G.R. Nos. 93808-09. April 7, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BELARMINO DIVINA alias "Bejar" and MECRITO BAGA y HIYOG, accused-appellants.

G.R. No. 94073-74. April 7, 1993.

BELARMINO DIVINA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and JUDGE ROSENDO B. BANDAL, JR., Presiding Judge,
Regional Trial Court of Negros Oriental, Branch 34, respondents.

The Solicitor General for plaintiff-appellee.

Ramon C. Barrameda for accused-appellants.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF TRIAL JUDGE; GENERALLY

ACCEPTED. On the question of credibility, this Court will not as a general rule disturb the findings
of the trial judge unless he has plainly overlooked certain facts of substance and value that, if
considered, might affect the result of the case. The reason is the opportunity available to the trial
court but not to the appellate court to observe the witnesses on the stand and to assess their
credibility not only by the nature of their testimony but also by their demeanor under questioning.

2. ID.; ID.; WITNESSES; CREDIBILITY; NOT IMPAIRED BY FAILURE TO DISCLOSE AT ONCE

THE IDENTITY OF ACCUSED. The rule is well-established that the failure to reveal or disclose at
once the identity of the accused does not necessarily affect much less impair, the credibility of the
witness. The initial reluctance of witnesses to volunteer information about a criminal case and their
unwillingness to be involved in criminal investigations due to fear of reprisal is common and has
been judicially declared not to affect credibility. In the case at bar, it is a fact that one of the accused,
Belarmino Divina, has been the OIC Barangay Captain of Anhawan since 1986 up to May, 1988. It
cannot be gainsaid that although the incident happened after his term, having held said position, he
has a strong influence in said place. It was natural for the victim to fear for his life as explained by
him. In addition thereto, the incident also resulted in the death of Concepcion Baillo, wife of
Ambrocio Baillo and mother of Jaime and Rogelio Baillo. We have held that "(a)lthough there is a
natural tendency to seek the ends of justice for the treacherous killing of a dearly departed,
mourning and rites for the dead take priority as dictated by our culture. Moreover, the injuries
sustained by the victim Jaime Baillo, both physical and emotional, and the necessary period of
recuperation after his discharge from the hospital are enough reasons to understand the delay in the
filing of the complaint.

3. CRIMINAL LAW; CONSPIRACY; NOT ESTABLISHED BEYOND REASONABLE DOUBT. On

the issue of conspiracy, We hold that it was not established beyond reasonable doubt. Nowhere in
the trial court's decision was there any mention of any act of the accused that may be construed as
an overt act in the furtherance of conspiracy. Absent such an evidentiary basis, We cannot accept
the finding of implied conspiracy. We have held that: ". . ., albeit no formal agreement is necessary to
prove conspiracy and the same way be inferred from the circumstances attending the commission of
the crime, yet conspiracy must be established by the same quantum of evidence as any other
ingredient of the offense. Such evidence must show intentional participation in the transaction with a
view to the furtherance of the common design or purpose. The same degree of proof necessary to
establish the crime is required to establish a finding of criminal conspiracy, that is, proof beyond
reasonable doubt. It cannot be established by conjectures but by positive and conclusive evidence.
Since conspiracy must be proved beyond peradventure of a doubt, it follows that it cannot be
appreciated where the facts can be consistent with the non-participation of the accused in the
fancied cabal." In the case at bar, no conspiracy may be deduced where there is no evidence to
show the participation of accused Mecrito Baga in the shooting incident. The lone eyewitness Jaime
Baillo testified that while he was hiding behind the hagonoy plants, he saw accused Belarmino
Divina holding a gun and together with Mecrito Baga, approached the lifeless body of his mother.
The mere presence of accused Mecrito Baga does not prove his participation in the killing. The mere
fact of being with Divina does not of itself establish conspiracy.

4. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF

ACCUSED. The well-settled rule is that alibi is one of the weakest defenses that can be resorted
to by an accused, not only because it is inherently weak and unreliable but also because of its easy
fabrication. We have repeatedly held that the defense of alibi cannot prevail over the positive
identification of the accused by witnesses for the prosecution and that to establish it, the accused
must show that he was at some other place for such a period of time that it was impossible for him to
have been at the place where the crime was committed at the time of its commission. Record shows
that the victim Jaime Baillo while hiding behind the hagonoy plant saw accused Belarmino Divina
approach the dead body of his mother Concepcion Baillo and uttered "PUSIL RAY TAMBAL SA
MGA TESTIGOS SA CONTRA SA MGA DIVINA" which means "ONLY THE GUN CAN SILENCE
THOSE WITNESSES AGAINST THE DIVINAS." In addition thereto, accused Belarmino Divina in his
cross examination admitted that the house of his father-in-law where he was allegedly drinking tuba
with his friends is only about two and a half (2 1/2) kilometers from where the victims Concepcion
Baillo and Jaime Baillo were shot at. Hence, it was not physically impossible for accused Belarmino
Divina to be at the place where the crime was committed. Moreover, although motive is unnecessary
when the assailant has been positively identified, in this case, accused Belarmino Divina has the
motive to commit the crime charged because the victim Concepcion Baillo was shown to be a
witness against the former's brothers in another criminal case.

