered the box with some sacks and boxes and left the
child in that condition inside the store room of the house of
Ricardo Yap.[22]
When the defendant left the store room, the voice of the
child, who was previously shouting, "was already slow and
to make sure that his voice would not be heard I closed the
door."[23]
On the basis of the plea of guilt of the defendant and the
evidence of the prosecution, the court convicted the
defendant with complex crime of serious illegal detention
with murder and imposed, among others, the extreme
penalty of death.
Hence, this automatic review.
The guilt of the defendant is so patent that there is no
further need to discuss the evidence. The only task
remaining after the plea of guilty and the presentation of
the undisputed evidence for the prosecution is to determine
the crime committed, the penalty to be imposed and the
aggravating and mitigating circumstances to be
appreciated.
The crime actually committed is not the complex crime of
kidnapping with murder, as found by the trial court, but the
simple crime of murder qualified by treachery.
Kidnapping is a crime against liberty defined in Article 267,
Title IX, Book II of the Revised Penal Code. The essence of
kidnapping or serious illegal detention is the actual
confinement or restraint of the victim or the deprivation of
his liberty.[24]
"Where there is no showing that the accused intended to
deprive their victims of their liberty for some time and for
some purpose, and there being no appreciable interval
between their being taken and their being shot from which
kidnapping may be inferred, the crimes committed were
murder and frustrated murder and not the complex crimes
of kidnapping with murder and kidnapping with frustrated
murder."[25]
In the instant case, the gagging of the child with stockings,
placing him in a box with head down and legs upward and
covering the box with some sacks and other boxes were
only the methods of the defendant to commit murder. The
child instantly died of suffocation. This is evident from the
testimony of Dr. Juan Abear, Jr. who performed the
autopsy on May 30, 1975 at 8 o'clock in the morning. When
Dr. Abear conducted the autopsy, the body of the child was
already in a state of decomposition. Dr. Abear opined that
the child must have died three days before the autopsy.[26]
In other words, the child died practically on the very day
that the child was stuffed into the box on May 28, 1975.
The demand for ransom did not convert the offense into
kidnapping with murder. The defendant was well aware that
the child would be suffocated to death in a few moments
after she left. The demand for ransom is only a part of the
diabolic scheme of the defendant to murder the child, to
conceal his body and then demand money before the dis-
covery of the cadaver.
There is treachery because the victim is only a 3-year old
child.[27] The commission of the offense was attended with
the aggravating circumstances of lack of respect due to the
age of the victim, cruelty and abuse of confidence.
The circumstance of lack of respect due to age applies in
cases where the victim is of tender age as well as of old
age. This circumstance was applied in a case where one of
the victims in a murder case was a 12-year-old boy.[28] In
the instant case, the victim was only 3 years old.
The gagging of the mouth of a three-year-old child with
stockings, dumping him with head downwards into a box,
and covering the box with sacks and other boxes, thereby
causing slow suffocation, is cruelty.
There was also abuse of confidence because the victim
was entrusted to the care of the appellant. The appellant's
main duty in the household is to take care of the minor
child. There existed a relation of trust and confidence
between the appellant and the one against whom the crime
was committed and the appellant made use of such relation
to commit the crime.
When the killer of the child is the domestic servant of the
family and was sometimes the deceased child's amah, the
aggravating circumstance of grave abuse of confidence is
present.[29]
On the other hand, the defendant invokes the following as
mitigating circumstances, namely; (1) she pleaded guilty;
(2) she did not intend to commit so grave a wrong; (3) she
was overcome by fear that her mother will die unless she is
able to raise money for her mother's hospitalization, thus,
she committed kidnapping for ransom; (4) the appellant
should live so that her children who are of tender years
would not be deprived of a mother; and (5) we have a
compassionate society.[30]
The only mitigating circumstance that may be appreciated
in favor of the defendant is her voluntary plea of guilt. Her
contention that she had no intention to kill the child lacks
merit. The defendant was well aware that her act of
gagging the mouth of the child with stockings, placing him
with head down and feet up in a box and covering the box
with sacks and other boxes would result to the instant
suffocation of the child. There being three aggravating
circumstances, namely, lack of respect due to the tender
age of the victim, cruelty and abuse of confidence and only
one mitigating circumstance in favor of the defendant, she
deserves the death penalty imposed upon her by the lower
court.
WHEREFORE, the defendant is guilty beyond reasonable
doubt of the crime of murder qualified with treachery and
appreciating the aggravating circumstances already
indicated above, We hereby impose the penalty of death
with costs de oficio.
With this modification, the rest of the decision is hereby
affirmed.
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-
APPELLEE, VS. ROSALIO LAGUARDIA, DANTE
BARTULAY, BALTAZAR BERAN, AND RAYMUNDO
BARTULAY, ACCUSED-APPELLANTS.
In this automatic review of the death sentence imposed
upon the lone accused-appellant, we are asked to
determine if, while concededly guilty of robbery, he should
also be held for the killing of the victim notwithstanding that
this was actually done by another person. The Solicitor
General says the judgment should be affirmed because of
the proven conspiracy between the accused-appellant and
the actual killer. The defense, on the other hand, impliedly
admits the conspiracy only with respect to the robbery but
not as regards the murder which it claims was not part of
the original plan.
The facts, as derived by the lower court from the evidence
adduced at the trial, are briefly narrated as follows:
On September 6, 1979, at about 10:30 o'clock in the
evening, Dante Bartulay and Baltazar Beran, the herein
accused-appellant, signaled to a stop a truck owned by
Fortune Tobacco Corporation then being driven by Miguel
Chua on the zigzag road in Kilometer 36 inside the Iwahig
Penal Colony at Puerto Princesa in Palawan City. Beran
approached one side of the truck and pretended to borrow
a screwdriver and while Chua looked for the tool Bartulay
shouted from the other side of the truck, "This is a hold-up!"
With guns drawn, the two men ordered Chua and his three
companions, Benigno Caca, Frank Morante, and Eduardo
Aniar, to alight. Bartulay forced Chua to lie face down on
the ground about 3 meters away from his
companions. Bartulay was pointing a gun at Chua's
head. On orders of Bartulay, Beran got the wallets and
watches of the four. Bartulay asked about the money they
were carrying and Chua pointed to its location. Beran got it
and gave it to Bartulay. The money amounted to about
P100,000.00. Then, again on orders of Bartulay, Beran
herded the three companions inside the panel where they
were locked. It was while they were still inside the panel
that Beran and the others heard two gunshots. When
Beran got off the truck, he saw Chua still lying on the
ground but now bleeding in the head. Thereafter, Beran
drove the truck from the scene of the crime while Bartulay
followed in a motorcycle. Somehow, Caca and Morante
managed to escape by jumping from the truck through a
secret exit of the panel. They subsequently reported the
occurrence to the law-enforcement authorities who,
returning to the scene of the crime the following day, found
Chua already dead.[1] Beran was arrested on September 8,
1979, with the amount of P4,500.00 in his possession and
upon questioning pointed to the place where he had hidden
the pistol he had used during the hold-up.[2] Further
investigation disclosed that the motorcycle and guns used
by Bartulay and Beran were owned by Rosalio Laguardia,
who was identified by Beran as the mastermind of the
crime.[3] The money stolen was supposed to have been
divided in the house of Raymundo Bartulay, Dante's
brother.[4]
Dante Bartulay could not be tried at the time because he
was at large. Baltazar Beran was found guilty of robbery
with homicide and sentenced to death. Rosalio Laguardia
was convicted (presumably as a principal by inducement)
and sentenced to life imprisonment. Raymundo Bartulay
was acquitted for insufficient evidence.[5]
This case involves Baltazar Beran only as Laguardia later
withdrew his appeal.
In finding Beran guilty and sentencing him to death, the trial
court made the following conclusion:
"x x x. It is undisputed that the crime committed by the
accused was robbery with homicide, and the killing of the
victim was done with the use of a gun. The heinous act
was preceded by taking of the wallets, the watches and the
money from the victim of the robbery. Whenever a
homicide has been committed as a consequence, or on the
occasion, of a robbery, all those who took part as principals
in the robbery will also be held guilty as principals of the
special complex crime of robbery with homicide (Pp v.
Darwin Veloso y Militante, alias Carlito Villareal, accused-
appellant, G.R. No. 32900, Feb. 25, 1982). In the case at
bar, evidence is strong and clear that Baltazar Beran did
not endeavor to prevent the homicide of the killing (sic) of
Mike Chua by Dante Bartulay x x x."[6]
The accused-appellant now faults the trial court for holding
inter alia that Beran should be held guilty of the homicide
committed on the occasion of the robbery notwithstanding
that he was not the one who actually killed Chua; that he
should have tried to prevent the killing of Chua but did not;
and that the aggravating circumstances of treachery,
evident premeditation, nighttime and use of a motor vehicle
should not have been appreciated against him.
The accused-appellant suggests that the case[7] cited by
the lower court in convicting him is not applicable because
the crime involved therein was robbery with homicide
committed by a band whereas the robbery in the instant
case was perpetrated only by two persons. The trial judge
did err in this respect. Nevertheless, as the Solicitor
General correctly points out, the offense, while not covered
by Article 296 of the Revised Penal Code, still comes under
Article 294(1) which may also impose the death penalty
"when by reason or on occasion of the robbery, the crime
of homicide shall have been committed" even if cuadrilla is
not present.
Under this provision, it is enough to show conspiracy
among the participants in the crime of robbery to render
each and every one of them liable for any homicide that
may be committed by reason or on the occasion of such
robbery. And in the instant case, evidence of such
conspiracy is not lacking. Indeed, it is not disputed that
Bartulay and Beran together went to the scene of the crime
and lay in wait for Chua's truck; that they together
pretended to borrow a screwdriver from the victim; that
while Bartulay pointed a gun at Chua and his companions,
Beran divested them of their cash and watches; that Beran
got the bag containing P100,000.00 on orders of Bartulay;
that also on the latter's orders, Beran locked up Chua's
three companions in the panel; that Beran drove the stolen
truck away from the scene of the crime while Bartulay
followed in the motorcycle; and that Beran later got
P4,500.00 as his share of the stolen money.
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it, whether they act through the physical
volition of one or all, proceeding severally or collectively. [8]
It is also a settled rule that conspiracies need not be
established by direct evidence of acts charged but may and
generally must be proved by a number of indefinite acts,
conditions, and circumstances which vary according to the
purpose accomplished. The very existence of a conspiracy
is generally a matter of inference deduced from certain acts
of the persons accused, done in pursuance of an apparent
criminal or unlawful purpose in common between
them. The existence of the agreement, or joint assent of
the minds, need not be proved directly.[9]
Confronted with the established fact of conspiracy to
commit the robbery, the accused-appellant cannot plead
that he should not be held responsible for the murder on
the ground that he did not conspire to commit it or that he
had no opportunity to prevent its commission.
"The rule is that where the conspiracy to commit robbery
was conclusively shown by the concurrent and coordinate
acts of the accused, and homicide was committed as a
consequence or on the occasion of the robbery, all the
accused are guilty of robo con homicidio whether or not
they actually participated in the killing."[10]
That rule was applied in People v. Puno,[11] where the
accused and confederate Tenarife, in pursuance of a
preconceived plan, boarded a jeep and held up its
passengers, with Tenarife killing one of them after divesting
him of his wallet and his watch. Puno himself robbed
another passenger but did not participate in the shooting of
the deceased victim. Nonetheless he was held guilty of
robbery with homicide as the killing was committed by
Tenarife in connection with the robbery which Puno and
Tenarife had conspired to commit.
"Generally, when robo con homicidio has been proven, all
those who had taken part in the robbery are guilty of the
complex crime unless it appears that they endeavored to
prevent the homicide (U.S. v. Macalalad, 9 Phil. 1;
Decisions of Supreme Court of Spain dated Feb. 23 and
April 30, 1972 and June 19, 1890; 3 Viada, Codigo Penal,
347, 354, 358)."[12]

