THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUDY REGALA and DELFIN FLORES, defendants, RUDY REGALA, defendant-appellant.

MAKASIAR, J.:

Defendants Rudy Regala and Delfin Flores were charged with the crime of murder with assault upon an agent of a person in authority in an
information filed on June 27, 1964 by the provincial fiscal of Masbate with the Court of First Instance of Masbate which reads:

That on or about the 13th day of June, 1964, at the Magallanes Gate in the poblacion of the Municipality of
Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
conspiring together and helping each other, with deliberate intent to kill, with evident premeditation and
treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack
and stab with. a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he
was then in the performance of his official duty, thereby inflicting upon the latter serious stab wounds at the
mid-epigastric region penetrating abdominal cavity and perforating cordial and cardiac regions which injury
directly caused his instantaneous death.

to which defendants pleaded not guilty.

To establish its case against defendants, the prosecution initially presented five witnesses, namely, Erlinda Tidon, Juanito Evangelista,
Modesto Taleon, Dr. Orlando delos Santos and Municipal Judge Jose M. Angustia.

Erlinda Tidon and Juanito Evangelista both testified that they were at the scene of the crime and saw the accused Rudy Regala stab the
victim, Sgt. Juan Desilos Jr. In other words, they claimed to be eyewitnesses to the crime.

Erlinda Tidon who at the time she testified on August 7, 1964 was 22 years old, single, housekeeper and a resident of barrio Luy-a,
municipality of Aroroy province of Masbate, declared that she knew the victim, Juan Desilos Jr., who was a sergeant of the Philippine
Constabulary; that in the evening of June 12, 1964, she was at the Magallanes Gate, Masbate, Masbate, because she wanted to get inside
to dance; that at the Magallanes Gate which was well lighted, she saw Sgt. Juan Desilos Jr. in uniform attending to the exit door; that while
Sgt. Juan Desilos Jr. was guarding the Magallanes Gate and trying to clear the exit gate of people, accused Rudy Regala, with co-accused
Delfin Flores who had his arm on the shoulder of the former (Rudy Regala), arrived; that thereafter, she tried her best to get inside the
Magallanes Gate and Delfin Flores and Rudy Regala "were there at the Magallanes Gate in my front. I was at their back" ; that when
accused Rudy Regala and Delfin Flores reached the exit gate where Sgt. Juan Desilos Jr. was stationed, Sgt. Juan Desilos Jr. pushed
accused Rudy Regala and told him "not to get thru this entrance because this is for the exit" (p. 9, t.s.n., Vol. III, rec.); that the person pushed
by Sgt. Desilos was accused Delfin Flores (id, at p. 10); that while Sgt. Juan Desilos Jr. was pushing accused Delfin Flores, accused Rudy
Regala became angry, got his knife from his waist and stabbed Sgt. Juan Desilos Jr.; that Exhibit "A", which is a long knife with a white sharp
blade, was the same knife used by accused Rudy Regala in stabbing Sgt. Juan Desilos Jr.; that accused Delfin Flores was at the back of
accused Rudy Regala when the latter stabbed Sgt. Juan Desilos Jr.; that accused Delfin Flores was one-half meter, more or less, from Sgt.
Juan Desilos but accused Rudy Regala was nearer to Sgt. Juan Desilos Jr.; that Sgt. Juan Desilos Jr. was hit in the abdomen and he fell
down and then accused Rudy Regala and Delfin Flores ran away, with the latter following the former; that she was one-half meter, more or
less, from Sgt. Juan Desilos Jr., accused Rudy Regala and Delfin Flores; that Sgt. Juan Desilos Jr. was stabbed on June 12, 1964 at twelve
o'clock midnight, more or less, at the Magallanes Gate, municipality of Masbate, province of Masbate; that Exhibit "B" is the uniform of Sgt.
Juan Desilos at the time he was stabbed by accused Rudy Regala; that she was investigated in connection with the stabbing incident by Sgt.
Balase; and that she knew Sgt. Taleon who also investigated her in connection with the case (pp. 3-16, t.s.n., Vol. III, rec.).

On cross-examination, witness revealed that in Masbate, Masbate, she has been staying at the house of Sgt. Dominador Balase since
Tuesday, August 5, 1964, because he wanted her to stay thereat; that she attended the town fiesta of Masbate, Masbate, on June 12, 1964
to dance and enjoy the evening; that her religion is Roman Catholic and as such she follows its precepts; that she was on that occasion with
her sister Nenita Tidon who is also single; that she and her sister did not have any escorts; that she arrived at the Magallanes Gate on June
12, 1964 and she was not able to enter the plaza immediately because it was then too crowded as there were many people inside the plaza,
at the gate, as well as outside the gate of Quezon Street; that she intended to get inside the plaza through the exit gate because the
entrance gate was already closed; that she saw Sgt. Juan Desilos Jr. guarding the exit gate which was so marked as "EXIT" where people
were then milling around; that the exit gate was lighted with three (3) electric bulbs placed thereat separately; that before this case was filed
she knew accused Rudy Regala only by appearance and she came to know his name only after he was already accused of the crime in this
case; that during the investigation, she did not know the name of accused Rudy Regala but knew his appearance; that she executed on June
15, 1964 an affidavit marked as Exhibit "l" for the defense, wherein she declared that she knew Rudy Regala only by face: that she told the
PC investigator all the truth she knew about the case, but was not able to name the accused as that was the truth; that she came to know the
name of Rudy Regala only when an information or a complaint was filed on June 15, 1961 against him by the PC authorities with the Justice
of the Peace Court of Masbate, Masbate; that on the 12th, 13th and 14th of June, 1964, she did not yet know the name of the accused Rudy
Regala: that she has known Sgt. Juan Desilos Jr. even before June 12, 1964 or since 1963; that she saw accused Rudy Regala on June 12,
1964 approach the exit of Magallanes Gate which Sgt. Juan Desilos Jr. was regulating the flow of traffic; that she saw at the instance Rudy
Regala placing his hand on the shoulder of accused Delfin Flores, but she cannot remember which hand: that in the evening of June 12,
1964, she did not also know the name of accused Delfin Flores although she knew him by his appearance, because she had not seen
accused Delfin Flores and accused Rudy Regala before; that she came to know his name only on June 15, 1964 when he was already
accused of the crime in this case; that the name of Delfin Flores was told to her by PC Sgts. Balase and Taleon who investigated her; that
Sgt. Balase and Sgt. Taleon showed her the appearance of accused Rudy Regala; that at the Magallanes Gate, one could not move very fast
because of the heavy traffic; that even if she had wanted to run because of fright, she could not because of the heavy traffic; that the
distance between the exit gate and Quezon road is about two (2) meters; that there is a concrete road embankment between the exit gate
and Quezon road; that the space between the exit gate and Quezon road was full of people; that she did not see any policeman outside the
Magallanes Gate; that at the time Sgt. Juan Desilos Jr. was stabbed by the accused Rudy Regala, she was facing Sgt. Desilos Jr. and the
distance between them was 1/2 meter (demonstration made by witness in open court showed that she was oblique to, not directly facing,
Sgt. Juan Desilos Jr. that in that position Rudy Regala appeared from the right side going towards Sgt. Juan Desilos Jr. (witness pointing to
her right side which was directly in front of Sgt. Juan Desilos Jr. and approximately the same distance (see p. 49, t.s.n., Vol. III); that when
accused Rudy Regala was in that position which was in line with her, they were pushed by Sgt. Juan Desilos Jr. who told them "Don't get
inside this gate because this is for exit"; that it was accused Delfin Flores who was pushed by Sgt. Juan Desilos Jr., who was then at the side
of Rudy Regala, but she does not know whether accused Delfin Flores was at the right side or at the left side of accused Rudy Regala; that
accused Delfin Flores was next to accused Rudy Regala and they were in the same line with her; and it was in that position that Sgt. Juan
Desilos Jr. pushed accused Delfin Flores; that both accused Delfin Flores and Rudy Regala were pushed by Sgt. Juan Desilos Jr. but it was
accused Delfin Flores who was directly hit by Sgt. Juan Desilos Jr.; that because of the pushing, accused Rudy Regala got angry and still at
the same distance, he drew his knife from the left side of his waist which was covered by his shirt and then stabbed with it Sgt. Juan Desilos
Jr. in the stomach; that at the time accused Rudy Regala stabbed Sgt. Juan Desilos Jr., she was still at the same distance from him as
before; that accused Rudy Regala was able to pull off the knife from the body of Sgt. Juan Desilos Jr., but she was not able to see whether
blood immediately spurted from the wound because she had already left; that accused Rudy Regala was then wearing a close-necked
buttonless blue shirt with short sleeves; that all that accused Delfin Flores did during the incident was to walk, together with accused Rudy
Regala who placed his arm on accused Delfin Flores' shoulder, towards Sgt. Juan Desilos Jr. that no other act or acts were made by
accused Delfin Flores; that when she saw the horrible incident she went towards the road, walking naturally and slowly because there were
plenty of people; that there was no other unusual occurrence that took place within the immediate vicinity of the place where Sgt. Juan
Desilos Jr. was stabbed; that she came to Masbate to testify of her own volition; and that she was served with a subpoena by a policeman of
Aroroy Masbate, in connection with this case (pp. 17-57, t.s.n., Vol. III, rec.).

Witness Juanito Evangelists, then 26 years old, married, driver by profession and a resident of Bagumbayan, Masbate, declared that in the
evening of June 12, 1964, he went to the plaza at the Magallanes Gate and there met Sgt. Juan Desilos Jr. who was in PC uniform; that Sgt.
Juan Desilos Jr. was stabbed in the abdomen by accused Rudy Regala with a sharp pointed knife; that Exhibit "A" is the knife used by
accused Rudy Regala in stabbing Sgt. Juan Desilos Jr. at the exit of Magallanes Gate on the night of June 12, 1964; that Exhibit " B " is the
uniform of Sgt. Juan Desilos Jr. at the time he was stabbed; that he knows accused Delfin Flores who was then by the side of accused Rudy
Regala when he stabbed Sgt. Juan Desilos Jr.; that before accused Rudy Regala stabbed Sgt. Juan Desilos Jr., he (Regala) first pushed
aside accused Delfin Flores; that Sgt. Juan Desilos Jr. fell on the ground; that he was very near Sgt. Desilos when he was stabbed by
accused Rudy Regala; that the place of the incident was well-lighted as there was a dance going on; that after Sgt. Juan Desilos Jr. fell,
accused Rudy Regala and Delfin Flores ran outside; that he ran after them to know who they were but was not able to catch up with them
because they ran fast; that he saw accused Rudy Regala throw away the knife (Exh. "A") on the road; that he did not pick up the knife; that
he did not know the names of the accused but knew their appearances; that he had seen the face of accused Delfin Flores before the
incident; that he now knows the name of accused Delfin Flores; and that he did not know the reason why Sgt. Juan Desilos Jr. was stabbed
by accused Rudy Regala (pp. 70-82, t.s.n., Vol. III, rec.).

Upon cross examination, witness Evangelista stated that it was at around seven o'clock in the evening of June 12, 1964 when he went to the
Magallanes Plaza at Masbate, Masbate; that the stabbing incident took place at around 1 o'clock in the morning (obviously referring to June
13, 1964); that he was at the gate when the incident took place and there were many people; that Sgt. Juan Desilos was guarding the
Magallanes Gate because people were rushing towards it. When asked whether he also then wanted to enter the gate, he answered that he
was there inside, about a distance of one meter from the gate, and when asked once more, he affirmed his answer (pp. 82-87, t.s.n., Vol. III,
rec.).

Witness Dr. Orlando delos Santos, then 35 years old, married and a resident physician of Masbate Provincial Hospital at Masbate, Masbate,
told the court that on or about midnight of June 12, 1964, he was on duty in the hospital when the dead body of Sgt. Juan Desilos Jr. of the
Philippine Constabulary was brought in. According to him the probable cause of death was cardiac hemorrhage; and that the stab wound at
the mid-epigastric region, penetrating the abdominal cavity and perforating the cardiac region was caused by a sharp blunt instrument and
that the injury directly caused the death of Sgt. Juan Desilos Jr. He opined that the knife Exhibit "A" could have caused the wound on the
body of Sgt. Juan Desilos Jr. and he Identified Exhibit "B" as the uniform of Sgt. Juan Desilos Jr. and Exhibit "B-1" as the cut on the front right
side of said uniform. He further Identified Exhibit "C", the death certificate he issued, and Exhibit "C-1", his signature thereon (pp. 58-65,
t.s.n., Vol. III, rec.).

When cross-examined, witness admitted that it was his first time to see the knife Exhibit "A" and that he did not examine the same as it was
not brought to the hospital for chemical examination. He opined that Exhibit "A" is stained with blood but he cannot distinguish whether it is
human blood or animal blood (pp. 65-67, t.s.n., Vol. III, rec.).

Questioned by the Court, he ventured the opinion that the stain in the uniform of Sgt. Juan Desilos Jr. could be the blood that came from the
wound inflicted on him. He further declared that he probed the wound of Sgt. Juan Desilos Jr. with an instrument to find out the extent of the
entrance and penetration of the wound and found that the wound was midway umbilicus, the point of entrance of the stab wound was one-
half inch to the right, which is at the epigastric region; and that the wound was directed a little upward and in a lateral way, about 7 to 8
inches deep. He was certain that the cause of death was the stab wound which was caused by a sharp pointed instrument (pp. 67-69, t.s.n.,
Vol. III, rec.).

Technical Sergeant Modesto Taleon, assigned as investigator and platoon sergeant of the 60th PC Company, Masbate, Masbate, testified
that he has been connected with the Philippine Constabulary since May 27, 1941; that he knew Sgt. Juan Desilos Jr. who was one of their
platoon sergeants and who relieved him as security on June 12, 1964 at the Magallanes Gate, where there was then a coronation dance.
Their designation as security in charge was in writing; marked as Exhibit "D", signed by their Commanding Officer, Capt. Eugenio. In said
Exhibit "D", the name of Sgt. Juan Desilos Jr. appears, with seven enlisted men, whose time of duty started as therein specified at 1900
hours. On the night of June 12, 1964, he was at the Magallanes Gate and Sgt. Juan Desilos Jr., who was in uniform and with a sidearm, was
also there as he was performing security duties at the coronation dance and maintaining peace and order thereat. When he (witness) was
near the stage and while looking at the crooner he saw Chief Salvacion take the microphone from the singer and call for a doctor as the
soldier assigned at the Magallanes Gate had been stabbed. When he heard the announcement, he immediately rushed to the scene of the
crime and found that there were already many men in uniform at the scene, and Sgt. Juan Desilos Jr. was no longer there as he had already
been brought to the Masbate Provincial Hospital. So he, together with his commanding officer, investigated the incident and they were able to
recover the fatal weapon which was then dripping with blood; he Identified said weapon in open court, which was marked as Exhibit "A" and
the blood stains thereon as Exhibit "A-1 ". He found the knife, Exhibit "A ", on the road facing the Magallanes Gate around five meters away
from the scene of the crime, wrapped it and presented it to the commanding officer for safekeeping. Then they proceeded to the Masbate
Provincial Hospital where they saw Sgt. Juan Desilos Jr. in the operating room already dead; Sgt. Desilos uniform which was already
removed, was stained with blood with a cut at the last button of the uniform (Exh. "B-1 ") which appeared to have been pierced by a blunt
instrument and coincided with the wound of the deceased, Sgt. Juan Desilos Jr. The uniform, including the pants, Exhibit "B", was full of
blood. He Identified the patch on the uniform as that of the P.C. (Exh. "B-2" and the chevron of a staff sergeant (pp. 87105, t.s.n., Vol. III,
rec.).

The cross-examination elicited from witness the fact that he studied criminal investigation and he specialized on the subject as he was sent
in 1958 by the Government to Camp Crame to take up criminal investigation and he likewise trained in 1963 in a seminar held in Cebu. He
applied what he had learned in his investigations at Masbate, including the investigation of this stabbing incident. He affirmed that he,
together with two companions, recovered the fatal knife. Exhibit "A", on the road five meters away from the scene of the crime but outside of
the area cordoned off by the PC and admitted that he did not actually measure the distance but merely calculated it; although he advanced
the opinion that where an incident took place in a crowded place, a trained investigator gets the actual distance. According to him, the place
of the incident was cordoned off or surrounded by soldiers who did not tamper with anything thereat. As other people and peace officers
arrived ahead of him at the scene of the incident, he did not know the investigating officer who arrived first. When they found the knife, he
just grabbed it and presented it to his commanding officer, because he already knew that it was the fatal knife as it was then dripping with
blood and lying flat on the ground. But when he picked it up, it was no longer dripping with blood but it was wet with blood. The route where
the blood came from and where the knife was found was marked with blood stains. He admitted that per investigation procedure, important
evidence like Exhibit "A" should not be touched with the (bare) hands; but he explained and demonstrated that he handed Exhibit "A" with
care, with his thumb in the inner blade, and his two fingers on the outer blade, near the foot of the wooden handle, without touching its blade.
He revealed that after the said Exhibit "A" was presented to his commanding officer nothing more was done. Exhibit "A" was not sent to the
PC laboratory to test its blood stains; neither was the same examined for fingerprints. In fact, the suspects were never fingerprinted. He just
concluded that Exhibit "A" was the fatal weapon (pp. 106-118, t.s.n., Vol. III, rec.).

Judge Jose M. Angustia then 63 years old, married, municipal judge of Masbate, Masbate, resident of Masbate, Masbate, declared that he
knew Rodolfo Regala, alias Rudy Regala, as he was brought several times before his court as accused in cases involving peace and order.
Lately, he convicted him of the crime of malicious mischief. He could not recall having convicted him of the crime of physical injuries; but he
Identified Exhibit "E" as the original duplicate copy of a decision in criminal case No. 2794 of the Municipal Court of Masbate, convicting
accused Rodolfo Regala of the crime of slight physical injuries and Exhibit "E-1" as his signature affixed thereon (pp. 123-127, t.s.n. Vol. III,
rec.).

Immediately after aforesaid witness had testified, counsel for accused moved to strike out the testimony on the ground that the same is
impertinent and immaterial but said motion was denied as without merit by the court (pp. 128-131, t.s.n., Vol. III, rec.).

Thereafter, counsel for accused asked the court for the recall of prosecution witness Juanito Evangelista for further cross-examination on the
ground that there were vital matters overlooked by said defense counsel who earlier, in obedience to the order of the court, had to enter trial
without having first consulted the accused. The prosecuting fiscal objected on the ground that prosecution witness Juanito Evangelista who
had earlier informed him of his fears of reprisal, was not in the courtroom. Defense counsel, in insisting on the recall of said witness, informed
the court that it has come to his knowledge that "... the first suspect of the PC was Evangelists. His clothes were found with blood stains as
well as his hands ..." Nevertheless, the court denied the motion to recall but advised defense counsel to establish that fact as a defense of
the accused (pp. 131-135, t.s.n., Vol. III, rec.).

After the evidence for the prosecution was admitted by the court, defense counsel moved, by way of demurrer, for the dismissal of the case
on the grounds that the prosecution miserably failed to establish the guilt of accused Delfin Flores and second, that there was variance
between the date of the commission of the crime as alleged in the information and that proved by the evidence (pp. 138-151, t.s.n., Vol. III,
rec.).

The prosecuting fiscal interposed his objection on the main ground that the alleged variance was not substantial as the events leading to the
stabbing incident began in the late hour of June 12, 1964 culminating at around midnight or immediately thereafter. Hence, the information
alleged the time of the crime as "... on or about the 13th of June, 1964 ..." (pp. 151-162, t.s.n., Vol. III, rec.).

Defense counsel prayed for time to file his memorandum in support of his motion to dismiss and he was granted by the court up to August
21, 1964 to file the same and the provincial fiscal was required to reply thereto up to August 29, 1964 (p. 166, t.s.n., Vol. III, rec.).

On August 14, 1964, defense counsel filed his memorandum in support of his motion to dismiss and prayed for the dismissal of the case
against both accused (pp. 34-44, Vol. II, rec.), and thereafter or on August 25, 1964, he filed a supplementary Page memorandum (pp. 45-
54, Vol. II, rec.).

On August 25, 1964, without waiting for the reply memorandum of the prosecuting fiscal, winch was filed only on September 7, 1964 (pp. 59-
60, Vol. II, rec.), the trial court denied the motion to dismiss (pp. 55-58, Vol. II, rec.).

Consequently, the case was set for the reception of the evidence of the defense. Eight witnesses were presented by the defense, including
accused Rudy Regala and Delfin Flores. Three of these witnesses — Alberto Abayon, Eladio Mendoza and Noemi Almirol — claimed to have
been at the scene of the crime and seen the stabbing of Sgt. Juan Desilos Jr..

Alberto Abayon, then 19 years old, single, and a student of Osmeña College, Masbate, testified that on June 12, 1964, he was at the
Magallanes Gate, arriving thereat at about 9:30 o'clock in the evening, together with Shirley Letada Rogelio Ora-a and Violets Sorsogon.
They could not immediately enter the auditorium because of so many people crowding the place. They were able to enter at about 10:00
o'clock in the evening. He was not aware whether there were movie actresses inside. He stayed in the plaza for a long time and went home
at around 12:30 in the morning (June 13, 1964), with Noemi Almirol. Upon reaching Magallanes Gate on his way home, he saw a person
whom he did not know, stab Sgt. Juan Desilos Jr.. He was then behind Sgt. Desilos Jr. and around one meter away from him. He saw blood
dripping from Sgt. Juan Desilos Jr.'s abdomen. His companion, Noemi Almirol who was then at his left side, fainted upon seeing the blood
flowing from Sgt. Juan Desilos Jr.. Then he heard Sgt. Desilos say "Noy please accompany me but he does not know the person requested
by Sgt. Desilos Jr.. Witness described the man who stabbed Sgt. Juan Desilos Jr. as tall, with long hair, quite black in complexion and
wearing a short-sleeved polo shirt with red stripes (pp. 168-170, t.s.n., Vol. III, rec.).

He saw Rudy Regala at around 12:20 in the morning (June 13, 1964) drinking beer with companions inside the canteen at the Magallanes
Gate, a place beside the Liceo School. He does not know the companions of Rudy Regala. Said accused was at that time wearing a white
polo shirt. Shortly thereafter, he (witness) left for home at which time Rudy Regala was standing inside the canteen (p. 171, t.s.n., Vol. III.
rec.).

After Noemi Almirol had recovered, he brought her home alone and as they passed by the gate, Sgt. Juan Desilos Jr. was no longer there (p.
172, t.s.n., Vol. III, rec.).

