G.R. No.

L-28607 February 21, 1929

PRATS & COMPANY, a registered partnership, plaintiff-appellant,

vs.
PHOENIX INSURANCE COMPANY, HARTFORD, CONNECTICUT, a
corporation, defendant-appellee.

Abad Santos, Camus, Delgado and Recto and Ohnick and McFie for
appellant.
Gibbs and McDonough for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of the City of Manila
by Prats & Co., a mercantile partnership, for the purpose of recovering from
the Phoenix Insurance Co., of Hartford, Connecticut, the sum of
P117,800.60, with interest, by reason of a loss alleged to have been
sustained by the plaintiff, on August 21, 1924, from a fire, it being alleged
that said loss was covered by policy of insurance No. 600217, for the sum of
P200,000, issued by the defendant company to the plaintiff. For answer, the
defendant, Pheonix Insurance Co., admitted the insurance of the policy of
insurance but, by way of special defense, alleged, among other things, that
the fire in question had been set by the plaintiff, or with its connivance, and
that the plaintiff had submitted under oath to the defendant a fraudulent
claim of loss, in contravention of the express terms of the policy. Upon
hearing the cause the trial court absolved the defendant from the complaint
with respect to the obligation created by the policy which was the subject of
the suit, but ordered the defendant to pay to the plaintiff the sum of
P11,731.93, with interest from the filing of the complaint, upon account of
moneys received from salvage sales, conducted by the defendant, of
remnants of the insured stock. From this judgment the plaintiff appelaed.

So far as liability under the policy of insurance which is the subject of this
action is concerned, we are of the opinion that the defendant has sufficiently
established two defenses, either of which would be fatal to the right of
recovery, namely, first, that the fire was set by the procurance or connivance
of the plaintiff for the purpose of defrauding the insurer; and secondly, that
the plaintiff, after the fire, submitted to the defendant a fraudulent claim
supported by the false proof, in violation of the terms of the policy. Of these
defenses the trial judge sustained the second but passed the first without
express finding. We consider it important, however, briefly to exhibit the
salient facts on both points, not only because of the considerable sum of
money involved, but because the facts appearing in evidence supply a
typical illustration of the manner in which frauds of this character against the
insurance companies may be constructed with some hope of success, when
insurance agents are accessible who, under the incentive of writing large
amounts of insurance, can be induced to close their eyes to obvious
dangers.

On July 10, 1923, Francisco Prats, Elias Hanna and Isidro Bejar registered
two mercantile partnerships in the Bureau of Commerce and Industry for the
purpose of engaging in mercantile business. The articles of copartnership of
these two entities were the same except in the firm names. It was apparently
contemplated, in so far as any legitimate function may have been intended,
that Prats & Co. should be an importing firm, while Hanna, Bejar & Co.
should engage in retail businss. As eveents show, the existence of the
parallel entities, controlled by the same individuals, supplied, undeniably,
suitable engines for accomplishing an exploit of the kind that was here
attempted. Of the three individuals mentioned Elias Hanna and Isidro Bejar
were Turkish subjects of unsavory reputation in insurance circle of Manila,
while Francisco Prats was a Spanish subject who had had some success as
a merchant and, prior to his connection with the two associates above
mentioned, apparently enjoyed a fair reputation. Another individual, who
figures in the case as an instrument of the three partners, is one Domingo
Romero, who at that the time which we are here concerned, was an
employee of the Bureau of Internal Revenue, with a salary of P150 per
month. Ramon Prats, a son of Francisco Prats, was united in marriage to a
daughter of Domingo Romero, with the result that social relations between
Francisco Prats and Domingo Romero were close. Francisco Prats appear to
have acted as manager for both Prats & Co. and Hanna, Bejar & Co.

On May 27, 1924, Prats, acting for Hanna, Bejar & Co., purchased a one-
story building at 95 Plaza Gardenia, Manila; and soon thereafter he begun to
assemble in this place the stock of merchandise which was the subject of
insurance in this case. The building referred to was purchasd outright for the
sum of P1,600. It was old and was scarcely more than a shed but had been
used in times past for human habitation. It was located in a part of the city
which was inconvenient of success to traders and out of the ordinary
channels of business activity. After purchasing the building, Prats knocked
out the partitions, removed the floor, and laid along the center. The main part
of the structure was thus converted into a single store, or bodega, though
certain adjuncts, consisting of kitchen and closets, remained unchanged in
the rear of the building. A sign was then set up over the entrance bearing the
firm name "Hanna, Bejar & Co." In effecting the purchase of this building
Prats availed himself of the service of Domingo Romero, who lived only two
doors away at 97 Plaza Gardenia.

By August 21, 1924, there had been assembled and stored by Prats in the
place above described a stock of goods which, according to the documents
exhibited by him, had a valuation of P211,329.72, on which he had taken out
insurance to the extent of P410,000. At midnight of the day mentioned a fire
occurred at 95 Plaza Gardenia, which destroyed the building and ruined its
contents, the amount realized from the salvage of the stock being
P11,731.93.

With respect to the insurance upon this stock at the time of the fire, the
following facts appear: In the month of June preceeding the fire, nine
policies aggregating P160,000 were taken out by Prats in the name of
Hanna, Bejar & Co. on merchandise stored at 95 Plaza Gardenia. At the time
these policies were taken out the valuation of the goods then in said store
could not have been more than P68,753. On June 28, 1924, Prats procured
from the agent of the defendant in this case policy of insurance No. 600217
in the amount of P200,000 on merchandise stored in the same place. The
nine policies already procured had been taken out, as we have seen, in the
name of Hanna, Bejar & Co.; but when Prats applied to the agent of the
defendant for the P200,000 policy last above mentioned, the agent told him
that if Hanna or Bejar had any interest in the stock to be insured the policy
could not be issued for the reason that, in such case, the defendant would
not be able to obtain reinsurance for any part of the policy, owing to the bad
reputation of Hanna and Bejar. Accordingly, at the request of Prats & Co.;
and Prats at the same time assured the agent that Hanna and Bejar were not
partners in Prats & Co. With the writing of this policy the amount of insurance
on the merchandise at 95 Plaza Gardenia was increased to P360,000, while
the value of the stock at that time was not probably much in excess of
P158,000. On August 11, 1924, or just ten days before the fire, Prats took out
an additional policy for P50,000 in the name of Prats & Co. on the same
stock. This made a total insurance of P410,000 on the contents of the store
at 95 Plaza Gardenia. At the time, according to Prats himself, the evaluation
of the merchandise then in the place was not in excess of P230,000.
Furthermore, Prats, about this time, caused the first nine policies which had
been taken out in the name of Hanna, Bejar & Co. to be indorsed to Prats &
Co., thereby making this firm the sole insured firm with respect to this stock
of merchandise.

With respect to the origin of the stock thus assembled, we find that part had
been purchased in Europe by Prats; and in connection with its importation
from abroad it is noteworthy that on June 18, 1924, Prats & Co. procured a
policy of marine insurance to be issued by Meerkamp & Co., Ltd., as agents
of the India Insurance Co., Ltd., Upon twenty-two cases of silk, of a
supposed value of P43,400. at the time this policy was procured Prats
informed the insurer that the goods were soon to arrive from France by the
steamer Suwa Maru. For this policy of insurance Prats paid out the sum of
P736.25. Nevertheless, it now appears that the twenty-two cases of silk
covered by this marine policy were fictitious, as no such purchase of silk had
been made by Prats & Co. in France or elsewhere. This fact was offered in
evidence by the defendant, as tending to reveal a scheme by which, if a
dstructive fire should occur, the plaintiff would be able to mislead the
defendant as to the quantity of goods stored in the bodega. This item of
proof, though circumstantial in its nature, was undoubtedly competent and
should have been admitted by the trial court.

The proof submitted by the defendant tends to show that obscure

manipulations were used by the plaintiff in the storing of merchandise at 95
Plaza Gardenia and in the removal of part of the contents of the bodega
before the fire. In this connection it appears that forty-five cases of old stock
of Hanna, Bejar & Co., at Legaspi, P. I., were shipped to Manila before the
fire, but instead of being taken directly to 95 Plaza Gardenia, they were
housed for a time in the back part of the lower floor of the Bazar Filipino in
which Prats & Co. and Hanna, Bejar & Co. had their offices. Moreover, a
quantity of merchandise purchased from place shortly before the fire,
instead of directly to 95 Plaza Gardenia; and it is the theory of the defendant
that new merchandise purchased from Talambiras Brothers was substituted
for the old stock in boxes from Hanna, Bejar & Co. at Legaspi, leaving the
old goods to be deposited in the bodega to swell the debris of the fire. There
is evidence also, which was credited by the court, to the effect that on
various occasions before the fire goods were removed from the bodega to
the store of B. Abolafia, at Manila, where they were received without invoice.
Some of these goods were subsequently sent away by Abolafia for sale in
the provinces.

If overinsurance and the assemblage of goods at inflated values in the

bodega at 95 Plaza Gardenia, together with the surreptitious abstraction of
goods therefrom by the insured, have suggested a possible intention on the
part of its manager to realize improperly on its insurance policies, this
inference is, in our opinion, but beyond reach of reasonable doubt by facts
relative to the destruction of the place. In this connection we note that about
the time the bodega at 95 Plaza Gardenia had been purchased, Domingo
Romero assisted one Ramon Osete to rent No. 69 Calle Gardenia, which was
close to the rear of the building at 95 Plaza Gardenia. Osete appears to have
been the individual chose for the role of incendiary, and he slept at the place
mentioned until the night of the fire. A night or two before the fire this Osete,
accompanied by one Antonio Prats, appears to have brought two cans of
petroleum to his lodging place at 69 Calle Gardenia. After these cans had
been taken to Osete's bathroom by his muchacho, the latter was sent out on
an errand; and while he was gone the petroleum disappeared. After the fire
had been started in the plaintiff's bodega shortly after midnight on August
21, 1924, Osete conveyed this boy in his automobile to the fire alarm box on
Plaza Gardenia. Reaching this place, Osete planted the boy there with
instructions to stop anyone who might attempt to turn in the alarm by telling
him that he (the boy) had already done so; and in fact, after the fire had
gained some headway, one Joaquin Silos, who lived near the bodega, ran to
the box to turn on the alarm but was stopped in the act by a person who
stated that he had already given the alarm. Nevertheless, when Fire Chief
Vanderford reached the scene of the fire a few minutes later, he found that
the box had not been disturbed and he himself turned on the alarm. The boy
stated that when he was on the way with Osete to the alarm box, as just
stated, an explosion took place in the bodega and a dull sound was emitted.
Vanderford says that upon his arrival he saw that the smoke issuing from the
bodega black, suggesting the combustion of some inflammable material like
petroleum. He also noted the odor of petroleum, as did also some of the
firemen who reached the scene. It may be added that when the debris of the
fire was subsequently searched, merchandise soaked with petroleum was
found in the ruins.

Domingo Romero, who had been living at 97 Plaza Gardenia, had before the
fire taken his family temporarily to the home of Prats in Pasay. But after the
fire was over the family moved back to 97 Plaza Gardenia, although that
place had been considerably damaged by the flames.

Among those who suffered from the fire were the members of the Artigas
family, living at 93 Gardenia, on the side opposite Romero's house. Another
neighbor who likewise suffered from the fire was one Juan Atayde, occupant
of 67 Calle Gardenia, at the side of the house occupied by Osete. Soon after
the fire Domingo Romero quietly passed a 100-peso bill into the hand of
Maria Luisa Artigas, a daughter belonging to the Artigas family. Romero
likewise gave the same amount to Juan Atayde. It is self-evident that the gifts
thus made by Romero to Luisa Artigas and Juan Atayde had other motives
than pure charity and that the money probably came from some other source
than his own modest earnings. After the fire that a special investigation was
made by the police department with the result that Deputy Chief Lorenzo
came to the conclusion that the fire had originated from an intentional act.
Reflection upon the proof before the court engenders in us the same belief
and conducts us to the further conclusion that Prats & Co. was not alien to
the deed.

The finding of the trial court in the effect that the plaintiff had submitted false
proof in the support of his claim is also, in our opinion, well founded. That
conclusion appears to have been based upon three items of proof, and with
respect to at least two of these, we think that the conclusion of his Honor was
correctly drawn. These two facts are, first, that the plaintiff had submitted a
claim for jewelry lost in the fire as of a value of P12,800 when th erule value
of said jewelry was about P600; and, secondly, that the plaintiff had sought
to recover from the insurance company the value of goods which had been
surreptitiously withdrawn by it from the bodega prior to the fire. Neither of
these two facts are consistent with good faith on the part of the plaintiff, and
each constituted a breach of the stipulations of the policy against the use of
fraudulent devices and false proof with respect to the loss.