"It may be observed that, although Puno did not actually
take part in the killing of Oyong by Tenarife, his presence in
the jeepney was a crucial factor that emboldened his
confederate in perpetrating that homicidal act with
impunity."[13]
In People v. Veloso,[14] this Court held:
"x x x. Well entrenched is the rule that whenever a
homicide has been committed as a consequence, or on the
occasion, of a robbery, all those who took part as principals
in the robbery will also be held guilty as principals of the
special complex crime of robbery with homicide, although
they did not actually take part in the homicide, unless it
clearly appears that they endeavored to prevent the
homicide."
That decision cited the earlier case of People v.
Mangulabnan,[15] where it was categorically declared:
"x x x in order to determine the existence of the crime of
robbery with homicide it is enough that a homicide would
result by reason or on the occasion of the robbery
(Decision of Supreme Court of Spain of Nov. 26, 1892, and
Jan. 7, 1878, quoted in 2 Hidalgo's Penal Code, p. 267,
and 259-260, respectively). This High Tribunal, speaking of
the accessory character of the circumstances leading to the
homicide, has also held that it is immaterial that the death
would supervene by mere accident (Decision of Sept. 9,
1886, Oct. 22, 1907, April 30, 1910 and July 14, 1917),
provided that the homicide be produced by reason or on
the occasion of robbery, inasmuch as it is only the result
obtained, without reference or distinction as to the
circumstances, causes, modes or persons intervening in
the commission of the crime, that has to be taken into
consideration (Decision of Jan. 12, 1889 — see Cuello
Calon's Codigo Penal, pp. 501-502; Italics supplied)."
It is futile therefore for the accused-appellant to argue that
he was inside the panel with the companions of Chua when
the latter was killed by Bartulay and could not have stopped
the shooting. The undisputed fact is that the killing was
committed on the occasion of the robbery which Beran and
Bartulay plotted and were carrying out together. In the
absence of clear evidence that he endeavored to prevent it,
Beran is as guilty of the homicide as Bartulay although it
was Bartulay who pulled the trigger.
Concerning the aggravating circumstances which the
accused-appellant insists should not have been taken
against him, the Court notes that no specific finding
regarding such circumstances was made by the trial judge,
who simply meted out the penalties without
explanation. The trial judge, notably, did not say why, after
finding both Beran and Laguardia guilty, the former should
be sentenced to death and the latter only to life
imprisonment. If any error has been committed with
respect to Laguardia's penalty - and the circumstances so
indicate - it is too late to correct it now as the same has
long since become final. By withdrawing his appeal,
Laguardia may have benefited from the trial judge's
carelessness.
The trial court also does not clearly impute to Beran any
aggravating circumstance and merely hints at nighttime and
use of motor vehicle almost in passing. This is another
censurable flaw in the decision. It is no wonder that the
Court itself is perplexed over the accused-appellant's
assignment of error that the trial court had taken the said
several aggravating circumstances against him.
In any event, it is clear that, as alleged in the amended
information, the crime committed by Beran was aggravated
by despoblado and justified the imposition on him of the
death penalty as prescribed by Article 294 of the Revised
Penal Code. The evidence shows that the accused lay in
wait for the truck being driven by Chua at an isolated
portion of Highway 36, choosing that particular spot where
they could commit the crime they were planning without
disturbance or discovery and with easy opportunity for
escape.[16] The use of motor vehicles is also appreciated
because the conspirators drove away from the scene of the
crime to facilitate their escape and also to prevent the other
passengers of the truck, whom they took with them, from
reporting the offense to the authorities.[17]
Nighttime is rejected, however, because it was not
especially sought, as Chua's trip schedule and not the
discretion of the culprits determined the time of its
commission. Evident premeditation is, of course, inherent
in the crime of robbery and was not proved in the
commission of the killing. As for treachery, there is no
evidence of its employment as none of the witnesses
actually saw the shooting of Chua, being all inside the
panel when they heard the fatal shots.
Miguel Chua was only 32 years old at the time he was
killed and left a wife and three children aged, respectively,
11, 10 and 8, the youngest a daughter. To provide for his
family, he was willing to work even at night, not unaware
perhaps, given the condition of the times, of the dangers
that lurked in the desolate routes he traveled, considering
especially the sizable amounts of money he often
carried. If he was nonetheless undeterred, it was probably
because, like the promising young man that he was, he had
a dream for the future. Tragically, that dream died with him
on the lonely stretch of road where greed lay in ambush
with a gun.
The indemnity for the death of Chua is increased to
P30,000.00. Funeral expenses amounted to
P16,500.00.[18] As the victim was earning at the time of his
death a monthly compensation of P2,500.00,[19] consisting
of salary and commission, or P30,000.00 annually, and
could have lived about 24 more years,[20] his total earnings
for the period would have amounted to P720,000.00. The
heirs are also entitled to this amount plus P10,000.00 moral
damages and P10,000.00 exemplary damages.[21]
WHEREFORE, the appealed decision is AFFIRMED as
MODIFIED but in view of the provisions of the new
Constitution, the death penalty is reduced to reclusion
perpetua. The accused-appellant shall also pay the civil
indemnity specified above, and costs.
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. ANGELO ZETA, ACCUSED-APPELLANT.
For review is the Decision dated 30 June 2006 of the Court
of Appeals in CA-G.R. CR-H.C. No. 02054,[1] affirming in
toto the Decision[2] dated 29 November 2002 of the Quezon
City Regional Trial Court (RTC), Branch 88, in Criminal
Case No. Q-95-63787, finding accused-appellant Angelo
Zeta and his wife, Petronilla Zeta (Petronilla), guilty of
murder.
The facts are as follows:
On 6 November 1995, an Information[3] was filed before the
RTC charging appellant and Petronilla of Murder, thus:
That on or about the 28th day of October 1995, in Quezon
City, Philippines, the said accused, conspiring together,
confederating with and mutually helping each other, with
intent to kill, did then and there, willfully, unlawfully and
feloniously with evident premeditation, treachery, assault,
attack and employ personal violence upon the person of
RAMON GARCIA y LOPEZ by then and there shooting the
latter with the use of a .45 cal. pistol hitting him on the
different parts of his body, thereby causing the instant and
immediate cause of his death, to the damage and prejudice
of the heirs of said RAMON GARCIA Y LOPEZ.
When arraigned on 20 December 1995, appellant and
Petronilla, assisted by their respective counsels de parte,
pleaded "Not Guilty" to the charge of murder.[4] Trial on the
merits thereafter ensued.
The prosecution presented as witnesses Aleine Mercado
(Aleine), Dr. Maria Cristina Freyra (Dr. Freyra), Police
Inspector Solomon Segundo (Inspector Segundo), Rey
Jude Naverra (Rey), Edwin Ronk (Edwin), Francisco Garcia
(Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and
SPO2 Wakab Magundacan (SPO2 Magundacan). Their
testimonies, taken together, bear the following:
On 28 October 1995, at around 12:00 midnight, Edwin, Rey
and a certain Melvin Castillo (Melvin) had a drinking spree
outside the house of Rey located at No. 30-B Tacio Street,
La Loma, Quezon City. At about 2:00 in the morning of the
same date, a car stopped in front of the three. Appellant
was driving the car while Petronilla was seated beside him.
Petronilla opened the car's window and asked Edwin if he
knows Ramon and the latter's address at No. 25-C General
Tinio Street, La Loma, Quezon City. Edwin replied that he
did not know Ramon or his address. Thereafter, appellant
and Petronilla left on board the car and proceeded to
General Tinio Street, La Loma, Quezon City.[5]
At about 2:15 in the morning of the same date, the car
boarded by appellant and Petronilla stopped in front of
Ramon's house at No. 25-C General Tinio Street, La Loma,
Quezon City. After parking nearby, appellant and Petronilla
alighted from the car and proceeded to Ramon's house.
Petronilla repeatedly called Ramon. Aleine (niece of
Cristina Mercado, Ramon's common-law wife) was
awakened by the repeated calls and opened the door.
Petronilla requested Aleine to call Ramon. Aleine told
Petronilla that she would wake up Ramon who was then
sleeping with Cristina at the second floor of the house.
Aleine invited appellant and Petronilla inside the house but
the two replied that they would just wait for Ramon outside.
Aleine proceeded to the second floor of the house and
knocked at the door of Ramon's room. Ramon woke up.
Subsequently, Aleine went downstairs and proceeded to
the dining table. While Ramon was walking down the stairs,
appellant suddenly entered the house and shot Ramon
several times on different parts of the body with a caliber
.45 Llama pistol. Upon seeing appellant shooting Ramon,
Aleine hid inside the restroom. When the gunshots ceased,
Aleine went out of the restroom and saw Ramon sprawled
and bloodied on the ground floor.[6]
Edwin, Rey and Melvin were still drinking when they heard
the gunshots. They rushed to the direction of Ramon's
house. When they were nearing Ramon's house, Petronilla
suddenly stepped out of the main door of Ramon's house
followed by appellant. Melvin uttered, "Mamamatay tao."
Petronilla merely looked at them and entered the car.
Appellant also proceeded inside the car and thereafter the
car sped away.[7]
Subsequently, Aleine went out of the house and called for
help. Edwin, Rey and Melvin approached her. They carried
Ramon and placed him inside a vehicle owned by a
neighbor. While they were on their way to the Chinese
General Hospital, Ramon told Aleine that the one who shot
him was "asawa ni Nellie na kapitbahay namin sa Las
Piñas." Ramon died due to gunshot wounds while being
operated on at the Chinese General Hospital. Thereafter,
the police arrived at the crime scene and recovered several
empty bullet shells and slugs.[8]