Claiming that he is familiar with Magallanes Gate, witness affirmed that it is enclosed with concrete walls on its sides except at its back which
is enclosed with wire. Its side facing Quezon street is walled with hollow blocks. According to him, if one were inside the Plaza Magallanes
and looked towards Quezon street, he would not be able to see the persons outside who are facing the wall; and if one were outside at
Quezon street and looked towards the plaza, he would not be able to see the people inside (pp. 171-172, t.s.n., Vol. III, rec.).

On cross-examination, witness disclosed that he went to the plaza that evening of June 12, 1964 to dance; that before he entered Osmeña
College, he studied in Masbate High School but Rudy Regala was not one of his classmates there; that he did not report what he saw to and
he was not interviewed by, the police, but the following morning, he was interviewed by a PC man whom he did not know and they had an
exchange of opinions and he was asked by the PC man whether he knew the man who stabbed Sgt. Desilos and he answered that he did
not. He affirmed and he was sure that he saw Rudy Regala drinking in the canteen inside the Magallanes Gate and that said canteen is far
from the Magallanes Gate but he could not calculate the distance; and that Sgt. Desilos was stabbed right at the gate marked as EXIT of
Magallanes Gate at which precise moment he was a meter behind Sgt. Desilos He saw Rudy Regala at about 12:20 in the morning and this
was before the stabbing incident. He does not know whether the gate was closed at the time of the stabbing incident but knew for a fact that
there were many persons milling around the gate marked EXIT. He did not see the fatal weapon used by the culprit (pp. 172-174, t.s.n., Vol.
III, rec.).

In re-direct, he affirmed that he was a meter behind Sgt. Desilos when the latter was stabbed and Noemi Almirol was beside him and there
were many people outside (p. 174, t.s.n., Vol. III, rec.).

Questioned by the Court, he revealed that Noemi Almirol is a young girl; that he brought her alone to her home at 12:30 in the morning, that
he does not know her age; that he had known her for a long time as they were once neighbors;, that the residence of Noemi Almirol is at
Quezon Street, far from Magallanes Gate, somewhere near the Medinas, in front of the residence of Dr. Sta. Cruz; that he is 16 years old but
does not know who is older between him and Noemi Almirol; that Noemi Almirol is a third year high school student at Masbate High School;
that he is a high school graduate as of June 13, 1964; and that he did not use to go out with Noemi Almirol and he had not gone to her house
(pp. 174-175, t.s.n., Vol. III, rec.).
Noemi Almirol, then 18 years old, single, a resident of Masbate, Masbate and a student of Masbate High School, testified that on June 12,
1964, she was at the Plaza Magallanes Gate, arriving there at 10:00 o'clock in the evening, with Amparo de Paz, Luningning Bonan and
Elena Esparaguerra They were able to enter the plaza immediately and stayed thereat up to 12:00 o'clock midnight. At about 12:00 o'clock
midnight, she met Alberto Abayon and they went home together at around 2:00 o'clock the following morning of June 13, 1964; that at the
gate of Plaza Magallanes, she observed something unusual which was the killing of a PC soldier, and she fainted when she saw blood
flowing from the body of Sgt. Desilos who was about one meter from her. She has known accused Rudy Regala for a long time and before
she fainted she did not see Rudy Regala at the place where the PC man was bleeding (pp. 186-187, t.s.n., Vol. III, rec.).

Cross-examined, she affirmed that in going home, she was with Alberto Abayon and it was then about 2:00 o'clock in the morning of June 13,
1964, although she is not sure of the time; and that she was behind the victim who was about a meter away from her. She did not know what
happened after she fainted nor did she hear the announcement made by Police Chief Salvacion about the stabbing incident. She further
declared that Rudy Regala was not her classmate at Masbate High School; nor did she ever see him there as she had just transferred to that
school. She did not know that Rudy Regala was also studying in the Masbate High School (pp. 188-189, t.s.n., Vol. III, rec.).

Upon redirect examination, she revealed that she had a time piece on that night of the incident but she did not check it before leaving for
home (p. 189, t.s.n., Vol. III, rec.)

Questioned by the Court, she insisted that she did not see Rudy Regala that evening. She stated however that she was not alone in going
home with Alberto Abayon as there were many girls with them and that it was not true that Alberto Abayon brought her home alone (p. 189,
t.s.n., Vol. III, rec.).

Witness Eladio Mendoza, then 21 years old, single, third year high school student of Masbate College, Masbate, Masbate, told the Court that
he resides at Domingo Street, Masbate, Masbate; that he knows the accused Rudy Regala; that on the evening of June 12, 1964, he was at
the Plaza Magallanes gate which is in the poblacion of Masbate, Masbate; that he arrived there at 9:00 o'clock in the evening; that his
companions that night were Rudy Regala, Rudy Espinas and Pedro Verga and they were not able to enter the gate immediately because it
was crowded by many people but were able to enter at around 9:00 o'clock in the evening; that once inside he went around and then
together with his companions, Rudy Regala, Pedro Verga and Rudy Espinas, went to the canteen which was managed by a priest, at the left
side of the Magallanes Gate (as one enters the same) near the Liceo College; they drank beer in the said canteen and stayed there for a
long time; that he did not dance, but Rudy Regala did at around 11:30 P.M. with the queen, Carol Bataga and this lasted for about 2 minutes,
and at the next piece, with one of the princesses whose name he (witness) did not know and after this dance with the princess, Rudy Regala
went back to the canteen and drank beer; that at about midnight, he (witness) was still at the canteen and at that time, more or less,
something unusual happened, which was the stabbing of a PC man at the gate which he learned about through the announcement made by
Chief Salvacion on the stage at around 12:30 in the morning of June 13, 1964; that at that time, accused Rudy Regala was at his side
drinking beer; that he did not do anything after the said announcement; neither did accused Rudy Regala do anything; that accused was at
that time wearing a short-sleeved white polo shirt; that he cannot remember how many bottles of beer he drank that evening but the whole
gang finished one case of beer; that he knows Sgt. Desilos although he did not see him that night; that he went home at around 2:00 o'clock
of the morning of June 13, 1964 at which time accused Rudy Regala was still seated inside the other canteen located at the right side of
Magallanes Gate, belonging to Mayor Ben Magallanes (pp. 175-178, t.s.n., Vol. III, rec.).

He testified during the cross-examination that he studied at Liceo de Masbate, not at the Masbate High School, before he transferred to
Masbate College; that on June 12, 1964 when he went inside the gate, there were many people; and that he went inside the auditorium
together with Rudy Regala, Espinas, and Verga and they drank beer in the canteen owned by a priest (p. 179, t.s.n., Vol. III, rec.).

Questioning by the Court extracted from him the fact that he is a very good friend of Rudy Regala as they have been friends since childhood;
that they were 'not together too often as they are studying in different schools, Regala in Masbate High School while he, at Liceo; and that
they go out together and drink once in a while (p. 179, t.s.n., Vol. III, rec.).

Thereafter, defense counsel manifested in open court that the testimonies of the other defense witnesses, Pedro Verga and Rudy Espinas,
will corroborate the testimony of defense witness Eladio Mendoza in all its material aspects or that they will testify as Eladio Mendoza did.
Prosecuting Fiscal did not interpose any objection; hence, such fact was made of record.

Witness Eddie Zaragoza, then 34 years old, married, a municipal policeman of Masbate, Masbate (since July 1, 1961) testified that in the
evening of June 12, 1964, he was detailed as guard at the Magallanes Gate, at Quezon Street, near the church of Masbate, Masbate and he
stayed there until the dance which started at around 8:00 o'clock in the evening, was over at past 1:00 o'clock of the following morning; that
on that midnight of June 12, 1964, when he was the guard, nothing unusual happened, but the next night, June 13, 1964, at around 11
o'clock an incident happened near the Exit gate of the plaza around 75 meters from his post; that he went to the scene of the incident to
investigate and saw Sgt. Desilos being carried by Sgt. Hilario to the jeep of the vice-governor, Moises Espinosa, to be brought to the
hospital,; that while investigating the people around the scene of the incident, he heard Dick Avinas driver of the vice-governor, shouting
"Here is a knife that was dropped"; that Dick Avinas was then inside when he shouted; that he (witness), together with chief of police
Salvacion, went to the spot of the incident and saw a knife near the bumper of the jeep; that he got a piece of paper and with it held the
knife's blade and delivered it to chief of police Salvacion, who told him that the blade should be held but not the handle; that thereafter, he
continued with his investigation by gathering information from the people present but the result of his investigation was negative (pp. 5-12,
t.s.n., Vol. IV rec.).

On cross-examination, he declared that it was coronation night when the incident, happened but it was not before midnight of June 12, 1964;
that there were two nights for coronation, June 12, 1964 for Baby Queen and June 13, 1964 for Lady Queen; that the incident took place
during the coronation of the Lady Queen; that he could not remember whether the coronation of the baby queen was held prior to June 12,
1964, but it was the night previous to the coronation of the lady queen; that on June 12, 1964, he was on duty as guard at the Magallanes
Gate from 8:00 o'clock in the evening up to after midnight (pp. 12-17, t.s.n., Vol. IV, rec.).

Clarificatory questions were propounded by the prosecuting fiscal and the trial judge with respect to the actual date and time of the incident,
thus:

Butalid

Q — And on the night of June 12, 1964, past midnight, the incident occurred?

WITNESS

A — No, sir.
Q — But it was after your duty on June 12, 1964 at about 8 o'clock that the incident
occurred?

BLANCA

Misleading, your Honor. We object.

COURT

Q — You were a guard on June 12, 1964 from 8 o'clock to past midnight ?

A — Yes, your Honor.

Q — And when you said that on June 12, up to midnight there was no incident about
Sgt. Desilos?

A — Yes, your Honor.

Q — After midnight of June 12, it is already June 13, 1964?

A — Yes, your Honor.

Q — After midnight of June 12, which is June 13, 1964, that was the time when Sgt.
Desilos according to you, met an accident

BLANCA

If your Honor, please, with due respect to the question of the Honorable Court, we
would like to make it of record our objection, on the ground that it is misleading.

COURT

Put it on record.

WITNESS

A — No, your Honor

Q — In other words, from one minute after 12:00 o'clock of June 12, 1964 until 6:00
o'clock of that morning, which is June 12, Desilos was still alive? No incident
happened to Sgt. Desilos

A — Nothing happened.

Q — According to you, Desilos was killed on June 14, 1964?

BLANCA

If your Honor, please, we shall again, with due respect to the question of the
Honorable Court, we are constrained again to make our objection on the ground that it
is misleading. The testimony of the witness said that the incident took place about past
11:00 o'clock in the evening of June 13, 1964.

COURT

Past 11:00 o'clock. Let the witness answer because he does not clarify.

WITNESS

A — Not yet.

COURT

Q — When was it? Tell us the definite date?

A — More or less, at 11:00 o'clock in the evening of June 13, 1964 when the incident
took place.

Q — So it was on June 13, 1964 at 11:00 o'clock?

A — More or less, your Honor.

 Q — You are sure about that?

A — Yes, your Honor.

xxx xxx xxx

(pp. 14-16, t.s.n., Vol. IV, rec.).

Defendants Rudy Regala and Delfin Flores testified in their defense and both claimed that they were not present at the spot of the
commission of the crime and that they are strangers to each other.

Rudy Regala declared that he is 21 years old, single, a student at Masbate High School at Masbate, Masbate; that he was at the Magallanes
Gate, Masbate, Masbate in the evening of June 12, 1964, together with Rudy Espinas, Pedro Verga and Eladio Mendoza, and they were not
able to immediately enter the gate; that as soon as they had entered the gate, they looked around the auditorium and afterwards at around
10:00 o'clock they proceeded to the canteen near the Liceo College; that the canteen is at the right side of, if one is facing, the grandstand;
that they drank beer in the canteen which is owned by a priest; that at around 11: 30 in the evening, he danced with the queen, Carol Bataga
for about 2 minutes and then with the princess whose name he does not know, which dance also lasted for about two minutes; that after his
dance with the princess, he went back to the canteen; that thereafter, or at around 12:40 in the evening, and while still in the canteen, he
heard Chief Salvacion announce that a PC man was stabbed; that after the announcement he did not do anything; that he went home
around 2:30 to, 3:00 o'clock in the morning of June 13, 1964; and that except to dance, he did not leave the canteen (pp. 189-192, t.s.n., Vol.
III, rec.).

He further informed the, Court that he knew Sgt. Desilos but did not see him that night when he (deceased) entered the gate; neither did he
see him in the morning or afternoon of that day; that he has no grudge against him nor any motive to kill him; that his family has no grudge
against Sgt. Desilos and that his family, however, has a quarrel with the PC (p. 182, t.s.n., Vol. III, rec.).

Moreover, he testified that he does not know prosecution witness Erlinda Tidon and it was only on the witness stand that he first saw her and
he denied as true her declarations; that he knows prosecution witness Juanito Evangelista but denied as true his declarations; that he did not
know his co-accused Delfin Flores either before or on that night of June 12, 1964; that he came to know him only at the PC headquarters on
June 16, 1964 when they returned to the municipal building and it was only on June 14, 1964 that he saw for the first time Delfin Flores at the
PC compound; that his attire at the Magallanes Gate that evening of June 12, 1964 was a short-sleeved shirt which appears yellow at
daytime but blue during nighttime; that said shirt which he Identified in court (Exh. "2") is now in the possession of his lawyer (pp. 192-193,
t.s.n., Vol. III, rec.).

Testifying further, he told the court that he was arrested with Roger Ampuan by Sgt. Gotis at around 10:3'0 to 11:00 o'clock in the morning of
June 13, 1964 at the market and they were brought to the PC compound where they stayed up to 5:00 o'clock in the afternoon; that St. Gotis
investigated him that same day and pointed to him as the companion of Roger Ampuan in stabbing Sgt. Desilos but he told Sgt. Gotis that
this was not true; that after 5:00 o'clock in the afternoon, he and Roger Ampuan were allowed by Capt. Eugenio to go home; that he was
again arrested by Sgt. Gotis and his companion on June 14, 1964 at about 12:30 to 1:00 in the afternoon in the market area; that this time,
he was arrested with Rudy Espinas and they were brought to the PC compound where they were immediately placed in separate rooms; that
inside the room, he was maltreated by a person whom he knows only by appearance; that he was ordered to admit the crime because
according to the investigators, Rudy Espinas had already told them that he (accused) was the one stabbed Sgt. Desilos Jr., but he told them
that that was not true, that he was boxed, then kicked and made to squat; one pulled him by his buckle and he was made to look upward with
the man's fingers pointed towards his (accused) nose; that it was a PC soldier named Formalejo and two others, whose faces he could
recognize, who did the maltreatment and that Peroy Merillo kicked him at the side of his body while inside the toilet; that he was given only
ten minutes to rest and he was continuously maltreated that day of June 14, 1964, from 12:00 or 1:00 o'clock to 5:00 o'clock in the afternoon;
that in the evening nothing was done to him at the PC compound where he slept although he was investigated by Sgt. Taleon who did not
reduce into writing his investigation; that on June 15, 1964, nothing happened to him as he was not investigated that day; that he stayed in
the PC compound from the 14th to the 6th of June, 1964; that there were seven persons investigated at the PC compound, namely, Rudy
Espinas, Pedro Verga Eladio Mendoza, Miller Gaton, Roger Ampuan Delfin Flores and himself; that on June 16, 1964, he and Delfin Flores
were brought to the municipal building; then they were taken on June 23, 1964 to the provincial jail and they passed by the PC barracks
where he got his eyeglasses and hat; that he was at that time accompanied by Patrolman Natural; that in the PC barracks, he was called by
Sgt. Balase and, leaving behind Pat. Natural, he approached Sgt. Balase who told him that now that he is being pointed to as the killer, it
would be better for him to tell the truth as to who was the real author of the crime so that he (accused) would be utilized as witness, but he
told Sgt. Balase that he was very innocent of and did not know anything about the crime; that before the body of Sgt. Desilos was brought to
the cemetery it was shown to him by Sgt. Balase and the coffin was placed in front of him; and that on that occasion, PC Formalejo who was
then with Sgt. Balase attempted to box him (accused) but Formalejo was cautioned by Sgt. Balase (pp. 194-197, t.s.n., Vol. III, rec.).

Accused Rudy Regala further revealed that when he saw on June 3, 1964 witness Juanito Evangelista at the PC barracks, the latter asked
him why he and Roger Ampuan were at the PC compound and he replied that they were taken by the PC because of the incident the night
before and Evangelista told him "You were not present there that evening"; that their conversation took place in the presence of a PC officer
whom he can recognize by appearance only; that he met Capt. Eugenio on June 13 to the 16th; that on June 14, Capt. Eugenio told him that
there was another suspect who wore a blue shirt with stripes; that another PC officer asked him who was the owner of that blue shirt with
stripes and he answered that he saw somebody wearing that; that during his maltreatment by the PC, a PC soldier who was posted as guard
went inside the room and hit and kicked him; that he had not seen Exhibit "A", the knife used in the stabbing, before, as it was only in court
that he first saw that knife; that he does not use that kind of knife; and that when he went to the Magallanes Gate that evening of June 12,
1964, he had no weapon or knife with him (pp. 197-198, t.s.n., Vol. III, rec.).

In the course of his cross-examination, accused Rudy Regala was caught smiling by the trial judge who warned him of his act and behavior
and not to take the trial lightly as the trial is not a joke, nor was there anything funny, and advised him to be serious as he is fighting for his
life (p. 198, t.s.n., Vol. III, rec.). He confirmed that he studied for two years at Masbate High School, but denied breaking the crystal (glass) of
the bulletin board of the school; that he was arrested on June 13, 1964 by Sgt. Gotis at the market place between 10:30 and 11:00 o'clock in
the morning; that at the time of his arrest no knife was taken from him by Sgt. Gotis that he was maltreated but not investigated by Formalejo
that he does not remember any incident he had with Formalejo that he does not remember and it was not true that a knife was confiscated
from him by Laguerta when he (accused) was about to stab PC Formalejo that he stays at the market place; that it is not true that during
vacation time, he worked as part time butcher in the market; that he knows Patrolman Perez; that he knows former policeman Cornal that he
has a tattoo in his shoulder (which he showed to the court) and the tattoo consists of the words "Black Jack No. 3"; that Black Jack is not a
gang but a club to put up recreational facilities in the market and the president of the club, of which he is a member, is Tony Aguilar; that
Rudy Espinas is also a member but not Pedro Verga Floresta and Alberto Abayon; that every member of the club must have to be tattooed
with Black Jack. According to him, his body was battered because of the maltreatment he suffered from the PC that he was confined in the
provincial jail for the first time on June 23, 1964 at around 9:30 to 10:00 o'clock and that until now he is still confined there; that he was
maltreated only on the 14th of June, 1964; that at the provincial jail, he was not able to ask somebody to examine his battered body because
he was not even allowed to communicate with the persons he knows as he was isolated in the provincial jail; that in a room in the provincial
jail, he was with one named Julian Bartido who was the same person who was convicted in the shooting of Moises Espinas and the
wounding of Marcial Tamares; that he was not therefore examined by a physician; that the purpose of the PC in maltreating him is to force
him to admit his guilt but he did not admit; that there were seven other persons investigated in the PC compound; that he, Delfin Flores, and
the seven other persons were lined up in the PC compound and he was the one called by Sgt. Balase and that at the time he was called by
Sgt. Balase he did not see Juanito Evangelista (pp. 198-204, t.s.n., Vol. III, rec.).

Defense witness Romeo Floresta, who was then 16 years old, single, a first year high school student of the Masbate College and a resident
of Masbate, Masbate, corroborated defendant's defense of denial and alibi and thus declared that on the evening of June 12, 1964, he went
to the Magallanes Gate and returned home at 2:30 in the morning of the following day, June 13, 1964; that at around 12:00 midnight, he saw
Rudy Regala drinking beer in the canteen inside the plaza (Magallanes Gate); that from the time he met Rudy Regala at 10:00 up to the time
he went home, he saw Rudy Regala drinking in the canteen; that the plaza was crowded that evening of June 12, 1964; and that he went
home together with Rudy Regala (pp. 183-184, t.s.n. Vol. III, rec.).

He revealed on cross-examination that he saw Rudy Regala that evening dance twice; that the canteen where he stayed the whole night was
the one located at the left side, if entering the gate; that he never left that canteen from the time he entered the same up to the time he left for
home; that Rudy Regala likewise did not leave the canteen except to dance after which he returned to the canteen; that from the time he
entered the plaza at 8:00 o'clock of June 12, 1964 up to the time he and Rudy Regala went home together, he was always with Rudy Regala
and that he saw Rudy Regala at the canteen situated at the left side of Magallanes Gate (pp. 184-185, t.s.n., Vol. III, rec.).

Defendant Rudy Regala's father, Cleto Regala, then 52 years old, married, a merchant and residing since 1947 at the market site, Masbate,
Masbate, testified that as a merchant he sells vegetables and sari-sari; that he does not sell coffee; that in the evening of June 12, 1964, he
was at the pingpong game site and he was selling coffee because it was the town fiesta; that he knows that his son Rudy Regala went to the
dance at the Magallanes Gate that evening; that at around 3:00 o'clock of the following morning of June 13, 1964, his son Rudy Regala
arrived at the pingpong site where he was selling coffee; that his son did not talk to him, neither did he talk to his son; that his son drank
coffee and thereafter he slept on the bench; that he had not seen Exhibit "A" (knife), as among those in his household; that his son had not
used that kind of weapon; that at around 10:30 to 11:00 o'clock in the morning of June 13, 1964, PC Sgt. Gotis picked up his son at his
residence and brought him to a car; that in the evening of June 14, 1964, Sgt. Gotis arrived at his (witness) residence and asked for the blue
banlon shirt of Rudy Regala as according to him (Sgt. Gotis Rudy Regala needed it as he was feeling cold; that he gave Sgt. Gotis a newly
ironed shirt but Sgt. Gotis told him that that was not the one because he (Sgt. Gotis was looking for a blue banlon shirt with stripes; that the
shirt of Rudy Regala when he came home from the plaza was one which appeared to be yellow during daytime but white during nighttime;
that Exhibit "2" is the shirt he was referring to as worn by Rudy Regala that morning; that this was the very shirt he showed Sgt. Gotis but
Sgt. Gotis told him that that was not the one; and that Rudy Regala does not have a blue shirt with red stripes (pp. 180-183, t.s.n., Vol. III,
rec.).

