[G.R. No. 137268. March 26, 2001] Case 49
she
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. EUTIQUIA CARMEN @ Mother
Perpetuala, CELEDONIA FABIE @ Isabel Fabie,
DELIA SIBONGA @ Deding Sibonga,
ALEXANDER SIBONGA @ Nonoy Sibonga, and
REYNARIO NUEZ @ Rey Nuez, accused-
appellants.
DECISION
MENDOZA, J.:
This is an appeal from the decision[1] of the Regional
Trial Court, Branch 14, Cebu City, finding accused-
appellants Eutiquia Carmen @ Mother Perpetuala,
Celedonia Fabie @ Isabel Fabie, Delia Sibonga @
Deding Sibonga, Alexander Sibonga @ Nonoy
Sibonga, and Reynario Nuez @ Rey Nuez guilty of
murder and sentencing them to suffer the penalty
of reclusion perpetua and to pay the heirs of the
victim the amount of P50,000.00 as indemnity as well
as the costs.
The information[2] against accused-appellants alleged:
That on or about the 27th day of January, 1997 at
about 2:00 oclock p.m., in the City of Cebu,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conniving and
confederating together and mutually helping one
another, with deliberate intent, with intent to kill,
with treachery and evident premeditation, did then
and there inflict fatal physical injuries on one Randy
Luntayao which injuries caused the death of the said
Randy Luntayao.
Accused-appellants pleaded not guilty to the charge,
whereupon they were tried.
The prosecution presented evidence showing the
following: At around 2 oclock in the afternoon of
January 27, 1997, Honey Fe Abella, 10, and her
friend Frances Claire Rivera, 7, were
playing takyan in front of the house of one Bebing
Lastimoso in Quiot, Pardo, Cebu City, when
suddenly they heard a child shout, Tabang ma! (Help
mother!). The cry came from the direction of the
house of accused-appellant Carmen, who is also
known in their neighborhood as Mother
Perpetuala. The two children ran towards Mother
Perpetualas house.[3] What Honey Fe saw on which
she testified in court, is summarized in the decision of
the trial court, to wit:
While there[,] she saw a boy, whose name . . .
[later] came to know as one Randy Luntayao, . . .
being immersed head first in a drum of
water. Accused Alexander Sibonga was holding the
waist of the body while accused Reynario Nuez held
the hands of the boy at the back. Accused Eutiquia
Carmen, Delia Sibonga, and Celedonia Fabie were
pushing down the boys head into the water. She heard
the boy shouting Ma, help for two times. Later, she
saw accused Reynario or Rey Nuez tie the boy on the
bench with a green rope as big as her little finger. . . .
After that Eutiquia Carmen poured [water from] a
plastic container (galon) . . . into the mouth of the
boy. Each time the boy struggled to raise his head,
accused Alexander Sibonga banged the boys head
against the bench [to] which the boy was tied
down. She even heard the banging sound everytime
the boys head hit the bench. For about five times she
heard it. According to this witness after forcing the
boy to drink water, Eutiquia Carmen and accused
Celedonia Fabie alias Isabel Fabie took turns in
pounding the boys chest with their clenched fists. All
the time Rey Nuez held down the boys feet to the
bench. She also witnessed . . . Celedonia Fabie
dropped her weight, buttocks first, on the body of the
boy. Later on, Eutiquia Carmen ordered Delia or
Deding Sibonga to get a knife from the
kitchen. Eutiquia Carmen then slowly plunged the
stainless knife on the left side of the boys body and
with the use of a plastic gallon container, the top
portion of which was cut out, Eutiquia Carmen
[caught] the blood dripping from the left side of the
boys body. Honey Fe heard the moaning coming
from the tortured boy. Much later she saw Nonoy or
Alexander Sibonga, Reynario Nuez, Delia Sibonga,
Celedonia Fabie, and Eutiquia Carmen carry the boy
into the house.[4]
Eddie Luntayao, father of the victim, testified that he
has five children, the eldest of whom, Randy, was 13
years old at the time of the incident. On November
20, 1996, Randy had a nervous breakdown which
Eddie thought was due to Randy having to skip meals
whenever he took the boy with him to the
farm. According to Eddie, his son started talking to
himself and laughing. On January 26, 1997, upon the
suggestion of accused-appellant Reynario Nuez,
Eddie and his wife Perlita and their three children
(Randy, Jesrel, 7, and Lesyl, 1) went with accused-
appellant Nuez to Cebu. They arrived in Cebu at
around 1 oclock in the afternoon of the same day and
spent the night in Nuez’s house in Tangke, Talisay.
The following day, they went to the house of
accused-appellant Carmen in Quiot, Pardo,[5] where
all of the accused-appellants were present. Eddie
talked to accused-appellant Carmen regarding his
sons condition. He was told that the boy was
possessed by a bad spirit, which accused-appellant
Carmen said she could exorcise. She warned,
however, that as the spirit might transfer to Eddie, it
was best to conduct the healing prayer without
him. Accused-appellants then led Randy out of the
house, while Eddie and his wife and two daughters
were locked inside a room in the house.[6]
After a while, Eddie heard his son twice shout Ma,
tabang! (Mother, help!). Eddie tried to go out of the
room to find out what was happening to his son, but
the door was locked. After about an hour, the
Luntayaos were transferred to the prayer room which
was located near the main door of the house.[7]
A few hours later, at around 5 oclock in the
afternoon, accused-appellants carried Randy into the
prayer room and placed him on the altar. Eddie was
shocked by what he saw. Randys face was bluish and
contused, while his tongue was sticking out of his
mouth. It was clear to Eddie that his son was already
dead. He wanted to see his sons body, but he was
stopped from doing so by accused-appellant Eutiquia
Carmen who told him not to go near his son because
the latter would be resurrected at 7 oclock that
evening.[8]
After 7 oclock that evening, accused-appellant
Carmen asked a member of her group to call the
funeral parlor and bring a coffin as the child was
already dead. It was arranged that the body would be
transferred to the house of accused-appellant
Nuez. Thus, that night, the Luntayao family,
accompanied by accused-appellant Nuez, took
Randys body to Nunezs house in Tangke,
Talisay. The following day, January 28, 1997,
accused-appellant Nuez told Eddie to go with him to
the Talisay Municipal Health Office to report Randys
death and told him to keep quiet or they might not be
able to get the necessary papers for his sons
burial. Nuez took care of securing the death
certificate which Eddie signed.[9]
At around 3 oclock in the afternoon of January 28,
1997, accused-appellant Carmen went to Tangke,
Talisay to ensure that the body was buried. Eddie and
his wife told her that they preferred to bring their
sons body with them to Sikatuna, Isabela, Negros
Occidental but they were told by accused-appellant
Carmen that this was not possible as she and the other
accused-appellants might be arrested. That same
afternoon, Randy Luntayao was buried in Tangke,
Talisay.[10]
After Eddie and his family had returned home to
Negros Occidental, Eddie sought assistance from the
Bombo Radyo station in Bacolod City which referred
him to the regional office of the National Bureau of
Investigation (NBI) in the city. On February 3, 1997,
Eddie filed a complaint for murder against accused-
appellant Nuez and the other members of his
group.[11] He also asked for the exhumation and
autopsy of the remains of his son.[12] As the incident
took place in Cebu, his complaint was referred to the
NBI office in Cebu City.
Modesto Cajita, head of NBI, Region VII (Cebu),
took over the investigation of the case. He testified
that he met with Eddie Luntayao and supervised the
exhumation and autopsy of the body of Randy
Luntayao.[13] Cajita testified that he also met with
accused-appellant Carmen and after admitting that
she and the other accused-appellants conducted a
pray-over healing session on the victim on January
27, 1997, accused-appellant Carmen refused to give
any further statement. Cajita noticed a wooden bench
in the kitchen of Carmens house, which, with
Carmens permission, he took with him to the NBI
office for examination. Cajita admitted he did not
know the results of the examination.[14]
Dr. Ronaldo B. Mendez, the NBI medico-legal
officer who conducted the autopsy on Randy
Luntayao, testified that he, the victims father, and
some NBI agents, exhumed the victims body on
February 20, 1997 at Tangke Catholic Cemetery in
the Tangke, Talisay, Cebu. He conducted the autopsy
on the same day and later submitted the following
report (Exhs. E and F):[15]
FINDINGS
Body in advanced stage of decomposition wearing a
white shirt and shorts wrapped in printed blanket
(white and orange) placed in white wooden coffin
and buried underground about 4 feet deep.
Contusion, 3.0 x 4.0 cms. chest, anterior, left side.
Fracture, 3rd rib, left, mid-clavicular line.
Fracture, linear, occipital bone right side extending to
the bases of middle cranial fossae right to left down
to the occipital bone, left side.
Fracture, diastatic, lamboidal suture, bilateral.
Internal organs in advanced stage of decomposition.
Cranial vault almost empty.
CAUSE OF DEATH: [The victim] could have died
due to the internal effects of a traumatic head injury
and/or traumatic chest injury.
Dr. Mendez testified that the contusion on the victims
chest was caused by contact with a hard blunt
instrument. He added that the fracture on the rib was
complete while that found on the base of the skull
followed a serrated or uneven pattern. He said that
the latter injury could have been caused by the
forcible contact of that part of the body with a blunt
object such as a wooden bench.[16]
On cross-examination, Dr. Mendez admitted that he
did not find any stab wound on the victims body but
explained that this could be due to the fact that at the
time the body was exhumed and examined, it was
already in an advanced state of decomposition
rendering such wound, if present, unrecognizable.[17]
Accused-appellants did not testify. Instead, the
defense presented: (a) Ritsel Blase, an alleged
eyewitness to the incident; (b) Maria Lilina Jimenez,
Visitacion Seniega, and Josefina Abing, alleged
former patients of accused-appellant Carmen; (c) Dr.
Milagros Carloto, the municipal health officer of
Talisay, Cebu and; (d) Atty. Salvador Solima of the
Cebu City Prosecutors Office.
Ritsel Blase, 21, testified that since 1987 she had
been with the group of accused-appellant Carmen,
whom she calls Mother Perpetuala. She recounted
that at around 2 oclock in the afternoon of January
27, 1997, while she was in the house of accused-
appellant Carmen, she saw Eddie Luntayao talking
with the latter regarding the treatment of his son. The
boy was later led to the kitchen and given a bath prior
to treatment. After water was poured on the boy, he
became unruly prompting accused-appellant Carmen
to decide not to continue with the treatment, but the
boys parents allegedly prevailed upon her to
continue. As the boy continued to resist, accused-
appellant Carmen told accused-appellants Delia
Sibonga and Celedonia Fabie to help her (Carmen)
lay the boy on a bench. As the child resisted all the
more, Eddie Luntayao allegedly told the group to tie
the boy to the bench. Accused-appellant Delia
Sibonga got hold of a nylon rope which was used to
tie the child to the bench. Then Carmen, Delia
Sibonga, and Fabie prayed over the child, but as the
latter started hitting his head against the bench,
Carmen asked Nuez to place his hands under the boys
head to cushion the impact of the blow everytime the
child brought down his head. To stop the boy from
struggling, accused-appellant Fabie held the boys
legs, while accused-appellant Nuez held his
shoulders. After praying over the boy, the latter was
released and carried inside the house. Accused-
appellant Alexander Sibonga, who had arrived,
helped carry the boy inside. After this, Blase said she
no longer knew what happened inside the house as
she stayed outside to finish the laundry.[18]
Blase testified that the parents of Randy Luntayao
witnessed the pray-over of their son from beginning
to end. She denied that accused-appellants Fabie and
Delia Sibonga struck the victim on his chest with
their fists. According to her, neither did accused-
appellant Carmen stab the boy. She claimed that
Randy was still alive when he was taken inside the
house.[19]
The defense presented Maria Lilia Jimenez, 20,
Visitacion Seniega, 39, and Josefina Abing, 39, who
testified that accused-appellant Carmen had cured
them of their illnesses by merely praying over them
and without applying any form of physical violence
on them.[20]
Milagros Carloto, Municipal Health Officer of
Talisay, Cebu, was also presented by the defense to
testify on the death certificate she issued in which she
indicated that Randy Luntayao died of
pneumonia. According to her, Eddie Luntayao came
to her office on January 28, 1997 to ask for the
issuance of a death certificate for his son Randy
Luntayao who had allegedly suffered from cough and
fever.[21]
On cross-examination, Dr. Carloto admitted that she
never saw the body of the victim as she merely relied
on what she had been told by Eddie Luntayao. She
said that it was a midwife, Mrs. Revina Laviosa, who
examined the victims body.[22]
The last witness for the defense, Assistant City
Prosecutor Salvador Solima, was presented to
identify the resolution he had prepared (Exh. 8) [23] on
the re-investigation of the case in which he
recommended the dismissal of the charge against
accused-appellants. His testimony was dispensed
with, however, as the prosecution stipulated on the
matters Solima was going to testify with the
qualification that Solimas recommendation was
disapproved by City Prosecutor Primo Miro.[24]
The prosecution recalled Eddie Luntayao to the stand
to rebut the testimonies of Ritsel Blase and Dr.
Milagros Carloto. Eddie denied having witnessed
what accused-appellants did to his son. He reiterated
his earlier claim that after accused-appellants had
taken Randy, he and his wife and two daughters were
locked inside a room. He disputed Blases statement
that his son was still alive when he was brought into
the prayer room. He said he saw that his sons head
slumped while being carried by accused-
appellants.[25]
As for the testimony of Dr. Carloto, Eddie admitted
having talked with her when he and accused-
appellant Nuez went to her office on January 28,
1997. However, he denied having told her that his
son was suffering from fever and cough as he told her
that Randy had a nervous breakdown.He took
exception to Dr. Carlotos statement that he was alone
when he went to her office because it was Nuez who
insisted that he (Eddie) accompany him in order to
secure the death certificate.[26]
On November 18, 1998, the trial court rendered a
decision, the dispositive portion of which states:
WHEREFORE, in view of the foregoing facts and
circumstances, [the] accused are all found guilty
beyond reasonable doubt of the crime of Murder and
are hereby [sentenced] to suffer the penalty of
RECLUSION PERPETUA, with the accessory
penalties of the law; to indemnify jointly and
severally the heirs of the deceased Randy Luntayao in
the sum of P50,000.00; and to pay the costs. The
accused, are, however, credited in full during the
whole period of their detention provided they will
signify in writing that they will abide by all the rules
and regulations of the penitentiary.[27]
In finding accused-appellants guilty of murder, the
trial court stated:
Killing a person with treachery is murder even if
there is no intent to kill. When death occurs, it is
presumed to be the natural consequence of physical
injuries inflicted. Since the defendant did commit the
crime with treachery, he is guilty of murder, because
of the voluntary presence of the qualifying
circumstance of treachery (P v. Cagoco, 58 Phil.
530). All the accused in the case at bar had
contributed different acts in mercilessly inflicting
injuries to the victim. For having immersed the head
of the victim into the barrel of water, all the herein
accused should be held responsible for all the
consequences even if the result be different from that
which was intended (Art. 4, par. 1, RPC). It is
pointed out that in P. v. Cagoco, 58 Phil. 524, even if
there was no intent to kill[,] in inflicting physical
injuries with treachery, the accused in that case was
convicted of murder. In murder qualified by
treachery, it is required only that there is treachery in
the attack, and this is true even if the offender has no
intent to kill the person assaulted. Under the guise of
a ritual or treatment, the accused should not have
intentionally immersed upside down the head of
Randy Luntayao into a barrel of water; banged his
head against the bench; pounded his chest with fists,
or plunged a kitchen knife to his side so that blood
would come out for these acts would surely cause
death to the victim. . . .
One who commits an intentional felony is responsible
for all the consequences which may naturally and
logically result therefrom, whether foreseen or
intended or not. Ordinarily, when a person commits a
felony with malice, he intends the consequences of
his felonious act. In view of paragraph 1 of Art. 4, a
person committing a felony is criminally liable
although the consequences of his felonious acts are
not intended by him. . . .
....
Intent is presumed from the commission of an
unlawful act. The presumption of criminal intent may
arise from the proof of the criminal act and it is for
the accused to rebut this presumption. In the case at
bar, there is enough evidence that the accused
confederated with one another in inflicting physical
harm to the victim (an illegal act). These acts were
intentional, and the wrong done resulted in the death
of their victim. Hence, they are liable for all the direct
and natural consequences of their unlawful act, even
if the ultimate result had not been intended.[28]
Hence, this appeal. Accused-appellants allege that the
trial court erred in convicting them of murder.[29]
First. It would appear that accused-appellants are
members of a cult and that the bizarre ritual
performed over the victim was consented to by the
victims parents. With the permission of the victims
parents, accused-appellant Carmen, together with the
other accused-appellants, proceeded to subject the
boy to a treatment calculated to drive the bad spirit
from the boys body. Unfortunately, the strange
procedure resulted in the death of the boy. Thus,
accused-appellants had no criminal intent to kill the
boy. Their liability arises from their reckless
imprudence because they ought that to know their
actions would not bring about the cure. They are,
therefore, guilty of reckless imprudence resulting in
homicide and not of murder.
Art. 365 of the Revised Penal Code, as amended,
states that reckless imprudence consists in
voluntarily, but without malice, doing or failing to do
an act from which material damage results by reason
of inexcusable lack of precaution on the part of the
person performing such act. Compared to intentional
felonies, such as homicide or murder, what takes the
place of the element of malice or intention to commit
a wrong or evil is the failure of the offender to take
precautions due to lack of skill taking into account
his employment, or occupation, degree of
intelligence, physical condition, and other
circumstances regarding persons, time, and place.
The elements of reckless imprudence are apparent in
the acts done by accused-appellants which, because
of their lack of medical skill in treating the victim of
his alleged ailment, resulted in the latters death. As
already stated, accused-appellants, none of whom is a
medical practitioner, belong to a religious group,
known as the Missionaries of Our Lady of Fatima,
which is engaged in faith healing.
In United States v. Divino,[30] the accused, who was
not a licensed physician, in an attempt to cure the
victim of ulcers in her feet, wrapped a piece of
clothing which had been soaked in petroleum around
the victims feet and then lighted the clothing, thereby
causing injuries to the victim.The Court held the
accused liable for reckless imprudence resulting in
physical injuries. It was noted that the accused had no
intention to cause an evil but rather to remedy the
victims ailment.
In another case, People v. Vda. de Golez,[31] the Court
ruled that the proper charge to file against a non-
medical practitioner, who had treated the victim
despite the fact that she did not possess the necessary
technical knowledge or skill to do so and caused the
latters death, was homicide through reckless
imprudence.
The trial courts reliance on the rule that criminal
intent is presumed from the commission of an
unlawful act is untenable because such presumption
only holds in the absence of proof to the
contrary.[32] The facts of the case indubitably show
the absence of intent to kill on the part of the
accused-appellants. Indeed, the trial courts findings
can be sustained only if the circumstances of the case
are ignored and the Court limits itself to the time
when accused-appellants undertook their
unauthorized treatment of the victim. Obviously, such
an evaluation of the case cannot be allowed.
Consequently, treachery cannot be appreciated for in
the absence of intent to kill, there is no treachery or
the deliberate employment of means, methods, and
manner of execution to ensure the safety of the
accused from the defensive or retaliatory attacks
coming from the victim.[33] Viewed in this light, the
acts which the trial court saw as manifestations of
treachery in fact relate to efforts by accused-
appellants to restrain Randy Luntayao so that they
can effect the cure on him.
On the other hand, there is no merit in accused-
appellants contention that the testimony of
prosecution eyewitness Honey Fe Abella is not
credible. The Court is more than convinced of Honey
Fes credibility. Her testimony is clear,
straightforward, and is far from having been coached
or contrived. She was only a few meters away from
the kitchen where accused-appellants conducted their
pray-over healing session not to mention that she had
a good vantage point as the kitchen had no roof nor
walls but only a pantry. Her testimony was
corroborated by the autopsy findings of Dr. Mendez
who, consistent with Honey Fes testimony, noted
fractures on the third left rib and on the base of the
victims skull. With regard to Dr. Mendezs failure to
find any stab wound in the victims body, he himself
had explained that such could be due to the fact that
at the time the autopsy was conducted, the cadaver
was already in an advanced state of
decomposition. Randy Luntayaos cadaver was
exhumed 24 days after it had been
buried. Considering the length of time which had
elapsed and the fact that the cadaver had not been
embalmed, it was very likely that the soft tissues had
so decomposed that, as Dr. Mendez said, it was no
longer possible to determine whether there was a stab
wound. As for the other points raised by accused-
appellants to detract the credibility of Honey Fes
testimony, the same appear to be only minor and
trivial at best.
Accused-appellants contend that the failure of the
prosecution to present the testimony of Frances
Claire Rivera as well as the knife used in stabbing
Randy Luntayao puts in doubt the prosecutions
evidence. We do not think so. The presentation of the
knife in evidence is not indispensable.[34]
Finally, accused-appellants make much of the fact
that although the case was tried under Judge Renato
C. Dacudao, the decision was rendered by Judge
Galicano Arriesgado who took over the case after the
prosecution and the defense had rested their
cases.[35] However, the fact that the judge who wrote
the decision did not hear the testimonies of the
witnesses does not make him less competent to
render a decision, since his ruling is based on the
records of the case and the transcript of stenographic
notes of the testimonies of the witnesses.[36]
Second. The question now is whether accused-
appellants can be held liable for reckless imprudence
resulting in homicide, considering that the
information charges them with murder. We hold that
they can.
Rule 120 of the Revised Rules of Criminal Procedure
provides in pertinent parts:
SEC. 4. Judgment in case of variance between
allegation and proof. When there is variance between
the offense charged in the complaint or information
and that proved, and the offense as charged is
included in or necessarily includes the offense
proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of
the offense charged which is included in the offense
proved.
SEC. 5. When an offense includes or is included in
another. An offense charged necessarily includes the
offense proved when some of the essential elements
or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And
an offense charged is necessarily included in the
offense proved, when the essential ingredients of the
former constitute or form part of those constituting
the latter.
In Samson v. Court of Appeals,[37] the accused were
charged with, and convicted of, estafa through
falsification of public document. The Court of
Appeals modified the judgment and held one of the
accused liable for estafa through falsification by
negligence. On appeal, it was contended that the
appeals court erred in holding the accused liable for
estafa through negligence because the information
charged him with having wilfully committed
estafa. In overruling this contention, the Court held:
While a criminal negligent act is not a simple
modality of a willful crime, as we held in Quizon v.
Justice of the Peace of Bacolor, G.R. No. L-6641,
July 28, 1955, but a distinct crime in itself,
designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former
can be had under an information exclusively charging
the commission of a willful offense, upon the theory
that the greater includes the lesser offense. This is the
situation that obtains in the present case. Appellant
was charged with willful falsification but from the
evidence submitted by the parties, the Court of
Appeals found that in effecting the falsification
which made possible the cashing of the checks in
question, appellant did not act with criminal intent
but merely failed to take proper and adequate means
to assure himself of the identity of the real claimants
as an ordinary prudent man would do. In other words,
the information alleges acts which charge willful
falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when
there is a variance between the allegation and proof. .
..
The fact that the information does not allege that the
falsification was committed with imprudence is of no
moment for here this deficiency appears supplied by
the evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having
alleged that the falsification has been willful, it would
be incongruous to allege at the same time that it was
committed with imprudence for a charge of criminal
intent is incompatible with the concept of negligence.
In People v. Fernando,[38] the accused was charged
with, and convicted of, murder by the trial court. On
appeal, this Court modified the judgment and held the
accused liable for reckless imprudence resulting in
homicide after finding that he did not act with
criminal intent.
Third. Coming now to the imposable penalty, under
Art. 365, reckless imprudence resulting in homicide
is punishable by arresto mayor in its maximum
period to prision correccional in its medium
period. In this case, taking into account the pertinent
provisions of Indeterminate Sentence Law, the
accused-appellants should suffer the penalty of four
(4) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as
maximum.

As to their civil liability, accused-appellants should

pay the heirs of Randy Luntayao an indemnity in the
amount of P50,000.00 and moral damages also in the
amount of P50,000.00.[39] In addition, they should
pay exemplary damages in the amount of P30,000.00
in view of accused-appellants gross negligence in
attempting to cure the victim without a license to
practice medicine and to give an example or
correction for the public good.[40]

WHEREFORE, the decision of the Regional Trial

Court, Branch 14, Cebu City, is AFFIRMED with the
MODIFICATION that accused-appellants are hereby
declared guilty of reckless imprudence resulting in
homicide and are each sentenced to suffer an
indeterminate prison term of four (4) months
of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as
maximum. In addition, accused-appellants are
ORDERED jointly and severally to pay the heirs of
Randy Luntayao indemnity in the amount
of P50,000.00, moral damages in the amount
of P50,000.00, and exemplary damages in the amount
of P30,000.00.