At about 10:55 the following morning, SPO2 Magundacan
received a report that a carnapped vehicle was parked
along Lakandula Street, P. Tuazon Blvd., Quezon City.
SPO2 Magundacan proceeded thereat and saw appellant
about to board a car armed with a gun visibly tucked in his
waist. SPO2 Magundacan approached appellant and asked
him for a license and/or registration papers of the gun but
appellant did not show any. SP02 Magundacan also
inquired from Petronilla, who was inside the car also armed
with a gun tucked in her waist, if she had a license but
Petronilla likewise failed to show any. Thus, SPO2
Magundacan brought appellant and Petronilla to Police
Precinct 8, Project 4, Quezon City, for investigation.
Subsequently, appellant and Petronilla, upon the request of
the La Loma police, were turned over to the police station
for investigation as regards the killing of Ramon. Appellant
and Petronilla were thereafter charged with murder.[9]
The prosecution also adduced documentary and object
evidence to buttress the testimonies of its witnesses, to wit:
(1) death certificate of Ramon;[10] (2) sworn statement of
Aleine;[11] (3) request for autopsy examination of Ramon's
body;[12] (4) medico-legal report issued and signed by Dr.
Freyra stating that Ramon died due to gunshot wounds;[13]
(5) anatomical sketch of a human body signed by Dr.
Freyra indicating the location of the gunshot wounds on
Ramon's body;[14] (6) physical science report stating that a
paraffin test was conducted on both hands of Ramon and
they were found negative for gunpowder nitrates; [15] (7)
handwritten sketch made by Edwin depicting the streets of
Tacio and General Tinio;[16] (8) request for ballistic
examination of the object evidence recovered from the
crime scene;[17] (9) ballistic report issued and signed by
Inspector Segundo stating that the bullet extracted from
Ramon's body and other bullets recovered from the crime
scene were similar to the bullets of the caliber .45 Llama
pistol seized from appellant;[18] (10) certification from the
Personnel Division of the Philippine Long Distance
Telephone Company (PLDT) affirming that Ramon was its
regular employee from 14 February 1981 up to 27 October
1995 and that he was receiving a monthly salary of
P13,687.00 plus other benefits;[19] (11) summary of
expenses and receipts for the wake of Ramon;[20] (12) joint
affidavit of SPO2 Magundacan and a certain PO2 Ronald
Zamora;[21] (13) photographs showing the spot where
appellant and Petronilla stood while waiting for Ramon, the
stairs where Ramon walked down shortly before he was
shot several times by appellant, the area inside Ramon's
house where appellant positioned himself while shooting at
Ramon, and the location where Ramon fell down after he
was shot several times by appellant;[22] (14) nine empty
shells and seven deformed slugs fired from a caliber .45
pistol which were recovered by SPO1 Villarin from the
crime scene;[23] (15) a deformed slug fired from a caliber
.45 pistol which was extracted from Ramon's body; (16)
test bullets fired from the caliber .45 Llama pistol seized
from appellant;[24] (17) the caliber .45 Llama pistol with
Serial Number C-27854 seized from appellant;[25] and (18)
a calling card recovered from Ramon with the print label
"Cristine Rent A Car," "Angelo D. Zeta" and with telephone
numbers and addresses.[26]
For its part, the defense presented the testimonies of
appellant, Petronilla, and Annabelle Vergara (Annabelle) to
refute the foregoing allegations. Their version of the
incident is as follows:
On 27 October 1995, at about 10:00 in the evening,
appellant, Petronilla and Annabelle (housemaid of the
couple) were in the couple's house at Cainta, Rizal. [27]
Later, appellant took Petronilla's caliber .38 pistol and went
to his brother's (Jose Zeta, Jr.) house in Marikina arriving
therein at around 12:00 midnight. Jose was out of the
house so appellant waited for him. At about 2:30 in the
morning of 28 October 1995, Jose arrived. Thereafter,
appellant demanded from Jose the return of his three
firearms, one of which is a caliber .45 pistol. Jose, however,
handed only the caliber .45 pistol to appellant. Appellant
berated Jose for refusing to return the two other firearms.
Irked, Jose drew a gun. Appellant also drew the caliber .45
pistol and shot Jose four times. Jose fell down on the
ground. Afterwards, appellant left the house, took Jose's
car which was parked near the house, and proceeded to
Police Precinct 8, Project 4, Quezon City, where he waited
for a certain Tony Tolentino whom he claims to be a
policeman assigned at the Southern Police District. At
about 9:00 in the morning of 28 October 1995, the
policeman on duty at Precinct 8 informed appellant that the
latter's car parked inside the precinct was a carnapped
vehicle. The policemen searched the car and found several
guns including the caliber .45 and the caliber .38. Appellant
was thereupon detained and charged with illegal
possession of firearms and carnapping.[28]
At about 10:00 in the morning of 28 October 1995,
Petronilla received a telephone call informing her that
appellant was at Police Precinct 8, Project 4, Quezon City.
She immediately proceeded thereat and presented
documents relative to her ownership and license of the
caliber .38 seized from appellant. Thereafter, she went
home at about 11:00 in the evening.[29]
On 2 November 1995, Petronilla visited appellant at
Precinct 8. During the visit, Aleine arrived at Precinct 8 and
pointed to appellant and Petronilla. Subsequently, appellant
and Petronilla were informed by the police that they were
suspects in the killing of Ramon. Thereafter, they were
charged with murder.[30]
After trial, the RTC rendered a Decision on 29 November
2002 convicting appellant and Petronilla of murder. It held
that appellant and Petronilla conspired in killing Ramon. It
also ruled that Ramon's killing was attended by the
aggravating circumstances of evident premeditation and
nocturnity. In conclusion, it imposed the death penalty on
appellant while Petronilla was merely sentenced to
reclusion perpetua "owing to her being a mother and her
lesser degree of participation in the killing of Ramon." The
fallo of the decision reads:
Accordingly, based on the evidence presented by the
prosecution and the defense and finding both accused
guilty beyond reasonable doubt of the crime of MURDER
attended by the aggravating circumstances of evident
premeditation and nocturnity without being offset by any
mitigating circumstances, the accused Angelo Zeta is
hereby sentenced to death by lethal injection. The wife and
co-accused Petronilla Zeta, although a co-conspirator in the
commission of the offense charged, is hereby sentenced to
RECLUSION PERPETUA owing to her being a mother and
her lesser degree of participation in the act of murder.
The accused Angelo Zeta and Petronilla Zeta are also
sentenced to indemnify in SOLIDUM the heirs of the victim
in the amount of P50,000.00 for the death of Ramon
Garcia; P146,000.00 for the hospital and burial expenses;
and P1,642,440.00 for the lost income of the deceased
reckoned at 10 years of productive life, plus costs.
The .45 caliber Llama pistol with Serial Number C-27854 is
confiscated in favor of the Government to be kept by the
Philippine National Police as mandated by law.[31]
On 9 December 2002, the RTC issued an Order forwarding
the records of the instant case to Us for automatic review
because of the death penalty imposed on appellant. [32]
On 24 December 2002, Petronilla filed a Notice of Appeal
with the RTC stating that she would appeal her conviction
to this Court.[33]
On 28 April 2004, Petronilla, through counsel, filed a Motion
to Withdraw Appeal before us[34] stating that:
After a thorough review of the available stenographic notes
obtained by the close relatives of the accused-appellant
from the Regional Trial Court, the undersigned counsel
found out that there are no testimonial and/or documentary
evidence presented before the lower Trial Court that could
sufficiently serve as justifiable basis to warrant the reversal
of the appealed decision rendered insofar as PETRONILLA
ZETA is concerned.
Moreover, the undersigned counsel sustained serious
physical injuries that render difficult to further handle the
appeal that will require lengthy preparation of appellant's
brief and other legal pleadings as may be required under
the Rules of Court.
Consequently, after discussion with accused-appellant
PETRONILLA ZETA, the undersigned counsel informed her
that he is now constrained to withdraw his appearance in
the above-entitled appealed case.
Upon being informed of the health predicament of the
undersigned counsel and after being enlightened about the
weakness of the appeal, accused-appellant PETRONILLA
ZETA willfully and voluntarily decided to WITHDRAW the
appeal and do hereby signify to the Honorable Court that
she is no longer interested in the further prosecution of her
appeal. She, likewise, has no objection to the withdrawal of
the appearance of Atty. Alfredo E. Anasco, as her counsel
in the above-entitled case.
WHEREFORE, it is respectfully prayed that the above-
entitled appeal be ordered withdrawn and the MOTION TO
WITHDRAW APPEAL be GRANTED, and the withdrawal of
appearance of counsel be given due course.
On 28 September 2004, we issued a Resolution granting
Petronilla's motion to withdraw appeal.[35]
On 22 November 2005, we issued a Resolution remanding
the instant case to the Court of Appeals for proper
disposition pursuant to our ruling in People v. Mateo.[36] On
30 June 2006, the Court of Appeals promulgated its
Decision affirming in toto the Decision of the RTC. Thus:
Thus, after finding that the trial court's conclusions are
supported by the evidence presented and in full accord with
existing law and jurisprudence, We find no reason to set it
aside.
WHEREFORE, based on the foregoing premises, the
appeal is hereby DISMISSED. The November 29, 2002
Decision of the Regional Trial Court of Quezon City, Branch
88 in Criminal Case No. Q-95-63787 is AFFIRMED.[37]
Appellant elevated the present case before us on the
following grounds:
I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING
THE ACCUSED-APPELLANT DESPITE THE FACT THAT
THE PROSECUTION WITNESSES DID NOT POSITIVELY
IDENTIFY HIM;
II. THE TRIAL COURT ERRED IN DISREGARDING THE
DEFENSE OF DENIAL AND ALIBI INTERPOSED BY THE
ACCUSED-APPELLANT;
III. THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE THE FACT THAT HIS
GUILT WAS UNDER A SHADOW OF DOUBT.[38]
Apropos the first issue, appellant claims that although
Edwin and Rey positively identified Petronilla as the one
who asked them about Ramon and his address shortly
before the incident occurred, the two, nevertheless, failed
to identify appellant as Petronilla's companion during the
said questioning. He also argues that Aleine's testimony
identifying him as the one who shot Ramon during the
incident is not morally certain because Aleine narrated that
she saw only the side portion of his face and the color of
the shirt he wore during the incident.[39]
It appears that Edwin and Rey did not actually see
appellant shoot Ramon during the incident. Nonetheless,
Aleine saw appellant shoot Ramon on that fateful night. Her
positive identification of appellant and direct account of the
shooting incident is clear, thus:
ATTY. A. OLIVETTI (DIRECT EXAMINATION)
Q. Aleine Mercado, are you the same Aleine Mercado
who is listed as one of the witnesses in this case?
WITNESS
A. Yes, sir.
Q. Do you know the accused in this case?
A. Yes, sir.
Q. If they are inside the courtroom, will you identify them?
A. Yes, sir.
Q. Will you please look around and point before the
Honorable Court the person of the accused in this
case?
A. Yes, sir. That man wearing yellow T-shirt and that lady
who is also wearing yellow shirt. (witness pointing to a
man who when asked of his name identified himself as
Angelo Zeta and to a lady beside Angelo Zeta who
when asked of her name identified herself as Petronilla
Zeta.)
xxx
Q. On October 28, 1995, at about 2:15 in the morning, do
you remember if there was an unusual incident that
happened?
A. Yes, sir.
Q. Will you please tell the Court briefly what that unusual
incident was?
A. Tito Ramon Garcia was shot, Sir.
Q. And who is this Tito Ramon Garcia that you are talking
about?
A. He is the live-in partner of my aunt Cristy.
Q. A while ago you mentioned that you have been living
with your auntie and Tito Ramon Garcia in Gen. Tinio,
La Loma, Quezon City. Will you please describe before
the Honorable Court the residence or your house at
that time where you were living with your auntie and
Tito Ramon Garcia?
A. It is a small house we were living in. It has a
mezzanine and it measures 4 x 3 meters, sir.
xxxx
Q. Do you know the person who shot your Tito Ramon
Garcia?
A. Yes, sir.
Q. Will you please tell the Honorable Court the name of
the person who shot Ramon Garcia?
A. Angelo Zeta.
Q. Where in particular did Mr. Angelo Zeta shot Mr.
Ramon Garcia?
A. Inside our house, sir.
Q. And how was he able to enter your house?
A. Our door then was opened, sir.
Q. Why was your door opened at that time?
A. I heard a woman calling for my Tito Ramon and so I
opened the door, sir.
Q. What time was this Madam Witness?
A. 2:15.
Q. 2:15 in the afternoon?
A. 2:15 in the morning, your honor.
xxxx
ATTY. A. OLIVETTI
Q. And who was that woman that you saw was outside
calling Mr. Ramon Garcia?
A. Petronilla Zeta, sir.
Q. When you opened the door and you saw this woman,
what happened between you and her?
A. She asked me if a certain Ramon Garcia was there.
Q. What was your reply?
A. I told her he was sleeping. He was upstairs.
Q. And what did the woman do after that if she did
anything?
A. She told me to call for my Tito Ramon.
Q. What did you do after she asked you to call Mr. Ramon
Garcia?
A. I told her to enter before I call my Tito Ramon but they
answered that they will remain outside.
Q. And so after they refused to enter the house, what did
you do as they were asking you to call Mr. Ramon
Garcia?
A. I told them to wait and then I went upstairs.
Q. What did you do upstairs?
A. I knocked at the door to wake up my Tito Ramon.
xxxx
Q. And was your Tito Ramon able to wake up?
A. When I felt that they were awakened, I went
downstairs.
Q. Where in particular downstairs did you go?
A. Near our dining table, sir.
Q. How long was it from the door? How far was it from the
door?
A. Two-arms-length, sir, or "dalawang dipa," sir.
Q. And what happened as you stood by downstairs?
A. While Tito Ramon was going down, sir, Angelo Zeta
suddenly entered our house and immediately shot him
several times.
Q. How far were you from Mr. Angelo Zeta when you saw
him?
I withdraw that.
How far were you from Mr. Angelo Zeta when you saw
him suddenly entered the house and shot Mr. Ramon
Garcia?
A. Less than one meter, sir.
x x x x.
Q. Where was Petronilla Zeta at that time that the
shooting occurred?
A. She was outside the door, sir.
xxxx
Q. What did you do as you were standing and while Mr.
Angelo Zeta was shooting Mr. Ramon Garcia inside
the house?
A. When I heard two shots, I run to the C.R. or comfort
room.
Q. As you were in the C.R., what happened?
A. I heard successive shots, sir.
Q. How long did you stay in the C.R.?
A. Until the shots had stopped Until the firing had
stopped, sir.
Q. And you sensed that the firing had stopped, what did
you do?
A. I slowly opened the door to take a look if Angelo Zeta
and companion were still there.
Q. And what did you see?
A. They were no longer there, sir.
Q. And you saw that they have guns, what did you do?
A. I went out of the C.R. and I returned to the place where
I was before where I was previously standing.
Q. And what did you see when you reached that portion
that you are talking about?
A. I saw Tito Ramon lying frustrate and blooded.
Q And what did you do when you see (sic) him on that
particular condition?
A. I peeped at the door to find out if Angelo Zeta and
companion were still there.
Q. And what did you see?
A. They were no longer there.
Q. And what did you do after that?
A. I knocked at the door of the owner of the house to ask
for help.[40]
It should be emphasized that the testimony of a single
witness, if positive and credible, as in the case of Aleine, is
sufficient to support a conviction even in the charge of
murder.[41]
Appellant's argument that Aleine's testimony identifying him
as the one who shot Ramon is not morally certain because
she saw only the side portion of his face and the color of
the shirt he wore during the incident, deserves scant
consideration. A person can still be properly identified and
recognized even by merely looking at the side portion of his
face. To be sure, Aleine recognized and identified appellant
in the police line-up and during trial as the one who shot
Ramon. Experience dictates that precisely because of the
unusual acts of violence committed right before their eyes,
witnesses can remember with a high degree of reliability
the identity of criminals at any given time.[42] A startling or
frightful experience creates an indelible impression in the
mind that can be recalled vividly.[43] It bears stressing that
Aleine was less than one meter away from appellant when
the latter shot Ramon. The crime scene was also well-
lighted during the incident because there was a fluorescent
bulb inside the house.[44]
The testimonies of Aleine and of the other prosecution
witnesses are in harmony with the documentary and object
evidence submitted by the prosecution. The RTC and the
Court of Appeals found their testimonies to be credible and
trustworthy. The rule is that the findings of the trial court, its
calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded
respect if not conclusive effect. This is more true if such
findings were affirmed by the appellate court. When the trial
court's findings have been affirmed by the appellate court,
said findings are generally binding upon this Court. [45]
Anent the second and third issues, appellant contends that
his conviction is unwarranted based on the following
reasons: (1) the prosecution failed to establish any possible
motive for the appellant to kill Ramon; (2) there is an
inconsistency in the testimony of the prosecution witnesses
regarding the type and color of the car boarded by
appellant and Petronilla before and after the incident.
Edwin testified that appellant and Petronilla left the scene
on board a gold-colored Mitsubishi Lancer; while SPO2
Magundacan narrated that he apprehended appellant while
the latter was about to board a blue Toyota Corona
Macho; (3) Jose could have been the one who fatally shot
Ramon and appellant could have been mistakenly
identified as Jose because they have the same physical
appearance and facial features; (4) if appellant was indeed
the one who shot Ramon, he could have immediately
confessed such crime to the police just like what he did
after killing Jose; and (5) there is no proof that appellant is
the husband of a certain "Mely." Ramon's dying declaration
to Aleine was that it was the husband of "Mely," his former
neighbor in Las Pinas, who shot him. Further, Petronilla's
nickname could either be "Nellie" or "Nelia" and not "Mely"
as referred to by Ramon.[46]
Lack of motive does not preclude conviction when the
crime and the participation of the accused in the crime are
definitely shown, particularly when we consider that it is a
matter of judicial knowledge that persons have killed or
committed serious offenses for no reason at all. Motive
gains importance only when the identity of the culprit is
doubtful.[47] Where a reliable eyewitness has fully and
satisfactorily identified the accused as the perpetrator of the
felony, motive becomes immaterial to the successful
prosecution of a criminal case.[48] It is obvious from the
records that Aleine positively and categorically identified
appellant as the person who shot Ramon during the
incident. Her testimony was corroborated on relevant points
by Edwin and Rey.
There is no inconsistency in the testimonies of the
prosecution witnesses regarding the car boarded by
appellant and Petronilla in leaving the crime scene and,
subsequently, at the time they were apprehended. Edwin
testified that appellant and Petronilla left the scene after the
incident which was between 2:15 and 2:30 in the morning
on board a gold-colored Mitsubishi Lancer.[49] SPO2
Magundacan told the court that he apprehended appellant
at around 10:55 in the morning of the same day while the
latter was about to board a blue Toyota Corona Macho.[50]
In his affidavit attached to the records, Jan Ryan Zeta, son
of Jose, narrated that Jose was shot by appellant at about
4:00 in the morning of the same date.[51] Appellant admitted
that after shooting Jose on the early morning of 28 October
1995, he took the latter's Toyota Corona Macho and left. [52]
Thus, it is probable that after leaving the crime scene at La
Loma on board a gold Mitsubishi Lancer at about 2:15 or
2:30 in the morning, appellant and Petronilla then
proceeded to Marikina and took Jose's blue Toyota Corona
Macho. This explains why the car of appellant and
Petronilla used in leaving the crime scene was different
from that which they used at the time of their apprehension.
Appellant's theory of alibi that it was physically impossible
for him to be at the crime scene in La Loma when the
incident occurred because he was in Marikina, and that
Jose could have been the one who fatally shot Ramon is
flimsy and cannot prevail over the positive and credible
testimony of Aleine. Appellant was mistakenly identified as
Jose because they have the same physical appearance
and facial feature. In addition, the empty bullet shells and
slugs recovered from the crime scene were found to have
the same characteristics as those of the bullets of
appellant's caliber .45 Llama pistol. Further, there is no
testimonial or documentary proof showing that it was Jose
who shot Ramon. Appellant himself testified that he met
Jose in the latter's house in Marikina at about 2:30 in the
morning of 28 October 1995. On the other hand, the
shooting of Ramon at La Loma, Quezon City occurred at
about 2:15 in the morning of the same date. Hence, it was
impossible for Jose to be at La Loma, Quezon City and to
have shot Ramon at such time and place.
It is insignificant whether Petronilla was referred to by
Ramon in his dying declaration as "Mely" or "Nellie." As
correctly observed by the Court of Appeals, Ramon
sustained twelve gunshot wounds and was catching his
breath when he uttered the name or nickname of Petronilla
as the wife of appellant. Thus, understandably, he could
not have spoken clearly in such a difficult situation.
Moreover, Ramon referred to "Nellie" or "Mely" as his
former neighbor in Las Piñas. Likewise, appellant and
Petronilla admitted that Ramon was their former neighbor in
Las Piñas.[53]
We now go to the propriety of the penalty imposed and the
damages awarded by the RTC which the Court of Appeals
affirmed.
The RTC held that the killing of Ramon qualifies as murder
because of the presence of the aggravating circumstances
of evident premeditation and nighttime or nocturnity. It is a
rule of evidence that aggravating circumstances must be
proven as clearly as the crime itself.[54]
Evident premeditation qualifies the killing of a person to
murder if the following elements are present: (1) the time
when the offender determined to commit the crime; (2) an
act manifestly indicating that the culprit clung to his resolve;
and (3) a sufficient interval of time between the
determination or conception and the execution of the crime
to allow him to reflect upon the consequence of his act and
to allow his conscience to overcome the resolution of his
will if he desired to hearken to its warning.[55]
The first two elements of evident premeditation are present
in the case at bar.
The time manifesting Petronilla and appellant's
determination to kill Ramon was when they, at about 2:00
in the morning of 28 October 1995, repeatedly asked Edwin
about Ramon and the latter's address, and when they
subsequently proceeded to the house of Ramon.
The fact that appellant and Petronilla waited for Ramon,
and appellant's subsequent act of shooting him at around
2:15-2:30 in the morning of 28 October 1995 indicate that
they had clung to their determination to kill Ramon.
The third element of evident premeditation, however, is
lacking in the instant case. The span of thirty minutes or
half an hour from the time appellant and Petronilla showed
their determination to kill Ramon (2:00 in the morning of 28
October 1995) up to the time appellant shot to death
Ramon (2:15-2:30 in the morning of 28 October 1995)
could not have afforded them full opportunity for meditation
and reflection on the consequences of the crime they
committed.[56] We have held that the lapse of thirty minutes
between the determination to commit a crime and the
execution thereof is insufficient for a full meditation on the
consequences of the act.[57]
The essence of premeditation is that the execution of the
criminal act must be preceded by cool thought and
reflection on the resolution to carry out the criminal intent
during a space of time sufficient to arrive at a calm
judgment. To justify the inference of deliberate
premeditation, there must be a period sufficient in a judicial
sense to afford full opportunity for meditation and reflection
and to allow the conscience of the actor to overcome the
resolution of his will if he desires to hearken to its warning.
Where no sufficient lapse of time is appreciable from the
determination to commit the crime until its execution,
evident premeditation cannot be appreciated. [58]
Nonetheless, we find that treachery attended the killing of
Ramon.
There is treachery when the offender commits any of the
crimes against a person, employing means, methods or
forms in the execution thereof which tend directly and
specially to ensure its execution, without risk to himself
arising from any defensive or retaliatory act which the
victim might make.[59] The essence of treachery is a
deliberate and sudden attack that renders the victim unable
and unprepared to defend himself by reason of the
suddenness and severity of the attack. Two essential
elements are required in order that treachery can be
appreciated: (1) the employment of means, methods or
manner of execution that would ensure the offender's
safety from any retaliatory act on the part of the offended
party who has, thus, no opportunity for self-defense or
retaliation; and (2) a deliberate or conscious choice of
means, methods or manner of execution. Further, this
aggravating circumstance must be alleged in the
information and duly proven.[60]
In the case at bar, treachery was alleged in the information
and all its elements were duly established by the
prosecution.
It has been established that Ramon, still groggy after
having been awakened by Aleine, was walking down the
stairs when appellant suddenly shot him. The suddenness
and unexpectedness of the appellant's attack rendered
Ramon defenseless and without means of escape.
Appellant admitted that he was a member of a gun club and
was proficient in using his caliber .45 Llama pistol. [61] In
fact, he was good at shooting a moving target during his
practice.[62] He also stated that he owned five firearms.[63]
Evidently, appellant took advantage of his experience and
skill in practice shooting and in guns to exact the death of
Ramon. There is no doubt that appellant's use of a caliber
.45 Llama pistol, as well as his act of positioning himself in
a shooting stance and of shooting Ramon several times on
the chest area and on other parts of body, were obviously
adopted by him to prevent Ramon from retaliating or
escaping. Considering that Ramon was unarmed, groggy
from sleep, and was casually walking down narrow stairs
unmindful of the danger that lurked behind, there was
absolutely no way for him to defend himself or escape.
As regards the appreciation by the RTC of the aggravating
circumstance of nocturnity, it should be underscored that
nocturnity or nighttime is, by and of itself, not an
aggravating circumstance. It becomes so only when (1) it
was especially sought by the offender; or (2) it was taken
advantage of by him; or (3) it facilitated the commission of
the crime by ensuring the offender's immunity from
capture.[64]
Although the crime in the instant case was committed
between 2:15 and 2:30 in the morning, no evidence was
presented showing that nighttime was especially and
purposely sought by appellant to facilitate the commission
of the crime, or that it was availed of for the purpose of
impunity. Moreover, the crime scene was well-lighted by a
fluorescent bulb. We have held that nocturnity is not
aggravating where the place of the commission of the crime
was well-illuminated.[65]
Even if we were to assume that nocturnity was present in
the case at bar, this cannot still be appreciated in view of
the presence of treachery that attended the killing of
Ramon. Nighttime cannot be considered an aggravating
circumstance separate from treachery, since nighttime is