The other accused Delfin Flores who was then 24 years old, single, a farmer and a resident of Cawayan Interior, Masbate, Masbate, testified
in his defense that in the evening of June 12, 1964, he arrived at around 9:00 o'clock without any companion at the dance at Plaza
Magallanes and he was able to enter immediately; that he stayed there up to 1:00 o'clock of the following morning, June 13, 1964; that at
1:00 o'clock nothing happened to him; that before 1:00 o'clock in the morning of June 13, 1964, while he was dancing, Chief of Police
Salvacion announced on the stage that a PC man had been stabbed; that after that announcement, he was boxed by one Bacalano from the
Island by reason of which he fell and when he stood up he drew his double-bladed knife but policeman David Natural approached and told
him to surrender the knife, which he did, and then he was arrested and taken to the municipal building of Masbate, Masbate, where he was
lodged in jail until the next (whole) morning; that on or before June 12, 1964, he did not yet know his co-defendant Rudy Regala; that he
came to know Rudy Regala for the first time in the PC camp on June 16, 1964 when they were brought to the municipal building of Masbate,
Masbate; that on June 13, 1964 at 2:00 o'clock in the afternoon he was taken by a PC man whom he did not know, from the municipal
building to the PC camp; that at the PC compound, he was investigated by persons whom he does not know; that in the investigation he was
told to admit the crime because according to them Rudy Regala had already admitted and pointed to him (accused) as one of Rudy Regala's
companions but he told them that he could not admit because Rudy Regala was not his companion; that because of his denial, he was
boxed by them in the abdomen and he fell down with his buttocks on the ground; then he was boxed again on the left side of his buttocks by
reason of which he rolled on the ground; that he does not know the names of those who boxed him; that the maltreatment was done inside
the room without the presence of PC officers, as only the PC man who boxed him was present; that there were two PC men who boxed him
but he does not know their names; that he stayed up to 4:00 o'clock in the afternoon of June 13, 1964 in the PC compound; that on that day,
June 13, 1964, there were six other suspects who were investigated but he does not know their names; that he was returned to the municipal
jail on June 13, 1964 and on June 14, 1964, at around 8:00 o'clock in the morning, 2 PC soldiers, whose names he does not know, took him
from the municipal jail and brought him back to the PC compound and, again, he was told by a PC captain who investigated him, to admit the
crime because according to them, Rudy Regala had already admitted and pointed to him as his companion when he (Rudy Regala) stabbed
Sgt. Desilos but he told them that he could not admit as Rudy Regala was not his companion; that while he was being investigated by the PC
captain, another PC soldier got hold of his abdomen and boxed him; that he does not know this PC soldier but he can recognize his face,
Chat the investigation results were not reduced into writing; that he did not sign anything nor was he ever subjected to fingerprinting; that he
was brought to the PC compound four times in all; that every time he was brought to the PC compound he was being told to admit the crime
as Rudy Regala had already admitted and pointed to him as his companion who stabbed Sgt. Desilos but in all such occasions, he answered
them that he could not admit because Rudy Regala was not his companion; that the second time that he was brought back to the PC
compound, there were six other suspects in the compound who were investigated but he does not know them; Chat he was mixed with the
other six suspects and lined up inside the PC compound; that when they were lined up, the PC did not do anything but only left them there
lined up; that they were fined up only once.

He further testified that he does not know either Sgt. Juan Desilos Jr. or Erlinda Tidon that the declarations of Erlinda Tidon in the witness
stand regarding his participation in the stabbing of Sgt. Juan Desilos Jr. are not true; that it was only while Erlinda Tidon was on the witness
stand that he first saw her; that he did not see Erlinda Tidon at the Plaza Magallanes in the evening of June 12, 1964; that neither does he
know witness Juanito Evangelists; that the declarations of Juanito Evangelista with respect to his participation in the stabbing of Sgt. Desilos
are not true; that he saw Juanito Evangelista for the first time only when the case was being tried by the court; and that he did not see
witness Juanito Evangelista in the evening of June 12, 1964 at Plaza Magallanes (pp. 17-36, t.s.n., Vol. IV, rec.).

Cross-examined, he revealed that his educational attainment is Grade VI. Over the objection of his counsel the Court allowed a question
propounded to him about his previous criminal conviction and he declared that he was convicted of the crime of murder in Masbate, Masbate
by Judge Benedicto; that the victim in that crime of murder was Ricardo Cuyos that by reason of his conviction he served sentence in
Muntinglupa and thereafter he was paroled; that on the night of June 12, 1964 at 9:00 o'clock in the evening, he went to the dance at
Magallanes Gate; that at that time, there were so many people trying to get in that there was no PC soldier at the gate but there were many
people around the vicinity going to the entrance; that he went inside the auditorium and saw the coronation of the queen; that he was not at
Magallanes Gate the night previous to June 12, 1964 as it was only that evening of June 12, 1964 that he went there; that he was dancing
when Chief Salvacion made the announcement; that he does not know the name of the person with whom he was dancing; that the music
being played previous to the announcement was sweet; that when Chief Salvacion made the announcement, the music stopped and so
everybody stopped dancing; that he was at a distance of 15 meters from the gate when the dance was stopped; that he was no longer
dancing with his unknown partner when Chief Salvacion announced the stabbing of the PC soldier; that he does not know witnesses Erlinda
Tidon and Juanito Evangelista and does not know of any grievance or trouble with them; that he knows Balacano who boxed him several
times after the announcement made by Chief Salvacion; that he was arrested only after Chief Salvacion had finished his announcement; that
before his arrest, he was no longer dancing; that he was not dancing when Balacano boxed him; that David Natural, a policeman, of
Masbate, Masbate arrested him that night inside the Magallanes Gate 15 meters from the gate; that after his arrest, he was brought to the
municipal building of Masbate, Masbate; that policeman Natural was with PC soldiers who escorted him to the municipal building where they
arrived at past 1:00 o'clock; and he stayed there until that time that the PC soldiers got him from the municipal jail at around 8:00 o'clock in
the morning of June 13, 1964; and that from 1:00 o'clock to 8:00 o'clock of June 13, 1964, he was detained in the municipal jail of Masbate,
Masbate. Cross-examined by the Court, accused Delfin Flores affirmed that the only time he attended the dance at the Magallanes Gate was
on the evening of June 12, 1964; that he entered the gate at about 8:00 o'clock in the evening that he did not have a watch at that time; that
per his calculation, Chief Salvacion made the announcement on the stage at about 11:00 o'clock in the evening of June 12, 1964; that
because he had no watch it was possible that the time when Chief Salvacion made the announcement was midnight of June 12, 1964 or one
minute thereafter, which was already June 13, 1964; that he was no longer dancing at the time Chief Salvacion made the announcement as
he was then conversing with a lady at a place around 15 meters from the Magallanes Gate; that on that night he had in his possession a
double-bladed knife which he brought with him to the dance hall because he was alone when he left his house; that he hid the knife in his
body so that nobody could see it; that at the time he was dancing with his unknown partner, the knife was in his body; that he knew that he
was a suspect not because he had a conversation with the PC but because he was placed in a line-up; that when he was being placed in the
line-up, he did not know that he was being scrutinized by certain individuals from somewhere, but there were people in the PC barracks; that
he did not know whether these Miss Ridon and Mr. Evangelists were looking at him while he was placed in the line-up; that he was placed in
the line-up only once; that he did not come to know that on that evening after the line-up there were persons who have Identified him and
Rudy Regala as the persons seen at the Magallanes Gate near the exit gate; neither did he come to know that after the line-up that evening,
Miss Tidon and Mr. Evangelista had pinpointed him and Rudy Regala as the persons they saw in front of Sgt. Desilos immediately before he
fell down wounded by a knife; that the PC soldiers maltreated him; that he was not made to sign anything; neither was he forced by the PC to
sign anything; that Rudy Regala was not also forced to sign anything nor obliged to declare anything; that he did not know that Sgt. Desilos
was a PC soldier; that at the time he was arrested that evening he already knew that a PC soldier had been stabbed but did not know yet
that it was Sgt. Desilos that he only came to know the victim as Sgt. Desilos in the morning of June 13, 1964; that he was charged with
concealment of a deadly weapon by the police force of Masbate; and that he pleaded guilty to the charge and was consequently sentenced
to two months' imprisonment which he had served out already (pp. 45-60, t.s.n., Vol. IV, rec.).

On re-direct he revealed that in the criminal case of People versus Delfin Flores for the murder of Cuyos, he pleaded guilty to the crime
charged, and affirmed that in the case of illegal possession of deadly weapon, he also pleaded guilty (pp. 60-61, t.s.n., Vol. IV, rec.).

By way of rebuttal evidence, prosecution presented witnesses Felixberto Laguerta and Gerardo Gotis.

Felixberto Laguerta who was then 43 years old, married, and a policeman of Masbate, Masbate, testified that the testimony of Rudy Regala
that the Black Jack organization is a club and not a gang, is not true because it is called the Black Jack gang; that he knows that it is a gang
and not a club because the members have tattoos on their shoulders; that it is also not true that Pedro Verga Eladio Mendoza, Rudy
Espinas, Romeo Floresta and Alberto Abayon are not members of the Black Jack gang; that all of them were arrested for being members of
the said gang; that it is also not true as testified by Rudy Regala that he was not arrested by him at the cockpit when he (Rudy) was about to
stab PC Formalejo for the truth was that on December 22, 1963 he arrested him and confiscated from him a knife; that Exhibit "F" is the
same knife he confiscated from Rudy Regala, but no case was filed against Rudy Regala in connection therewith because Formalejo refused
to file a complaint against Regala (pp, 6367, t.s.n., Vol. IV, rec.).

Cross-examined, he testified that he has been a policeman for 19 years; that he was told by Fiscal Butalid to testify in this case that he did
not execute any affidavit in connection with his arrest of Rudy Regala and confiscation from him of a knife, Exhibit "F"; that he reported the
matter to the chief of police of Masbate, Masbate, Chief Salvacion; that he does not know whether the arrest and confiscation were recorded
in the police blotter as it was the police sergeant who was in charge of recording the same; that the basis of his testimony that Rudy Espinas,
Pedro Verga Romeo Floresta are members of the Black Jack gang is the tattoo on their shoulders which is in the form of cards and that all of
them were arrested by reason of the fact that they are all members of said gang; that membership in the Black Jack gang is a crime; that
because they are members of a gang, he suspected them of doing something bad; and that they were arrested because they were doing
something wrong in the poblacion (pp. 68-72, t.s.n., Vol. IV, rec.).

Cross-examined by the trial judge, witness confirmed that Rudy Regala is a relative of a very high ranking municipal official of the town of
Masbate, Masbate, as the mother of Rudy Regala is the cousin of the town mayor-Mayor Magallanes. However, he does not know whether it
was by reason of this relationship that Rudy Regala's father and mother are living inside the market site of Masbate, Masbate. He further
revealed that he delivered the knife "Exhibit "F" to Chief Salvacion but no action was taken by Chief Salvacion against Rudy Regala in
connection therewith (pp. 72- 73, t.s.n., Vol. IV, rec.).

The other rebuttal witness, Gerardo Gotis, then 47 years old, married, and sergeant of the PC at Masbate, Masbate, testified that Rudy
Regala's assertion on the witness stand that he was maltreated at the PC barracks was a he as Rudy Regala was never maltreated; that
when he arrested Rudy Regala on June 13, 1964 at the market place, he was able to confiscate from Mm a knife (identified as Exh. "G") [pp.
74-76, t.s.n., Vol. IV, rec.].

Cross-examined by defense counsel, he affirmed that he got the knife, Exhibit "G" from Rudy Regala last June 13, 1964; that he did not file
any case against Rudy Regala in connection with Exhibit "G" as he merely indorsed the same to the 1st PC sergeant and because his
commanding officer, Capt. Eugenio ordered him not to file any case as there was already a case against Rudy Regala. However, he
retracted his testimony that the non-filing of the case was the order of Capt. Eugenio. The reason for the non-filing was because it was
merely overlooked as they were then busy investigating suspects in this murder case (pp. 76-78, t.s.n., Vol. IV, rec.).

The trial Judge gave more weight and credence to the testimonies of the witnesses of the People than that of the accused, resulting thus, as
aforestated, in the conviction of accused Rudy Regala for the complex crime of murder with assault upon an agent of a person in authority,
and the imposition on him of the supreme penalty of death. However, with respect to the other accused, Delfin Flores, the trial Judge found
him guilty only as an accessory after the fact. Consequently, the trial Judge imposed upon accused Delfin Flores the penalty of eight months
and 21 days as minimum, to six years and 1 day of prision mayor as maximum with the recommendation that his parole be immediately
cancelled.

Before Us therefore by way of review is only the death penalty imposed on accused Rudy Regala; because Delfin Flores did not interpose
any appeal from his conviction as an accessory after the fact, and was accordingly released on June 11, 1973 after the expiration of his
sentence as certified by the Director of the NBP (p. 198, Vol. I, rec.).

Counsel de officio contends that the trial court erred in failing to give the two accused a fair trial; in holding Rudy Regala responsible for the
killing of Juan Desilos Jr.; in convicting Rudy Regala, assuming arguendo that he was the man who stabbed the victim, of the crime of
murder with assault upon an agent of a person of authority; and in holding Delfin Flores, under the alleged facts of the case, liable as
accessory after the fact of the crime of murder with assault against an agent of a person in authority.

Counsel de officio claims in support of the first assigned error that the indignation and revulsion of the trial Judge at the commission of the
monstrous crime herein involved as can be gleaned from the decision under review, thus:
 Murder as a crime is indeed heinous. But when the crime had to be committed in a public place, where
people were enjoying the spirit of the fiesta, and amidst the sound of the drums and the trumpets and the
tantalizing sweetness of the dance music, the deviltry of the perpetrator is compounded. The perversity of
the perpetrator is even made more ugly and ugliest indeed because the victim was in the uniform of an
agent of the law and was performing his duty as he saw fit. He was there foregoing the pleasure of the
evening so that others may enjoy. He was there as a symbol of authority so that peace may be maintained
for those many who love peace and tranquility. He was there, distant from his home, his wife and his
children who would want him near them during those happy and festive moments in answer to the call of
duty, only to be treacherously killed by an assassin with the blackest soul. He died almost in the spot where
duty demanded of him. He died so that others may enjoy and live. His was a fruitful life with a duty well done
and his was a heroic death. He died in the altar of public service and his was a death of a hero. The Court
would be recreant of its duty if it should fail to notice this splendid performance of a lowly but loyal public
servant (p. 44, Vol. I, rec.).

directly caused undue prejudice against the accused because of his previous criminal record as manifested by the following portions of the
decision of the trial Judge —

Who is Rudy Regala? He is a convict, although in the crime of slight physical injuries. According to Municipal
Judge Jose Angustia. of Masbate, he has been brought very often to his Court for several mischiefs he has
committed. And who is Delfin Flores? He is a convicted murderer and a parolee. Birds of the same feather,
flock together (p. 32, Vol. I, rec.).

Is there a possibility that Rudy Regala could perpetrate the crime in company of Delfin Flores, a parolee,
moments before midnight and/or moments after midnight? The distance of the canteen from the exit gate is
not considerable. Rudy Regala could have been at the canteen early that evening and could have gone out
with Delfin Flores and then returned at the exit door, committed the crime and then returned to the canteen
to prepare for his alibi? This may be conjectural, but the possibility would not be farfetched. To a man with
criminal mind and criminal tendencies, anything could be possible (p. 25, Vol. I, rec.).

... So that after the incident, he could have disappeared among the crowd and he and Rudy Regala could
have returned inside in order to establish an alibi. It should be remembered that Delfin Flores and Rudy
Regala are convicts and are dangerously mischievous. Although it may be argued that criminals would not at
times return to the scene of their adventures, nevertheless, there are those who, to prepare an alibi, would
do so, accustomed as they have been in committing acts of deviltry Is this possible and/or probable?

While witnesses of the defense, because of their ages, their being acquaintances close and tight, have
every reason to help their friend Rudy Regala in his terrible predicament, Rudy Regala, a member of an
organization with tatoos on their right arm, could have certain moral ascendancy over Abayon, Mendoza and
Florista and even with Noemi Almirol, that in the spirit of friendship they are coming to the rescue of criminal
friend Rudy Regala (pp. 25-26, Vol. I, rec.).

The defense of the accused is alibi. Rudy Regala claimed that he was inside the canteen, which was a few
members from the exit door of the Magallanes auditorium on the night Sgt. Desilos was stabbed. Rudy
Regala is a convict and a notorious young man and the Court will take the same into account (p. 29, Vol. I,
rec.).

In essence, therefore, counsel de officio's first assigned error boils down to the delicate question of whether appellant Rudy Regala was
denied due process of law. It must be emphasized that the jurisprudence under the 1935 Constitution treated the right of an accused to
impartial trial as an aspect of the guarantee of due process. Under the present Constitution, that right to impartial trial is now expressly
declared as one of the cardinal rights of an accused. Thus its Section 19, Article IV (Bill of Rights), provides that "(I)n all criminal
prosecutions, the accused ... shall enjoy the right ... to have a speedy, impartial and public trial ..." (emphasis supplied). WE have declared
that "... It is a fundamental right enshrined in the Constitution that no one is to be deprived of his liberty without due process of law. Moreover,
there is a specific reference to its indispensability in a criminal prosecution. Thus is emphasized its importance for an accused. He can rely
on the guarantee of fairness according to the fundamental law, which moreover provides additional safeguards at the stage of trial. Our
Constitution does indeed go far in throwing the mantle of its protection on the one who is caught in the meshes of criminal law. The
proceeding must neither be arbitrary nor unjust. It is to underscore the importance of a trial judge being detached and objective, free from
bias either for or against the prosecution or for the person indicted. As was so aptly put by Justice Dizon: 'It has been said, in fact, that due
process of law requires a hearing before an impartial and disinterested tribunal and that every litigant is entitled to nothing less than the cold
neutrality of an impartial judge ...' Earlier in People vs. Castañeda, Justice Laurel made clear the necessity for a 'trial before an impartial
judge.' If it were otherwise, the pledge of due process becomes a myth. The trial is reduced to nothing but a useless formality, and Idle
ceremony. If a judge had made up his mind to convict, even innocence would not suffice as a defense" (People vs. Angcap, 43 SCRA 437,
441-442 [1972]).

The thrust of appellant's posture is that the trial Judge, considering "his fully justified indignation and revulsion at the commission of such a
monstrous crime" of murder, became prejudiced against appellant (as well as his co-defendant) after his previous criminal conviction was
brought forth during the trial, to the extent that the trial Judge no longer gave due consideration to the evidence of the defense (pp. 73-78,
Vol. I, rec.).

On the other hand, the Solicitor General submits that the above argument of counsel de oficio does not properly fit the assigned error,
because it assails the decision of the trial court and its appreciation of the evidence submitted therein rather than the conduct of the trial itself
(pp. 607, Appellant's Brief, p. 184, Vol. I, rec.).

An impartial trial necessarily requires an impartial judge to conduct the same. In other words, absent an impartial judge, there can be no fair
and impartial trial. Appellant impugns the impartiality of the trial judge, who was allegedly prejudiced against the appellant.

WE do not agree with counsel de officio that the trial court failed to accord appellant Rudy Regala a fair trial. Appellant has not pointed, and
We have found none, to any part or stage of the trial betraying the trial Judge's hostility, bias and prejudice against the appellant after the
prosecution had brought forth the fact of appellant's previous criminal conviction. As a matter of fact, appellant's previous conviction of the
crimes of malicious mischief and slight physical injuries was testified to only by the witness last presented by the prosecution in its evidence
in chief. And the trial Judge, contrary to the claim of the appellant, gave due consideration to his evidence as shown by the fact that in the
decision of conviction, the trial Judge examined extensively the testimonies of all the eight witnesses for the defense. Consequently, while
the quoted portions of the judgment of conviction are interspersed with statements and phrases which properly should not have been made
as they may be wrongly interpreted as indicative of bias and prejudice, such aforestated statements and phrases in the judgment of
conviction do not per se constitute evidence of bias and impartiality in the conduct of the trial by the trial Judge as to violate appellant's right
to an impartial trial. WE view the trial Judge's aforequoted statements and phrases as merely an expression, in the very words of appellant's
counsel de officio herself, of the Judge's " ... fully justified indignation and revulsion at the commission of such a monstrous crime ..."

II

1. The trial court correctly rejected appellant Regala's defense of alibi and denial. Indeed such defenses cannot prevail over the affirmative
testimonies of Erlinda Tidon and Juanito Evangelista who positively Identified appellant Rudy Regala as the one who inflicted the single but
fatal wound on the deceased Sgt. Juan Desilos Jr. (People vs. Cabiling 74 SCRA 285 [1976]; People vs. Roxas, 73 SCRA 583, 591 [1976].
And the exit gate where the stabbing took place was just in the vicinity of — about 15 meters from — the canteen where appellant was
allegedly drinking beer during the night of June 12 until the early morning of the 13th. Alibi, to be convincing must preclude any possibility
that the accused could have been physically present at the place of the crime nor its immediate vicinity at the time of its commission (People
vs. Roxas, supra).

While the crime took place at midnight or a little past thereafter, such circumstance does not vitiate witnesses' Identification of appellant Rudy
Regala as the person who stabbed to death Sgt. Juan Desilos Jr.; because the place at that time was well lighted by reason of the affair
being celebrated (pp. 16, 78, Vol. III, rec.). Furthermore, the two witnesses were close to the exact spot of the incident as witness Tidon was
barely one-half meter from the victim (p. 14, Vol. III, rec.), while witness Evangelista was about a meter from the exit gate where the victim
was stabbed (p. 84, Vol. III, rec.). Hence, the possibility of erroneous Identification is remote. Despite the fact that both witnesses before the
stabbing incident did not know appellant by name, they both declared that they knew him by face or appearance (pp. 31, 81, Vol. III, rec.).

Furthermore, appellant has not shown by evidence of any evil motive on the part of prosecution witnesses Tidon and Evangelista to testify in
the manner they did. The absence of any such improper motive enhances the credibility of said witnesses (People vs. Roxas, supra).