5. ID.; ID.; POLICE BLOTTER; ENTRIES THEREIN NOT INCLUSIVE. A police blotter is a book
which records criminal incidents reported to the police. Entries in official records, as in this case of a
police blotter, are only prima facie evidence of the facts therein stated. They are not conclusive. It is
undisputed that the alleged time of the commission of the crime, i.e., 7:40 in the evening of June 17,
1988, was supplied only by the parish priest Fr. Badoy who was neither present when the shooting
incident happened nor presented as a witness during the trial. The information supplied is therefore
hearsay and does not have any probative value.

6. ID.; CRIMINAL PROCEDURE; BAIL; NOT AVAILABLE TO ACCUSED UNDER SO

ADMINISTRATIVE CIRCULAR NO. 2-92. With regards to G.R. Nos. 94073-74, We are
constrained to deny accused Belarmino Divina's petition for certiorari in line with this Court's
Administrative Circular No. 2-92 dated January 20, 1992 "Re: Cancellation of Bail Bond of Accused
Convicted of Capital Offense in the Regional Trial Court," pertinent provisions of which are quoted
hereunder: "The basic governing principle on the right of the accused to bail is laid down in Section 3
of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: "Sec. 3. Bail, a
matter of right; exception. All persons in custody shall before final conviction, be entitled to bail as
a matter of right, except those charged with a capital offense or an offense which, under the law at
the time of its commission and at the time of the application for bail, is punishable by reclusion
perpetua, when the evidence of guilt is strong." Pursuant to the aforecited provision, an accused who
is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be
entitled to bail as a matter of right even if he appeals the case to this Court since his conviction
clearly imports that the evidence of his guilt of the offense charged is strong." Accused Belarmino
Divina was convicted by the Regional Trial Court of the crime of murder which is an offense
punishable by reclusion perpetua. Pursuant to SC Administrative Circular No. 2-92, he is no longer
entitled to bail even if he appeals to Us since his conviction clearly imports that the evidence of his
guilt is strong.

DECISION

CAMPOS, JR., J p:

In G.R. Nos. 93808-09, accused BELARMINO DIVINA alias "Bejar" and MECRITO BAGA y HIYOG
appealed from the judgment ** rendered by the Regional Trial Court, 7th Judicial Region, Branch 35
of Dumaguete City convicting both accused for murder and frustrated murder for the death of
Concepcion Baillo and the gunshot wounds sustained by Jaime Baillo.

In G.R. Nos. 94073-74, accused BELARMINO DIVINA alias "Bejar" filed a petition for certiorari
alleging that the trial court committed grave abuse of discretion amounting to lack or in excess of
jurisdiction for disapproving his property bond because it consists of unregistered or untitled land.

On July 30, 1990, this Court resolved to consolidate the two abovementioned cases.

In G.R. Nos. 93808-09, the accused BELARMINO DIVINA alias "Bejar" and MECRITO BAGA y
HIYOG were charged with murder and frustrated murder in the two informations as follows.

The Information for Murder in Criminal Case No. 8342 dated August 30, 1988, alleged:

"That on or about the 17th day of June, 1988, at Barangay Malungcay Daku, Municipality of Dauin,
Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually helping one another,
with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and
feloniously attack, assault and shoot Concepcion Baillo with the use of a firearm which said accused
were then armed and provided, thereby inflicting upon the body of Concepcion Baillo a gunshot
wound at her back which directly caused her death immediately thereafter.

Contrary to Article 248 of the Revised Penal Code." 1

The information for Frustrated Murder in Criminal Case No. 8362 dated September 9, 1988, alleged:

"That in the evening of June 17, 1988, at Barangay Malungcay Daku, municipality of Dauin, Province
of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with evident premeditation and treachery, and with intent to kill, conspiring and
confederating together and acting under the same accord and purpose, did then and there willfully,
unlawfully and feloniously, with the use of a gun, shoot one JAIME BAILLO inflicting upon the latter
the following injuries, to wit:

1. Gunshot wound of entrance 0.5-1 cm. long posterior chest wall lower left penetrating abdominal
cavity with injury to the liver left lobe thru & thru.

2. Hemoperitoneum approximately 250 cc. with metallic foreign body at submuscular area,
epigastrium.

3. Retro peritoneal hematoma.

4. Gunshot wound of entrance 0.5 cm. left buttock upper portion.

5. Gunshot wound of exit left inguinal area.

6. Pneumonia both lower lung fields.

thus the offenders performing all the acts of execution which would have produced the crime of
MURDER, as a consequence but which, nevertheless, did not produce it by reason of causes
independent of the will of the perpetrators, that is, by the timely medical assistance rendered to the
victim that prevented his death.

Contrary to Article 248 in relation to Article 6 of the Revised Penal Code." 2

On May 18, 1990, the court a quo rendered its decision convicting both accused for murder and
frustrated murder, the dispositive portion of which reads:

"WHEREFORE, accused BELARMINO DIVINA alias "Bejar" and MECRITO BAGA Y HIYOG are
hereby found guilty beyond reasonable doubt of the crimes of Murder, qualified by treachery, in
Criminal Case No. 8342 for the killing of Concepcion Baillo; and for Frustrated Murder, also qualified
by treachery, in Criminal Case No. 8362, for the deadly wounds inflicted on Jaime Baillo, and the
Court hereby imposes the following penalties to wit:

1. For the Murder of Concepcion Baillo in Criminal Case No. 8342, accused Belarmino Divina and
co-accused Mecrito Baga are hereby sentenced to suffer the imprisonment of RECLUSION
PERPETUA. Accused shall also jointly and solidarily indemnify the heirs of the deceased victim the
sum of THIRTY THOUSAND PESOS (P30,000.00), and to pay the costs;

2. For the Frustrated Murder of Jaime Baillo in Criminal Case No. 8362, accused Belarmino Divina
and co-accused Mecrito Baga are hereby sentenced, after applying the Indeterminate Sentence
Law, as amended, to suffer an imprisonment ranging from EIGHT (8) YEARS AND ONE (1) DAY of
Prision Mayor as minimum to SEVENTEEN (17) YEARS AND FOUR (4) MONTHS of Reclusion
Temporal as maximum, and to pay the costs.