The other point relied upon by his Honor to sustain the conclusion that the
plaintiff had attempted to deceive the defendant with respect to the extent of
the loss was at least competent in its general bearing on the good faith of the
plaintiff, even if, as is probably true, not alone sufficient to constitute a
breach of the same stipulations. The point is this: After the fire the plaintiff
presented to the adjuster certain cost sheets and cpies of supposed
invoices in which the prices and expenses of importation of a quantity of
goods were stated at double the true amount. The adjuster soon discovered
the artificial nature of these documents, and, with his consent, they were
withdrawn by Prats and subsequently destroyed. At the hearing Prats stated
that these documents had been fabricated in order that they might be
exhibited to intending purchasers of the goods, thereby making it appear to
them that the cost of the mercahndise had been much greater than it in fact
was a ruse which is supposed to have been entirely innocent or at least
not directed against the insurer. But a question naturally arises as to the
purpose which these documents might have been made to serve if the fire,
as doubtless intended by its designers, had been so destructive as to
remove all vestiges of the stock actually involved. Upoon the whole we are
forced to state the conclusion, not only that the plaintiff caused the fire to be
set, or connived therein, but also that it submitted fraudulent proof as the trial
judge found.

Before concluding this opinion we are constrained to make a few

observations with reference to the trial of this case and the inordinate
amountof time consumed in the proceedings. We are told in the appellant's
brief that the trial of this case covered a period of almost two years, in which
fifty separate sessions were held, without counting the numeruos hearings
upon the taking of the deposition of Francisco Prats, a partner in the plaintiff
firm, whose testimony was taken at the instance of the defendant. Taken all
together, the time thus consumed was out of all proportion to the difficulties
of the case. An examination of the voluminous transcript reveals at least part
of the reason for this inordinate consumption of time; since we find that far
too much of the space in the transcript is taken up with the record of petty
skirmishes in court resulting from objections over the admission of evidence.

In the course of long experience we have observed that justice is most

effectivly and expenditiously administered in the courts where trivial
objections to the admission of proof are received with least favor. The
practice of excluding evidence on doubtful objection to its materiality or
technical objection to the form of the questions should be avoided. In a case
of any intricacy it is impossible for a judge of first instance, in the early
stages of the development of the proof, to know with any certainty whether
testimony is relevant or not; and where there is no indication of bad faith on
the part of the attorney offering the evidence, the court may as a rule safely
accept the testimony upon the statement of the attorney that the proof
offered will be connected later. Moreover, it must be remembered that in the
heat of the battle over which he presides a judge of first instance may
possibly fall into error in judging of the relevancy of proof where a fair and
logical connection is in fact shown. When such a mistake is made and the
proof is erroneously ruled out, the Supreme Court, upon appeal, often finds
itself embarrassed and possibly unable to correct the effects of error without
returning the case for a new trial, -- a step which this court is always very
loath to take. On the other hand, the admission of proof in a court of first
instance, even if the question as to its form, materiality, or relevancy is
doubtful, can never result in much harm to either litigant, because the trial
judge is supposed to know the law; and it is its duty, upon final consideration
of the case, to distinguish the relevant and material from the irrelevant and
immaterial. If this course is followed and the cause is prosecuted to the
Supreme Court upon appeal, this court then has all the material before it
necessary to make a correct judgment.

In this connection it should be remembered that many of the technical rules

of evidence which are often invoked in our courts were originally worked out
in England and the United States, where the jury system prevails. These
rules were adopted for the purpose of keeping matter from juries which it
was supposed might unduly influence them in deciding on the facts. They
have little pertinence to a system of procedure, like ours, in which the court
is judge both of law and facts, and in which accordingly it is necessary for
the court to know what the proof is before it rules upon the propriety of
receiving it. Apart from these considerations is the circumstance mentioned
above that the time consumed in the trial on such collateral points is
generally many times greater than would be consumed if the questionable
testimony should be admitted for what it is worth. What has been said above
finds special relevancy in this case in view of the action of the trial court in
refusing to consider the proof referred to in the opinion showing that the
plaintiff, while engaged in assembling its stock, procured maritime insurance
upon a fictitious importation of silk. We earnestly commend the maintenance
of liberal practice in the admission of proof.

Our examination of the case leads to the conclusion that the result reached
by the trial court was correct.

The appealed decision will therefore be affirmed, and it is also ordered, with
costs against the appellant.

Avancena, C. J., Villamor and Ostrand, JJ., concur.

Romualdez, J., concurs for the affirmance of the appealed judgment.
Villa-Real, J., concurs in the result.

x--x

G.R. No. L-29039 November 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
HON. FELINO D. ABALOS, Judge of the Court of First Instance, Branch II,
16th Judicial District, and MOHAMMAD USSAM DAMBONG, respondents.

Sulu Assistant Provincial Fiscal Jainal D. Rasul for plaintiff.

Bueno, Amin and Isnani for respondents.

CONCEPCION, C.J.:

This is a special civil action for certiorari and mandamus with preliminary
mandatory injunction, to annul an order of Honorable Felino D. Abalos, as
Judge of the Court of First Instance of Sulu, directing that the testimony of a
rebuttal witness for the prosecution in Criminal Case No. 3158 of said Court
be stricken from the records. Soon after the filing of the petition herein, We
issued a temporary restraining order directing that the continuation of the
trial of said case be suspended until further orders.

On or about March 9, 1966, an information was filed with said court,

presided over by respondent Judge, accusing Mohammad Ussam
Dambong, Jikiri Dambong, Amiril Habissi and Ahmad Intoman, of the crime
of double murder upon Abdulhadi Maoludani and Maoludani Habissi, with
multiple frustrated murder upon the persons of Sarahani Maoludani,
Marajuko Maoludani and Abdulrajik Maoludani, allegedly committed on
February 6, 1961, in Guimba Asin, municipality of Panamao, province of
Sulu. When the case was called for trial, the prosecution introduced
evidence tending to show that defendant Mohammad Ussam Dambong had,
on February 6, 1961, gone to the place aforementioned, accompanied by his
co-defendants, and then fired at and killed Maoludani Habissi and
Abdulhadi Maoludani, as well as shot and wounded the other persons
named in the information. After the reception of said evidence for the
prosecution, the defense proceeded with the presentation of its own
evidence, in the course of which, defendant Mohammad Ussam Dambong
testified that the casualties and the injuries adverted to above were due to
shots fired, not by him, but by Abdulkadil Habbisi because, as a police
sergeant in the performance of his duty, he (Mohammad Ussam Dambong)
had merely fired into the air, to stop a fight between two (2) groups of
persons, to one of which the victims belonged. The defense having,
thereafter, completed the introduction of its evidence, on April 24, 1968, the
prosecution called Majid Andi as rebuttal witness.

After the preliminary questions propounded to him, the defense objected to

further questions, upon the ground that Madjid Andi appeared to have
witnessed the occurrence and that his testimony should have been
introduced when the prosecution presented its evidence in chief.
Respondent Judge sustained the objection, but, later, reconsidered his
resolution, as the prosecution explained that it had discovered Madjid Andi
sometime after the introduction of its evidence in chief and that the testimony
of said witness would merely rebut that of defendant Mohammed Ussam
Dambong. Thereupon, the prosecution resumed the examination of Madjid
Andi, who said that he was present when the shooting involved in the case
took place, that Maoludani Habissi and Abdulhadi Maoludani were shot by
defendant Mohammad Ussam Dambong, not by Abdulkadil Habbisi, and
that the latter was not even at the scene of the occurrence. The prosecution
then asked Madjid Andi whether Mohammad Ussam Dambong was in the
courtroom. The defense objected to this question as improper for rebuttal,
and one that should have been asked during the presentation by the
prosecution of its evidence in chief. Respondent Judge sustained the
objection and ordered the testimony of Madjid Andi stricken from the record,
as improper for rebuttal.

The prosecutor having announced that Madjid Andi would be its last witness
and that he (prosecutor) would appeal from the resolution of the court as
soon as copy thereof had been furnished him, respondent Judge
incorporated his aforementioned resolution in an order, dated May 2, 1968,
directing that the testimony of said witness, be "discarded from the records
on the ground that the testimony are answers to questions not proper in
rebuttal" and stating that "from the observation of the Court, the witness in
rebuttal should have been presented as a witness in the presentation of the
evidence in chief of the prosecutor", and declaring that the case would be
deemed submitted for decision on May 15, 1968, unless the parties sought
permission to file memoranda on or before said date.

Hence, this original action for certiorari and mandamus, with preliminary
mandatory injunction, filed by the prosecution against said respondent
Judge and Mohammad Ussam Dambong, for the purpose stated at the
beginning of this decision. In his answer to the petition herein, respondent
Judge reiterated the views expressed by him during the trial, as well as in
the resolution and the order complained of. Respondent Mohammad Ussam
Dambong filed an answer defending the position taken by respondent
Judge. Such position is utterly untenable.

Referring particularly to the question whether or not respondent Judge erred

in ordering the testimony of Madjid Andi stricken from the records, We note
that the information alleges that defendant Mohammad Ussam Dambong
had fired at and killed Maoludani Habissi and Abdulhani Maoludani, as well
as wounded several other specified persons. Naturally, the evidence for the
prosecution tended to prove that Mohammad had committed these acts.
Upon the other hand, Mohammad was entitled to establish the contrary
that he did not kill or wound said person. He, however, went further, to which
he was entitled, by testifying that it was Abdulkadil Habbisi who killed and
wounded the persons above-mentioned. This was a new matter, not covered
directly by the evidence for the prosecution. It is true that, if, as testified to by
its witnesses, it was Mohammad Ussam Dambong who caused the deaths
and the injuries already adverted to, it would follow that Abdulkadil Habbisi
was not the author thereof. The prosecution was entitled, however, as a
matter of strict legal right, to introduce positive evidence to this effect,
instead of relying upon at mere inference from its evidence in chief. In fact, it
was to the interest of the trial court, in the discharge of its duty to find the
truth, to receive said rebuttal evidence for the prosecution. What is more, a
failure to introduce it on rebuttal could have been regarded as a sign of
weakness in the evidence for the prosecution. Then, too, it would have been
ridiculous for the prosecution, during the presentation of its evidence in
chief, to try to prove that the crimes charged on the information had not been
committed by Abdulkadil Habbisi.

Under the circumstances, it is obvious that, in directing that the testimony of

Madjid Andi be stricken from the record and not allowing said witness to
identify the person who committed the crime aforementioned, respondent
Judge had committed a grave abuse of discretion amounting to excess of
jurisdiction.

Trial courts have ample discretion to determine whether or not the parties
should be allowed to introduce evidence in rebuttal. Moreover, its resolutions
on these matters are interlocutory in nature and will not generally be
reviewed, except on appeal taken from a decision rendered on the merits.
Judicial discretion, however, is not unlimited. It must be exercised
reasonably, with a view to promoting the ends of justice, one of which is to
ascertain the truth. Hence, whenever discretion is vested, it must be
understood to be a sound one, inasmuch as the interest of justice, equity
and fair play cannot be advanced otherwise. This is particularly with respect
to rules of procedure, especially those governing the admission or exclusion
of evidence. As a matter of general practice, it is deemed best to resolve
doubts in favor of the admission of the contested evidence, without prejudice
to such action as the court may deem fit to take in deciding the case on the
merits.1 This practice has added importance as regards the evidence for the
prosecution in criminal cases, for, once the accused has been acquitted,
there is no means to secure a review by appeal, no matter how erroneous
the action of the lower court may have been. Hence, We have been
constrained to suspend the proceedings in the criminal action involved in the
case at bar, to forestall a possible miscarriage of justice.

In issuing a writ of certiorari against a trial Judge who had rejected, inter alia,
certain rebuttal evidence for the prosecution in a criminal case, We had
occasion to point out, in People vs. Montejo,2 that:

Upon a review of the record, we are fully satisfied that the lower court had,
not only erred, but, also, committed a grave abuse of discretion in issuing
the resolutions complained of, in rejecting the aforementioned direct and
rebuttal evidence for the prosecution, and in not permitting the same to
propound the questions already adverted to. It is obvious to us that said
direct and rebuttal evidence, as well as the aforementioned questions, are
relevant to the issues involved in Criminal Case No. 672. Although it is not
possible to determine with precision, at this stage of the proceedings, how
far said exhibits may affect the outcome of that case, it is elemental that all
parties therein are entitled to a reasonable opportunity to establish their
respective pretense. In this connection it should be noted that, in the light of
the allegations of the amended information in said case and of the records
before us, the issue of the guilt or innocence of the accused therein is bound
to hinge heavily upon the veracity of the opposing witnesses and the weight
attached to their respective testimony. Hence, the parties should be allowed
a certain latitude in the presentation of their evidence, lest they may be so
hampered that the ends of justice may eventually be defeated or appear to
be defeated. The danger of leading to such result must be avoided,
particularly in cases of the nature, importance and significance of the one
under consideration.