SO ORDERED.
[G.R. No. 4935. October 25, 1909. ]
THE UNITED STATES, Plaintiff-Appellee, v.
JAMES L. BROBST, Defendant-Appellant.
Kincaid & Hurd for Appellant.
Attorney-General Villamor for Appellee.
SYLLABUS
1. HOMICIDE; RIGHT TO EJECT TRESPASSERS;
CRIMINAL RESPONSIBILITY. — The right to use
force or violence in the expulsion of an intruder upon
one’s premises, when it exists, is strictly limited to
the use of such a degree of force as may be necessary
under all the circumstances, to obtain the end in view;
and the use of excessive force if unlawful.
2. ID.; DEATH RESULTING FROM A BLOW;
REASONABLE DOUBT. — Held, That proof that a
heavy blow with the closed fist, over the lower left
ribs, inflicted upon a person in apparent good health,
was followed by the death of that person in less than
two hours, sustains a finding that death resulted from
the infliction of the blow, in the absence of proof of
any intervening cause, and the circumstances being
such as to afford no ground for reasonable doubt that
no extraneous cause did in fact intervene.
3. ID.; ID.; ID.; EVIDENCE. — The doubt to the
benefit of which accused persons are entitled on a
criminal trial is a reasonable doubt, and not a mere
whimsical or fanciful doubt, based on imagined but
wholly improbable possibilities, and unsupported by
evidence.
4. ID.; ID. — Held, That death may result from a
blow over or near the heart or in the abdominal
region, notwithstanding the fact that the blow leaves
no outward mark of violence.
5. ID.; ID. — Where death results as the direct
consequence of the use of illegal violence, the mere
fact that the diseased or weakened condition of the
injured person contributed to his death, does not
relieve the illegal aggressor of criminal responsibility
. crime of homicide (homicidio), marked with the
6. ID.; ID.; INTENTION; CRIMINAL
RESPONSIBILITY. — One is not relieved, under the
law in these Islands, from criminal liability for the
natural consequences for one’s illegal acts, merely
because one does not intend to produce such
consequences.
7. ID.; ID.; ID.; ID. — But in such cases, the lack of
intention, while it does not exempt from criminal
liability, taken into consideration as an extenuating
circumstance.
DECISION
CARSON, J. :
The defendant, James L. Brobst, and another
American named Mann, were engaged in work on a
mine located in the municipality of Masbate, where
they gave employment to a number of native
laborers. Mann discharged one of these laborers
named Simeon Saldivar, warned him not to come
back on the premises, and told the defendant not to
employ him again, because he was a thief and a
disturbing element with the other laborers. A few
days afterwards, some time after 6 o’clock on the
morning of the 10th of July, 1907, Saldivar, in
company with three or four others, went to the mine
to look for work. The defendant, who at the time was
dressing himself inside his tent, which was erected on
the mining property, when he caught sight of
Saldivar, ordered him off the place, ex-claiming in
bad Spanish, "Sigue, Vamus!" (Begone). Saldivar
made no move to leave, and although the order was
repeated, merely smiled or grinned at the defendant,
where-upon the latter became enraged, took three
steps toward Saldivar, and struck him a powerful
blow with his closed fist on the left side, just over the
lower ribs, at the point where the handle of Saldivar’s
bolo lay against the belt from which it was
suspended. On being struck, Saldivar threw up his
hands, staggered (dio vueltas — spun around
helplessly) and without saying a word, went away in
the direction of his sister’s house, which stood about
200 yards (100 brazas) away, and about 100 feet up
the side of a hill. He died as he reached the door of
the house and was buried some two or three days
later.
The trial court found the defendant guilty of the
extenuating circumstances, denied in subsections 3
and 7 of article 9 of the Penal Code, in that the
defendant "had no intention of committing so grave
an injury as that which he inflicted," and that he
struck the blow "under such powerful excitement as
would naturally produce entire loss of reason and
self-control." Sentence of six years and one day of
prision mayor was imposed, and from this sentence
defendant appealed to this court.
Counsel for the appellant, relying mainly on
appellant’s claim that he did not strike Saldivar, and
that he merely pushed him lightly with the back of his
open hand, and relying also on the lack of satisfactory
proof of the existence of lesions or external marks of
violence on the body of the deceased, contend: first,
that the evidence fails to sustain a finding that the
deceased came to his death as a result of injuries
inflicted by the defendant; and, second, that even if it
be a fact that the defendant, in laying his hand upon
the deceased, contributed to his death, nevertheless,
since the defendant had a perfect right to eject the
deceased from the mining property, he can not be
held criminally liable for unintentional injuries
inflicted in the lawful exercise of this right.
Two witnesses, Dagapdap and Yotiga, who were
standing close by at the time, swore positively that
the blow was delivered with the closed fist, from the
shoulder (de dentro para fuera), and that it was a hard
blow; Dagapdap testifying that, "Al pegar el
puñetazo, Simeon dio vueltas, y despues se marcho"
(when the blow was struck, Simeon staggered and
afterwards went away); and Yotiga that "despues de
dar el golpe se retrocedio’y levanto los brazos" (after
the blow was struck, he backed away and threw up
his arms). The testimony of these witnesses is clear,
positive, and definite and is wholly uncontradicted,
except for the improbable story told by the accused in
his own behalf, when he testified that he testified that
seeing Saldivar standing outside his tent, he told him
twice to go away and then stepped up to him and
pushed him lightly with the back of his hand, which
came in contact with the handle of Saldivar’s bolo,
but not with sufficient force to push him back or do
him any injury. If it had been necessary to use force
to compel Saldivar to leave the place, it is at least
highly improbable that the accused approaching him
from the front would have lightly placed the back of
his open right hand on Saldivar’s left side, without
attempting to seize him, or to compel him to give
ground.
Pedro Leocampo, the only other witness called at the
trial who appears to have been present when the
incident occurred, corroborated the testimony of the
witnesses Dagapdap and Yotiga as to all that
occurred prior to the actual infliction of the blow,
which he did not see. He testified that at the time
when the accused, standing in his tent, ordered the
deceased to leave, standing in his tent, ordered the
deceased to leave, he, the witness, was eating his
breakfast, with his back to the accused and the
deceased; that hearing the order, he turned his head
and saw the accused start toward the deceased with
his arm outstretched, but that at that moment he
turned away and did not see the accused actually
come up to, strike or touch the deceased; that when
he saw the accused approaching the deceased, the
accused did not have his fist clenched, but that he
could not say whether the blow was struck with the
open hand or the closed fist, because at the moment
when it is said the accused came up to and touched or
struck the deceased, the witness’s head was so turned
that he could not and did not see what took place.
No evidence was introduced at the trial which in any
wise tends to put in doubt the truth of the testimony
of these witnesses as to the fact that they were present
at the time when and the place where the incident
occurred; and of this fact we are satisfied that there
can be no reasonable doubt, although, as frequently
happens when ignorant witnesses are testifying in the
courts in these Islands, their evidence is conflicting as
to the precise hour by the clock when it took place.
Some attempt is made to discredit the testimony of
Yotiga, because it appears from the record that in
answer to certain questions on his examination-in-
chief, he stated that when the blow was struck he was
some hundred brazas (200 yards) away. It developed,
however, on examination by the trial judge, that this
answer was given under the impression that the
question asked was the distance from the mine to the
house of the sister of the deceased, as to which
considerable testimony was taken; and it is very clear
from all the testimony that both these witnesses were
standing within a few yards of the defendant when he
struck the blow.
The testimony of Dagapdap is also criticized because,
in answer to the opening questions on the
examination-in-chief, he spoke of the blow inflicted
as a bofetada (a slap with the open hand on the
cheek), which, later on in his testimony, he changed
to the word puñetazo (a blow with the first), as a
result, it is intimated, of suggestive questions by
counsel for the prosecution. We do not think this
criticism well founded, or that the language of the
witness on which it rests sustains the inference sought
to be drawn therefrom. In the first place, it must not
be forgotten that the witness was manifestly an
ignorant man, unskilled in the use of words, and
testifying in a remote province in a native dialect; and
that his testimony was interpreted into the Spanish of
the record by an interpreter who might well have
been mistaken in selecting the precise Spanish
equivalent of the word or words actually used by the
witness, and whose use of Spanish throughout the
record does not demonstrate such precision and
nicety in the use of words as to justify the laying of
too much stress on the phrasing adopted by him in the
haste of interpretation in the course of a trial in open
court: so that, in our opinion, the detailed description
of the manner in which the blow was inflicted, as
given by the witness without suggestion or assistance
of any kind, is much more decisive as to its nature
than the word by which reference to it was made.
And in the second place, as appears from the
Diccionario Enciclopedico de la Lengua Castellana
and the Diccionario de la Lengua por la Academia
Española, the word "bofetada," when used strictly,
connotes not merely a blow with the open hand, but
such a blow struck on the cheek or side of the face, a
meaning which the whole testimony or the witness
clearly discloses it was not his intention to give to
whatever word he did actually make use of in
referring to the act. The definition of the word
"bofetada," as given in the former dictionary, is "a
blow which is given on the cheek (mejilla) with the
open hand," and in the latter is "a blow given the
open hand, on the side of the face (carrillo) or cheek
(mejilla) of another."cralaw virtua1aw library
It has also been suggested that the testimony of the
witnesses for the prosecution is inherently
improbable, because, as it is said, if the blow had
been struck as describe by them, the injured person
would necessarily have "doubled up or over," and
not, as appears from their testimony, thrown up his
hands and staggered away. No expert testimony was
introduced at the trial upon this point, and while it
may, perhaps, be admitted that if the blow took effect
in the abdominal region, common experience would
justify us in expecting as a result of the blow, that the
injured person would "double up or over," it must not
be forgotten that the blow having been delivered over
the ribs on the left side, it may as well have taken
effect in the region of the heart; in the absence of
expert testimony, we do not think in that event,
evidence that the injured person threw up his hands
and staggered away is necessarily in conflict the
evidence of the witnesses for the prosecution as to the
weight of the blow and the place where it was
inflicted.
We are satisfied that the evidence of record leaves no
room for reasonable doubt with his closed first; and
that whatever authority the defendant may have had
to eject the deceased from the mining property and to
use physical force to that end in case of need, the
blow thus struck was far in excess of such authority,
and was, therefore, unlawful, and can not be excused
or justified as an exercise of necessary force in the
exercise of a right. The defendant’s own testimony
does not indicate that there was any danger to be
apprehended from Saldivar, and there is nothing in
the record which would indicate that he would offer a
violent or even a substantial to an attempt to expel
him from the mining property.
We are satisfied also that the deceased came to his
death as result of the blow inflicted by the defendant.
Two or three days prior to his death he was employed
as a laborer in defendant’s mine; his sister testified
that on the morning of the day he died, he left her
house in apparent good health and went to the mines
to look for work; a short time afterwards he received
a violent blow on his lower left side, a region of the
body where many of the vital organs are located; and
immediately thereafter, he started up the short trail
leading to his sister’s house, and died as he reached
the door. In the absence of evidence of any
intervening cause, we think there can be no
reasonable doubt that his death resulted from the
blow.
Counsel for appellant suggest that death may have
been the result of some cause unknown, such as a
fall, an assault by robbers, or perchance a suicidal
frenzy, intervening between the time when the
accused was last seen starting up the 200-yard trail to
his sister’s house, and the time when, as she testified,
he died just as he reached her door, on his way back
from the mine; and that the accused in entitled to the
benefit of the doubt. But the doubt which must be
decided in favor of an accused person in a criminal
trial is a reasonable doubt, and not a mere whimsical
and fanciful doubt, based upon imagined but wholly
improbable possibilities, unsupported by evidence;
and while we do not hold that it is absolutely and
morally impossible that some other cause could have
intervened to bring about the death of Saldivar, we do
hold that there can be no reasonable doubt in the
mind of a reasonable man that death was in fact
brought about by the blow inflicted by the accused,
and was not the result of some independent cause
intervening during the very short period of time prior
to his death, during which he was not under
observation by witnesses called at the trial.
Counsel for the appellant enlarge on the fact that
accepting defendant’s statement that he sent the
deceased away from the mines about a quarter past
six, it would appear from the testimony of the sister
of the deceased that about two hours may have
elapsed between that time and the time when he
arrived at her house. The sister fixed the time of the
arrival of her brother at from 7 to 8 o’clock or
possibly a little later; but she appears to have been an
ignorant woman who did not know how to read the
face of a clock, and it is quite clear that hers was no
more than a rough estimate, based on the height of
the sun, and the most that can fairly be inferred from
the testimony is that the deceased was struck early on
the morning in question, and that not long afterwards
on the same morning, he died at the door of his
sister’s house 200 yards away. But even if it be
granted that two hours actually did elapse from the
time the deceased left that mines, until he reached his
sister’s house, this interval is not long enough to
materially weaken the inference that the death
resulted from the blow.
It is true that no autopsy was had on the body of the
deceased, and that a medical officer called in by the
accused who saw the body, but who does not appear
to have examined it very closely , certified that he
found no outward lesions or mark or violence; but
this evidence is not sufficient to negative the
existence of internal lesions, for he medical
authorities inform us that death may and often does
result from a blow over or near the heart of in the
abdominal region, notwithstanding the fact that the
blow leaves no outward mark of violence; and there
is evidence in the record of the discovery on the
cadaver of two suspicious black spots, one about the
place where the blow was struck, and another at or
near the umbilicus, though the evidence fails to
disclose the precise nature of these discolorations.
(Medical Jurisprudence, Taylor, 12th Am. Ed., pp.
310 and 388; Moulin’s Treatise on Surgery,
Hamilton, part 2, chap. 1, p. 151; Tratado de
Medicina Legal por Legran de Sulle, Vol. II, pp.
206,207.)
It has been suggested that the deceased may have had
a weak heart or some other diseased organ, and that
but for such physical defect death might not have
ensued from the mere force of the blow inflicted by
the defendant. There is no evidence to this effect, and
on the contrary there is testimony in the record that
on the morning before he died he was in apparent
good health; and the fact that a few days before, he
was able to work in the mines, and that he came to
the mines that day in search of work, renders it highly
improbable that he was suffering at that time from
any grave organic weakness. But however this may
have been, it has been frequently and justly decided
that where death result as a direct consequence of the
use of illegal violence, the mere fact that the diseased
or weakened condition of the injured person
contributed to his death, does not relieve the illegal
aggressor of criminal responsibility. (U. S. v.
Luciano, 2 Phil. Rep., 96; U. S. v. Montes, 6 Phil.
Rep., 443; see also decisions of supreme court of
Spain, March 10, 1871, and June 26, 1880.)
Counsel for appellant also contend that even if it be
granted that in unlawfully exercising force upon the
person of the deceased, the appellant caused or
contributed to his death, nevertheless he should at
most be convicted of homicidio por imprudencia
temeraria (homicide as a result of reckless
negligence), because, manifestly, the unlawful act
was not committed with intent to kill, and because, as
counsel contend, the striking of the blow by the
appellant was not an act adapted, or likely (idoneo) to
inflict a death wound under ordinary circumstances,
or reasonably calculated so to do. In support of this
contention counsel cite decisions of the supreme
court of Spain of November 9, 1885, February 10,
1876, July 5, 1888, and July 12, 1890, and appears to
rely especially on the former decision wherein
sentence of homicidio por imprudencia temeraria was
imposed, the court holding "que es condicion esencial
del delito de homicidio, que el hecho material de que
resulte sea umpulsado por voluntad libre encaminada
por acto idoneo a causar la muerte o algun mal fisico
que pro consecuencia natural la produzca."
In that case, however, it was proven, and the court
found that not only did the defendant no intend to kill
the deceased but also that he did not intend to do him
any physical injury whatever; but in the case at bar
the evidence conclusively establishes the voluntary,
intentional, and unlawful infliction by the accused of
a severe blow on the person of the deceased; and
while it is true that the accused does not appear to
have intended to take the life of his victim, there can
be no doubt that in thus striking the deceased, he
intended to do him some injury, at least to the extent
of inflicting some degree of physical pain upon him,
and he is, therefore, criminally responsible for the
natural, even if unexpected results of his act, under
the provisions of article 1 of the Penal Code, which
prescribes that —
"Any person voluntarily committing a crime or
misdemeanor shall incur criminal liability, even
though the wrongful act committed be different
from that which he had intended to commit."
In such cases the law in these Islands does not excuse
one from liability for the natural consequences of his
illegal acts merely because he did not intend to
produce such consequence, but it does take that fact
into consideration as an extenuating circumstance, as
did the trial judge in this case.
What has been said sufficiently disposes of all errors
assigned by counsel for appellant, except certain
alleged errors of procedure in the court below which
we do not think it necessary to discuss, because even
if it be admitted that such errors were committed,
they do not appear to have in any wise prejudiced the
substantial rights of the defendant.
The judgment of conviction and the sentence
imposed by the trial court should be and are hereby
affirmed, with the costs of this instance against
the Appellant. So ordered.
G.R. No. L-35574 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
VALENTINA MANANQUIL Y
LAREDO, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio Sugay for defendant-appellant.
CUEVAS, J.:
In an amended Information 1 filed before the then
Court of First Instance of Rizal, VALENTINA
MANANQUIL y LAREDO was accused of
PARRICIDE allegedly committed as follows:
That on or about the 6th day of March, 1965, in
Pasay City, Philippines, and within the jurisdiction of
this Hon. Court, the abovenamed accused, did then
and there wilfully, unlawfully and feloniously, with
evident premeditation, that is, having conceived and
deliberated to kill her husband, Elias Day y Pablo,
with whom she was united in lawful wedlock, enter
(sic) the NAWASA building situated at Pasay City,
where said Elias Day y Pablo was working as a
security guard; and the said accused, having in her
possession a bottle containing gasoline suddenly and
without warning, poured the contents on the person
of her husband, Elias Day y Pablo, ignited the
gasoline, as a result of which, said Elias Day y Pablo
suffered burns and injuries which subsequently
caused his death.
Contrary to law 2
Tried after pleading "NOT GUILTY" upon
arraignment, accused was convicted and thereafter
sentenced to reclusion perpetua to indemnify the
heirs of the deceased in the amount of P12,000.00;
and to pay costs.
From the aforesaid judgment, she ventilated an
appeal to the then Court of Appeals (which referred
the appeal to us considering that the penalty imposed
was reclusion perpetua, assailing her aforesaid
conviction and contending that the trial court erred:
1) in convicting her solely on the basis of the alleged
extrajudicial confession; 2) in finding that Pneumonia
was a complication of the burns sustained by the
victim; 3) in not finding her not to have cause the
death of the deceased; and 4) in not acquitting her at
least on ground of reasonable doubt.
The prosecution's version of the incident as
summarized in the People's Brief is as follows:
On March 6, 1965, at about 11:00 o'clock in the
evening, appellant went to the NAWASA Building at
Pasay City where her husband was then working as a
security guard. She had just purchased ten (10)
centavo worth of gasoline from the Esso Gasoline
Station at Taft Avenue which she placed in a coffee
bottle (t.s.n., p. 13, January 13, 1969). She was angry
of her husband, Elias Day y Pablo, because the latter
had burned her clothing, was maintaining a mistress
and had been taking all the food from their house.
Upon reaching the NAWASA Building, she knocked
at the door. Immediately, after the door was opened,
Elias Day shouted at the appellant and castigated her
saying, "PUTA BUGUIAN LAKAW GALIGAON"
(t.s.n., p. 14, Id). The appellant tired of hearing the
victim, then got the bottle of gasoline and poured the
contents thereof on the face of the victim (t.s.n., p.
14, Id). Then, she got a matchbox and set the polo
shirt of the victim a flame. (Exhs. "A" and "A-1", p.
197, Rec.)
The appellant was investigated by elements of the
Pasay City Police to whom she gave a written
statement (Exh. "A", p. 197, Rec.) where she
admitted having burned the victim.
Upon the other hand, the victim was taken first to the
Philippine General Hospital and then to the Trinity
General Hospital at Sta. Ana, Manila, when he died
on March 10, 1965. (Exh. "C", p. 208, rec.) due to
pneumonia, lobar bilateral Burns 2 secondary. 3
Appellant's story on the other hand runs, thus:
It was before 10:00 o'clock p.m. when appellant
returned from Olongapo City. She fed her grandson
and put him to bed. After filing the tank with water,
she remembered that the next day was a Sunday and
she had to go to church. Her shoes were dirty but
there was no gasoline with which to clean them.
Taking with her an empty bottle of Hemo, she left for
a nearby gasoline station and bought ten centavos
worth of gasoline. Then she remembered that her
husband needed gasoline for his lighter so she
dropped by his place of work. (p. 13, Ibid.)
Appellant saw her husband inside a bonding of the
NAWASA standing by the window. As the iron grille
was open, she entered and knocked at the wooden
door. Elias opened the door, but when he saw his
wife he shouted at her. Appellant said that she had
brought the gasoline which he needed for his lighter,
but Elias, who was under the influence of liquor,
cursed her thus: "PUTA BUGUIAN LAKAW
GALIGAON". Elias continued shouting and cursing
even as appellant told him that she had come just to
bring the gasoline that he wanted. Appellant trembled
and became dizzy. She was beside herself and did not
know that she was sprinkling the gasoline on her
husband's face. She was tired and dizzy and had to sit
down for a while. Then she remembered her
grandson who was alone in the house so she went
home leaving her husband who was walking to and
fro and not paying attention to her. (pp. 13-14, Ibid.,
p. 2, March 20, 1969)
She went to bed but could not sleep. She went back to
the NAWASA compound to apologize to her
husband. Upon reaching the NAWASA, however,
she found that police officers were present. Her
husband was walking all around still fuming mad,
and when he saw her he chased her. A policeman
pulled appellant aside and asked if she was the wife
of Elias. When she replied in the affirmative, the
police officer accused her of burning her husband.
She denied the accusation. But the police took her to
the headquarters, and prepared a written statement,
Exhibits A, A-1. Appellant was made to sign said
statement upon a promise that she would be released
if she signed it. Although she did not know the
contents, she signed it because of the promise. (pp.
14-16. Id.; p. 5, March 20,1969) 4
Appellant's assigned errors boil down to two (2) main
issues: (1) whether or not appellant's extrajudicial
confession was voluntarily given; and (2) whether or
not the burns sustained by the victim contributed to
cause pneumonia which was the cause of the victim's
death.
Right after the burning incident, appellant was picked
up by the police operatives of Pasay City. She was
thereafter investigated by Sgt. Leopoldo Garcia of the
Pasay City Police who took her statement in Tagalog
and in Question and Answer form which was reduced
into writing. 5 After Sgt. Garcia was through taking
her statement, she was brought to Fiscal Paredes who
asked her questions regarding the said statement and
its execution and before whom said statement was
subscribed and sworn to by her. In that investigation,
appellant categorically admitted having thrown
gasoline at her husband and thereafter set him aflame
as evidenced by this pertinent portion of her
statement-
T Ano ang nangyari at iyong binuksan ng gasolina
ang iyong asawa na si Elias Day?
S Dahil may sala siya, at sinunog niya ang aking mga
damit, at may babae pa, at saka lahat ng aming
pagkain sa bahay ay hinahakot.
T Ng dahil dito sa mga binanggit mong ito ay ano
ang ginawa mo sa iyong asawa?
S Ako po ay nagdilim ang aking isipan at ang ginawa
ko ay naisip kong buhusan ng gasolina, kaya ang
aking ginawa ay bumili ako ng halagang 10 sentimos
sa Esso Gasoline Station sa Tall Avenue at inilagay
ko sa isang boti.
T Pagkatapos na ikaw ay makabili ng gasolina sa
station ng Esso sa Taft Avenue dito sa Pasay City, ay
ano ang ginawa mo?
S Ako po ay nagpunta sa kanya na
pinaggoguardiahan sa Nawasa at pagdating ko nuon
ay kumatok ako sa pintuan ng Nawasa, at nang
marinig niya ang aking katok sa pinto ay binuksan
niya ang pintuan, at pagkabukas ng pintuan ay nakita
niya ako, at nagalit siya at ako ay minura ng puta
putan Ina mo, lalakad ka ng gabi, at namumuta raw
ako, at pagkatapos na ako ay mamura ay hinahabol pa
ako ng suntok, kayat ang ginawa ko po kinuha ko ang
aking dalang bote na may gasolina at aking ibinuhos
sa kanyang katawan at aking kinuha ang posporo at
aking sinindihang at hangang magliyab ang suot
niyang polo shirt, na may guhit na itim at puti.
T Alam mo ba na kung ano ang iyong ginawa sa
iyong asawa kanginang humigit kumulang na mag-
iika alas 11:00 ng gabi Marzo 6, 1965?
S Opo, aking sinunog ang aking asawa. (Exhs. A &
A-1 Emphasis supplied)
She would now like her aforesaid extrajudicial
confession discredited by asserting that she did not
understand its contents because she is not a Tagala
aside from having reached only the primary grades;
and furthermore, that said statement was signed by
her merely upon the promise of the policemen that
she will later be released.
We find appellant's aforesaid assertions a mere
pretense too flimsy to be accepted as true. For the
truth is that appellant knew and understood Tagalog
despite her not being a Tagala, having stayed in
Manila since 1951, continuously up to the time of the
burning incident in question for which she was
investigated. During this period of almost fourteen
years, she was in daily association with Tagalogs
communicating with them in Pilipino. This is clear
from her admission on cross-examination which runs
thus-
Q But you can understand Tagalog because of the
length of time that you litem been living here in
Manila?
A Yes.
Q And as a matter of fact, when you buy something
from the store, you speak Tagalog?
A Yes.
Q And when you ride in a jeep or bus, you speak
Tagalog?
A Yes.
Q And you were well understood by these Tagalog
people?
A Yes.
Q And as a matter of fact, you can understand
Tagalog?
A Yes,
Q And you can also read Tagalog?
A Yes.
Q You can read?
A Yes, but I do not litem interest to read. TSN,
March 29, 1969, pp. 11-12).
All through shout the entire investigation and even at
the time appellant A as before Fiscal Paredes, before
whom she subscribed and swore to the truth of an
what appeared in her statement, 6 no denunciation of
any sort was made nor levelled by her against the
police investigators. Neither was there any complaint
aired by her to the effect that she merely affixed her
signatures thereto because of the promise by the
police that she will be released later. We therefore
find her aforesaid claim highly incredible and a mere
concoction. For why will the police still resort to such
trickery when the very sworn statement given by her
proved by its contents that appellant was indeed very
cooperative. In fact, almost all the recitals and
narrations appearing in the said statement were
practically repeated by her on the witness stand thus
authenticating the truth and veracity of her
declarations contained therein. Moreover, We find
said statement replete with details which could not
litem been possibly supplied by the police
investigators who litem no previous knowledge of,
nor acquaintance with her and the victim, especially
with respect to the circumstances and incidents which
preceded the fatal incident that brought about the
death of the latter. We therefore find no error in the
trial court's pronouncement that appellant's sworn
statement was voluntarily given by her; that she fully
understood its contents; and that she willingly affixed
her signatures thereto.
Well settled is the rule that extrajudicial confession
may be regarded as conclusive proof of guilt when
taken without maltreatment or intimidation 7 and may
serve as a basis of the declarant's conviction. 8 It is
presumed to be voluntary until the contrary is proven.
The burden of proof is upon the person who gave the
confession. 9 That presumption has not been
overcome in the instant case.
Indeed the trial court could not be faulted for relying
heavily on accused-appellant's sworn statement in
assessing her guhit since it was given shortly after the
incident took place. By then, she had yet no time to
concoct any fabrication favorable to her. Shock by
the aftermath consequences of her criminal design
she must litem been motivated by no other purpose
except to admit the undeniable. On the other hand,
when she took the witness stand, disclaiming any
responsibility for the burning of her husband, it was
already January 13, 1969 . . . more than five years
after the incident and decidedly after she had the
benefit of too many consultations.
That appellant has murder in her heart and meant to
do harm to her husband when she went to the latter's
place of work on that fatal night and intended an the
consequences of her nefarious act finds clearer
manifestation and added support in her total
indifference and seemingly unperturbed concern over
the fate that had befallen the victim . . . her husband .
. . especially at times when he needed her most.
Being the wife, she must be the closest to him and the
hardest hit by the mishap if she has not authored the
same nor voluntarily participated therein. She was
then reasonably expected to come to his succor and
alleviate him from his sufferings. And yet, the
records do not show her having seen her husband
even once while the latter lay seriously ill at the
hospital hovering between life and death. Neither did
she attend his funeral nor was she ever present during
the wake while the victim's remains lay in state. That
she was under detention does not excuse nor justify
those glaring and significant omissions. For she could
litem asked the court's permission for any of the
enumerated undertakings which we believe would not
litem been denied. But she did not even attempt.
Indeed, the more we scrutinize appellant's alibi and
explanation, we become more convinced of the
falsity and incredibility of her assertions. For
instance, her claim that her purpose in buying
gasoline at so an unholy hour of the night, past ten o
clock in the evening, solely for the purpose of
cleaning her shoes which she would wear in going to
church the following Sunday, hardly recommend
acceptance. That she dropped at her husband's place
of work also at the middle of the night for no other
purpose except to deliver to him gasoline for his
cigarette lighter, is likewise too taxing upon one's
credulity . . . more so if we litem to consider the
previous spat she had with the deceased in the
morning of that fatal day.
In her vain attempt to exculpate herself, appellant
would like Us to believe that her husband died of
pneumonia because the latter drank liquor as shown
by the toxicology report indicating presence of
alcohol in the victim's body. Hence, assuming she set
her husband on fire, she is not criminally liable for
her husband's death.
We are not persuaded by appellant's aforesaid
ratiocination
The claim that the victim drank liquor while confined
in the hospital would not suffice to exculpate the
appellant. For as testified by Dr. Reyes, pneumonia
could not be caused by taking alcohol. In fact,
alcohol, according to him, unless taken in excessive
dosage so as to produce an almost comatose
condition would not cause suffocation nor effect a
diminution of the oxygen content of the body. 10 In
fine, as correctly pointed out by the Hon. Solicitor
General, the victim's taking of liquor was not an
efficient supervening cause of his death which took
place on March 10, 1965, just four days after the
burning.
The cause of death as shown by the necropsy report is
pneumonia, lobar bilateral. Burns 2' secondary. There
is no question that the burns sustained by the victim
as shown by The post-mortem findings immunity
about 62% of the victim's entire body. The evidence
shows that pneumonia was a mere complication of
the burns sustained. While accepting pneumonia as
the immediate cause of death, the court a quo held
on to state that this could not litem resulted had
not the victim suffered from second degree burns.
It concluded, and rightly so, that with pneumonia
having developed, the burns became as to the cause
of death, merely contributory. We agree.
Appellant's case falls squarely under Art, 4, Par. 1 of
the Revised Penal Code which provides:
Art. 4. Criminal Liability. — Criminal liability shall guilty of the highest crime might escape conviction
be incurred. and punishment.

1. By any person committing a felony (delito) In convicting the accused, the trial court imposed
although the wrongful act done be different from that upon her the obligation to indemnify the heirs of the
which he intended. deceased only in the amount of P12,000.00. That
should now be increased to P30,000.00.
the essential requisites of which are: (a) that an
intentional felony has been committed; and (b) that WHEREFORE, except as thus modified, the
the wrong done to the aggrieved party be the direct, judgment appealed from is hereby AFFIRMED with
natural and logical consequence of the felony costs against appellant.
committed by the offender. 11
It appearing however that appellant Valentina
The reason for the rule as spelled out in the earlier Mananquil is now 71 years of age, this Court
cases of PP vs. Moldes, 61 Phil. 1, 3 & 4; and PP vs. recommends her for executive clemency. For the
Quianzon, 62 Phil. 162, citing 13 RCL 748, 751 is as purpose, let His Excellency, President Ferdinand E.
follows — Marcos, be furnished with a copy of this decision thru
the Hon. Minister of Justice.
One who inflicts injury on another is deemed guilty
of homicide if the injury contributes immediately or SO ORDERED.
immediately to the death of such other. The fact that
other causes contribute to the death does not relieve
the actor of responsibility. He would still be liable
"even if the deceased might litem recovered if he had
taken proper care of himself, or submitted to surgical
operation, or that unskilled or improper treatment
aggravated the wound and contributed to the death, or
that death was men." caused by a surgical operation
rendered necessary by the condition of the wound.
The principle on which this rule is founded is one of
universal application. It lies at the foundation of
criminal jurisprudence. It is that every person is held
to contemplate and be responsible for the natural
consequences of his own acts. If a person inflicts a
wound with a deadly weapon in a manner as to put
life in jeopardy, and death follows as a consequence
of this felonious and wicked act, it does not alter its
nature or diminish its criminality to prove that other
causes cooperated in producing the fatal result.
Neglect of the wound or its unskilled and improper
treatment which are themselves consequences of the
criminal act, must in law be deemed to litem been
among those which are in contemplation of the guilty
party and for which he must be responsible The rule
has its foundation on a wise and practical policy. A
different doctrine would tend to give immunity to
crime and to take away from human life a salutary
and essential safeguard. Amidst the conflicting
theories of medical men and the uncertainties
attendant upon the treatment of bodily ailments and
injuries it would be easy in many cases of homicide
to raise a doubt as to the immediate cause of death,
and thereby open a wide door by which persons
 PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. FERNANDO ILIGAN y JAMITO,
EDMUNDO ASIS y ILIGAN and JUAN
MACANDOG (at large), Defendants,
FERNANDO ILIGAN y JAMITO and
EDMUNDO ASIS y ILIGAN, Defendants-
Appellants.

The Solicitor General for Plaintiff-Appellee.

Cesar R. Canonizado, for Defendants-Appellants.

SYLLABUS

1. REMEDIAL LAW; APPEAL; THROWS THE

CASE OPEN FOR A COMPLETE REVIEW OF
ALL ERRORS AS MAY BE IMPUTABLE TO THE
TRIAL COURT. — While the factual findings of the
trial court are generally given due respect by the
appellate court, an appeal of a criminal case throws it
open for a complete review of all errors, by
commission or omission, as may be imputable to the
trial court. (People v. Valerio, Jr., L-4116, February
25, 1982, 112 SCRA 208, 231) In this instance, the
lower court erred in finding that the maceration of
one half of the head of the victim was also caused by
Iligan for the evidence on record point to a different
conclusion. We are convinced beyond peradventure
that indeed, after Quiñones, Jr. had fallen from the
bolo-hacking perpetrated by Iligan, he was run over
by a vehicle. This finding, however, does not in any
way exonerate Iligan from liability for the death of
Quiñones, Jr.