Also considering the fact that the two (2) accused are charged with a capital offense and taking into
account their conviction today where it can no longer be said that the evidence against them is not
strong, and considering that the possibility of their jumping bail and evading arrest is not now
remote, the two accused are likewise hereby ordered to be detained at the Negros Oriental
Detention and Rehabilitation Center without prejudice to their filing an appeal, if so, unless they
could put up an additional bail bond in the amount of ONE HUNDRED THOUSAND PESOS
(P100,000.00) each.

SO ORDERED." 3

On July 16, 1990, the accused-appellants Belarmino Divina and Mecrito Baga filed an appeal with
this Court which was docketed as G.R. Nos. 93808-09.

Pursuant to the trial court's decision, accused-appellant Belarmino Divina on June 29, 1990 filed an
Urgent Ex-parte Motion for Approval Of Bail Bond before the trial court offering untitled properties as
property bond. On the same date, the trial court in its Order dated June 29, 1990, directed the said
accused-appellant to put up a titled property as property bond otherwise, he may put up a surety
bond or a cash bond. 4
Accused-appellant's motion for reconsideration of the aforesaid Order was denied. 5

Hence, accused-appellant Belarmino Divina filed with this Court a petition for certiorari with urgent
prayer for approval of bail bond, docketed as G.R. Nos. 94073-74.

In G.R. Nos. 93808-09, accused-appellants contend that the court a quo erred in finding that their
guilt has been proven beyond reasonable doubt and in convicting them of the crime charged. 6

The prosecution's version, as culled by the Solicitor General, is as follows:

"In the evening of June 17, 1988 at around 6:30 o'clock in the afternoon, Mr. Ambrocio Baillo, his
thirteen (13) year old son Jaime Baillo and his wife Concepcion Baillo just came from the "tabuan"
(flea market) at Barangay Anhawan, Dauin, Negros Oriental and were heading for home at
Barangay Daku, Dauin, Negros Oriental (TSN, January 3, 1984, pp. 4-5; TSN, April 10, 1989, pp. 4-
5). Just after crossing the Maayong-tubig river and while walking one behind the other (Ambrocio,
Jaime then Concepcion) along the trail, suddenly and without any warning, they were shot from
behind (Ibid.). Concepcion, being hit and mortally wounded, fell down and cried "agi!" (Ibid.). Jaime
also fell down because he was hit at the back and at the left hip. Ambrocio was not hurt. Upon
seeing his wife and son fall, he instructed his son Jaime to hide as he was going to get a vehicle
(TSN, April 10, 1989, pp. 5-7). Immediately, Ambrocio ran away and proceeded directly to their
house and told his other son Rogelio to go and see his mother and younger brother Jaime who were
shot at Malungcay Daku (Ibid., p. 7). Then Ambrocio reported the incident to the police of Dauin and
to the parish priest (Father Badoy) whose truck they used to return to the place of the incident (Ibid.,
p. 8). Policemen Ikoy Tubil and Dadoy Elumir rode on the truck while Ambrocio rode with June Alta
Marino on the latter's motorcycle (Ibid., p. 9).

Meantime, at the scene of the incident, Jaime, upon being instructed by his father Ambrocio, was
able to crawl and hide himself behind a hagonoy plant despite the wounds he sustained (TSN,
January 3, 1989, p. 5). While hiding, two (2) men whom he recognized as their neighbors -
Belarmino Divina and Mecrito Baga (accused-appellants) approached the lifeless body of his mother
(Ibid.)

Then Belarmino Divina, with a gun, said in the dialect: "PUSIL RAY TAMBAL SA MGA TESTIGOS
SA CONTRA SA MGA DIVINA" which means "ONLY THE GUN CAN SILENCE THOSE
WITNESSES AGAINST THE DIVINAS". (Ibid., p. 6). (The records show that victim Concepcion
Baillo was a witness against the Divinas in another pending case.)

Meanwhile, Rogelio Baillo, after being told by his father of the incident, immediately proceeded to
Malungcay-Daku, the place of the incident (TSN, April 10, 1989, p. 33).

Upon arrival, he was told by his brother Jaime that Belarmino Divina and Mecrito Baga had
approached the dead body of their mother Concepcion Baillo with Belarmino holding a gun (Ibid., p.
35). Rogelio saw wounds at the arms and at the back of his mother and he was not able to talk with
her anymore (Ibid., pp. 36). He also observed that Jaime sustained wounds at his left hip and at the
back (Ibid.).