We, likewise, called attention to the following view, expressed in Prats & Co.
v. Phoenix Insurance Co.3 as far back as February 21, 1929:

In the course of long experience we have observed that justice is most

effectively and expeditiously administered in the courts where trivial
objections to the admission of proof are received with least favor. The
practice of excluding evidence on doubtful objections to its materiality or
technical objections to the form of the questions should be avoided. In a
case of any intricacy it is impossible for a judge of first instance, in the early
stages of the development of the proof, to know with any certainty whether
testimony is relevant or not; and where there is no indication of bad faith on
the part of the attorney offering the evidence, the court may as a rule safely
accept the testimony upon the statement of the attorney that the proof
offered will be connected later. Moreover, it must be remembered that in the
heat of the battle over which he presides a judge of first instance may
possibly fall into error in judging the relevancy of proof where a fair and
logical connection is in fact shown. When such a mistake is made and the
proof is erroneously ruled out, the Supreme Court, upon appeal, often finds
itself embarrassed and possibly unable to correct the effects of the error
without returning the case for a new trial a step which this court is always
very loath to take. On the other hand, the admission of proof in a court of first
instance, even if the question as to its form, materiality, or relevancy is
doubtful, can never result in much harm to either litigant, because the trial
judge is supposed to know the law; and it is its duty, upon final consideration
of the case, to distinguish the relevant and material from the irrelevant and
immaterial. If this course is followed and the cause is prosecuted to the
Supreme Court upon appeal, this court then has all the material before it
necessary to make a correct judgment.

and commented that:

There is greater reason to adhere to such policy in criminal cases where

questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
accused or the dismissal of the charges, from which the People can no
longer appeal.

as We granted a similar writ, in People v. Yatco,4 against another trial court

that had ordered the exclusion of an extrajudicial confession sought to be
introduced as part of the evidence for the prosecution.

WHEREFORE, the order complained of is hereby annulled, and respondent

Judge, accordingly, directed to receive the aforementioned testimony of
Madjid Andi, as well as to allow him to identify the person who caused the
deaths and the injuries involved in the criminal case already adverted to,
with the costs of this instance against respondent Mohammad Ussam
Dambong. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando,

Teehankee and Barredo, JJ., concur.

x--x

G.R. No. 109140 March 8, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLAND TACIPIT, accused-appellant.

BIDIN, J.:
This is an appeal from the decision dated November 24, 1992, of the
Regional Trial Court of Sanchez Mira, Cagayan, Branch 12, finding accused-
appellant Roland Tacipit guilty beyond reasonable doubt of the crime of
rape, the dispositive portion of which reads as follows:

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable
doubt of rape, as defined under paragraph (1) of Article 335 of the Revised
Penal Code, as amended, without the use of a deadly weapon, and hereby
imposes on him the penalty of reclusion perpetua with all the accessory
penalties provided by law, and further sentences him to pay moral damages
to one Onelia Pamittan in the amount of FIFTY THOUSAND PESOS
(P50,000.00), Philippine currency and to pay the costs. . . . (Rollo, p. 32).

The records of the case disclose that the complainant, Onelia Pamittan, was
a 17-year old high school student at the Abulug School of Fisheries in
Abulug, Cagayan at the time of he commission of the offense. She had a
friend, Eden Molina, who studied at the same school and lived about two (2)
kilometers from the school.

In the afternoon of January 3, 1991, Eden invited some of her friends,

including the complainant, over to her house. When the group arrived at
Eden's house, at about 4:30 p.m., the accused-appellant Roland Tacipit was
already there with Eden's brother, Elmer Molina, the latter being a friend and
co-worker of the accused. Previous to this meeting, the complainant already
knew the accused since he lived only a few meters from her home. She also
knew the accused to be a married man.

After partaking of a snack of tinubong (native rice cakes), the group decided
to go home. At this point, the version given by the prosecution and the
defense differed. According to the complainant, as she was about to leave
the Molina house, the accused restrained her, held her left hand and her
notebooks and told her friends to go ahead. Despite her cries and pleas for
help, the owners of the house did nothing to help her. On the other hand,
defense witness Elmer Molina alleged that the complainant and the accused
were sweethearts. They left the house together, with their hands over each
other's shoulders. At any rate, it is undisputed that the complainant left the
Molina household with the accused.

On the way, they passed through a coconut plantation of a certain Guillermo

Agustin. By then, it was already getting dark. There, the accused took hold
of the wrists of the complainant and wrestled her down to the ground. He
tore off the T-shirt and skirt she was wearing and pinned her hands across
her stomach. The accused then removed her shorts and panty and ravished
her. After the carnal act, the accused accompanied the complainant to a
point near her home and before leaving her, threatened to kill her or her
family if she reports the matter to anyone. The complainant, however, did not
heed the warning and immediately upon arriving at her house, reported the
incident to her uncle, Ernesto Marantan, with whom she was residing.
Marantan looked for the accused that same evening, but after failing in his
search, he reported the matter instead to the barangay captain.

The following day, the complainant accompanied by her mother, aunt and
cousin, reported the incident to the police at the municipal building. She
submitted her clothing for examination and after being investigated,
submitted herself for medical examination.

On January 5, 1991, the complainant executed a sworn statement narrating

the circumstances surrounding the commission of the crime and filed the
corresponding complaint for rape. After a thorough investigation which
resulted in the finding of probable cause, the municipal trial court issued a
warrant of arrest against the accused.

On February 18, 1991, an information was filed by the Provincial Prosecutor

against the accused, as follows:

The undersigned, Provincial Prosecutor, upon complaint filed by the

offended party, Nelia T. Pamittan, in the Municipal Trial Court of Abulug,
Cagayan, appearing on page 1, the record of the case, and forming an
integral part of this Information, accuses Roland Tacipit y Manglapuz of the
crime of Rape, defined and penalized under Article 335, of the Revised
Penal Code, committed as follows:

That on or about January 3, 1991, in the municipality of Abulug, province of

Cagayan and within the jurisdiction of this Honorable Court, the said
accused Roland Tacipit y Manglapuz, with lewd design, by means of force,
violence and intimidation, and with the use of deadly weapon, did then and
there wilfully, unlawfully and feloniously have sexual intercourse with the
offended party, Onelia T. Pamittan, a minor, seventeen (17) years of age,
against her will and consent.

CONTRARY TO LAW. (Rollo, p, 7)

Upon arraignment, the accused pleaded not guilty.

As his defense, the accused claimed that he and the complainant were
sweethearts since October 3, 1990 and that the complainant voluntarily
yielded herself to him. As proof of their relationship, the accused presented a
ring engraved with the name "Onelia" and alleged that it was given to him by
the complainant as a token of her love. Defense witness Elmer Molina
corroborated the testimony of the accused, stating that he courted the
complainant but was spurned by her because she was already the
accused's sweetheart.

On the other hand, these contentions were firmly denied by the prosecution.
The complainant testified that she knew the accused to be a married man
and he never visited her house to court her. She also denied that Elmer
Molina courted her or that she told him that he was the accused's girlfriend.
As for the ring, the complainant denied ownership thereof. True enough,
when the ring was tried on her hand, it was loose and did not fit her finger
(Rollo, p. 23).

The trial court, after consideration of the evidence presented, rendered the
forequoted judgment against the accused. Hence, the present appeal
wherein the following assigned errors are raised:

THE TRIAL COURT ERRED 1N GIVING WEIGHT AND CREDENCE TO THE

OTHERWISE DOUBTFUL THEORY OF THE PROSECUTION AND IN
DISREGARDING THAT OF THE DEFENSE.

II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF

THE CRIME CHARGED DESPITE THE PROSECUTION'S FAILURE TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT. (Rollo,
p. 56).

The defense argues that the weight of the evidence presented by the
prosecution is grossly inadequate to overthrow the presumption of
innocence granted by law to the accused. It is the contention of the
accused-appellant that the testimony of complainant relied upon by the trial
court in convicting him is incredible and not worthy of belief. There are
inconsistencies in said testimony. It is also saddled with flaws which show
her tendency to exaggerate things (Rollo, p. 61-64).
Secondly, the accused argues that the physical evidence as well as the
actuations of the parties concerned are not consistent with the allegation of
rape but with carnal knowledge done with the consent of both the accused
and the complainant. As proof, the accused pointed out the lack of external
injuries on the body of the complainant. This fact negates the employment of
force by the accused on the complainant and rules out struggle or any other
form of resistance on the part of the complainant.

The accused likewise points to the absence of an out cry on the part of the
complainant which bolsters the position of the accused that the sexual
intercourse was consensual. The rationale given by the complainant that she
had a sore throat which prevented her from shouting was characterized by
the defense as incredible.

Finally, the accused argues that if rape had indeed been committed by him,
he would not have accompanied the complainant to a place near her house,
thereby exposing himself to the risk of being seen, but would have instead
fled for safety, which is more consistent with he commission of an offense.

In reviewing the evidence of this case, this Court was guided by the three(3)
settled principles in reviewing rape cases, namely, (1) an accusation for rape
can be made with facility; it is difficult to prove but more difficult for the
person accused, though innocent, to disprove it; (2) in view of the intrinsic
nature of the crime of rape where only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; (3)
the evidence for the prosecution must stand or fall on its own merits, and
cannot be allowed to draw strength from the weakness of the evidence for
the defense (People vs. Lim, 206 SCRA 176 [1992]). On these bases, the
decision of the trial court must be affirmed.

There is present in this case clear, convincing and competent physical and
testimonial evidence to support a finding of guilt beyond reasonable doubt
against the accused. The testimony of complainant Onelia Pamittan, was
found by the trial court to be replete with details, negating the probability of
fabrication. Although the trial court did not accord credence to that part of
her testimony relating to how she ended up leaving the Molina household
with the accused, the same did not militate against the credibility of the
complainant as a prosecution witness.

As far as alleged inconsistencies in her testimony are concerned, this Court

has ruled time and again that a few discrepancies and inconsistencies in the
testimonies of witnesses referring to minor details, and not in actuality
touching upon the basic aspects of the whys and wherefores of the crime,
do not impair their credibility (People vs. Custodio, 197 SCRA 538 [1991]
citing People vs. Muoz, 163 SCRA 780]. This is especially true in the crime
of rape where the victim cannot be expected to remember with accuracy the
details of her humiliating experience. At best, this Court relies upon the fact
that the trial court found the complainant to be a credible witness. As often
repeated by this Court:

. . . the matter of assigning values to declarations on the witness stand is

best and most competently performed by the trial judge, who, unlike
appellate magistrates, can weigh such testimony in the light of the
declarant's demeanor, conduct and attitude at the trial and is thereby placed
in a more competent position to discriminate between the true and the false.
Appellate courts will not disturb the credence, or lack of it, accorded by the
trial court of the testimony of witnesses unless it be clearly shown that the
latter court had overlooked or disregarded arbitrarily the facts and
circumstances of significance in the case (People vs. Simbulan, 214 SCRA
537 [1992]).

The appeal at hand presents no compelling reason to deviate from this

general rule.

Moreover, considering that the accused and the complainant are at most
acquaintances, there appears to be no motive on the part of the complainant
to testify against the accused which could render suspect her testimony in
court. It is clear that her only intent was to seek redress for the injustice
committed against her by appellant a married man. As held in People v.
Guibao, (217 SCRA 64 [1993]):

No woman would concoct a story of defloration, allow an examination of

herself by being subjected to a public trial, if she was not motivated solely by
the desire to have the culprit apprehended and punished.

Anent the contention of the accused that the sexual act was committed with
the mutual consent of the parties, the evidence presented by the prosecution
sufficiently rebutted his point.

For one, although there was an absence of external injuries on the body of
the complainant, the clothes worn by her at the time of the offense speak
well of the use of force and the presence of a struggle. As the trial court
noted:
Her T-shirt was torn which corroborates her testimony that it was forcibly
removed. It also proves that she offered resistance to the criminal advances
of the accused. Her shorts, like her panty, had blood stains. Her panty was
detached from her shorts. Her bra was torn, also denoting that it was forcibly
removed. These physical evidence . . . are consistent only with the force and
compulsion applied on her; they prove she offered resistance and her
defloration was against her will. (Rollo, p. 27)

The actuations of the complainant subsequent to the commission of the

crime are likewise consistent with her allegations of rape. Her immediate
revelation of the incident to her uncle upon arrival as well as her swift
recourse to the barangay Captain and the police authorities are not acts of a
woman savoring an illicit tryst but that of a maiden seeking retribution for the
outrage committed against her.