absorbed in treachery.[66]
Accordingly, the death penalty imposed by the RTC on
appellant should be modified. Article 248 of the Revised
Penal Code states that murder is punishable by reclusion
perpetua to death. Article 63 of the same Code provides
that if the penalty is composed of two indivisible penalties,
as in the instant case, and there are no aggravating or
mitigating circumstances, the lesser penalty shall be
applied. Since there is no mitigating or aggravating
circumstance in the instant case, and treachery cannot be
considered as an aggravating circumstance as it was
already considered as a qualifying circumstance, the lesser
penalty of reclusion perpetua should be imposed.[67]
The award of damages and its corresponding amount
rendered by the RTC should also be modified in line with
current jurisprudence.
In addition to the civil indemnity of P50,000.00 for Ramon's
death, the award of moral damages amounting to
P50,000.00 is also proper since it is mandatory in murder
cases, without need of proof and allegation other than the
death of the victim.[68]
The heirs of Ramon are also entitled to exemplary
damages in the amount of P25,000.00, since the qualifying
circumstance of treachery was firmly established.[69]
The amount of actual damages should be reduced from
P146,000.00 to P115,473.00 per computation of the official
receipts attached to the records.[70]
WHEREFORE, after due deliberation, the Decision of the
Court of Appeals dated 30 June 2006 in CA-G.R. CR-H.C.
No. 02054 is hereby AFFIRMED with the following
MODIFICATIONS: (1) the penalty of death imposed on
appellant is lowered to reclusion perpetua; (2) appellant is
ordered to pay the heirs of Ramon Garcia the amounts of
P50,000.00 as moral damages and P25,000.00 as
exemplary damages; (3) the award of actual damages is
reduced to P115,473.00; and (4) the indemnity for
Ramon's loss of earning capacity is increased to
P2,354,163.99. The award of civil indemnity in the amount
of P50,000.00 is maintained.
Appellant's caliber .45 Llama pistol with Serial Number C-
27854 is hereby confiscated in favor of the Government.
ARTICLE 19. ACCESSORIES
LITO VINO, PETITIONER, VS. THE PEOPLE OF THE
PHILIPPINES AND THE COURT OF APPEALS,
RESPONDENTS.
The issue posed in the motion for reconsideration filed by
petitioner of the resolution of this Court dated January 18,
1989 denying the herein petition is whether or not a finding
of guilt as an accessory to murder can stand in the light of
the acquittal of the alleged principal in a separate
proceeding.
At about 7:00 o'clock in the evening of March 21, 1985,
Roberto Tejada left their house at Burgos Street,
Poblacion, Balingao, Pangasinan to go to the house of
Isidro Salazar to watch television. At around 11:00 P. M.,
while Ernesto, the father of Roberto, was resting, he heard
two gunshots. Thereafter, he heard Roberto cry out in a
loud voice saying that he had been shot. He saw Roberto
ten (10) meters away so he switched on the lights of their
house. Aside from Ernesto and his wife, his children
Ermalyn and Julius were also in the house. They went
down to meet Roberto who was crying and they called for
help from the neighbors. The neighbors responded by
turning on their lights and the street lights and coming down
from their houses. After meeting Roberto, Ernesto and
Julius saw Lito Vino and Jessie Salazar riding a bicycle
coming from the south. Vino was the one driving the bicycle
while Salazar was carrying an armalite. Upon reaching
Ernesto's house, they stopped to watch Roberto. Salazar
pointed his armalite at Ernesto and his companions.
Thereafter, the two left.
Roberto was brought to the Sacred Heart Hospital of
Urdaneta. PC/Col. Bernardo Cacananta took his ante-
mortem statement. In the said statement which the victim
signed with his own blood, Jessie Salazar was identified as
his assailant.
The autopsy report of his body shows the following -
"Gunshot wound
POE Sub Scapular-5-6- ICA. Pal
1 & 2 cm. diameter left.
Slug found sub cutaneously,
2nd ICS Mid Clavicular line left.
CAUSE OF DEATH
Tension Hemathorax”[1]
Lito Vino and Sgt. Jesus Salazar were charged with murder
in a complaint filed by PC Sgt. Ernesto N. Ordoño in the
Municipal Trial Court of Balungao, Pangasinan. However,
on March 22, 1985, the municipal court indorsed the case
of Salazar to the Judge Advocate General's Office (JAGO)
inasmuch as he was a member of the military, while the
case against Vino was given due course by the issuance of
a warrant for his arrest. Ultimately, the case was indorsed
to the fiscal's office who then filed an information charging
Vino of the crime of murder in the Regional Trial Court of
Rosales, Pangasinan.
Upon arraignment, the accused Vino entered a plea of not
guilty. Trial then commenced with the presentation of
evidence for the prosecution. Instead of presenting
evidence in his own behalf, the accused filed a motion to
dismiss for insufficiency of evidence to which the
prosecutor filed an answer. On January 21, 1986,[2] a reversible error in its questioned Judgment. Hence, the
decision was rendered by the trial court finding Vino guilty
as an accessory to the crime of murder and imposing on
him the indeterminate penalty of imprisonment of 4 years
and 2 months of prision correccional as minimum to 8 years
of prision mayor as maximum. He was also ordered to
indemnify the heirs of the victim in the sum of P10,000.00
being a mere accessory to the crime and to pay the costs.
The motion for reconsideration filed by the accused having
been denied, he interposed an appeal to the Court of
Appeals. In due course, a Decision was rendered affirming
the judgment of the lower court.[3]
Hence, the herein petition for review wherein the following
grounds are invoked:
1. "THAT AN ACCUSED CAN NOT BE CONVICTED
AS AN ACCESSORY OF THE CRIME OF MURDER FOR
HAVING AIDED IN THE ESCAPE OF THE PRINCIPAL IF
SAID ACCUSED IS BEING CHARGED SOLELY IN THE
INFORMATION AS PRINCIPAL FOR THE SIMPLE
REASON THAT THE CRIME PROVED IS NOT INCLUDED
IN THE CRIME CHARGED.
2. THAT "AIDING THE ESCAPE OF THE
PRINCIPAL" TO BE CONSIDERED SUFFICIENT IN LAW
TO CONVICT AN ACCUSED UNDER ARTICLE 19,
PARAGRAPH OF THE REVISED PENAL CODE MUST BE
DONE IN SUCH A WAY AS TO DECEIVE THE
VIGILANCE OF THE LAW ENFORCEMENT AGENCIES
OF THE STATE AND THAT THE "ESCAPE" MUST BE
ACTUAL;
3. THE CONVICTION OF AN ACCESSORY
PENDING THE TRIAL OF THE PRINCIPAL VIOLATES
PROCEDURAL ORDERLINESS."[4]
During the pendency of the appeal in the Court of Appeals,
the case against Salazar in the JAGO was remanded to the
civil court as he was discharged from the military service.
He was later charged with murder in the same Regional
Trial Court of Rosales, Pangasinan in Criminal Case No.
2027-A. In a supplemental pleading dated November 14,
1988, petitioner informed this Court that Jessie Salazar was
acquitted by the trial court in a decision that was rendered
on August 29, 1988.
The respondents were required to comment on the
petition. The comment was submitted by the Solicitor
General in behalf of respondents. On January 18, 1989, the
Court resolved to deny the petition for failure of petitioner to
sufficiently show that respondent court had committed any
present motion for reconsideration to which the
respondents were again required to comment. The required
comment having been submitted, the motion is now due for
resolution.
The first issue that arises is that inasmuch as the petitioner
was charged in the information as a principal for the crime
of murder, can he thereafter be convicted as an accessory?
The answer is in the affirmative.
Petitioner was charged as a principal in the commission of
the crime of murder. Under Article 16 of the Revised Penal
Code, the two other categories of the persons responsible
for the commission of the same offense are the accomplice
and the accessory. There is no doubt that the crime of
murder had been committed and that the evidence tended
to show that Jessie Salazar was the assailant. That the
petitioner was present during its commission or must have
known its commission is the only logical conclusion
considering that immediately thereafter, he was seen
driving a bicycle with Salazar holding an armalite, and they
were together when they left shortly thereafter. At least two
witnesses, Ernesto and Julius Tejada, attested to these
facts. It is thus clear that petitioner actively assisted Salazar
in his escape. Petitioner's liability is that of an accessory.
This is not a case of a variance between the offense
charged and the offense proved or established by the
evidence, and the offense as charged is included in or
necessarily includes the offense proved, in which case the
defendant shall be convicted of the offense proved included
in that which is charged, or of the offense charged included
in that which is proved.[5]
In the same light, this is not an instance where after trial
has begun, it appears that there was a mistake in charging
the proper offense, and the defendant cannot be convicted
of the offense charged, or of any other offense necessarily
included therein, in which case the defendant must not be
discharged if there appears to be a good cause to detain
him in custody, so that he can be charged and made to
answer for the proper offense.[6]
In this case, the correct offense of murder was charged in
the information. The commission of the said crime was
established by the evidence. There is no variance as to the
offense committed. The variance is in the participation or
complicity of the petitioner. While the petitioner was being
held responsible as a principal in the information, the
evidence adduced, however, showed that his participation
is merely that of an accessory. The greater responsibility,
necessarily includes the lesser. An accused can be validly
convicted as an accomplice or accessory under an
information charging him as a principal.
At the onset, the prosecution should have charged the
petitioner as an accessory right then and there. The degree
of responsibility of petitioner was apparent from the
evidence. At any rate, this lapse did not violate the
substantial rights of petitioner.
The next issue that must be resolved is whether or not the
trial of an accessory can proceed without awaiting the
result of the separate charge against the principal. The
answer is also in the affirmative. The corresponding
responsibilities of the principal, accomplice and accessory
are distinct from each other. As long as the commission of
the offense can be duly established in evidence the
determination of the liability of the accomplice or accessory
can proceed independently of that of the principal.
The third question is this - considering that the alleged
principal in this case was acquitted can the conviction of
the petitioner as an accessory be maintained?
In United States vs. Villaluz and Palermo,[7] a case
involving the crime of theft, this Court ruled that
notwithstanding the acquittal of the principal due to the
exempting circumstance of minority or insanity (Article 12,
Revised Penal Code), the accessory may nevertheless be
convicted if the crime was in fact established.
Corollary to this is United States vs. Mendoza,[8] where this
Court held in an arson case that the acquittal of the
principal must likewise result in the acquittal of the
accessory where it was shown that no crime was
committed inasmuch as the fire was the result of an
accident. Hence, there was no basis for the conviction of
the accessory.
In the present case, the commission of the crime of murder
and the responsibility of the petitioner as an accessory was
established. By the same token there is no doubt that the
commission of the same offense had been proven in the
separate case against Salazar who was charged as
principal. However, he was acquitted on the ground of
reasonable doubt by the same judge who convicted Vino
as an accessory. The trial court held that the identity of the
assailant was not clearly established. It observed that only
Julius Tejada identified Salazar carrying a rifle while riding
on the bicycle driven by Vino, which testimony is
uncorroborated, and that two other witnesses, Ernesto
Tejada and Renato Parvian, who were listed in the
information, who can corroborate the testimony of Julius
Tejada, were not presented by the prosecution.
The trial court also did not give due credit to the dying
declaration of the victim pinpointing Salazar as his assailant
on the ground that it was not shown the victim revealed the
identity of Salazar to his father and brother who came to his
aid immediately after the shooting. The court a quo also
deplored the failure of the prosecution and law enforcement
agencies to subject to ballistic examinations the bullet slug
recovered from the body of the victim and the two empty
armalite bullet empty shells recovered at the crime scene
and to compare it with samples taken from the service rifle
of Salazar. Thus, the trial court made the following
observation:
"There appears to be a miscarriage of justice in this case
due to the ineptitude of the law enforcement agencies to
gather material and important evidence and the seeming
lack of concern of the public prosecutor to direct the
production of such evidence for the successful prosecution
of the case."[9]
Hence, in said case, the acquittal of the accused Salazar is
predicated on the failure of the prosecution to adduce the
quantum of evidence required to generate a conviction as
he was not positively identified as the person who was
seen holding a rifle escaping aboard the bicycle of Vino.
A similar situation may be cited. The accessory was seen
driving a bicycle with an unidentified person as passenger
holding a carbine fleeing from the scene of the crime
immediately after the commission of the crime of murder.
The commission of the crime and the participation of the
principal or assailant, although not identified, was
established. In such case, the Court holds that the
accessory can be prosecuted and held liable independently
of the assailant.
We may visualize another situation as when the principal
died or escaped before he could be tried and sentenced.
Should the accessory be acquitted thereby even if the
commission of the offense and the responsibility of the
accused as an accessory was duly proven? The answer is
no, he should be held criminally liable as an accessory.
Although in this case involving Vino the evidence tended to
show that the assailant was Salazar, as two witnesses saw
him with a rifle aboard the bicycle driven by Vino, in the
separate trial of the case of Salazar, as above discussed,
he was acquitted as the trial court was not persuaded that
he was positively identified to be the man with the gun
riding on the bicycle driven by Vino. In the trial of the case
against Vino, wherein he did not even adduce evidence in
his defense, his liability as such an accessory was
established beyond reasonable doubt in that he assisted in
the escape of the assailant from the scene of the crime.
The identity of the assailant is of no material significance
for the purpose of the prosecution the accessory. Even if
the assailant can not be identified the responsibility of Vino
as an accessory is indubitable.
WHEREFORE, the motion for reconsideration is denied
and this denial is FINAL.
G.R. No. 116736, July 24, 1997
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. BENJAMIN ORTEGA, JR. Y CONJE, MANUEL
GARCIA Y RIVERA AND JOHN DOE, ACCUSED,
BENJAMIN ORTEGA, JR. Y CONJE AND MANUEL
GARCIA Y RIVERA, ACCUSED-APPELLANTS.
A person who commits a felony is liable for the direct,
natural and logical consequences of his wrongful act even
where the resulting crime is more serious than that
intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body
of the victim can be held liable as a principal, not simply as
an accessory, where it is proven that the said victim was
actually alive but subsequently died as a direct result of
such concealment and burial. Nonetheless, in the present
case, Appellant Garcia can not be held liable as a principal
because the prosecution failed to allege such death
through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his
relationship with the principal killer, Appellant Ortega, who
is his brother-in-law.
Statement of the Case
This case springs from the joint appeal interposed by
Appellants Benjamin Ortega, Jr. and Manuel Garcia from
the Decision,[1] dated February 9, 1994 written by Judge
Adriano R. Osorio,[2] finding them guilty of murder.
Appellants were charged by State Prosecutor Bernardo S.
Razon in an Information[3] dated October 19, 1992, as
follows:
“That on or about October 17, 1992 in Valenzuela, Metro
Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring
together and mutually helping one another, without any
justifiable cause, with treachery and evident premeditation
and with abuse of superior strenght (sic) and with
deliberate intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab
repeatedly with a pointed weapon on the different parts of
the body one ANDRE MAR MASANGKAY y ABLOLA,
thereby inflicting upon the latter serious physical injuries
which directly caused his death.”
During arraignment, Appellants Ortega and Garcia,
assisted by counsel de oficio,[4] pleaded not guilty to the
charge.[5] Accused “John Doe” was then at large.[6] After
trial in due course, the court a quo promulgated the
questioned Decision. The dispositive portion reads: [7]
“WHEREFORE, finding accused Benjamin Ortega, Jr. y
Conje and Manuel Garcia y Rivera [g]uilty beyond
reasonable doubt of the crime charged, the Court hereby
sentenced (sic) them to suffer the penalty of RECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the
sum of P35,000.00 for funeral expenses of deceased
Andre Mar Masangkay and death indemnity of
P50,000.00.”
The Notice of Appeal, dated March 9, 1994, was thus filed
by Atty. Evaristo P. Velicaria[8] who took over from the
Public Attorney’s Office as counsel for the accused.
The Facts
Evidence for the Prosecution
The trial court summarized the testimonies of the
prosecution witnesses as follows:[9]
“Diosdado Quitlong substantially testified that on October
15, 1992 at about 5:30 in the afternoon, he, the victim
Andre Mar Masangkay, Ariel Caranto, Romeo Ortega,
Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at
Daangbakal, Dalandanan, Valenzuela, Metro Manila. That
while they were drinking, accused Benjamin Ortega, Jr. and
Manuel Garcia who were [already] drunk arrived and joined
them. That victim Andre Mar Masangkay answered the call
of nature and went to the back portion of the house. That
accused Benjamin Ortega, Jr. followed him and later they
[referring to the participants in the drinking session] heard
the victim Andre Mar shouted, ‘Don’t, help me!’ (Huwag,
tulungan ninyo ako!) That he and Ariel Caranto ran towards
the back portion of the house and [they] saw accused
Benjamin Ortega, Jr., on top of Andre Mar Masangkay who
was lying down in a canal with his face up and stabbing the
latter with a long bladed weapon. That Ariel Caranto ran
and fetched Benjamin Ortega, Sr., the father of accused
Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in
the place where they were having the drinking session [for
the latter] to pacify his brother Benjamin, Jr. That Romeo
Ortega went to the place of the stabbing and together with
Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar
Masangkay from the canal and brought Andre Mar to the
well and dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia then
dropped stones measuring 11 to 12 inches high, 2 feet in
length and 11 to 12 inches in weight to the body of Andre
Mar Masangkay inside the well. That Romeo Ortega
warned him [Quitlong] not to tell anybody of what he saw.
That he answered in the affirmative and he was allowed to
go home. That his house is about 200 meters from Romeo
Ortega’s house. That upon reaching home, his conscience
bothered him and he told his mother what he witnessed.
That he went to the residence of Col. Leonardo Orig and
reported the matter. That Col. Orig accompanied him to the
Valenzuela Police Station and some police officers went
with them to the crime scene. That accused Benjamin
Ortega, Jr. and Manuel Garcia were apprehended and
were brought to the police station.
On cross-examination, he said that he did not talk to the
lawyer before he was presented as witness in this case.
That he narrated the incident to his mother on the night he
witnessed the killing on October 15, 1992. That on October
15, 1992 at 5:30 in the afternoon when he arrived, victim
Andre Mar Masangkay, Romeo Ortega, Serafin and one
Boyet were already having [a] drinking spree and he joined
them. That accused Benjamin Ortega, Jr. and Manuel
Garcia were not yet in the place. That the stabbing
happened between 12:00 midnight and 12:30 a.m. That
they drank gin with finger foods such as pork and shell fish.
That he met the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr. and Manuel
Garcia joined them at about 11:00 p.m. That there was no
altercation between Benjamin Ortega, Jr. and Manuel
Garcia in one hand and Andre Mar Masangkay, during the
drinking session. That at about 12:30 a.m. Andre Mar
Masangkay answered the call of nature and went to the
back portion of the house. That he cannot see Andre Mar
Masangkay from the place they were having the drinking
session. That he did not see what happened to Andre Mar
Masangkay. That he only heard Masangkay asking for
help. That accused Manuel Garcia was still in the drinking
session when he heard Masangkay was asking for help.
That Benjamin Ortega, Jr. and Manuel Garcia are his
friends and neighbors. That when he heard Andre Mar
Masangkay was asking for help, he and Ariel Caranto ran
to the back portion of the house and saw Benjamin Ortega,
Jr. on top of Andre Mar Masangkay and stabbing the latter.
That Andre Mar Masangkay was lying down with his back
in the canal and Benjamin Ortega, Jr. on top stabbing the
former. That he did not see any injuries on Benjamin
Ortega, Jr. That he called Romeo Ortega to pacify his
brother Benjamin, Jr. That he did not do anything to
separate Benjamin Ortega, Jr. and Masangkay. That he
knows that Andre Mar Masangkay was courting Raquel
Ortega. That Raquel Ortega asked permission from Andre
Mar Masangkay when she left between 8:00 and 9:00 p.m.
That there was no trouble that occurred during the drinking
session.
PNP Superintendent Leonardo Orig substantially testified
that Diosdado Quitlong is his neighbor for about 9 years.
That on October 16, 1992 at 5:00 in the morning, he was
summoned by Diosdado Quitlong and reported to him the
stabbing incident that occurred at Daangbakal near the
subdivision he is living. That he relayed the information to
the Valenzuela Police Station and a police team under
police officer Param accompanied them to the place. That
he asked the police officers to verify if there is a body of
person inside the well. That the well was covered with
stones and he asked the police officers to seek the help of
theneighbors (sic) to remove the stones inside the well.
That after the stones were removed, the body of the victim
was found inside the well. That the lifeless body was pulled
out from the well. That the body has several stab wounds.
That he came to know the victim as Andre Mar Masangkay.
That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when
taken out of the well with several stab wounds. That
Diosdado Quitlong told him that he was drinking with the
victim and the assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while the latter was
answering the call of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially
testified that he conducted [an] autopsy on the cadaver of
Andre Mar Masangkay on October 16, 1992 at the
Valenzuela Memorial Homes located at Macarthur
Highway. That he prepared the autopsy report and the
sketch of human head and body indicating the location of
the stab wounds. That the cause of death is multiple stab
wounds, contributory, [a]sphyxia by submersion in water.
That there were 13 stab wounds, 8 of which were on the
frontal part of the body, 2 at the back and there were
contused abrasions around the neck and on the left arm.
There was stab wound at the left side of the neck. That the
contused abrasion could be produced by cord or wire or
rope. That there is (an) incised wound on the left forearm.
That the stab wounds which were backward downward of
the body involved the lungs. That the victim was in front of
the assailant. That the stab wound on the upper left
shoulder was caused when the assailant was in front of the
victim. That the assailant was in front of the victim when the
stab wound near the upper left armpit was inflicted as well
as the stab wound on the left chest wall. That the stab
wound on the back left side of the body and the stab wound
on the back right portion of the body may be produced
when the assailant was at the back of the victim. That the
assailant was in front of the victim when the stab wound[s]
on the left elbow and left arm were inflicted. That the large
airway is filled with muddy particles indicating that the
victim was alive when the victim inhaled the muddy
particles. The heart is filled with multiple hemorrhage, loss
of blood or decreased of blood. The lungs is filled with
water or muddy particles. The brain is pale due to loss of
blood. The stomach is one half filled with muddy particles
which could [have been] taken in when submerged in
water.
On cross-examination, he said that he found 13 stab
wounds on the body of the victim. That he cannot tell if the
assailant or the victim were standing. That it is possible that
the stab wounds was (sic) inflicted when both [referring to
participants] were standing or the victim was lying down
and the assailant was on top. That he cannot tell the
number of the assailants.”
Evidence for the Appellants
Appellant Manuel Garcia testified that in the early morning
of October 15, 1992, he and his wife, Maritess Garcia,
brought their feverish daughter, Marjorie, to the Polo
Emergency Hospital. He left the hospital at seven o’ clock
in the morning, went home, changed his clothes and went
to work.[10] After office hours, he and Benjamin Ortega, Jr.
passed by the canteen at their place of work. After drinking
beer, they left at eight o’ clock in the evening and headed
home. En route, they chanced on Diosdado Quitlong alias
Mac-mac and Andre Mar Masangkay, who invited them to
join their own drinking spree. Thereupon, Appellant
Garcia’s wife came and asked him to go home because
their daughter was still sick. To alleviate his daughter’s
illness, he fetched his mother-in-law who performed a ritual
called “tawas.” After the ritual, he remained at home and
attended to his sick daughter. He then fell asleep but was
awakened by police officers at six o’ clock in the morning of
the following day.
Maritess Garcia substantially corroborated the testimony of
her husband. She however added two other participants in
the drinking session aside from Diosdado Quitlong alias
Mac-mac and Andre Mar Masangkay, namely, a Mang
Serafin and Boyet Santos.[11]
Benjamin Ortega, Jr. likewise substantially corroborated the
testimony of Appellant Manuel Garcia.[12] According to him,
between eleven and twelve o’ clock in the evening,
Masangkay left the drinking session. Thirty (30) minutes
after Masangkay left, he also left the drinking place to
urinate.[13] He went behind the house where he saw
Masangkay peeping through the room of his sister Raquel.
He ignored Masangkay and continued urinating. [14] After he
was through, Masangkay approached him and asked
where his sister was. He answered that he did not know.
Without warning, Masangkay allegedly boxed him in the
mouth, an attack that induced bleeding and caused him to
fall on his back. When he was about to stand up,
Masangkay drew a knife and stabbed him, hitting him on
the left arm, thereby immobilizing him. Masangkay then
gripped his neck with his left arm and threatened to kill him.
Unable to move, Ortega shouted for help. Quitlong came
and, to avoid being stabbed, grabbed Masangkay’s right
hand which was holding the knife. Quitlong was able to
wrest the knife from Masangkay and, with it, he stabbed
Masangkay ten (10) times successively, in the left chest
and in the middle of the stomach. When the stabbing
started, Ortega moved to the left side of Masangkay to
avoid being hit.[15] Quitlong chased Masangkay who ran
towards the direction of the well. Thereafter, Ortega went
home and treated his injured left armpit and lips. Then, he
slept.
When he woke up at six o’ clock the following morning, he
saw police officers in front of his house. Taking him with
them, the lawmen proceeded to the well. From the railroad
tracks where he was asked to sit, he saw the police officers
lift the body of a dead person from the well. He came to
know the identity of the dead person only after the body
was taken to the police headquarters.[16]
The Trial Court’s Discussion
The trial court explained its basis for appellants’ conviction
as follows:[17]
“The Court is convinced that the concerted acts of
accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one
Romeo Ortega in lifting, carrying and dumping the victim
Andre Mar Masangkay who was still alive and breathing
inside the deep well filled with water, head first and threw
big stones/rocks inside the well to cover the victim is a clear
indication of the community of design to finish/kill victim
Andre Mar Masangkay. Wounded and unarmed victim
Andre Mar Masangkay was in no position to flee and/or
defend himself against the three malefactors. Conspiracy
and the taking advantage of superior strength were in
attendance. The crime committed by the accused is
Murder.
Concert of action at the moment of consummating the
crime and the form and manner in which assistance is
rendered to the person inflicting the fatal wound may
determine complicity where it would not otherwise be
evidence (People vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly
liable. Accused (m)ust reimburse the heirs of victim Andre
Mar Masangkay the amount of P35,000.00 for the funeral
expenses of the deceased.”
The Issues
In their ten-page brief, appellants fault the trial court with
the following: [18]
“I. The trial court erred in holding that there is
conspiracy on the basis of the prosecution’s evidence that
at the time both accused and one Romeo Ortega lifted the
body of Andrew Masangkay from where he succumbed due
to stab wounds and brought and drop said body of Andrew
Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that
Andrew Masangkay was still alive at the time his body was
dropped in the well;
III. The trial court erred in convicting Manuel Garcia and
in not acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all
Benjamin Ortega Jr. is guilty only of homicide alone.”
On the basis of the records and the arguments raised by
the appellants and the People, we believe that the question
to be resolved could be simplified thus: What are the
criminal liabilities, if any, of Appellants Ortega and Garcia?
The Court’s Ruling
We find the appeal partly meritorious. Appellant Ortega is
guilty only of homicide. Appellant Garcia deserves acquittal.
First Issue: Liability of Appellant Ortega
The witnesses for the prosecution and defense presented
conflicting narrations. The prosecution witnesses described
the commission of the crime and positively identified
appellants as the perpetrators. The witnesses for the
defense, on the other hand, attempted to prove denial and
alibi. As to which of the two contending versions speaks the
truth primarily rests on a critical evaluation of the credibility
of the witnesses and their stories. In this regard, the trial
court held:[19]
“The Court has listened intently to the narration of the
accused and their witnesses and the prosecution witnesses
and has keenly observed their behavior and demeanor on
the witness stand and is convinced that the story of the
prosecution is the more believable version. Prosecution
eyewitness Diosdado Quitlong appeared and sounded
credible and his credibility is reinforced by the fact that he
has no reason to testify falsely against the accused. It was
Diosdado Quitlong who reported the stabbing incident to
the police authorities. If Quitlong stabbed and killed the
victim Masangkay, he will keep away from the police
authorities and will go in hiding. x x x”
Because the trial court had the opportunity to observe the
witnesses’ demeanor and deportment on the stand as they
rendered their testimonies, its evaluation of the credibility of
witnesses is entitled to the highest respect. Therefore,
unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the
result of the case, his assessment of credibility must be
respected.[20]
In the instant case, we have meticulously scoured the
records and found no reason to reverse the trial court’s
assessment of the credibility of the witnesses and their
testimonies[21] insofar as Appellant Ortega is concerned.
The narration of Eyewitness Diosdado Quitlong appears to
be spontaneous and consistent. It is straightforward,
detailed, vivid and logical. Thus, it clearly deserves full
credence.
On the other hand, in asserting alibi and denial, the
defense bordered on the unbelievable. Appellant Ortega
claimed that after he was able to free himself from
Masangkay’s grip, he went home, treated his injuries and
slept.[22] This is not the ordinary reaction of a person
assaulted. If Ortega’s version of the assault was true, he
should have immediately reported the matter to the police
authorities, if only out of gratitude to Quitlong who came to
his rescue. Likewise, it is difficult to believe that a man
would just sleep after someone was stabbed in his own
backyard. Further, we deem it incredible that Diosdado
Quitlong would stab Masangkay ten (10) times
successively, completely ignoring Benjamin Ortega, Jr. who
was grappling with Masangkay. Also inconsistent with
human experience is his narration that Masangkay
persisted in choking him instead of defending himself from
the alleged successive stabbing of Quitlong.[23] The natural
tendency of a person under attack is to defend himself and
not to persist in choking a defenseless third person.
Murder or Homicide?
Although treachery, evident premeditation and abuse of
superior strength were alleged in the information, the trial
court found the presence only of abuse of superior
strength.
We disagree with the trial court’s finding. Abuse of superior
strength requires deliberate intent on the part of the
accused to take advantage of such superiority. It must be
shown that the accused purposely used excessive force
that was manifestly out of proportion to the means available
to the victim’s defense.[24] In this light, it is necessary to
evaluate not only the physical condition and weapon of the
protagonists but also the various incidents of the event.[25]
In his testimony, Witness Dominador Quitlong mentioned
nothing about Appellant Ortega’s availment of force
excessively out of proportion to the means of defense
available to the victim to defend himself. Quitlong described
the assault made by Appellant Ortega as follows:[26]
“ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you
have a drinking spree with Andrew Masangkay and where
you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the
afternoon we were drinking in the house of Mr. Benjamin
Ortega, Sr., because the house of Benjamin Ortega Sr. and
the house of his son Benjamin Ortega, Jr. are near each
other.
xxx xxx xxx
Q Mr. Witness, who were the companions of said
persons, Benjamin Ortega, Jr., Manuel Garcia, you (sic) in
drinking in said place?
A The other companions in the drinking session were
Ariel Caranto y Ducay, Roberto San Andres and Romeo
Ortega.
Q What about this victim, Andrew Masangkay, where
was he at that time?
A Also the victim, Andrew Masangkay, he was also
there.
Q You said that the two accused, Manuel Garcia and
Benjamin Ortega, Jr. arrived drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ...
(interrupted by Atty. Altuna)
Q Who is that ‘we’?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel
Caranto, Romeo Ortega, Roberto San Andres, myself and
Andrew Masangkay. Andrew Masangkay answer to a call
of nature and went to the back portion of the house, and
Benjamin Ortega, Jr. followed him where he was.
Q What happened next?
A And afterwards we heard a shout and the shout said
‘Huwag, tulungan n’yo ako’.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew
Masangkay to answer a call of nature and after you heard
‘huwag, tulungan n’yo ako’ coming from the mouth of the
late Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the
house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of
Andrew Masangkay and he was stabbing Andrew
Masangkay.
Q Will you please demonstrate to the Honorable Court
how the stabbing was done telling us the particular position
of the late Andrew Masangkay and how Benjamin Ortega,
Jr proceeded with the stabbing against the late victim,
Andrew Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his
face up, then Benjamin Ortega, Jr. was ‘nakakabayo’ and
with his right hand with closed fist holding the weapon, he
was thrusting this weapon on the body of the victim, he was
making downward and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed
Andrew Masangkay?
A I cannot count the number of times.”
It should be noted that Victim Masangkay was a six-footer,
whereas Appellant Ortega, Jr. was only five feet and five
inches tall.[27] There was no testimony as to how the attack
was initiated. The accused and the victim were already
grappling when Quitlong arrived. Nothing in the foregoing
testimony and circumstances can be interpreted as abuse
of superior strength. Hence, Ortega is liable only for
homicide, not murder.
Second Issue: Liability of Appellant Manuel Garcia
Appellants argue that the finding of conspiracy by the trial
court “is based on mere assumption and conjecture x x
x.”[28] Allegedly, the medico-legal finding that the large
airway was “filled with muddy particles indicating that the
victim was alive when the victim inhaled the muddy
particles” did not necessarily mean that such muddy
particles entered the body of the victim while he was still
alive. The Sinumpaang Salaysay of Quitlong stated,
“Nilubayan lang nang saksak nang mapatay na si Andrew
ni Benjamin Ortega, Jr.” Thus, the prosecution evidence
shows Masangkay was already “dead” when he was lifted
and dumped into the well. Hence, Garcia could be held
liable only as an accessory.[29]
We do not agree with the above contention. Article 4, par.
1, of the Revised Penal Code states that criminal liability
shall be incurred by “any person committing a felony
(delito) although the wrongful act done be different from
that which he intended.” The essential requisites for the
application of this provision are that (a) the intended act is
felonious; (b) the resulting act is likewise a felony; and (c)
the unintended albeit graver wrong was primarily caused by
the actor’s wrongful acts. In assisting Appellant Ortega, Jr.
carry the body of Masangkay to the well, Appellant Garcia
was committing a felony. The offense was that of
concealing the body of the crime to prevent its discovery,
i.e. that of being an accessory in the crime of homicide. [30]
Although Appellant Garcia may have been unaware that
the victim was still alive when he assisted Ortega in
throwing the body into the well, he is still liable for the direct
and natural consequence of his felonious act, even if the
resulting offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the
body of the victim. But the autopsy conducted by the NBI
medico-legal officer showed that the victim at that time was
still alive, and that he died subsequently of drowning.[31]
That drowning was the immediate cause of death was
medically demonstrated by the muddy particles found in the
victim’s airway, lungs and stomach.[32] This is evident from
the expert testimony given by the medico-legal officer,
quoted below:[33]
ATTY. ALTUNA:
“Q Will you please explain this in simple language the last
portion of Exhibit N, beginning with ‘tracheo-bronchial tree’,
that is sentence immediately after paragraph 10, 2.5 cms.
Will you please explain this?
A The trancheo-bronchial tree is filled with muddy
particles.
Q I ask you a question on this. Could the victim have
possibly get this particular material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles
could be inhaled.
Q So, in short, you are telling or saying to us that if there
is no inhaling or the taking or receiving of muddy particles
at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial
hemorrhages at the anterior surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased
amount of blood going to the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial
hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with
water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab
wounds or asphyxia, the lungs have been damaged per
your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale.
What is this?
A The paleness of the brain and other visceral organs is
due to loss of blood.
Q And, of course, loss of blood could be attributed to the
stab wound which is number 13?
A Yes, sir.
Q And the last one, under the particular point
‘hemothorax’?
A It indicates at the right side. There are around 1,400 cc
of blood that accumulate at the thoraxic cavity and this was
admixed with granular materials?
Q And what cause the admixing with granular materials
on said particular portion of the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected
by asphyxia? Am I correct?
A It’s due to stab wounds those muddy particles which
set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the
muddy particles now came in, in that particular portion of
the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two
portions, will you please explain the same?
A The hemoperitoneum there are 900 cc of blood that
accumulated inside the abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles.
Please explain the same?
A The victim could have taken these when he was
submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir.” (Underscoring supplied)
A Filipino authority on forensic medicine opines that any of
the following medical findings may show that drowning is
the cause of death:[34]
“1. The presence of materials or foreign bodies in the
hands of the victim. The clenching of the hands is a
manifestation of cadaveric spasm in the effort of the victim
to save himself from drowning.
2. Increase in volume (emphysema aquosum) and
edema of the lungs (edema aquosum).
3. Presence of water and fluid in the stomach contents
corresponding to the medium where the body was
recovered.
4. Presence of froth, foam or foreign bodies in the air
passage found in the medium where the victim was found.
5. Presence of water in the middle ear.”
The third and fourth findings were present in the case of
Victim Masangkay. It was proven that his airpassage, or
specifically his tracheo-bronchial tree, was filled with muddy
particles which were residues at the bottom of the well.
Even his stomach was half-filled with such muddy particles.
The unrebutted testimony of the medico-legal officer that all
these muddy particles were ingested when the victim was
still alive proved that the victim died of drowning inside the
well.
The drowning was the direct, natural and logical
consequence of the felony that Appellant Garcia had
intended to commit; it exemplifies praeter intentionem
covered by Article 4, par. 1, of the Revised Penal Code.
Under this paragraph, a person may be convicted of
homicide although he had no original intent to kill.[35]
In spite of the evidence showing that Appellant Garcia
could be held liable as principal in the crime of homicide,
there are, however, two legal obstacles barring his
conviction, even as an accessory – as prayed for by
appellants’ counsel himself.
First. The Information accused Appellant Garcia (and
Appellant Ortega) of “attack[ing], assault[ing], and
stab[bing] repeatedly with a pointed weapon on the
different parts of the body one ANDRE MAR MASANGKAY
y ABLOLA” The prosecution’s evidence itself shows that
Garcia had nothing to do with the stabbing which was
solely perpetrated by Appellant Ortega. His responsibility
relates only to the attempted concealment of the crime and
the resulting drowning of Victim Masangkay. The hornbook
doctrine in our jurisdiction is that an accused cannot be
convicted of an offense, unless it is clearly charged in the
complaint or information. Constitutionally, he has a right to
be informed of the nature and cause of the accusation
against him. To convict him of an offense other than that
charged in the complaint or information would be a violation
of this constitutional right.[36] Section 14, par. 2, of the 1987
Constitution explicitly guarantees the following:
“(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable.”
(Underscoring supplied)
In People vs. Pailano,[37] this Court ruled that there can be
no conviction for rape on a woman “deprived of reason or
otherwise unconscious” where the information charged the
accused of sexual assault “by using force or intimidation,”
thus:
“The criminal complaint in this case alleged the commission
of the crime through the first method although the
prosecution sought to establish at the trial that the
complainant was a mental retardate. Its purpose in doing
so is not clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-
appellant on the ground that he violated Anita while she
was deprived of reason or unconscious, such conviction
could not have been possible under the criminal complaint
as worded. This described the offense as having been
committed by ‘Antonio Pailano, being then provided with a
scythe, by means of violence and intimidation, (who) did,
then and there, wilfully, unlawfully and feloniously have
carnal knowledge of the complainant, Anita Ibañez, 15
years of age, against her will.’ No mention was made of the
second circumstance.
Conviction of the accused-appellant on the finding that he
had raped Anita while she was unconscious or otherwise
deprived of reason -- and not through force and
intimidation, which was the method alleged -- would have
violated his right to be informed of the nature and cause of
the accusation against him.[Article IV, Sec. 19, Constitution
of 1973; now Article III, Sec. 14(2)] This right is
safeguarded by the Constitution to every accused so he
can prepare an adequate defense against the charge
against him. Convicting him of a ground not alleged while
he is concentrating his defense against the ground alleged
would plainly be unfair and underhanded. This right was, of
course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a
person charged with rape could not be found guilty of
qualified seduction, which had not been alleged in the
criminal complaint against him. In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court did not permit the
conviction for homicide of a person held responsible for the
suicide of the woman he was supposed to have raped, as
the crime he was accused of -- and acquitted -- was not
homicide but rape. More to the point is Tubb v. People of
the Philippines, [fn: 101 Phil. 114] where the accused was
charged with the misappropriation of funds held by him in
trust with the obligation to return the same under Article
315, paragraph 1(b) of the Revised Penal Code, but was
convicted of swindling by means of false pretenses, under
paragraph 2(b) of the said Article, which was not alleged in
the information. The Court said such conviction would
violate the Bill of Rights.”
By parity of reasoning, Appellant Garcia cannot be
convicted of homicide through drowning in an information
that charges murder by means of stabbing.
Second. Although the prosecution was able to prove that
Appellant Garcia assisted in “concealing x x x the body of
the crime, x x x in order to prevent its discovery,” he can
neither be convicted as an accessory after the fact defined
under Article 19, par. 2, of the Revised Penal Code. The
records show that Appellant Garcia is a brother-in-law of
Appellant Ortega,[38] the latter’s sister, Maritess, being his
wife.[39] Such relationship exempts Appellant Garcia from
criminal liability as provided by Article 20 of the Revised
Penal Code:
“ART. 20. Accessories who are exempt from criminal
liability. -- The penalties prescribed for accessories shall
not be imposed upon those who are such with respect to
their spouses, ascendants, descendants, legitimate,
natural, and adopted brothers and sisters, or relatives by
affinity within the same degrees with the single exception of
accessories falling within the provisions of paragraph 1 of
the next preceding article.”
On the other hand, “the next preceding article” provides:
“ART. 19. Accessories. – Accessories are those who,
having knowledge of the commission of the crime, and
without having participated therein, either as principals or
accomplices, take part subsequent to its commission in any
of the following manners:
1. By profiting themselves or assisting the offender to profit
by the effects of the crime.
2. By concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its
discovery.
3. By harboring, concealing, or assisting in the escape of
the principal of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of the
crime is guilty of treason, parricide, murder, or an attempt
to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.”
Appellant Garcia, being a covered relative by affinity of the
principal accused, Benjamin Ortega, Jr., is legally entitled
to the aforequoted exempting provision of the Revised
Penal Code. This Court is thus mandated by law to acquit
him.
Penalty and Damages
The award of actual damages should be reduced to
P31,790.00 from P35,000.00. The former amount was
proven both by documentary evidence and by the
testimony of Melba Lozano, a sister of the victim. [40] Of the
expenses alleged to have been incurred, the Court can
give credence only to those that are supported by receipts
and appear to have been genuinely incurred in connection
with the death of the victim.[41] However, in line with current
jurisprudence,[42] Appellant Ortega shall also indemnify the
heirs of the deceased in the sum of P50,000.00. Indemnity
requires no proof other than the fact of death and
appellant’s responsibility therefor.[43]
The penalty for homicide is reclusion temporal under Article
249 of the Revised Penal Code, which is imposable in its
medium period, absent any aggravating or mitigating
circumstance, as in the case of Appellant Ortega. Because
he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is,
prision mayor.
WHEREFORE, premises considered, the joint appeal is
PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is
found GUILTY of homicide and sentenced to ten (10) years
of prision mayor medium, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is
also ORDERED to pay the heirs of the victim P50,000.00
as indemnity and P31,790.00 as actual damages. Appellant
Manuel Garcia is ACQUITTED. His immediate release from
confinement is ORDERED unless he is detained for some
other valid cause.
G.R. No. 111426, July 11, 1994
NORMA DIZON-PAMINTUAN, PETITIONER, VS.
PEOPLE OF THE PHILIPPINES, RESPONDENT.
The chief issue presented for our determination in this
petition for review under Rule 45 of the Rules of Court is
the correctness of the decision of 29 March 1993 of the
Court of Appeals in CA-G.R. CR No. 11024[1] which
affirmed the decision of Branch 20 of the Regional Trial
Court of Manila in Criminal Case No. 88-64954[2] finding the
petitioner guilty of the violation of the Anti-Fencing Law
(P.D. No. 1612) but set aside the penalty imposed and
ordered the trial court to receive additional evidence on the
"correct valuation" of the pieces of jewelry involved for the
sole purpose of determining the penalty to be imposed.
The information in Criminal Case No. 88-64954 charged
the petitioner with the violation of the Anti-Fencing Law in
that
"on or about and during the period from February 12, to
February 24, 1988, inclusive, in the City of Manila,
Philippines, the said accused, with intent of gain for herself
or for another, did then and there wilfully, unlawfully and
knowingly buy and keep in her possession and/or sell or
dispose of the following jewelries, to wit: one (1) set of
earrings, a ring studded with diamonds in a triangular style,
one (1) set of earrings (diamond studded) and one (1)
diamond-studded crucifix, or all valued at P105,000.00,
which she knew or should have known to have been
derived from the proceeds of the crime of robbery
committed by Joselito Sacdalan Salinas against the owner
Teodoro and Luzviminda Encarnacion. "[3]
On the basis of the testimonies of prosecution witnesses
Teodoro Encarnacion (one of the offended parties), Cpl.
Ignacio Jao, Jr., and Pfc. Emmanuel Sanchez, both of the
Western Police District, the trial court promulgated on 16
November 1990 its decision, the dispositive portion of
which reads:
"WHEREFORE, the prosecution having proved the guilt of
the accused for violation of Presidential Decree No. 1612
beyond reasonable doubt, the accused Norma Dizon-
Pamintuan is hereby sentenced to suffer an indeterminate
penalty of imprisonment from FOURTEEN (14) YEARS of
prision mayor to NINETEEN (19) YEARS of reclusion
temporal.
No civil liability in view of the recovery of the items, subject-
matter of this case.
With costs."[4]
The evidence of the prosecution is summarized by the trial
court as follows:
"Teodoro Encarnacion, Undersecretary, Department of
Public Works and Highways testified that he has just
arrived at his residence located at Better Living
Subdivision, Parañaque at around 9:45 p.m. of February
12, 1988 coming from the Airport and immediately
proceeded inside the house, leaving behind his driver and
two housemaids outside to pick-up his personal belongings
from his case. It was at this point that five unidentified
masked armed persons appeared from the grassy portion
of the lot beside the house and poked their guns to his
driver and two helpers and dragged them inside his house.
That the men pointed a gun at him and was made to lie
face down on the floor. The other occupants, namely his
wife, the maids and his driver were likewise made to lie on
the floor. Thereafter, the robbers ransacked the house and
took away jewelries and other personal properties including
cash. After the intruders left the house he reported the
matter immediately to the police. He was then interviewed
by the Parañaque police and was informed that an
operation group would be assigned to the case.
He likewise reported the matter to the Western Police
District on February 15, 1988. Two days later, a group of
WPD operatives came over to his house and he was asked
to prepare a list of items of jewelry and other valuables that
were lost including a sketch of distinctive items. He was
later told that some of the lost items were in Chinatown
area as tipped by the informer the police had dispatched.
That an entrapment would be made with their participation,
on February 14, 1988. As such, they went to Camp Crame
at around 9:00 a.m. and arrived at the vicinity of 733
Florentino Torres Street, Sta. Cruz, Manila at about 10:00
a.m.; that he is with his wife posed as a buyer and were
able to recognize items of the jewelry stolen displayed at
the stall being tended by Norma Dizon Pamintuan; the
pieces were: 1 earring and ring studded with diamonds
worth P75,000 bought from estimator Nancy Bacud (Exh.
"C-2"), 1 set of earring diamond worth P15,000 (Exh. "C-3")
and 1 gold chain with crucifix worth P3,000 (Exh. "C-4").
Corporal Ignacio Jao, Jr. of the WPD testified that he was
with the spouses Teodoro Encarnacion, Jr. in the morning
of February 24, 1988 and they proceeded to Florentino provides a disputable presumption of fencing under Section
Torres Street, Sta. Cruz, Manila at the stall of Norma 5 thereof, to wit:
Dizon-Pamintuan together with Sgt. Perez. After the
spouses Encarnacion recognized the items subject matter 'Mere possession of any goods, article, item object, or
of the robbery at the display window of the stall being anything of value which has been the subject of robbery or
tended by the herein accused, they invited the latter to the thievery shall be prima facie evidence of fencing.'
precinct and investigated the same. They likewise brought
the said showcase to the WPD station. He further testified There is no doubt that the recovered items were found in
that he has no prior knowledge of the stolen jewelries of the the possession of the accused and she was not able to
private complainant from one store to another. rebut the presumption though the evidence for the defense
alleged that the stall is owned by one Fredo. A distinction
Pfc. Emmanuel Sanchez of the WPD testified that he
should likewise be made between ownership and
reported for duty on February 24, 1988; that he was with
possession in relation to the act of fencing. Moreover, as to
the group who accompanied the spouses Encarnacion in
the value of the jewelries recovered, the prosecution was
Sta. Cruz, Manila and was around when the couple saw
able to show that the same is Ninety Three Thousand
some of the lost jewelries in the display stall of the
Pesos (P93,000.00) ."[8]
accused. He was likewise present during the early part of
the investigation of the WPD station."[5]
The petitioner then appealed her conviction to the Court of
Appeals (CA-G.R. CR No. 11024) where she raised two
The recovery of the pieces of jewelry, on the basis of which
issues: (1) that the judgment was based on a mere
the trial court ruled that no civil liability should be adjudged
presumption, and (2) that the prosecution failed to show
against the petitioner, took place when, as testified to by
that the value of the jewelry recovered is P93,000.00.
Teodoro Encarnacion, the petitioner "admitted that she got
the items but she did not know they were stolen [and that]
In its challenged decision of 29 March 1993, the Court of
she surrendered the items and gave them to [his] wife."[6]
Appeals disposed of the first issue in this wise:

On the other hand, the version of the defense, as testified

"The guilt of accused-appellant was established beyond
to by Rosito Dizon-Pamintuan, is summarized by the trial
reasonable doubt. All the elements of the crime of fencing
court thus:
in violation of the Anti-Fencing Law of 1979 (P.D. No.
1612), to wit:
"The defense presented only the testimony of Rosito Dizon-
Pamintuan who testified that he is the brother of Norma
1. A crime of robbery or theft has been committed;
Dizon-Pamintuan and that sometime around 11:00 a.m. of
February 24, 1985, he, together with the accused went
2. A person, not a participant in said crime, buys,
infront of the Carinderia along Florentino Torres Street, Sta.
receives, possesses, keeps, acquires, conceals,
Cruz, Manila waiting for a vacancy therein to eat lunch.
sells or disposes, or buys and sells; or in any
Suddenly, three persons arrived and he overheard that Cpl.
manner deals in any article or item, object or
Jao told her sister to get the jewelry from inside the display
anything of value;
window but her sister requested to wait for Fredo, the
owner of the stall. But ten minutes later when said Fredo
3. With personal knowledge, or should be known to
did not show up, the police officer opened the display
said person that said item, object or anything of
window and got the contents of the same. The display stall
value has been derived from the proceeds of the
was hauled to a passenger jeepney and the same, together
crime of robbery or theft;
with the accused were taken to the police headquarters. He
likewise testified that he accompanied his sister to the 4. With intent to gain for himself or for another;
station and after investigation was sent home." [7]

have been established by positive and convincing evidence

In convicting the petitioner, the trial court made the of the prosecution. . .
following findings:
...