Thereafter, at about 10:00 o'clock that same evening, Ambrocio Baillo arrived with the truck of Fr.
Badoy accompanied by policemen Ikoy Tubil and Dadoy Elumir and, Jun Alta Marino, a teacher in
Malungcay Daku. Ambrocio noticed that his wife Concepcion was already dead while his son Jaime
was alive (Ibid., pp. 9-10). Ambrocio further observed that his wife Concepcion sustained six (6)
wounds at the back and both her arms were lacerated (Ibid.). His son Jaime also sustained gunshot
wounds at the back and at the left hip (Ibid.). They then loaded the dead body of Concepcion on the
truck and brought her to their house while Jaime was brought to the provincial hospital for treatment
(Ibid.). Jaime was operated twice. As testified to by the attending physician, Dr. Nerissa Calumpang,
Jaime could have died were it not for the timely medical attention (TSN, April 11, 1989, pp. 2-18).
Jaime was discharged only after two (2) weeks of confinement after which, he temporarily lived with
their relatives at Valencia (a nearby municipality) because of fear that he might be killed by the
Divinas (TSN, March 29, 1989, p. 18)." 7

Accused-appellants, Belarmino Divina and Mecrito Baga interpose the defense of denial and alibi.

Accused Belarmino Divina's defense as contained in his Brief is as follows:

"Accused Belarmino Divina has been living in his parents-in-law's house at Anhawan, Dauin, Negros
Oriental, since January, 1984. (TSN, January 13, 1990, p. 2). He was the OIC Barangay Captain of
Anhawan since 1986 up to May, 1988 (ibid., p. 3).

On June 17, 1988, from 7:00 a.m. to 11:00 a.m., he was plowing in his farm, after which he ate his
lunch. At about 3:00 p.m. of the same day, he went to the "tabu-an", (a flea market) about 40 meters
from his in-law's house where he met Sabino Sarense, Dedio Tubil, Porferio Tubil, Alberto Deloria
and Nicolas Sarense. At about 3:30 p.m., the group, including accused Divina, played volley-ball.
The group finished playing at about 4:00 p.m. after which they ate bread. At about 5:30 p.m.
accused Divina invited the group to his in-law's house where he also lives with his family, to drink
tuba. The group was joined by Tony Regalado and Lucero Regalado, accused Divina's brothers-in-
law. They drank tuba until 7:00 p.m. that night after which accused Divina with his family, Dedio Tubil
and Porferio Tubil stayed around to view the TV.

Sabino Sarense, after the group stopped drinking at 7:00 p.m., left together with his son Nicolas
Sarense and Alberto Deloria. The rest of their group, Dedio Tubil, Porferio Tubil and accused Divina
with his family were watching the TV. At about 8:00 p.m., Dedio and Porferio Tubil also left.

Accused Divina came to know of the killing of Concepcion Baillo the following day, June 18, 1988.
Since that day accused Divina never heard of the identity of the suspect until he was arrested on
July 26, 1988, as the suspect himself at about 4:00 p.m., at the Poblacion of Dauin while waiting for
transportation going to Anhawan where he lives." 8

On the other hand, Mecrito Baga's defense is as follows:

"Mecrito Baga and Douglas Divina were plowing the latter's field on June 17, 1988, starting from
7:00 o'clock in the morning until 11:00 o'clock that morning and from 2:00 o'clock in the afternoon at
5:00 o'clock in the afternoon that same day. They rested for a while in the house of Douglas Divina
and at about 6:00 o'clock p.m. Mecrito Baga with his mother Nicolasa Baga joined the Divina family
in praying the Holy Rosary which prayer had been going on for the last six months. After the prayer
which ended at about 7:00 o'clock in the evening, accused Mecrito Baga and his mother joined the
Divina family for supper. After supper, Mecrito Baga joined Guillermo Divina, Douglas Divina and
Restituto Delvo in drinking tuba. At about 9:00 o'clock in the evening, Mecrito Baga and his mother
left the residence of Douglas Divina.

Mecrito Baga learned about the killing of Concepcion Baillo and the wounding of her son the
following day, June 18, 1988, but he never heard of any suspect, not until July 25, 1988, when he
was arrested by four policemen in his house." 9

This appeal hinges on the credibility of the lone eyewitness and victim Jaime Baillo.
On the question of credibility, this Court will not as a general rule disturb the findings of the trial
judge unless he has plainly overlooked certain facts of substance and value that, if considered,
might affect the result of the case. The reason is the opportunity available to the trial court but not
to the appellate court to observe the witnesses on the stand and to assess their credibility not
only by the nature of their testimony but also by their demeanor under questioning. 10

Accused-appellants allege that the testimony of the lone eyewitness, Jaime Baillo, is far from
credible for being conflicting, uncorroborated, unreliable and inconclusive. In support of this
contention, accused-appellants point out that Jaime Baillo upon admission in the hospital on the
night of the incident allegedly told Dr. Calumpang that he (Jaime) was shot by an unknown assailant.
11

Dr. Calumpang's testimony on cross examination is quoted as follows:

"ATTY. BARRAMEDA:

Q And did he tell you who shot him?

A No. By an unknown assailant.

Q That was what he said?

A Yes, Sir.

Q Unknown assailant?

A Yes, Sir.

Q That is very clear to you that he was shot by an unknown assailant?

A Witness nodding her head.

Q Please vocalize your answer. Yes, he said that?

A Yes, your honor.

". . ."." 12 (Emphasis Ours.)

A reading of the above-quoted testimony shows that the response of the doctor to the question: "Did
he tell you who shot him?" was "No". The phrase "by an unknown assailant" was merely volunteered
by the doctor which can be taken to mean that the assailant was unknown to her but not necessarily
unknown to the victim, Jaime Baillo. The succeeding question propounded by the defense counsel,
to wit "That is very clear to you that he was shot by an unknown assailant?" calls for a statement of
an opinion and not a statement of fact.