Thus, the accused's reliance on the defense that he and the complainant
were lovers is unfounded. But even if it were true, such relationship would
not give the accused the license to deflower the complainant against her will,
and will not exonerate him from the criminal charge for rape. Furthermore,
there is nothing in the testimonies of either the complainant or even the
accused himself which could indicate any sort of special relationship
between the two. The alleged proof of such relationship, the ring with
complainant's name engraved on it, does not even fit the fingers of the
complainant. Their actuations with respect to each other before, during and
even after the commission of the crime were consistent with the contention of
the complainant that they are nothing more than acquaintances. The
evidence of the prosecution, therefore, completely negates the existence of
any relationship between the accused and the complainant.

Finally, the accused's act of accompanying the complainant up to a point

near her house does not appear to be a gesture of love. If the accused was
not obsessed with a sense of guilt, he could have accompanied the
complainant to the home since it was already dark at night. Rather than a
demonstration of his freedom from guilt, the actuation of the accused in the
premises appears to be no less than a calculated move to ensure that the
complainant will keep her silence about the sordid incident perpetrated
against her will.

WHEREFORE, the decision of the Regional Trial Court of Sanchez Mira,

Cagayan, Branch 12, dated November 24, 1992 in Criminal Case No. 2190-S
finding the accused-appellant Roland Tacipit guilty beyond reasonable
doubt of the crime of rape, and sentencing him to suffer the penalty of
reclusion perpetua, with all the accessory penalties, to pay the complainant
Onelia Pamittan moral damages in the amount of fifty house and pesos
(P50,000.00) and to pay the costs, is hereby AFFIRMED IN TOTO.

SO ORDERED.

x--x

G.R. No. 16444 September 8, 1920

EMETERIA VILLAFLOR, petitioner,

vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.

Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.

Assistant City of Fiscal Felix for respondent.

MALCOLM, J.:

The petitioner prays that a writ of habeas corpus issue to restore her to her
liberty.

The facts are not dispute. In a criminal case pending before the Court of First
Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are
charged with the crime of adultery. On this case coming on for trial before
the Hon. Pedro Concepcion, Judge of First Instance, upon the petitioner of
the assistant fiscal for the city of Manila, the court ordered the defendant
Emeteria Villaflor, nor become the petitioner herein, to submit her body to the
examination of one or two competent doctors to determine if she was
pregnant or not. The accused refused to obey the order on the ground that
such examination of her person was a violation of the constitutional provision
relating to self-incrimination. Thereupon she was found in contempt of court
and was ordered to be committed to Bilibid Prison until she should permit
the medical examination required by the court.

The sole legal issue from the admitted facts is whether the compelling of a
woman to permit her body to be examined by physicians to determine if she
is pregnant, violates that portion of the Philippine Bill of Rights and that
portion of our Code of Criminal Procedure which find their origin in the
Constitution of the United States and practically all state constitutions and in
the common law rules of evidence, providing that no person shall be
compelled in any criminal case to be a witness against himself. (President's
Instructions to the Philippine Commission; Act of Congress of July 1, 1902,
section 5, paragraph 3; Act of Congress of August 29, 1916, section 3;
paragraph 3; Code of Criminal Procedure, section 15 [4]; United States
Constitution, fifth amendment.) Counsel for petitioner argues that such bodily
exhibition is an infringement of the constitutional provision; the representative
of the city fiscal contends that it is not an infringement of the constitutional
provision. The trial judge in the instant case has held with the fiscal; while it
is brought to our notice that a judge of the same court has held on an
identical question as contended for by the attorney for the accused and
petitioner.

The authorities are abundant but conflicting. What may be termed the
conservative courts emphasize greatly the humanitarianism of the
constitutional provisions and are pleased to extend the privilege in order that
its mantle may cover any fact by which the accused is compelled to make
evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259
with State vs. Ah Chuey [1879], 14 Nev., 79. See further State vs. Ah
Nordstrom [1893], 7 Wash., 506; State vs. Height [1902]. 117 Iowa., 650;
Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view
and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A
woman was charged with the crime of infanticide. The corner directed two
physicians to go to the jail and examine her private parts to determine
whether she had recently been delivered of a child. She objected to the
examination, but being threatened with force, yielded, and the examination
was had. The evidence of these physicians was offered at the trial and ruled
out. The court said that the proceeding was in violation of the spirit and
meaning of the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself." Continuing,
the court said: "They might as well have sworn the prisoner, and compelled
her, by threats, to testify that she had been pregnant, and had been
delivered of a child, as to have compelled her, by threats, to allow them to
look into her person, with the aid of a speculum, to ascertain whether she
had been pregnant and been delivered of a child. . . . Has this court the right
to compel the prisoner now to submit to an examination they are of the
opinion she is not a virgin, and has had a child? It is not possible that this
court has that right; and it is too clear to admit of argument that evidence
thus obtained would be inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain from
saying that, greatly impressed with the weight of these decisions, especially
the one written by Mr. Justice McClain, in State vs. Height, supra, the instant
case was reported by the writer with the tentative recommendation that the
court should lay down the general rule that a defendant can be compelled to
disclose only those parts of the body which are not usually covered. Buth
having disabused our minds of a too sensitive appreciation of the rights of
accused persons, and having been able, as we think, to penetrate through
the maze of law reports to the policy which lies behind the constitutional
guaranty and the common law principle, we have come finally to take our
stand with what we believe to be the reason of the case.

In contradistinction to the cases above-mentioned are others which seem to

us more progressive in nature. Among these can be prominently mentioned
decisions of the United States Supreme Court, and the Supreme Court of
these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes, in
the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving
an objection based upon what he termed "an extravagant extension of the
Fifth Amendment," said: "The prohibition of compelling a man in a criminal
court to be a witness against himself is a prohibition of the use of physical or
moral compulsion to extort communications from him, not an exclusion of his
body as evidence when it may be material." (See also, of same general tenor,
decision of Mr. Justice Day in Adams vs. New York [1903], 192 U. S., 585.)
The Supreme Court of the Philippine Islands, in two decisions, has seemed
to limit the protection to a prohibition against compulsory testimonial self-
incrimination. The constitutional limitation was said to be "simply a prohibition
against legal process to extract from the defendant's own lips, against his
will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil., 145; U. S.
vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle
announced in 16 Corpus Juris, 567, 568, citing the United States Supreme
Court and the Supreme Court of the Philippine Islands as authority.)

Although we have stated s proposition previously announced by this court

and by the highest tribunal in the United States, we cannot unconcernedly
leave the subject without further consideration. Even in the opinion Mr.
Justice Holmes, to which we have alluded, there was inserted the careful
proviso that "we need not consider how far a court would go in compelling a
man to exhibit himself." Other courts have likewise avoided any attempt to
determine the exact location of the dividing line between what is proper and
what is improper in this very broad constitutional field. But here before us is
presented what would seem to be the most extreme case which could be
imagined. While the United States Supreme Court could nonchalantly decree
that testimony that an accused person put on a blouse and it fitted him is not
a violation of the constitutional provision, while the Supreme Court of
Nuevada could go so far as to require the defendant to roll up his sleeve in
order to disclose tattoo marks, and while the Supreme Court of the Philippine
Islands could permit substances taken from the person of an accused to be
offered in evidence, none of these even approach in apparent harshness an
order to make a woman, possibly innocent, to disclose her body in all of its
sanctity to the gaze of strangers. We can only consistently consent to the
retention of a principle which would permit of such a result by adhering
steadfastly to the proposition that the purpose of the constitutional provision
was and is merely to prohibit testimonial compulsion.

So much for the authorities. For the nonce we would prefer to forget them
entirely, and here in the Philippines, being in the agrreable state of breaking
new ground, would rather desire our decision to rest on a strong foundation
of reason and justice than on a weak one blind adherence to tradition and
precedent. Moreover, we believe that an unbiased consideration of the
history of the constitutional provisions will disclose that our conclusion is in
exact accord with the causes which led to its adoption.

The maxim of the common law, Nemo tenetur seipsum accusare, was
recognized in England in early days, but not in the other legal systems of the
world, in a revolt against the thumbscrew and the rack. A legal shield was
raised against odious inquisitorial methods of interrogating an accused
person by which to extort unwilling confessions with the ever present
temptation to commit the crime of perjury. The kernel of the privilege as
disclosed by the textwriters was testimonial compulsion. As forcing a man to
be a witness against himself was deemed contrary to the fundamentals of
republican government, the principle was taken into the American
Constitutions, and from the United States was brought to the Philippine
Islands, in exactly as wide but no wider a scope as it existed in old
English days. The provision should here be approached in no blindly
worshipful spirit, but with a judicious and a judicial appreciation of both its
benefits and its abuses. (Read the scholarly articles of Prof. Wigmore in 5
Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p. 610 found in 4
Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil.,
143.)

Perhaps the best way to test the correctness of our position is to go back
once more to elements and ponder on what is the prime purpose of a
criminal trial. As we view it, the object of having criminal laws is to purgue
the community of persons who violate the laws to the great prejudice of their
fellow men. Criminal procedure, the rules of evidence, and constitutional
provisions, are then provided, not to protect the guilty but to protect the
innocent. No rule is intemended to be so rigid as to embarrass the
administration of justice in its endeavor to ascertain the truth. No accused
person should be afraid of the use of any method which will tend to establish
the truth. For instance, under the facts before us, to use torture to make the
defendant admit her guilt might only result in including her to tell a
falsehood. But no evidence of physical facts can for any substantial reason
be held to be detrimental to the accused except in so far as the truth is to be
avoided in order to acquit a guilty person.

Obviously a stirring plea can be made showing that under the due process
of law cause of the Constitution every person has a natural and inherent right
to the possession and control of his own body. It is extremely abhorrent to
one's sense of decency and propriety to have the decide that such
inviolability of the person, particularly of a woman, can be invaded by
exposure to another's gaze. As Mr. Justice Gray in Union Pacific Railway Co.
vs. Botsford ([1891], 141 U. S., 250) said, "To compel any one, and
especially a woman, to lay bare the body, or to submit to the touch of a
stranger, without lawful authority, is an indignity, an assault, and a trespass."
Conceded, and yet, as well suggested by the same court, even superior to
the complete immunity of a person to be let alone is the inherent which the
public has in the orderly administration of justice. Unfortunately, all too
frequently the modesty of witnesses is shocked by forcing them to answer,
without any mental evasion, questions which are put to them; and such a
tendency to degrade the witness in public estimation does not exempt him
from the duty of disclosure. Between a sacrifice of the ascertainment of truth
to personal considerations, between a disregard of the public welfare for
refined notions of delicacy, law and justice cannot hesitate.

The protection of accused persons has been carried to such an unwarranted

extent that criminal trials have sometimes seemed to be like a game of
shuttlecocks, with the judge as referee, the lawyers as players, the criminal
as guest of honor, and the public as fascinated spectators. Against such a
loose extension of constitutional guaranties we are here prepared to voice
our protest.

Fully conscious that we are resolving a most extreme case in a sense, which
on first impression is a shock to one's sensibilities, we must nevertheless
enforce the constitutional provision in this jurisdiction in accord with the
policy and reason thereof, undeterred by merely sentimental influences.
Once again we lay down the rule that the constitutional guaranty, that no
person shall be compelled in any criminal case to be a witness against
himself, is limited to a prohibition against compulsory testimonial self-
incrimination. The corollary to the proposition is that, an ocular inspection of
the body of the accused is permissible. The proviso is that torture of force
shall be avoided. Whether facts fall within or without the rule with its corollary
and proviso must, of course, be decided as cases arise.

It is a reasonable presumption that in an examination by reputable and

disinterested physicians due care will be taken not to use violence and not to
embarass the patient any more than is absolutely necessary. Indeed, no
objection to the physical examination being made by the family doctor of the
accused or by doctor of the same sex can be seen.

Although the order of the trial judge, acceding to the request of the assistant
fiscal for an examination of the person of the defendant by physicians was
phrased in absolute terms, it should, nevertheless, be understood as subject
to the limitations herein mentioned, and therefore legal. The writ of habeas
corpus prayed for is hereby denied. The costs shall be taxed against the
petitioner. So ordered.

Mapa, C.J., Araullo, Avancea, Moir and Villamor, JJ., concur.

x--x

G.R. No. L-61356-57 September 30, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELICISIMO JARA, REYMUNDO VERGARA and ROBERTO BERNADAS,
defendants-appellants.