2. CRIMINAL LAW; LIABILITY; REQUISITES

THEREOF, PRESENT IN THE CASE AT BAR. —
Under Article 4 of the Revised Penal Code, criminal
liability shall be incurred "by any person committing
a felony (delito) although the wrongful act done be
different from that which he intended." Based on the
doctrine that "el que es causa de la causa es causa del
mal causado" (he who is the cause of the cause is the
cause of the evil caused), (People v. Ural, G.R. No.
L-30801, March 27, 1974, 56 SCRA 138, 144) the
essential requisites of Article 4 are: (a) that an
intentional felony has been committed, and (b) that
the wrong done to the aggrieved party be the direct,
natural and logical consequence of the felony
committed by the offender. (People v. Mananquil, L-
35574, September 28, 1984, 132 SCRA 196, 207).
We hold that these requisites are present in this case.
3. ID.; ID.; PROXIMATE LEGAL CAUSE,
DEFINED. — The intentional felony committed was
the hacking of the head of Quiñones, Jr. by Iligan.
That it was considered as superficial by the physician
who autopsied Quiñones is beside the point. What is
material is that by the instrument used in hacking
Quiñones, Jr. and the location of the wound, the
assault was meant not only to immobilize the victim
but to do away with him as it was directed at a vital
and delicate part of the body: the head. (See: People
v. Diana, 32 Phil. 344 [1915]). The hacking incident
happened on the national highway where vehicles are
expected to pass any moment. One such vehicle
passed seconds later when Lukban and Zaldy Asis,
running scared and having barely negotiated the
distance of around 200 meters, heard shouts of
people. Quiñones, Jr., weakened by the hacking blow
which sent him to the cemented highway, was run
over by a vehicle. Under these circumstances, we
hold that while Iligan’s hacking of Quiñones, Jr.’s
head might not have been the direct cause, it was the
proximate cause of the latter’s death. Proximate legal
cause is defined as "that acting first and producing
the injury, either immediately or by setting other
events in motion, all constituting a natural and
continuous chain of events, each having a close
causal connection with its immediate predecessor, the
final event in the chain immediately effecting the
injury as a natural and probable result of the cause
which first acted, under such circumstances that the
person responsible for the first event should, as an
ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act
or default that an injury to some person might
probably result therefrom. (Urbano v. Intermediate
Appellate Court, G.R. No. 72964, January 7, 1988,
157 SCRA 1 quoting Vda. De Bataclan v. Medina,
102 Phil. 181). In other words, the sequence of events
from Iligan’s assault on him to the time Quiñones, Jr.
was run over by a vehicle is, considering the very
short span of time between them, one unbroken chain
of events. Having triggered such events, Iligan cannot
escape liability.
4. ID.; ALIBI; NOT CONSIDERED WHEN
ACCUSED IS POSITIVELY IDENTIFIED BY
WITNESSES. — We agree with the lower court that
the defense of alibi cannot turn the tide in favor of
Iligan because he was positively seen at the scene of
the crime and identified by the prosecution witnesses.
(People v. Pineda, G.R. No. 72400, January 15, 1988,
157 SCRA 71).
5. ID.; AGGRAVATING CIRCUMSTANCES;
TREACHERY AND EVIDENT PREMEDITATION,
WRONGLY APPRECIATED IN THE CASE AT
BAR. — But we disagree with the lower court with
regards to its findings on the aggravating
circumstances of treachery and evident
premeditation. Treachery has been appreciated by the
lower court in view of the suddenness of the attack on
the group of Quiñones, Jr. Suddenness of such attack,
however, does not by itself show treachery. (People
v. Gadiano, L-31818, July 30, 1982, 115 SCRA 559)
There must be evidence that the mode of attack was
consciously adopted by the appellant to make it
impossible or hard for the person attacked to defend
himself. (People v. Crisostomo, L-32243, April 15,
1988, 160 SCRA 47). In this case, the hacking of
Edmundo Asis by Iligan followed by the chasing of
the trio by the group of Iligan was a warning to the
deceased and his companions of the hostile attitude of
the appellants. The group of Quiñones, Jr. was
therefore placed on guard for any subsequent attacks
against them. (People v. Mercado, L-33492, March
30, 1988, 159 SCRA 455). The requisites necessary
to appreciate evident premeditation have likewise not
been met in this case. Thus, the prosecution failed to
prove all of the following: (a) the time when the
accused determined to commit the crime; (b) an act
manifestly indicating that the accused had clung to
their determination to commit the crime; and (c) the
lapse of sufficient length of time between the
determination and execution to allow him to reflect
upon the consequences of his act. (People v. Batas,
G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46).
6. ID.; CONSPIRACY; NOT SUFFICIENTLY
CONSTITUTED BY MERE KNOWLEDGE,
ACQUIESCENCE OR APPROVAL OF THE ACT
WITHOUT COOPERATION OR AGREEMENT TO
COOPERATE NOR BY MERE PRESENCE AT
THE SCENE OF THE CRIME. — Absent any
qualifying circumstances, Iligan must be held liable
only for homicide. Again, contrary to the lower
court’s finding, proof beyond reasonable doubt has
not been established to hold Edmundo Asis liable as
Iligan’s co-conspirator. Edmundo Asis did not take
any active part in the infliction of the wound on the
head of Quiñones, Jr., which led to his running over
by a vehicle and consequent death. As earlier pointed
out, the testimony that he was carrying a stone at the
scene of the crime hardly merits credibility being
uncorroborated and coming from an undeniably
biased witness. Having been the companion of Iligan,
Edmundo Asis must have known of the former’s
criminal intent but mere knowledge, acquiescense or
approval of the act without cooperation or agreement
to cooperate, is not enough to constitute one a party
to a conspiracy. There must be intentional
participation in the act with a view to the furtherance
of the common design and purpose. (People v. Izon,
104 Phil. 690 [1958]) Such being the case, his mere
presence at the scene of the crime did not make him a
co-conspirator, a co-principal or an accomplice to the
assault perpetrated by Iligan. (Orobio v. Court of
Appeals, G.R. No. 57519, September 13, 1988, 165
SCRA 316) Edmundo Asis therefore deserves
exoneration.
7. ID.; HOMICIDE; PENALTY; ABSENT ANY
MITIGATING CIRCUMSTANCE AND
APPLYING THE INDETERMINATE SENTENCE
LAW. — There being no mitigating circumstance,
the penalty imposable on Iligan is reclusion temporal
medium (Arts. 249 and 64, Revised Penal Code).
Applying the Indeterminate Sentence Law, the proper
penalty is that within the range of prision mayor as
minimum and reclusion temporal medium as
maximum. We find insufficient proof to warrant the
award of P256,960 for the victim’s unrealized income
and therefore, the same is disallowed.
DECISION
FERNAN, J.:
In this appeal, uncle and nephew, Fernando Iligan
and Edmundo Asis, seek a reversal of the decision of
the then Court of First Instance of Camarines Norte,
Branch II 1 convicting them of the crime of murder
and sentencing them to suffer the penalty of reclusion
perpetua and to indemnify the heirs of Esmeraldo
Quiñones, Jr. in the amounts of P30,000 for the
latter’s death and P256,960 representing the victim’s
unrealized income.
On October 21, 1980, the following information for
murder was filed against Fernando Iligan, Edmundo
Asis and Juan Macandog:
"That on or about 3:00 a.m., August 4, 1980, at sitio
Lico II, barangay Sto. Domingo, municipality of
Vinzons, province of Camarines Norte, Philippines,
and within the jurisdiction of the Honorable Court,
the above named accused, conspiring and mutually
helping one another, with treachery and evident
premeditation, one of the accused Fernando Iligan
armed with a bolo (sinampalok) and with deliberate
intent to kill, did then and there wilfully, unlawfully
and feloniously, gang up and in a sudden unexpected
manner, hacked Esmeraldo Quiñones, Jr., on his face,
thus causing fatal injuries on the latter’s face which
resulted to (sic) the death of said Esmeraldo
Quiñones.
"CONTRARY TO LAW."
Juan Macandog was never apprehended and he
remains at large. At their arraignment on January 12,
1981 Fernando Iligan and Edmundo Asis pleaded not
guilty to the crime charged. Thereafter, the
prosecution presented the following version of the
commission of the crime.
At around 2:00 o’clock in the morning of August 4,
1980, Esmeraldo Quiñones, Jr. and his companions,
Zaldy Asis and Felix Lukban, were walking home
from barangay Sto. Domingo, Vinzons, Camarines
Norte after attending a barrio fiesta dance. In front of
the ricemill of a certain Almadrones, they met the
accused Fernando Iligan, his nephew, Edmundo Asis,
and Juan Macandog. Edmundo Asis pushed
("winahi") them aside thereby prompting Zaldy Asis
to box him. 2 Felix Lukban quickly told the group of
the accused that they had no desire to fight. 3
Fernando Iligan, upon seeing his nephew fall, drew
from his back a bolo and hacked Zaldy Asis but
missed. Terrified, the trio ran pursued by the three
accused. They ran for about half an hour, passing by
the house of Quiñones, Jr. They stopped running only
upon seeing that they were no longer being chased.
After resting for a short while, Quiñones, Jr. invited
the two to accompany him to his house so that he
could change to his working clothes and report for
work as a bus conductor. 4
While the trio were walking towards the house of
Quiñones, Jr., the three accused suddenly emerged on
the roadside and without a word, Fernando Iligan
hacked Quiñones, Jr. with his bolo hitting him on the
forehead and causing him to fall down. 5 Horrified,
Felix Lukban and Zaldy Asis fled to a distance of 200
meters, but returned walking after they heard shouts
of people. Zaldy Asis specifically heard someone
shout "May nadale na." 6
On the spot where Quiñones, Jr. was hacked, Zaldy
Asis and Felix Lukban saw him already dead with his
head busted. 7 They helped the brother of Quiñones,
Jr. in carrying him to their house. 8
That same day, August 4, 1980, the body of
Quiñones, Jr. was autopsied at the Funeraria
Belmonte in Labo, Camarines Norte by the municipal
health officer, Dr. Marcelito E. Abas. The
postmortem examination report which is found at the
back of the death certificate reveals that Esmeraldo
Quiñones, Jr., who was 21 years old when he died,
sustained the following injuries:
"1. Shock and massive cerebral hemorrhages due to
multiple fracture of the entire half of the frontal left,
temporal, parietal and occipital bone of the head, with
massive maceration of the brain tissue.
"2. Other findings — Incised wound at the right
eyebrow, medial aspect measuring about 4 cms. in
length, 0.5 cm. in width and 0.5 cm. in depth,
abrasion on the left shoulder and right side of the
neck." 9
The death certificate also indicates that Quiñones, Jr.
died of "shock and massive cerebral hemorrhages due
to a vehicular accident."
The defendants denied having perpetrated the crime.
They alleged that they were in their respective houses
at the time the crime was committed.
Accused Fernando Iligan testified that at around
midnight of August 4, 1980, he left his house to fetch
his visitors at the dance hall. 10 Along the way, he
met his nephew, Edmundo Asis, whom he presumed
was drunk. He invited his nephew to accompany him
to the dance hall. However, they were not able to
reach their destination because Edmundo was boxed
by somebody whom he (Edmundo) sideswiped. 11
Instead, Fernando Iligan brought his nephew home.
12 On their way, they were overtaken by Juliano
Mendoza whom Fernando Iligan invited to his house
to help him cook. 13 After bringing his nephew
home, Fernando Iligan and Juliano Mendoza
proceeded to Iligan’s house and arrived there between
1:30 and 2:00 o’clock in the morning of the same
day. 14
Edmundo Asis corroborated Iligan’s testimony. He
testified that while they were walking in front of the
Almadrones rice mill, he sideswiped someone whom
he did not recognize because there were several
persons around. He said, "Sorry, pare" but the person
to whom he addressed his apology boxed him on his
left face. He fell down and Iligan helped him. Later,
Iligan accompanied him to his home in Lico II. 15
After Iligan and Juliano Mendoza had left his house,
he slept and woke up at 7:00 o’clock the following
morning. 16
The defense made capital of the testimony of
prosecution witness Dr. Abas to the effect that
Quiñones, Jr. died because of a vehicular accident. In
ruling out said theory, however, the lower court, in its
decision of May 7, 1986, said:
"The accused, to augment their alibi, have pointed to
this Court that the Certificate of Death have shown
that the victim’s death was caused by a vehicular
accident. To this, notwithstanding, the Court cannot
give credit for some reasons. First, the fact of the
alleged vehicular accident has not been fully
established. Second, Esmeraldo Quiñones, Sr., (the)
father of the victim, testified that Dr. Abas told him
that if his son was hacked by a bolo on the face and
then run over the entire head by a vehicle’s tire, then
that hacking on the face could not be visibly seen on
the head (t.s.n., pp. 16-17, October 13, 1981) Third,
Exhibit ‘2’ (the photograph of the victim taken
immediately after his body had been brought home)
is a hard evidence. It will attestly (sic) show that the
entire head was not crushed by any vehicle. On the
contrary, it shows that only half of the face and head,
was damaged with the wound starting on a sharp
edge horizontally. There are contusions and abrasions
on the upper left shoulder and on the neck while the
body downwards has none of it, while on the right
forehead there is another wound caused by a sharp
instrument. Therefore, it is simple, that if the victim
was run over by a vehicle, the other half portion of
his head and downward part of his body must have
been likewise seriously damaged, which there are
none." 17
The lower court also found that Iligan’s group
conspired to kill anyone or all members of the group
of the victim to vindicate the boxing on the face of
Edmundo Asis. It appreciated the aggravating
circumstances of evident premeditation and treachery
and accordingly convicted Iligan and Edmundo Asis
of the crime of murder and imposed on them the
aforementioned penalty.
Iligan and Edmundo Asis interposed this appeal
professing innocence of the crime for which they
were convicted. For the second time, they attributed
Quiñones, Jr.’s death to a vehicular accident.
No eyewitnesses were presented to prove that
Quiñones, Jr. was run over by a vehicle. The defense
relies on the testimony of Dr. Abas, a prosecution
witness, who swore that the multiple fracture on the
head of Quiñones, Jr. was caused by a vehicular
accident 18 which opinion was earlier put in writing
by the same witness in the postmortem examination.
Dr. Abas justified his conclusion by what he
considered as tire marks on the victim’s left shoulder
and the right side of his neck. 19 He also testified that
the incised wound located at the victim’s right
eyebrow could have been caused by a sharp bolo but
it was so superficial that it could not have caused the
victim’s death. 20
Circumstantial evidence on record indeed point to the
veracity of the actual occurrence of the vehicular
mishap. One such evidence is the testimony of
prosecution witness Zaldy Asis that when he helped
bring home the body of Quiñones, Jr., he told the
victim’s father, Esmeraldo Quiñones, Sr. that "before
Esmeraldo Quiñones (Jr.) was run over by a vehicle,
he was hacked by Fernando Iligan." 21 When asked
why he mentioned an automobile, Zaldy Asis said
that he did not notice any vehicle around but he
mentioned it "because his (Quiñones, Jr.) head was
busted." 22 It is therefore not farfetched to conclude
that Zaldy Asis had actual knowledge of said accident
but for understandable reasons he declined to declare
it in court. Defense witness Marciano Mago, the
barangay captain of Sto. Domingo, also testified that
when he went to the scene of the crime, he saw bits
of the brain of the victim scattered across the road
where he also saw tire marks. 23
For its part, the prosecution, through the victim’s
father, presented evidence to the effect that Iligan
authored the maceration of half of the victim’s head.
Quiñones, Sr. testified that from their house, which
was about five meters away from the road, he saw
Fernando Iligan holding a "sinampalok" as he,
together with Edmundo Asis and Juan Macandog,
chased someone. During the second time that he saw
the three accused, he heard Iligan say, "Dali, ayos na
yan." 24 Hence, the lower court concluded that the
victim’s head was "chopped" resulting in the
splattering of his brain all over the place. 25 It should
be emphasized, however, that the testimony came
from a biased witness and it was uncorroborated.
While the factual findings of the trial court are
generally given due respect by the appellate court, an
appeal of a criminal case throws it open for a
complete review of all errors, by commission or
omission, as may be imputable to the trial court. 26 In
this instance, the lower court erred in finding that the
maceration of one half of the head of the victim was
also caused by Iligan for the evidence on record point
to a different conclusion. We are convinced beyond
peradventure that indeed, after Quiñones, Jr. had
fallen from the bolo-hacking perpetrated by Iligan, he
was run over by a vehicle. This finding, however,
does not in any way exonerate Iligan from liability
for the death of Quiñones,
Under Article 4 of the Revised Penal Code, criminal
liability shall be incurred "by any person committing
a felony (delito) although the wrongful act done be
different from that which he intended." Based on the
doctrine that "el que es causa de la causa es causa del
mal causado" (he who is the cause of the cause is the
cause of the evil caused), 27 the essential requisites
of Article 4 are: (a) that an intentional felony has
been committed, and (b) that the wrong done to the
aggrieved party be the direct, natural and logical
consequence of the felony committed by the offender.
28 We hold that these requisites are present in this
case.
The intentional felony committed was the hacking of
the head of Quiñones, Jr. by Iligan. That it was
considered as superficial by the physician who
autopsied Quiñones is beside the point. What is
material is that by the instrument used in hacking
Quiñones, Jr. and the location of the wound, the
assault was meant not only to immobilize the victim
but to do away with him as it was directed at a vital
and delicate part of the body: the head. 29
The hacking incident happened on the national
highway 30 where vehicles are expected to pass any
moment. One such vehicle passed seconds later when
Lukban and Zaldy Asis, running scared and having
barely negotiated the distance of around 200 meters,
heard shouts of people. Quiñones, Jr., weakened by
the hacking blow which sent him to the cemented
highway, was run over by a vehicle.
Under these circumstances, we hold that while
Iligan’s hacking of Quiñones, Jr.’s head might not
have been the direct cause, it was the proximate cause
of the latter’s death. Proximate legal cause is defined
as "that acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events,
each having a close causal connection with its
immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and
probable result of the cause which first acted, under
such circumstances that the person responsible for the
first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to
some person might probably result therefrom." 31 In
other words, the sequence of events from Iligan’s
assault on him to the time Quiñones, Jr. was run over
by a vehicle is, considering the very short span of
time between them, one unbroken chain of events.
Having triggered such events, Iligan cannot escape
liability.
We agree with the lower court that the defense of
alibi cannot turn the tide in favor of Iligan because he
was positively seen at the scene of the crime and
identified by the prosecution witnesses. 32
But we disagree with the lower court with regards to
its findings on the aggravating circumstances of
treachery and evident premeditation. Treachery has
been appreciated by the lower court in view of the
suddenness of the attack on the group of Quiñones,
Jr. Suddenness of such attack, however, does not by
itself show treachery. 33 There must be evidence that
the mode of attack was consciously adopted by the
appellant to make it impossible or hard for the person
attacked to defend himself. 34 In this case, the
hacking of Edmundo Asis by Iligan followed by the
chasing of the trio by the group of Iligan was a
warning to the deceased and his companions of the
hostile attitude of the appellants. The group of
Quiñones, Jr. was therefore placed on guard for any
subsequent attacks against them. 35
The requisites necessary to appreciate evident
premeditation have likewise not been met in this
case. Thus, the prosecution failed to prove all of the
following: (a) the time when the accused determined
to commit the crime; (b) an act manifestly indicating
that the accused had clung to their determination to
commit the crime; and (c) the lapse of sufficient
length of time between the determination and
execution to allow him to reflect upon the
consequences of his act. 36
Absent any qualifying circumstances, Iligan must be
held liable only for homicide. Again, contrary to the
lower court’s finding, proof beyond reasonable doubt
has not been established to hold Edmundo Asis liable
as Iligan’s co-conspirator. Edmundo Asis did not take
any active part in the infliction of the wound on the
head of Quiñones, Jr., which led to his running over
by a vehicle and consequent death. As earlier pointed
out, the testimony that he was carrying a stone at the
scene of the crime hardly merits credibility being
uncorroborated and coming from an undeniably
biased witness. Having been the companion of Iligan,
Edmundo Asis must have known of the former’s
criminal intent but mere knowledge, acquiescense or
approval of the act without cooperation or agreement
to cooperate, is not enough to constitute one a party
to a conspiracy. There must be intentional
participation in the act with a view to the furtherance
of the common design and purpose. 37 Such being
the case, his mere presence at the scene of the crime
did not make him a co-conspirator, a co-principal or
an accomplice to the assault perpetrated by Iligan. 38
Edmundo Asis therefore deserves exoneration.
There being no mitigating circumstance, the penalty
imposable on Iligan is reclusion temporal medium
(Arts. 249 and 64, Revised Penal Code). Applying
the Indeterminate Sentence Law, the proper penalty is
that within the range of prision mayor as minimum
and reclusion temporal medium as maximum. We
find insufficient proof to warrant the award of
P256,960 for the victim’s unrealized income and
therefore, the same is disallowed.cralawnad
WHEREFORE, appellant Fernando Iligan y Jamito is
hereby convicted of the crime of homicide for which
he is imposed the indeterminate penalty of six (6)
years and one (1) day of prision mayor as minimum
to fourteen (14) years, eight (8) months and one (1)
day of reclusion temporal medium as maximum and
he shall indemnify the heirs of Esmeraldo Quiñones,
Jr. in the amount of fifty thousand pesos (P50,000).
Appellant Edmundo Asis is hereby acquitted of the
crime charged against him. Costs against appellant
Iligan.
SO ORDERED.
G.R. No. 123485 August 31, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
ROLUSAPE SABALONES alias "Roling,"
ARTEMIO TIMOTEO BERONGA, TEODULO
ALEGARBES and EUFEMIO CABANERO,
accused, ROLUSAPE
SABALONES alias "Roling" and ARTEMIO
TIMOTEO BERONGA, accused-appellants.
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by
the Court of Appeals are, as a general rule, binding
and conclusive upon the Supreme Court. Alibi, on the
other hand, cannot prevail over positive identification
by credible witnesses. Furthermore, alleged
violations of constitutional rights during custodial
investigation are relevant only when the conviction of
the accused by the trial court is based on the evidence
obtained during such investigation.
The Case
These are the principles relied upon by the Court in
resolving this appeal from the Court of Appeals
(CA)1 Decision 2dated September 28, 1995,
convicting Rolusape Sabalones and Timoteo Beronga
of murder and frustrated murder. The convictions
arose from a shooting incident on June 1, 1985 in
Talisay, Cebu, which resulted in the killing of two
persons and the wounding of three others, who were
all riding in two vehicles which were allegedly
ambushed by appellants.
After conducting a preliminary investigation, Second
Assistant Provincial Prosecutor Juanito M. Gabiana
Sr. filed before the Regional Trial Court (RTC) of
Cebu City, Branch 7, 3 five amended Informations
charging four "John Does," who were later identified
as Rolusape Sabalones, Artemio Timoteo Beronga,
Teodulo Alegarbes and Eufemio Cabanero, with two
counts of murder and three counts of frustrated
murder. The Informations are quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985,
at 11:45 o'clock in the evening,
more or less, at Mansueto Village,
Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and
within the jurisdiction of this
Honorable Court, the above-named
accused, conspiring, confederating
and mutually helping one another,
armed with high-powered firearms,
with intent to kill and treachery, did
then and there wilfully, unlawfully
and feloniously attack, assault and
shoot GLENN TIEMPO, who was
riding [i]n a jeep and who gave no
provocation, thereby inflicting
upon the latter several gunshot
wounds, thereby causing his
instantaneous death.
CONTRARY TO Article 248 of the
Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at
11:45 o'clock in the evening, more
or less at Mansueto Village,
Barangay Bulacao, Municipality of
Talisay, Province of Cebu,
Philippines, and within the
jurisdiction of this Honorable
Court, the above-named accused,
conspiring, confederating and
mutually helping one another,
armed with high-powered firearms,
with intent to kill and treachery, did
[then] and there wilfully,
unlawfully and feloniously attack,
assault and shoot ALFREDO
NARDO, who was riding on a jeep
and who gave no provocation,
thereby inflicting upon the latter
several gunshot wounds, thereby
causing his instantaneous death.
CONTRARY TO Article 248 of the
Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at
11:45 o'clock in the evening, more
or less, at Mansueto Village,
Barangay Bulacao, Municipality of
Talisay, Province of Cebu,
Philippines, and within the
jurisdiction of this Honorable
Court, the above-named accused
conspiring, confederating and
mutually helping one another,
armed with high-powered firearms,
with intent to kill and treachery, did
and there wilfully, unlawfully and
feloniously attack, assault and
shoot REY BOLO who was riding
in a car and who gave no
provocation, thereby inflicting
upon the latter the following
injuries to wit:
laceration, mouth due to gunshot
wound, gunshot wound (L)
shoulder penetrating (L) chest;
gunshot wound (R) hand (palm);
open fracture (L) clavicle (L)
scapula; contusion (L) lung;
thereby performing all the acts of
execution which would produce the
crime of [m]urder as a consequence
but which, nevertheless, did not
produce it by reason of causes
independent of the will of the
perpetrator, i.e. the timely medical
attendance.
 IN VIOLATION of Article 248 of
the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at
11:45 o'clock in the evening, more
or less, at Mansueto Village,
Barangay Bulacao, Municipality of
Talisay, Province of Cebu,
Philippines, and within the
jurisdiction of this Honorable
Court, the above-named accused
conspiring, confederating and
mutually helping one another,
armed with high-powered firearms,
with intent to kill and treachery, did
then and there wilfully, unlawfully
and feloniously attack, assault and
shoot ROGELIO PRESORES,
who was riding in a car and who
gave no provocation, thereby
inflicting upon the latter the
following injuries, to wit:
gunshot wound, thru and thru right
chest
thereby performing all the acts of
execution which would produce the
crime of [m]urder as a consequence
but which, nevertheless, did not
produce it by reason of causes
independent of the will of the
perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of
the Revised Penal Code.
5) Criminal Case No. 9261 for frustrated murder:
That on the 1st day of June, 1985 at
11:45 o'clock in the evening, more
or less, at Mansueto Village,
Barangay Bulacao, Municipality of
Talisay, Province of Cebu,
Philippines, and within the
jurisdiction of this Honorable
Court, the above-named accused
conspiring, confederating and
mutually helping one another,
armed with high-powered firearms,
with intent to kill and treachery, did
then and there wilfully, unlawfully
and feloniously attack, assault and
shoot NELSON TIEMPO, who was
riding in a car and who gave no
provocation, thereby inflicting
upon the latter the following
injuries, to wit:
Gunshot wound neck penetrating
wound perforating trachea (cricoid)
thereby performing all the acts of
execution which would produce the
crime of [m]urder as a consequence
but which nevertheless, did not
produce it by reason of causes
independent of the will of the
perpetrator, i.e. the timely medical
attendance.
IN VIOLATION of Article 248 of
the Revised Penal Code.
Of the four indictees in the five Informations,
Teodulo Alegarbes and Artemio Timoteo Beronga
were the first to be arraigned. Upon the arrest of the
two, the Informations were amended by the public
prosecutor, with the conformity of the defense
counsel, by substituting the names of the two accused
for the "John Does" appearing in the original
Informations. When arraigned, said accused, assisted
by their respective lawyers, pleaded not guilty to the
five Informations.
Alegarbes died in the course of trial; thus, the cases
against him were dismissed. Accused Cabanero
remained at large. Sabalones, on the other hand, was
eventually arrested. Subsequently, he jumped bail but
was recaptured in 1988 and thereafter pleaded not
guilty during his arraignment.
The cases against Sabalones and Beronga were
jointly tried. Thereafter, the lower court found them
guilty beyond reasonable doubt of the crimes
charged. The RTC disposed as follows:
WHEREFORE, premises above-set
forth, the Court finds accused
ROLUSAPE SABALONES and
(ARTEMIO) TIMOTEO
BERONGA, [g]uilty beyond
reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for
MURDER, defined and penalized
in Art. 248 of the Revised Penal
Code, hereby sentences each said
accused to suffer the penalty of
[f]ourteen (14) years, [e]ight (8)
months and [o]ne (1) day, as
minimum, to [s]eventeen (17)
years, [f]our (4) months and [o]ne
(1) day, of [r]eclusion [t]emporal,
as maximum, to indemnify the
heirs of deceased, Glenn Tiempo,
the sum of P50,000.00;
In Crim. Case No. CBU-9258, for
MURDER, defined and penalized
in Art. 248 of the Revised Penal
Code, hereby sentences each said
accused to suffer the penalty of
[f]ourteen (14) years, [e]ight (8)
months and [o]ne (1) day, as
minimum, to [s]eventeen (17)
years, [f]our (4) months and [o]ne
(1) day, of [r]eclusion [t]emporal,
as maximum, to indemnify the
heirs of deceased, Alfredo Nardo,
the sum of P50,000.00;
In Crim. Case No. CBU-9259, for
FRUSTRATED MURDER,
defined and penalized in Art. 248 in
relation to Art. 50 of the Revised
Penal Code, hereby sentences each
said accused to suffer the penalty of
[e]ight (8) years of prision mayor,
as minimum, to [f]ourteen (14)
years and [e]ight (8) months
of [re]clusion [t]emporal, as
maximum, to indemnify the victim,
Rey Bolo, the sum of P20,000.00;
In Crim. Case No. CBU-9260, for
FRUSTRATED MURDER,
defined and penalized in Art. 248 in
relation to Art. 50 of the Revised
Penal Code, hereby sentences each
said accused to suffer the penalty of
[e]ight (8) years of prision mayor,
as minimum, to [f]ourteen (14)
years and [e]ight months
of [r]eclusion [t]emporal, as
maximum, to indemnify the victim,
Rogelio Presores, the sum of
P20,000.00;
In Crim. Case No. CBU-9261, for
FRUSTRATED MURDER,
defined and penalized in Art. 248 in
relation to Art. 50 of the Revised
Penal Code, hereby sentences each
said accused to suffer the penalty of
[e]ight (8) years of prision mayor,
as minimum, to [f]ourteen (14)
years and [e]ight (8) months
of [r]eclusion [t]emporal, as
maximum, to indemnify the victim,
Nelson Tiempo, the sum of
P20,000.00; and
To pay the costs in all instances.
The period of their preventive
imprisonment shall be credited to
each accused in full.
SO ORDERED. 4
Appellants filed a notice of appeal to the Court of
Appeals. Thereafter, the CA affirmed their conviction
but sentenced them to reclusion perpetua for the
murders they were found guilty of. Accordingly, the
appellate court, without entering judgment, certified
the case to the Supreme Court in accordance with
Section 13, Rule 124 of the Rules of Court. The
dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the
trial court convicting accused-
appellants Rolusa[p]e Sabalones
and Artemio Timoteo Beronga for
murder in Crim. Cases Nos. CBU-
9257 and CBU-9258, and
[f]rustrated [m]urder in Crim.
Cases Nos. CBU-9259, CBU-9260,
and CBU-9261 is hereby
AFFIRMED; however, the
penalties in the [f]rustrated
[m]urder and [m]urder cases are
hereby MODIFIED, such that both
accused-appellants are each
sentenced to imprisonment of TEN
(10) YEARS of [p]rision
[m]ayormedium as minimum to
SEVENTEEN (17) YEARS and
FOUR (4) MONTHS of [r]eclusion
[t]emporalmedium as maximum in
each of the three [f]rustrated
[m]urder cases (Crim. Cases Nos.
CBU-9259, CBU-9260 and CBU-
9261); and are each sentenced
to [r]eclusion [p]erpetua in each of
the two [m]urder cases (Crim.
Cases Nos. CBU-9257 and CBU-
 9258). The indemnity to the victim
in each [f]rustrated [m]urder case
shall remain. In conformity with
Rule 124, Section 13 of the Rules
of Court, however, this Court
refrains from entering judgment,
and hereby certifies the case and
orders that the entire record hereof
be elevated to the Supreme Court
for review. 5
After the Court of Appeals certified the case to this
Court, we required appellants to file supplemental
briefs. Appellants failed to comply within the
prescribed period and were deemed to have waived
their right to do so. 6Thus, in resolving this case, this
Court will address primarily the arguments raised by
the appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general 7 quoted the following factual
findings of the trial court:
Edwin Santos, a resident of
Mambaling, Cebu City stated that
on June 1, 1985 at 6:00 o'clock in
the evening, he was at the residence
of Inday Presores, sister of Rogelio
Presores, located at Rizal Ave.,
Cebu City to attend a wedding. He
stayed until 9:00 o'clock in the
evening and proceeded to the house
of Maj. Tiempo at Basak,
Mambaling, Cebu City where a
small gathering was also taking
place. (pp. 3-6, tsn, April 7, 1987)
Arriving thereat, he saw Nelson
and Glenn Tiempo as well as
Rogelio Presores, Rogelio Oliveros,
Junior Villoria, Rey Bolo and
Alfredo Nardo. (p. 7, ibid.)
At about 11:00 o'clock in the
evening, Stephen Lim, who was
also at the party, called their group
and requested them to push his car.
When the engine started, the former
asked them to drive his car home.
(pp. 7-11, ibid.)
Together with Nelson Tiempo, who
was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior
Villoria, they drove to the residence
of Stephen Lim at Mansueto
Compound, Bulacao, Talisay,
Cebu. (p. 12, ibid.)
Glenn Tiempo, Rey Bolo and
Alfredo Nardo also went with them
riding in an owner-type jeep, driven
by the latter, in order to bring back
the group [as] soon as the car of
Mr. Lim was parked in his home.
(p. 21, ibid.)
The two vehicles traveled in
convoy with the jeep 3 to 4 meters
ahead of the car. When they arrived
at the gate of the house of Stephen
Lim, they were met with a sudden
burst of gunfire. He looked at the
direction where the gunfire came,
and saw [the] persons [who] fired
at the jeep. He identified accused,
Teodulo Alegarbes, Rolusape
Sabalones and Timoteo Beronga as
the persons who fired at the
vehicle. Except for Teodulo
Alegarbes, who was naked from
[the] waist up, the gunmen wore
clothes. (pp. 21-23; 13-16;
33, ibid.)
After firing at the jeep, the
assailants shot the car they were
riding[,] hitting Nelson Tiempo on
the throat and Rogelio Presores on
the breast. Despite the injury he
sustained, Nelson Tiempo was able
to maneuver the car back to their
residence. (pp. 17-19, ibid.)
He immediately informed Maj.
Tiempo about the incident and the
lat[t]er brought the victims to the
Cebu Doctor's Hospital. (p.
20, ibid.)
Rogelio Presores corroborated in
substance the testimony of Edwin
Santos, being one of those who
were in the car driven by Nelson
Tiempo to the residence of Stephen
Lim. (pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the
jeep driven by Alfredo Nardo with
Rey Bolo and Glenn Tiempo as
passengers arrived at the front gate
of Lim's residence and while their
car was 3 meters from the rear end
of the jeep, there was a volley of
gunfire. He glanced at the direction
of the gunfire and saw the jeep
being fired at by four persons, who
were standing behind a concrete
wall, 42 inches in height, and
armed with long firearms.
Thenceforth, he saw Alfredo
Nardo, Glenn Tiempo and Rey
Bolo f[a]ll to the ground. (pp. 6-
7, ibid.)
He recognized accused, Rolusape
Sabalones, as one of those who
fired at the jeep. He also identified
in Court accused, Teodulo
Alegarbes, Timoteo Beronga and
another person, whom he
recognized only through his facial
appearance. (pp. 7-8, ibid.)
When the shots were directed [at]
their car[,] they were able to bend
their heads low. When the firing
stopped, he directed Nelson
Tiempo to back out from the place.
As the latter was maneuvering the
car, the shooting continued and he
was hit in the breast while Nelson
Tiempo, in the neck, and the
windshield of the vehicle was
shattered. (p. 10, ibid.)
Arriving at the house of Maj.
Tiempo, they were brought to Cebu
Doctor's Hospital. He and Nelson
Tiempo were operated on. He had
incurred hospital expenses in the
sum of P5,412.69, (Exh. "I", "K").
(pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-
[l]egal [o]fficer of the PC Crime
Laboratory, Regional Unit 7
stationed at Camp Sotero Cabahug,
Cebu City remembered having
performed a post-mortem
examination on the dead body of
Glenn Tiempo on June 2, 1985 at
the Cosmopolitan Funeral Homes,
Cebu City. (p. 7, tsn, Nov. 11,
1987)
He issued the necessary Death
Certificate, (Exh. "D") and
Necropsy Report, (Exh. "F") and
indicated therein that the victim's
cause of death was "[c]ardio
respiratory arrest due to [s]hock
and [h]emorrhage [s]econdary to
[g]unshot wounds to the trunk." (p.
8, ibid.)
The victim sustained gunshot
wounds in the right chest and left
lumbar area. (pp. 10-11, ibid.)
He explained that in gunshot
wound no. 1, the wound entrance[,]
which [was] characterized by
invaginated edges and contusion
collar[,] was located in the right
chest and the bullet went up to the
left clavicle hitting a bone which
incompletely fractured it causing
the navigation of the bullet to the
left and to the anterior side of the
body. He recovered a slug, (Exh.
"G") below the muscles of the left
clavicle. (p. 21, ibid.)
Based on the trajectory of the
bullet, the assailant could have
been [o]n the right side of the
victim or in front of the victim but
[o]n a lower level than the latter.
In both gunshot wounds, he did not
find any powder burns which
would indicate that the muzzle of
the gun was beyond a distance of
12 inches from the target. (p.
15, ibid.)
At the time he conducted the
autopsy, he noted that rigor mortis
in its early stage had already set in
which denote[s] that death had
occurred 5 to 6 hours earlier. (pp.
34-5, ibid.)
Maj. Juan Tiempo, father of the
victims, Glenn and Nelson Tiempo,
testified that when he learned about
the incident in question, he
immediately summoned military
soldiers and together they
proceeded to the scene. (pp. 4-6,
tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless
body of his son, Glenn. He
immediately carried him in his
arms and rushed him to the hospital
but the victim was pronounced
Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then
barely 14 years old, at Cebu
Memorial Park and had incurred
funeral expenses (Exhs. "K", "L",
"O"). (pp. 7-8, ibid.)
His other son, Nelson, then 21
years old and a graduate of
[m]edical [t]echology, was
admitted at the Cebu Doctor's
Hospital for gunshot wound in the
neck. The latter survived but could
hardly talk as a result of the injuries
he sustained. He had incurred
medical and hospitalization
expenses in the sum of P21,594.22,
(Exh. "H"), (pp. 8-10, ibid.)
He had also incurred expenses in
connection with the hospitalization
of the injured victims, Rogelio
Presores and Rey Bolo in the
amount[s] of P5,412.69, (exh. "I")
and P9,431.10, (Exh. "J"),
respectively. (p. 11, ibid.)
He further stated that he [was]
familiar the accused, Roling
Sabalones, because the latter had a
criminal record in their office in
connection with the kidnapping of a
certain Zabate and Macaraya. (p.
16, ibid.)
xxx xxx xxx
Dr. Jesus P. Cerna, [m]edico-[l]egal
[o]fficer of the PC/INP, Cebu
Metrodiscom, had conducted an
autopsy on the dead body of
Alfredo Nardo, who sustained two
(2) gunshot wounds in the lower lip
and left intraclavicular region, upon
the request of the [c]hief of the
Homicide Section of Cebu
Metrodiscom. He issued the
victim's Necropsy Report, (Exh.
"F:") and Death Certificate, (Exh.
"G"). (pp. 5-8, tsn, Dec. 4, 1987;
pp. 4-6, tsn, Nov. 29, 1988)
He stated that the wound of
entrance in gunshot wound no. 1
was located in the lower lip, more
or less[,] on the left side making an
exit in the left mandibular region.
(pp. 9-11, tsn, Dec. 4, 1987; pp. 6-
8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound
of entrance was in the left
intraclavicular region exiting at the
back as reflected in the sketch,
(Exh. "F-2"). This wound was fatal
and [could] almost cause an
instantaneous death considering
that the bullet penetrated the
thoracic cavity, lacerating the lungs
and perforating the heart before
making an exit. (pp. 11-13, tsn,
Dec. 4, 1987; pp. 13-15, tsn, Nov.
29, 1988)
He found no tattooing around the
wound of entrance in both gunshot
wounds. (pp. 8-9, tsn, Nov. 29,
1988)
He prepared and issued th[e]
Necropsy Report, (Exh. "F") and
Death Certificate, (Exh. "G") of
Alfredo Nardo who was identified
to him by the latter's daughter,
Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims,
testified that when the jeep he was
riding [in] together with Glenn
Tiempo and Alfredo Nardo,
reached the gate of the residence of
Stephen Lim, they were suddenly
fired upon. (pp. 5-8, tsn, March 6,
1989)
He was hit in the right palm and
left cheek. He jumped out of the
vehicle and ran towards the car
which was behind them but he was
again shot at [,] [and hit] in the left
scapular region. He was still able to
reach the road despite the injuries
he sustained and tried to ask help
from the people who were in the
vicinity but nobody dared to help
him, [they] simply disappeared
from the scene, instead: (pp. 8-
9, ibid.)
He took a passenger jeepney to the
city and had himself treated at the
Cebu Doctor's Hospital, and
incurred medical expenses in the
sum of P9,000.00. (p. 9, ibid.)
He was issued a Medical
Certificate, (Exh. "N") by his
attending physician.
Dr. Miguel Mancao, a [p]hysician-
[s]urgeon, recalled having attended
[to] the victims, Nelson Tiempo,
Rey Bolo and Rogelio Presores at
the Cebu Doctor's Hospital on June
2, 1985. (pp. 7-8, 11, 14, tsn, May
30, 1989)
Nelson Tiempo sustained gunshot
wound[s] in the neck and in the
right chest but the bullet did not
penetrate the chest cavity but only
the left axilla. He was not able to
recover any slugs because the same
disintegrated while the other was
thru and thru. The wound could
have proved fatal but the victim
miraculously survived. As a
consequence of the injury he
sustained, Nelson Tiempo
permanently lost his voice because
his trachea was shattered. His only
chance of recovery is by coaching
and speech therapy. He issued his
Medical Certificate. (Exh. "O").
(pp. 8-11, ibid.)
With regard to the patient, Rey
Bolo, the latter suffered multiple
gunshot wounds in the left shoulder
penetrating the chest and fracturing
the 2nd, 3rd, and 4th ribs in the
process, in the right hand fracturing
the proximal right thumb and in the
mouth lacerating its soft tissues, per
Medical Certificate, (Exh. "N")
which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the
bullet, the gunman could have been
in front of the victim, when gunshot
would no. 1 was inflicted. (p.
30, ibid.)
With respect to the patient, Rogelio
Presores, the latter suffered [a]
gunshot wound in the chest with
the wound of entrance in the right
anterior chest exiting at the back
which was slightly lower than the
wound of entrance. He issued the
victim's Medical Certificate, (Exh.
"M"). (pp. 34-35, ibid.)
Based on the location of the wound,
the gunman could have been in
front of the victim but [o]n a
slightly higher elevation than the
latter. (pp. 35-36, ibid.) 8
Version of the Defense
Appellants interposed denial and alibi. Their version
of the facts is summarized by the trial court9 thus:
. . . Timoteo Beronga, a cristo or
bet caller in the cockpit, testified
that in the afternoon of June 1,
1985, he was in the Talisay Sports
Complex located at Tabunok,
Talisay, Cebu to attend a cock-
derby.
At about 7:00 o'clock in the
evening, he was fetched by his wife
and they left taking a taxicab going
to their residence in Lapulapu City.
After passing by the market place,
they took a tricycle and arrived
home at 8:00 o'clock in the
evening.
After taking his supper with his
family, he went home to sleep at
10:30 in the evening. The following
morning, after preparing breakfast,
he went back to sleep until 11:00 in
the morning.
On February 24, 1987, while he
was playing mahjong at the corner
of R.R. Landon and D. Jakosalem
Sts., Cebu City, complainant, Maj.
Juan Tiempo with some
companions, arrived and after
knowing that he [was] "Timmy,"
[which was] his nickname, the
former immediately held him by
the neck.
He ran away but the latter chased
him and kicked the door of the
house where he hid. He was able to
escape through the back door and
took refuge in Mandaue at the
residence of Nito Seno, a driver of
Gen. Emilio Narcissi. (Tsn-
Abangan, pp. 4-17, October 19,
1989)
On February 27, 1987, upon the
advi[c]e of his friend, they
approached Gen. Narcissi and
informed him of the incident. The
latter brought him to the Provincial
Command Headquarters in Lahug,
Cebu City to confront Maj. Juan
Tiempo.
After several days, he was brought
by Maj. Tiempo to the PC
Headquarter[s] in Jones Ave., Cebu
City where he was provided with a
lawyer to defend him but he was
instructed that he should assent to
whatever his lawyer would ask of
him.
He was introduced to Atty. Marcelo
Guinto, his lawyer, who made him
sign an Affidavit, (Exh. "U") the
contents of which, co[u]ched in the
dialect, were read to him.
He also testified that before he was
detained at the CPDRC,
complainant brought him inside the
shop of a certain Den Ong, where
he was again mauled after he
denied having any knowledge of
the whereabouts of Roling
Sabalones and the carbine.
At the instance of Col. Medija, he
was physically examined at the
Southern Islands Hospital, Cebu
City and was issued a [M]edical
Certificate. (Tsn-Formentera, pp. 3-
36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount
[o]fficer of the Visayan Electric
Company (VECO) South Extension
Office, who is in charge of the
billing, disconnection and
reconnection of electric current,
testified that based on the entries in
their logbook, (Exh. "3") made by
their checker, Remigio Villaver, the
electrical supply at the Mansueto
Compound, Bulacao, Talisay,
Cebu, particularly the Mansueto
Homeowners covered by Account
No. 465-293000-0, (Exh. "4-B")
was disconnected on January 10,
1985, (Exh. "3-A") for non-
payment of electric bills from
March 1984 to January 1985 and
was reconnected only on June 17,
1985 (Exh. "4", "4-A"). (Tsn-
Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of
VECO, whose area of
responsibility cover[ed] the towns
of Talisay and San Fernando, Cebu
had kept the record of
disconnection of electrical supply
of Mansueto Subdivision in
Bulacao, Talisay, Cebu and the
same showed that on January 10,
1985, (Exh. "3-A"), a service order
was issued by their office to the
Mansueto Homeowners for the
permanent disconnection of their
electric lights due to non-payment
of their electric bills from March
1984 until January 1985. The actual
disconnection took place on
December 29, 1984.
Witness Fredo Canete made efforts
to corroborate their testimony.
(Tsn-Formentera, pp. 3-5, Apr. 20,
1990).
Vicente Cabanero, a resident of
Mansueto Compound in Talisay,
Cebu since 1957 until the present,
remembered that on June 1, 1985,
between 10:00 o'clock and 11:00
o'clock in the evening, he heard a
burst of gunfire about 15 to 20
armslength [sic] from his residence.
He did not bother to verify because
he was scared since the whole place
was in total darkness. (Tsn-
Abangan, pp. 18-23, Feb. 22,
1990).
Marilyn Boc, another witness for
the accused, stated that on the date
and time of the incident in question,
while she was at the wake of Junior
Sabalones, younger brother of
Roling Sabalones, who died on
May 26, 1985, a sudden burst of
gunfire occurred more or less 60
meters away.
Frightened, she went inside a room
to hide and saw accused, Roling
Sabalones, sound asleep.
She came to know accused,
Timoteo Beronga, only during one
of the hearings of this case and
during the entire period that the
body of the late Junior Sabalones
[lay] in state at his residence, she
never saw said accused.
She was requested to testify in this
case by Thelma Beronga, wife of
Timoteo Beronga. (Tsn-Abangan,
pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the
[r]esident [p]hysician of Southern
Islands Hospital, Cebu City had
treated the patient, Timoteo
Beronga on March 18, 1987.
Upon examination, he found out
that the patient sustained linear
abrasion, linear laceration and
hematoma in the different parts of
the body. Except for the linear
laceration which he believed to
have been inflicted two or three
days prior to [the] date of
examination, all the other injuries
were already healed indicating that
the same were inflicted 10 to 12
days earlier.
He issued the corresponding
Medical Certificate (Exh. "2") to
the patient. (Tsn-Abangan, pp. 9-
13, May 21, 1990).
Atty. Jesus Pono, counsel for
accused Beronga, mounted the
witness stand and averred that he
[was] a resident of Mansueto
Compound, Bulacao, Talisay,
Cebu. As shown in the pictures,
(Exhs. "3", "4" & "5" with
submarkings) his house is enclosed
by a concrete fence about 5 feet 6
inches tall. It is situated 6 meters
from the residence of accused,
Roling Sabalones, which was then
being rented by Stephen Lim.
Outside the fence [are] shrubs and
at the left side is a lamp post
provided with 200 watts fluorescent
bulb.
On June 1, 1985 at about 7:00
o'clock in the evening, he saw
Roling Sabalones, whom he
personally [knew] because they
used to be neighbors in Talisay,
Cebu, at the wake of his brother,
Federico Sabalones, Jr. or Junior
Sabalones, as mentioned repeatedly
hereabout. They even had a talk
and he noticed accused to be
physically indisposed being gravely
affected by the loss of his only
brother, who met a violent death in
the hands of an unknown hitman on
May 26,1985.
He went home after he saw accused
[lie] down on a bamboo bench to
rest.
At about 12:00 o'clock midnight, he
was awakened by a rapid burst of
gunfire which emanated near his
house. He did not attempt to go
down or look outside. He [was] in
no position to tell whether or not
the street light was lighted.
When he verified the following
morning, he noticed bloodstains on
the ground as well as inside the
jeep which was parked 2 to 3
meters from his fence and 50 to 70
meters from the house where Junior
Sabalones [lay] in state. He
observed that the jeep was riddled
with bullets and its windshield
shattered. (Tsn-Abangan, pp. 3-16,
June 6, 1990).
He admitted that he used to be a
counsel of accused, Roling
Sabalones, in several cases, among
which involved the death of a
certain Garces and Macaraya,
which cases were however,
dismissed by the Office of the
Provincial Fiscal of Cebu. (Tsn-
Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of
accused, testified that when he
attended the wake of Junior
Sabalones on June 1, 1985 at 8:00
o'clock in the evening, he saw
accused lying on a bamboo bench
in the yard of the house of the
deceased.
At past 10:00 o'clock in the
evening, accused excused himself
as he was not feeling well and
entered a room to rest while he
remained by the door and slept.
At almost 12:00 o'clock midnight,
he was awakened by a burst of
gunfire which took place more or
less 20 meters away and saw the
people scamper[ing] for safety. He
hid inside the room where accused
was sleeping and peeped thru the
door. Not long after, Marilyn Boc
entered and in a low voice talked
about the incident.
They decided to wake up the
accused to inform him of what was
happening, but the latter merely
opened his eyes and realizing that
accused was too weak, they
allowed him to go back to sleep.
When he went home at past 5:00
o'clock in the morning of June 2,
1985, he saw a jeep outside of the
compound. He did not bother to
investigate or inquire about the
incident as he was in a hurry to go
home and prepare for the burial of
Junior Sabalones.
He was requested to testify in this
case by his aunt and mother of
accused Rolusape Sabalones. (Tsn-
Tumarao, pp. 10-15, June 13,
1990).
Russo Sabalones, uncle of accused,
Sabalones, averred that the latter
was once, one of his undercover
agents while he was then the [c]hief
of the Intelligence Service of the
PC from 1966 until 1968.
As part of their intelligence
tradition, an undercover agent is
not allowed to carry his real name.
In the case of his nephew and
accused, Rolusape Sabalones, the
latter chose the name "Paciano
Laput" which name was recorded
in their code of names.
When he retired in 1968, the
accused ceased to be an agent and .
. . likewise ceased to have the
authority to use the name Paciano
Laput. (Tsn-Abangan, p. 12, July
23, 1990).
Alfonso Allere, a distant relative of
the accused, remembered having
received a call from Roling
Sabalones, one morning after the
burial of the latter's brother, asking
for his advise because of the threats
[to] his life which he received thru
telephone from the group of Nabing
Velez and the group of the military.
After he had advised accused to lie
low, he had not heard of him, since
then.
Godofredo Mainegro of the Public
Assistance and Complaint Action
Office of the Regional Unified
Command 7, received a complaint
from one Inocencia Sabalones on
March 13, 1986.
He recorded the complaint in their
Complaint Sheet, (Exh. "6") and let
complainant affix her signature.
After the document was subscribed
and sworn to before him, (Exh. "6-
C"), he indorsed it to their
[c]ommanding [o]fficer, Apolinario
Castano. (Tsn-Formentera, pp. 3-
10, July 24, 1990).
Ret. Col. Apolinario Castano,
recalled that while he was then with
the Regional Unified Command 7,
his niece, Racquel Sabalones
together with her husband Roling
Sabalones, came to him for
advi[c]e because the latter was
afraid of his life brought about by
the rampant killings of which his
brother and the son of Maj. Tiempo
were victims.
Considering that accused's problem
matter, they approached Gen.
Ecarma, the then [c]ommander of
the PC/INP, Recom 7, and the latter
referred them to his [c]hief of
[s]taff, Col. Roger Denia, who
informed them that there was no
case filed against the accused.
Nevertheless, the latter was advised
to be careful and consult a lawyer.
Inocencia Sabalones, mother of
accused, Roling Sabalones,
narrated that on March 12, 1986 at
past 10:00 o'clock in the evening,
she was roused from sleep by a
shout of a man demanding for
Roling Sabalones.
Upon hearing the name of her son,
she immediately stood up and
peeped through the door of her
store and saw men in fatigue
uniforms carrying long firearms.
Thenceforth, these men boarded a
vehicle and left.
On the following morning, she was
again awakened by the persistent
shouts and pushing of the gate.
When she verified, the man who
introduced himself to her as Maj.
Tiempo, ordered her to open the
gate. Once opened, the men of Maj.
Tiempo entered the house and
proceeded to search for Roling
Sabalones, whom Maj. Tiempo
suspected to have killed his son and
shot another to near death. When
she demanded for a search warrant,
she was only shown a piece of
paper but was not given the chance
to read its contents.
Racquel Sabalones, wife of
accused, Rolusape Sabalones,
maintained that on June 1, 1985 at
1.00 o'clock in the afternoon, she
was at the wake of her brother-in-
law, Junior Sabalones, at his
residence in Bulacao, Talisay,
Cebu.
At 11:00 o'clock in the evening of
the same day, together with her 3
daughters as well as Marlyn
Sabarita, Rose Lapasaran and
Gloria Mondejar, left the place in
order to sleep in an unoccupied
apartment situated 30 meters away
from the house where her deceased,
brother-in-law, Junior, was lying in
state, as shown in the Sketch, (Exh.
"7" and submarkings) prepared by
her. They brought with them a
flashlight because the whole place
was in total darkness.
As they were about to enter the gate
leading to her apartment she
noticed a sedan car coming towards
them. She waited for the car to
come nearer as she thought that the
same belong[ed] to her friend, but
the vehicle instead stopped at the
corner of the road, (Exh. "7-F") and
then proceeded to the end portion
of Mansueto Compound, (Exh. "7-
G"). As it moved slowly towards
the highway, she rushed inside the
apartment.
Few minutes later, she heard a burst
of gunfire outside their gate. She
immediately gathered her children
and instructed Marlyn Sabarita to
use the phone situated at the third
door apartment and call the police.
After the lull of gunfire, she went
to the terrace and saw people in
civilian and in fatigue uniforms
with firearms, gathered around the
place. One of these men even asked
her about the whereabouts of her
husband, whom she left sleeping in
the house of the deceased.
At 8:30 in the morning of June 2,
1985, during the burial of Junior
Sabalones, they were informed by
Pedro Cabanero that Roling
Sabalones was a suspect for the
death of Nabing Velez and the son
of Maj. Tiempo.
She believed that the reason why
her husband was implicated in the
killing of Nabing Velez was
because of the slapping incident
involving her father-in-law,
Federico Sabalones, Sr. and Nabing
Velez which took place prior to the
death of Junior Sabalones.
After the funeral, she began to
receive mysterious calls at their
residence in Sikatuna St., Cebu
City where they began staying
since 1978. She also noticed cars
with tinted windows strangely
parked in front of their residence.
Frightened and cowed, they
decided to seek the advice of Col.
Apolinario Castano, who after
relating to him their fears, advised
her husband to lie low and to
consult a lawyer.
To allay their apprehension,
accused, Roling Sabalones, left
Cebu City for Iligan, Manila and
other cities to avoid those who
were after him. When she learned
about the threat made by Maj.
Tiempo on her husband, she
forewarned the latter not to return
to Cebu.
Marlyn Sabarita, an illegitimate
daughter of Rolusape Sabalones,
stated that in the night in question,
she was at the wake of Junior
Sabalones and saw her Papa
Roling, the herein accused, lying on
the lawn of the house of the
deceased.
She was already in the apartment
with her Mama Racquel when she
heard a burst of gunfire. Upon
instructions of the latter, she went
out to call the police thru the phone
located [in] the third apartment
occupied by a certain Jet. (Tsn-
Tumarao, pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out
[e]ditor and [a]sst. [s]ports [e]ditor
of Sun-Star Daily, while then a
military and police reporter had
covered the shooting incident
which took place on June 1, 1985 at
the Mansueto Compound, Bulacao,
Talisay, Cebu.
At past 1:00 o'clock dawn, together
with their newspaper photographer,
Almario Bitang, they went to the
crime scene boarding the vehicle of
the Cosmopolitan Funeral Homes.
Arriving thereat, they decided not
to proceed inside the compound
because of fear. The place was then
incomplete darkness.
Upon being informed that the
victims were brought to Cebu City
Medical Center, they rushed to the
place and met Maj. Tiempo
hugging the dead body of his 14-
year old son. His photographer took
a picture of that pathetic scene.
(Exh. "8-B").
Samson Sabalones, a retired
[a]mbassador and uncle of
Rolusape Sabalones, posted a bail
bond for his nephew with Eastern
Insurance Company, when a
warrant for his arrest was issued by
the Municipal Court, on March 12,
1986 because he was bothered by
the fact that the latter was being
unreasonably hunted by several
groups. He even advised the
accused to appear in [c]ourt to
clarify the nature of the case filed
against him.
Virgincita Pajigal, a resident of
Butuan City, met accused,
Rolusape Sabalones, who
introduced himself to her as
"Paciano Laput" nicknamed, Ondo,
in a massage clinic where she was
working.
For less than a year, they lived
together as husband and wife
without the benefit of marriage
because according to her the
accused was married but separated
from his wife, whose name was
never mentioned to her. For such a
short span of time being together,
her love for the accused developed
to the extent that whatever
happen[ed] to him, she [would]
always be there to defend him.
With the help of Maj. delos Santos,
who advised her to always stay
close [to] the accused, she was able
to board the same vessel. She saw
the latter clad in green T-shirt,
(Exh. "14") and pants, handcuffed
and guarded.
Reaching Cebu City, they took a
taxicab and as the vehicle went
around the city, she was instructed
by Maj. Tiempo to place the towel,
(Exh. "15") which she found inside
her bag, on the head of the accused.
They stopped at the Reclamation
Area and Maj. Tiempo pulled them
out of the vehicle but she held on
tightly to Ondo, ripping his shirt.
This pulling incident happened for
several times but complainant
failed to let them out of the vehicle.
The accused was finally brought to
the Provincial Jail while she stayed
in the residence of the accused. She
returned to Butuan after a week.
(Tsn-Formentera, pp. 5-33, Jan. 22,
1991).
Accused, Rolusape
Sabalones, alias "Roling", in his
defense, with ancillary incidental
narrations, testified, that on June 1,
1985 at 6:00 o'clock in the evening,
he was at the wake of his only
brother, Junior Sabalones, who was
killed on May 26, 1985.
He had no idea as to who was
responsible for the killing of his
brother inasmuch as the latter had
plenty of enemies. He also did not
exert effort to look into the case
and to place it under police
authority since he had lost faith in
the capabilities of the police. The
matter was however reported by his
uncle, Ambassador Sabalones, to
the authorities.
He stayed at the wake until 10:00
o'clock in the evening because he
was not feeling well. He retired in a
small room adjacent to the sala of
the house of the deceased. Not long
after, he felt somebody waking him
up but he merely opened his eyes
and went back to sleep as he was
really exhausted.
At 6:30 the following morning, he
was roused by his wife so he could
prepare for the burial. He came to
know about the burst of gunfire
which took place the previous night
upon the information of his wife.
He did not take the news seriously
as he was busy preparing for the
burial of his deceased brother, Jun.
The funeral started at past 8:00
o'clock in the morning and he
noticed the presence of Maj. Eddie
Ricardo and his men, who were
sent by Col. Castano purposely to
provide the burial with military
security, upon the request of his
wife.
He had a conversation with Maj.
Ricardo who inquired about the
shooting incident which resulted in
the death of the son of Maj. Tiempo
and others in his company. Also in
the course of their conversation, he
came to know that Nabing Velez
was killed earlier on that same
night in Labangon, Cebu [C]ity.
On the same occasion, Pedro
Cabanero also notified him that he
was a suspect in the killing of
Nabing Velez, a radio commentator
of ferocious character, who was
engaged in a protection racket with
several under his control.
He remembered that a month prior
to the death of Nabing Velez, his
father, Federico Sabalones, Sr. and
the deceased while matching their
fighting cocks at the Talisay Sports
Complex, had an altercation and
the latter slapped his paralytic
father and challenged him to ask
one of his sons to avenge what he
had done to him. He came to know
about the incident only after a
week.
He did not deny the fact that he was
hurt by the actuation of the
deceased for humiliating his father
but it did not occur to him to file a
case or take any action against the
deceased because he was too busy
with his business and with his work
as a bet caller in the cockpit.
He advised his father to stay in
Bohol to avoid further trouble
because he knew that the latter
would frequent the cockpit[,] being
a cockfight aficionado.
Likewise, during the burial, he was
informed by a PC soldier, Roger
Capuyan, that he was also a suspect
in the killing of the son of Maj.
Tiempo and even advised him to
leave the place.
On the following days after the
burial, his wife started to notice
cars suspiciously parked in front of
their house and [she] also received
mysterious calls.
Together with his wife, they
decided to see Col. Apolinario
Castaño to seek his advise. The
latter verified from the Cebu
Metrodiscom and learned that there
was no case filed against him.
In the evening of June 6, 1985, he
left for Iligan and after a month, he
transferred to Ozamis and ten to
Pagadian. He likewise went to
Manila especially when he learned
that his uncle, Samson Sabalones,
had arrived from abroad. The latter
posted a bond for his temporary
liberty immediately after being
informed that a case was filed
against him, before the Municipal
Court of Talisay.
Despite . . . the bond put up his
uncle, he did not return to Cebu
City because it came to his
knowledge that Maj. Tiempo
inquired from the bonding
company as to his address.
He also stayed in Marikina in the
house of his friend and during his
stay in the said place, he registered
as a voter and was issue a Voter's
Affidavit, (Exh. "19"; Exh. "R" for
the prosecution) which bore the
name "Paciano Mendoza Laput"
which [was] his baptismal name.
He explained that the name[s]
Mendoza and Laput [were] the
middle name and surname,
respectively of his mother. The
name "Rolusape" was given to him
by his father and the same [was]
not his registered name because
during the old days, priests would
not allow parents to name their
children with names not found in
the Almanac; thus, Paciano [was]
his chosen name and the same
appeared in his Baptismal
Certificate, (Exh. "20") issued by
the Parish of the Blessed Trinity of
Talibon, Bohol. In his Birth
Certificate, it [was] the name
"Rolusape" which appeared based
upon the data supplied by his
father.
He had used the name Paciano
during the time when he [was] still
a secret agent under his uncle, Gen.
Russo Sabalones, when the latter
was still the [c]hief of the C-2 in
1966 until 1967 and as such, he
was issued a firearm. He likewise
used said name at the time he was
employed at the Governor's Office
in Agusan and when he registered
in the Civil Service Commission to
conceal his identity to protect
himself from those who were after
him.
From Marikina he proceeded to
Davao and then to Butuan City
where he was made to campaign
for the candidacy of Gov. Eddie
Rama. When the latter won in the
election, he was given a job at the
Provincial Capitol and later became
an agent of the PC in Butuan using
the name, "Paciano Laput."
During his stay in Butuan, he met
Virgie Pajigal, a manicurist who
became his live-in partner.
On October 23, 1988 while he was
at the Octagon Cockpit in Butuan
with Sgt. Tambok, he was arrested
by Capt. Ochate and was brought to
the PC Headquarter[s] in Libertad,
Butuan City and was detained.
Among the papers confiscated from
him was his Identification Card No.
028-88, (Exh. "21") issued by the
PC Command bearing the name
Paciano Laput.
On October 26, 1988 he was taken
from the City Jail by Capt. Ochate
and some soldiers, one of whom
was Maj. Tiempo whom he met for
the first time.
On their way to Nasipit to board a
vessel bound for Cebu City, Maj.
Tiempo made him lie flat on his
belly and stepped on his back and
handcuffed him. He cried in pain
because of his sprained shoulder. A
certain soldier also took his watch
and ring.
Arriving in Cebu at 7:00 o'clock in
the morning, he and Virgie Pajigal,
who followed him in the boat, were
made to board a taxicab. Maj.
Tiempo alighted in certain place
and talked to a certain guy.
Thereafter, they were brought to
the Reclamation Area and were
forced to go down from the vehicle
but Virgie Pajigal held him tightly.
They were again pulled out of the
taxi but they resisted.
From the Capitol Building, they
proceeded to CPDRC and on their
way thereto, Maj. Tiempo sat
beside him inside the taxi and
boxed him on the right cheek below
the ear and pulled his cuffed hands
apart.
At the Provincial Jail, he was
physically examined by its resident
physician, Dr. Dionisio Sadaya, and
was also fingerprinted and
photographed, (Exh. "21"). He was
issued a Medical Certificate, (Exh.
"22").
He further stated that he [was]
acquainted with his co-accused
Timoteo Beronga, known to him as
"Timmy" being also a bet caller in
the cockpit. (Tsn-Formentera, pp.
5-23, Feb. 26, 1991; Tsn-Abangan,
pp. 3-33, Feb. 27, 1991; Tsn-
Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused
Rolusape Sabalones denied that he
bribed a certain soldier because at
the time he was arrested, his wallet
as well as his wristwatch and ring
worth P2,000.00 each were
confiscated and his hands tied
behind his back.
 He also denied the allegation of
Maj. Tiempo that he offered the
latter the amount of P1,000,000.00
to drop the case against him, the
truth being that while they were on
board a vessel bound for Cebu City,
Maj. Tiempo compelled him to tell
[who] the real killers of his son
[were] because he knew that he
(Rolusape Sabalones) was not
responsible. The former also
inquired from him as to the
whereabouts of the carbine.
He also rebutted complainant's
testimony that upon their arrival
here in Cebu City and while on
board a taxicab, he directed the
former [to] first go around the city
to locate a certain Romeo
Cabañero, whom he did not know
personally. 10
Ruling of the Court of Appeals
Giving full credence to the evidence of the
prosecution, the Court of Appeals affirmed the trial
court's Decision convicting appellants of two counts
of murder and three counts of frustrated murder. Like
the trial court, it appreciated the qualifying
circumstance of treachery and rejected appellants'
defense of alibi.
The Court of Appeals, however, ruled that the
penalties imposed by the trial court were erroneous.
Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of
frustrated murder, it imposed the following penalty:
ten years (10) of prision mayor (medium), as
minimum, to seventeen years (17) years and four (4)
months of reclusion temporal (medium), as
maximum. Sustaining the trial court, the Court of
Appeals awarded indemnity of P20,000 to each of the
victims of frustrated murder. However, it was silent
on the indemnity of P50,000 awarded by the trial
court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the
appellants, the Court of Appeals, as earlier noted,
refrained from entering judgment and certified the
case to the Supreme Court for review, in conformity
with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court. 11
The Issues
In his Brief, 12 Appellant Sabalones raised the
following errors allegedly committed by the trial
court:
I
The court a quo erred in finding
that accused Sabalones and his
friends left the house where his
brother Sabalones Junior was lying
in state and "went to their grisly
destination amidst the dark and
positioned themselves in defense of
his turf against the invasion of a
revengeful gang of the supporters
of Nabing Velez.
II
The court a quo erred in finding
that accused Sabalones and his two
co-accused were identified as
among the four gunmen who fired
at the victims.
III
The court a quo erred in
overlooking or disregarding
physical evidence that would have
contradicted the testimony of
prosecution witnesses Edwin
Santos and Rogelio Presores that
the gunmen were shooting at them
from a standing position.
IV
The court a quo erred in holding
that the instant case is "one of
aberratio ictus", which is not a
defense, and that the "defense of
alibi" interposed by the accused
may not be considered.
V
The court a quo erred in not finding
that the evidence of the prosecution
has not overcome the constitutional
 presumption of innocence in favor
of the accused.
VI
The court a quo erred in not
acquitting the accused on ground of
reasonable doubt.
In a Manifestation dated December 20, 1995,
Appellant Beronga, through counsel, adopted as his
own the Brief of Sabalones. 13
The foregoing assignment of errors shall be
reformulated by the Court into these three issues or
topics: (1) credibility of the witnesses and sufficiency
of the prosecution evidence, (2) defense of denial and
alibi, and (3) characterization of the crimes
committed and the penalty therefor.
Bolo and Rogelio Presores, resulted
from the felonious and wanton acts
of the herein accused for mistaking
said victims for the persons [who
were] objects of their wrath. 16
We stress that "factual findings of the lower courts,
the trial court and the Court of Appeals are, as a
general rule, binding and conclusive upon the
Supreme Court." 17 We find nothing in the instant
case to justify a reversal or modification of the
findings of the trial court and the Court of Appeals
that appellants committed two counts of murder and
three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively
pointed to and identified the appellants as the authors
of the crime. His categorical and straightforward
testimony is quoted hereunder: 18