It is the duty of the defense counsel to propound questions that will not result in two or more
interpretations as what happened in this case. The resulting inconsistencies were the product of the
kind of questions propounded by defense counsel.
As to the alleged testimony of one Feliciano Parao given in another criminal case that the victim
Jaime Baillo allegedly told him that it was Guillermo Divina and Douglas Divina, brothers of
Belarmino Divina, who shot him and his mother, the said testimony cannot but be considered as
hearsay for Feliciano Parao was not presented as witness during the trial of this case. His testimony
has no probative value. The trial court was correct in rejecting said statements.

The defense makes a big issue of the fact that the prosecution witnesses Ambrocio Baillo, Jaime
Baillo and Rogelio Baillo reported the identities of the accused only after one month and nine days
have elapsed despite the fact that the accused's identities were already known to them on the very
night of the incident. 13

The rule is well-established that the failure to reveal or disclose at once the identity of the accused
does not necessarily affect much less impair, the credibility of the witness. 14 The initial reluctance
of witnesses to volunteer information about a criminal case and their unwillingness to be involved in
criminal investigations due to fear of reprisal is common and has been judicially declared not to
affect credibility. 15

In the case at bar, it is a fact that one of the accused, Belarmino Divina, has been the OIC Barangay
Captain of Anhawan since 1986 up to May, 1988. It cannot be gainsaid that although the incident
happened after his term, having held said position, he has a strong influence in said place. It was
natural for the victim to fear for his life as explained by him.

In addition thereto, the incident also resulted in the death of Concepcion Baillo, wife of Ambrocio
Baillo and mother of Jaime and Rogelio Baillo. We have held that "(a)lthough there is a natural
tendency to seek the ends of justice for the treacherous killing of a dearly departed, mourning and
rites for the dead take priority as dictated by our culture. 16

Moreover, the injuries sustained by the victim Jaime Baillo, both physical and emotional, and the
necessary period of recuperation after his discharge from the hospital are enough reasons to
understand the delay in the filing of the complaint.

Both accused interposed the defense of alibi and denial. It is Our view that the trial court was correct
in convicting accused Belarmino Divina on the strength of the testimony of the lone eyewitness
Jaime Baillo but in the case of the accused Mecrito Baga, We find the evidence of the prosecution
not sufficient to establish his guilt beyond reasonable doubt.

On the issue of conspiracy, We hold that it was not established beyond reasonable doubt. Nowhere
in the trial court's decision was there any mention of any act of the accused that may be construed
as an overt act in the furtherance of conspiracy. Absent such an evidentiary basis, We cannot accept
the finding of implied conspiracy. 17

We have held that:

". . ., albeit no formal agreement is necessary to prove conspiracy and the same way be inferred
from the circumstances attending the commission of the crime, yet conspiracy must be established
by the same quantum of evidence as any other ingredient of the offense. Such evidence must show
intentional participation in the transaction with a view to the furtherance of the common design or
purpose. The same degree of proof necessary to establish the crime is required to establish a
finding of criminal conspiracy, that is, proof beyond reasonable doubt. It cannot be established by
conjectures but by positive and conclusive evidence. Since conspiracy must be proved beyond
peradventure of a doubt, it follows that it cannot be appreciated where the facts can be consistent
with the non-participation of the accused in the fancied cabal." 18
In the case at bar, no conspiracy may be deduced where there is no evidence to show the
participation of accused Mecrito Baga in the shooting incident. The lone eyewitness Jaime Baillo
testified that while he was hiding behind the hagonoy plants, he saw accused Belarmino Divina
holding a gun and together with Mecrito Baga, approached the lifeless body of his mother. The mere
presence of accused Mecrito Baga does not prove his participation in the killing. The mere fact of
being with Divina does not of itself establish conspiracy. 19

Having found that no conspiracy attended the commission of the crime and that the prosecution
failed to establish the guilt of accused Mecrito Baga beyond reasonable doubt, We are constrained
to acquit him of the crime charged.

With regards to accused Belarmino Divina, his conviction must be sustained.

The well-settled rule is that alibi is one of the weakest defenses that can be resorted to by an
accused, not only because it is inherently weak and unreliable but also because of its easy
fabrication. We have repeatedly held that the defense of alibi cannot prevail over the positive
identification of the accused by witnesses for the prosecution and that to establish it, the accused
must show that he was at some other place for such a period of time that it was impossible for him to
have been at the place where the crime was committed at the time of its commission. 20

Record shows that the victim Jaime Baillo while hiding behind the hagonoy plant saw accused
Belarmino Divina approach the dead body of his mother Concepcion Baillo and uttered "PUSIL RAY
TAMBAL SA MGA TESTIGOS SA CONTRA SA MGA DIVINA" which means "ONLY THE GUN CAN
SILENCE THOSE WITNESSES AGAINST THE DIVINAS."

In addition thereto, accused Belarmino Divina in his cross examination admitted that the house of his
father-in-law where he was allegedly drinking tuba with his friends is only about two and a half (2
1/2) kilometers from where the victims Concepcion Baillo and Jaime Baillo were shot at. 21 Hence, it
was not physically impossible for accused Belarmino Divina to be at the place where the crime was
committed.

Moreover, although motive is unnecessary when the assailant has been positively identified, 22 in
this case, accused Belarmino Divina has the motive to commit the crime charged because the victim
Concepcion Baillo was shown to be a witness against the former's brothers in another criminal case.