GUTIERREZ, JR., J.:

We are once again constrained to take a hard look into the sufficiency of
extra-judicial confessions as the sole basis for the imposition of the supreme
penalty of DEATH.
The three appellants were all sentenced to death in Criminal Case No. 2564
for robbery with homicide. In the companion case of parricide, one was
sentenced to another death penalty while the two other appellants received
sentenced ranging from 12 to 20 years of imprisonment.

Our task is made difficult by the fact that the crimes were specially ruthless
and barbarous in their commission. No less than the counsel for the
appellants states that the people of Puerto Princesa are no strangers to
crime and that the frequency of criminal acts in their city has somehow
benumbed the sensibilities of its citizens. Yet, the discovery on June 9, 1978
of the brutally and badly bashed corpses of two well-known and loved
women of their community was still shocking to their senses.

There is the added factor that the police officers who investigated the crime
and secured the confessions seemed so certain that indeed the three
appellants are the malefactors. The confessions are convincing in their
details. The trial court noted that "both victims were assaulted and killed with
the might and fury of one really who had harbored so long a grudge and
hate" and only Felicisimo Jara had that kind of ill-will against his estranged
wife and her female companion. Moreover, Jara, a recidivist for the crime of
homicide, was characterized as an experienced killer. There must be many
residents of Puerto Princesa who are thus convinced about the correct
solution of the crime. And perhaps, the appellants could have been the
killers.

The function of this Court, however, is not to indulge in surmises or

probabilities. The issue before us is whether or not the evidence of guilt is
admissible under the standards fixed by the Constitution and if the quantum
of proof, which we are allowed by the Constitution to consider, establishes
guilt beyond reasonable doubt.

The decision of the former Court of First Instance of Palawan, 7th Judicial
District, Branch 1 in the consolidated cases of People of the Philippines
versus Felicisimo Jara, et al. (Criminal Case No. 2564) for Robbery with
Homicide and People of the Philippines vs. Felicisimo Jara, et al. (Criminal
Case No. 2565) for Parricide is involved in this automatic review. All the three
accused in Criminal Case No. 2564 were sentenced to suffer the maximum
penalty of death, to indemnify jointly and severally the heirs of the deceased
Amparo Bantigue in the sum of Pl,000.00, the amount stolen, and the sum of
P12,000.00. In Criminal Case No. 2565, for the killing of Luisa Jara, accused
Felicisimo Jara was found guilty beyond reasonable doubt of the crime of
parricide and meted out the maximum penalty of death while the two other
accused were found guilty of homicide and sentenced to suffer an
indeterminate penalty of twelve (12) years of prision mayor as minimum to
twenty (20) years of reclusion temporal as maximum. All the accused were
ordered to indemnify jointly and severally the heirs of Luisa Jara in the sum of
P12,000.00.

The information for the crime of robbery with homicide in Criminal Case No.
2564 reads as follows:

That on or about the 9th day of June, 1978, about 1:30 o'clock in the
morning, at Malvar St., Puerto Princesa City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping each other, with intent to
kill, evident premeditation and treachery, after gaining entrance to the house
thru the window, an opening not intended for entrance or egress, did then
and there wilfully, unlawfully and feloniously strike with a hammer Amparo
Vda. de Bantigue hitting her on the vital parts of her body and stab with a
scissor while she was soundly sleeping in her bedroom with one Luisa Jara,
thereby causing her instantaneous death as a result thereof, and that after
killing Amparo Vda. de Bantigue, accused in conspiracy with each other,
with intent to gain and without the consent of the owner thereof, took, stole
and carried away a piggy bank and a buddha bank containing money in the
amount of not more than P200.00, to the damage and prejudice of the heirs
of Amparo Vda. de Bantigue, in the total amount of TWELVE THOUSAND
TWO HUNDRED PESOS (P12,200.00) Philippine Currency.

CONTRARY TO LAW and committed with aggravating circumstances of

Recidivism with respect to accused Felicisimo Jara, the latter having been
previously convicted of the crime of homicide in the Court of First Instance of
Iloilo, and the aggravating circumstance against all the accused that the
crime was committed with treachery, in the dwelling of the offended party, in
the nighttime, and with respect to accused Reymundo Vergara and Roberto
Bernadas, for having participated in the commission of the crime in
consideration of a prize or reward.

In Criminal Case No. 2565, the information charged the accused as follows:

That on or about June 9, 1978, at about 1:30 o'clock in the morning, at

Malvar St., Puerto Princesa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping each other with intent to kill, treachery and
evident premeditation, did then and there wilfully, unlawfully and feloniously
strike several times, with a hammer one Luisa Jara, who is the lawfully
wedded wife of accused Felicisimo Jara, and thereafter, stabbed her with a
scissor in her chest and abdomen, while the latter was soundly sleeping with
one Amparo Vda. de Bantigue, resulting to the instantaneous death of said
Luisa Jara, to the damage and prejudice of the heirs of said Luisa Jara in the
amount of TWELVE THOUSAND (P12,000.00) PESOS, Philippine Currency,

CONTRARY TO LAW and committed with the aggravating circumstances of

Recidivism with respect to accused Felicisimo Jara, the latter having been
previously convicted of the crime of homicide in the CFI of Iloilo, and the
aggravating circumstance against all the accused, namely: (1) that the crime
was committed in the dwelling of the offended party, (2) in the nighttime, (3)
and treachery; and the aggravating circumstance against accused
Reymundo Vergara and Roberto Bernadas of having participated in the
commission of the crime in consideration of a prize or reward.

All the accused pleaded not guilty during the arraignment. On motion by the
prosecution and the defense, the court a quo ordered a joint trial of the two
cases which arose from one incident and where the witnesses are the same.

The facts according to the prosecution are as follows:

At about 6:00 o'clock in the early morning of June 9, 1978, the waitresses at
Alvin's Canteen situated in Malvar Street, Puerto Princesa City, wondered
why their employer, the deceased Amparo Bantigue, did not answer when
they called at her door that morning (p. 7, TSN, March 21, 1979). They went
to the kitchen and peeped through a hole. They saw Amparo and Luisa Jara
seemingly asleep. They again went to the door and knocked but still no
answer came. The waitresses called one of Luisa Jara's waitresses at
Aileen's canteen next door. Becoming apprehensive, they went back to the
kitchen for a second look. They discovered the following- . Amparo and
Luisa were both lying in bed; Luisa was dressed only in her underwear and
there was dried blood in one of her hands; Amparo, seemingly asleep, lay
beside her (pp. 9-11, TSN, March 21, 1979). Finally, they decided to inform
Luisa's daughter, Minerva, about their apprehension. When they met Minerva
at the public market, she tearfully accompanied them back to Amparo's
room. When no one answered their knocking, Minerva kicked open the door.
(pp. 11-12, TSN, March 21, 1979). Inside, they found the two women dead
from wounds inflicted on their persons (p. 13, TSN, March 21, 1979).

The husband of Luisa, appellant Felicisimo Jara, then entered the room and
saw the condition of the victims (p. 15, TSN, March 21, 1979).
Inside the room, several ceramic piggy banks belonging to Amparo
containing coins estimated in the amount of P1,000.00 were missing (p. 43,
TSN, February 6, 1979). Scattered underneath the window of Amparo's
bedroom were coins and bits and pieces of what used to be ceramic piggy
banks (Exh. F; pp. 17-20, TSN' Feb. 6, 1979).

Later, two suspects in the killing, appellants Reymundo Vergara and Roberto
Bernadas. were apprehended (pp. 59-60, TSN, March 19, 1979). After
investigation, they confessed their guilt to the Provincial Commander of the
Philippine Constabulary in Palawan and other police investigators (pp.
26-31, TSN, May 28, 1979). They also positively Identified appellant
Felicisimo Jara as the mastermind who had plotted the killing and who
promised them a fee of P1,000.00 each for their participation (Exhibits O and
N). Before the City Fiscal and First Assistant Fiscal of Puerto Princesa City,
respectively, appellants Vergara and Bernadas subscribed and swore to
their extra-judicial statements wherein they narrated their role and that of
Felicisimo Jara in the killing (see Exhibits O and N).

Thereafter, the killing was reenacted before the military authorities and the
public, with appellants Vergara and Bernadas participating (p. 14, TSN, July
19, 1979).

The autopsy reports (Exhibits "A" and "C") submitted by Dr. Rufino Ynzon, the
City Health Officer of Puerto Princesa on the examination of the cadavers of
the deceased victims indicate that death in both cases resulted from
"hemorrhage, intra-cranial secondary to multiple comminuted-depressed
fracture of the cranial bones." Amparo Bantigue's wounds were described as
follows:

POST MORTEM FINDINGS

1. Wound, macerated, roughly oval in shape, about 1 l/4 inches in length

with depressed-comminuted fracture of the underlying bone located at the
forehead, right, upper portion.

2. Wound, macerated, roughly oval in shape, about 1 1/3 inches in

length, with depressed-comminuted fracture of the underlying bone located
at the forehead, central portion.
3. Wound, macerated, roughly circular in shape, about 1 1/5 inches in
length with depressed-comminuted fracture of the underlying bone located
at the forehead, medially to the left eyebrow.

4. Wound, macerated, roughly triangular in shape with depressed -

comminuted fracture of the underlying bone located above the left eyebrow.
5. Wound, macerated, elongated with fracture of the alveolar bone, located
at the upper lip, central portion.

6. Wound, macerated, elongated, about 31/2 inches in length with

depressed-comminuted fracture of the underlying bone with brain tissue
coming out located at the left parieto temporal region.

7. Wound, macerated, elongated, about 21/2 inches in length with

depressed-comminuted fracture of the underlying bone located at the left
temporal region, anterior portion.

8. Wound, macerated, elongated, about 2 inches in length, with

depressed-comminuted fracture of the underlying bone, located at the left
face.

9. Wound, macerated, roughly oval in shape, about 2 inches in length, with

depressed-comminuted fracture of the underlying bone, located at the right
temporal region.

10. Wound, macerated, elongated, about 2 inches in length with depressed-

comminuted fracture of the underlying bone located at the right face.

11. Wound, stabbed, about an inch in length at the right chest, between
the 3rd and 4th intercostal space, penetrating the thoracic cavity involving
the right lung.

12. Wound, stabbed, about 1 inch in length, located at the chest, central
portion, penetrating the sternum, then thoracic cavity piercing the right
auricle, heart.

13. Wound, stabbed, about 1 inch in length, located at the right upper
abdomen penetrating the abdominal cavity involving the liver and stomach.
(Exhibit "A").

CAUSE OF DEATH: HEMORRHAGE INTRA-CRANIAL SEC. TO MULTIPLE

COMMINUTED-DEPRESSED FRACTURE OF THE CRANIAL BONES."
On the other hand, Luisa Jara suffered from the following wounds:

POST MORTEM FINDINGS

1. Wound,macerated,roughly circular in shape,about 1 1/2 inches in

diameter with depressed-comminuted fracture of the underlying bones,
located at the right frontal region.

2. Wound, macerated, with a letter T shape, about 2 inches in length, with

depressed-comminuted fracture of the underlying bone, located at the
central portion of the frontal region.

3. Wound, macerated, roughly triangular in shape, about 1 1/2 inches in

length with depressed-comminuted fracture of the underlying bone, located
at the right side of the nose.

4. Wound, macerated, roughly elongated in shape, about 1 inch in length,

with depressed-comminuted fracture of the underlying bone, located at the
left eyebrow, lateral portion.

5. Wound, macerated, roughly oval in shape, about 2 inches in length,

with depressed-comminuted fracture of the underlying bone, located at the
left lateral portion of the forehead.

6. Wound, macerated, roughly oval in shape, about 2 inches in length,

with depressed-comminuted fracture of the underlying bone, located at the
parietal region, left.

7. Wound, macerated, roughly elongated in shape about 1 inch in length

with depressed-comminuted fracture of the underlying bone, located at the
temporal region, left.

8. Wound, macerated, roughly elongated in shape, about 11/2 inches in

length with depressed-comminuted fracture of the underlying bone, located
at the temporal region, left.

9. Wound, macerated, roughly stellate in shape, about 2 inches in length,

with depressed-comminuted fracture of the underlying bone, located at the
left mandibular region.
10. Wound, macerated, roughly oval in shape, about 1 l/2 inches in length,
with depressed-comminuted fracture of the underlying bone, located at the
left face.

11. Wound,incised,about l 3/4 inches in length, located at the left upper

portion of neck, left side.

12. Wound, macerated, roughly elongated in shape, about 3 inches in

length with depressed-comminuted fracture of the underlying bone, located
at the right temporal region.

13. Contusion with hematoma, circular in shape, located laterally from the
right eyebrow.

14. Wound, macerated, roughly elongated in shape about 2 inches in

length with depressed-comminuted fracture of the underlying bone, located
at the occipital region, upper portion.