COURT:
The Court's Ruling

The appeal is devoid of merit. Q You stated

there was a gun
fired. What
First Issue: happened next?
Credibility of Witnesses and
Sufficiency of Evidence
WITNESS:
Well-entrenched is the tenet that this Court will not
A There was a
interfere with the trial court's assessment of the
credibility of the witnesses, absent any indication or rapid fire in
showing that the trial court has overlooked some succession.
material facts or gravely abused its
discretion, 14 especially where, as in this case, such Q When you
assessment is affirmed by the Court of Appeals. "As heard this rapid
this Court has reiterated often enough, the matter of firing, what did
assigning values to declarations at the witness stand you do?
is best and most competently performed or carried
out by a trial judge who, unlike appellate magistrates, A I tried to look
can weigh such testimony in light of the accused's from where the
behavior, demeanor, conduct and attitude at the firing came from.
trial." 15 Giving credence to the testimonies of the
prosecution witnesses, the trial court concluded: Q After that,
what did you
Stripped of unnecessary verbiage, find?
this Court, given the evidence,
finds that there is more realism in A I saw persons
the conclusion based on a keener firing towards us.
and realistic appraisal of events,
circumstances and evidentiary facts
Q Where were
on record, that the gun slaying and
these persons
violent deaths of Glenn Tiempo and situated when
Alfredo Nardo, and the near fatal
injuries of Nelson Tiempo, Rey
they were firing persons were still
towards you? firing, until we
went home.
A Near the foot
of the electric Q You stated that
post and close to you saw these
the cemented persons who were
wall. firing at you. Do
you know these
Q This electric persons?
post, was that
lighted at that A I can identify
moment? [them] when I
[see] them.
A Yes, sir, it was
lighted. Q Try to look
around this
Q How far were courtroom, if
these persons these persons you
firing, to the saw who were
place where you firing at you are
were? present in the
courtroom[.]
A From here to
there (The A Yes, sir.
witness
indicating the Q Can you point
distance by to these persons?
pointing to a
place inside the A Yes, sir.
courtroom,
indicating a Q Point at them.
distance of about
6 to 7 meters,
making the COURT
witness stand as INTERPRETER:
the point of
reference). The Court
directed the
Q Were you able witness to go
to know how down from the
many persons witness stand and
fired towards [point] at them,
you? Beronga and
Alegarbes.
A I only saw 3 to
4 persons. FISCAL
GABIANA:
Q How long did
these persons fire I would like to
the guns at you? make it of record
that on the bench
of prisoner, only
A Until we went
home. The
 the two accused Q What happened
were seated. next?