Accused Belarmino Divina argues that as stated in the police blotter, the shooting incident happened
at around 7:40 o'clock in the evening of June 17, 1988 and not 6:30 o'clock as claimed by the
prosecution witnesses. It was therefore, not possible for the victim Jaime Baillo to have seen the
accused without the aid of a lighted torch.

We do not agree. A police blotter is a book which records criminal incidents reported to the police.
Entries in official records, as in this case of a police blotter, are only prima facie evidence of the facts
therein stated. They are not conclusive. 23 It is undisputed that the alleged time of the commission
of the crime, i.e., 7:40 in the evening of June 17, 1988, was supplied only by the parish priest Fr.
Badoy who was neither present when the shooting incident happened nor presented as a witness
during the trial. The information supplied is therefore hearsay and does not have any probative
value.

With regards to G.R. Nos. 94073-74, We are constrained to deny accused Belarmino Divina's
petition for certiorari in line with this Court's Administrative Circular No. 2-92 dated January 20, 1992
"Re: Cancellation of Bail Bond of Accused Convicted of Capital Offense in the Regional Trial Court,"
pertinent provisions of which are quoted hereunder:
"The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule
114 of the 1985 Rules on Criminal Procedure, as amended, which provides:

"Sec. 3. Bail, a matter of right; exception. All persons in custody shall before final conviction, be
entitled to bail as a matter of right, except those charged with a capital offense or an offense which,
under the law at the time of its commission and at the time of the application for bail, is punishable
by reclusion perpetua, when the evidence of guilt is strong."

Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense
punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he
appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the
offense charged is strong." (Emphasis Supplied.)

Accused Belarmino Divina was convicted by the Regional Trial Court of the crime of murder which is
an offense punishable by reclusion perpetua. Pursuant to SC Administrative Circular No. 2-92, he is
no longer entitled to bail even if he appeals to Us since his conviction clearly imports that the
evidence of his guilt is strong.

We therefore find no reason to dwell on the issue raised in said petition.

WHEREFORE, premises considered, judgment is hereby rendered ACQUITTING accused

MECRITO BAGA of the crime of Murder in Criminal Case No. 8342 and of Frustrated Murder in
Criminal Case No. 8362 for failure of the prosecution to prove his guilt beyond reasonable doubt.
The convictions of accused BELARMINO DIVINA in Criminal Cases Nos. 8342 and 8362 are
AFFIRMED with the modification that he be ordered to indemnify the heirs of the victim Concepcion
Baillo in the amount of P50,000.00 in consonance with prevailing jurisprudence.

The petition for certiorari filed by accused BELARMINO DIVINA is DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C .J ., Padilla, Regalado and Nocon, Jr., JJ ., concur.

 ANUNCIO C. BUSTILLO, G.R. No. 160718
EMILIO SUMILHIG, JR., and
AGUSTIN BILLEDO, JR.,
Petitioners,
Present:

CARPIO, J., Chairperson,

- versus - BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. May 12, 2010
x-----------------------------------------------------------------
--x

DECISION

DEL CASTILLO, J.:

It is disputably presumed that official duty has been regularly performed. In this case, this
presumption remains unrebutted; hence, petitioners who were charged with violations of
Section 3(e) of Republic Act (RA) No. 3019, deserve an acquittal. It was not proven that
they gave undue preference or acted in evident bad faith in effecting the transfer of the
properties owned by the local government unit.

This Petition for Review on Certiorari[1] assails the July 31, 2003 Decision[2] of
the Sandiganbayan in Criminal Case No. 24741, finding herein petitioners guilty beyond
reasonable doubt of violation of Section 3(e) of RA 3019. Also assailed is the November
6, 2003 Resolution[3] denying the Motion for Reconsideration.

Factual Antecedents
Congressman Ceferino Paredes, Jr. (Congressman Paredes) used a portion of his
Countryside Development Fund (CDF) to purchase one unit of Toyota Tamaraw FX and
six units of Kawasakimotorcycles. All vehicles were registered in the name of
the Municipality of Bunawan and were turned over to the municipality through its mayor,
herein petitioner Anuncio C. Bustillo (Bustillo).

On May 17, 1995, the Sangguniang Bayan of Bunawan passed Resolution No. 95-
27[4] which authorized the transfer without cost of the aforesaid vehicles to the San
Francisco Water District (SFWD). Pursuant thereto, Bustillo executed on June 19, 1995, a
Deed of Transfer[5] relative to the aforementioned vehicles in favor of the SFWD
represented by its General Manager, Elmer T. Luzon (Luzon).

On July 27, 1995, the Sangguniang Panlalawigan of Agusan del Sur passed Resolution
No. 183[6] disapproving the Sangguniang Bayans Resolution No. 95-27 for being violative
of Section 381[7] of RA 7160 or the Local Government Code. On August 17, 1995, it
passed Resolution No. 246[8] canceling and declaring the Deed of Transfer as null and void
for being highly irregular and grossly violative of Section 381 of RA 7160.

On May 23, 1996, a complaint[9] was filed charging Bustillo, Vice-Mayor Agustin Billedo,
Jr. (Billedo), and Sangguniang Bayan members Teogenes Tortor (Tortor), Emilio
Sumilhig, Jr. (Sumilhig), Ruth C. Orot (Orot), and Ernesto Amador, Jr., with violation of
Section 3(e) of RA 3019. Also included in the complaint were Antonio Taotao and Luzon,
the Board Secretary and General Manager, respectively, of SFWD.