2. It is a recognized principle that on the matter of credibility of witnesses, the observation of the trial court must be accorded respect and
great weight in view of its special opportunity to observe closely the demeanor of the individual witnesses. As a matter of fact, the trial court
gave its observations on the witnesses' conduct and candor on the witness stand, thus:

Because of the seriousness of the offense not only because of the challenge that the perpetrator has poised
upon the community the people and all citizenry because of the brazen manner of its commission, which
was made before several people and in the midst of the festive mood of the occasion but because of the
grave penalty which the crime carries, the Court took special interest in the two witnesses for the
prosecution. It was carefully observed by the Court that both witnesses were curt on their declaration they
were straightforward in their reply and their voice carry the ring of sincerity and truth. Their manner of
replying on (sic) the question of the prosecution were those (sic) of serene honest and truthful individuals,
who wanted to impart clearly what they saw. Their answer to the cross examination were (sic) given with a
clear and convincing manner. They were men who sat on the witness stand merely to convey what they
have seen and noticed then, without hesitation.

The Court cannot help but be convinced of the trustworthiness of their revelation. Under the searching
barrage of cross-examination, they were never ruffled but they withstood the fire with simple dignity,
speaking with a voice full of candor and truth. That is the impression these two witnesses have created in
the mind of the Court. The clearness and simplicity of their assertion and their direct and positive
Identification of the accused Rodolfo Regala alias Rudy Regala and Delfin Flores have convinced this Court
(emphasis supplied).

Because the trial Judge had spoken on a matter, which he indisputedly is in a much better position to appreciate, this Court can do no less
than to place its imprimature thereon. Indeed, it has been aptly observed that

... the judge who tries a case in the court below has vastly superior advantages for the ascertainment of truth
and the decision of falsehood over an appellate court sitting as a court of review. The appellate court can
merely follow with the eye the cold words of the witness transcribed upon the record, knowing at the same
time, from actual experience, that more or less of what the witness actually did say is always lost in the
process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of
determining with any degree of accuracy what credit is justly due to a witness from merely reading the words
spoken by him, even if there were no doubt as to the Identity of the words. However artful a corrupt witness
may be, there is generally, under the pressure of a skillfull cross-examination, something in his manner or
bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests
of truth by which the artful witness is exposed in the very nature of things cannot be transcribed upon the
record, and hence they can never be considered by the appellate court. For this reason the rule is firmly
established that where there is an irreconcilable conflict in the testimony, the appellate court will not reverse
the judgment of the trial court, where the evidence of the successful party, when considered by itself, is
clearly sufficient to sustain the verdict (several cases cited) or unless some conclusion established from the
fact is inconsistent with the court findings or there is some inherent weakness in the evidence upon which
the conclusion is based, or unless there appears in the record some fact or circumstance of weight and
influence which has been overlooked or the significance of which has been misinterpreted, as where the trial
court in the valuation of testimony misinterpreted a supposed inherent weakness thereof not arising from the
behaviour of the witness on the stand ... (People vs. Alto, 26 SCRA 342, 365 [1968]).

3. Consequently, the inconsistencies and incredibilities in the testimonies of the material witnesses of the prosecution as pointed out by the
appellant are better left to the appreciation of the trial court, which has not found the same sufficient to destroy the probity of said witnesses.

Appellant contends that prosecution witness Erlinda Tidon's testimony to the effect that appellant Rudy Regala and accused Delfin Flores ran
away after appellant Rudy Regala had stabbed Sgt. Juan Desilos Jr., is improbable considering that, according to Tidon herself, the scene of
the crime was crowded or overflowing with people and consequently one cannot move fast or run (pp. 15, 16, 43, Vol. III, rec.). Such
inconsistency or improbability is more apparent than real. It may be true that under normal condition, that is, absent any unusual incident
such as the killing of a peace officer, such assertion may be characterized as improbable. This is not so, however, in the instant case;
because the commotion created by the stabbing incident enabled the culprits to easily disappear among the milling throng.

Again, the testimony of Erlinda Tidon to the effect that no other unusual incident occurred after the stabbing incident may not be
characterized as false; because witness Tidon may have treated the stabbing incident and the consequent commotion engendered by the
same as one continuing incident, instead of treating them as two separate incidents. Hence, she answered that aside from the stabbing
incident no other unusual incident took place.
Moreover, We have noted in People vs. Resayaga (54 SCRA 350 [1973]) that it is a common phenomenon to find inconsistencies, even
improbabilities, in the testimony of a witness, especially on minor details or collateral matters. That the accounts of witnesses regarding the
same occurrence are contradictory on certain details is not unusual. There is no perfect or omniscient witness because there is no person
with perfect faculties or senses or a perfect control of his emotions. An adroit cross- examiner may trap a witness into making statements
contradicting his testimony on direct examination. By intensive cross- examination on points not anticipated by the witness and his lawyer, a
witness may be misled or trapped into making Statements that do not dovetail with the testimonies of other witnesses on the same points.
Yet, if it appears that the witness has not wilfully perverted the truth, as may be gleaned from the tenor of his testimony and as appreciated
by the trial Judge from his demeanor and behaviour on the witness stand, his credibility on material points may be accepted.

III

The killing of Sgt. Juan Desilor Jr., according to the trial court, was qualified as murder by the circumstances of treachery and evident
premeditation and hence, appellant was convicted of the complex crime of murder with assault upon an agent of a person in authority.

Neither treachery nor evident premeditation can be properly appreciated and considered in tills instance case so as to characterize the killing
as murder. So appellant contends and the Solicitor General agrees. WE find the aforesaid common stand correct as the evidence supports
the same.

Treachery is never presumed; it must be proven as conclusively as the act itself. It must be shown that the accused employed "... means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution without risks to himself arising from the
defense which the offended party might make. "

By prosecution's own evidence, appellant was enraged because the deceased (Sgt. Juan Desilos Jr.) pushed his companion Delfin Flores
and admonished him not to get in through the exit gate, then pulled out his knife and stabbed the victim in the abdomen. Treachery cannot
therefore be appreciated as the attack made by appellant Rudy Regala was merely an immediate retaliation for the pushing made by the
deceased, which act placed him on his guard. Moreover, deceased Juan Desilos Jr. at the time had a sidearm (p. 97, Vol. III, rec.) and was
free to defend himself with it. If appellant's design was to be safe from a possible defense that the victim might make, he could have
disarmed the victim first before stabbing him. This he did not do. Certainly, these circumstances negate treachery.

With respect to the qualifying circumstance of evident premeditation, it is well-settled that the essence of premeditation is that the execution
of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of
time sufficient to arrive at a calm judgment. Consequently, it must be clearly established by evidence the time when the offender determined
to commit the crime, and a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the
consequences of his act. Neither the record nor the appealed decision intimates the existence of the foregoing circumstances which are
essential for a positive finding of evident premeditation. On the contrary, the circumstances of the case rule out premeditation.

The principle enunciated in the Manalinde (14 Phil. 77 [1909]), Butag (38 Phil. 746 [1918]), Binayon (35 Phil. 23 [1916]) and Zalzos (40 Phil.
96 [1919]) to the effect that premeditation may exist even if there was no predetermined victim, does not apply in the instance case In all
these cases it was sufficiently established that the accused deliberately planned to kill although without a definite person as intended victim.
In the present case, there is no evidence pointing to the fact that appellant planned to kill any person who ma cross his path. His act of
bringing with him a knife in going to the plaza is not an indication that he did plan to kill anybody.

Consequently, the killing of Sgt. Juan Desilos Jr. by appellant cannot be qualified as murder. It was simple homicide.

But the appellant cannot be convicted of the complex crime of homicide with assault upon an agent of a person in authority because the
information filed against appellant did not allege the essential elements of assault that the accused then knew that, before or at the time of
the assault, the victim was an agent of a person in authority. (People of the Philippines vs. Rodil, L-35156; Nov. 20, 1981; People vs. CFI of
Quezon, Branch V, 68 SCRA 305, Nov. 28, 1975). The information in this case barely alleged that the accused "... with deliberate intent to kill,
with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and
stab with a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his
official duty thereby inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating
cardial and cardiac region which injury directly caused his instantaneous death," which is similar to the information in the aforesaid Rodil
case — "appellant 'attack and stab PC Lt. Guillermo Masana while the latter was in the performance of his official duties, ..." in which We
ruled that "[S]uch an allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime,
which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense ... "

Furthermore, as in the Rodil case, the subject information cannot be cured or validated by the doctrine enunciated in People vs. Balbar (21
SCRA 1119, Nov. 29, 1967), because unlike in the latter case, there are no allegations of facts from which it can be implied that the accused
then knew that, before or at the time of the assault, the victim was an agent of a person in authority.

Moreover, the fact that the crime of assault was established by the evidence of the prosecution without any objection on the part of the
accused cannot likewise cure the aforestated defect in the information so as to validly convict the accused thereof; because to do so would
be convicting the accused of a crime not properly alleged in the body of the information in violation of his constitutional right to be informed of
the nature and cause of the accusation against him.

As already stated, the crime of assault was definitely demonstrated by the evidence of the People because it showed that the victim (Sgt.
Juan Desilos Jr.) while maintaining peace and order at the exit gate of the Plaza Magallanes where the crime took place, was in complete PC
uniform at the time the accused attacked him by reason of the latter's act of pushing the accused and his co-accused so as to prevent them
from entering the plaza through its exit gate. In the aforesaid Rodil case, it was stated that "[L]ike a qualifying circumstance, such knowledge
must be expressly and specifically averred in the information; otherwise, in the absence of such allegation, the required knowledge, like a
qualifying circumstance, although proven, would only be appreciated as aggravating circumstance. Applying this principle, the attack on the
victim, who was known to the appellant as a peace officer, could be considered only as aggravated by being 'in contempt or with insult to the
public authorities' (par. 2, Art. XIV, Revised Penal Code) or as an insult or in disregard of the respect due the offended party on account of his
rank ..." (par. 3, Art. XIV, Revised Penal Code).

Appellant can therefore be convicted only of the crime of homicide, aggravated by the circumstance of "in contempt or with insult to the
public authorities" (par. 2, Art. XIV, Revised Penal Code), or as an "insult or in disregard of the respect due to the offended party on account
of his rank ..." (par. 3, Revised Penal Code).

WE stated in the Rodil case, thus:

 The term "rank" should be given its plain, ordinary meaning, and as suck refers to a high social position or
standing as a grade in the armed forces (Webster's Third New International Dictionary of the English
Language Unabridged, p. 1881); or to a graded official standing or social position or station (75 CJS 458);

xxx xxx xxx

or to a grade or official standing, relative position in civil or social life, or in any scale of comparison, status,
grade, including its grade, status or scale of comparison within a position (Vol. 36, Words and Phrases,
Permanent Edition, p. 100).

xxx xxx xxx

As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those "generally considered of high
station in life, on account of their rank (as well as age or sex), deserve to be respected. Therefore, whenever
there is a difference in social condition between the offender and the offended party, this aggravating
circumstance sometimes is present" (Albert M.A.— The Revised Penal Code Annotated, 1946 Ed., p. 109).

xxx xxx xxx

The aggravating circumstance of contempt of, or insult to, public authority under paragraph 2 of Article 14 of
the Revised Penal Code can likewise be appreciated in the case at bar.

xxx xxx xxx

While it is true that in the case of U.S. vs. Rodriguez, et al. (19 Phil. 150, 157-158), People vs. Siojo (61 Phil.
307, 317), and People vs. Verzo (21 SCRA 1403), this Court ruled that the term public authority refers to a
person in authority and that a PC lieutenant or town chief of police is not a public authority but merely an
agent of a person in authority; there is need of re-examining such a ruling since it is not justified by the
employment of the term public authority in aforesaid paragraph 2 of Article 14 instead of the term person in
authority which is specifically used in Articles 148 and 152 of the Revised Penal Code. There is no extended
reasoning of the doctrine enunciated in the aforesaid three (3) cases why the phrase public authority should
comprehend only persons in authority. The lawmaker could have easily utilized the term "persons in
authority" in the aforesaid paragraph 2 of Article 14 in much the same way that it employed the said phrase
in Articles 148 and 152. The lawmaker must have intended a different meaning for the term public authority,
which may however include, but not limited to, persons in authority.

Under the decided cases, a municipal mayor barrio captain, barrio lieutenant or barangay captain is a
person in authority or a public authority. Even a public school teacher is now considered a person in
authority under CA 578 amending Article 152 of the Revised Penal Code (Sarcepudes vs. People, 90 Phil.
228). So is the town municipal health officer (People vs. Quebral, et al., 73 Phil. 640), as well as a nurse, a
municipal councilor or an agent of the Bureau of Internal Revenue (People vs. Yosoya, CA-G.R. No. 8522-R,
May 26, 1955; People vs. Reyes, et al., O.G.S. 11 p. 24).

The chief of police should therefore be considered a public authority or a person in authority; for he is vested
with jurisdiction or authority to maintain peace and order and is specifically duty bound to prosecute and to
apprehend violators of the laws and municipal ordinances, more than the aforementioned officials who
cannot prosecute and who are not even enjoined to arrest malefactors although specifically mentioned as
persons in authority by the decided cases and by Article 152 of the Revised Penal Code as amended by
R.A. 1978 of June 22, 1957, The town chief of police heads and supervises the entire police force in the
municipality as well as exercises his authority over the entire territory of the municipality, which is patently
greater than and includes the school premises or the town clinic or barrio, to which small area the authority
or jurisdiction of the teacher, nurse, or barrio lieutenant, respectively, is limited.

Likewise, the guilt of appellant is aggravated by recidivism as he was previously sentenced by final judgment for slight physical injuries.

WHEREFORE, APPELLANT RODOLFO REGALA ALIAS RUDY REGALA IS HEREBY FOUND GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF HOMICIDE AGGRAVATED BY RECIDIVISM AND BY CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY OR
DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HIS RANK, WITHOUT ANY MITIGATING
CIRCUMSTANCE, AND HE IS HEREBY SENTENCED TO SUFFER AN INDETERMINATE TERM OF IMPRISONMENT RANGING FROM
TWELVE (12) YEARS OF PRISON MAYOR AS MINIMUM TO TWENTY (20) YEARS OF RECLUSION TEMPORAL AS MAXIMUM:

People vs Regala
G.R. No. 130508
April 5, 2000

Facts:

On the night of September 11, 1995, at Barangay Bangon in Aroroy, Masbate, then 16-year old victim Nerissa
Tagala and her grandmother, Counselo Arevalo, were sleeping, when appellant Armando Regala and his two other
companions entered the former’s house.

Appellant and his companions entered the house through the kitchen and went to the room of the victims and
poked at 8-inch gun on them, one after the other, and hogtied both of them. Armando raped Nerissa in bed while
her grandmother was hogtied on the floor. Later, she saw her grandmother’s aparador being opened where two
rings, two wrist watches, and money were taken from the aparador. After raping her in bed, Nerissa saw accused-
appellant counting the money taken from the aparador. Thereafter, she was brought to the kitchen, still hogtied and
was raped again by the accused.

He was convicted in the lower court but accused-appellant appealed his criminal case at the Regional Trial Court in
Masbate. He questioned the sufficiency of the prosecution’s evidence in identifying him as one of the perpetrators
of the crime charged. And based on medico-legal, Dr. Conchita Ulanday, a health officer of Aroroy, testified herself
that the complaining witness “either” voluntarily submitted to a sexual act or was forced into one.

Issue:

(a) Whether additional rape committed in a crime of robbery be considered as an aggravating circumstance?

Held:

On cross-examination, both Nerissa Tagala and Consuelo Arevalo, separately testified that they saw the face of
Regala, despite of no electricity at the commission of the crime, because he used a flashlight and took off the mask
he was wearing, and thus, they remembered him wearing an earring of his left ear, which he was still wearing at the
time of the police line-up inside the police station.

The trial court held that contradiction referred to a minor detail, cannot detract from the fact, that both Nerissa and
Consuelo positively identified the accused-appellant. As correctly pointed out by the appellee, the victim was a 16-
year old barrio lass, not exposed to the ways of the world and was not shown to have any ill-motive to falsely
implicate accused-appellant, who was a stranger. Hence, Dr. Ulanday’s testimony does not support the contention
of accused-appellant that the victim voluntarily submitted to sexual advances of Regala.

The crime of robbery with rape was committed in 1995 when RA 7659 was already in force. Under Article 294 of the
Revised Penal Code as amended, now provides, under paragraph 1 thereof: (1) The penalty of reclusion perpetua to
death, when for any reason of or on occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional mutilation or arson.

In this case, the additional rape committed by herein accused-appellant should not be considered as aggravating.
The penalty of reclusion perpetua imposed by the trial court is proper. The judgment convicting Armando Regala y
Abriol guilty beyond reasonable doubt of the crime of Robbery with Rape, where the victim is entitled to an
additional award of P50,000.00 as civil indemnity.
G.R. No. 155076 February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner,

vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court, Makati City, Branch 150, PEOPLE OF THE PHILIPPINES&
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondents.

DECISION

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari of the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order
issued by Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch 150, which denied the "Motion to Quash (With Motion to
Defer Arraignment)" in Criminal Case No. 99-2425 for theft.

Philippine Long Distance Telephone Company (PLDT) is the holder of a legislative franchise to render local and international
telecommunication services under Republic Act No. 7082. 2 Under said law, PLDT is authorized to establish, operate, manage, lease,
maintain and purchase telecommunication systems, including transmitting, receiving and switching stations, for both domestic and
international calls. For this purpose, it has installed an estimated 1.7 million telephone lines nationwide. PLDT also offers other services as
authorized by Certificates of Public Convenience and Necessity (CPCN) duly issued by the National Telecommunications Commission
(NTC), and operates and maintains an International Gateway Facility (IGF). The PLDT network is thus principally composed of the Public
Switch Telephone Network (PSTN), telephone handsets and/or telecommunications equipment used by its subscribers, the wires and cables
linking said telephone handsets and/or telecommunications equipment, antenna, the IGF, and other telecommunications equipment which
provide interconnections.3 1avvphil.net

PLDT alleges that one of the alternative calling patterns that constitute network fraud and violate its network integrity is that which is known
as International Simple Resale (ISR). ISR is a method of routing and completing international long distance calls using International Private
Leased Lines (IPL), cables, antenna or air wave or frequency, which connect directly to the local or domestic exchange facilities of the
terminating country (the country where the call is destined). The IPL is linked to switching equipment which is connected to a PLDT
telephone line/number. In the process, the calls bypass the IGF found at the terminating country, or in some instances, even those from the
originating country.4

One such alternative calling service is that offered by Baynet Co., Ltd. (Baynet) which sells "Bay Super Orient Card" phone cards to people
who call their friends and relatives in the Philippines. With said card, one is entitled to a 27-minute call to the Philippines for about ¥37.03 per
minute. After dialing the ISR access number indicated in the phone card, the ISR operator requests the subscriber to give the PIN number
also indicated in the phone card. Once the caller’s identity (as purchaser of the phone card) is confirmed, the ISR operator will then provide a
Philippine local line to the requesting caller via the IPL. According to PLDT, calls made through the IPL never pass the toll center of IGF
operators in the Philippines. Using the local line, the Baynet card user is able to place a call to any point in the Philippines, provided the local
line is National Direct Dial (NDD) capable.5

PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to course its incoming international long distance calls from Japan.
The IPL is linked to switching equipment, which is then connected to PLDT telephone lines/numbers and equipment, with Baynet as
subscriber. Through the use of the telephone lines and other auxiliary equipment, Baynet is able to connect an international long distance call
from Japan to any part of the Philippines, and make it appear as a call originating from Metro Manila. Consequently, the operator of an ISR is
able to evade payment of access, termination or bypass charges and accounting rates, as well as compliance with the regulatory
requirements of the NTC. Thus, the ISR operator offers international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT. 6

PLDT pointed out that Baynet utilized the following equipment for its ISR activities: lines, cables, and antennas or equipment or device
capable of transmitting air waves or frequency, such as an IPL and telephone lines and equipment; computers or any equipment or device
capable of accepting information applying the prescribed process of the information and supplying the result of this process; modems or any
equipment or device that enables a data terminal equipment such as computers to communicate with other data terminal equipment via a
telephone line; multiplexers or any equipment or device that enables two or more signals from different sources to pass through a common
cable or transmission line; switching equipment, or equipment or device capable of connecting telephone lines; and software, diskettes,
tapes or equipment or device used for recording and storing information. 7

PLDT also discovered that Baynet subscribed to a total of 123 PLDT telephone lines/numbers. 8 Based on the Traffic Study conducted on the
volume of calls passing through Baynet’s ISR network which bypass the IGF toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission (SEC) also revealed that Baynet was not authorized to provide
international or domestic long distance telephone service in the country. The following are its officers: Yuji Hijioka, a Japanese national
(chairman of the board of directors); Gina C. Mukaida, a Filipina (board member and president); Luis Marcos P. Laurel, a Filipino (board
member and corporate secretary); Ricky Chan Pe, a Filipino (board member and treasurer); and Yasushi Ueshima, also a Japanese national
(board member).

Upon complaint of PLDT against Baynet for network fraud, and on the strength of two search warrants 10 issued by the RTC of Makati, Branch
147, National Bureau of Investigation (NBI) agents searched its office at the 7th Floor, SJG Building, Kalayaan Avenue, Makati City on
November 8, 1999. Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J. Villegas were arrested by NBI agents while in
the act of manning the operations of Baynet. Seized in the premises during the search were numerous equipment and devices used in its
ISR activities, such as multiplexers, modems, computer monitors, CPUs, antenna, assorted computer peripheral cords and microprocessors,
cables/wires, assorted PLDT statement of accounts, parabolic antennae and voltage regulators.

State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued a Resolution 11 on January 28, 2000, finding probable cause for
theft under Article 308 of the Revised Penal Code and Presidential Decree No. 401 12 against the respondents therein, including Laurel.

On February 8, 2000, State Prosecutor Calo filed an Information with the RTC of Makati City charging Matsuura, Miyake, Lacson and
Villegas with theft under Article 308 of the Revised Penal Code. After conducting the requisite preliminary investigation, the State Prosecutor
filed an Amended Information impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas, and, until November 19, 1999, a member
of the board of directors and corporate secretary of Baynet), and the other members of the board of directors of said corporation, namely, Yuji
Hijioka, Yasushi Ueshima, Mukaida, Lacson and Villegas, as accused for theft under Article 308 of the Revised Penal Code. The inculpatory
portion of the Amended Information reads:
On or about September 10-19, 1999, or prior thereto, in Makati City, and within the jurisdiction of this Honorable Court, the accused,
conspiring and confederating together and all of them mutually helping and aiding one another, with intent to gain and without the knowledge
and consent of the Philippine Long Distance Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal and use the
international long distance calls belonging to PLDT by conducting International Simple Resale (ISR), which is a method of routing and
completing international long distance calls using lines, cables, antennae, and/or air wave frequency which connect directly to the local or
domestic exchange facilities of the country where the call is destined, effectively stealing this business from PLDT while using its facilities in
the estimated amount of P20,370,651.92 to the damage and prejudice of PLDT, in the said amount.