COURT: A When the jeep

was near the gate,
Make it of record the car was
that only two following.
prisoners were
present. Q The car was
following the
Q Now, Mr. jeep, at what
Santos, aside distance?
from these two
accused you A 3 to 4 meters.
identified as
among those who Q While the car
fired [at] you on was following the
that evening, jeep at that
were there other distance of 3 to 4
persons that you meters, what
saw on that happened?
particular
occasion who A All of a
fired at you? sudden, we heard
the burst of
A Yes, sir, there gunfire.
were[;] if I can
see them, I can Q From what
identify them.
direction was the
gunfire?
Corroborating the foregoing, Rogelio Presores,
another survivor, also pointed to Timoteo Beronga, A Through the
Teodulo Alegarbes and Roling Sabalones as the direction of the
perpetrators of the crime. His testimony proceeded in
jeep.
this manner: 19
Q After hearing
Q When you the gunfire, what
arrived at the happened?
residence of
Stephen Lim, can
you remember of A We looked at
any unusual the jeep.
incident that took
place? Q What did you
see?
A Yes, sir.
A We saw
Q What was that? Alfredo Nardo
and Glenn
Tiempo and Rey
A When the jeep
Bolo f[a]ll to the
arrived, the car
ground. There
was following. were only 3.
Q Who was A No, sir. Only
driving the jeep their facial
at that time? appearance.

A Alfredo Nardo. Q What about the

3 persons?
Q What happened
after that? A That's why the
3 persons, I do
A So, I looked, not know them. I
whence the burst can recognize
of gunfire came only their facial
from. appearance.

Q What did you Q What about

see from that one person?
gunfire?
A Yes, sir.
A I saw 4 persons
standing at the Q What is the
back of the fence. name of the
person?
Q What were
those 4 persons A Roling
doing when they Sabalones.
were standing at
the back of the Q If Roling
fence? Sabalones is
inside the
A They were courtroom, can
bringing long you recognize
firearms. Roling
Sabalones?
Q Did you
recognize these A Yes, sir, he is
persons? around.

A I can clearly Q Can you point

recognize one to Roling
and the 3 Sabalones?
persons[.] I can
identify them, if I A Yes, he is there
can see them (The witness
again. pointing to the
person who
Q If you are answered the
shown these name of Roling
persons, can you Sabalones).
recognize them?
Can you name Q I would like
these persons? [you] again to
please look
around and see, if
 those persons continuous and
whom you know that was the time
through their I raised my head
faces, if they are again. 20
here around?
Like Santos, Rogelio Presores also stooped down
A The two of when the firing started, but he raised his head during
them (The a break in the gunfire:
witness pointing
to the 2 persons, Atty. Albino:
who, when asked,
answered that his
Q So, what did
name [was] you do when you
Teofilo Beronga first heard that
and the other
one shot?
[was] Alegarbes).
A So, after the
Indeed, we have carefully waded through the first shot, we
voluminous records of this case and the testimonies looked towards
of all the fifty-nine witnesses, and we find that the
the direction we
prosecution has presented the required quantum of
were facing and
proof to establish that appellants are indeed guilty as
when we heard
charged. Appellants' arguments, as we shall now
the second shot,
discuss, fail to rebut this conclusion. that was the time
we stooped
Positive Identification down. 21

Appellants allege that the two witnesses could not He further testified:
have properly identified the appellants because, after
the first burst of shooting, they both crouched down,
Atty. Acido:
such that they could not have seen the faces of their
[Counsel for
assailants. This contention does not persuade. Both
Appellant
eyewitnesses testified that the firing was not Sabalones]
continuous; thus, during a lull in the firing, they
raised their heads and managed a peek at the
perpetrators. Edwin Santos testified as follows: Q And you said
you stooped
down inside the
Atty. Albino, car when you
counsel for heard the first
accused Beronga:
firing to the jeep.
Is that what you
Q You mean to want the Court to
say that when understand[?]
you bent you
heard the
Presores:
successive shots,
[and] you again
raised your head. A Yes, sir.
Is that correct?
Q So, you never
A There, were saw who fired the
times that the successive shots
shots were not in to the car as you
succession and said you stooped
 down inside the the statement of other prosecution witnesses that the
car? place was lighted during that time.

A The bursts of The Court of Appeals sustained said findings by

gunfire stopped citing the testimonies of defense witnesses. Fredo
for a while and Canete of the Visayan Electric Company (VECO),
that was the time for instance, admitted that it was so easy to connect
I reared of [sic] and disconnect the lights. He testified thus:
my head.
Atty. Kintanar:
Q And that was
the first time you Q Now, as a
saw them? cutter, what
instruments do
A Yes, sir. 22 you usually use
in cutting the
The records clearly show that two vehicles proceeded electrical
to the house of Stephen Lim on that fateful day. The connection of a
first was the jeep where Alfredo Nardo, Glenn certain place?
Tiempo and Rey Bolo were riding. About three to
four meters behind was the second car carrying Canete:
Nelson Tiempo, Guillermo Viloria, Rogelio Oliveros
and the two prosecution witnesses — Edwin Santos A Pliers and
and Rogelio Presores. 23 As stated earlier, said screw driver.
witnesses attested to the fact that after the first volley
of shots directed at the jeep, they both looked at the
Q Does it need . .
direction where the shots were coming from, and they
. very
saw their friends in the jeep falling to the ground, as sophisticated
well as the faces of the perpetrators. 24 It was only
instruments to
then that a rapid succession of gunshots were directed
disconnect the
at them, upon which they started crouching to avoid
lights?
being hit.
A No, these are
Hence, they were able to see and identify the
the only
appellants, having had a good look at them after the
instruments we
initial burst of shots. We stress that the normal
use.
reaction of a person is to direct his sights towards the
source of a startling shout or occurrence. As held
in People v. Dolar, 25 "the most natural reaction for Q Ordinary pliers
victims of criminal violence is to strive to see the and ordinary
looks and faces of their assailants and to observe the screw driver?
manner in which the crime is committed.
A Yes, sir.
In bolstering their claim that it was impossible for the
witnesses to have identified them, appellants further Q And does [one]
aver that the crime scene was dark, there being no need to be an
light in the lampposts at the time. To prove that the expert in
service wire to the street lamps at the Mansueto electronic [sic] in
Compound was disconnected as early as December order to conduct
1984 and reconnected only on June 27, 1985, they the
presented the testimonies of Vicente disconnection?
Cabanero, 26 Remigio Villaver, 27 Fredo Canete 28 and
Edward Gutang. 29 The trial court, however, did not A No, sir.
lend weight to said testimonies, preferring to believe
 Q In other words, Na[b]ing Velez
Mr. Canete, any was killed, have
ordinary you observed [if]
electrician can Roling and his
cut it? companions
prepared
A That is if they themselves for
are connected any eventuality?
with the Visayan
Electric A It did not take
Company. long after we
knew that
Q What I mean is Na[b]ing was
that, can the killed, somebody
cutting be done called up by
by any ordinary telephone looking
electrician? for Roling, and
this was
A Yes, sir. 30 answered by
Roling but we did
not know what
Said witness even admitted that he could not recall if they were
he did in fact cut the electrical connection of the conversing about
Mansueto Compound. 31 The Court of Appeals and then Roling
further noted that "none of the above witnesses were went back to the
at the crime scene at or about the exact time that the house of Junior
ambush occurred. Thus, none was in a position to after answering
state with absolute certainty that there was allegedly the phone. And
no light to illuminate the gunmen when they rained after more than
bullets on the victims. 32 two hours, we
heard the sound
Even assuming arguendo that the lampposts were not of engines of
functioning at the time, the headlights of the jeep and vehicles arriving,
the car were more than sufficient to illuminate the and then Meo, the
crime scene. 33 The Court has previously held that the man who was
light from the stars or the moon, an oven, or a wick told by Roling to
lamp or gasera can give ample illumination to enable guard, shouted
a person to identify or recognize another. 34 In the saying: "They are
same vein, the headlights of a car or a jeep are already here[;]"
sufficient to enable eyewitnesses to identify after that, Roling
appellants at the distance of 4 to 10 meters. came out carrying
a carbine
Extrajudicial Statement accompanied by
of Beronga Tsupe, and not
long after we
Appellants insist that Beronga's extrajudicial heard gunshots
statement was obtained through violence and and because of
intimidation. Citing theres inter alios acta rule, they that we ran
also argue that the said statement is inadmissible towards the house
against Sabalones. Specifically, they challenge the where the wake
trial court's reliance on the following portions of was. But before
Beronga's statement: the gun-shots, I
heard Pedring
Sabalones father
Q After Roling
of Roling saying:
knew that
"You clarify,
 [t]hat you watch silent and to have competent and independent counsel
out for mistake[n] of his own choice. 38 Said witness also stated that
in identity," and Beronga was assisted by Atty. Marcelo Guinto during
after that shout, the custodial investigation. 39 In fact, Atty. Guinto
gunshots also took the witness stand and confirmed that
followed. [sic] Appellant Beronga was informed of his rights, and
Then after the that the investigation was proper, legal and not
gun-shots Roling objectionable. Indeed, other than appellants' bare
went back inside allegations, there was no showing that Beronga's
still carrying the statement was obtained by force or duress. 40
carbine and
shouted: Equally unavailing is appellants' reliance on the res
"GATHER THE inter alios acta rule under Section 30, Rule 130 of the
EMPTY Rules of Court, which provides:
SHELLS AND
MEO[,] YOU
The act or declaration of a
BRING A
conspirator relating to the
FLASHLIGHT,"
conspiracy and during its existence,
and then I was
may be given in evidence against
called by Meo to the co-conspirator after the
help him gather conspiracy is shown by evidence
the empty shells
other than such act or declaration.
of the carbine and
also our third
companion to Appellants assert that the admission referred to in the
gather the empty above provision is considered to be against a co-
shells. conspirator only when it is given during the existence
of the conspiracy. They argue that Beronga's
statement was made afterthe termination of the
These arguments have no merit. In the first place, it is
conspiracy; thus, it should not be admitted and used
well to stress that appellants were convicted based against Sabalones.
primarily on the positive identification of the two
survivors, Edwin Santos and Rogelio Presores, and
not only on the extrajudicial statement, which merely The well-settled rule is that the extrajudicial
corroborates the eyewitness testimonies. Thus, said confession of an accused is binding only upon
arguments have no relevance to this case. As the himself and is nor admissible as evidence against his
Court held in People vs. Tidula: 35 "Any allegation of co-accused, it being mere hearsay evidence as far as
violation of rights during custodial investigation is the other accused are concerned. 41 But this rule
relevant and material only to cases in which an admits of exception. It does not apply when the
extrajudicial admission or confession extracted from confession, as in this case, is used as circumstantial
the accused becomes the basis of their conviction." evidence to show the probability of participation of
the co-accused in the killing of the victims 42 or when
the confession of the co-accused is corroborated by
In any case, we sustain the trial court's holding, as other evidence. 43
affirmed by the Court of Appeals, that the
extrajudicial statement of Beronga was executed in
compliance with the constitutional Beronga's extrajudicial statement is, in fact,
requirements. 36 "Extrajudicial confessions, especially corroborated by the testimony of Prosecution Witness
those which are adverse to the declarant's interests are Jennifer Binghoy. Pertinent portions of said
presumed voluntary, and in the absence of conclusive testimony are reproduced hereunder:
evidence showing that the declarant's consent in
executing the same has been vitiated, such confession Q While you
shall be upheld." 37 were at the wake
of Jun Sabalones
The exhaustive testimony of Sgt. Miasco, who and the group
undertook the investigation, shows that the appellant were sitting with
was apprised of his constitutional rights to remain Roling
 Sabalones, what A At the table
were they doing? where they were
conversing.
A They were
gathered in one Q How many
table and they armalites or guns
were conversing [did you see] that
with each other. evening in that
place?
xxx xxx xxx
A Two (2).
Q On that same
date, time and xxx xxx xxx
place, at about
10:00 [i]n the Q This armalite
evening, can you that you saw, —
remember if there how far was this
was unusual in relation to the
incident that took groups of
place? Sabalones?

A I heard over A There (The

the radio at the witness
Sabalones Family indicating a
that a certain distance of about
Nabing Velez 4 to 5 meters).
was shot.
ATTY.
Q That [a] certain KINTANAR:
Nabing Velez
was shot? What
Q When you
else . . . looked . . .
transpired? through the
window and saw
A I observed that there were two
their reactions vehicles and there
were so queer, — were bursts of
as if they were gunfire, what
running. happened after
that?
xxx xxx xxx
A I did not
Q In that evening proceed to look . .
of June 1, 1985, . through the
when you went window because I
there at the house stooped down.
of Jun Sabalones,
have you seen an Q When you
armalite? stooped down,
what happened?
A Yes, sir.
A After the burst
Q Where aid you of gunfire, I again
see this armalite?
opened the A The voice was
window. very familiar to
me.
Q And when
again you opened Q Whose voice?
the window, what
happened? A The voice of
Roling
A I saw two Sabalones.
persons going
towards the jeep. Q What else have
you noticed
Q What during the
transpired next commotion
after [you saw] [when] wives
those 2 persons? were advising
their husbands to
A When they go home?
arrived there,
they nodded their A They were
head[s]. really in chaos. 44