On August 13, 1996, the Office of the Ombudsman for Mindanao issued a
Resolution which provides:

WHEREFORE, PREMISES CONSIDERED, this Office finds

probable cause to prosecute respondents Antonio C. Bustillo, Agustin Billedo,
Jr., Teogenes Tortor, Emilio Sumilhig, Jr., Ruth C. Orot, Ernesto Amador, Jr.,
and Elmer T. Luzon for violation of Section 3 (e) of Republic Act 3019. It is
hereby recommended that the enclosed Information be filed with the
Sandiganbayan against the above-named respondents.

FINDING insufficient evidence to hold respondent Antonio Taotao,

Board Secretary of SFWD, liable for the charge, let the instant case against him
be dismissed.
 SO RESOLVED.[10]

Consequently, on June 24, 1998, an Information was filed with

the Sandiganbayan docketed as Criminal Case No. 24741 charging Bustillo, Billedo,
Tortor, Sumilhig, Orot, Amador, and Luzon, for violation of Section 3(e) of RA 3019,
committed as follows:
That on or about 19 June 1995, or shortly prior or subsequent thereto,
in San Francisco, Agusan del Sur, and within the jurisdiction of this Honorable
Court, the accused Anuncio C. Bustillo, a public officer being then the Mayor
of Bunawan, Agusan del Sur, with salary grade 27, Agustin Billedo, Jr., Vice
Mayor of Bunawan, Agusan del Sur, Teogenes Tortor, Emilio Sumilhig, Jr.,
Ruth C. Orot, Ernesto Amador, being then members of the Sangguniang Bayan
(SB) of Bunawan, and Elmer T. Luzon, General Manager of San Francisco
Water District (SFWD), all public officers with salary grades below 27,
committing the offense in relation to their official duties and taking advantage
of their official positions, conspiring and confederating with each other [sic],
thru evident bad faith, did there and then, willfully, unlawfully and criminally,
cause undue injury to the government, by passing Sangguniang Bayan
Resolution No. 95-27 which transferred without cost one (1) unit of Tamaraw
FX vehicle and six (6) units of KE Kawasaki motorcycles purchased for the
Municipality of Bunawan out of the Countryside Development Fund of
Congressman Ceferino Paredes, Jr. and municipal counterpart fund and which
were newly purchased and in perfect running condition, to the San Francisco
Water District in violation of Section 381 of R.A. 7160, and despite the
subsequent nullification of SB Resolution No. 95-27 by the Sangguniang
Panlalawigan of Agusan del Sur and the repeated demands by the municipal
government of Bunawan, accused Elmer T. Luzon and the San Francisco Water
District refused to surrender the afore-enumerated motor vehicle and
motorcycles to the Municipality of Bunawan, thereby depriving it of the
possession, ownership and use thereof, to the damage and prejudice of said local
government unit.

CONTRARY TO LAW.[11]

All the accused posted their respective bail for their provisional liberty, with the exception
of Orot who died on June 28, 1998.[12]
On April 16, 1999, Bustillo, Billedo, Tortor and Sumilhig entered pleas of Not Guilty.[13]

During pre-trial conference[14] held on June 7, 1999, the following facts were admitted by
both the prosecution and the defense:

1) At the time material to this case all the accused are public officers
namely, Anuncio C. Bustillo as Municipal Mayor and Agustin Billedo, Jr., as
Vice Mayor, Teogenes Tortor and Emilio Sumilhig, Jr., as members of the
Sangguniang Bayan all of the Municipality of Bunawan, Agusan del Sur;

2) That during the local election held on May 8, 1995, accused Anuncio
C. Bustillo was not re-elected as Mayor of the Municipality of Bunawan,
Agusan del Sur;

3) That on May 17, 1995, the Sangguniang Bayan of Bunawan, Agusan

del Sur, during its 17th regular session passed Resolution No. 95-27 transferring
without any consideration and cost to the San Francisco Water District the
following properties: one (1) unit of Tamaraw Toyota FX and six (6) units of
Kawasaki Motorcycles; Accused Agustin Billedo, Jr., Teogenes Tortor and
Emilio Sumilhig, Jr., were among the members of the said council who voted
to approve said Resolution;
4) That on June 19, 1995, accused Anuncio C. Bustillo in behalf of
the Municipality of Bunawan, Agusan del Sur executed a Deed of Transfer
relative to the above mentioned vehicles in favor of San Francisco Water
District represented by Elmer T. Luzon, General Manager;

5) That on July 27, 1995, the Sangguniang Panlalawigan of Agusan del

Sur in its 3rd regular session passed Resolution No. 183, series of 1995
disapproving Sangguniang Bayan Resolution No. 95-27 of
the Municipality of Bunawan;

6) That on August 17, 1995, the Sangguniang Panlalawigan of Agusan

del Sur passed Resolution No. 246, series of 1995, canceling and declaring the
aforementioned Deed of Transfer executed by and between
the Municipality of Bunawan and San Francisco Water District as null and
void;

7) That, in a letter dated July 11, 1995, of Leonardo Barrios, Municipal

Mayor of Bunawan, Agusan del Sur addressed to the Director of San Francisco
Water District, it was requested that the subject Tamaraw FX and Kawasaki
 Motorcycles owned by the Municipality of Bunawan, Agusan del Sur be
returned to the Municipality of Bunawan;

8) That in response to said letter dated July 11, 1995, of Municipal

Mayor Leonardo Barrios, Antonio Tao-Tao, Acting Board Secretary of San
Francisco Water District on his letter dated July 16, 1995, refused to return the
subject vehicles;

9) That the subject vehicles are all newly purchased and serviceable and
in good running condition at the time of the transfer in question;

The other set of facts agreed upon were:

a) That the purchase price or value of the Toyota Tamaraw FX

was P400,000.00 and the six (6) units Kawasaki Motorcycles P305,100.00, or
a total purchase price or value of P705,100.00 Pesos;

b) That Resolution No. 95-27 was unanimously approved by the

members of the Sangguniang Bayan of Bunawan, Agusan del Sur and was not
judicially declared null and void.