CONTRARY TO LAW.13

Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)" on the ground that the factual allegations in the Amended
Information do not constitute the felony of theft under Article 308 of the Revised Penal Code. He averred that the Revised Penal Code, or
any other special penal law for that matter, does not prohibit ISR operations. He claimed that telephone calls with the use of PLDT telephone
lines, whether domestic or international, belong to the persons making the call, not to PLDT. He argued that the caller merely uses the
facilities of PLDT, and what the latter owns are the telecommunication infrastructures or facilities through which the call is made. He also
asserted that PLDT is compensated for the caller’s use of its facilities by way of rental; for an outgoing overseas call, PLDT charges the
caller per minute, based on the duration of the call. Thus, no personal property was stolen from PLDT. According to Laurel, the
P20,370,651.92 stated in the Information, if anything, represents the rental for the use of PLDT facilities, and not the value of anything owned
by it. Finally, he averred that the allegations in the Amended Information are already subsumed under the Information for violation of
Presidential Decree (P.D.) No. 401 filed and pending in the Metropolitan Trial Court of Makati City, docketed as Criminal Case No. 276766.

The prosecution, through private complainant PLDT, opposed the motion, 14 contending that the movant unlawfully took personal property
belonging to it, as follows: 1) intangible telephone services that are being offered by PLDT and other telecommunication companies, i.e., the
connection and interconnection to their telephone lines/facilities; 2) the use of those facilities over a period of time; and 3) the revenues
derived in connection with the rendition of such services and the use of such facilities. 15

The prosecution asserted that the use of PLDT’s intangible telephone services/facilities allows electronic voice signals to pass through the
same, and ultimately to the called party’s number. It averred that such service/facility is akin to electricity which, although an intangible
property, may, nevertheless, be appropriated and be the subject of theft. Such service over a period of time for a consideration is the
business that PLDT provides to its customers, which enables the latter to send various messages to installed recipients. The service
rendered by PLDT is akin to merchandise which has specific value, and therefore, capable of appropriation by another, as in this case,
through the ISR operations conducted by the movant and his co-accused.

The prosecution further alleged that "international business calls and revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code." Moreover, the intangible telephone services/facilities belong to PLDT and not to the movant and the other accused,
because they have no telephone services and facilities of their own duly authorized by the NTC; thus, the taking by the movant and his co-
accused of PLDT services was with intent to gain and without the latter’s consent.

The prosecution pointed out that the accused, as well as the movant, were paid in exchange for their illegal appropriation and use of PLDT’s
telephone services and facilities; on the other hand, the accused did not pay a single centavo for their illegal ISR operations. Thus, the acts
of the accused were akin to the use of a "jumper" by a consumer to deflect the current from the house electric meter, thereby enabling one to
steal electricity. The prosecution emphasized that its position is fortified by the Resolutions of the Department of Justice in PLDT v. Tiongson,
et al. (I.S. No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were issued on August 14, 2000 finding
probable cause for theft against the respondents therein.

On September 14, 2001, the RTC issued an Order 16 denying the Motion to Quash the Amended Information. The court declared that,
although there is no law that expressly prohibits the use of ISR, the facts alleged in the Amended Information "will show how the alleged
crime was committed by conducting ISR," to the damage and prejudice of PLDT.

Laurel filed a Motion for Reconsideration17 of the Order, alleging that international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not considered personal property, and that the prosecution failed to
adduce proof of its existence and the subsequent loss of personal property belonging to another. Citing the ruling of the Court in United
States v. De Guzman,18 Laurel averred that the case is not one with telephone calls which originate with a particular caller and terminates
with the called party. He insisted that telephone calls are considered privileged communications under the Constitution and cannot be
considered as "the property of PLDT." He further argued that there is no kinship between telephone calls and electricity or gas, as the latter
are forms of energy which are generated and consumable, and may be considered as personal property because of such characteristic. On
the other hand, the movant argued, the telephone business is not a form of energy but is an activity.

In its Order19 dated December 11, 2001, the RTC denied the movant’s Motion for Reconsideration. This time, it ruled that what was stolen
from PLDT was its "business" because, as alleged in the Amended Information, the international long distance calls made through the
facilities of PLDT formed part of its business. The RTC noted that the movant was charged with stealing the business of PLDT. To support its
ruling, it cited Strochecker v. Ramirez,20 where the Court ruled that interest in business is personal property capable of appropriation. It further
declared that, through their ISR operations, the movant and his co-accused deprived PLDT of fees for international long distance calls, and
that the ISR used by the movant and his co-accused was no different from the "jumper" used for stealing electricity.

Laurel then filed a Petition for Certiorari with the CA, assailing the Order of the RTC. He alleged that the respondent judge gravely abused
his discretion in denying his Motion to Quash the Amended Information. 21 As gleaned from the material averments of the amended
information, he was charged with stealing the international long distance calls belonging to PLDT, not its business. Moreover, the RTC failed
to distinguish between the business of PLDT (providing services for international long distance calls) and the revenues derived therefrom. He
opined that a "business" or its revenues cannot be considered as personal property under Article 308 of the Revised Penal Code, since a
"business" is "(1) a commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some
independence of judgment and power of decision; (2) a commercial or industrial enterprise; and (3) refers to transactions, dealings or
intercourse of any nature." On the other hand, the term "revenue" is defined as "the income that comes back from an investment (as in real
or personal property); the annual or periodical rents, profits, interests, or issues of any species of real or personal property." 22

Laurel further posited that an electric company’s business is the production and distribution of electricity; a gas company’s business is the
production and/or distribution of gas (as fuel); while a water company’s business is the production and distribution of potable water. He
argued that the "business" in all these cases is the commercial activity, while the goods and merchandise are the products of such activity.
Thus, in prosecutions for theft of certain forms of energy, it is the electricity or gas which is alleged to be stolen and not the "business" of
providing electricity or gas. However, since a telephone company does not produce any energy, goods or merchandise and merely renders a
service or, in the words of PLDT, "the connection and interconnection to their telephone lines/facilities," such service cannot be the subject of
theft as defined in Article 308 of the Revised Penal Code. 23
He further declared that to categorize "business" as personal property under Article 308 of the Revised Penal Code would lead to absurd
consequences; in prosecutions for theft of gas, electricity or water, it would then be permissible to allege in the Information that it is the gas
business, the electric business or the water business which has been stolen, and no longer the merchandise produced by such enterprise. 24

Laurel further cited the Resolution of the Secretary of Justice in Piltel v. Mendoza, 25 where it was ruled that the Revised Penal Code,
legislated as it was before present technological advances were even conceived, is not adequate to address the novel means of "stealing"
airwaves or airtime. In said resolution, it was noted that the inadequacy prompted the filing of Senate Bill 2379 (sic) entitled "The Anti-
Telecommunications Fraud of 1997" to deter cloning of cellular phones and other forms of communications fraud. The said bill "aims to
protect in number (ESN) (sic) or Capcode, mobile identification number (MIN), electronic-international mobile equipment identity
(EMEI/IMEI), or subscriber identity module" and "any attempt to duplicate the data on another cellular phone without the consent of a public
telecommunications entity would be punishable by law." 26 Thus, Laurel concluded, "there is no crime if there is no law punishing the crime."

On August 30, 2002, the CA rendered judgment dismissing the petition. 27 The appellate court ruled that a petition for certiorari under Rule 65
of the Rules of Court was not the proper remedy of the petitioner. On the merits of the petition, it held that while business is generally an
activity

which is abstract and intangible in form, it is nevertheless considered "property" under Article 308 of the Revised Penal Code. The CA opined
that PLDT’s business of providing international calls is personal property which may be the object of theft, and cited United States v. Carlos 28
to support such conclusion. The tribunal also cited Strochecker v. Ramirez, 29 where this Court ruled that one-half interest in a day’s business
is personal property under Section 2 of Act No. 3952, otherwise known as the Bulk Sales Law. The appellate court held that the operations of
the ISR are not subsumed in the charge for violation of P.D. No. 401.

Laurel, now the petitioner, assails the decision of the CA, contending that -

THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE
INFORMATION IS NOT THE "INTERNATIONAL LONG DISTANCE CALLS" BUT THE "BUSINESS OF PLDT."

THE COURT OF APPEALS ERRED IN RULING THAT THE TERM "BUSINESS" IS PERSONAL PROPERTY WITHIN THE
MEANING OF ART. 308 OF THE REVISED PENAL CODE. 30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify an interlocutory order of the trial court which was issued with
grave abuse of discretion amounting to excess or lack of jurisdiction. In support of his petition before the Court, he reiterates the arguments
in his pleadings filed before the CA. He further claims that while the right to carry on a business or an interest or participation in business is
considered property under the New Civil Code, the term "business," however, is not. He asserts that the Philippine Legislature, which
approved the Revised Penal Code way back in January 1, 1932, could not have contemplated to include international long distance calls and
"business" as personal property under Article 308 thereof.

In its comment on the petition, the Office of the Solicitor General (OSG) maintains that the amended information clearly states all the
essential elements of the crime of theft. Petitioner’s interpretation as to whether an "international long distance call" is personal property
under the law is inconsequential, as a reading of the amended information readily reveals that specific acts and circumstances were alleged
charging Baynet, through its officers, including petitioner, of feloniously taking, stealing and illegally using international long distance calls
belonging to respondent PLDT by conducting ISR operations, thus, "routing and completing international long distance calls using lines,
cables, antenna and/or airwave frequency which connect directly to the local or domestic exchange facilities of the country where the call is
destined." The OSG maintains that the international long distance calls alleged in the amended information should be construed to mean
"business" of PLDT, which, while abstract and intangible in form, is personal property susceptible of appropriation. 31 The OSG avers that what
was stolen by petitioner and his co-accused is the business of PLDT providing international long distance calls which, though intangible, is
personal property of the PLDT.32

For its part, respondent PLDT asserts that personal property under Article 308 of the Revised Penal Code comprehends intangible property
such as electricity and gas which are valuable articles for merchandise, brought and sold like other personal property, and are capable of
appropriation. It insists that the business of international calls and revenues constitute personal property because the same are valuable
articles of merchandise. The respondent reiterates that international calls involve (a) the intangible telephone services that are being offered
by it, that is, the connection and interconnection to the telephone network, lines or facilities; (b) the use of its telephone network, lines or
facilities over a period of time; and (c) the income derived in connection therewith. 33

PLDT further posits that business revenues or the income derived in connection with the rendition of such services and the use of its
telephone network, lines or facilities are personal properties under Article 308 of the Revised Penal Code; so is the use of said telephone
services/telephone network, lines or facilities which allow electronic voice signals to pass through the same and ultimately to the called
party’s number. It is akin to electricity which, though intangible property, may nevertheless be appropriated and can be the object of theft. The
use of respondent PLDT’s telephone network, lines, or facilities over a period of time for consideration is the business that it provides to its
customers, which enables the latter to send various messages to intended recipients. Such use over a period of time is akin to merchandise
which has value and, therefore, can be appropriated by another. According to respondent PLDT, this is what actually happened when
petitioner Laurel and the other accused below conducted illegal ISR operations. 34

The petition is meritorious.

The issues for resolution are as follows: (a) whether or not the petition for certiorari is the proper remedy of the petitioner in the Court of
Appeals; (b) whether or not international telephone calls using Bay Super Orient Cards through the telecommunication services provided by
PLDT for such calls, or, in short, PLDT’s business of providing said telecommunication services, are proper subjects of theft under Article 308
of the Revised Penal Code; and (c) whether or not the trial court committed grave abuse of discretion amounting to excess or lack of
jurisdiction in denying the motion of the petitioner to quash the amended information.

On the issue of whether or not the petition for certiorari instituted by the petitioner in the CA is proper, the general rule is that a petition for
certiorari under Rule 65 of the Rules of Court, as amended, to nullify an order denying a motion to quash the Information is inappropriate
because the aggrieved party has a remedy of appeal in the ordinary course of law. Appeal and certiorari are mutually exclusive of each other.
The remedy of the aggrieved party is to continue with the case in due course and, when an unfavorable judgment is rendered, assail the
order and the decision on appeal. However, if the trial court issues the order denying the motion to quash the Amended Information with
grave abuse of discretion amounting to excess or lack of jurisdiction, or if such order is patently erroneous, or null and void for being contrary
to the Constitution, and the remedy of appeal would not afford adequate and expeditious relief, the accused may resort to the extraordinary
remedy of certiorari.35 A special civil action for certiorari is also available where there are special circumstances clearly demonstrating the
inadequacy of an appeal. As this Court held in Bristol Myers Squibb (Phils.), Inc. v. Viloria: 36
Nonetheless, the settled rule is that a writ of certiorari may be granted in cases where, despite availability of appeal after trial, there is at least
a prima facie showing on the face of the petition and its annexes that: (a) the trial court issued the order with grave abuse of discretion
amounting to lack of or in excess of jurisdiction; (b) appeal would not prove to be a speedy and adequate remedy; (c) where the order is a
patent nullity; (d) the decision in the present case will arrest future litigations; and (e) for certain considerations such as public welfare and
public policy.37

In his petition for certiorari in the CA, petitioner averred that the trial court committed grave abuse of its discretion amounting to excess or
lack of jurisdiction when it denied his motion to quash the Amended Information despite his claim that the material allegations in the
Amended Information do not charge theft under Article 308 of the Revised Penal Code, or any offense for that matter. By so doing, the trial
court deprived him of his constitutional right to be informed of the nature of the charge against him. He further averred that the order of the
trial court is contrary to the constitution and is, thus, null and void. He insists that he should not be compelled to undergo the rigors and
tribulations of a protracted trial and incur expenses to defend himself against a non-existent charge.

Petitioner is correct.

An information or complaint must state explicitly and directly every act or omission constituting an offense 38 and must allege facts establishing
conduct that a penal statute makes criminal;39 and describes the property which is the subject of theft to advise the accused with reasonable
certainty of the accusation he is called upon to meet at the trial and to enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense.40 It must show, on its face, that if the alleged facts are true, an offense has been committed. The rule is
rooted on the constitutional right of the accused to be informed of the nature of the crime or cause of the accusation against him. He cannot
be convicted of an offense even if proven unless it is alleged or necessarily included in the Information filed against him.

As a general prerequisite, a motion to quash on the ground that the Information does not constitute the offense charged, or any offense for
that matter, should be resolved on the basis of said allegations whose truth and veracity are hypothetically committed; 41 and on additional
facts admitted or not denied by the prosecution. 42 If the facts alleged in the Information do not constitute an offense, the complaint or
information should be quashed by the court.43

We have reviewed the Amended Information and find that, as mentioned by the petitioner, it does not contain material allegations charging
the petitioner of theft of personal property under Article 308 of the Revised Penal Code. It, thus, behooved the trial court to quash the
Amended Information. The Order of the trial court denying the motion of the petitioner to quash the Amended Information is a patent nullity.

On the second issue, we find and so hold that the international telephone calls placed by Bay Super Orient Card holders, the
telecommunication services provided by PLDT and its business of providing said services are not personal properties under Article 308 of the
Revised Penal Code. The construction by the respondents of Article 308 of the said Code to include, within its coverage, the aforesaid
international telephone calls, telecommunication services and business is contrary to the letter and intent of the law.

The rule is that, penal laws are to be construed strictly. Such rule is founded on the tenderness of the law for the rights of individuals and on
the plain principle that the power of punishment is vested in Congress, not in the judicial department. It is Congress, not the Court, which is to
define a crime, and ordain its punishment.44 Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to
refrain from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. The Court must take heed to language,
legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids. 45 However, when the
congressional purpose is unclear, the court must apply the rule of lenity, that is, ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.46

Penal statutes may not be enlarged by implication or intent beyond the fair meaning of the language used; and may not be held to include
offenses other than those which are clearly described, notwithstanding that the Court may think that Congress should have made them more
comprehensive.47 Words and phrases in a statute are to be construed according to their common meaning and accepted usage.

As Chief Justice John Marshall declared, "it would be dangerous, indeed, to carry the principle that a case which is within the reason or

mischief of a statute is within its provision, so far as to punish a crime not enumerated in the statute because it is of equal atrocity, or of
kindred character with those which are enumerated. 48 When interpreting a criminal statute that does not explicitly reach the conduct in
question, the Court should not base an expansive reading on inferences from subjective and variable understanding. 49

Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft.– Theft is committed by any person who, with intent to gain but without violence, against or intimidation of
persons nor force upon things, shall take personal property of another without the latter’s consent.

The provision was taken from Article 530 of the Spanish Penal Code which reads:

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin
la voluntad de su dueño.50

For one to be guilty of theft, the accused must have an intent to steal (animus furandi) personal property, meaning the intent to deprive
another of his ownership/lawful possession of personal property which intent is apart from and concurrently with the general criminal intent
which is an essential element of a felony of dolo (dolus malus).

An information or complaint for simple theft must allege the following elements: (a) the taking of personal property; (b) the said property
belongs to another; (c) the taking be done with intent to gain; and (d) the taking be accomplished without the use of violence or intimidation
of person/s or force upon things.51

One is apt to conclude that "personal property" standing alone, covers both tangible and intangible properties and are subject of theft under
the Revised Penal Code. But the words "Personal property" under the Revised Penal Code must be considered in tandem with the word
"take" in the law. The statutory definition of "taking" and movable property indicates that, clearly, not all personal properties may be the
proper subjects of theft. The general rule is that, only movable properties which have physical or material existence and susceptible of
occupation by another are proper objects of theft. 52 As explained by Cuelo Callon: "Cosa juridicamente es toda sustancia corporal, material,
susceptible de ser aprehendida que tenga un valor cualquiera." 53
According to Cuello Callon, in the context of the Penal Code, only those movable properties which can be taken and carried from the place
they are found are proper subjects of theft. Intangible properties such as rights and ideas are not subject of theft because the same cannot
be "taken" from the place it is found and is occupied or appropriated.

Solamente las cosas muebles y corporales pueden ser objeto de hurto. La sustracción de cosas inmuebles y la cosas incorporales (v. gr., los
derechos, las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas, para conseguir su apropiación. El Codigo emplea la
expresión "cosas mueble" en el sentido de cosa que es susceptible de ser llevada del lugar donde se encuentra, como dinero, joyas, ropas,
etcétera, asi que su concepto no coincide por completo con el formulado por el Codigo civil (arts. 335 y 336). 54

Thus, movable properties under Article 308 of the Revised Penal Code should be distinguished from the rights or interests to which they
relate. A naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is
not the subject of theft or larceny.55 Such rights or interests are intangible and cannot be "taken" by another. Thus, right to produce oil, good
will or an interest in business, or the right to engage in business, credit or franchise are properties. So is the credit line represented by a
credit card. However, they are not proper subjects of theft or larceny because they are without form or substance, the mere "breath" of the
Congress. On the other hand, goods, wares and merchandise of businessmen and credit cards issued to them are movable properties with
physical and material existence and may be taken by another; hence, proper subjects of theft.

There is "taking" of personal property, and theft is consummated when the offender unlawfully acquires possession of personal property even
if for a short time; or if such property is under the dominion and control of the thief. The taker, at some particular amount, must have obtained
complete and absolute possession and control of the property adverse to the rights of the owner or the lawful possessor thereof. 56 It is not
necessary that the property be actually carried away out of the physical possession of the lawful possessor or that he should have made his
escape with it.57 Neither asportation nor actual manual possession of property is required. Constructive possession of the thief of the property
is enough.58

The essence of the element is the taking of a thing out of the possession of the owner without his privity and consent and without animus
revertendi.59

Taking may be by the offender’s own hands, by his use of innocent persons without any felonious intent, as well as any mechanical device,
such as an access device or card, or any agency, animate or inanimate, with intent to gain. Intent to gain includes the unlawful taking of
personal property for the purpose of deriving utility, satisfaction, enjoyment and pleasure. 60

We agree with the contention of the respondents that intangible properties such as electrical energy and gas are proper subjects of theft. The
reason for this is that, as explained by this Court in United States v. Carlos 61 and United States v. Tambunting,62 based on decisions of the
Supreme Court of Spain and of the courts in England and the United States of America, gas or electricity are capable of appropriation by
another other than the owner. Gas and electrical energy may be taken, carried away and appropriated. In People v. Menagas, 63 the Illinois
State Supreme Court declared that electricity, like gas, may be seen and felt. Electricity, the same as gas, is a valuable article of
merchandise, bought and sold like other personal property and is capable of appropriation by another. It is a valuable article of merchandise,
bought and sold like other personal property, susceptible of being severed from a mass or larger quantity and of being transported from place
to place. Electrical energy may, likewise, be taken and carried away. It is a valuable commodity, bought and sold like other personal property.
It may be transported from place to place. There is nothing in the nature of gas used for illuminating purposes which renders it incapable of
being feloniously taken and carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple, 64 the Court of Appeals of New York held that electric energy is manufactured and
sold in determinate quantities at a fixed price, precisely as are coal, kerosene oil, and gas. It may be conveyed to the premises of the
consumer, stored in cells of different capacity known as an accumulator; or it may be sent through a wire, just as gas or oil may be
transported either in a close tank or forced through a pipe. Having reached the premises of the consumer, it may be used in any way he may
desire, being, like illuminating gas, capable of being transformed either into heat, light, or power, at the option of the purchaser. In Woods v.
People,65 the Supreme Court of Illinois declared that there is nothing in the nature of gas used for illuminating purposes which renders it
incapable of being feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other personal property,
susceptible of being severed from a mass or larger quantity and of being transported from place to place.

Gas and electrical energy should not be equated with business or services provided by business entrepreneurs to the public. Business does
not have an exact definition. Business is referred as that which occupies the time, attention and labor of men for the purpose of livelihood or
profit. It embraces everything that which a person can be employed. 66 Business may also mean employment, occupation or profession.
Business is also defined as a commercial activity for gain benefit or advantage. 67 Business, like services in business, although are properties,
are not proper subjects of theft under the Revised Penal Code because the same cannot be "taken" or "occupied." If it were otherwise, as
claimed by the respondents, there would be no juridical difference between the taking of the business of a person or the services provided by
him for gain, vis-à-vis, the taking of goods, wares or merchandise, or equipment comprising his business. 68 If it was its intention to include
"business" as personal property under Article 308 of the Revised Penal Code, the Philippine Legislature should have spoken in language that
is clear and definite: that business is personal property under Article 308 of the Revised Penal Code. 69

We agree with the contention of the petitioner that, as gleaned from the material averments of the Amended Information, he is charged of
"stealing the international long distance calls belonging to PLDT" and the use thereof, through the ISR. Contrary to the claims of the OSG
and respondent PLDT, the petitioner is not charged of stealing P20,370,651.95 from said respondent. Said amount of P20,370,651.95
alleged in the Amended Information is the aggregate amount of access, transmission or termination charges which the PLDT expected from
the international long distance calls of the callers with the use of Baynet Super Orient Cards sold by Baynet Co. Ltd.