Q After that, A careful reading of her testimony buttresses the

what happened? finding of the trial court that Rolusape Sabalones and
his friends were gathered at one table, conversing in
A So, they went whispers with each other, that there were two rifles
back to the on top of the table, and that they became panicky
direction where after hearing of the death of Nabing Velez on the
they came from, radio. Hence, the observation of the trial court that
going to the "they went to their grisly destination amidst the dark
house of and positioned themselves in defense of his turf
Sabalones. against the invasion of a revengeful gang of
supporters of the recently slain Nabing Velez." 45
Q While they
were going to the Alleged Inconsistencies
direction of the
house of Appellants also allege that the prosecution account
Sabalones, what had inconsistencies relating to the number of shots
transpired? heard, the interval between gunshots and the victims'
positions when they were killed. These, however, are
A I saw 5 to 6 minor and inconsequential flaws which strengthen,
persons coming rather than impair, the credibility of said
from the highway eyewitnesses. Such harmless errors are indicative of
and looking to truth, not falsehood, and do not cast serious doubt on
the jeep, and the veracity and reliability of complainant's
before they testimony. 46
reached the jeep,
somebody Appellants further claim that the relative positions of
shouted that "it's the gunmen, as testified to by the eyewitnesses, were
ours". incompatible with the wounds sustained by the
victims. They cite the testimony of Dr. Ladislao
Q Who shouted? Diola, who conducted the autopsy on Glenn Tiempo.
He declared that the victim must necessarily be on a
higher level than the assailant, in the light of the path
of the bullet from the entrance wound to where the
slug was extracted. This finding, according to
appellant, negates the prosecution's account that the
appellants were standing side by side behind a wall
when they fired at the victims. If standing, appellants
must have been on a level higher than that of the
occupants of the vehicles; if beside each other, they
could not have inflicted wounds which were
supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the
victims were sitting still when they were fired upon,
and that they froze in the same position during and
after the shooting. This has no testimonial
foundation. On the contrary, it was shown that the
victims ducked and hid themselves, albeit in vain,
when the firing began. After the first volley, they
crouched and tried to take cover from the hail of
bullets. It would have been unnatural for them to
remain upright and still in their seat. Hence, it is not
difficult to imagine that the trajectories of the bullet
wounds varied as the victims shifted their positions.
We agree with the following explanation of the Court
of Appeals:
The locations of the entry wounds
can readily be explained, . . . Glenn
Tiempo, after looking in the
direction of the explosion, turned
his body around; and since the
ambushers were between the jeep
and the car, he received a bullet in
his right chest (wound no. 1) which
traveled to the left. As to wound
No. 2, it can be explained by the
spot where Major Tiempo found his
fallen son.
Atty. Kintanar:
Q: Upon being
informed by these
occupants who
were ambushed
and [you] were
able to return the
car, what did you
do?
Major Tiempo:
A: I immediately
got soldiers and
we immediately
proceeded to the
area or to the
place where my
fallen son was
located and when
we reached . . .
the place, I saw
my fallen son [in]
a kneeling
position where
both knees [were]
touching the
ground and the
toes also and the
forehead was
touching towards
the ground.
(TSN, Feb. 12,
1988, p. 6)
In such position the second bullet
necessarily traveled upwards in
relation to the body, and thus the
entry wound should be lower than
the exit wound. There is no showing
that both wounds were inflicted at
the same time. 47
In any event, the witnesses saw that the appellants
were the gunmen who were standing side by side
firing at them. They could have been in a different
position and in another hiding place when they first
fired, but this is not important. They were present at
the crime scene, and they were shooting their rifles at
the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging
in "conjecture" in ruling that there was aberratio
ictus in this case. This allegation does not advance
the cause of the appellants. It must be stressed that
the trial court relied on the concept of aberratio
ictus to explain why the appellants staged the
ambush, not to prove that appellants did in fact
commit the crimes. Even assuming that the trial court
did err in explaining the motive of the appellants, this
does not detract from its findings, as affirmed by the
Court of Appeals and sustained by this Court in the
discussion above, that the guilt of the appellants was
proven beyond reasonable doubt.
In any event, the trial court was not engaging in
conjecture in so ruling. The conclusion of the trial
court and the Court of Appeals that the appellants
killed the wrong persons was based on the
extrajudicial statement of Appellant Beronga and the
testimony of Jennifer Binghoy. These pieces of
evidence sufficiently show that appellants believed
that they were suspected of having killed the recently
slain Nabing Velez, and that they expected his group
to retaliate against them. Hence, upon the arrival of
the victims' vehicles which they mistook to be
carrying the avenging men of Nabing Velez,
appellants opened fire. Nonetheless, the fact that they
were mistaken does not diminish their culpability.
The Court has held that "mistake in the identity of the
victim carries the same gravity as when the accused
zeroes in on his intended
victim." 48
Be that as it may, the observation of the solicitor
general on this point is well-taken. The case is better
characterized as error personae or mistake in the
identity of the victims, rather than aberratio
ictus which means mistake in the blow, characterized
by aiming at one but hitting the other due to
imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts' disregard of their
defense of alibi. We disagree. As constantly
enunciated by this Court, the established doctrine
requires the accused to prove not only that he was at
some other place at the time of the commission of the
crime, but that it was physically impossible for him at
the time to have been present at the locus criminis or
its immediate vicinity. 49 This the appellants
miserably failed to do.
Appellant Beronga testified that, at the time of the
incident, he was in his residence in Lapulapu City,
which was not shown to be so remote and
inaccessible that it precluded his presence in
Mansueto Subdivision. The alibi of Sabalones is even
more unworthy of belief; he sought to establish that
he was a mere 20-25 meters away from the scene of
the crime. He was allegedly in the house of his
brother who was lying in state, which was so near the
ambush site that some of the defense witnesses even
testified that they were terrified by the gunfire.
Clearly, appellants failed to establish the requisites of
alibi.
Furthermore, the defense of alibi cannot overcome
the positive identification of the appellants. 50 As
aptly held by this Court in People v. Nescio: 51
Alibi is not credible when the
accused-appellant is only a short
distance from the scene of the
crime. The defense of alibi is
further offset by the positive
identification made by the
prosecution witnesses. Alibi, to
reiterate a well-settled doctrine, is
accepted only upon the clearest
proof that the accused-appellant
was not or could not have been at
the crime scene when it was
committed.
Flight
Appellants further object to the finding that
Sabalones, after the incident, "made himself scarce
from the place of commission. He left for Manila,
thence Mindanao on the supposition that he want[ed]
to escape from the wrath of Maj. Tiempo and his men
for the death of Glenn Tiempo and the near fatal
shooting of the other son or from the supporters of
Nabing Velez. . . . On his supposedly borrowed
freedom, he jumped bail and hid himself deeper into
Mindanao, under a cloak of an assumed name. Why,
did his conscience bother him for comfort?" 52
Appellants rationalized that Sabalones was forced to
jump bail in order to escape two groups, who were
allegedly out to get him, one of Nabing Velez and the
other of Major Tiempo. Their ratiocination is futile. It
is well-established that "the flight of an accused is
competent evidence to indicate his guilt, and flight,
when unexplained, is a circumstance from which an
inference of guilt may be drawn." 53 It must be
stressed, nonetheless, that appellants were not
convicted based on legal inference alone but on the
overwhelming evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-
appellants are guilty of murder for the deaths of
Glenn Tiempo end Alfredo Nardo. The allegation of
treachery as charged in the Information was duly
proven by the prosecution. "Treachery is committed
when two conditions concur, namely, that the means,
methods, and forms of execution employed gave the
person attacked no opportunity to defend himself or
to retaliate; and that such means, methods and forms
of execution were deliberately and consciously
adopted by the accused without danger to his
person." 54These requisites were evidently present
when the accused, swiftly and unexpectedly, fired at
the victims who were inside their vehicles and were
in no position and without any means to defend
themselves.
The appellate court also correctly convicted them of
frustrated murder for the injuries sustained by Nelson
Tiempo, Rey Bolo and Rogelio Presores. As
evidenced by the medical certificates and the
testimony of Dr. Miguel Mancao who attended to the
victims, Nelson Tiempo sustained a neck wound
which completely shattered his trachea and rendered
him voiceless, as well as a wound on the right chest
which penetrated his axilla but not his chest
cavity. 55Rey Bolo sustained three injuries which
affected his clavicle, ribs and lungs. 56 Rogelio
Presores, on the other hand, sustained an injury to his
lungs from a bullet wound which entered his right
chest and exited through his back. 57
The wounds sustained by these survivors would have
caused their death had it not been for the timely
medical intervention. Hence, we sustain the ruling of
the Court of Appeals that appellants are guilty of
three counts of frustrated murder.
We also uphold the Court of Appeals' modification of
the penalty for murder, but not its computation of the
sentence for frustrated murder.
For each of the two counts of murder, the trial court
imposed the penalty of fourteen (14) years, eight (8)
months and one (1) day of reclusion
temporal (medium), as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion
temporal (maximum), as maximum. This is incorrect.
Under Article 248 of the Ravised Penal Code, the
imposable penalty is reclusion temporal, in its
maximum period, to death. There being no
aggravating or mitigating circumstance, aside from
the qualifying circumstance of treachery, the
appellate court correctly imposed reclusion
perpetua for murder.
The Court of Appeals, however, erred in computing
the penalty for each of the three counts of frustrated
murder. It sentenced appellants to imprisonment of
ten years of prision mayor (medium) as minimum to
seventeen years and four months of reclusion
temporal (medium) as maximum. It modified the trial
court's computation of eight (8) years of prision
mayor (minimum), as minimum, to fourteen (14)
years and eight (8) months of reclusion
temporal(minimum) as maximum.
Under Article 50 of the Revised Penal Code, the
penalty for a frustrated felony is the "next lower in
degree than that prescribed by law for the
consummated felony . . . ." The imposable penalty for
frustrated murder, therefore, is prision mayor in its
maximum period to reclusion temporal in its medium
period. 58 Because there are no aggravating or
mitigating circumstance as the Court of Appeals itself
held, 59 the penalty prescribed by law should be
imposed in its medium period. With the application
of the Indeterminate Sentence Law, the penalty for
frustrated murder should be 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum.
Although the Court of Appeals was silent on this
point, the trial court correctly ordered the payment of
P50,000 as indemnity to the heirs of each of the two
murdered victims. In light of current jurisprudence,
this amount is awarded without need of proof other
than the fact of the victim's death. 60 The trial court
and the CA, however, erred in awarding indemnity of
P20,000 each to Nelson Tiempo, Rogelio Presores
and Rey Bolo. There is no basis, statutory or
jurisprudential, for the award of a fixed amount to
victims of frustrated murder. Hence, they are entitled
only to the amounts of actual expenses duly proven
during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot
wound on the neck which shattered his trachea,
should be awarded indemnity of P21,594.22 for his
medical expenses. This is evidenced by a statement
of account from Cebu Doctor's Hospital. 61
Rogelio Presores, who was likewise treated for
gunshot wound in the same hospital, presented a
statement of account amounting to P5,412.69 for his
hospitalization. 62 Hence, he is likewise entitled to
indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of
P9,431.10 for the treatment of his gunshot wounds, as
evidenced by a statement of account from the same
hospital. 63 This amount should be awarded to him as
indemnity.
WHEREFORE, the appeal is DENIED and the
assailed Decision is AFFIRMED. However, the
penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the
accused-appellants are each hereby sentenced
to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Glenn Tiempo, in
the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the
accused-appellants are each hereby sentenced
to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Alfredo Nardo, in
the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED
MURDER, the accused-appellants are each hereby
sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum; and to jointly and severally pay the
victim, Rey Bolo, in the sum of P9,431.10 as actual
damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED
MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum; and to jointly and severally indemnify the
victim, Rogelio Presores, in the sum of P5,412.69 for
actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED
MURDER, the accused-appellants are hereby
sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as
maximum; and to jointly and severally indemnify the
victim, Nelson Tiempo, in the sum of P21,594.22 as
actual damages.
Let copies of this Decision be furnished the Secretary
of Interior and Local Government and the Secretary
of Justice so that Accused Eufemio Cabanero may be
brought to justice.
Costs against appellants.
SO ORDERED.
G.R. No. L-1477 January 18, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo
and Solicitor Francisco A. Carreon for appellee.
PER CURIAM, J.:
This case is before us for review of, and by virtue of
appeal from, the judgment rendered by the Court of
First Instance of Manila in case No. 2746, whereby
Julio Guillen y Corpus, or Julio C. Guillen, is found
guilty beyond reasonable doubt of the crime of
murder and multiple frustrated murder, as charged in
the information, and is sentenced to the penalty of
death, to indemnify the of the deceased Simeon
Valera (or Barrela) in the sum of P2,000 and to pay
the costs.
Upon arraignment the accused entered a plea of not
guilty to the charges contained in the information.
Then the case was tried in one of the branches of the
Court of First Instance of Manila presided over by the
honorable Buenaventura Ocampo who, after the
submission of the evidence of the prosecution and the
defense, rendered judgment as above stated.
In this connection it should be stated that, at the
beginning of the trial and before arraignment,
counsel de oficio for the accused moved that the
mental condition of Guillen be examined. The court,
notwithstanding that it had found out from the
answers of the accused to questions propounded to
him in order to test the soundness of his mind, that he
was not suffering from any mental derangement,
ordered that Julio Guillen be confined for Hospital,
there to be examined by medical experts who should
report their findings accordingly. This was done, and,
according to the report of the board of medical
experts, presided over by Dr. Fernandez of the
National Psychopathic Hospital, Julio Guillen was
not insane. Said report (Exhibit L), under the heading
"Formulation and Diagnosis," at pages 13 and 14,
reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant
observation since admission. There was not
a single moment during his whole 24 hours
daily, that he was not under observation.
The motive behind the commission of the
crime is stated above. The veracity of this
motivation was determined in the
Narcosynthesis. That the narco-synthesis
was successful was checked up the day after
the test. The narco-synthesis proved not only
reveal any conflict or complex that may
explain a delusional or hallucinatory motive
behind the act.
Our observation and examination failed to
elicit any sign or symptom of insanity in Mr.
Julio C. Guillen. He was found to be
intelligent, always able to differentiate right
from wrong, fully aware of the nature of the
crime he committed and is equally decided
to suffer for it in any manner or form.
His version of the circumstances of the
crime, his conduct and conversation relative
thereto, the motives, temptations and
provocations that preceded the act, were all
those of an individual with a sound mind.
On the other hand he is an man of strong
will and conviction and once arriving at a
decision he executes, irrespective of
consequences and as in this case, the
commission of the act at Plaza Miranda.
What is of some interest in the personality of
Julio C. Guillen is his commission of some
overt acts. This is seen not only in the
present instance, but sometime when an
employee in la Clementina Cigar Factory he
engaged in a boxing bout Mr. Manzano, a
Span-wanted to abuse the women cigar
makers, and felt it his duty to defend them.
One time he ran after a policeman with a
knife in hand after being provoked to a fight
several times. He even challenged
Congressman Nueno to a fight sometime
before when Mr. Nueno was running for a
seat in the Municipal Board of the City of
Manila, after hearing him deliver one of his
apparently outspoken speeches.
All these mean a defect in his personality
characterized by a weakness of censorship
especially in relation to rationalization about
the consequences of his acts.
In view of the above findings it is our
considered opinion that Julio C. Guillen is
not insane but is an individual with a
personality defect which in Psychiatry is
termed, Constitutional Psychopathic
Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority,
without psychosis.
In view of the above-quoted findings of the medical
board, and notwithstanding the contrary opinion of
one Dr. Alvarez, who was asked by the defense to
give his opinion on the matter, the court ruled that
Guillen, not being insane, could be tired, as he was
tired, for the offenses he committed on the date in
question.
THE FACTS
Upon careful perusal of the evidence and the briefs
submitted by counsel for the accused, the Solicitor
General and their respective memoranda, we find that
there is no disagreement between the prosecution and
the defense, as to the essential facts which caused the
filing of the present criminal case against this
accused. Those facts may be stated as follows:
On the dates mentioned in this decision, Julio Guillen
y Corpus, although not affirmed with any particular
political group, has voted for the defeated candidate
in the presidential elections held in 1946. Manuel A.
Roxas, the successful candidate, assumed the office
of President of the Commonwealth and subsequently
President of the President of the Philippine Republic.
According to Guillen, he became disappointed in
President Roxas for his alleged failure to redeem the
pledges and fulfill the promises made by him during
the presidential election campaign; and his
disappointment was aggravated when, according to
him, President Roxas, instead of looking after the
interest of his country, sponsored and campaigned for
the approval of the so-called "parity" measure. Hence
he determined to assassinate the President.
After he had pondered for some time over the ways
and means of assassinating President Roxas, the
opportunity presented itself on the night of March 10,
1947, when at a popular meeting held by the Liberal
Party at Plaza de Miranda, Quiapo, Manila attended
by a big crowd, President Roxas, accompanied by his
wife and daughter and surrounded by a number of
ladies and gentlemen prominent in government and
politics, stood on a platform erected for that purpose
and delivered his speech expounding and trying to
convince his thousand of listeners of the advantages
to be gained by the Philippines, should the
constitutional amendment granting American citizens
the same rights granted to Filipino nationals be
adopted.
Guillen had first intended to use a revolver for the
accomplishment of his purpose, but having lost said
firearm, which was duly licensed, he thought of two
hand grenades which were given him by an American
soldier in the early days of the liberation of Manila in
exchange for two bottles of whisky. He had likewise
been weighing the chances of killing President
Roxas, either by going to Malacañan, or following his
intended victim in the latter's trips to provinces, for
instance, to Tayabas (now Quezon) where the
President was scheduled to speak, but having
encountered many difficulties, he decided to carry out
his plan at the pro-parity meeting held at Plaza de
Miranda on the night of March 10, 1947.
On the morning of that he went to the house of
Amando Hernandez whom he requested to prepare
for him a document (Exhibit B), in accordance with
their pervious understanding in the preceding
afternoon, when they met at the premises of the
Manila Jockey Club on the occasion of an "anti-
parity" meeting held there. On account of its
materially in this case, we deem it proper to quote
hereunder the contents of said document. An English
translation (Exhibit B-2) from its original Tagalog
reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what
happened. I conceived it, I planned it, and I
carried it out all by myself alone. It took me
many days and nights pondering over this
act, talking to my own conscience, to my
God, until I reached my conclusion. It was
my duty.
I did not expected to live long; I only had on
life to spare. And had I expected to lives to
spare, I would not have hesitated either ton
sacrifice it for the sake of a principle which
was the welfare of the people.
Thousands have died in Bataan; many more
have mourned the loss of their husbands, of
their sons, and there are millions now
suffering. Their deeds bore no fruits; their
hopes were frustrated.
I was told by my conscience and by my God
that there was a man to be blamed for all
this: he had deceived the people, he had
astounded them with no other purpose than
to entice them; he even went to the extent of
risking the heritage of our future
generations. For these reasons he should not
continue any longer. His life would mean
nothing as compared with the welfare of
eighteen million souls. And why should I
not give up my life too if only the good of
those eighteen million souls.
These are the reasons which impelled me to
do what I did and I am willing to bear up the
consequences of my act. I t matters not if
others will curse me. Time and history will
show, I am sure, that I have only displayed a
high degree of patriotism in my performance
of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino
home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog
(Exhibit B), made at the request of Guillen by his
nephew, was handed to him only at about 6 o'clock in
the afternoon of March 10, 1947, for which reason
said Exhibit B-1 appears unsigned, because he was in
a hurry for that meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was
carrying two hand grenades concealed in a paper bag
which also contained peanuts. He buried one of the
hand grenades (Exhibit D), in a plant pot located
close to the platform, and when he decided to carry
out his evil purpose he stood on the chair on which he
had been sitting and, from a distance of about seven
meters, he hurled the grenade at the President when
the latter had just closed his speech, was being
congratulated by Ambassador Romulo and was about
to leave the platform.
General Castañeda, who was on the platform, saw the
smoking, hissing, grenade and without losing his
presence of mind, kicked it away from the platform,
along the stairway, and towards an open space where
the general thought the grenade was likely to do the
least harm; and, covering the President with his body,
shouted to the crowd that everybody should lie down.
The grenade fell to the ground and exploded in the
middle of a group of persons who were standing
close to the platform. Confusion ensued, and the
crowd dispersed in a panic. It was found that the
fragments of the grenade had seriously injured
Simeon Varela (or Barrela ) — who died on the
following day as the result of mortal wounds caused
by the fragments of the grenade (Exhibits F and F-1)
— Alfredo Eva, Jose Fabio, Pedro Carrillo and
Emilio Maglalang.
Guillen was arrested by members of the Police
Department about two hours after the occurrence. It
appears that one Angel Garcia, who was one
spectators at that meeting, saw how a person who was
standing next to him hurled an object at the platform
and, after the explosion, ran away towards a barber
shop located near the platform at Plaza de Miranda.
Suspecting that person was the thrower of the object
that exploded, Garcia went after him and had almost
succeeded in holding him, but Guillen offered stiff
resistance, got loose from Garcia and managed to
escape. Garcia pursued him, but some detectives,
mistaking the former for the real criminal and the
author of the explosion, placed him under arrest. In
the meantime, while the City Mayor and some agents
of the Manila Police Department were investigating
the affair, one Manuel Robles volunteered the
information that the person with whom Angel Garcia
was wrestling was Julio Guillen; that he (Manuel
Robles) was acquainted with Julio Guillen for the
previous ten years and had seen each other in the
plaza a few moments previous to the explosion.
The police operatives interrogated Garcia and Robles,
and Julio Guillen was, within two hours after the
occurrence, found in his home at 1724 Juan Luna
Street, Manila, brought to the police headquarters and
identified by Angel Garcia, as the same person who
hurled towards the platform the object which
exploded and whom Garcia tried to hold when he was
running away.
During the investigation conducted by the police he
readily admitted his responsibility, although at the
same time he tried to justify his action in throwing
the bomb at President Roxas. He also indicated to his
captors the place where he had hidden his so called
last will quoted above and marked Exhibit B, which
was then unsigned by him and subsequently signed at
the police headquarters.
Re-enacting the crime (Exhibit C), he pointed out to
the police where he had buried (Exhibit C-1) the
other hand grenade (Exhibit D), and, in the presence
of witnesses he signed a statement which contained
his answers to question propounded to him by Major
A. Quintos of the Manila Police, who investigated
him soon after his arrest (Exhibit E). From a perusal
of his voluntary statement, we are satisfied that it
tallies exactly with the declarations and made by him
on the witness stand during the trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for this
appellant, several errors are assigned allegedly
committed by the trial court, namely: first, "in finding
the appellant guilty of murder for the death of
Simeon Varela"; second, "in declaring the appellant
guilty of the complex crime of murder and multiple
frustrated murder"; third, "in applying sub-section 1
of article 49 of the Revised Penal Code in
determining the penalty to be imposed upon the
accused"; andfourth, "in considering the concurrence
of the aggravating circumstances of nocturnity and of
contempt of public authorities in the commission of
crime."
The evidence for the prosecution, supported by the
brazen statements made by the accused, shows
beyond any shadow of doubt that, when Guillen
attended that meeting, carrying with him two hand
grenades, to put into execution his preconceived plan
to assassinate President Roxas, he knew fully well
that, by throwing one of those two hand grenades in
his possession at President Roxas, and causing it to
explode, he could not prevent the persons who were
around his main and intended victim from being
killed or at least injured, due to the highly explosive
nature of the bomb employed by him to carry out his
evil purpose.
Guillen, testifying in his own behalf, in answer to
questions propounded by the trial judge (page 96 of
transcript) supports our conclusion. He stated that he
performed the act voluntarily; that his purpose was to
kill the President, but that it did not make any
difference to him if there were some people around
the President when he hurled that bomb, because the
killing of those who surrounded the President was
tantamount to killing the President, in view of the fact
that those persons, being loyal to the President being
loyal to the President, were identified with the latter.
In other word, although it was not his main intention
to kill the persons surrounding the President, he felt
no conjunction in killing them also in order to attain
his main purpose of killing the President.
The facts do not support the contention of counsel for
appellant that the latter is guilty only of homicide
through reckless imprudence in regard to the death of
Simeon Varela and of less serious physical injuries in
regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and
Emilio Maglalang, and that he should be sentenced to
the corresponding penalties for the different felonies
committed, the sum total of which shall not exceed
three times the penalty to be imposed for the most
serious crime in accordance with article 70 in relation
to article 74 of the Revised Penal Code.
In throwing hand grenade at the President with the
intention of killing him, the appellant acted with
malice. He is therefore liable for all the consequences
of his wrongful act; for in accordance with article 4
of the Revised Penal Code, criminal liability is
incurred by any person committing felony (delito)
although the wrongful act done be different from that
which he intended. In criminal negligence, the injury
caused to another should be unintentional, it being
simply the incident of another act performed without
malice. (People vs. Sara, 55 Phil., 939.) In the words
of Viada, "in order that an act may be qualified as
imprudence it is necessary that either malice nor
intention to cause injury should intervene; where
such intention exists, the act should qualified by the
felony it has produced even though it may not have
been the intention of the actor to cause an evil of such
gravity as that produced.' (Viada's Comments on the
Penal Code, vol. 7, 5th ed., p.7.) And, as held by this
Court, a deliberate intent to do an unlawful act is
essentially inconsistent with the idea of reckless
imprudence. (People vs. Nanquil, 43 Phil., 232.)
Where such unlawful act is wilfully done, a mistake
in the identity of the intended victim cannot be
considered as reckless imprudence. (People vs. Gona,
54 Phil., 605)
Squarely on the point by counsel is the following
decision of the Supreme Court of Spain:
Cuestion 62. Se presenta A, a las ocho de la
noche, en el estanco de B a comprar tabaco,
y habiendose negado este a darselo al fiado,
se retira a quel sin mediar entre ambos
disputa alguna; pero; trnscurrido un cuarto
de hora, hallandose el estanquero
despachando a C, se oye la detonacion de un
arma de fuego disparada por A desde la
calle, quedando muertos en el acto C y el
estanquero; supuesta la no intencion en A de
matar a C y si solo al estanquero, cabe
calificar la muerte de este de homicidio y la
de c de imprudencia temeraria? — La Sala
de lo Criminal de la Auudiencia de Granada
lo estimo asi, y condeno al procesado a
catorse anos de reclusion por el homivcidio
y a un año de prision correctional por la
imprudencia. Aparte de que la muerte del
estanquero debio calificarse de assesinato y
no de homicidio, por haberse ejecutado con
aleviosa. es evidente que la muerte de C,
suponiendo que no se propusiera ejecutaria
el procesado, no pudo calificarse de
imprudencia teme raria, sino que tambien
debio declararsele responsable de la misma,
a tenor de lo puesto en este apartado ultimo
del articulo; y que siendo ambas muertes
producidas por un solo hecho, o sea por un
solo disparo, debio imponerse al reo la pena
del delito de asesinato en el grado maximo, a
tenor de lo dispuesto en el art. 90 del
Codigo, o sea la pena de muerte. Se ve,
pues, claramente que en el antedicha
sentencia, aparte de otros articulos del
Codigo, se infringio por la Sala la
disposicion de este apartado ultimo del
articulo muy principalmente, y asi lo declaro
el Tribunal Supremo en S. de 18 junio de
1872. (Gaceta de 1,0 de agosto.) (I Viada,
5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as
follows:
Art. 48. Penalty for Complex Crimes. —
When a single act constitutes two or more
grave or less grave felonies, or when an
offense is a necessary means for committing
the other, the penalty for the most serious
crime shall be imposed, the same to be
applied in its maximum period.
We think it is the above-quoted article and not
paragraph 1 of article 49 that is applicable. The case
before us is clearly governed by the first clause of
article 48 because by a single act, that a throwing
highly explosive hand grenade at President Roxas,
the accused committed two grave felonies, namely:
(1) murder, of which Simeon Varela was the victim;
and (2) multiple attempted murder, of which
President Roxas, Alfredo Eva, Jose Fabio, Pedro
Carrillo and Emilio Maglalang were the injured
parties.
The killing of Simeon Varela was attended by the
qualifying circumstance of treachery. In the case
of People vs. Mabug-at, supra, this court held that the
qualifying circumstance of treachery may be properly
considered, even when the victim of the attack was
not the one whom the defendant intended to kill, if it
appears from the evidence that neither of the two
persons could in any manner put up defense against
the attack, or become aware of it. In the same case it
was held that the qualifying circumstance of
premeditation may not be properly taken into the
account when the person whom the defendant
proposed to kill was different from the one who
became his victim.
There can be no question that the accused attempted
to kill President Roxas by throwing a hand grenade at
him with the intention to kill him, thereby
commencing the commission of a felony by over
acts, but he did not succeed in assassinating him "by
reason of some cause or accident other than his own
spontaneous desistance." For the same reason we
qualify the injuries caused on the four other persons
already named as merely attempted and not frustrated
murder.
In this connection, it should be stated that , although
there is abundant proof that , in violation of the
provisions of article 148 of the Revised Penal Code,
the accused Guillen has committed among others the
offense of assault upon a person in authority, for in
fact his efforts were directed towards the execution of
his main purpose of eliminating President Roxas for
his failure to redeem his electoral campaign promises,
by throwing at him in his official capacity as the
Chief Executive of the nation the hand grenade in
question, yet, in view of the appropriate allegation
charging Guillen with the commission of said
offense, we shall refrain making a finding to that
effect.
The complex crimes of murder and multiple
attempted murder committed by the accused with the
single act of throwing a hand grenade at the
President, was attended by the various aggravating
circumstances alleged in the information, without any
mitigating circumstance. But we do not deem it
necessary to consider said aggravating circumstances
because in any event article 48 of the Revised Penal
Code above-quoted requires that the penalty for the
most serious of said crimes be applied in its
maximum period. The penalty for murder is reclusion
temporal in its maximum period to death. (Art. 248.)
It is our painful duty to apply the law and mete out to
the accused the extreme penalty provided by it upon
the facts and circumstances hereinabove narrated.
The sentence of the trial court being correct, we have
no alternative but to affirm it, and we hereby do so by
a unanimous vote. The death sentence shall be
executed in accordance with article 81 of the Revised
Penal Code, under authority of the Director of
Prisons, on such working day as the trial court may
fix within 30 days from the date the record shall have
been remanded. It is so ordered.
EN BANC
G.R. No. L-38773 December 19, 1933
THE PEOPLE OF THE PHILIPPINE
ISLANDS, Plaintiff-Appellee, vs. GINES
ALBURQUERQUE Y SANCHEZ, Defendant-
Appellant.
Gibbs and McDonough and Roman Ozaeta, for
appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEÑA, C.J.: chanrobles virtual law library
The judgment appealed from finds the appellants
Gines Alburquerque guilty of the crime of homicide
committed on the person of Manuel Osma and
sentences him to eight years and one day of prision
mayor, and to indemnify the heirs of the deceased in
the sum of P1,000, with costs.
The appellant herein, who is a widower of fifty-five
years of age and father of nine living children, has
been suffering from partial paralysis for some time,
walks dragging one leg and has lost control of the
movement of his right arm. He has been unable to
work since he suffered the stroke of paralysis. One of
his daughters was named Maria and another, are
married, while still another one is a nun. With the
exemption of the other married daughter and the nun,
of all of them, including the appellant, live with
Maria upon whom they depend for support.
Among the daughters living with Maria, one named
Pilar became acquainted and had intimate relations
later with the deceased Manuel Osma about the end
of the year 1928. It was then that the appellant
became acquainted with the deceased who frequently
visited Pilar in his house. The relations between Pilar
and the deceased culminated in Pilar's giving birth to
a child. The appellant did not know that his
daughter's relations with the deceased had gone to
such extremes, that he had to be deceived with the
information that she had gone to her godfather's
house in Singalong, when in fact she had been taken
to the Chinese Hospital for delivery. The appellant
learned the truth only when Pilar returned home with
her child.
Naturally the appellant was deeply affected by this
incident, since which time he has appeared sad and
worried not only because of the dishonor it brought
upon his family but also because the child meant an
added burden to Maria upon whom they all depended
for support. For some time the appellant wrote letters,
that at times were hostile and threatening and at other
times entreating the deceased to legitimize his union
with Pilar by marrying her, or at least, to support her
and his child. Although the deceased agreed to give
the child a monthly allowance by way of support, he
never complied with his promise.
The appellant was in such a mood when he presented
himself one day at the office where the deceased
worked and asked leave of the manager thereof to
speak to Osma. They both went downstairs. What
happened later, nobody witnessed. But the undisputed
fact is that on that occasion the appellant inflicted a
wound at the base of the neck of the deceased,
causing his death.
After excluding the improbable portions thereof, the
court infers from the testimony of the appellant that
he proposed to said deceased to marry his daughter
and that, upon hearing that the latter refused to do so,
he whipped out his penknife. Upon seeing the
appellant's attitude, the deceased tried to seize him by
the neck whereupon the said appellant stabbed him
on the face with the said penknife. Due to his lack of
control of the movement of his arm, the weapon
landed on the base of the neck of the deceased.
The trial court found that the appellant did not intend
to cause so grave an injury as the death of the
deceased. We find that his conclusion is supported by
the evidence. In his testimony the appellant
emphatically affirmed that he only wanted to inflict a
wound that would leave a permanent scar on the face
of the deceased, or one that would compel him to
remain in the hospital for a week or two but never
intended to kill him, because then it would frustrate
his plan of compelling him to marry or, at least,
support his daughter. The appellant had stated this
intention in some of his letters to the deceased by
way of a threat to induce him to accept his proposal
for the benefit of his daughter. That the act of the
appellant in stabbing the deceased resulted in the fatal
wound at the base of his neck, was due solely to the
fact hereinbefore mentioned that appellant did not
have control of his right arm on account of paralysis
and the blow, although intended for the face, landed
at the base of the neck. Therefore, the mitigating
circumstance of lack of intention to cause so grave an
injury as the death of the deceased as well as those of
his having voluntarily surrendered himself to the
authorities, and acted under the influence of passion
and obfuscation, should be taken into consideration in
favor of the appellant.
Under the facts above stated, we cannot entertain the
appellant's contention that he acted in legitimate self-
defense inasmuch as he provoked and commenced
the aggression by whipping out and brandishing his
penknife.
The defense likewise claims that, at all events, article
49 of the Revised Penal Code, which refers to cases
where the crime committed is different from that
intended by the accused, should be applied herein.
This article is a reproduction of article 64 of the old
Code and has been interpreted as applicable only in
cases where the crime befalls a different person
(decisions of the Supreme Court of Spain of October
20, 1897, and June 28,1899), which is not the case
herein.
The facts as herein proven constitute the crime of
homicide defined and penalized in article 249 of the
Revised Penal Code with reclusion temporal. In view
of the concurrence therein of three mitigating
circumstances without any aggravating circumstance,
the penalty next lower in degree, that is prision
mayor, should be imposed.
Wherefore, pursuant to the provisions of Act No.
4103, the appellant is hereby sentenced to suffer the
indeterminate penalty of from one (1) year of prision
correccional to eight (8) years and (1) day ofprision
mayor, affirming the judgment appealed from in all
other respects, with the costs. So ordered.
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN
and the minors NORMA, LUZVIMINDA,
ELENITA, OSCAR and ALFREDO BATACLAN,
represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, plaintiffs-
appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R.
Francisco for plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus
no. 30 of the Medina Transportation, operated by its
owner defendant Mariano Medina under a certificate
of public convenience, left the town of Amadeo,
Cavite, on its way to Pasay City, driven by its regular
chauffeur, Conrado Saylon. There were about
eighteen passengers, including the driver and
conductor. Among the passengers were Juan
Bataclan, seated beside and to the right of the driver,
Felipe Lara, sated to the right of Bataclan, another
passenger apparently from the Visayan Islands whom
the witnesses just called Visaya, apparently not
knowing his name, seated in the left side of the
driver, and a woman named Natalia Villanueva,
seated just behind the four last mentioned. At about
2:00 o'clock that same morning, while the bus was
running within the jurisdiction of Imus, Cavite, one
of the front tires burst and the vehicle began to zig-
zag until it fell into a canal or ditch on the right side
of the road and turned turtle. Some of the passengers
managed to leave the bus the best way they could,
others had to be helped or pulled out, while the three
passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them
named Natalia Villanueva, could not get out of the
overturned bus. Some of the passengers, after they
had clambered up to the road, heard groans and
moans from inside the bus, particularly, shouts for
help from Bataclan and Lara, who said they could not
get out of the bus. There is nothing in the evidence to
show whether or not the passengers already free from
the wreck, including the driver and the conductor,
made any attempt to pull out or extricate and rescue
the four passengers trapped inside the vehicle, but
calls or shouts for help were made to the houses in
the neighborhood. After half an hour, came about ten
men, one of them carrying a lighted torch made of
bamboo with a wick on one end, evidently fueled
with petroleum. These men presumably approach the
overturned bus, and almost immediately, a fierce fire
started, burning and all but consuming the bus,
including the four passengers trapped inside it. It
would appear that as the bus overturned, gasoline
began to leak and escape from the gasoline tank on
the side of the chassis, spreading over and permeating
the body of the bus and the ground under and around
it, and that the lighted torch brought by one of the
men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed
passengers inside the bus were removed and duly
identified that of Juan Bataclan. By reason of his
death, his widow, Salud Villanueva, in her name and
in behalf of her five minor children, brought the
present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and
attorney's fees in the total amount of P87,150. After
trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs plus P600 as attorney's fee,
plus P100, the value of the merchandise being carried
by Bataclan to Pasay City for sale and which was lost
in the fire. The plaintiffs and the defendants appealed
the decision to the Court of Appeals, but the latter
endorsed the appeal to us because of the value
involved in the claim in the complaint.
Our new Civil Code amply provides for the
responsibility of common carrier to its passengers
and their goods. For purposes of reference, we are
reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the
nature of their business and for reasons of
public policy, are bound to observe
extraordinary diligence in the vigilance over
the goods and for the safety of the
passengers transported by them, according
to all the circumstances of each case.
Such extraordinary diligence in the vigilance
over the goods is further expressed in
articles 1734, 1735, and 1745, Nos. 5, 6, and
7, while the extra ordinary diligence for the
safety of the passengers is further set forth in
articles 1755 and 1756.
ART. 1755. A common carrier is bound to
carry the passengers safely as far as human
care and foresight can provide, using the
utmost diligence of very cautious persons,
with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to
passengers, common carriers are presumed
to have been at fault or to have acted
negligently, unless they prove that they
observed extraordinary diligence as
prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for
the death of or injuries to passengers through
the negligence or willful acts of the former's
employees, although such employees may
have acted beyond the scope of their
authority or in violation of the order of the
common carriers.
 This liability of the common carriers does
not cease upon proof that they exercised all
the diligence of a good father of a family in
the selection and supervision of their
employees.
ART. 1763. A common carrier responsible
for injuries suffered by a passenger on
account of the willful acts or negligence of
other passengers or of strangers, if the
common carrier's employees through the
exercise of the diligence of a good father of
a family could have prevented or stopped the
act or omission.
We agree with the trial court that the case involves a
breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry
Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was
negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show
that at the time of the blow out, the bus was speeding,
as testified to by one of the passengers, and as shown
by the fact that according to the testimony of the
witnesses, including that of the defense, from the
point where one of the front tires burst up to the canal
where the bus overturned after zig-zaging, there was
a distance of about 150 meters. The chauffeur, after
the blow-out, must have applied the brakes in order to
stop the bus, but because of the velocity at which the
bus must have been running, its momentum carried it
over a distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to
what degree. The trial court was of the opinion that
the proximate cause of the death of Bataclan was not
the overturning of the bus, but rather, the fire that
burned the bus, including himself and his co-
passengers who were unable to leave it; that at the
time the fire started, Bataclan, though he must have
suffered physical injuries, perhaps serious, was still
alive, and so damages were awarded, not for his
death, but for the physical injuries suffered by him.
We disagree. A satisfactory definition of proximate
cause is found in Volume 38, pages 695-696 of
American jurisprudence, cited by plaintiffs-appellants
in their brief. It is as follows:
. . . 'that cause, which, in natural and
continuous sequence, unbroken by any
efficient intervening cause, produces the
injury, and without which the result would
not have occurred.' And more
comprehensively, 'the proximate legal cause
is that acting first and producing the injury,
either immediately or by setting other events
in motion, all constituting a natural and
continuous chain of events, each having a
close causal connection with its immediate
predecessor, the final event in the chain
immediately effecting the injury as a natural
and probable result of the cause which first
acted, under such circumstances that the
person responsible for the first event should,
as an ordinary prudent and intelligent
person, have reasonable ground to expect at
the moment of his act or default that an
injury to some person might probably result
therefrom.
It may be that ordinarily, when a passenger bus
overturns, and pins down a passenger, merely causing
him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is
set on fire, say, by lightning, or if some highwaymen
after looting the vehicle sets it on fire, and the
passenger is burned to death, one might still contend
that the proximate cause of his death was the fire and
not the overturning of the vehicle. But in the present
case under the circumstances obtaining in the same,
we do not hesitate to hold that the proximate cause
was the overturning of the bus, this for the reason that
when the vehicle turned not only on its side but
completely on its back, the leaking of the gasoline
from the tank was not unnatural or unexpected; that
the coming of the men with a lighted torch was in
response to the call for help, made not only by the
passengers, but most probably, by the driver and the
conductor themselves, and that because it was dark
(about 2:30 in the morning), the rescuers had to carry
a light with them, and coming as they did from a rural
area where lanterns and flashlights were not
available; and what was more natural than that said
rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from
them. In other words, the coming of the men with a
torch was to be expected and was a natural sequence
of the overturning of the bus, the trapping of some of
its passengers and the call for outside help. What is
more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness,
the driver and the conductor were on the road
walking back and forth. They, or at least, the driver
should and must have known that in the position in
which the overturned bus was, gasoline could and
must have leaked from the gasoline tank and soaked
the area in and around the bus, this aside from the
fact that gasoline when spilled, specially over a large
area, can be smelt and directed even from a distance,
and yet neither the driver nor the conductor would
appear to have cautioned or taken steps to warn the
rescuers not to bring the lighted torch too near the
bus. Said negligence on the part of the agents of the
carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and
1763.
As regard the damages to which plaintiffs are
entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a
damage award, we are satisfied that the amount of
SIX THOUSAND (P6,000) PESOS would constitute
satisfactory compensation, this to include
compensatory, moral, and other damages. We also
believe that plaintiffs are entitled to attorney's fees,
and assessing the legal services rendered by plaintiffs'
attorneys not only in the trial court, but also in the
course of the appeal, and not losing sight of the able
briefs prepared by them, the attorney's fees may well
be fixed at EIGHT HUNDRED (P800) PESOS for
the loss of merchandise carried by the deceased in the
bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it
does not shock us. According to the evidence, one of
the passengers who, because of the injuries suffered
by her, was hospitalized, and while in the hospital,
she was visited by the defendant Mariano Medina,
and in the course of his visit, she overheard him
speaking to one of his bus inspectors, telling said
inspector to have the tires of the bus changed
immediately because they were already old, and that
as a matter of fact, he had been telling the driver to
change the said tires, but that the driver did not
follow his instructions. If this be true, it goes to prove
that the driver had not been diligent and had not taken
the necessary precautions to insure the safety of his
passengers. Had he changed the tires, specially those
in front, with new ones, as he had been instructed to
do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred.
All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting
in the death of four of his passengers, physical
injuries to others, and the complete loss and
destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his
consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But
the record of the case before us shows the several
witnesses, passengers, in that bus, willingly and
unhesitatingly testified in court to the effect of the
said driver was negligent. In the public interest the
prosecution of said erring driver should be pursued,
this, not only as a matter of justice, but for the
promotion of the safety of passengers on public
utility buses. Let a copy of this decision be furnished
the Department of Justice and the Provincial Fiscal of
Cavite.
In view of the foregoing, with the modification that
the damages awarded by the trial court are increased
from ONE THOUSAND (P1,000) PESOS TO SIX
THOUSAND (P6,000) PESOS, and from SIX
HUNDRED PESOS TO EIGHT HUNDRED (P800)
PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is
from hereby affirmed, with costs.
G.R. No. L-1896 February 16, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
RAFAEL BALMORES Y CAYA, defendant-
appellant.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and
Solicitor Adolfo Brillantes for appellee.
OZAETA, J.:
Appellant, waiving the right to be assisted by
counsel, pleaded guilty to the following information
filed against him in the Court of First Instance of
Manila:
The undersigned accuses Rafael Balmores y
Caya of attempted estafa through
falsification of a security, committed as
follows:
That on or about the 22nd day of September,
1947, in the City of Manila, Philippines, the
said accused did then and there wilfully,
unlawfully and feloniously commence the
commission of the crime of estafa through
falsification of a security directly by overt
acts, to wit; by then and there tearing off at
the bottom in a cross-wise direction a
portion of a genuine 1/8 unit Philippine
Charity Sweepstakes ticket thereby
removing the true and real unidentified
 number of same and substituting and writing
in ink at the bottom on the left side of said
ticket the figure or number 074000 thus
making the said ticket bear the said number
074000, which is a prize-winning number in
the Philippine Charity Sweepstakes draw
last June 29, 1947, and presenting the said
ticket so falsified on said date, September
22, 1947, in the Philippine Charity
Sweepstakes Office for the purpose of
exchanging the same for the corresponding
cash that said number has won, fraudulently
pretending in said office that the said 1/8
unit of a Philippine Charity Sweepstakes
ticket is genuine and that he is entitled to the
corresponding amount of P359.55 so won by
said ticket in the Philippine Charity
Sweepstakes draw on said date, June 29,
1947, but the said accused failed to perform
all the acts of execution which would have
produce the crime of estafa through
falsification of a security as a consequence
by reason of some causes other than this
spontaneous desistance, to wit: one Bayani
Miller, an employee to whom the said
accused presented said ticket in the
Philippine Charity Sweepstakes Office
discovered that the said ticket as presented
by the said accused was falsified and
immediately thereafter he called for a
policeman who apprehended and arrested
the said accused right then and there.
Contrary to law.
(Sgd.) LORENZO RELOVA
Assistant City Fiscal
and was sentenced by Judge Emilio Pena to suffer not
less than 10 years and 1 day of prision mayor and not
more than 12 years and 1 day of reclusion temporal,
and to pay a fine of P100 and the costs.
From that sentence he appealed to this court,
contending (1) that the facts and (2) that the trial
court lacked jurisdiction to convict him on a plea of
guilty because, being illiterate, he was not assisted by
counsel.
In support of the first contention, counsel for the
appellant argues that there could be no genuine 1/8
unit Philippine Charity Sweepstakes ticket for the
June 29, 1947, draw; that this court has judicial
notice that the Philippine Charity Sweepstakes Office
issued only four 1/4 units for each ticket for the said
draw of June 29, 1947; that the information does not
show that the true and real unidentified number of the
ticket alleged to have been torn was not and could not
be 074000; that the substitution and writing in ink of
the said number 074000 was not falsification where
the true and real number of the ticket so torn was
074000.
This contention is based on assumption not borne out
by the record. The ticket alleged to have been
falsified is before us and it appears to be a 1/8 unit.
We cannot take judicial notice of what is not of
common knowledge. If relevant, should have been
proved. But if it is true that the Philippine Charity
Sweepstakes Office did not issue 1/8 but only 1/4
units of tickets for the June 29, 1947, draw, that
would only strengthen the theory of the prosecution
that the 1/8 unit of a ticket which appellant presented
to the Philippine Charity Sweepstakes Office was
spurious. The assumption that the true and real
unidentified number of the ticket alleged to have been
torn was the winning number 074000, is likewise not
supported by the record. The information to which
appellant pleaded guilty alleged that the appellant
removed the true and real unidentified number of the
ticket and substituted and wrote in ink at the bottom
on the left side of said ticket the figure or number
074000. It is obvious that there would have been no
need of removal and substitution if the original
number on the ticket was the same as that which
appellant wrote in ink in lieu thereof.
The second contention appears to be based on a
correct premises but wrong conclusion. The fact that
appellant was illiterate did not deprive the trial court
of jurisdiction assisted by counsel. The decision
expressly states that appellant waived the right to be
assisted by counsel, and we know of no law against
such waiver.
It may be that appellant was either reckless or foolish
in believing that a falsification as patent as that which
he admitted to have perpetrated would succeed; but
the recklessness and clumsiness of the falsification
did not make the crime impossible within the purview
of paragraph 2, article 4, in relation to article 59, of
the Revised Penal Code. Examples of an impossible
crime, which formerly was not punishable but is now
under article 59 of the Revised Penal Code, are the
following: (1) When one tries to kill another by
putting in his soup a substance which he believes to
be arsenic when in fact it is common salt; and (2)
when one tries to murder a corpse. (Guevara,
Commentaries on the Revised Penal Code, 4th ed.,
page 15; decision, Supreme Court of Spain,
November 26, 1879; 12 Jur. Crim., 343.) Judging
from the appearance of the falsified ticket in
question, we are not prepared to say that it would
have been impossible for the appellant to
consummate the crime of estafa thru falsification of
said ticket if the clerk to whom it was presented for
the payment had not exercised due care.

The penalty imposed by article 166 for the forging or

falsification of "treasury or bank notes or certificates
or other obligations and securities" is reclusion
temporal in its minimum period and a fine not to
exceed P10,000, if the document which has been
falsified, counterfeited, or altered is an obligation or
security of the United States or of the Philippine
Islands. This being a complex crime of attempted
estafa through falsification of an obligation or
security of the Philippines, the penalty should be
imposed in its maximum period in accordance with
article 48. Taking into consideration the mitigating
circumstance of lack of instruction, and applying the
Indeterminate Sentence Law, the minimum cannot be
lower than prision mayor in its maximum period,
which is 10 years and 1 day to 12 years. It results,
therefore, that the penalty imposed by the trial court
is correct.