15. Wound, stabbed, about 1 inch in length, located at the chest, central
portion penetrating inside the thoracic cavity involving heart and lung.

16. Wound, stabbed, about 1 inch in length, located at the level of typhoid
process penetrating the thoracic cavity involving the right lung, lower lobe.
(Exhibit "C")

CAUSE OF DEATH: HEMORRHAGE, INTRA-CRANIAL SEC. TO MULTIPLE

COMMINUTED-DEPRESSED FRACTURE OF THE CRANIAL BONES.

Felicisimo Jara denied the charge that he was the one who killed his wife,
Luisa, together with her friend, Amparo Bantigue. He interposed alibi as a
defense and testified that at the time the killings took place at Alvin's
Canteen at Malvar Street, Puerto Princesa City, he was fast asleep with his
grandchildren at his step-daughter's house in Pineda Subdivision. The other
accused, Reymundo Vergara and Roberto Bernadas retracted their
respective extra-judicial confessions admitting their participation in the
crimes charged and Identifying their mastermind" as the accused Jara
during proceedings before the Inquest Fiscal. They contested the
admissibility of the extra-judicial confessions and the subsequent re-
enactment of the crime on the ground that their participations in these
occasions were not free and voluntary and were without the benefit of
counsel.
The court below ruled that the extra-judicial confessions of the accused
Bernadas and Vergara (Exhibits "N" and "O", respectively), together with the
proof of corpus delicti of the special crime of robbery with homicide
established the guilt of the accused beyond moral certainty.

In their brief, the accused-appellants contended that the court a quo erred:

IN CONVICTING THE ACCUSED DESPITE THE UTTER ABSENCE OF ANY

KIND OF EVIDENCE, DIRECT OR CIRCUMSTANTIAL.

II

IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSIONS OF

ACCUSED-APPELLANTS REYMUNDO VERGARA AND ROBERTO
BERNADAS WHICH WERE TAKEN THRU FORCE AND WITHOUT BENEFIT
OF COUNSEL.

III

IN ADMITTING THE ALLEGED EXTRA-JUDICIAL CONFESSIONS OF

ACCUSED-APPELLANTS REYMUNDO VERGARA AND ROBERTO
BERNADAS AGAINST THEIR CO-ACCUSED-APPELLANT FELICISIMO
JARA.

IV

IN FINDING THE PRESENCE OF CONSPIRACY DESPITE THE ABSENCE OF

PROOF THEREOF.

IN ALLOWING THE PLAYING OF AN ALLEGED TAPED CONFESSION.

VI

IN ADMITTING THE PICTURES, EXHS. "T" TO "T- 23", WHICH WERE NEVER
PROPERLY IDENTIFIED.
All these assigned errors boil down to the issue of whether or not there is
sufficient evidence as borne by the records to establish the guilt of the
accused beyond reasonable doubt.

Section 20, Article IV of the Constitution provides:

No person shall be compelled to be a witness against himself. Any person

under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right. No force,
violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this
section shall be inadmissible in evidence.

There is no dispute that the confessions in these cases were obtained in the
absence of counsel. According to the records, there was a waiver by the
accused-appellants of their right to counsel.

Was the waiver valid?

We are constrained to answer this question in the negative.

Before the extrajudicial confession of appellant Bernadas was reduced to

writing, Pfc. Henry E. Pulga, in the presence of four other police officers,
made the following "Pasubali" followed by the answer, "Opo":

PASUBALI: Ikaw ay nasa ilalim ng isang pagsisiyasat at dahil dito ay

ipinababatid namin sa iyo ang iyong mga karapatan na sa ilalim ng ating
Bagong Saligang Batas ay ikaw ay may karapatang kumuha ng isang
manananggol o abogado ayon sa sarili mong pili mayroon ka ring karapatan
na hindi maaaring piliting sumagot sa anumang itatanong sa iyo sa alinmang
Hukuman sa Pilipinas. Nauunawaan mo ba ang lahat ng mga ipinaliwanag
namin sa iyo ngayon?

SAGOT: Opo.

Likewise, in the case of the accused Vergara, the foreword of Ms signed

sworn statement reads:

TANONG: Marunong po ba kayong sumulat bumasa ng tagalog at

umunawa ng wikang tagalog na siya nating gagamitin sa pagsisiyasat na
ito?
SAGOT: Nakakaunawa po ako at nakakabasa pero sa pagsulat ay hindi
masyado.

PALIWANAG: Kung gayon po ay ipinababatid ko sa inyo ang inyong

karapatan na kayo ay maaaring manatiling tahimik kung inyong nais,
magbigay o tumangging magbigay ng inyong salaysay, maaari din na kayo
ay sumangguni muna sa isang abogado kung nais ninyo at ang lahat po ng
inyong sasabihin ay maaaring gamiting pabor o laban sa inyo sa anumang
Hukuman dito sa ating kapuluan ngayong alam na ninyo ang ilan sa inyong
karapatan kayo po ba naman ay handa na ngayong magsalaysay kahit na
kayo ay wala pang abogadong kaharap na siyang mangangalaga sa inyong
karapatan at lahat po ng inyong sasabihin ay pawang katutuhanan lamang

SAGOT: Opo.

(SGD.) REYMUNDO VERGARA

DELA CRUZ

PATUNAY: Ako si Reymundo Vergara dela Cruz ay nagsasaad na ipinaalam

sa akin ang aking karapatang manatiling tahimik, kung aking nanaisin, na
ang lahat na aking sasabihin ay maaaring gamiting pabor o laban sa akin at
nalaman ko rin na ako ay maaaring kumuha ng sarili kong abogado na
siyang nangangalaga ng aking karapatan na kung hindi ko kayang kumuha
ay bibigyan ako ng pamahalaan.

Nauunawaan ko ang mga karapatang ito, handa at kusang loob akong

nagbibigay ng aking salaysay ngayon, sa tanong at sagot na paraan. Hindi
ko na kailangan ang tulong ng isang abogado, nauunawaan ko ang aking
ginagawa, walang pananakot, pananakit, pangako, pabuya o anuman na
ginawa sa akin upang ako ay magsalaysay. Ito ay sarili kong kagustuhan.

(SGD.) REYMUNDO VERGARA

DELA CRUZ

This stereotyped "advice" appearing in practically all extrajudicial

confessions which are later repudiated has assumed the nature of a "legal
form" or model. Police investigators either automatically type it together with
the curt "Opo" as the answer or ask the accused to sign it or even copy it in
their handwriting. Its tired, punctilious, fixed, and artificially stately style does
not create an impression of voluntariness or even understanding on the part
of the accused. The showing of a spontaneous, free, and unconstrained
giving up of a right is missing.

Whenever a protection given by the Constitution is waived by the person

entitled to that protection, the presumption is always against the waiver.
Consequently, the prosecution must prove with strongly convincing evidence
to the satisfaction of this Court that indeed the accused willingly and
voluntarily submitted his confession and knowingly and deliberately
manifested that he was not interested in having a lawyer assist him during
the taking of that confession. That proof is missing in this case.

The records sustain the appellants' contention that their extrajudicial

confessions bear clear earmarks of illegality and improbability.

The Solicitor General gives the following arguments for voluntariness:

An extra-judicial confession is generally presumed to have been voluntarily

executed (People v. Castaeda, 93 SCRA 56). The confessant carries the
burden of convincing the trial judge that his admissions are involuntary or
untrue (People v. Ramos, 94 SCRA 842).

The trial court in this case was not convinced that the extrajudicial
confessions of appellants were made involuntarily. Consider the following
reasons for the court's refusal to lend credence to appellants' claim:

(1) Apart from appellants' self-serving claim no other evidence on record

supports the allegation of involuntariness (People v. Villa, 93 SCRA 716).

(2) On the contrary, several prosecution witnesses testified that the

confessions were voluntarily given.

(3) Appellants' oral and written confessions given at various times to

several investigating authorities, not to mention the public re-enactment of
the crime itself, did not vary and they revealed details only the assailants
could have possibly known (People v. Ty Sui Wong, 83 SCRA 125; People v.
Bautista y Aquino, 92 SCRA 465).

(4) Appellants' confessions were corroborated by the existence of corpus

delicti established by independent evidence (People v. Francisco, 93 SCRA
351).
(5) The claim of coercion cannot prevail over the testimony of the
subscribing fiscal that said confession was voluntary (People v. Caramonte,
94 SCRA 150).

The People v. Castaeda ruling applies to a crime committed before the Bill
of Rights was amended to include Section 20 on the right to remain silent
and to counsel and to be informed of such right. The presumption that "no
one would declare anything against himself unless such declarations were
true" assumes that such declarations are given freely and voluntarily. The
new Constitution, in expressly adopting the so-called Miranda v. Arizona
(384 U.S. 436) rule, has reversed the presumption. The prosecution must
now prove that an extrajudicial confession was voluntarily given, instead of
relying on a presumption and requiring the accused to offset it. There would
have been no need to amend the centuries old provisions of the Bill of Rights
and to expressly add the interdiction that "no force, violence, threat,
intimidation, or any other means which vitiates the free will shall be used
against him (the person being investigated)" if the framers intended us to
continue applying the pre-1973 or pre-amendment presumptions.

Miranda v. Arizona, in explaining the rule which the U.S. Supreme Court
adopted, states:

While the admissions or confessions of the prisoner, when voluntarily and

freely made, have always ranked high in the scale of incriminating evidence,
if an accused person be asked to explain his apparent connection with a
crime under investigation, the ease with which the questions put to him may
assume an inquisitorial character, the temptation to press the witness unduly,
to browbeat him if he be timid or reluctant, to push him into a corner and to
entrap him into fatal contradictions, which is so painfully evident . . . made
the (continental) system so odious as to give rise to a demand for its total
abolition.

It is natural and to be expected that the police officers who secured the
confessions in these cases should testify that the statements were voluntarily
given. However, the records show that the interrogations were conducted
incommunicado in a police-dominated atmosphere. When appellant
Bernadas gave his confession, his companions in the room were five police
officers. The only people with Vergara when he confessed were also police
investigators.

We quote some more passages from Miranda:

Again we stress that the modern practice of in-custody interrogation is
psychologically rather than physically oriented. As we have stated before,
'Since Chambers v. Florida, 309, US 227 [84 L ed 716, 60 S Ct 472], this
Court has recognized that coercion can be mental as well as physical, and
that the blood of the accused is not the only hallmark of an unconstitutional
inquisition.' Blackburn v. Alabama, 361 US 199, 206, 4 L ed 2d 242, 247, 80
S Ct 274 (1960). Interrogation still takes place in privacy. Privacy results in
secrecy and this in turn results in a gap in our knowledge as to what in fact
goes on in the interrogation rooms. A valuable source of information about
present police practices, however, may be found in various police manuals
and texts which document procedures employed with success in the past,
and which recommend various other effective tactics. These texts are used
by law enforcement agencies themselves as guides. It should be noted that
these texts professedly present the most enlightened and effective means
presently used to obtain statements through custodial interrogation. By
considering these texts and other data, it is possible to describe procedures
observed and noted around the country.

The officers are told by the manuals that the 'principal psychological factor
contributing to a successful interrogation is privacy-being alone with the
person under interrogation.' The efficacy of this tactic has been explained as
follows:

If at all practicable, the interrogation should take place in the investigator's

office or at least in a room of his own choice. The subject should be deprived
of every psychological advantage. In his own home he may be confident,
indignant, or recalcitrant. He is more keenly aware of his rights and more
reluctant to tell of his indiscretions or criminal behavior within the walls of his
home. Moreover his family and other friends are nearby, their presence
lending moral support. In his own office, the investigator possesses all the
advantages. The atmosphere suggests the invincibility of the forces of the
law.

To highlight the isolation and unfamiliar surroundings, the manuals instruct

the police to display an air of confidence in the suspect's guilt and from
outward appearance to maintain only an interest in confirming certain
details. The guilt of the subject is to be posited as a fact. The interrogator
should direct his comments toward the reasons why the subject committed
the act, rather than court failure by asking the subject whether he did it. Like
other men, perhaps the subject has a bad family life, had an unhappy
childhood, had too much to drink, had an unrequited desire for women. The
officers are instructed to minimize the moral seriousness of the offense, to
cast blame on the victim or on society. These tactics are designed to put the
subject in a psychological state where his story is but an elaboration of what
the police purport to know already-that he is guilty. Explanations to the
contrary are dismissed and discouraged.