In defining theft, under Article 308 of the Revised Penal Code, as the taking of personal property without the consent of the owner thereof,
the Philippine legislature could not have contemplated the human voice which is converted into electronic impulses or electrical current which
are transmitted to the party called through the PSTN of respondent PLDT and the ISR of Baynet Card Ltd. within its coverage. When the
Revised Penal Code was approved, on December 8, 1930, international telephone calls and the transmission and routing of electronic voice
signals or impulses emanating from said calls, through the PSTN, IPL and ISR, were still non-existent. Case law is that, where a legislative
history fails to evidence congressional awareness of the scope of the statute claimed by the respondents, a narrow interpretation of the law
is more consistent with the usual approach to the construction of the statute. Penal responsibility cannot be extended beyond the fair scope
of the statutory mandate.70

Respondent PLDT does not acquire possession, much less, ownership of the voices of the telephone callers or of the electronic voice signals
or current emanating from said calls. The human voice and the electronic voice signals or current caused thereby are intangible and not
susceptible of possession, occupation or appropriation by the respondent PLDT or even the petitioner, for that matter. PLDT merely transmits
the electronic voice signals through its facilities and equipment. Baynet Card Ltd., through its operator, merely intercepts, reroutes the calls
and passes them to its toll center. Indeed, the parties called receive the telephone calls from Japan.

In this modern age of technology, telecommunications systems have become so tightly merged with computer systems that it is difficult to
know where one starts and the other finishes. The telephone set is highly computerized and allows computers to communicate across long
distances.71 The instrumentality at issue in this case is not merely a telephone but a telephone inexplicably linked to a computerized
communications system with the use of Baynet Cards sold by the Baynet Card Ltd. The corporation uses computers, modems and software,
among others, for its ISR.72

The conduct complained of by respondent PLDT is reminiscent of "phreaking" (a slang term for the action of making a telephone system to
do something that it normally should not allow by "making the phone company bend over and grab its ankles"). A "phreaker" is one who
engages in the act of manipulating phones and illegally markets telephone services. 73 Unless the phone company replaces all its hardware,
phreaking would be impossible to stop. The phone companies in North America were impelled to replace all their hardware and adopted full
digital switching system known as the Common Channel Inter Office Signaling. Phreaking occurred only during the 1960’s and 1970’s,
decades after the Revised Penal Code took effect.

The petitioner is not charged, under the Amended Information, for theft of telecommunication or telephone services offered by PLDT. Even if
he is, the term "personal property" under Article 308 of the Revised Penal Code cannot be interpreted beyond its seams so as to include
"telecommunication or telephone services" or computer services for that matter. The word "service" has a variety of meanings dependent
upon the context, or the sense in which it is used; and, in some instances, it may include a sale. For instance, the sale of food by restaurants
is usually referred to as "service," although an actual sale is involved. 74 It may also mean the duty or labor to be rendered by one person to
another; performance of labor for the benefit of another. 75 In the case of PLDT, it is to render local and international telecommunications
services and such other services as authorized by the CPCA issued by the NTC. Even at common law, neither time nor services may be
taken and occupied or appropriated.76 A service is generally not considered property and a theft of service would not, therefore, constitute
theft since there can be no caption or asportation. 77 Neither is the unauthorized use of the equipment and facilities of PLDT by the petitioner
theft under the aforequoted provision of the Revised Penal Code. 78

If it was the intent of the Philippine Legislature, in 1930, to include services to be the subject of theft, it should have incorporated the same in
Article 308 of the Revised Penal Code. The Legislature did not. In fact, the Revised Penal Code does not even contain a definition of
services.

If taking of telecommunication services or the business of a person, is to be proscribed, it must be by special statute 79 or an amendment of
the Revised Penal Code. Several states in the United States, such as New York, New Jersey, California and Virginia, realized that their
criminal statutes did not contain any provisions penalizing the theft of services and passed laws defining and penalizing theft of telephone
and computer services. The Pennsylvania Criminal Statute now penalizes theft of services, thus:

(a) Acquisition of services. --

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation,
by deception or threat, by altering or tampering with the public utility meter or measuring device by which such services are delivered or by
causing or permitting such altering or tampering, by making or maintaining any unauthorized connection, whether physically, electrically or
inductively, to a distribution or transmission line, by attaching or maintaining the attachment of any unauthorized device to any cable, wire or
other component of an electric, telephone or cable television system or to a television receiving set connected to a cable television system,
by making or maintaining any unauthorized modification or alteration to any device installed by a cable television system, or by false token or
other trick or artifice to avoid payment for the service.

In the State of Illinois in the United States of America, theft of labor or services or use of property is penalized:

(a) A person commits theft when he obtains the temporary use of property, labor or services of another which are available only for hire, by
means of threat or deception or knowing that such use is without the consent of the person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional scope of the term "property" in ordinary theft statutes. Hence, they
decided to incorporate in the Code Section 223.7, which defines and penalizes theft of services, thus:

(1) A person is guilty of theft if he purposely obtains services which he knows are available only for compensation, by deception or threat, or
by false token or other means to avoid payment for the service. "Services" include labor, professional service, transportation, telephone or
other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other movable property.
Where compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants,
refusal to pay or absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to
intention to pay; (2) A person commits theft if, having control over the disposition of services of others, to which he is not entitled, he
knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

Interestingly, after the State Supreme Court of Virginia promulgated its decision in Lund v. Commonwealth, 80 declaring that neither time nor
services may be taken and carried away and are not proper subjects of larceny, the General Assembly of Virginia enacted Code No. 18-2-98
which reads:

Computer time or services or data processing services or information or data stored in connection therewith is hereby defined to be property
which may be the subject of larceny under § § 18.2-95 or 18.2-96, or embezzlement under § 18.2-111, or false pretenses under § 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of Alabama of 1975 penalizes theft of services:

"A person commits the crime of theft of services if: (a) He intentionally obtains services known by him to be available only for compensation
by deception, threat, false token or other means to avoid payment for the services …"

In the Philippines, Congress has not amended the Revised Penal Code to include theft of services or theft of business as felonies. Instead, it
approved a law, Republic Act No. 8484, otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. Under the
law, an access device means any card, plate, code, account number, electronic serial number, personal identification number and other
telecommunication services, equipment or instrumentalities-identifier or other means of account access that can be used to obtain money,
goods, services or any other thing of value or to initiate a transfer of funds other than a transfer originated solely by paper instrument. Among
the prohibited acts enumerated in Section 9 of the law are the acts of obtaining money or anything of value through the use of an access
device, with intent to defraud or intent to gain and fleeing thereafter; and of effecting transactions with one or more access devices issued to
another person or persons to receive payment or any other thing of value. Under Section 11 of the law, conspiracy to commit access devices
fraud is a crime. However, the petitioner is not charged of violation of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to any liability for violation of any provisions of the Revised Penal Code
inclusive of theft under Rule 308 of the Revised Penal Code and estafa under Article 315 of the Revised Penal Code. Thus, if an individual
steals a credit card and uses the same to obtain services, he is liable of the following: theft of the credit card under Article 308 of the Revised
Penal Code; violation of Republic Act No. 8484; and estafa under Article 315(2)(a) of the Revised Penal Code with the service provider as
the private complainant. The petitioner is not charged of estafa before the RTC in the Amended Information.

Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000 provides:

Sec. 33. Penalties.— The following Acts shall be penalized by fine and/or imprisonment, as follows:

a) Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or information and
communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and
communication devices, without the knowledge and consent of the owner of the computer or information and communications system,
including the introduction of computer viruses and the like, resulting on the corruption, destruction, alteration, theft or loss of electronic data
messages or electronic documents shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum
commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional Trial Court and the Decision of the
Court of Appeals are REVERSED and SET ASIDE. The Regional Trial Court is directed to issue an order granting the motion of the petitioner
to quash the Amended Information.
Laurel vs. Judge Abrogar G.R. No. 155076 January 13, 2009

Facts: Laurel was charged with engaging in International Simple Resale (ISR) or the unauthorized
routing and completing of international long distance calls using lines, cables, antennae, and/or air
wave frequency and connecting these calls directly to the local or domestic exchange facilities of the
country where destined.

PLDT alleges that the “international phone calls” which are “electric currents or sets of electric
impulses transmitted through a medium, and carry a pattern representing the human voice to a
receiver,” are ersonal properties which may be the subject of theft. Art. 416(3) deems “forces of
nature” (which includes electricity” which are brought under the control by science, are personal
property.

Laurel claims that a telephone call is a conversation on the phone or a communication carried out
using the telephone. It is not synonymous to electric currents or impulses. Hence, it may not be
considered as personal property susceptible of appropriation. Laurel claims that the analogy between
generated electricity and telephone calls is misplaced. PLDT does not produce or generate telephone
calls. It only rovides the facilities or services for the transmission and switching of the calls. He also
insists that “business” is not personal property. It is not the “business” that is protected but the “right
to carry a business.” This right is what is considered as property. Since the services of PLDT cannot be
considered as “property,” the same may not be the subject of theft.

Issue: Is Laurel guilty of theft of personal property?

Held: YES. The act of conducting ISR operations by illegally connecting various equipment or apparatus
to PLDT’s telephone system, through which Laurel is able to resell or re-route international long
distance calls using PLDT’s facilities constitutes acts of subtraction.
The business of roviding telecommunication is likewise ersonal property which cann be the object of
theft.
Interest in business was not specifically enumerated as personal property in the Civil Code in force at
the time the above decision was rendered. Yet, interest in business was declared to be personal
property since it is capable of appropriation and not included in the enumeration of real roperties. Art.
414 provides that all things which are or may be the object of appropriation are considered either real
property or personal property. Business is likewise not enumerated as personal property under the Civil
Code. Just like interest in business, however, it may be appropriated. Business should also be classified
as ersonal property. Since it is not included in the exclusive enumeration of real properties under Art.
415. It is therefore personal roperty.
In making the international phone calls, the human voice is converted into electrical impulses or
electric current which are transmitted to the arty called. A telephone call, therefore, is electrical
energy. Intagnible property such as electrical energy is capable of appropriation because it may be
taken and carried away. Electricity is personal property under art. 416(3) which enumerates “forces of
natur which are brought under control by science.”
It is the use of these communications facilities without the consent of PLDT that constitutes the crime
of theft, which is the unlawful taking of the telephone services and business.
Therfore, the business of providing telecommunication and the telephone service is personal property.
G.R. No. 127818 November 11, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUILLERMO NEPOMUCENO, JR., accused-appellant.

MELO, J.:

Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to the decision dated November 20,
1996 of the Regional Trial Court of the National Capital Judicial Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the accused guilty beyond
reasonable doubt of the crime of parricide as defined and penalized under Article 246 of
the Revised Penal Code as amended by Republic Act No. 7659 for the death of Grace
Nepomuceno and hereby sentences him to suffer imprisonment of Forty (40) years of
reclusion perpetua and to pay the heirs of the deceased the sum of P50,000.00 with costs
against him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court declares the accused
ineligible to inherit from his wife. The entire estate should go to his son, Giordan Benitez
Nepomuceno.

The information against accused-appellant charged:

That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, did then
and there willfully, unlawfully and feloniously, with intent to kill and with treachery and
evident premeditation, attack, assault and use personal violence upon the person of one
GRACE NEPOMUCENO Y BENITEZ, his wife with whom he was married in lawful wedlock,
by then and there shooting her with a gun of unknown caliber hitting her on the left hip,
thereby inflicting upon the said GRACE NEPOMUCENO Y BENITEZ gunshot wound, which
was necessarily fatal and which was the direct and immediate cause of her death
thereafter.(p. 5, Rollo.)

Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due course. Thereafter, the trial court
rendered the judgment of conviction now on appeal.

The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival, Forensic Chemist Mary Ann Aranas,
Medico-Legal Examiner Floresto Arizala, Monserrat De Leon, Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pabalan.

Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo Nepomuceno, Jr. and Grace
Nepomuceno, having started as such since May 31, 1993. At around 11 o'clock on the evening of May 2, 1994, accused-appellant,
who was drunk, arrived and went to their bedroom where Eden and her ward Giordan, the one-year old son of the couple, were
sleeping. She was awakened by the loud voices of the spouses who were arguing. She saw accused-appellant get a gun from a
drawer, so she went out of the room because of fear. After a few moments and while was outside the room, she heard Grace
Nepomuceno say: "Sige patayin mo ako, patayin mo na kami ng anak ko." Then Eden heard a gunshot. She was so scared that she
went out of the house, reaching the door of the house of Barangay Chairman Congen Leonardo which is 5 meters away. After ten
minutes, she saw accused-appellant coming out the room. He told her to get a taxi so he could bring the wounded Grace to the
hospital. She was left behind in their room to take care of baby Giordan. She tried to call up Monserrat de Leon, the sister of Grace
in Pasig to inform her of the incident, but she could not get any connection (tsn, July 27, 1994, pp. 4-17; 24-42).

Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division, declared that she conducted paraffin
examination on both hands of the victim and those of accused-appellant. She found the victim's hands negative of nitrates, but
found accused-appellant's right hand positive thereof. She gave the opinion that in view of the absence of nitrates on the hands of
the victim, it is probable that she did not fire a gun and that accused-appellant, being positive of nitrates, did really fire a gun (tsn,
August 31, 1994, pp. 17, 22; tsn, July 8, 1996, p. 6).

Dr. Floresto Arizala, Jr., the Medico-Legal Officer of the NBI who conducted a second-post mortem examination of the victim on
May 7, 1994 at the Capitol Memorial Chapels, found that the victim died due to a gunshot wound, with the slug hitting the left
internal iliac artery and the small intestines and thereafter resting between the uterus and the sacrum of the victim. He testified that
taking into consideration the location of the wound, if the victim were in a sitting or lying position, the trajectory of the slug was
upward coming from right to left; and if the victim were in a standing position, the muzzle of the gun should have pointed up. The
witness declared that the muzzle of the gun could not have been less that one foot from the victim. He opined that grappling for
possession of the gun was impossible because the trajectory of the bullet was going upwards and there were no smudges or signs
of close firing. He believed that the victim could have survived if the surgeons had operated immediately (tsn, July 23, 1996, pp. 15-
30).

Monserrat de Leon, sister of the victim, declared that Grace would confide to her that accused-appellant was jobless and that
Grace had problems with the low income of the store she owned at Zurbaran Mart as compared to her expenses. Accused-
appellant would force sex on Grace especially when he was drunk. Her sister had two miscarriages after their first child and it was
during one of these miscarriages that she saw accused-appellant carrying a gun in the Mary Chiles Hospital where her sister was
confined (tsn, August 12, 1996, pp. 3-28).

Upon the other hand, the defense presented accused-appellant himself as its lone witness. His story was quoted by the trial court
thus:

Two days before the incident on May 2, 1994 Grace, the deceased was very much worried
about the check (sic) she issued which was post dated May 2, 1994. She would have no
funds for the checks. She had been nagging him, displaying her tantrums (nagdadabog)
pestering him to do something to be able to fund the checks.

In the noon time of May 1994, he left her spouse in their store and went to his mother's
house in San Andres Bukid, Manila. This day was the day after the accused-appellant and
his wife, and in-laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and pestering of his wife about his
inability to produce money to be able to fund the postdated checks (sic).

At about 11:00 P.M., after dropping at a friend's house, he decided to go home, thinking his
wife has already cooled off.

When his wife opened the door, she greeted the husband: "You left in the store and you
room (roam) around, where you able to find money." He replied, "where would I get money,
do you expect me to hold up people?" (tsn, October 5, 1994, p. 18)

They had some arguments and Eden Ontog went out of their bedroom and the arguments
continued. There was a point in the argument when the wife told the accused thus: "Wala
akong silbi, bakit pa ako nag-asawa sa kanya."

Because of these continued pestering and nagging of his wife he thought of separation.
Perhaps it would be better if he should end his life. He then took a gun from their child's
drawer. He sat on the bed holding that gun, engrossed in his thinking what to do. The gun
was pointed towards the floor of their room.

In that situation, his wife continued with his nagging and pestering. He just remained
silent.

And then Guillermo asked her wife: "How come you do not treat me as a husband, why do
you treat me like this."

It was at this point that Guillermo decided to end his life. Perhaps seriously, perhaps just
to scare his wife to stop all the pestering and tantrums. Surely not only a few husbands
would thought (sic) as what that Guillermo was thinking then, he felt desperate. He wanted
to finish his life. (p. 24, TSN, October 5, 1994)

It was during that time that their son, Jordan woke up, walked to the space between them
(husband and wife) and Nepomuceno block his son's way with his right knee. In the
process, he wanted to totally force Grace from taking possession and control of the gun.
He raised his arm holding the gun passing over the left leg of Grace.

The gun went off.(pp. 16-17, Rollo.)

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:

THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS ACCIDENTAL, AND THAT
THE DECEASED WAS EXEMPT FROM CRIMINAL LIABILITY.

II

ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL COURT ERRED IN NOT
FINDING THE KILLING WAS RESULT OF SIMPLE NEGLIGENCE.

III

THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED WAS PROVEN
BEYOND REASONABLE DOUBT.

(p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have the least intention of killing his wife. He
urges the Court to consider the circumstances attendant to the killing, which, according to him, negate all inferences and
deductions, that he would kill his wife. First, the deceased was hit in the upper leg, not in any vital organ. If he had the intention of
killing the deceased, he would have shot her at the most vital part of her body.

Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual human behavior, if her husband really
intended to kill her. The deceased just uttered, "Masakit Papa", she did not curse nor mouth evil and harsh language against
accused-appellant to show hatred and anger.

Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring her to the hospital for immediate
medical attention?

Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident was not accidental?

Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of the Revised Penal Code because,
according to him, the incident occurred when he tried to prevent his wife from killing herself, and he and his wife grappled for
possession of the gun.

After a painstaking review of the evidence and record of this case, the Court finds itself unable to reach conclusions identical to
those put forward by accused-appellant.

First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12 of the Revised Penal Code in order to
be exempted from criminal liability arising from the death of his wife, Grace Nepomuceno. Said provision pertinently states:

Art. 12. Circumstances which exempt from criminal liability. The following are exempt from
criminal liability:

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

4. Any person who, while performing a lawful act with due care, causes an injury by mere
accident without fault or intention of causing it.

At all events, accident to be exempting, presupposes that the act done is lawful. Here, however, the act of accused-appellant of
drawing a weapon in the course of a quarrel, the same not being in self-defense, is unlawful — it at least constitutes light threats
(Article 285, par. 1, Revised Penal Code). There is thus no room for the invocation of accident as a ground for exemption (People
vs. Reyta, Jr., 13 CAR (25) 1190; 1195 [1968]).

The gun which accused-appellant took from his child's drawer was not even licensed or registered in his name as shown by the
Certification of the Firearms and Explosives Office of the Philippine National Police, hence, he could have been charged with illegal
possession of a firearm.

Secondly, accused-appellant's claim that the shooting happened when he tried to prevent his wife from killing herself and he and
his wife grappled for the possession of the gun is belied by the expert testimony of Dr. Floresto Arizala, Jr. of the NBI who
conducted a second post mortem examination on the cadaver of Grace Nepomuceno. He declared:

Q. Now, is it possible Doctor, considering the location of the wound,

the entrance wound and the trajectory of the bullet upwards, would
you say Doctor, that both parties, I mean the victim and the assailant
were grappling for the possession of said gun and it went off
accidentally, is that possible, Mr. Witness?

A. Well, I have to be convinced as to the grappling between the victim

and the assailant, because if we were to be re-construct of the
scenario that the gun have been fired, the muzzle of the gun could not
have been closer than twelve (12) inches and considering that the gun
was held by a hand, it farther places the assailant farther from the
victim and farther the victim is, from the assailant, then the more
impossible for the grappling for the gun. (tsn, July 23, 1996, pp. 19-20).

Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when the gun discharged, stated:

Q. Please tell the court your relative position and the victim when the
gun actually went off?

A. When I was in the act of trying to dispossess Grace with that gun
and I was trying to let my right hand pass through my right side but
because Grace was struggling, the butt of the gun hit a part of her
upper leg and it exploded.

Q. So when the gun actually fired, you were holding that gun, what
part of your arm being held by Grace?

A. Witness pointing the upper forearm and the lower portion of her
upper arm.
If Grace were holding the upper forearm and lower portion of the upper arm of accused-appellant when the gun fired, then at least
the hand of Grace that held the upper forearm of appellant would have traces of nitrate considering its nearness to the exploding
gun. However, in the paraffin test conducted by the Forensic Chemistry Division of the National Bureau of Investigation on Grace
Nepomuceno's both hands, no traces of nitrates were found; while accused-appellant's right hand was positive of nitrates. The
absence of nitrates on the victim's hands is convincing proof that she did not grapple with accused-appellant for the possession of
the gun. It also proves that she was shot at a distance.

The fact that the victim was not shot in the head, or in any vital part of her body does not negate intent to kill. The Post Mortem
Findings on the cadaver of Grace Nepomuceno by Dr. Arizala shows that the bullet entered "the left thigh, lateral aspect, upper
third . . . directed slight forwards, slightly upwards and from left to right initially involving the skin and subcutaneous tissue, then
taking an intramascular route into the pelvic cavity thru the left obturator foramen, partially transecting the left internal iliac artery
and the small intestines with the slug lodging just underneath the uterus in front of the sacrum where it was recovered." The
extent of the physical injury inflicted on Grace, as above proved, manifests intention to extinguish life (People vs. Dawandawan,
184 SCRA 64 [1994]). Moreover, Dr. Arizala likewise declared that the bullet injured a vital organ of the victim (tsn, July 23, 1996, p.
9).

The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harsh language against accused-appellant does not,
in any way, negate intent to kill. The utterance of a victim made immediately after sustaining serious injuries may be considered as
pure emanations of the incident or the incident speaking through the victim (People vs. Morin, 241 SCRA 709; 710 [1995]). Thus, by
the word "Papa", Grace was in effect, saying that it was accused-appellant who shot her.