The alteration, or even destruction, of a losing

sweepstakes ticket could cause no harm to anyone
and would not constitute a crime were it not for the
attempt to cash the ticket so altered as a prize-
winning number. So in the ultimate analysis
appellant's real offense was the attempt to commit
estafa (punishable with eleven days of arresto
menor); but technically and legally he has to suffer
for the serious crime of falsification of a government
obligation. We realize that the penalty is too severe,
considering all the circumstances of the case, but we
have no discretion to impose a lower penalty than
authorized by law. The exercise of clemency and not
in this court.

We are constrained to affirm the sentence appealed

from, with costs against the appellant.
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for
review of the decision of the Court of
Appeals 1 affirming in toto the judgment of the
Regional Trial Court, Branch XIV, Oroquieta City,
finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod,
Jorge Pangasian, Santos Tubio and Avelino Daligdig
went to Salvador Mandaya's house in Katugasan,
Lopez Jaena, Misamis Occidental and asked him to
go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod,
Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted
Palangpangan to be killed because of a land dispute
between them and that Mandaya should accompany
the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same
day, Petitioner, Mandaya, Pangasian, Tubio and
Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena,
Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner,
Pangasian, Tubio and Daligdig fired at said room. It
turned out, however, that Palangpangan was in
another City and her home was then occupied by her
son-in-law and his family. No one was in the room
when the accused fired the shots. No one was hit by
the gun fire.
Petitioner and his companions were positively
identified by witnesses. One witness testified that
before the five men left the premises, they shouted:
"We will kill you (the witness) and especially
Bernardina Palangpangan and we will come back if
(sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod
of attempted murder. The court (RTC), as affirmed
by the Court of Appeals, holding that Petitioner was
guilty of attempted murder. Petitioner seeks from this
Court a modification of the judgment by holding him
liable only for an impossible crime, citing Article
4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL
RESPONSIBILITY. — Criminal
Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act
which would be an offense against
persons or property, were it not for
the inherent impossibility of its
accomplishment or on account of
the employment of inadequate or
ineffectual means.
Petitioner contends that, Palangpangan's
absence from her room on the night he and
his companions riddled it with bullets made
the crime inherently impossible.
On the other hand, Respondent People of the
Philippines argues that the crime was not impossible.
Instead, the facts were sufficient to constitute an
attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in
its Comment to the Petition, respondent pointed out
that:
. . . The crime of murder was not
consummated, not because of the
inherent impossibility of its
accomplishment (Art. 4(2), Revised
Penal Code), but due to a cause or
accident other than petitioner's and
his accused's own spontaneous
desistance (Art. 3., Ibid.)
Palangpangan did not sleep at her
house at that time. Had it not been
for this fact, the crime is possible,
not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the
Revised Penal Code. This seeks to remedy the void in
the Old Penal Code where:
. . . it was necessary that the
execution of the act has been
commenced, that the person
conceiving the idea should have set
 about doing the deed, employing
appropriate means in order that his
intent might become a reality, and
finally, that the result or end
contemplated shall have been
physically possible. So long as
these conditions were not present,
the law and the courts did not hold
him criminally liable. 5
This legal doctrine left social interests entirely
unprotected. 6 The Revised Penal Code, inspired by
the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were
it not aimed at something quite impossible or carried
out with means which prove inadequate, would
constitute a felony against person or against
property. 8 The rationale of Article 4(2) is to punish
such criminal tendencies. 9
Under this article, the act performed by the offender
cannot produce an offense against person or property
because: (1) the commission of the offense is
inherently impossible of accomplishment: or (2) the
means employed is either (a) inadequate or (b)
ineffectual. 10
That the offense cannot be produced because the
commission of the offense is inherently impossible of
accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. 11 There must be either
impossibility of accomplishing the intended act 12 in
order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts,
even if completed, would not amount to a
crime. 13 Thus:
Legal impossibility would apply to
those circumstances where (1) the
motive, desire and expectation is to
perform an act in violation of the
law; (2) there is intention to
perform the physical act; (3) there
is a performance of the intended
physical act; and (4) the
consequence resulting from the
intended act does not amount to a
crime. 14
The impossibility of killing a person already
dead 15 falls in this category.
On the other hand, factual impossibility occurs when
extraneous circumstances unknown to the actor or
beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts
his hand in the coat pocket of another with the
intention to steal the latter's wallet and finds the
pocket empty. 17
The case at bar belongs to this category. Petitioner
shoots the place where he thought his victim would
be, although in reality, the victim was not present in
said place and thus, the petitioner failed to
accomplish his end.
One American case had facts almost exactly the same
as this one. In People vs. Lee Kong, 18 the accused,
with intent to kill, aimed and fired at the spot where
he thought the police officer would be. It turned out,
however, that the latter was in a different place. The
accused failed to hit him and to achieve his intent.
The Court convicted the accused of an attempt to kill.
It held that:
The fact that the officer was not at
the spot where the attacking party
imagined where he was, and where
the bullet pierced the roof, renders
it no less an attempt to kill. It is
well settled principle of criminal
law in this country that where the
criminal result of an attempt is not
accomplished simply because of an
obstruction in the way of the thing
to be operated upon, and these facts
are unknown to the aggressor at the
time, the criminal attempt is
committed.
In the case of Strokes vs. State, 19 where the accused
failed to accomplish his intent to kill the victim
because the latter did not pass by the place where he
was lying-in wait, the court held him liable for
attempted murder. The court explained that:
It was no fault of Strokes that the
crime was not committed. . . . It
only became impossible by reason
of the extraneous circumstance that
Lane did not go that way; and
further, that he was arrested and
prevented from committing the
murder. This rule of the law has
application only where it is
inherently impossible to commit
the crime. It has no application to a
 case where it becomes impossible
for the crime to be committed,
either by outside interference or
because of miscalculation as to a
supposed opportunity to commit
the crime which fails to materialize;
in short it has no application to the
case when the impossibility grows
out of extraneous acts not within
the control of the party.
In the case of Clark vs. State, 20 the court held
defendant liable for attempted robbery even if there
was nothing to rob. In disposing of the case, the court
quoted Mr. Justice Bishop, to wit:
It being an accepted truth that
defendant deserves punishment by
reason of his criminal intent, no one
can seriously doubt that the
protection of the public requires the
punishment to be administered,
equally whether in the unseen
depths of the pocket, etc., what was
supposed to exist was really present
or not. The community suffers from
the mere alarm of crime. Again:
Where the thing intended
(attempted) as a crime and what is
done is a sort to create alarm, in
other words, excite apprehension
that the evil; intention will be
carried out, the incipient act which
the law of attempt takes cognizance
of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill,
fired at the window of victim's room thinking that the
latter was inside. However, at that moment, the
victim was in another part of the house. The court
convicted the accused of attempted murder.
The aforecited cases are the same cases which have
been relied upon by Respondent to make this Court
sustain the judgment of attempted murder against
Petitioner. However, we cannot rely upon these
decisions to resolve the issue at hand. There is a
difference between the Philippine and the American
laws regarding the concept and appreciation of
impossible crimes.
In the Philippines, the Revised Penal Code, in Article
4(2), expressly provided for impossible crimes and
made the punishable. Whereas, in the United States,
the Code of Crimes and Criminal Procedure is silent
regarding this matter. What it provided for were
attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an
attempt charge. In this regard, commentators and the
cases generally divide the impossibility defense into
two categories: legal versus factual
impossibility. 22 In U.S. vs. Wilson 23 the Court held
that:
. . . factual impossibility of the
commission of the crime is not a
defense. If the crime could have
been committed had the
circumstances been as the
defendant believed them to be, it is
no defense that in reality the crime
was impossible of commission.
Legal impossibility, on the other hand, is a defense
which can be invoked to avoid criminal liability for
an attempt. In U.S. vs. Berrigan, 24 the accused was
indicated for attempting to smuggle letters into and
out of prison. The law governing the matter made the
act criminal if done without knowledge and consent
of the warden. In this case, the offender intended to
send a letter without the latter's knowledge and
consent and the act was performed. However,
unknown to him, the transmittal was achieved with
the warden's knowledge and consent. The lower court
held the accused liable for attempt but the appellate
court reversed. It held unacceptable the contention of
the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested
by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming
modern view". In disposing of this contention, the
Court held that the federal statutes did not contain
such provision, and thus, following the principle of
legality, no person could be criminally liable for an
act which was not made criminal by law. Further, it
said:
Congress has not yet enacted a law
that provides that intent plus act
plus conduct constitutes the offense
of attempt irrespective of legal
impossibility until such time as
such legislative changes in the law
take place, this court will not
fashion a new non-statutory law of
criminal attempt.
To restate, in the United States, where the offense
sought to be committed is factually impossible or
accomplishment, the offender cannot escape criminal mayor, together with the accessory penalties provided
liability. He can be convicted of an attempt to commit by the law, and to pay the costs.
the substantive crime where the elements of attempt
are satisfied. It appears, therefore, that the act is SO ORDERED.
penalized, not as an impossible crime, but as an
attempt to commit a crime. On the other hand, where
the offense is legally impossible of accomplishment,
the actor cannot be held liable for any crime —
neither for an attempt not for an impossible crime.
The only reason for this is that in American law,
there is no such thing as an impossible crime. Instead,
it only recognizes impossibility as a defense to a
crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction,

impossible crimes are recognized. The impossibility
of accomplishing the criminal intent is not merely a
defense, but an act penalized by itself. Furthermore,
the phrase "inherent impossibility" that is found in
Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility
and legal impossibility. Ubi lex non distinguit nec nos
distinguere debemos.

The factual situation in the case at bar present a

physical impossibility which rendered the intended
crime impossible of accomplishment. And under
Article 4, paragraph 2 of the Revised Penal Code,
such is sufficient to make the act an impossible
crime.

To uphold the contention of respondent that the

offense was Attempted Murder because the absence
of Palangpangan was a supervening cause
independent of the actor's will, will render useless the
provision in Article 4, which makes a person
criminally liable for an act "which would be an
offense against persons or property, were it not for
the inherent impossibility of its accomplishment . . ."
In that case all circumstances which prevented the
consummation of the offense will be treated as an
accident independent of the actor's will which is an
element of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the

petition is hereby GRANTED, the decision of
respondent Court of Appeals holding Petitioner guilty
of Attempted Murder is hereby MODIFIED. We
hereby hold Petitioner guilty of an impossible crime
as defined and penalized in Articles 4, paragraph 2,
and 59 of the Revised Penal Code, respectively.
Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences
him to suffer the penalty of six (6) months of arresto
G.R. No. L-12155 February 2, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated
murder.
We are satisfied that there was an intent to kill in this
case. A deadly weapon was used. The blow was
directed toward a vital part of the body. The
aggressor stated his purpose to kill, thought he had
killed, and threw the body into the bushes. When he
gave himself up he declared that he had killed the
complainant.
There was alevosia to qualify the crime as murder if
death had resulted. The accused rushed upon the girl
suddenly and struck her from behind, in part at least,
with a sharp bolo, producing a frightful gash in the
lumbar region and slightly to the side eight and one-
half inches long and two inches deep, severing all of
the muscles and tissues of that part.
The motive of the crime was that the accused was
incensed at the girl for the reason that she had
theretofore charged him criminally before the local
officials with having raped her and with being the
cause of her pregnancy. He was her
mother's querido and was living with her as such at
the time the crime here charged was committed.
That the accused is guilty of some crime is not
denied. The only question is the precise crime of
which he should be convicted. It is contended, in the
first place, that, if death has resulted, the crime would
not have been murder but homicide, and in the
second place, that it is attempted and not frustrated
homicide.
As to the first contention, we are of the opinion that
the crime committed would have been murder if the
girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a
sudden attack upon his victim from the rear, or partly
from the rear, and dealing her a terrible blow in the
back and side with his bolo. Such an attack
necessitates the finding that it was made
treacherously; and that being so the crime would have
been qualified as murder if death had resulted.
As to the second contention, we are of the opinion
that the crime was frustrated and not attempted
murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
A felony is frustrated when the offender
performs all the acts of execution which
should produce the felony as a consequence,
but which, nevertheless, do not produce it by
reason of causes independent of the will of
the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender
commences the commission of the felony
directly by overt acts, and does not perform
all the acts of execution which constitute the
felony by reason of some cause or accident
other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear
from the fact that the defendant performed all of the
acts which should have resulted in the consummated
crime and voluntarily desisted from further acts. A
crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime
by overt acts, is prevented, against his will, by some
outside cause from performing all of the acts which
should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the
moment when he has performed all of the acts which
should produce the crime as a consequence, which
acts it is his intention to perform. If he has performed
all of the acts which should result in the
consummation of the crime and voluntarily desists
from proceeding further, it can not be an attempt. The
essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or
agency between the beginning of the commission of
the crime and the moment when all of the acts have
been performed which should result in the
consummated crime; while in the former there is such
intervention and the offender does not arrive at the
point of performing all of the acts which should
produce the crime. He is stopped short of that point
by some cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the
offender never passes the subjective phase of the
offense. He is interrupted and compelled to desist by
the intervention of outside causes before the
subjective phase is passed.
On the other hand, in case of frustrated crimes the
subjective phase is completely passed. Subjectively
the crime is complete. Nothing interrupted the
offender while he was passing through the subjective
phase. The crime, however, is not consummated by
reason of the intervention of causes independent of
the will of the offender. He did all that was necessary
to commit the crime. If the crime did not result as a
consequence it was due to something beyond his
control.
The subjective phase is that portion of the acts
constituting the crime included between the act
which begins the commission of the crime and
the last act performed by the offender which, with the
prior acts, should result in the consummated crime.
From that time forward the phase is objective. It may
also be said to be that period occupied by the acts of
the offender over which he has control — that period
between the point where he begins and the points
where he voluntarily desists. If between these two
points the offender is stopped by reason of any cause
outside of his own voluntary desistance, the
subjective phase has not been passed and it is an
attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years
of cadena temporal there being neither aggravating
nor mitigating circumstance. As so modified, the
judgment is affirmed with costs. So ordered.
G.R. No. 99838 October 23, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
ERNESTO ENRIQUEZ y ROSALES and
WILFREDO ROSALES y YUCOT, accused-
appellants.
VITUG, J.:
Ernesto Enriquez y Rosales and Wilfredo Rosales y
Yucot were charged with having violated Section 4,
Article II, of Republic Act ("R.A.") No. 6425
(Dangerous Drugs Act of 1972), as amended, in an
information that read:
That on or about June 5, 1990, in the City of
Manila, Philippines, the said accused,
conspiring and confederating together and
mutually helping each other, not being
authorized by law to sell, deliver, give away
to another or distribute any prohibited drug,
did then and there wilfully and unlawfully
sell or offer for sale six (6) kgrms of dried
flowering tops of marijuana stuffed in a
plastic sack, which is a prohibited drug.
Contrary to law.1
The antecedent facts leading to the filing of the
information, according to the prosecution, are
hereunder narrated.
At around eleven o'clock in the morning of 05 June
1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-in-Charge
of the Intelligence and Drug Law Enforcement Unit
of Police Station No. 2 (located in Tondo, Manila) of
the Western Police District, was in the vicinity of
North Harbor routinely scouting for information from
his civilian informants. Near the gate fronting Pier
10, "Danny," a porter and member of the Anti-Drug
Abuse Movement ("ADAM"), approached and
informed Sgt. Cerrillo that a free-lance porter at the
North Harbor, a.k.a. "Bulag," was looking for
prospective buyers of marijuana. Sgt. Cerrillo
instructed Danny to say that he had come across a
couple who would be interested in buying the
prohibited drug. Sgt. Cerrillo had then in mind a
possible buy-bust operation.
The buy-bust plan was broached to Patrolwoman
Shirley Maramot who was manning Police Station
No. 2. Fellow police officers were at the time on duty
at the U.S. Embassy where a "rally" by certain
activists was in progress. Using his own owner-type
jeep, Sgt. Cerrillo repaired to his house at 727
Moriones St., Tondo, Manila, to procure ten (10)
pieces of one hundred peso bills2 to be used in the
projected buy-bust operation.3 He thereupon had, at a
store near the police station, xerox copies made of the
bills that can readily show the serial numbers which
he had also noted down in his personal notebook.4
Back at the police station, Sgt. Cerrillo handed the
buy-bust money to Pat. Maramot. Since there were no
other "operatives" at the station available for the
operation, Sgt. Cerrillo sought the assistance of
ADAM members Joseph Mendoza, Amado Betita
and Alex Trinidad. The team, including "Danny,"
were briefed by Sgt. Cerrillo. The plan called for Pat.
Maramot and Mendoza to pose as the couple
interested in buying marijuana and for Trinidad,
Betita and Sgt. Cerrillo to act as the "back-up" men.
Pat. Maramot was to nod her head as soon as the sale
was consummated.5
At about 11:35 a.m., the group, using two vehicles,
proceeded to the vicinity of Pier 10 at the North
Harbor At the corner of Moriones Street and Radial
Road 10, Pat. Maramot and Mendoza sat on a bench
by a store to wait for the return of "Danny," who had
meanwhile left to fetch "Bulag, while Sgt. Cerrillo,
Trinidad and Betita strategically positioned
themselves at a billiard hall, mingling with spectators
and pretending to be bystanders. The billiard hall was
only about ten meters away from Pat. Maramot's
group, and it afforded a good view of the place. 6
Moments later, Danny arrived with accused Wilfredo
Rosales, a.k.a. "Bulag." Rosales talked with the
poseur-buyers. After about five minutes, the poseur-
buyers, Rosales and the informant entered an alley,
walking along shanties, until they reached a house
numbered 1349.
A half-naked man in green shorts emerged from one
of the doors of the house. The man, later identified to
be accused Ernesto Enriquez, a.k.a. "Nene," asked
Pat. Maramot in Visayan accent, "Dala mo ba ang
pera?" Pat. Maramot took out from her pocket the
bundle of the marked money and showed it to
Enriquez. The latter allowed Maramot's group to
enter the house.7 Minutes later, as so pre-arranged,
Sgt. Cerrillo followed and proceeded to house No.
1349. Finding the door closed, he went around the
house. Sgt. Cerrillo saw Pat. Maramot, Mendoza and
the informant exit through the back door. Rosales,
carrying a plastic bag, was with them. Again, Sgt.
Cerrillo's group followed Pat. Maramot and Rosales
until the latter reached a nearby waiting shed for
jeepney passengers. At this point, Pat. Maramot
announced that she was a policewoman. Sgt. Cerrillo
held Rosales and took his bag. Sgt. Cerrillo opened
the sack, and inside it was another sack containing
marijuana wrapped in plastic.
The group hurriedly returned to house No. 1349 only
to find that Enriquez had by then left the premises.
The team boarded the police service jeep and moved
on to Kagitingan Street at the Lakandula detachment.
Sgt. Cerrillo interviewed Rosales. Upon being
informed that Enriquez would usually visit the Pier
10 area, Sgt. Cerrillo proceeded to the place. After
scouring the area, a security guard supervisor at the
pier, who accompanied the group, spotted Enriquez
walking near the pier. Sgt. Cerrillo "picked up"
Enriquez and brought him to the Lakandula
detachment for investigation. Later, Minda, the wife
of Enriquez, arrived. Someone, at the request of
Enriquez, had fetched her to "bring the money.
Enriquez told her to return the amount to Sgt.
Cerrillo. She took out from her wallet its contents
three of which were the 100-peso marked
bills.8 Minda became hysterical. She embraced Sgt.
Cerrillo and begged him to forgive her husband. Sgt.
Cerrillo told her to instead see the station
commander.9
Sgt. Cerrillo apprised Enriquez and Rosales of their
constitutional rights. Sgt. Cerrillo advised Enriquez,
in front of the latter's wife, that he should look for a
lawyer so that his statement could be taken. Sgt.
Cerrillo prepared the request for the examination of
the evidence taken from the accused and the
affidavit10 of the latter's arrest.11
On the evening of 05 June 1990, Minda and other
relatives of Enriquez approached Sgt. Cerrillo for the
possibility of "settling" the case. During the trial,
another relative, a senior supervising agent of the
Napolcom, also approached and requested Sgt.
Cerrillo to help out.12
Patrolwoman Shirley Maramot, 37 years old,
assigned at Police Station No. 2, corroborated Sgt.
Cerrillo. She testified that she was requested by Sgt.
Cerrillo to be the poseur-buyer in the buy-bust
operation conducted in the morning of 05 June 1990
along Alinian Street, Tondo, Manila. After Sgt.
Cerrillo had conducted a briefing and provided her
with the buy-bust money, Pat. Maramot went with
Mendoza, who portrayed the role of her husband, and
the informer to Radial 10 at Pier 14. When Wilfredo
Rosales turned up, he asked if she had cash with her.
After being shown the money, Rosales led her to a
house numbered 1349. The poseur-buyers were made
to wait momentarily while Rosales talked to Ernesto
Enriquez. Rosales later signaled Pat. Maramot, who
was around four (4) meters away, to again show her
money. Forthwith, Pat. Maramot was led to the house
of Enriquez. Once inside a small room, Enriquez
locked the door. Enriquez asked Pat. Maramot how
much money she had. She replied that she only had
P1,000.00 since she was not sure that she could get as
much as the one-half sack of the contraband shown to
her. Pat. Maramot was told she could get the lot for
P4,500.00. She said she was willing to get the lot if
she could be trusted with the balance of the price.
Enriquez agreed. Pat. Maramot handed over the
P1,000.00 to Enriquez. The latter was about to hand
over the marijuana when he decided to, instead, have
Rosales personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally
introduced herself as a policewoman. Rosales
posthaste attempted to board a passing passenger jeep
but Pat. Maramot and Sgt. Cerrillo, who had rushed
in, were able to timely get hold of Rosales.13
NBI Forensic Chemist George J. de Lara issued, on
06 June 1990, a certification to the effect that the
specimen submitted to him was positive for
marijuana.14 Sgt. Cerrillo prepared a case report15 and
the respective booking sheet and arrest report.16 The
official report of the NBI forensic chemist, dated 07
June 1990, disclosed the following findings:
Weight of specimen = 6.00 kilograms
(before examination)
5.999 kilograms (after examination)
Microscopic, chemical and chromatographic
examinations made on
the above-mentioned specimen gave
POSITIVE RESULTS for MARIHUANA.17
On the same day, Station Commander Benjamin de
Jesus endorsed the case against Enriquez and Rosales
to the City Prosecutor for further proceedings. The
inquest fiscal recommended18 that the two accused be
charged with violation of Section 4, Article II,
Republic Act No. 6425, as amended.
The defense gave a different version of the incident.
Accused Rosales testified that he had come from
Bohol to Manila in April of 1990 and stayed with
accused Enriquez, his cousin, while working as an
extra porter of William Lines. At around 11:30 in the
morning of 05 June 1990, he was on his way home
from work when a male person whom he recognized
only by face sought his assistance in carrying a sack
to a place where jeepney commuters would take their
ride. The sack was colored white and emitted the
smell of dried fish. He was promised P20 in exchange
for his help. At a junction, a security guard whom he
later identified to be Homer Ciesta, blocked and
pushed him inside a vehicle where he was promptly
handcuffed. During the commotion, the owner of the
sack disappeared.19 Rosales was brought to a house
near the slum area in Parola where P20,000 was
quoted for his release by Sgt. Cerrillo.20 When
Rosales did not heed the demand, he was brought
first to the Lakandula detachment and then to Station
No. 2 of the Western Police District.
On his part, Enriquez, a resident of 1349-C Alinian
Street, Tondo, Manila, claimed that he was in the
business of purchase and sale of oil at the North
Harbor, under the business name of Nie-Men R.
Enriquez Enterprises,21 being the grantee of a permit
to operate an oil sludge collection service.22 He was
under contract by the Lorenzo Shipping Corporation
from January 1983 to April 1984. He was also the
Vice-President of the "Kapisanan ng Maralitang
Naninirahan ng Tondo, Inc." a civic organization and
a recipient of a certification of merit from the
National Steel Corporation.23
Recounting his whereabouts in the morning of 05
June 1990, Enriquez said he left his house at around
11:45 a.m. for Pier 10 of the North Harbor, barely a
thirty-minute walk away from his residence, to meet
his brother, Victor Enriquez, at the pier. He had with
him P2,000 in P100 denominations stacked in his
wallet. Robinson Lumbis, a neighbor who was road
testing his cab along North Harbor, saw and greeted
Enriquez.24 Betty Quimbo, another neighbor, later
saw Enriquez with his brother.25 Appellant took his
lunch at home and thereafter hurriedly returned to the
pier. He was not able to spend the night in his house.
The following day, 06 June 1990, at around two
o'clock in the afternoon, Enriquez went to the
maintenance section of the Lorenzo Shipping Lines
to pay for the oil he had obtained from its vessels.
Homer Ciesta, the officer-in-charge of the security
guards of the shipping line, invited Enriquez, and the
latter agreed, to join him (Ciesta) earn some "extra
money." The two left for the squatter's area in Parola
and, once there, Ciesta told Enriquez to approach a
certain person, later identified to be Sgt. Cerrillo,
who instantly handcuffed him. Sgt. Cerrillo
demanded P20,000 in exchange for his freedom.
When he refused to give in to the demand, Enriquez
was brought to the Lakandula detachment where the
P2,000 he had in his wallet was taken and presented
in evidence as the amount used in the buy-bust
operation. He was brought to Station No. 2 of the
WPD for investigation.26 Homer Ciesta went to tell
Arminda, the wife of Enriquez, to bring some money
to the Lakandula police detachment. Arriving at the
detachment, someone approached Arminda and asked
her whether she had the money. She replied in the
affirmative. The person then grabbed her wallet; took
its contents and later returned the empty wallet.27
On 24 January 1991, the trial court, giving credence
to the evidence submitted by the prosecution, found
both accused guilty beyond reasonable doubt of the
crime charged and sentenced each of them to life
imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez
have filed separate briefs.
Appellant Enriquez insists on his innocence and
faults the trial court for giving too much credence to
the testimony of Sgt. Cerrillo and Pat. Maramot who,
Enriquez asserts, have merely framed them up for
selfish motives. He theorizes that it would seem
incredible for either Pat. Maramot or Sgt. Cerrillo to
have left and abandoned Station No. 2 considering
that the Station Commander and his men have all
been posted in the then on-going rally at the U.S.
Embassy. He downgrades the prosecution's
asseveration that Pat. Maramot, being unarmed, could
not effect his immediate arrest, and that Sgt. Cerrillo
has so used his personal funds as marked money.
Enriquez also questions the six-day delay in the filing
of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the
credibility of the two prosecution witnesses. Almost
always, the evaluation made by the trial court on the
credibility of witnesses is viewed with respect. The
trial judge, who has the distinct advantage of being
able to observe closely the demeanor and deportment
of witnesses on the stand as well as the manner in
which they testify, undoubtedly can better determine
than anyone else if such witnesses are telling or are
not telling the truth. He is in an ideal position to
weigh conflicting testimonies and unless, as so
repeatedly said, he has obviously discarded or missed
certain facts of substance and significance that,
otherwise, would have altered his judgment, an
assessment on credibility made by him should indeed
deserve approbation by an appellate court.28
The Court, in the case at bench, has scrutinized the
records, and it finds no justification for holding
differently from the findings made by the trial court.
In drug related cases, particularly in a buy-bust
operation, the contention that the accused has merely
been framed up by law enforcement personnel for
selfish motives is quite often raised by the defense.
For this claim to prosper, the evidence adduced must
be clear and convincing29 in order to overcome the
presumption that government officials have
performed their duties in a regular and proper
manner.30 Appellant, regrettably, has miserably failed
to substantiate his allegations in this respect.
Enriquez questions the six-day delay in the filing of
the information against him which he attributes to an
extortion attempt made on him. Like an alleged
frame-up, a supposed extortion by police officers has,
too, been a standard defense in drug cases.
Appellant's failure to offer evidence, independently
of his bare claim of extortion, suggests that this
defense could either be a fabrication or an
afterthought. If, truly, the arresting police officers
have tried to extort money from him, it should have
behooved Enriquez to come forward with the proper
charges against the erring police officers.31 No
criminal or administrative charges appear to have
been filed by him. It is equally strange that the
supposed extortions neither appeared in appellant's
counter-affidavit32 nor in his affidavit33 both prepared
by his counsel of choice. In any event, the Court does
not see any real undue delay on the part of the police.
The station commander filed the case with the
prosecutor on 07 June 1990, the same day that the
NBI forensic chemist's official report was released.
The transmittal letter,34 of the station commander,
bears the recommendation, likewise dated 07 June
1990, of the inquest fiscal finding a violation of
Section 4, Article II, of R.A. No. 6425.
Appellant Enriquez surmised that it was strange for
Sgt. Cerrillo and Pat. Maramot to have left the police
station unmanned just to conduct a buy-bust
operation. Sgt. Cerrillo explained that, being the
Intelligence Officer in Station No. 2, he would spend
most of his duty hours in the field.35 He chose Pat.
Maramot to be the poseur-buyer because she was not
well known in the place of operation. While she had a
desk job she could also be assigned elsewhere when
the situation would demand. Furthermore, the buy-
bust operation was conducted in an area not far from
the police station (testified to be at an approximate
distance of between the Manila City Hall and the
Luneta Park36).
On cross-examination, Pat. Maramot explained why
she could not arrest Enriquez when he received the
money. She testified:
ATTY. ESMERO:
During the time that you
were in that room together
with Enriquez and you
said that Enriquez took up
a half sack of marijuana
under the table, did it not
occur to your mind to
arrest him immediately
during that time and
introduced yourself as a
policewoman together
with your husband?
WITNESS:
If you will place yourself
in my situation, I am so
small to arrest a person
and I am not so big so I
have to wait for my
companions, sir.
INTERPRETER:
Witness pointed to the
Accused.
ATTY. ESMERO:
How about your supposed
husband?
WITNESS:
Besides we did not bring
anything even a gun
because they are outside,
sir.
ATTY. ESMERO:
You could have
immediately went (sic) out
of the door and after that
contacted Cerrillo. You
could have told him
immediately because he
was about seven (7)
meters from that room?
WITNESS:
The door was locked, sir.
ATTY. ESMERO:
You could have knocked
at the door if you want to
call him?
WITNESS:
It could not be heard
because in that alley there
were adjacent rooms, sir,
"kuwarto-kuwarto".
ATTY. ESMERO:
Now, you said that you
went out through the back
door. Who was together
with you when you went
out at the backdoor?
WITNESS:
Joseph, the one who
pretended to be my
husband, sir.
ATTY. ESMERO:
How about Rosales?
WITNESS:
He passed through the
front door together with
the informant, sir.
ATTY. ESMERO:
And the front door was
where Pat. Cerrillo was
positioned?
WITNESS:
No, sir. Cerillo was
positioned at the side. He
could not meet them
immediately because when
you go out at that door, it
is already a street.37
The use of Sgt. Cerrillo's own money in the buy-bust
operation could be expected. Police Station No. 2 was
"not logistically funded."38 In the buy-bust operation,
only three 100-peso bills of the marked money were
recovered which, unfortunately, were lost to thieves
when Sgt. Cerrillo had momentarily parked his jeep
within the vicinity of the police station on 11 July
1990.39 He reported this loss along with the loss of an
ammunition belt pack with six (6) live cal. .38 bullets
and his Parker ballpen.40 At any rate, the non-
presentation of the buy-bust money could not
adversely affect the case against appellants.41
Alibi is definitely a weak defense although it may
occasionally prove to be a good plea. In order to be
effective, however, this defense requires proof that it
would be physically impossible for the accused to be
at the locus criminis at the time of the commission of
the crime. Where there is even the least chance for
the accused to be present at the crime scene,
the alibi seldom will hold water.42 Most significantly,
the defense of alibi crumbles in the face of a positive
identification of the malefactor.43
In his case, appellant Rosales argues that to sustain a
conviction for the crime of selling marijuana, the sale
must be clearly established which, he asserts, the
prosecution has failed to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425, 44 as
amended, the law penalizes not only the sale but also
the delivery of prohibited drugs.
Sec. 4. Sale, Administration, Delivery,
Distribution and Transportation of
Prohibited Drugs. — The penalty of life
imprisonment to death and a fine ranging
from twenty thousand to thirty thousand
pesos shall be imposed upon any person
who, unless authorized by law shall sell,
administer, deliver, give away to another,
distribute, dispatch in transit or transport
any prohibited drug, or shall act as a broker
in any of such transactions. If the victim of
the offense is a minor, or should a prohibited
drug involved in any offense under this
Section be the proximate cause of the death
of a victim thereof, the maximum penalty
herein provided shall be imposed. (Emphasis
supplied.)
Selling is only one of the acts covered by the
statutory provision. The law defines the word
"deliver" as "a person's act of knowingly passing a
dangerous drug to another personally or otherwise,
and by any manner with or without consideration."
"Delivery," although not incidental to a sale, is a
punishable act by itself; while "sale" may involve
"money or any other material
consideration,"45 "delivery" may be "with or without
consideration."
Appellant Rosales contends that while criminal intent
need not generally be proved in crimes that are mala
prohibita, knowledge that the sack in his possession
contained a prohibited drug must nevertheless be
established. Indeed, Section 2(f) of the Dangerous
Drugs Law requires that a person who delivers a
prohibited drug must "knowingly" pass such
contraband to another person. Thus, in one case, the
Court has said:
. . . . While it is true that the non-revelation
of the identity of an informer is a standard
practice in drug cases, such is inapplicable
in the case at bar as the circumstances are
different. The would-be buyer's testimony
was absolutely necessary because it could
have helped the trial court in determining
whether or not the accused-appellant had
knowledge that the bag contained marijuana,
such knowledge being an essential
ingredient of the offense for which he was
convicted. The testimony of the poseur-
buyer (not as an informer but as a "buyer")
as to the alleged agreement to sell therefore
became indispensable to arrive at a just and
proper disposition of this case. 46
In this case, the trouble appears to be that appellant
Rosales incorrectly assumes to be, or gives an
impression of being, unaware of the prohibited drug
involved in the questioned transaction with appellant
Enriquez; in point of fact, however, it is sufficiently
shown that Rosales has known all along that the deal
between Enriquez and the poseur-buyers had only to
do with marijuana.
Appellant Rosales believes that his act of carrying the
sack of marijuana is a mere attempt to deliver the
prohibited drug. In other words, the sack being still
within his control, he could, he states, have easily
refused to deliver the item to the poseur-buyer. Here,
he seeks to capitalize on his being supposedly still in
the subjective phase of the crime. Appellant Rosales
thus submits that, if found guilty, he should only be
held accountable for attempted delivery of a
prohibited drug.
Article 6 of the Revised Penal Code provides:
Art. 6. Consummated, frustrated and
attempted felonies. — Consummated
felonies, as well as those which are
frustrated and attempted, are punishable.
A felony is consummated when all the
elements necessary for its execution and
accomplishment are present; and it is
frustrated when the offender performs all the
acts of execution which would produce the
felony as a consequence but which,
nevertheless, do not produce it by reason of
causes independent of the will of the
perpetrator.
There is an attempt when the offender
commences the commission of a felony
directly by overt acts, and does not perform
all the acts of execution which should
produce the felony by reason of some cause
or accident other than his own spontaneous
desistance.
The subjective phase in the commission of a felony is
that portion of its execution starting from the point
where the offender begins by overt acts to pursue the
crime until he is prevented, against his will, by some
outside cause from performing all of the acts which
would produce the offense. If the subjective phase
has not yet passed, then the crime is only attempted.
If that phase has been done but the felony is not
produced, the crime is frustrated.47 The crime is
consummated if, following the subjective phase, the
last of the elements of the felony meets to concur.
These rules are inapplicable to offenses governed by
special laws.48
Unfortunately for appellant, the crime with which he
is being charged is penalized by a special law. The
incomplete delivery claimed by appellant Rosales,
granting that it is true, is thus inconsequential. The
act of conveying prohibited drugs to an unknown
destination has been held to be punishable,49 and it is
immaterial whether or not the place of destination of
the prohibited drug is reached. 50
In sum, the facts proven beyond reasonable doubt in
this case were that: (a) Two police officers, one of
them a woman, conceived of and executed a buy-bust
operation; (b) the operation led to the red-handed
apprehension of appellant Rosales just as he
delivered the illegal drug; and (c) appellant Enriquez
who had peddled the same to the poseur-buyer was
himself later arrested shortly thereafter. The sale and
delivery of marijuana constituted punishable acts
under Section 4, Article II, of R.A. No. 6425, as
amended. Appellants Enriquez and Rosales should
bear the consequences of their trifling with the law.
The two evidently confederated towards the common
purpose of selling and delivering marijuana.
Conspiracy could be inferred from the acts of the
accused, whose conduct before, during and after the
commission of the crime would show its
existence.51 It was appellant Rosales who brought the
poseur-buyer to appellant Enriquez for the purchase
of marijuana. It was upon the instruction of appellant
Enriquez, apparently to retain control of the unpaid
portion of the six-kilogram contraband, that appellant
Rosales was to carry the sack to the supposed
residence of the poseur-buyers. In conspiracy, the act
of one conspirator could be held to be the act of the
other.52
R.A. No. 7659, amending the Dangerous Drugs Law,
now provides that if the quantity of drugs involved in
any of the punishable acts is more than any of the
amounts specified in the law, the penalty of reclusion
perpetua to death53must be imposed. Considering that
the marijuana involved here weighed more than 750
grams, the maximum specified amount for marijuana,
appellants, ordinarily, are to be meted that penalty.
An amendatory law, however, may only be applied
retroactively if it proves to be beneficial to the
appellants. In this case, it would not be that favorable
to them; hence, like in People vs.
Ballagan,54 the Court could only impose the penalty
of life imprisonment upon appellants. The penalty
of reclusion perpetua would mean that the accused
would also have to suffer the accessories carried by
that penalty, as well as the higher fine, provided for
by R.A. No. 7659.55 Appellants must, accordingly,
still bear the penalty imposed on them by the trial
court.
WHEREFORE, the questioned Decision of 21
January 1991 of the Regional Trial Court of Manila,
finding appellants Ernesto Enriquez and Wilfredo
Rosales guilty beyond reasonable doubt of the crime
punished by Section 4, Article II, of R.A. No. 6425,
as amended, and imposing on them the penalty of life
imprisonment and the payment of the fine of P30,000
is AFFIRMED. Costs against appellants.
SO ORDERED.
G.R. No. 122099 July 5, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
AGAPITO LISTERIO y PRADO and SAMSON
DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-
appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque
and Marlon Araque, Agapito Listerio y Prado,
Samson dela Torre y Esquela, Marlon dela Torre,
George dela Torre, Bonifacio Bancaya and several
others who are still at large were charged in two (2)
separate Amended Informations with Murder and
Frustrated Murder.
In Criminal Case No. 91-5842 the Amended
Information1 for Murder alleges –
That on or about the 11th day of August 1991 in the
Municipality of Muntinlupa, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring and confederating together and mutually
helping and aiding one another, all armed with bladed
weapons and GI lead pipes, with intent to kill,
treachery and evident premeditation with abuse of
superior strength did then and there willfully,
unlawfully and feloniously attack, assault and stab
one Jeonito Araque y Daniel at the back of his body,
thereby inflicting upon the latter mortal wounds
which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended
Information2 for Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the
Municipality of Muntinlupa, Metro Manila,
Philippines and within the jurisdiction this Honorable
Court, the above-named accused, conspiring,
confederating together, mutually helping and aiding
one another, with intent to kill did then and there
willfully, unlawfully and feloniously stab and hit with
a lead pipe and bladed weapon one Marlon Araque y
Daniel on the vital portions of his body, thereby
inflicting serious and mortal wounds which would
have cause[d] the death of the said victim thus
performing all the acts of execution which should
have produce[d] the crime of Homicide as a
consequence but nevertheless did not produce it by
reason of causes independent of their will, that is by
timely and able medical attendance rendered to said
Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado
and Samson dela Torre y Esquela pleaded not guilty
to the crimes charged. Their other co-accused have
remained at large.
Trial thereafter ensued after which the court a
quo rendered judgment only against accused Agapito
Listerio because his co-accused Samson dela Torre
escaped during the presentation of the prosecution’s
evidence and he was not tried in absentia. The
dispositive portion of the decision3 reads:
WHEREFORE, finding Accused AGAPITO
LISTERIO guilty beyond reasonable doubt, he is
sentenced:
1. For the death of Jeonito Araque y Daniel
in Criminal Case NO. 91-
5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y
Daniel, in Criminal Case No. 91-5843, he is
sentenced to six (6) months and one (1) day
as minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to
indemnify the heirs of Jeonito Araque y
Daniel the sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon
Araque y Daniel, he is required to pay
Marlon Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
 P5,000.00 as exemplary damages
SO ORDERED.4
Dissatisfied, accused Agapito Listerio interposed this
appeal alleging that –
I the mid-frontal area commonly known as the
THE PROSECUTION EVIDENCE
FAILED TO ESTABLISH THE GUILT OF
THE ACCUSED BEYOND
REASONABLE DOUBT.
II
THE COURT CONVICTED THE
ACCUSED OF THE CRIME OF MURDER
AND ATTEMPTED HOMICIDE DESPITE
ABSENCE OF PROOF OF CONSPIRACY
AND AGGRAVATING CIRCUMSTANCE
OF TREACHERY.
The version of the prosecution of what transpired on
that fateful day of August 14, 1991 culled from the
eyewitness account of Marlon Araque discloses that
at around 5:00 p.m. of August 14, 1991, he and his
brother Jeonito were in Purok 4, Alabang,
Muntinlupa to collect a sum of money from a certain
Tino.5 Having failed to collect anything from
Tino, Marlon and Jeonito then turned back.6 On their
way back while they were passing Tramo near Tino’s
place,7 a group composed of Agapito Listerio,
Samson dela Torre, George dela Torre, Marlon dela
Torre and Bonifacio Bancaya8 blocked their path9 and
attacked them with lead pipes and bladed weapons.10
Agapito Listerio, Marlon dela Torre and George dela
Torre, who were armed with bladed weapons,
stabbed Jeonito Araque from behind.11 Jeonito
sustained three (3) stab wounds on the upper right
portion of his back, another on the lower right portion
and the third on the middle portion of the left side of
his back12 causing him to fall down.13 Marlon Araque
was hit on the head by Samson dela Torre and
Bonifacio Bancaya with lead pipes and momentarily
lost consciousness.14 When he regained his senses
three (3) minutes later, he saw that Jeonito was
already dead.15Their assailants then fled after the
incident.16 Marlon Araque who sustained injuries in
the arm and back,17 was thereafter brought to a
hospital for treatment.18
Marlon Araque was examined by Dr. Salvador
Manimtim, head of the Medico Legal Division of the
UP-PGH, 19 who thereafter issued a Medical
Certificate20 indicating that Marlon Araque sustained
two (2) lacerated wounds, one measuring 5
centimeters in length located in the center (mid-
parietal area) of the ear.21 The second lacerated
wound measuring 2 centimeters in length is located at
forehead.22 A third lacerated wound measuring 1.5
centimeters long is located at the forearm23 and a
fourth which is a stab wound measuring 3 centimeters
is located at the right shoulder at the
collar.24 Elaborating on the nature of Marlon
Araque’s injuries, Dr. Manimtim explained in detail
during cross-examination that the two (2) wounds on
the forearm and the shoulder were caused by a sharp
object like a knife while the rest were caused by a
blunt instrument such as a lead pipe.25
Dr. Bievenido Munoz, NBI Medico Legal Officer
conducted an autopsy on the cadaver of Jeonito
Araque26 and prepared an Autopsy Report27 of his
findings. The report which contains a detailed
description of the injuries inflicted on the victim
shows that the deceased sustained three (3) stab
wounds all of them inflicted from behind by a sharp,
pointed and single-bladed instrument like a kitchen
knife, balisong or any similar instrument.28 The first
stab wound, measuring 1.7 centimeters with an
approximate depth of 11.0 centimeters, perforated the
lower lobe of the left lung and the thoracic
aorta.29 Considering the involvement of a vital organ
and a major blood vessel, the wound was considered
fatal.30 The second wound, measuring 2.4
centimeters, affected the skin and underlying soft
tissues and did not penetrate the body cavity. 31 The
third wound measuring 2.7 centimeters was like the
second and involved only the soft tissues.32 Unlike
the first, the second and third wounds were non-
fatal.33 Dr. Munoz averred that of the three, the first
and second wounds were inflicted by knife thrusts
delivered starting below going upward by assailants
who were standing behind the victim.34
On the other hand, accused-appellant’s version of the
incident is summed thus in his brief:
1. Accused-appellant is 39 years old,
married, side walk vendor and a resident of
Purok 4, Bayanan, Muntinlupa, Metro
Manila. He earns a living by selling
vegetables.35
 2. At around 1:00 o’clock in the afternoon of
August 14, 1991, Accused-Appellant was in
the store of Nimfa Agustin having a little
fun with Edgar Demolador and Andres
Gininao drinking beer. At around 2:00
o’clock Accused-appellant went to his house
and slept.36
3. While asleep, at about 5 o’clock, Edgar
Remolador and Andres Gininao woke him
up and told him there was a quarrel near the
railroad track.37
4. At around 6:00 o’clock two (2) policemen
passed by going to the house of Samson de
la Torre while Accused-appellant was
chatting with Edgar Remolador and Andres
Gininao. These two (2) policemen together
with co-accused Samson de la Torre came
back and invited Accused-appellant for
questioning at the Muntinlupa Police
Headquarters together with Edgar
Demolador and Andres Gininao.
Subsequently, Edgar Demolador and Andres
Gininao were sent home.38
5. At the Police Station, Accused-Appellant
was handed a Sinumpaang Salaysay
executed by Marlon Araque, implicating
him for the death of Jeonito Araque and the
frustrated murder of Marlon Araque.
Accused-Appellant confronted Marlon
Araque as to why he was being included in
the case. Marlon Araque answered "because
you eject[ed] us from your house." 39
Professing his innocence, accused-appellant claims
that Marlon Araque’s uncorroborated testimony
failed to clearly and positively identify him as the
malefactor responsible for his brother’s death. In fine,
he insists that Marlon’s testimony is insufficient to
convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not
numbered, such that the testimony of a single,
trustworthy and credible witness could be sufficient
to convict an accused.40 More explicitly, the well
entrenched rule is that "the testimony of a lone
eyewitness, if found positive and credible by the trial
court is sufficient to support a conviction especially
when the testimony bears the earmarks of truth and
sincerity and had been delivered spontaneously,
naturally and in a straightforward manner. It has been
held that witnesses are to be weighed not numbered;
hence, it is not at all uncommon to reach a conclusion
of guilt on the basis of the testimony of a single
witness."41
The trial court found Marlon Araque’s version of
what transpired candid and straightforward. We defer
to the lower court’s findings on this point consistent
with the oft-repeated pronouncement that: "the trial
judge is the best and the most competent person who
can weigh and evaluate the testimony of witnesses.
His firsthand look at the declarant’s demeanor,
conduct and attitude at the trial places him in a
peculiar position to discriminate between the true and
the false. Consequently appellate courts will not
disturb the trial court’s findings save only in cases
where arbitrariness has set in and disregard for the
facts important to the case have been overlooked." 42
The account of Marlon Araque as to how they were
assaulted by the group of accused-appellant was
given in a categorical, convincing and
straightforward manner:
Q Mr. Witness, do you know a certain Jeonito
Araque y Daniel?
A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he
died?
A Yes, sir.
Q Will you please inform the Honorable Court what
is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed
him?
A Yes, sir. A Yes, sir.