"The prosecution was able to prove by evidence that the
recovered items were part of the loot and such recovered
items belong to the spouses Encarnacion, the herein
private complainants. That such items were recovered by
the Police Officers from the stall being tended by the
accused at that time. Of importance, is that the law
The fact that a crime of robbery has been committed on
February 12, 1988 is established by the testimony of
private complainant Teodoro T. Encarnacion who
immediately reported the same to Parañaque Police Station
of the Southern Police District (TSN, Hearings of October 3,
1988, November 9, 1988 and January 11, 1989; Exh. A)
and submitted a list and sketches of the jewelries robbed, "I. PUBLIC RESPONDENT COURT OF APPEALS
among other things, from their residence located at Better MANIFESTLY ERRED IN AFFIRMING THE DECISION OF
Living Subdivision, Parañaque, Metro Manila (Exh. C, C-1 PUBLIC RESPONDENT JUDGE CAÑEBA, IN BLATANT
to C-4 and D). DISREGARD OF APPLICABLE LAW AND WELL-
ESTABLISHED JURISPRUDENCE.
The second element is likewise established by convincing
evidence. On February 24, 1988, accused-appellant was
II. PUBLIC RESPONDENT COURT OF APPEALS
found selling the jewelries (Exhs. C-2, C-3 and C-4) which
MANIFESTLY ERRED IN REMANDING THE CASE TO
was displayed in a showcase in a stall located at Florentino
THE COURT A QUO FOR RECEPTION OF EVIDENCE
Street, Sta. Cruz, Manila. [Testimonies of Teodoro
FOR THE PURPOSE OF DETERMINING THE CORRECT
Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of
PENALTY TO BE IMPOSED."[12]
February 13, 1989) and Pfc. Emmanuel Sanchez (TSN,
Hearing of June 4, 1989)].
On 23 February 1994, after the public respondents had
On the element of knowledge that the items are derived
filed their Comment and the petitioner her Reply to the
from the proceeds of the crime of robbery and of intent to
Comment, this Court gave due course to the petition and
gain for herself or for another, the Anti-Fencing Law
required the parties to submit their respective memoranda,
provides:
which they subsequently complied with.

'SEC. 5. Presumption of Fencing. -- Mere possession of

The first assigned error is without merit.
any good, article, item, object, or anything of value which
has been the subject of robbery or thievery shall be prima Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-
facie evidence of fencing.' Fencing Law), is "the act of any person who, with intent to
gain for himself or for another, shall buy, receive, possess,
Knowledge and intent to gain are proven by the fact that
keep, acquire, conceal, sell or dispose of, or shall buy and
these jewelries were found in possession of appellant and
sell, or in any manner deal in any article, item, object or
they were displayed for sale in a showcase being tended by
anything of value which he knows, or should be known to
her in a stall along Florentino Street, Sta. Cruz, Manila."[9]
him, to have been derived from the proceeds of the crime
of robbery or theft."
Nevertheless, the Court of Appeals was of the opinion that
there was not enough evidence to prove the value of the
Before P.D. No. 1612, a fence could only be prosecuted for
pieces of jewelry recovered, which is essential to the
and held liable as an accessory, as the term is defined in
imposition of the proper penalty under Section 3 of P.D. No.
Article 19 of the Revised Penal Code. The penalty
1612. It opined that the trial court erred in concluding that
applicable to an accessory is obviously light under the rules
"the value of the recovered jewelries is P93,000.00 based
prescribed in Articles 53, 55, and 57 of the Revised Penal
on the bare testimony of the private complainant and the
Code, subject to the qualification set forth in Article 60
self-serving list he submitted (Exhs. C, C-2 and C-4, TSN,
thereof. Noting, however, the reports from law enforcement
Hearing of October 3, 1993)."[10]
agencies that "there is rampant robbery and thievery of
government and private properties" and that "such robbery
The dispositive portion of the Court of Appeals' decision
and thievery have become profitable on the part of the
reads:
lawless elements because of the existence of ready buyers,
commonly known as fence, of stolen properties," P.D. No.
"WHEREFORE, finding that the trial court did not commit
1612 was enacted to "impose heavy penalties on persons
any reversible error, its decision dated October 26, 1990
who profit by the effects of the crimes of robbery and theft."
convicting accused appellant is hereby AFFIRMED with the
Evidently, the accessory in the crimes of robbery and theft
modification that the penalty imposed is SET ASIDE and
could be prosecuted as such under the Revised Penal
the Regional Trial Court (Branch 20) of Manila is ordered to
Code or under P.D. No. 1612. However, in the latter case,
receive evidence with respect to the correct valuation of the
he ceases to be a mere accessory but becomes a principal
properties involved in this case, marked as Exhibits "C", "C-
in the crime of fencing. Elsewise stated, the crimes of
2" and "C-4" for the sole purpose of determining the proper
robbery and theft, on the one hand, and fencing, on the
penalty to be meted out against accused under Section 3,
other, are separate and distinct offenses.[13] The state may
P.D. No. 1612. Let the original records be remanded
thus choose to prosecute him either under the Revised
immediately."[11]
Penal Code or P.D. No. 1612, although the preference for
the latter would seem inevitable considering that fencing is
Hence, this petition wherein the petitioner contends that:
a malum prohibitum, and P.D. No. 1612 creates a
presumption of fencing[14] and prescribes a higher penalty
based on the value of the property.[15]
The elements of the crime of fencing are:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item,
object or anything of value, which has been derived from
the proceeds of the said crime;
3. The accused knows or should have known that the said
article, item, object or anything of value has been derived
from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for
himself or for another.
In the instant case, there is no doubt that the first, second,
and fourth elements were duly established. A robbery was
committed on 12 February 1988 in the house of the private
complainants who afterwards reported the incident to the
Parañaque Police, the Western Police District, the NBI, and
the CIS, and submitted a list of the lost items and sketches
of the jewelry taken from them (Exhibits "C" and "D"). Three
of these items stolen, viz., (a) a pair of earrings and ring
studded with diamonds worth P75,000.00 (Exhibit "C-2");
(b) one set of earrings worth P15,000.00 (Exhibit "C-3");
and (c) a chain with crucifix worth P3,000.00 (Exhibit "C-
4"), were displayed for sale at a stall tended to by the
petitioner in Florentino Torres Street, Sta. Cruz, Manila.
The public display of the articles for sale clearly manifested
an intent to gain on the part of the petitioner.
The more crucial issue to be resolved is whether the
prosecution proved the existence of the third element: that
the accused knew or should have known that the items
recovered from her were the proceeds of the crime of
robbery or theft.
One is deemed to know a particular fact if he has the
cognizance, consciousness or awareness thereof, or is
aware of the existence of something, or has the
acquaintance with facts, or if he has something within the
mind's grasp with certitude and clarity.[16] When knowledge
of the existence of a particular fact is an element of an
offense, such knowledge is established if a person is aware
of a high probability of its existence unless he actually
believes that it does not exist.[17] On the other hand, the
words "should know" denote the fact that a person of
reasonable prudence and intelligence would ascertain the
fact in performance of his duty to another or would govern
his conduct upon assumption that such fact exists. [18]
Knowledge refers to a mental state of awareness about a
fact. Since the court cannot penetrate the mind of an
accused and state with certainty what is contained therein,
it must determine such knowledge with care from the overt
acts of that person. And given two equally plausible states
of cognition or mental awareness, the court should choose
the one which sustains the constitutional presumption of
innocence.[19]
Since Section 5 of P.D. No. 1612 expressly provides that
"[m]ere possession of any good, article, item, object, or
anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing," it follows
that the petitioner is presumed to have knowledge of the
fact that the items found in her possession were the
proceeds of robbery or theft. The presumption is
reasonable for no other natural or logical inference can
arise from the established fact of her possession of the
proceeds of the crime of robbery or theft. This presumption
does not offend the presumption of innocence enshrined in
the fundamental law.[20] In the early case of United States
vs. Luling,[21] this Court held:
"It has been frequently decided, in case of statutory crimes,
that no constitutional provision is violated by a statute
providing that proof by the state of some material fact or
facts shall constitute prima facie evidence of guilt, and that
then the burden is shifted to the defendant for the purpose
of showing that such act or acts are innocent and are
committed without unlawful intention. (Commonwealth vs.
Minor, 88 Ky., 422.)
In some of the States, as well as in England, there exist
what are known as common law offenses. In the Philippine
Islands no act is a crime unless it is made so by statute.
The state having the right to declare what acts are criminal,
within certain well defined limitations, has a right to specify
what act or acts shall constitute a crime, as well as what
proof shall constitute prima facie evidence of guilt, and then
to put upon the defendant the burden of showing that such
act or acts are innocent and are not committed with any
criminal intent or intention."
In his book on constitutional law,[22] Mr. Justice Isagani A.
Cruz said:
"Nevertheless, the constitutional presumption of innocence
may be overcome by contrary presumptions based on the
experience of human conduct [People vs. Labara, April 20,
1954]. Unexplained flight, for example, may lead to an
inference of guilt, as 'the wicked flee when no man
pursueth, but the righteous is as bold as a lion.' Failure on
the part of the accused to explain his possession of stolen
property may give rise to the reasonable presumption that it
was he himself who had stolen it [U.S. vs. Espia, 16 Phil.
506]. Under our Revised Penal Code, the inability of an
accountable officer to produce funds or property entrusted
to him will be considered prima facie evidence that he has
appropriated them to his personal use [Art. 217]. According
to Cooley, the constitutional presumption will not apply as
long as there is 'some rational connection between the fact
proved and the ultimate fact presumed, and the inference
of one fact from proof of another shall not be so
unreasonable as to be purely arbitrary mandate' [1 Cooley,
639]."
The petitioner was unable to rebut the presumption under
P.D. No. 1612. She relied solely on the testimony of her
brother which was insufficient to overcome the
presumption, and, on the contrary, even disclosed that the
petitioner was engaged in the purchase and sale of jewelry
and that she used to buy from a certain Fredo.[23]
Fredo was not presented as a witness and it was not
established that he was a licensed dealer or supplier of
jewelry. Section 6 of P.D. No. 1612 provides that "all
stores, establishments or entities dealing in the buy and sell
of any good, article, item, object or anything of value
obtained from an unlicensed dealer or supplier thereof,
shall before offering the same for sale to the public, secure
the necessary clearance or permit from the station
commander of the Integrated National Police in the town or
city where such store, establishment or entity is located."
Under the Rules and Regulations[24] promulgated to carry
out the provisions of Section 6, an unlicensed
dealer/supplier refers to any person, partnership, firm,
corporation, association or any other entity or
establishment not licensed by the government to engage in
the business of dealing in or supplying "used secondhand
articles," which refers to any good, article, item, object or
anything of value obtained from an unlicensed dealer or
supplier, regardless of whether the same has actually or in
fact been used.
We do not, however, agree with the Court of Appeals that
there is insufficient evidence to prove the actual value of
the recovered articles.
As found by the trial court, the recovered articles had a total
value of P93,000.00, broken down as follows:
"a) one earring and ring studded with diamonds (Exh. "C-
2") -- P75,000.00
b) one set of earring (Exh. "C-3") -- P15,000.00
c) one gold chain with crucifix (Exh. "C-4") -?P3,000.00"
These findings are based on the testimony of Mr.
Encarnacion[25] and on Exhibit "C,"[26] a list of the items
which were taken by the robbers on 12 February 1988,
together with the corresponding valuation thereof. On
cross-examination, Mr. Encarnacion re?affirmed his
testimony on direct examination that the value of the pieces
of jewelry described in Exhibit "C-2" is P75,000.00[27] and
that the value of the items described in Exhibit "C-3" is
P15,000.00, although he admitted that only one earring --
and not the pair -- was recovered.[28] The cross-
examination withheld any question on the gold chain with
crucifix described in Exhibit "C-4." In view, however, of the
admission that only one earring was recovered of the
jewelry described in Exhibit "C-3," it would be reasonable to
reduce the value from P15,000.00 to P7,500.00.
Accordingly, the total value of the pieces of jewelry
displayed for sale by the petitioner and established to be
part of the proceeds of the robbery on 12 February 1988
would be P87,000.00.
Section 3(a) of P.D. No. 1612 provides that the penalty of
prision mayor shall be imposed upon the accused if the
value of the property involved is more than P12,000.00 but
does not exceed P22,000.00, and if the value of such
property exceeds the latter sum, the penalty of prision
mayor should be imposed in its maximum period, adding
one year for each additional P10,000.00; the total penalty
which may be imposed, however, shall not exceed twenty
years. In such cases, the penalty shall be termed reclusion
temporal and the accessory penalty pertaining thereto
provided in the Revised Penal Code shall also be imposed.
The maximum penalty that can be imposed in this case
would then be eighteen (18) years and five (5) months,
which is within the range of reclusion temporal maximum.
Applying the Indeterminate Sentence Law which allows the
imposition of an indeterminate penalty which, with respect
to offenses penalized by a special law, shall range from a
minimum which shall not be lower than the minimum
prescribed by the special law to a maximum which should
not exceed the maximum provided therein, the petitioner
can thus be sentenced to an indeterminate penalty ranging
from ten (10) years and one (1) day of prision mayor
maximum as minimum, to eighteen (18) years and five (5)
months of reclusion temporal maximum as maximum, with
the accessory penalties corresponding to the latter.
In the light of the foregoing, the Court of Appeals erred in
setting aside the penalty imposed by the trial court and in
remanding the case to the trial court for further reception of
evidence to determine the actual value of the pieces of
jewelry recovered from the petitioner and for the imposition
of the appropriate penalty.
We do not agree with the petitioner's contention, though,
that a remand for further reception of evidence would place
her in double jeopardy. There is double jeopardy when the
following requisites concur: (1) the first jeopardy must have
attached prior to the second, (2) the first jeopardy must
have validly been terminated, and (3) the second jeopardy
must be for the same offense as that in the first. [29] Such a
concurrence would not occur assuming that the case was
remanded to the trial court.
WHEREFORE, the instant petition is partly GRANTED by keep, acquire and possess several spare parts and items
setting aside the challenged decision of the Court of for fishing boats all valued at P48,130.00 belonging to
Appeals in CA-G.R. CR No. 11024 insofar as it sets aside Rosita Lim, which he knew or should have known to have
the penalty imposed by Branch 20 of the Regional Trial been derived from the proceeds of the crime of theft.
Court of Manila in Criminal Case No. 88-64954 and orders
the remand of the case for the trial court to receive Contrary to law."
evidence with respect to the correct value of the properties
Upon arraignment on November 23, 1992, petitioner
involved. The decision of the Regional Trial Court is
Ramon C. Tan pleaded not guilty to the crime charged and
AFFIRMED subject to the modification of the penalty which
waived pre-trial. To prove the accusation, the prosecution
is hereby reduced to an indeterminate penalty ranging from
presented the testimonies of complainant Rosita Lim, Victor
Ten (10) years and One (1) day of Prision Mayor maximum
Sy and the confessed thief, Manuelito Mendez.
as minimum to Eighteen (18) years and Five (5) months of
Reclusion Temporal maximum as maximum, with the
On the other hand, the defense presented Rosita Lim and
accessory penalties of the latter.
Manuelito Mendez as hostile witnesses and petitioner
himself. The testimonies of the witnesses were summarized
RAMON C. TAN, PETITIONER, VS. PEOPLE OF THE
by the trial court in its decision, asfollows:
PHILIPPINES, RESPONDENT.