The texts thus stress that the major qualities an interrogator should possess
are patience and perseverance. One writer describes the efficacy of these
characteristics in this manner:

In the preceding paragraphs emphasis has been placed on kindness and

stratagems. The investigator wilt however, encounter many situations where
the sheer weight of his personality wig be the deciding factor. Where
emotional appeals and tricks are employed to no avail he must rely on an
oppressive atmosphere of dogged persistence. He must interrogate steadily
and without relent, leaving the subject no prospect of surcease. He must
dominate his subject and overwhelm him with his inexorable will to obtain the
truth. He should interrogate for a spell of several hours pausing only for the
subject's necessities in acknowledgment of the need to avoid a charge of
duress that can be technically substantiated. In a serious case, the
interrogation may continue for days, with the required intervals for food and
sleep, but without respite from the atmosphere of domination. It is possible in
this way to induce the subject to talk without resorting to duress or coercion.
The method should be used only when the guilt of the subject appears
highly probable. ' " (384 US at pp. 448-451)

The cited police manuals state that the above methods should be used only
when the guilt of the subject appears highly probable. As earlier stated, the
investigators in the cases now before us appear to have been convinced
that the accused-appellants were the culprits. Nonetheless, the evils of
incommunicado interrogations without adequate safeguards to insure
voluntariness could still result in the conviction of innocent persons. More
important, what the Constitution commands must be obeyed even at the risk
of letting even hardened criminals mix once more with the law-abiding world.

As to the re-enactment, the extra-judicial-confessions served as a script for

what was to follow. Pictures re-enacting a crime which are based on an
inadmissible confession are themselves inadmissible.

There are other factors to be considered in these cases. Vergara and

Barnadas had been detained for more than two (2) weeks before they
decided to give "voluntary" confessions. We doubt if it was two weeks of
soul-searching and introspection alone which led them to confess. There
must have been other persuasions.

There were two sensational murder cases in Palawan which preceded the
killings now before us, The PC command and the Integrated National Police
were under pressure to "solve" these additional sensational killings.

The counsel for appellants mentions a factor not refuted by the appellee in
its brief, namely:

LT. COL. SABAS IMBONG, SGT. EUGENIO ENRIQUEZ, PFC HENRY PULGA
and CPL. ADOLFO JAGMIS all are connected with the Provincial
Constabulary Command which investigated the case, prematurely
publicized the solution of the case with the alleged 'extra-judicial
confessions' of two (2) accused, but who were rebuffed when the two (2)
accused, upon the first opportunity to do so in public, which was the
preliminary investigation, recanted and retracted their alleged 'extra-judicial
confessions' as they were taken with the use of force, violence, and
intimidation, was prepared by the investigators themselves, and without
benefit of counsel.

All are comrades in-arms of Pat. Mamerto Bantigue, who is the son of the
deceased Amparo Bantigue. Pat. Bantigue was implicated in several
coercion and physical injuries cases filed with the City Court by persons who
had been physically attacked and violated by him in connection with the
murder of his mother. Likewise, he evaded justice by escaping from the law
after murdering a companion of accused Jara and attempting to kill the
latter. He remains at large.

A PC Sergeant, Oscar Ponce de Leon, assigned at the PC Medical

Dispensary, testified that he treated Roberto Bernadas for cigarette burns
and Reymundo Vergara for a wound at the tip of his right hand. While the
medicine he applied was only merthiolate the possibility cannot be
discounted that in addition to the psychological qqqplosy of incommunicado
questioning, lighted cigarettes and other means of persuasion which leave
physical marks were also utilized to secure the confessions.

Accused Reymundo Vergara was given an opportunity to go qqqscot free by

turning state witness. He refused.

Apart from their extra-judicial confessions, no other evidence to implicate

Bernadas and Vergara as perpetrators of the killing was introduced by the
prosecution. Since these confessions are inadmissible in evidence, the two
appellants have to be acquitted.

The strongest evidence against Felicisimo Jara are the extra-judicial

confessions of his two co-accused. Bernadas and Vergara point to Jara as
the one who bludgeoned the two victims with a hammer and then used a
pair of scissors in inflicting the stab wounds. He was also alleged to have
offered them P1,000.00 each if they would help him in the killing of his wife.

However, since the confessions of Bernadas and Vergara are inadmissible

against them, with more reason can they not be used against Jara.

Apart from the above extra-judicial confessions, other circumstantial

evidence was presented to support a verdict of conviction. Would such
evidence in the absence of the extrajudicial confessions be sufficient to
overturn the presumption of innocence in favor of the accused Jara?

Evidence attesting to the fact that accused Jara and his wife had not been in
good terms for about three years before the killings was presented. They
used to quarrel with each other and they had not been sleeping together
since the deceased Luisa Jara slept at Alvin's Canteen together with the
other deceased Amparo Bantigue. Godofredo Anasis nephew of Luisa Jara,
testified that his aunt was a "tomboy" and that she and Amparo Bantigue
lived together as "husband and wife." The two went to the movies together.
The relationship of the two women angered Felicisimo Jara and was a cause
of their frequent quarrels. He resented not only his wife but also her woman
companion.

The testimony on the fact of Luisa Jara and Amparo Bantigue sleeping
together is corroborated by the fact that they were bludgeoned to death
while sleeping on one bed and their bodies discovered on that same bed. At
the Aileen's Canteen managed by the deceased Luisa, accused Felicisimo
Jara did the cooking and whenever he committed even the slightest
mistakes, his wife scolded and cursed him, treating him as though he were
only one of the servants of the restaurant. (TSN, May 31, 1979, pp.
1821-1830). The records are replete with testimony to show that Felicisimo
Jara had reason to hate his wife enough to kill her and her companion.

The lower court, in its decision, stated that the nature and the number of
wounds, reflected in the autopsy reports, convincingly show that only a
person who had harbored so much hate and resentment could have inflicted
such multiple fatal blows. It opined that accused Jara is the only person who
would have sufficient motive to wish the death of the deceased for he had
not been treated well as a husband by his wife.

During the investigation at the scene of the crime, blood stains were found
splattered in the trousers and shirt worn by accused Jara. His eyeglasses
were also smeared with blood. When asked to explain the presence of said
blood stains, accused Jara told the police that before he learned about the
killing, he was with his stepdaughter Minerva Jimenez in the public market
dressing chickens. (TSN, May 28, 1979, pp. 397398) He also said in his
testimony in open court that when he saw his wife lying dead on the bed, he
approached her and hugged her in his effort to wake her up. (TSN,
September 30, 1980, p. 1230) After a laboratory examination of the
eyeglasses (Exhibit "I"), trousers (Exhibit "J"), and shirt (Exhibit "K"), the NBI
biologist verified in her report that the blood stains were not chicken blood
but human blood (Exhibit "L"). The blood stains found in accused Jara's
trousers formed certain Identical circular patterns, a splattering of blood
which, according to the NBI biologist, could be caused by an instrument like
that of a hammner. Such circular patterns will only occur at the time of the
impact of the instrument, the very moment it hits the victim. He further
explained that there was no possibility of the splattering of blood if the victim
died hours before because blood starts to coagulate or clog 15 minutes after
the wound is caused. (TSN, March 19, 1979, pp. 227; 244; 248-250) The
blood of the deceased victims in the case at bar had already qqqcoagulated
in the morning of June 9, 1978 when accused Jara claimed that the blood
stains on his shirt were smudged when he hugged his wife.

The NBI biologist, whose findings were later signed by the Chief of the
Forensic Chemistry Division testified that human blood was found on the
eyeglasses of appellant Jara, on the front side lower portion of the left leg of
the trousers, at the left buttocks of the pants and the back portion near the
trousers, and smudged human blood stains on the appellant's T-shirt. The
human blood stains were Type B. A failure to get evidence on the blood
types of the two victims keeps this second circumstantial evidence, together
with the clear motive, from being well-nigh conclusive. However, it is still
strong evidence in the chain of circumstances pointing to Jara as the killer of
his wife.

Another circumstance is the cover-up attempt by Jara. He lied about the

blood on his clothes and eyeglasses. He falsely claimed that the blood came
from the chickens he had been slaughtering for the market. There is no
explanation about the source and cause of the human blood stains
splattered all over him.
There is no question that appellant Jara was at the scene of the crime. Upon
the discovery of the bodies 'and the forcible opening of the door, Jara was
with the group. He went through the motions of embracing his wife although
the observers noted that even in death there was no love lost between
husband and wife. One of the waitresses at the Alvin's Canteen who saw
accused Jara's reaction as he entered the room where the victims lay dead
observed that he shed no tears and his face did not show any indication of
sorrow (TSN, March 21, 1979, pp. 373-374).

The hammer used in the killing is an instrument with which appellant Jara is
familiar. It was proven during the trial of the case that the hammer with the
letter "A" on its handle which was one of the instruments used in the
perpetration of the crime belonged to Luisa Jara who had kept it at Aileen's
Canteen where her husband, appellant Jara helped as cook.

Rule 133, Section 5 of the Rules of Court provides:

Circumstantial evidence, when sufficient. Circumstantial evidence is

sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a

conviction beyond a reasonable doubt. (See People v. Duero, 136 SCRA
515).

Circumstantial evidence, as a basis for conviction of crime, should be acted

on and weighed with great caution, particularly where the crime is heinous
and the penalty is death, as in the instant cases. In determining the
sufficiency of circumstantial evidence to support a conviction, each case is
to be determined on its own peculiar circumstances and all of the facts and
circumstances are to be considered together as a whole, and, when so
considered, may be sufficient to support a conviction, although one or more
of the facts taken separately would not be sufficient for this purpose. (23 CJS
p. 555). No general rule has been formulated as to the quantity of
circumstantial evidence which wig suffice for any case, but that matters not.
For all that is required is that the circumstances proved must be consistent
with each other, and at the same time inconsistent with the hypothesis that
he is innocent and with every other rational hypothesis except that of guilt.
(People v. Contante, 12 SCRA 653).

The requirements for circumstantial evidence to sustain a conviction are

present in this case. The aforementioned circumstances constitute an
unbroken chain leading to one fair and reasonable conclusion which points
to the guilt of the accused qqqjara beyond reasonable doubt (See US v.
Villos, 6 Phil. 510; People v. Subano, 73 Phil. 692). Mere denials of the
accused as to his participation in the crime are only self-serving negative
evidence which cannot outweigh circumstantial evidence clearly
establishing his active participation in the crime.

The defense of alibi given by the accused Jara is weak. Aside from himself,
the only person who vouched for his presence at some place away from the
scene of the crime was his stepdaughter from whom he had sought abode.
Hence, the alibi is made more dubious considering that no other credible
persons were presented who would, in the natural order of things be best
situated to support the tendered alibi (People v. Cabanit, 139 SCRA 94,
citing People v. Brioso, 37 SCRA 336; People v. Bagasala, 39 SCRA 236;
People v. Carino, 55 SCRA 516). More importantly, the defense of alibi
cannot prosper because it is not enough to prove that defendant was
somewhere else when the crime was committed. He must, likewise,
demonstrate that it was physically impossible for him to have been at the
scene of the crime at that time (People v. Alcantara, 33 SCRA 812). Such
proof is wanting in this case.

The killing of Amparo Bantigue was marked by treachery and evident

premeditation. The trial court noted recidivism insofar as Felicisimo Jara,
previously convicted of homicide, was concemed together with dwelling and
nighttime. However, the supposed robbery of the piggy bank and Buddha
bank is proved only by the extra-judicial statements found inadmissible. The
offense against Bantigue was simple murder. Insofar as the parricide case is
concerned against accused Jara, the lower court did not err in finding guilt
as having been established beyond reasonable doubt.

WHEREFORE, the judgment of the lower court is MODIFIED as follows:

In Crim. Case No. 2564, the accused Bernadas and Vergara are
ACQUITTED of the crime of ROBBERY with HOMICIDE on the ground of
reasonable doubt. Accused Jara is CONVICTED of the crime of MURDER
and is sentenced to suffer the penalty of death
In Crim. Case No. 2565, the accused Bernadas and Vergara are likewise
ACQUITTED of the crime of HOMICIDE on the ground of reasonable doubt.
Accused Jara is CONVICTED of the crime of PARRICIDE and is sentenced
to suffer the penalty of death.

Considering. however, that the accused Jara is now over 70 years of age,
the penalty of death is lowered to reclusion perpetua.

In both cases, accused Jara is ordered to indemnify the heirs of the

deceased Amparo Bantigue and Luisa Jara in the amount of THIRTY
THOUSAND PESOS (P30,000.00), respectively.

SO ORDERED.

x--x

G.R. No. L-33609 December 14, 1981

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JESUS G. RUIZ, defendant-appellant.