We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to call a taxi in which he brought the
wounded Grace to the hospital is "merely an indication or act of repentance or contrition on the part of appellant" (Appellee's Brief,
p. 71, Rollo.).

Accused-appellant's voluntary surrender is not sufficient ground to exculpate him from criminal liability. The law does not find
unusual the voluntary surrender of criminal offenders; it merely considers such act as a mitigating circumstance. Non-flight is not
proof of innocence (People vs. Quijada, 259 SCRA 191 [1996]).

Under the second assigned error, accused-appellant claims that even assuming that the killing was not totally accidental, his acts
would constitute only simple negligence. He asserts that he had established that the gun went off while he was grappling with his
wife for its possession. He was preventing his wife from taking her own life. He might not have exercised the necessary due care in
wrestling for the gun that resulted in the injury of his wife, but he could be charged only with parricide through simple negligence.
So he says.

It has been held that a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence
(People vs. Oanis, et al., 74 Phil 257 (1943); People vs. Naquil, 43 Phil 232 [1922]). What qualities an act of reckless or simple
negligence or imprudence is the lack of malice or criminal intent in the execution thereof (United States vs. Maleza, 14 Phil 468, 471
[1909]). Otherwise stated, in criminal negligence, the injury caused to another should be unintentional, it being simply the incident
of another act done without malice but with lack of foresight, or with carelessness or negligence, and which has harmed society or
an individual (People vs. Castillo, Jr. (275 SCRA 752 [1997]).

The argument of accused-appellant finds no support in the physical evidence. As already discussed, it the version of grappling for
the gun were to be believed, there should have been nitrates on both hands of Grace. And if it was when accused-appellant placed
the barrel of the gun at the base of his head that Grace grabbed his hand holding the gun and in the struggle for its possession his
hand holding the gun was pushed down so that its butt hit the upper leg of Grace causing it to fire, then the trajectory of the slug
should be downwards, through the upper thigh of Grace where it entered. Yet, the autopsy report of Dr. Arizala, Jr. showed the
bullet entered the left thigh of Grace directed slightly upwards and from left to right, taking an intramascular route into the pelvic
cavity, instead of a downward direction if accused-appellant's version were to be believed.

Thus, over and above the testimony of accused-appellant, these physical evidence, the lack of powder burns or nitrates on the
hands of Grace and the trajectory of the bullet that entered her left thigh being slightly upwards and from left to right instead of
downwards, repudiate accused-appellant's claim of simple negligence. Physical evidence is mute but an eloquent manifestation of
truth and rates high in our hierarchy of trustworthy evidence (People vs. Uycoqua, 246 SCRA 769 [1995]).

Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument that his guilt has not been proved
beyond reasonable doubt. The argument is bereft of merit.

The prosecution has sufficiently established the elements of parricide by its evidence. These elements are: (1) the death of the
deceased; (2) that she was killed by the accused; and (3) that the deceased was a legitimate ascendant or descendant, or the
legitimate spouse of the accused (Article 246, Revised Penal Code; People vs. Embalido, 58 Phil 154 [1933]).

The first and third elements were stipulated during the pre-trial stage of the case, thus:

1. that the victim and the accused are legally married. Said civil marriage took place on
July 5, 1990;

xxx xxx xxx

5. that immediately after the shooting, the accused voluntarily and bodily carried the
victim into a taxicab and proceeded to UERM Hospital where she died on the operating
table." (Pre-Trial Order of July 11, 1994, Record, p. 6)

The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his legally wedded wife.

In convicting accused-appellant, the trial court relied heavily on the testimony of the prosecution witnesses. This Court finds no
reason to do otherwise. It is a fundamental and settled rule that the trial court's assessment in regard to the credibility of witnesses
is entitled to the highest degree of respect and will not be disturbed on appeal, as the trial court was in a better position to examine
real evidence as well as to observe the demeanor of the witnesses (People vs. Dominguez, 217 SCRA 170 [1993]; People vs.
Camaddo, 217 SCRA 162 [1993]; People vs. Vallena (244 SCRA 685 [1995]).
The Court agrees with the conclusions of the trial court as they are founded on the dictum that evidence to be believed must not
only proceed from the mouth of a credible witness, but must be credible in itself — such as the common experience of mankind
can approve as probable under the circumstances. We have no test of the truth of human testimony, except in conformity with our
knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial
cognizance (People vs. Escalante, 238 SCRA 554 [1994]).

Further, accused-appellant having admitted that he shot his wife, he has the burden of proof of establishing the presence of any
circumstance which may relieve him of responsibility, and to prove justification he must rely on the strength of his own evidence
and not on the weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after the accused has
admitted the killing (People vs. Bautista, 254 SCRA 621 [1996]). Unfortunately for accused-appellant, he has miserably failed to
discharge this task.

The trial court correctly appreciated the voluntary surrender of accused-appellant as a mitigating circumstance, this fact having
been stipulated by the parties at the pre-trial stage of this case (Pre-Trial Order, Stipulation No. 10, Record, p. 17).

The penalty for the crime of parricide is reclusion perpetua to death; however, there being one mitigating circumstance but no
aggravating circumstance, the lower of the two indivisible penalties should be imposed. The penalty cannot be further reduced by
one degree as the Indeterminate Sentence Law does not find application, the penalties involved being indivisible.

WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO NEPOMUCENO, JR. of the crime of Parricide is
hereby AFFIRMED with the slight modification that his sentence shall be simply reclusion perpetua, not "imprisonment of Forty
(40) Years of reclusion perpetua" as stated by the trial court.

SO ORDERED.
G.R. No. 125936 February 23, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RICARDO DELA CRUZ alias Pawid, MANUEL DELA CRUZ alias Pawid, DANILO DELA CRUZ and JOHN DOE alias HENRY
BALINTAWAK and ORLANDO PADILLA y MENDOZA, accused, RICARDO DELA CRUZ alias Pawid, accused-appellant.

PARDO, J.:

The case before the Court is an appeal taken by Ricardo Dela Cruz alias Pawid from the decision of the Regional Trial Court, Branch 20,
Malolos, Bulacan1 convicting him of robbery with homicide and sentencing him to reclusion perpetua and to indemnify the heirs of the victim
Glicerio Cruz in the amount of fifty thousand pesos (P50,000.00) as civil indemnity for the death of the victim, fifty seven thousand eighty five
pesos (P57,085.00) as reimbursement of funeral expenses, and twenty five thousand (P25,000.00) as moral damages. 2

On August 18, 1993, Assistant Provincial Prosecutor Rita M. Gammad of Malolos, Bulacan (assigned to Branch 20) filed with the Regional
Trial Court, Malolos, Bulacan an information reading:

The undersigned Asst. Provincial Prosecutor accuses Ricardo dela Cruz alias Pawid, Manuel dela Cruz alias Pawid, Danilo dela
Cruz and one John Doe alias Henry Balintawak, as Principals, and Orlando Padilla y Mendoza, as accessory-after-the-fact, of the
crime of robbery with homicide, penalized under the provisions of Art. 294, par. 1 of the Revised Penal Code, committed as
follows:

That on or about the 11th day of May 1993, in the municipality of Bocaue, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Ricardo dela Cruz alias Pawid, Manuel dela Cruz alias Pawid, Danilo dela
Cruz and one alias Henry Balintawak, as principals, conspiring and helping one another, did then and there willfully, unlawfully and
feloniously, with intent of gain and by means of force, violence and intimidation of person, take, rob and carry away with them one
(1) Yamaha RS motorcycle bearing plate no. CZ-2932 with side-car valued at P30,000.00 driven and owned by Glicerio Cruz; that
by reason or on the occasion of the said robbery and for the purpose of enabling them to take, rob and carry away the said
motorcycle with sidecar, the herein accused in furtherance of their conspiracy and with evident premeditation and treachery and
taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab with
bladed instruments said Glicerio Cruz, driver of the said Yamaha RS motorcycle, thereby inflicting upon him serious physical
injuries which directly caused his death; That the said accused Orlando Padilla y Mendoza, without having participated in the said
crime either as principal or accomplice, but having knowledge of the commission of the said crime, did then and there willfully,
unlawfully and feloniously take part subsequent to its commission by harboring, concealing and assisting in the escape of said
accused alias Henry Balintawak.

CONTRARY TO LAW.3

At the arraignment on September 13, 1993, accused Ricardo dela Cruz, Manuel dela Cruz, and Orlando Padilla y Mendoza pleaded not
guilty.4 Danilo dela Cruz and John Doe alias Henry Balintawak remained at large. Trial on the merits ensued.

The facts are as follows:

On May 11, 1993, at around 8:00 in the evening, part-time tricycle driver Glicerio Cruz left his house in Bocaue, Bulacan on board his tricycle,
a Yamaha motorcycle with stainless sidecar marked "Porsche" at the back, for another day's work of plying his route.

At around 10:00 in the same evening, George Taylan who was standing near a gate along Bolina St., Lolomboy, Bocaue, Bulacan noticed a
stainless tricycle marked "Porsche" speeding past him driven by accused John Doe alias Henry Balintawak. Following closely behind was
another tricycle, with accused Danilo dela Cruz driving and accused Ricardo dela Cruz riding in the passenger car. Taylan recognized the
second tricycle as the one owned by accused Ricardo dela Cruz.

Moments later, the three accused stopped in front of the house of co-accused Manuel dela Cruz and called him to get a tool box. 5 Afterwards,
all the accused headed towards the field a few meters away from the house of accused Manuel dela Cruz. Curious as to what the men were
up to, Taylan followed them to the field.

From a distance of fifty meters, Taylan witnessed the four accused dismantling the sidecar of the tricycle marked "Porsche". The scene was
illuminated by a flashlight brought by accused John Doe alias Henry Balintawak. The dismantling process took twenty minutes. 6
Subsequently, accused John Doe alias Henry Balintawak rode the motorcycle, minus the sidecar, towards the road opposite Bolina St., while
the three other accused rode the tricycle of accused Ricardo dela Cruz and headed down Bolina Street. The dismantled sidecar was left in
the field.

On the same night, at around 10:00 in the evening, a policeman knocked at the door of Yolanda Cruz' house and informed her that her
husband, wearing white t-shirt, maong pants and white shoes, and carrying a driver's license bearing the name of Glicerio Cruz, was found
dead. Yolanda requested her children to go to the Dra. Yanga Hospital, as directed by the policeman, to identify the body. They confirmed
that the deceased was indeed Glicerio Cruz.
The next day, on May 12, 1993, Dr. Rosauro Villarama, municipal physician of Angat, Bulacan conducted a post mortem examination of the
deceased Glicerio Cruz, and reported that the deceased sustained seven lacerated wounds, two stab wounds, contusions with hematoma,
abrasions, fractured skull and fractured ribs. 7 Dr. Villarama concluded that the cause of death consisted of cerebral hemorrhage due to
multiple fracture of the skull, traumatic injury, auterior chest wall, left, with injury to left pleura, and multiple stab wounds. 8

On May 31, 1993, several policemen brought George Taylan into custody for questioning in relation to the reported robbery with homicide
that transpired on May 11, 1993. George Taylan executed a sworn statement, giving the names of the persons whom he witnessed
dismantling the stolen tricycle. He knew accused Ricardo dela Cruz because the latter collected house rentals from him. He was also familiar
with accused John Doe alias Henry Balintawak since the latter would sometimes stay in the same house he was renting from Ricardo dela
Cruz.

By virtue of Taylan's sworn statement, policemen formed a team to search for the missing motorcycle of deceased Glicerio Cruz and to
apprehend the suspects in the commission of the crime. Subsequently, policemen arrested accused Ricardo dela Cruz, who was plying his
tricycle along the streets of Lolomboy, Bocaue, Bulacan. Upon questioning, accused Ricardo dela Cruz admitted that he knew where the
stolen motorcycle was located and accompanied the policemen to Tarlac. 9 The motorcycle, already in a cannibalized state, was recovered
and thereafter turned over to Yolanda Cruz, wife of deceased owner. Policemen were able to apprehend accused Manuel dela Cruz, but they
failed to locate accused John Doe alias Henry Balintawak and Danilo dela Cruz.

On his part, accused Ricardo dela Cruz alleged that on May 11, 1993, he was in Barangay Capihan, Tarlac, Tarlac in the house of his
parents-in-law, taking care of his children the entire day. 10 He emphasized that he was a pastor of the Iglesia ng Diyos kay Kristo Jesus and
incapable of being involved in a robbery and killing.

According to Ricardo, on May 14, 1993, he visited his brother Manuel in Bocaue, Bulacan to collect house rentals. Manuel then asked
Ricardo to sell a motorcycle entrusted to him by Henry Balintawak, owner of the motorcycle, who would provide its registration documents at
a later time.11 Ricardo agreed to help sell the motorcycle, for a percentage of the proceeds of the sale. He then brought the motorcycle to
Tarlac and dismantled it for repairs in order to sell it at a better price. 12 He returned to Bocaue, Bulacan five days later to procure the
registration papers of the motorcycle. He failed to obtain the documents and left the next day for Tarlac.

On October 13, 1995, after due trial, the trial court rendered decision, 13 the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing, the Court finds that:

(a) RICARDO DELA CRUZ is guilty beyond reasonable doubt of the crime of robbery with homicide under Art. 294, par. 1 of the
Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim Glicerio
Cruz, the following sum of money:

1. P50,000.00 as civil indemnity for the death of the victim;

2. P57,085.00 for funeral expenses;

3. P25,000.00 for moral damages.

(b) MANUEL DELA CRUZ is found guilty as an accessory to the crime of simple robbery and is sentenced to an indeterminate
prison term of four (4) years, two (2) months and one (1) day to six (6) years, the maximum period of prision correccional, in view
of the aggravating circumstance of nighttime.

(c) ORLANDO PADILLA, for failure of the prosecution to prove the guilt of the accused as an accessory-after-the-fact, accused is
hereby ACQUITTED of the crime charged in the Information.

As regards the other accused Danilo dela Cruz and John Doe alias Henry Balintawak, who are still at large, let standing warrant of
arrest be issued against them furnishing a copy thereof the Director of NBI, the Director General Camp Crame, and the Station
Commanders of Bocaue, Bulacan and Tarlac, Tarlac, for their information and appropriate action.

SO ORDERED.

Malolos, Bulacan, October 13, 1995.

AMADO M. CALDERON
Acting Presiding Judge14

Hence, this appeal filed by Ricardo dela Cruz.15

Accused-appellant Ricardo dela Cruz insisted that he was in Tarlac on May 11, 1993, the night when the crime was committed, and not in
Bulacan as testified to by prosecution witness George Taylan. He also alleged that George Taylan had a motive to testify falsely against him,
since Taylan was in arrears for house rentals and in danger of being evicted by accused-appellant.

Alibi is considered with suspicion and received with caution, not only because it is inherently weak and unreliable but also because it is easily
fabricated and concocted. It is incumbent upon accused to prove that he was at another place when the felony was committed, and that it
was physically impossible for him to have been at the scene of the crime at the time it was committed. 16 In this case, accused-appellant failed
to substantiate his claim that he was not in Bulacan at the time of the commission of the crime. No other witness or evidence pointed to the
fact that he was in Tarlac on the night in question.

Furthermore, the defenses of alibi and denial are discredited because of the positive identification of the accused by a credible witness. 17
Prosecution witness George Taylan testified that he saw accused-appellant Ricardo dela Cruz in Bocaue, Bulacan as one of those who
detached the sidecar of the tricycle of deceased Glicerio Cruz on the night of May 11, 1993. Despite accused-appellant's efforts to discredit
the testimony of George Taylan, the trial court gave credence to his testimony. We find no reason to overturn the assessment of the trial
court.
Moreover, the fact that the stolen motorcycle was found in the possession of accused-appellant created the disputable presumption that he
stole the same.18 If a person is found in possession of stolen goods after the commission of the crime, that person is called upon to give an
explanation for his possession.19

It was undisputed that the motorcycle found in the possession of accused-appellant Ricardo dela Cruz belonged to the deceased Glicerio
Cruz. In an attempt to explain his possession of the stolen motorcycle, accused-appellant contended that the motorcycle had been entrusted
to him by his brother to sell. We find such explanation implausible under the circumstances of this case. Firstly, he did not have its
registration documents in order to complete any sale of such motorcycle. Also, if he intended to sell the motorcycle, he did not adequately
explain the necessity of dismantling the motorcycle, since it was in good operational condition, as he was able to bring it to Tarlac. Thus,
accused-appellant failed to overcome the presumption that he stole the motorcycle.

Contrary to the ruling of the trial court, there is no convincing proof that force, violence or intimidation characterized the taking of the
motorcycle. Prosecution witness George Taylan stated that he saw accused-appellant with three other persons dismantling a tricycle. His
testimony did not mention the manner in which the motor vehicle was taken from its owner, Glicerio Cruz. In the absence of proof that
accused-appellant took the motorcycle by force, violence or intimidation, a charge of robbery cannot be sustained. Thus, the crime
committed is qualified theft, not robbery.

Regarding the charge of homicide imputed to accused-appellant, we find no causal connection between accused-appellant and the death of
Glicerio Cruz.

The decision of the trial court showed that accused-appellant was convicted of robbery with homicide based on the following circumstances:

1. Glicerio Cruz was last seen alive at around 8:00 in the evening of May 11, 1993.

2. At around 10:00 that evening, the wife of Glicerio Cruz was informed that her husband was found dead and his tricycle missing;

3. At around 10:00 of that same night, George Taylan saw accused-appellant with three other persons dismantling the sidecar of
the tricycle of deceased Glicerio Cruz;

4. The missing motorcycle was in the possession of accused-appellant;

5. Accused-appellant admitted that he dismantled the motorcycle in order to sell it at a better price.

From the circumstances above, no direct evidence established a link between the death of Glicerio Cruz and accused-appellant Ricardo dela
Cruz, even if there was evidence of a killing. For circumstantial evidence to be sufficient for conviction, the following requisites must be met:
(a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. 20

In this case, witness George Taylan testified that he saw accused-appellant dismantling the tricycle, not to the fact that he saw accused-
appellant killing Glicerio Cruz. Taylan even admitted that he only heard of Glicerio Cruz's death the day after the incident. 21 There was no
mention as to where the body was found or whether any of the accused was seen with the deceased shortly before his death. Since no
conspiracy was proven to exist in this case, the perpetrator of the homicide needed to be identified. Thus, the circumstances did not
constitute an unbroken chain leading to one fair and reasonable conclusion which pointed to accused-appellant, to the exclusion of all others,
as the person guilty of the homicide.22

In his appellee's brief, 23 the Solicitor General invoked the presumption laid down in People vs. Kagui Malasugui that: "In the absence of an
explanation of how one has come into the possession of stolen effects belonging to a person wounded and treacherously killed, he must
necessarily be considered the author of the aggression and death of said person and of the robbery committed on him." 24 However, we find
this presumption to be inapplicable under the circumstances of this case. 1âwphi1.nêt

In Kagui Malasugui, the victim of the robbery with homicide was able to identify his attacker shortly before his death and there were pieces of
concrete evidence, such as footprint marks and a bloodstained club found near the place where the victim was wounded, which were traced
to accused-appellant Malasugui. In the present case, however, no such evidence can be culled from the records which can pinpoint accused-
appellant as the author of the killing. No identification was extracted from any of the prosecution witnesses or from the deceased before his
death naming accused-appellant Ricardo dela Cruz as the one who inflicted the fatal blows. Thus, the Malasugui case is not applicable to the
present case.

The Court deplores the fact that an innocent person lost his life in a most tragic manner. In criminal cases, it is the prosecution's duty to
prove each and every element of the crime charged in the information to warrant a finding of guilt for the said crime or of any other crime
proved necessarily included therein. 25 In this case, the evidence is insufficient to support conviction for robbery with homicide, the crime
charged. Neither robbery nor homicide was proved. However, the prosecution's evidence proved the commission of qualified theft,
sufficiently included in the allegations of the information. 26 The property stolen is a motor vehicle, hence, accused-appellant may be convicted
of qualified theft, not robbery with homicide. 27

We now discuss the penalty to be imposed. Under Article 310 in relation to Article 309 (1) of the Revised Penal Code, qualified theft shall be
punished by the penalty next higher by two degrees than those specified in simple theft. Article 309 (1) provides that if the value of the thing
stolen is more than P12,000.00 pesos but does not exceed P22,000.00 pesos, the penalty of prision mayor in its minimum and medium
periods shall be imposed. If the value of the thing stolen exceeds the latter amount, the penalty shall be the maximum period of the one
prescribed, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty
years.28

In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with sidecar valued at P30,000.00. 29 Since this value
remains undisputed, we accept this amount for the purpose of determining the imposable penalty. In simple theft, such amount carries the
corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the maximum period. 30 Considering that the
penalty for qualified theft is two degrees higher than that provided for simple theft, the penalty of prision mayor in its minimum and medium
periods must be raised by two degrees. Thus, the penalty prescribed for the offense committed of qualified theft of motor vehicle is reclusion
temporal in its medium and maximum periods to be imposed in its maximum period.

Applying the Indeterminate Sentence Law, the minimum of the indeterminate penalty shall be anywhere within the range of the penalty next
lower in degree to that prescribed for the offense, without first considering any modifying circumstance attendant to the commission of the
crime.31 Since the penalty prescribed by law is reclusion temporal medium and maximum, the penalty next lower would be prision mayor in its
maximum period to reclusion temporal in its minimum period.32 Thus, the minimum of the indeterminate sentence shall be anywhere within
ten (10) years and one (1) day to fourteen (14) years and eight (8) months.

The maximum of the indeterminate penalty is that which, taking into consideration the attending circumstances, could be properly imposed
under the Revised Penal Code. Since the amount involved in the present case exceeds P22,000.00, this should be taken as analogous to
modifying circumstances in the imposition of the maximum term of the full indeterminate sentence, not in the initial determination of the
indeterminate penalty.33 Thus, the maximum term of the indeterminate penalty in this case is the maximum period of reclusion temporal
medium and maximum, which ranges from eighteen (18) years, two (2) months, and twenty one (21) days to twenty (20) years, as computed
pursuant to Article 65, in relation to Article 64 of the Revised Penal Code. 34

WHEREFORE, the appealed decision is hereby MODIFIED. The Court finds accused-appellant Ricardo dela Cruz guilty beyond reasonable
doubt of qualified theft defined and penalized under Article 310 in relation to Article 309 (1) of the Revised Penal Code involving the amount
of P30,000.00 and hereby sentences him to the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to
eighteen (18) years, two (2) months, and twenty one (21) days of reclusion temporal, as maximum; to indemnify the heirs of the offended
party in the amount of P30,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. The award of civil indemnity,
moral damages, and for funeral expenses is hereby deleted.