Q Will you please inform the Honorable Court who
are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre,
George dela Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom,
could you identify them?
Q Who was your companion?
A My brother.
Q While you were going back, was there any
untoward incidents that happened?
A Yes sir "Hinarang po kami."

A They (sic) are only two persons but the three Q Now, what particular place [where] you were
persons is (sic) not around. waylaid, if you recall?

Q Could you please point to this Honorable Court A In Tramo, near Tino’s place.
who are these two persons in side the courtroom?
Q And who were the persons that were waylaid (sic)?
A Yes, sir (Witness pointing to a persons [sic] and
when asked [identified themselves as] Agapito
A Agapito Listerio, Samson dela Torre, George dela
Listerio and Samson dela Torre.) Torre and Bonifacio.

Q Now, at around 5:00 o’clock in the afternoon of

Q Will you please inform the Honorable Court how
August 14, 1991, do you recall where were you?
will (sic) you waylaid by these persons?

A Yes, sir. A We were walking then suddenly they stabbed us

with knife (sic) and ran afterwards.
Q Will you please inform the Honorable Court where
were you at that time?
Q Who were the persons that waylaid you?

A I’m in Alabang at Purok 4 and I’m collecting.

A Agapito Listerio, George and Marlon.

Q Do you have any companion at that time?

Q How about your brother, what happened to him?

A Yes, sir.
A He fall (sic) down.

Q What are you doing at that time in [that] particular

Q And after he fall (sic) down, do you know what
date? happened?

A I’m collecting from a certain Tino.

A I was hit by a lead pipe that’s why I painted (sic).

Q Were you able to collect? Q Do you know the reason why your brother fall (sic)
down?
A No, sir.
A I cannot recall, sir. Because I already painted (sic).
Q If you said that there were no collections, what did
you do?
Q Do you know the reason why your brother fall (sic)
before you painted (sic)?
A We went back.
A Yes, sir.
Q When you went back, did you have any
companion?
Q Will you please inform the Honorable Court why
your brother fall (sic) down?
xxx xxx xxx
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed
if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic)
stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who
was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed
wound (sic)?
A Witness pointing to his back upper right portion of
the back, another on the lower right portion and
another on the middle portion of the left side at the
back.
COURT
Proceed.
Q Will you please inform the Honorable Court why
you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and
Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what
happened to your brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid,
what happened to them?
A From what I know, they ran away.43
Persistent efforts by defense counsel to establish that
the attack was provoked, by eliciting from Marlon
Araque an admission that he and the deceased had a
drinking spree with their attackers prior to the
incident, proved futile as Marlon steadfastly
maintained on cross examination that he and his
brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you
drink something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never
drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991
when you visited Sonny Sari-Sari Store at 4:00 p.m.
on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George
dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there
was no point in time on August 14, 1991 at 4:00 p.m.
that you did not take a sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable
Court where this George dela Torre, Marlon dela
Torre and a certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother
the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.44
That Marlon was able to recognize the assailants can
hardly be doubted because relatives of the victim
have a natural knack for remembering the faces of the
attackers and they, more than anybody else, would be
concerned with obtaining justice for the victim by the
felons being brought to the face of the law.45 Indeed,
family members who have witnessed the killing of a
loved one usually strive to remember the faces of the
assailants.46 Marlon’s credibility cannot be doubted in
this case because as a victim himself and an
eyewitness to the incident, it can be clearly gleaned
from the foregoing excerpts of his testimony that he
remembered with a high degree of reliability the
identity of the malefactors.47
Likewise, there is no showing that he was motivated
by any ill-feeling or bad blood to falsely testify
against accused-appellant. Being a victim himself, he
is expected to seek justice. It is settled that if the
accused had nothing to do with the crime, it would be
against the natural order of events to falsely impute
charges of wrongdoing upon him.48Accused-appellant
likewise insists on the absence of conspiracy and
treachery in the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy
is rarely found for criminals do not write down their
lawless plans and plots.49 Conspiracy may be inferred
from the acts of the accused before, during and after
the commission of the crime which indubitably point
to and are indicative of a joint purpose, concert of
action and community of interest.50 Indeed –
A conspiracy exists when two or more persons come
to an agreement concerning the commission of a
felony and decide to commit it. To establish the
existence of a conspiracy, direct proof is not essential
since it may be shown by facts and circumstances
from which may be logically inferred the existence of
a common design among the accused to commit the
offense charged, or it may be deduced from the mode
and manner in which the offense was perpetrated.51
More explicitly –
… conspiracy need not be established by direct
evidence of acts charged, but may and generally must
be proved by a number of indefinite acts, conditions
and circumstances, which vary according to the
purpose accomplished. Previous agreement to
commit a crime is not essential to establish a
conspiracy, it being sufficient that the condition
attending to its commission and the acts executed
may be indicative of a common design to accomplish
a criminal purpose and objective. If there is a chain of
circumstances to that effect, conspiracy can be
established.52
Thus, the rule is that conspiracy must be shown to
exist by direct or circumstantial evidence, as clearly
and convincingly as the crime itself.53 In the absence
of direct proof thereof, as in the present case, it may
be deduced from the mode, method, and manner by
which the offense was perpetrated, or inferred from
the acts of the accused themselves when such acts
point to a joint purpose and design, concerted action
and community of interest.54Hence, it is necessary
that a conspirator should have performed some overt
acts as a direct or indirect contribution in the
execution of the crime planned to be committed. The
overt act may consist of active participation in the
actual commission of the crime itself, or it may
consist of moral assistance to his con-conspirators by
being present at the commission of the crime or by
exerting moral ascendancy over the other co-
conspirators.55
Conspiracy transcends mere companionship, it
denotes an intentional participation in the transaction
with a view to the furtherance of the common design
and purpose.56 "Conspiracy to exist does not require
an agreement for an appreciable period prior to the
occurrence.57 From the legal standpoint, conspiracy
exists if, at the time of the commission of the offense,
the accused had the same purpose and were united in
its execution."58 In this case, the presence of accused-
appellant and his colleagues, all of them armed with
deadly weapons at the locus criminis, indubitably
shows their criminal design to kill the victims.
Nowhere is it more evident than in this case where
accused-appellant and his cohorts blocked the path of
the victims and as a group attacked them with lead
pipes and bladed weapons. Accused-appellant and his
companions acted in concert during the assault on the
victims. Each member of the group performed
specific and coordinated acts as to indicate beyond
doubt a common criminal design or purpose. 59 Thus,
even assuming arguendo that the prosecution
eyewitness may have been unclear as to who
delivered the fatal blow on the victim, accused-
appellant as a conspirator is equally liable for the
crime as it is unnecessary to determine who inflicted
the fatal wound because in conspiracy, the act of one
is the act of all.60
As to the qualifying circumstances here present, the
treacherous manner in which accused-appellant and
his group perpetrated the crime is shown not only by
the sudden and unexpected attack upon the
unsuspecting and apparently unarmed victims but
also by the deliberate manner in which the assault
was perpetrated. In this case, the accused-appellant
and his companions, all of them armed with bladed
weapons and lead pipes, blocked (hinarang) the path
of the victims effectively cutting off their escape.61 In
the ensuing attack, the deceased was stabbed three (3)
times from behind by a sharp, pointed and single-
bladed instrument like a kitchen knife, balisong or
similar instrument62 while Marlon Araque sustained
lacerated wounds in the head caused by blows
inflicted by lead pipes as well as stab wounds on the
shoulder and forearm which were caused by a sharp
object like a knife.63
It must be noted in this regard that the manner in
which the stab wounds were inflicted on the deceased
were clearly meant to kill without posing any danger
to the malefactors considering their locations and the
fact that they were caused by knife thrusts starting
below going upward by assailants who were standing
behind the victim.64 Treachery is present when the
offender commits any of the crimes against persons
employing means, methods or forms in the execution
thereof which tend directly and specially to insure its
execution, without risk to himself arising from the
defense which the offended party might make.65 That
circumstance qualifies the crime into murder.
The commission of the crime was also attended by
abuse of superior strength on account of the fact that
accused-appellant and his companions were not only
numerically superior to the victims but also because
all of them, armed with bladed weapons and lead
pipes, purposely used force out of proportion to the
means of defense available to the persons attacked.
However, this aggravating circumstance is already
absorbed in treachery.66 Furthermore, although
alleged in the information, evident premeditation was
not proved by the prosecution. In the light of the
finding of conspiracy, evident premeditation need not
be further appreciated, absent concrete proof as to
how and when the plan to kill was hatched or what
time had elapsed before it was carried out.67
In stark contrast to the evidence pointing to him as
one of the assailants of the victims, accused-appellant
proffers the defense of alibi. At the risk of sounding
trite, it must be remembered that alibi is generally
considered with suspicion and always received with
caution because it can be easily fabricated.68 For alibi
to serve as a basis for acquittal, the accused must
establish that: a.] he was present at another place at
the time of the perpetration of the offense; and b.] it
would thus be physically impossible for him to have
been at the scene of the crime.69
Suffice it to state that accused-appellant failed to
discharge this burden. The positive identification of
the accused as one of the perpetrators of the crime by
the prosecution eyewitness, absent any showing of
ill-motive, must prevail over the weak and obviously
fabricated alibi of accused-appellant.70 Furthermore,
as aptly pointed out by the trial court "[t]he place
where the accused was at the time of the killing is
only 100 meters away. The distance of his house to
the place of the incident makes him physically
possible to be a participant in the killing [of Jeonito]
and [the] wounding of Marlon." 71
All told, an overall scrutiny of the records of this case
leads us to no other conclusion than that accused-
appellant is guilty as charged for Murder in Criminal
Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-
appellant was indicted for Frustrated Homicide, the
trial court convicted accused-appellant of Attempted
Homicide only on the basis of Dr. Manimtim’s
testimony that none of the wounds sustained by
Marlon Araque were fatal.
The reasoning of the lower court on this point is
flawed because it is not the gravity of the wounds
inflicted which determines whether a felony is
attempted or frustrated but whether or not the
subjective phase in the commission of an offense has
been passed. By subjective phase is meant "[t]hat
portion of the acts constituting the crime included
between the act which begins the commission of the
crime and the last act performed by the offender
which, with the prior acts, should result in the
consummated crime. From that time forward, the
phase is objective. It may also be said to be that
period occupied by the acts of the offender over
which he has control – that period between the point
where he begins and the point where he voluntarily
desists. If between these two points the offender is
stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not
been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it
is frustrated."72
It must be remembered that a felony is frustrated
when: 1.] the offender has performed all the acts of
execution which would produce the felony; 2.] the
felony is not produced due to causes independent of
the perpetrator’s will.73On the other hand, in an
attempted felony: 1.] the offender commits overt acts
to commence the perpetration of the crime; 2.] he is
not able to perform all the acts of execution which
should produce the felony; and 3.] his failure to
perform all the acts of execution was due to some
cause or accident other than his spontaneous
desistance.74 The distinction between an attempted
and frustrated felony was lucidly differentiated thus
in the leading case of U.S. v. Eduave:75
A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime
by overt acts, is prevented, against his will, by some
outside cause from performing all of the acts which
should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be
thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the
moment when he has performed all of the acts which
should produce the crime as a consequence, which
acts it is his intention to perform. If he has
performed all the acts which should result in the
consummation of the crime and voluntarily desists
from proceeding further, it cannot be an attempt. The
essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or
agency between the beginning of the commission of
crime and the moment when all the acts have been
performed which should result in the consummated
crime; while in the former there is such intervention
and the offender does not arrive at the point of
performing all of the acts which should produce the
crime. He is stopped short of that point by some
cause apart from his voluntary desistance.
To put it another way, in case of an attempt the
offender never passes the subjective phase of the
offense. He is interrupted and compelled to desist by
the intervention of outside causes before the
subjective phase is passed.
On the other hand, in case of frustrated crimes, the
subjective phase is completely passed. Subjectively
the crime is complete. Nothing interrupted the
offender while he was passing through the subjective
phase. The crime, however, is not consummated by
reason of the intervention of causes independent of
the will of the offender. He did all that was necessary
to commit the crime. If the crime did not result as a
consequence it was due to something beyond his
control.
In relation to the foregoing, it bears stressing that
intent to kill determines whether the infliction of
injuries should be punished as attempted or frustrated
murder, homicide, parricide or consummated
physical injuries.76 Homicidal intent must be
evidenced by acts which at the time of their execution
are unmistakably calculated to produce the death of
the victim by adequate means.77 Suffice it to state that
the intent to kill of the malefactors herein who were
armed with bladed weapons and lead pipes can hardly
be doubted given the prevailing facts of the case. It
also can not be denied that the crime is a frustrated
felony not an attempted offense considering that after
being stabbed and clubbed twice in the head as a
result of which he lost consciousness and fell,
Marlon’s attackers apparently thought he was already
dead and fled.
An appeal in a criminal case throws the whole case
wide open for review78 and the reviewing tribunal can
correct errors, though unassigned in the appealed
judgement79 or even reverse the trial court’s decision
on the basis of grounds other than those that the
parties raised as errors.80 With the foregoing in mind,
we now address the question of the proper penalties
to be imposed.
With regard to the frustrated felony, Article 250 of
the Revised Penal Code provides that –
ART. 250. Penalty for frustrated parricide, murder,
or homicide. – The courts, in view of the facts of the
case, may impose upon the person guilty of the
frustrated crime of parricide, murder or homicide,
defined and penalized in the preceding articles, a
penalty lower by one degree than that which should
be imposed under the provisions of article 50.81
The courts, considering the facts of the case, may
likewise reduce by one degree the penalty which
under article 51 should be imposed for an attempt to
commit any of such crimes.
The penalty for Homicide is reclusion
temporal82 thus, the penalty one degree lower would
be prision mayor.83 With the presence of the
aggravating circumstance of abuse of superior
strength and no mitigating circumstances, the penalty
is to be imposed in its maximum period.84 Prision
mayor in its maximum period ranges from ten (10)
years and one (1) day to twelve (12) years. Applying
further the Indeterminate Sentence Law,85 the
minimum of the imposable penalty shall be within the
range of the penalty next lower in degree, i.e. prision
correccional in its maximum period which has a
range of six (6) months and one (1) day to six (6)
years.
What now remains to be determined is the propriety
of the awards made by the trial court with regard to
the civil aspect of the case for the death of Jeonito
Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears
stressing that only substantiated and proven expenses
or those which appear to have been genuinely
incurred in connection with the death, wake or burial
of the victim will be recognized by the courts.86 In
this case, the expenses incurred for the wake, funeral
and burial of the deceased are substantiated by
receipts.87 The trial court’s award for actual damages
for the death of Jeonito Araque should therefore be
affirmed.
In line with current jurisprudence,88 the award of
P50,000.00 as civil indemnity ex delicto must also be
sustained as it requires no proof other than the fact of
death of the victim and the assailant’s responsibility
therefor.89 The award for moral damages for the pain
and sorrow suffered by the victim’s family in
connection with his untimely death must likewise be
affirmed. The award is adequate, reasonable and with
sufficient basis taking into consideration the anguish
and suffering of the deceased’s family particularly his
mother who relied solely upon him for support.90 The
award of exemplary damages should likewise be
affirmed considering that an aggravating
circumstance attended the commission of the crime.91
The trial court, however, correctly ignored the claim
for loss of income or earning capacity of the deceased
for lack of factual basis.1âwphi1 The estimate given
by the deceased’s sister on his alleged income as a
‘pre-cast’ businessman is not supported by competent
evidence like income tax returns or receipts. It bears
emphasizing in this regard that compensation for lost
income is in the nature of damages92 and as such
requires due proof thereof.93 In short, there must be
unbiased proof of the deceased’s average income.94 In
this case, the victim’s sister merely gave an oral, self-
serving and hence unreliable statement of her
deceased brother’s income.
As for the awards given to Marlon Araque, the award
for actual damages must be affirmed as the same is
supported by documentary evidence.95 With regard to
moral and exemplary damages, the same being
distinct from each other require separate
determination.96 The award for moral damages must
be struck down as the victim himself did not testify as
to the moral suffering he sustained as a result of the
assault on his person. For lack of competent proof
such an award is improper.97 The award for
exemplary damages must, however, be retained
considering that under Article 2230 of the Civil
Code, such damages may be imposed "when the
crime is committed with one or more aggravating
circumstances."98
Finally, this Court has observed that the trial court
did not render judgment against accused Samson dela
Torre, notwithstanding that he was arraigned and
pleaded not guilty to both charges. Under the
circumstances, he should be deemed to have been
tried in absentia and, considering the evidence
presented by the prosecution against him, convicted
of the crime charged together with appellant Agapito
Listerio.
WHEREFORE, the appealed decision is
AFFIRMED with the following MODIFICATIONS:

1.] the award of P5,000.00 to Marlon

Araque by way of moral damages in
Criminal Case No. 91-5843 is DELETED;

2.] Accused-Appellant is found GUILTY

beyond reasonable doubt in Criminal Case
No. 91-5843 of Frustrated Homicide and is
sentenced to suffer an indeterminate penalty
of Six (6) Years of Prision Correccional, as
minimum to Ten (10) Years and One (1)
Day of Prision Mayor, as maximum.

After finality of this Decision, the records shall be

remanded to the Regional Trial Court of Makati City,
which is directed to render judgment based on the
evidence against Samson dela Torre y Esquela.

SO ORDERED.