The case before the Court is an appeal via certiorari from a

decision of the Court of Appeals* affirming that of the
Regional Trial Court of Manila, Branch 19,** convicting
petitioner of the crime of fencing.

Complainant Rosita Lim is the proprietor of Bueno Metal

Industries, located at 301 Jose Abad Santos St., Tondo,
Manila, engaged in the business of manufacturing
propellers or spare parts for boats. Manuelito Mendez was
one of the employees working for her. Sometime in
February 1991, Manuelito Mendez left the employ of the
company. Complainant Lim noticed that some of the
welding rods, propellers and boat spare parts, such as
bronze and stainless propellers and brass screws were
missing. She conducted an inventory and discovered that
propellers and stocks valued at P48,000.00, more or less,
were missing. Complainant Rosita Lim informed Victor Sy,
uncle of Manuelito Mendez, of the loss. Subsequently,
Manuelito Mendez was arrested in the Visayas and he
admitted that he and his companion Gaudencio Dayop
stole from the complainant's warehouse some boat spare
parts such as bronze and stainless propellers and brass
screws. Manuelito Mendez asked for complainant's
forgiveness. He pointed to petitioner Ramon C. Tan as the
one who bought the stolen items and who paid the amount
of P13,000.00, in cash to Mendez and Dayop, and they
split the amount with one another. Complainant did not file
a case against Manuelito Mendez and Gaudencio Dayop.

On relation of complainant Lim, an Assistant City

Prosecutor of Manila filed with the Regional Trial Court,
Manila, Branch 19, an information against petitioner
charging him with violation of Presidential Decree No. 1612
(Anti-Fencing Law) committed as follows:
"That on or about the last week of February 1991, in the
City of Manila, Philippines, the said accused, did then and
there wilfully, unlawfully and feloniously knowingly receive,
"ROSITA LIM stated that she is the owner of Bueno Metal
Industries, engaged in the business of manufacturing
propellers, bushings, welding rods, among others (Exhibits
A, A-1, and B). That sometime in February 1991, after one
of her employees left the company, she discovered that
some of the manufactured spare parts were missing, so
that on February 19, 1991, an inventory was conducted
and it was found that some welding rods and propellers,
among others, worth P48,000.00 were missing. Thereafter,
she went to Victor Sy, the person who recommended Mr.
Mendez to her. Subsequently, Mr. Mendez was arrested in
the Visayas, and upon arrival in Manila, admitted to his
having stolen the missing spare parts sold then to Ramon
Tan. She then talked to Mr. Tan, who denied having bought
the same.
When presented on rebuttal, she stated that some of their
stocks were bought under the name of Asia Pacific, the
guarantor of their Industrial Welding Corporation, and
stated further that whether the stocks are bought under the
name of the said corporation or under the name of William
Tan, her husband, all of these items were actually delivered
to the store at 3012-3014 Jose Abad Santos Street and all
paid by her husband.
That for about one (1) year, there existed a business
relationship between her husband and Mr. Tan. Mr. Tan
used to buy from them stocks of propellers while they
likewise bought from the former brass woods, and that
there is no reason whatsoever why she has to frame up Mr.
Tan.
MANUELITO MENDEZ stated that he worked as helper at
Bueno Metal Industries from November 1990 up to
February 1991. That sometime in the third week of
February 1991, together with Gaudencio Dayop, his co-
employee, they took from the warehouse of Rosita Lim
some boat spare parts, such as bronze and stainless
propellers, brass screws, etc. They delivered said stolen
items to Ramon Tan, who paid for them in cash in the
amount of P13,000.00. After taking his share (one-half (1/2)
of the amount), he went home directly to the province.
When he received a letter from his uncle, Victor Sy, he
decided to return to Manila. He was then accompanied by
his uncle to see Mrs. Lim, from whom he begged for
forgiveness on April 8, 1991. On April 12, 1991, he
executed an affidavit prepared by a certain Perlas, a CIS
personnel, subscribed to before a Notary Public (Exhibits C
and C-1).
VICTORY [sic] SY stated that he knows both Manuelito
Mendez and Mrs. Rosita Lim, the former being the nephew
of his wife while the latter is his auntie. That sometime in
February 1991, his auntie called up and informed him
about the spare parts stolen from the warehouse by
Manuelito Mendez. So that he sent his son to Cebu and
requested his kumpadre, a police officer of Sta. Catalina,
Negros Occidental, to arrest and bring Mendez back to
Manila. When Mr. Mendez was brought to Manila, together
with Supt. Perlas of the WPDC, they fetched Mr. Mendez
from the pier after which they proceeded to the house of his
auntie. Mr. Mendez admitted to him having stolen the
missing items and sold to Mr. Ramon Tan in Sta. Cruz,
Manila. Again, he brought Mr. Mendez to Sta. Cruz where
he pointed to Mr. Tan as the buyer, but when confronted,
Mr. Tan denied the same.
ROSITA LIM, when called to testify as a hostile witness,
narrated that she owns Bueno Metal Industries located at
301 Jose Abad Santos Street, Tondo, Manila. That two (2)
days after Manuelito Mendez and Gaudencio Dayop left,
her husband, William Tan, conducted an inventory and
discovered that some of the spare parts worth P48,000.00
were missing. Some of the missing items were under the
name of Asia Pacific and William Tan.
MANUELITO MENDEZ, likewise, when called to testify as a
hostile witness, stated that he received a subpoena in the
Visayas from the wife of Victor Sy, accompanied by a
policeman of Buliloan, Cebu on April 8, 1991. That he
consented to come to Manila to ask forgiveness from
Rosita Lim. That in connection with this case, he executed
an affidavit on April 12, 1991, prepared by a certain Atty.
Perlas, a CIS personnel, and the contents thereof were
explained to him by Rosita Lim before he signed the same
before Atty. Jose Tayo, a Notary Public, at Magnolia
House, Carriedo, Manila (Exhibits C and C-1).
That usually, it was the secretary of Mr. Tan who accepted
the items delivered to Ramon Hardware. Further, he stated
that the stolen items from the warehouse were placed in a
sack and he talked to Mr. Tan first over the phone before
he delivered the spare parts. It was Mr. Tan himself who
accepted the stolen items in the morning at about 7:00 to
8:00 o'clock and paid P13,000.00 for them.
RAMON TAN, the accused, in exculpation, stated that he is
a businessman engaged in selling hardware (marine spare
parts) at 944 Espeleta Street, Sta. Cruz, Manila.
He denied having bought the stolen spare parts worth
P48,000.00 for he never talked nor met Manuelito Mendez,
the confessed thief. That further the two (2) receipts
presented by Mrs. Lim are not under her name and the
other two (2) are under the name of William Tan, the
husband, all in all amounting to P18,000.00. Besides, the
incident was not reported to the police (Exhibits 1 to 1-g).
He likewise denied having talked to Manuelito Mendez over
the phone on the day of the delivery of the stolen items and
could not have accepted the said items personally for
everytime (sic) goods are delivered to his store, the same
are being accepted by his staff. It is not possible for him to
be at his office at about 7:00 to 8:00 o'clock in the morning,
because he usually reported to his office at 9:00 o'clock. In
connection with this case, he executed a counter-affidavit
(Exhibits 2 and 2-a).[1]
On August 5, 1996, the trial court rendered decision, the
dispositive portion of which reads:
"WHEREFORE, premises considered, the accused
RAMON C. TAN is hereby found guilty beyond reasonable
doubt of violating the Anti-Fencing Law of 1979, otherwise
known as Presidential Decree No. 1612, and sentences
him to suffer the penalty of imprisonment of SIX (6) YEARS
and ONE (1) DAY to TEN (10) YEARS of prision mayor and
to indemnify Rosita Lim the value of the stolen
merchandise purchased by him in the sum of P18,000.00.
"Costs against the accused.
"SO ORDERED.
"Manila, Philippines, August 5, 1996.
"(s/t) ZENAIDA R. DAGUNA
"Judge"
Petitioner appealed to the Court of Appeals.
After due proceedings, on January 29, 1998, the Court of
Appeals rendered decision finding no error in the judgment
appealed from, and affirming the same in toto.
In due time, petitioner filed with the Court of Appeals a
motion for reconsideration; however, on June 16, 1998, the
Court of Appeals denied the motion.
Hence, this petition.
The issue raised is whether or not the prosecution has
successfully established the elements of fencing as against
petitioner.[2]
We resolve the issue in favor of petitioner.
"Fencing, as defined in Section 2 of P.D. No. 1612 is `the
act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any
manner deal in any article, item, object or anything of value
which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or
theft.'"[3]
"Robbery is the taking of personal property belonging to
another, with intent to gain, by means of violence against or
intimidation of any person, or using force upon things." [4]
The crime of theft is committed if the taking is without
violence against or intimidation of persons nor force upon
things.[5]
"The law on fencing does not require the accused to have
participated in the criminal design to commit, or to have
been in any wise involved in the commission of, the crime
of robbery or theft."[6]
Before the enactment of P. D. No. 1612 in 1979, the fence
could only be prosecuted as an accessory after the fact of
robbery or theft, as the term is defined in Article 19 of the
Revised Penal Code, but the penalty was light as it was
two (2) degrees lower than that prescribed for the
principal.[7]
P. D. No. 1612 was enacted to "impose heavy penalties on
persons who profit by the effects of the crimes of robbery
and theft." Evidently, the accessory in the crimes of robbery
and theft could be prosecuted as such under the Revised
Penal Code or under P.D. No. 1612. However, in the latter
case, the accused ceases to be a mere accessory but
becomes a principal in the crime of fencing. Otherwise
stated, the crimes of robbery and theft, on the one hand,
and fencing, on the other, are separate and distinct
offenses.[8] The State may thus choose to prosecute him
either under the Revised Penal Code or P. D. No. 1612,
although the preference for the latter would seem inevitable
considering that fencing is malum prohibitum, and P. D. No.
1612 creates a presumption of fencing[9] and prescribes a
higher penalty based on the value of the property. [10]
In Dizon-Pamintuan vs. People of the Philippines, we set
out the essential elements of the crime of fencing as
follows:
"1. A crime of robbery or theft has been committed;
"2. The accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any article, item,
object or anything of value, which has been derived from
the proceeds of the said crime;
"3. The accused knows or should have known that the said
article, item, object or anything of value has been derived
from the proceeds of the crime of robbery or theft; and
"4. There is on the part of the accused, intent to gain for
himself or for another."[11]
Consequently, "the prosecution must prove the guilt of the
accused by establishing the existence of all the elements of
the crime charged." [12]
Short of evidence establishing beyond reasonable doubt
the existence of the essential elements of fencing, there
can be no conviction for such offense.[13] "It is an ancient
principle of our penal system that no one shall be found
guilty of crime except upon proof beyond reasonable doubt
(Perez vs. Sandiganbayan, 180 SCRA 9)."[14]
In this case, what was the evidence of the commission of
theft independently of fencing?
Complainant Rosita Lim testified that she lost certain items
and Manuelito Mendez confessed that he stole those items
and sold them to the accused. However, Rosita Lim never
reported the theft or even loss to the police. She admitted
that after Manuelito Mendez, her former employee,
confessed to the unlawful taking of the items, she forgave
him, and did not prosecute him. Theft is a public crime. It
can be prosecuted de oficio, or even without a private
complainant, but it cannot be without a victim. As
complainant Rosita Lim reported no loss, we cannot hold
for certain that there was committed a crime of theft. Thus,
the first element of the crime of fencing is absent, that is, a
crime of robbery or theft has been committed.
There was no sufficient proof of the unlawful taking of
another's property. True, witness Mendez admitted in an
extra-judicial confession that he sold the boat parts he had
pilfered from complainant to petitioner. However, an
admission or confession acknowledging guilt of an offense
may be given in evidence only against the person admitting
or confessing.[15] Even on this, if given extra-judicially, the
confessant must have the assistance of counsel; otherwise,
the admission would be inadmissible in evidence against
the person so admitting.[16] Here, the extra-judicial
confession of witness Mendez was not given with the
assistance of counsel, hence, inadmissible against the
witness. Neither may such extra-judicial confession be
considered evidence against accused.[17] There must be
corroboration by evidence of corpus delicti to sustain a
finding of guilt.[18] Corpus delicti means the "body or
substance of the crime, and, in its primary sense, refers to
the fact that the crime has been actually committed." [19] The
"essential elements of theft are (1) the taking of personal
property; (2) the property belongs to another; (3) the taking
away was done with intent of gain; (4) the taking away was
done without the consent of the owner; and (5) the taking
away is accomplished without violence or intimidation
against persons or force upon things (U. S. vs. De Vera, 43
Phil. 1000)."[20] In theft, corpus delicti has two elements,
namely: (1) that the property was lost by the owner, and (2)
that it was lost by felonious taking.[21] In this case, the theft
was not proved because complainant Rosita Lim did not
complain to the public authorities of the felonious taking of
her property. She sought out her former employee
Manuelito Mendez, who confessed that he stole certain
articles from the warehouse of the complainant and sold
them to petitioner. Such confession is insufficient to
convict, without evidence of corpus delicti.[22]

What is more, there was no showing at all that the accused

knew or should have known that the very stolen articles
were the ones sold to him. "One is deemed to know a
particular fact if he has the cognizance, consciousness or
awareness thereof, or is aware of the existence of
something, or has the acquaintance with facts, or if he has
something within the mind's grasp with certitude and clarity.
When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a
person is aware of a high probability of its existence unless
he actually believes that it does not exist. On the other
hand, the words "should know" denote the fact that a
person of reasonable prudence and intelligence would
ascertain the fact in performance of his duty to another or
would govern his conduct upon assumption that such fact
exists. Knowledge refers to a mental state of awareness
about a fact. Since the court cannot penetrate the mind of
an accused and state with certainty what is contained
therein, it must determine such knowledge with care from
the overt acts of that person. And given two equally
plausible states of cognition or mental awareness, the
court should choose the one which sustains the
constitutional presumption of innocence."[23]

Without petitioner knowing that he acquired stolen articles,

he can not be guilty of "fencing".[24]

Consequently, the prosecution has failed to establish the

essential elements of fencing, and thus petitioner is entitled
to an acquittal.

WHEREFORE, the Court REVERSES and SETS ASIDE

the decision of the Court of Appeals in CA-G.R. CR. No.
20059 and hereby ACQUITS petitioner of the offense
charged in Criminal Case No. 92-108222 of the Regional
Trial Court, Manila.