SO ORDERED.
G.R. No. 143561 June 6, 2001

JONATHAN D. CARIAGA, petitioner,

vs.
COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and DAVAO LIGHT and POWER CO., respondents.

GONZAGA-REYES, J.:

This is a petition for review on certiorari seeking the reversal of the decision 1 of the Court of Appeals in CA-G.R. No. 13363 entitled People v.
Jonathan Cariaga, promulgated on April 24, 1995 affirming the decision of the Regional Trial Court of Davao City, Branch 11, 2 which
convicted petitioner Jonathan Cariaga of the crime of Qualified Theft.

In an amended Information3 dated October 3, 1989, petitioner was charged with qualified theft as follows:

"That sometime during the period from October, 1988 to January, 1989, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, being then an employee of Davao Light & Power Co. Inc.,
Davao City, and as such has access to the said company, with intent to gain, with grave abuse of confidence and without the
knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away
electrical equipment, supplies and materials totaling P7,038.96 belonging to Davao Light & Power Company, to the damage and
prejudice of the said company, in the aforesaid amount of P7,038.96.

Contrary to law."

The factual background of this case as summarized by the trial court and adopted by the Court of Appeals is as follows:

"Luis Miguel Aboitiz, employed at the time of the incident in question and for sometime prior thereto as Systems Analyst of the
Davao Light & Power Company, Inc. (DLPC), whose duty was to devise systems, procedures or controls to promote efficiency,
prevent losses due to waste, pilferage or theft of company property, etc., received reports that some private electricians were
engaged in the clandestine sale of DLPC materials and supplies. He initiated a covert operation with the following objectives: (1)
ascertain how DLPC materials were being stolen, the frequency of the thefts, who were perpetrating the thefts; and (2) `catch' at
least one (1) DLPC employee that may be involved.

In October, 1988, he sought the assistance of Sgt. Fermin Villasis, Chief, Theft & Robbery Section, San Pedro Patrol Station,
Davao METRODISCOM. He also hired one Florencio Siton, a welder by occupation and a Civilian Home Defense Forces (CHDF)
member, as his undercover agent under the pseudonym 'Canuto Duran', an 'electrician from Kabakan, Cotabato.'

'Canuto Duran' struck an acquaintance with one Ricardo Cariaga, a private electrician, at the Miguel Store, situated in front of the
DLPC office along Ponciano Reyes (now Bangoy) Street, Davao City. He told Ricardo that his boss ordered him to buy electrical
materials to be brought to Diwalwal, a gold panning area in Monkayo, Davao (formerly Davao del Norte).

Ricardo offered to supply 'Canuto Duran' with electrical materials, saying that he has a cousin from whom he can procure the
same. 'Canuto' purchased small electrical wires which, according to Ricardo, came from his cousin, Jonathan Cariaga, nicknamed
Totoy.

On November 17, 1988, Ricardo introduced 'Canuto' to Jonathan at Miguel Store. It turned out that Jonathan was the assigned
driver of DLPC Service Truck 'S-143' assigned to Work Gang 'Venus'. 'Canuto' inquired from Jonathan if he could supply him with
two (2) 15 KVA transformers. Jonathan replied that he could for P16,000. 'Canuto' placed an order for the transformers. The deal
did not materialize, however, as 'Canuto's' boss (Miguel Aboitiz) who would provide the funds happened to be out of town.
Jonathan appeared piqued. To appease him, 'Canuto' assured him that they shall continue their 'business' relationship. Not long
after, he placed an order for a lightning arrester. Ricardo, Jonathan and 'Canuto' agreed to meet at the corner of Jacinto and
Arellano Streets.

Jonathan got DLPC Truck 'S-143' which was inside the DLPC Compound at Ponciano Reyes Street and drove it to the designated
meeting place, leaving 'Canuto' and Ricardo at Miguel Store. After a while, Ricardo and 'Canuto' followed. On the way, 'Canuto
gave Ricardo P1,800. At the meeting place, Ricardo gave the money to Jonathan, after which the latter got a lightning arrester
(Exh. M) from his truck's toolbox and handed it to Ricardo, who, in turn gave it to 'Canuto'.

On January 23, 1989, Ricardo accompanied 'Canuto' to Jonathan's house at Doña Pilar Village, Sasa, Davao City, to get a roll of
Electrical Wire No. 2 (300 meters long) valued P5,010 (Exh. J) and 2 lightning arresters with cutout, valued P1,185.75 each, or
P2,371.50 for both (Exhs. I and I-1) from Jonathan. 'Canuto' paid P2,500.00 only for the items. He gave the money to Ricardo;
Ricardo, in turn, gave it to Jonathan.
 Siton's undercover work came to an abrupt end on February 1, 1989 when members of Sgt. Villasis' team 'apprehended' 'Canuto'
and turned him over, including the electrical wires that he previously purchased from Jonathan through Ricardo, to the San Pedro
Patrol Station. The team was unable to arrest Ricardo as he had already left when the team arrived at his house. 'Canuto Duran'
'confessed' in order to persuade Ricardo – and the others who were involved – to likewise come out with the truth. Thus, when
Ricardo and Sergio Jamero appeared at the San Pedro Patrol Station on the invitation of the police, they confessed to their crimes
(Exhs. A and G, respectively).

Ricardo revealed that he acted as a fence for his cousin, Jonathan Cariaga and 'Canuto Duran' on November 27, 1988 and again
on January 23, 1989; that the items that 'Canuto Duran' bought from Jonathan, thru him, were DLPC properties.

Jamero also confessed that Ricardo was his fence in disposing of DLPC electrical materials that he pilfered but the items were not
sold to 'Canuto Duran' but to someone else.

The recitals of Ricardo and Jamero in their sworn statements are substantially corroborated by entries in the Daily Record of
Events (blotter) of the San Pedro Patrol Station (Exhs. B, B-1; C, C-1; D, D-1; E, E-1; and F, F-1).

The accused was also invited to the San Pedro Patrol Station but, according to Sgt. Villasis, he refused to give a
statement.

The prosecution was unable to present Ricardo as its witness as the subpoena could not be personally served upon him as
according to his wife, Antonieta Cariaga, he was in Sultan Kudarat and the date of his return to Davao City was not certain (Exhs.
Y, Y-1).

Acting on the extrajudicial confessions of the suspects, the reports of Siton to the police and the bust, the team under Sgt. Villasis
recovered the following items:

1. 1 pc. Lightning Arrester MEW Valve Type V (Exh. "I");

2. 1 pc. Lightning Arrester MEW Valve Type (Exh. "I-1");

3. 1 pc. Lightning Arrester MEW Thorex Type (unmarked);

4. 1 pc. Fuse Cut-out S&C Brand with Bracket (unmarked);

5. 1 pc. Fuse Cut-out with Fuse Holder, AB Chance (Exh. "M");

6. 1 roll (330 meters) Aluminum Wire No. 8 (Exh. "K");

7. 1 roll (300 meters) Aluminum Wire No. 2 (Exh. "J");

8. 1 roll (36 coils) Aluminum Wire No. 6; ) One of these

9. 1 roll (74 coils) Aluminum Wire No. 8; ) rolls is

10. 1 roll (41 coils) Aluminum Wire No. 2; ) marked Exh.

11. 1 set bracket for cut-out. ) "AA"

Sgt. Villasis testified that Exh. "U" and Exh. "AA" were the wires recovered from Siton during the bust while the rest, particularly
Exhs. "I" and "I-1" "J" and "M" were recovered at Roselo Toledo's house where Siton ("Canuto Duran") brought them; x x x." 4

According to the trial court, "the prosecution's evidence considered as a whole is strong, clear and convincing. The statements in the
extrajudicial confessions of Ricardo Cariaga (Exhs. A; O,O-1) implicative of the accused as the source of the stolen articles, corroborated by
Siton's testimony and the police records (Exhs. D to F-2, inclusive) are formidable compared to the mere puny denial of the accused."

In due course, the trial court on November 18, 1991, rendered judgment, the decretal portion reading:

"WHEREFORE, the Court finds accused Jonathan Cariaga guilty beyond reasonable doubt of theft, qualified by grave abuse of
confidence, under Article 310, in relation to Article 309, par. 2, of the Revised Penal Code, as charged, aggravated by the use of
motor vehicle which is not offset by any mitigating circumstance. Applying the Indeterminate Sentence Law, he is sentenced to
suffer an indeterminate penalty ranging from TEN (10) Years, EIGHT (8) MONTHS AND ONE (1) DAY, of prision mayor, as
minimum, to EIGHTEEN (18) YEARS, TWO (2) MONTHS AND TWENTY ONE (21) DAYS of reclusion temporal, as maximum;
and to pay the costs.

No civil indemnity is awarded to DLPC, the private complainant, as the items stolen were recovered. The return to DLPC of all the
items recovered by the police is ordered.

SO ORDERED."5

On appeal by Jonathan Cariaga, the Court of Appeals affirmed on April 24, 1995, the decision of the trial court. The Court of Appeals
reasoned out that the sworn statement of Ricardo Cariaga who did not testify in open court during the criminal proceedings against petitioner
is admissible in evidence and properly considered by the trial court as this was annexed as part of DLPC's position paper submitted to the
National Labor Relations Commission in Case No. RAB-11-05-00308-89, a complaint filed by the accused for illegal dismissal, as an
exception to the hearsay rule under Section 47, Rule 130 of the Revised Rules of Court. The Court of Appeals likewise upheld the credibility
of Siton's testimony which corroborated that of Ricardo Cariaga's sworn statement.
Hence, the instant petition raising the following errors:

"I The trial court erred in admitting in evidence the sworn statement of Ricardo Cariaga without him taking the witness stand since
it violates the fundamental right of the accused to meet the witnesses against him face to face. Hence, Ricardo Cariaga's sworn
statement is not admissible under Section 1(f), Rule 115 of the Revised Rules of Court for failure of the prosecution to comply with
the strict requirements of said rule, to wit:

a] Ricardo Cariaga did not orally testify in the labor case;

b] Inability to testify must be for a grave cause almost amounting to death and the prosecution must exhaust all
available remedies to secure the presence of its witnesses at the trial;

c] That the former proceeding must also be criminal in nature.

II. The appellate court erred in holding that the lone testimony of the prosecution's alleged eyewitness who is a paid witness and
whose testimony was admittedly corrected or revised on the witness stand and which materially and significantly varies with his
previous sworn statement on very vital and pivotal details is sufficient to prove the guilt of the accused beyond reasonable doubt.

III.The appellate court erred in failing to appreciate the reasonable doubt engendered by the exculpatory statements of the
superiors of the accused in favor of the latter." 6

In his first assignment of error, petitioner argues that the sworn statement of Ricardo Cariaga who was not presented in court is inadmissible.
The prosecution presented in evidence as Exh. P-2, Ricardo Cariaga's sworn statement which was attached as Annex "8-A" to DLPC's
position paper in the labor case filed by Jonathan Cariaga against the latter for illegal dismissal. The trial court admitted the same in evidence
despite the timely objection of the defense counsel; and the Court of Appeals upheld the admission thereof citing as basis, Section 47, Rule
130 of the Rules on Evidence and Section 1(f), Rule 115 of the Rules on Criminal Procedure.

Section 47 of Rule 130 reads:

SEC. 47. Testimony or deposition at a former proceeding. – The testimony or deposition of a witness deceased or unable to
testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be
given in evidence against the adverse party who had the opportunity to cross-examine him.

More specific however is the rule prescribed in Rule 115, Section 1(f) of the Rules of Court in respect of the admissibility in evidence in a
criminal case of the previous testimony of unavailable witnesses which reads:

Section 1. Rights of accused at the trial. – In all criminal prosecutions, the accused shall be entitled:

f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable or otherwise
unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the
adverse party having had the opportunity to cross-examine him;

In Toledo, Jr. vs. People,7 this Court emphasized that "the preconditions set forth in Section 47, Rule 130 for the admission of testimony
given by a witness out of court must be strictly complied with and that there is more reason to adopt such a strict rule in the case of Section
1(f) of Rule 115, for apart from being a rule of evidence with additional specific requisites to those prescribed by Section 47, more
importantly, said provision is an implementing translation of the constitutional right of an accused person "to meet the witnesses (against him)
face to face." In Tan vs. Court of Appeals,8 it was ruled that "'unable to testify' or for that matter 'unavailability', does not cover the case of
witnesses who were subpoenaed but did not appear. It may refer to inability proceeding from a grave cause, almost amounting to death, as
when the witness is old and has lost the power of speech. It does not refer to tampering of witnesses."

The threshold question then is the admissibility of the sworn statement of Ricardo Cariaga which was attached to DLPC's position paper in
the labor case filed by Jonathan Cariaga against it for illegal dismissal.

The records reveal that witness Ricardo Cariaga was subpoenaed only once and did not appear to testify in the criminal case against
petitioner. Concededly, this witness was not deceased or out of the Philippines. In fact, the private prosecutor informed the court that he is in
Sultan Kudarat,9 and previously, his wife informed the sheriff that he was in Sultan Kudarat which is in Cotabato, a mere four hours drive from
Davao City. Against this backdrop, can this witness be categorized as one that cannot be found despite due diligence, unavailable or unable
to testify. We are inclined to rule in the negative and reverse the Court of Appeals on this point.

It must be emphasized that this rule is strictly complied with in criminal cases, hence, "mere sending of subpoena and failure to appear is not
sufficient to prove inability to testify. The Court must exercise its coercive power to arrest." 10 In the instant case, no efforts were exerted to
have the witness arrested which is a remedy available to a party-litigant in instances where witnesses who are duly subpoenaed fail to
appear. On this score alone, the sworn statement of Ricardo Cariaga should not have been admitted as evidence for the prosecution, and we
shall no longer delve into the other aspects of this rule.

In his second assignment of error, petitioner assails the testimony of prosecution witness Florencio Siton alias "Canuto Duran", the
undercover agent, as not credible because it is allegedly inconsistent in very material and pivotal details from the sworn statement he made
at the police station and that he is admitted by the prosecution to be a paid witness. According to petitioner, Siton's testimony was overhauled
and corrected to meet the crisis created by eyewitness Ricardo Cariaga's non-appearance in court. Petitioner argues further that Siton had
thousands of reasons to vary or exaggerate or pervert the truth in his testimony because he admitted that he was given by DLPC through Mr.
Aboitiz, a 15 KVA transformer worth P15,000.00 to P18, 000.00 and he also admitted on cross-examination that "after the hearing he (Mr.
Aboitiz) will hire me as an employee or that he will give me privilege."

He alleges that Siton never mentioned in his sworn statement that he bought anything directly from petitioner and only stated that the latter
was around when he bought some wires and lightning arresters from Bondying and Bebing Tumali, and then claimed on the witness stand
that he had direct dealings with petitioner. Siton also failed to state in his sworn statement that he went to the house of petitioner to purchase
DLPC materials; and he mentioned therein that the arrangement was that the materials will be delivered three days after payment, but in his
testimony, the materials were delivered upon payment.
As we have so frequently ruled, the trial judge who sees and hears witnesses testify has exceptional opportunities to form a correct
conclusion as to the degree of credit which should be accorded their testimonies. 11 Next, the rule has also always been that the
contradictions between the contents of an affiant's affidavit and his testimony on the witness stand do not always militate against the witness'
credibility because we have long taken judicial notice that affidavits, which are usually taken ex parte, are often incomplete and inaccurate. 12
Indeed, a sworn statement taken ex parte is generally considered to be inferior to a testimony given in open court as the latter is subject to
the test of cross examination.13

We have carefully gone over the records and evidence in this case and we are persuaded that Siton's testimony in court deserves credence.
We further find the same sufficient for conviction. Siton was consistent and straightforward in his testimony and had not been shaken by the
lengthy and exhaustive cross-examination by the defense counsel. Having thoroughly convinced the trial and appellate courts as well as this
Court of the truth of his testimony, we do not see how he could have fabricated the entire story. The fact that he stated on direct examination
that he "corrected" his statement and that he was offered compensation for his undercover work does not necessarily discredit him. There is
no rule of evidence to the effect that omission of certain particulars in a sworn statement would estop an affiant from making an elaboration
thereof or from correcting inaccuracies during the trial. It appears that he was paid for his services rendered as an undercover agent and not
for purposes of concocting a story and imputing a crime as that made out in the information. Similarly, the alleged inaccuracies in the
testimony of Siton in open court relating to such minute details as whether the petitioner's house was two-stories high and located in a corner
are too negligible to consider.

Finally, we reject petitioner's claim that the testimonies of three witnesses for the prosecution, namely, Sauro, Saligan and Aboitiz,
engendered reasonable doubt sufficient to exculpate him. He points out that "Rodolfo Sauro, gang crew supervisor of petitioner testified that
he has not reported any missing materials in the truck driven by the petitioner; that Luis Aboitiz testified that he asked Estelito Saligan to
conduct investigation if there were materials missing `but the latter came out with the report that he could not find any missing materials'; and
that Estelito Saligan, head of Materials Management Department of the DLPC confirmed on cross-examination that there were no properties
lost or missing."

However, a more accurate reading of the testimonies of the said witnesses reveals that Rodolfo Sauro 14 testified that petitioner is
permanently assigned as driver to the S-143 truck; that he is in charge of all the equipment and supplies stored in the truck; that there were
always reserve materials kept in the truck for emergency operations during the night and that he trusted him that these materials were being
used for emergencies.15 He also testified that he took Jonathan's word that the reserve materials were used for emergencies because he
found him trustworthy.16 On the other hand, Engr. Estelito Saligan was recalled to the witness stand to clarify Mr. Aboitiz's statement that "he
was ordered to make inventories and that he did not find any missing." He clarified that he only inventoried the materials inside the
warehouse which are within his jurisdiction, but he did not conduct inventory of materials or properties already in the possession of the
operations department17 of which petitioner belonged to. In sum, nothing in the cited testimonies confirm petitioner's insistence that there
were no stolen electrical supplies and materials from DLPC.

In fine, we are satisfied that the participation of the petitioner in the commission of the crime at bar was well established by the testimony of
witness Siton. In the determination of the sufficiency of evidence, what matters is not the number of witnesses but their credibility and the
nature and quality of their testimonies. 18 It is axiomatic that witnesses are weighed, not numbered and the testimony of only one witness, if
credible and positive and if it satisfies the court beyond reasonable doubt, is sufficient to convict. The inadmissibility of Ricardo Cariaga's
sworn statement as discussed above will not exculpate him.

The defense, verily, anchors itself on the bare denial of petitioner of the specific acts imputed by the prosecution against him. Certainly, this
negative assertion cannot prevail over the unimpeached testimony of the prosecution witness, Florencio Siton alias "Canuto Duran"
describing in sufficient detail the active participation of petitioner in the commission of the crime charged. As aptly observed by the trial court:

"The accused's defense consisted of a general denial; that the items alleged by the prosecution as having been pilfered from
DLPC were available in any store selling electrical supplies. Despite having been positively pointed to as the person who sold
small electrical wires, lightning arresters and a roll of Electrical Wire No. 2 that were pilfered from DLPC to "Canuto Duran" (Siton),
thru Ricardo Cariaga, he did not categorically deny the imputation: he merely declared that he did not know Siton (he did not say
that he did not know "Canuto Duran") nor did he say that he did not sell anything to "Canuto Duran" thru Ricardo Cariaga. As a
rule, positive testimony as to a particular fact, uncontradicted by anyone, should control the decision of the court (Ko Tieck vs.
People, L-48535-36, Dec. 21, 1991)."

We note that the information alleged that petitioner was an employee of DLPC; that he had access to the electrical supplies of said company;
and that with grave abuse of confidence, he stole electrical materials belonging to DLPC. The prosecution established that petitioner who
was permanently assigned as driver of Truck "S-143" had charge of all the DLPC equipment and supplies kept in his vehicle, including
lightning arresters, cut-out and wires, which were generally used for the installation of transformers and power lines; and specifically stored
therein for emergency operations at night when the stockroom is closed. While the mere circumstance that the petitioner is an employee or
laborer of DLPC does not suffice to create the relation of confidence and intimacy that the law requires to designate the crime as qualified
theft, it has been held that access to the place where the taking took place or access to the stolen items changes the complexion of the crime
committed to that of qualified theft.19 Thus, theft by a truck driver who takes the load of his truck belonging to his employer is guilty of qualified
theft20as was proven in this case. The trial court correctly considered petitioner's use of a motor vehicle in the commission of the crime as a
generic aggravating circumstance thus raising the penalty to its maximum. 21 While the aggravating circumstance of "by means of motor
vehicle" was not alleged in the information, there is evidence that the same was employed to facilitate the commission of the crime. A generic
aggravating circumstance may be proved even if not alleged. 22 The theft could not have been effected without the aid of the motor vehicle, 23
as proven by the prosecution, the service truck was used in storing and then transporting the stolen electrical materials to the place where
they were sold. 1âwphi1.nêt

We now come to the correctness of the penalty imposed. The trial court meted on petitioner an indeterminate penalty ranging from ten (10)
years, eight (8) months and one (1) day, of prision mayor, as minimum, to eighteen (18) years, two (2) months and twenty one (21) days of
reclusion temporal as maximum. Since the value of the electrical materials is P7,038.96, the imposable penalty for the felony of theft is
prision correccional in its medium and maximum periods in accordance with Article 309, paragraph 2 of the Revised Penal Code. 24 However,
under Article 310 of the Revised Penal Code, 25 the crime of qualified theft is punished by the penalties next higher by two (2) degrees than
that specified in Article 309 of the Revised Penal Code. Under Article 25 of the Revised Penal Code, two (2) degrees higher than prision
correccional in its medium and maximum periods is prision mayor in its maximum period to reclusion temporal in its minimum period which is
ten (10) years and one (1) day to fourteen (14) years and eight (8) months. Considering there is one generic aggravating circumstance, the
penalty should be reclusion temporal in its minimum period. Applying the Indeterminate Sentence Law, the correct penalty is eight (8) years,
eight (8) months and one (1) day of prision mayor as minimum to thirteen (13) years, one (1) month and eleven (11) days of reclusion
temporal as maximum.

WHEREFORE, the decision of the Court of Appeals dated April 24, 1995 is hereby AFFIRMED with the MODIFICATION that the penalty is
reduced to EIGHT (8) years, EIGHT (8) months and ONE (1) day of prision mayor as minimum to THIRTEEN (13) years, ONE (1) month and
ELEVEN (11) days of reclusion temporal as maximum.

SO ORDERED.