On June 15, 1999, the SFWD executed a Deed of Donation[15] effecting the transfer of the
aforesaid vehicles in favor of the Municipality of Bunawan because according to SFWD,
the water projects funded by the CDF of Congressman Paredes were already completed.

Thereafter, Luzon and Amador also entered pleas of Not Guilty.

On December 9, 1999, the Sandiganbayan was informed of the death of Tortor.[16]

During trial, the prosecution presented three witnesses, namely: 1) Florencia Ilorde, 2) Lilia
J. Nacorda, and 3) Leonardo Barrios. After the testimonies of the witnesses and the
admission of its exhibits, the prosecution rested its case.[17]

On December 6, 1999, herein petitioners filed a Demurrer to Evidence[18] but it was

denied[19] for lack of merit. Luzons Demurrer to Evidence[20] was likewise denied
on February 4, 2000.[21] Thus, the defense presented its evidence. Four witnesses, namely:
1) Luzon, 2) Benigno G. Asis, 3) Sumilhig, and 4) Ceferino S. Paredes, were presented
along with other exhibits.

Ruling of the Sandiganbayan

On July 31, 2003, the Sandiganbayan rendered its Decision[22] finding petitioners guilty
beyond reasonable doubt of violation of Section 3(e) of RA 3019. Luzon and Amador were
acquitted for failure of the prosecution to prove their guilt beyond reasonable doubt. The
case against Tortor and Orot was dismissed on account of their demise.

Petitioners filed a Motion for Reconsideration[23] which was denied in a Resolution

dated November 6, 2003.[24]

Issue

Hence this Petition for Review on Certiorari faulting the Sandiganbayan for
finding petitioners guilty of violation of Section 3(e) of RA 3019.

Our Ruling

The Sandiganbayan based its conviction of (Mayor) Bustillo, (Vice-Mayor) Billedo and
(Councilor) Sumilhig on the finding that they conspired to effect the transfer of the vehicles
to the prejudice of the Municipality of Bunawan in violation of the provision of Section
3(e) of RA 3019.

Section 3(e) of RA 3019 provides:

Section 3. Corrupt practices of public officers. In addition to acts or

omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared
to be unlawful:
xxxx

(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference in
the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
 provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.

The elements of the offense are as follows: (1) that the accused are public officers
or private persons charged in conspiracy with them; (2) that said public officers commit
the prohibited acts during the performance of their official duties or in relation to their
public positions; (3) that they caused undue injury to any party, whether the Government
or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage
or preference to such parties; and (5) that the public officers have acted with manifest
partiality, evident bad faith or gross inexcusable negligence.[25]

In this case, only the first element was proven. At the time material to this case, all the
petitioners are public officers, namely, Bustillo as Municipal Mayor, Billedo as Vice
Mayor, and Sumilhig as member of the Sangguniang Bayan.

All the other elements were not present. It cannot be denied that the transfer of the vehicles
to SFWD was made in furtherance of the purpose for which the funds were released which
is to help in the planning, monitoring and coordination of the implementation of the
waterworks projects located throughout the Province of Agusan del Sur. The Deed of
Donation expressly provided that the subject vehicles shall be used for the same purpose
for which they were purchased.

Moreover, the transfer was made to ensure the success of the implementation of the CDF-
funded waterworks projects of the province of Agusan del Sur. In the Memorandum of
Agreement dated February 10, 1993, SFWD was designated to implement, control or
supervise all the CDF-funded waterworks projects. Clearly, the vehicles were donated to
SFWD not because it was given any preference, unwarranted benefits or undue advantage,
but in recognition of its technical expertise.

We find no evidence on record which would show that petitioners were motivated by bad
faith when they transferred the vehicles to SFWD. Bustillo, as Mayor, is authorized by law
to enter into contracts for and in behalf of the local government unit. Billedo, as Vice
Mayor, acted as the Presiding Officer of the Sangguniang Bayan and did not even vote for
the passage of Resolution No. 95-27. Said Resolution was unanimously passed by
the Sangguniang Bayan and Sumilhig was only one of those who voted for its passage.
In sum, the petitioners have in their favor the presumption of regularity in the performance
of official duties which the records failed to rebut. The presumption of regularity of official
acts may be rebutted by affirmative evidence of irregularity or failure to perform a
duty. The presumption, however, prevails until it is overcome by no less than clear and
convincing evidence to the contrary. Thus, unless the presumption in rebutted, it becomes
conclusive. Every reasonable intendment will be made in support of the presumption and
in case of doubt as to an officers act being lawful or unlawful, construction should be in
favor of its lawfulness.[26]

WHEREFORE, the July 31, 2003 Decision of the Sandiganbayan in Criminal

Case No. 24741 and its November 6, 2003 Resolution are REVERSED and SET
ASIDE. Petitioners Anuncio C. Bustillo, Agustin Billedo, Jr. and Emilio Sumilhig, Jr., are
hereby ACQUITTED for failure to prove their guilt beyond reasonable doubt.

SO ORDERED.