DE CASTRO, J.:P

Automatic review of the decision of the Court of First Instance of Agusan

imposing the death penalty on the appellant, Jesus G. Ruiz, for murder,
aggravated by abuse of confidence, and sentencing him also to pay the
heirs of the deceased, Atty. Jose Ong Oh, Jr. P12,000.00 as indemnity,
P176,000.00 representing lost earnings of the deceased, P50,000.00 as
moral damages, P25,000.00 as exemplary damages, and P10,000.00 as
expenses of litigation, plus costs.

The gun used in the killing, an unlicensed revolver (Exhibit "F") was ordered
confiscated in favor of the Government.
As to how the crime was committed, and the events immediately preceding
and following the commission thereof, the prosecution's version is presented
in the People's Brief as follows:

At about 6:30 P.M. of May 30, 1968, while accused was downstairs. in the
mezzanine of the store situated at the first floor of his house along Mabini
Street, at Nasipit, Agusan del Norte, Raymundo Discipulo arrived thereat and
after quite sometime asked the accused whether it was true that the loading
of copra on the M/V Sweet Hope that day was given to Goring Gavero.
Expressing his surprise as he could not believe then that it could happen
because of his contract and good relation with the deceased, the accused
was only able to answer: "Ha?" to Raymundo Discipulo's query (pp. 8-10, tsn,
Aug. 26, 1969).

At about 7 o'clock that same evening, the accused left the said store, took a
tricycle and went to the office of the Oceanic Enterprises and inquired for the
deceased (pp. 287-288, tsn, April 15, 1969). Upon being informed by
Leoncio Njai Acido, a copra sample man of the said Oceanic Enterprises,
that the deceased was at the wharf, accused left and rode on the waiting
tricycle bound for the town (pp. 287, 289, tsn, Id.).

At about 8:30 o'clock that same evening of May 30, 1968, while Carmelito
Omboy was in his house fronting the plaza of the poblacion of Nasipit,
Agusan del Norte, Dodong Ratilla, a nephew of the accused, arrived and
told him (Carmelito Omboy) that the accused was requesting him to go to
the latter's house (pp. 81, 82, tsn, Feb. 24, 1969). Soon thereafter, Carmelito
Omboy went with Dodong Ratilla and proceeded to the accused's house
located at a distance of only about 20 meters away and upon arrival thereat,
accused who was then sitting by the door way beside a store (p. 82, tsn, Id.)
stood up and commanded him ( Carmelito Omboy) to go to the wharf and to
tell Joker (Atty. Jose Ong Oh, Jr., the deceased) to come to his (accused's)
house because the latter wanted to talk to the former (pp. 83, 84, 86, tsn,
Id.). Forthwith, Carmelito Omboy along with Dodong Ratilla took a tricycle
and went to the wharf, a kilometer away, to look and fetch for the deceased
(p. 87, tsn, Id.). Sometime after their arrival at the wharf, Carmelito Omboy
was able to contact and convey the accused's message to the deceased
who affirmatively said "Yes, I will be going there" and a little later rode in his
jeep bound for the town followed by Carmelito Omboy in a tricycle (pp.
87-89, tsn, Id.).

Meanwhile, and that was between 8:30 and 9:00 o'clock that same evening
of May 30, 1968, a wharf-bound cargo truck loaded with copra of the
deceased and driven by Jose Mendrez developed engine trouble at the
comer of Roxas and Mabini Streets in the poblacion of Nasipit, Agusan del
Norte (pp. 233, 234, tsn, April 14, 1969) and stopped along Roxas Street at a
point more or less seven (7) meters from the place where accused was
sitting (p. 242, tsn, Id.). A short while after the said cargo truck stopped, and
while its driver Jose Mendrez was still behind its wheel, the latter was
approached by one named Charlito Canon who said to him "Nong, you are
caged by Jesus Ruiz", referring to the accused. Jose Mendrez went down.
the cargo truck and proceeded to where accused was sitting outside his
store (p. 235, tsn, Id.). Accused gave Mendrez a glass containing Tanduay
wine, a little of which the latter drank (p. 236, tsn, Id.). Accused inquired from
Mendrez as to the whereabouts then of the deceased. Mendrez answered
that he does not know because when he left the bodega, the deceased was
not there (p. 237, tsn, Id.).

At this juncture then, and upon accused's instructions, Charlito Canon Nonoy
Palabrica and another person unloaded from the stalled cargo truck three (3)
sacks of copra which were then dropped along Roxas Street at the side of
the said truck (p. 238, tsn, Id.). Thereafter, Charlito Canon stood at a corner
fronting Roxas Street, while Nonoy Palabrica and the other person went
behind the house of the accused (p. 239, tsn, Id.). Mendrez excused himself
and went to the truck but upon reaching the same, Charlito Canon told him
that accused was calling for him again (p. 239, tsn, Id.). So, he (Mendrez)
went back to the accused who, while holding a glass of Tanduay on his left
hand and with something protruding from his waist, told him not to go away,
otherwise, he (accused) would shoot him (p. 240, tsn, Id.).

While Mendrez was thus being threatened by the accused, the deceased
arrived in the vicinity riding in his jeep, but before the latter could alight
therefrom, he was approached by Charlito Canon and soon thereafter, the
deceased got down from his jeep and went towards the parked cargo truck
and looked over at the sacks of copra lying on the street. Then he
proceeded to the place where accused was (p. 241, tsn, April 14, 1969; p.
94, tsn, Feb. 24, 1969). Taking advantage of this opportunity, Mendrez left
and went towards his parked cargo truck.

According to Carmelito Omboy who arrived at the vicinity almost at the same
time that the deceased reached the place as the latter was followed by the
former from the wharf, the devised greeted the accused "Jesse, Jesse"
extending his arms to the accused who, however, slapped them and kicked
the rattan stool and said, 'Sit down' to the deceased in a commanding
manner (pp. 94, 95, tsn, Feb. 24, 1969); that the deceased picked up the
rattan stool and placed it in front of the accused and sat on it (pp. 96, 97,
tsn, Id.); that accused demanded, "Why did you load without asking
permission?" (pp. 99, 100, tsn, Feb. 25, 1969); that the deceased answered
"Jesse, easy, easy" (Id.); that accused then splashed a glass of wine on the
face of the deceased and throw the glass to the concrete pavement (Id.);
that the deceased stood up, wiped his face, removed his eyeglasses and
wiped it with his T-shirt, wore his eyeglasses again and sat down anew, but
accused with his right hand slapped him on the left cheek (pp. 99, 100, tsn,
Feb. 25, 1969); that the deceased's face was turned to the right due to the
impact of the slapping, only to be met by the shot from accused's black
revolver (Exh. "F", p. 110, tsn, Id.) when the deceased turned his face to the
front; that the accused got the revolver from his right waist and that only one
shot was fired (pp. 101, 102, t.s.n., Id.); that the deceased jerked a little and
fell to his left side, meanwhile the accused stood up still holding his revolver,
raised it, turned its drum and tucked it on his right waist (p. 102, tsn, Id.); that
thereafter, the accused turned to his right, and went upstairs of his house (p.
110, tsn, Id.) and threw his firearm (p. 45, tsn, Aug. 27, 1969); that after a
while, accused came down from his house, passed by the body of the
deceased, walked along Roxas Street and proceeded to the Municipal
Building (pp. 111, 112, tsn, Feb. 25, 1969; p. 45, tsn, Aug. 27, 1969).

Sometime, thereafter, that same evening, the Chief of Police of Nasipit,

Agusan del Norte, Teodoro Luneta, arrived at the scene of the shooting
incident to investigate at the instance of Mrs. Lourdes Ruiz, wife of the
accused (pp. 22, 24, tsn, Aug. 27, 1968). Chief Luneta saw near the house
of the accused the body of the deceased (p. 28, tsn, Id.) whom he had
known for a good number of years (p. 24, tsn, Id.). He did not see any
firearms with or within the immediate vicinity of the victim (p. 58, tsn, Feb. 24,
1969). He left the place for a while to call some of his policemen to assist
him, but upon his arrival at the municipal building, he saw the accused
already there, so he ordered the station guard to keep watch on the person
of the accused. As most of his policemen turned out to be on patrol, he went
back to the scene of the crime, supervised the taking of the picture of the
deceased on the spot, as well as the scene of the crime by photographer
David, and the drawing of a sketch of the place (Exh. "B") by Corporal Jalop
(p. 31, tsn, Aug. 27, 1968).

The body of the deceased was autopsied at the Raniel's Funeral Parlor at
Butuan City by Dra. Lydia San Pedro, Municipal Health Officer of Nasipit,
Agusan del Norte, at 2:00 o'clock in the morning of May 31, 1968 (pp. 140,
142-149, tsn, May 7, 1969), with the help of Dr. Teodoro Vesagas who did the
actual incision (pp. 102, 149, tsn, May 7, 1969) and removed the slug which
was lodged in the left medulla of the victim's brain (p. 116, tsn, Id.). The
autopsy findings are reflected in the medical report (Exh. "T" and "T-3")
submitted and testified to by Dra. Lydia San Pedro (p. 150, tsn, Id.) showing
the following:

Ext.finding: Transicted tongue medially; commuted fracture left maxilla;

Upper and lower incissor teeth left upper premolar detached from socket;

Hard and soft palate fractured on the left side with rugged edges.

Internal Findings: Linear fracture from occipital extending to the base of the
skull; lacerated left and right lobe of the medulla; bullet slug lodge in the left
medulla. Course of bullet wound of entrance-left hard palate-left maxilla-
base of the skull-left medulla.

Description of wound entrance-Location-left angle of the mouth, has irregular

surface with upward extension about 1-1/2 inches forming a triangle, two
smaller linear wound triangular in size 1/2 inch. in length on both sides of the
first wound described above, burned and roughened area about the wound
of entrance.

CAUSE OF DEATH: Laceration with hemorrhage medulla due to gunshot

wound.(p. 39, Rec.)

In the early morning of May 31, 1968, the recovered slug (Exh. "C") was
handed by Dra. Lydia San Pedro to Chief of Police Luneta (pp- 36-39, tsn,
Aug. 27, 1968; p. 152, tsn, May 7, 1969) who in turn gave it to his deputy,
Police Lt. Amado Felias, with instructions to have it ballistically examined
(tsn, pp. 36, 37, Aug. 27, 1968; p. 237, May 9, 1969), and to escort the
accused to Camp Crame for the purpose of paraffin test, which mission he
undertook together with Lt. Jose C. Edera of the Agusan PC Command that
same morning of May 31, 1968 (tsn, pp. 30-34, May 5, 1969; pp- 239, 240,
May 9, 1969).

According to Capt. Constantino Y. Leva Chief of the Ballistics Branch, PC

Central Laboratory, Camp Crame (pp. 148, 149, tsn, April 18, 1969) and who
examined ballistically the recovered slug (Exh. "C"), the said slug was fired
from a Cal. .357 Magnum firearm (pp. 150-155, tsn, Id.).

The result of the paraffin test conducted on the accused also on May 31,
1968 by Lt. Col. Minardo B. Piones, Chief of the Chemistry Branch, PC
Central Laboratory, Camp Crame (pp. 326, 327, tsn, April 1, 1969), showed
that the right hand of the accused was positive for the presence of nitrates,
while his left hand was negative (Exh. "K"; pp. 336, 337, 388, 389, tsn, Id.).

On the same date, May 31, 1968, at Camp Crame, Quezon City, the accused
executed an affidavit (Exh. "Z") stating therein that while he and the
deceased were grappling for the possession of the deceased's revolver,
somebody whom he did not see fired at the deceased. This affidavit,
however, was not believed by Lt. Col. Pelayo Perez, CIS Deputy Executive
Officer, when the said affidavit was presented to the latter on June 1, 1968
on account that it does not Identify who shot the deceased (pp. 174- 175,
tsn, May 8, 1969), so that Lt. Col. Perez was constrained to, and did,
interview, the accused (pp. 176, 179, tsn, Id.). After the interview, the
accused, in the presence of Lt. Col. Perez, executed a second affidavit (Exh.
"Z-1") giving a new version of the incident, in that it was the revolver of the
deceased which killed the latter, and because of this new version, Lt. Col.
Perez further interviewed the accused who finally admitted that he knew
where the firearm was, and promised to surrender the same in Agusan if he
(Perez) would go there. Forthwith, the accused was returned to Nasipit,
Agusan, accompanied by Police Lt. Amado Felias and PC Lt. Edera (p. 240,
tsn, May 9, 1969), while Lt. Col. Perez decided to follow them later together
with CIS Agent Sofronio Sison (p. 182, tsn, May 8, 1969).

In the meantime, on June 2, 1968, P.C. Sgt. Manuel Leva a paraffin

technician, lifted paraffin casts on the left cheek and both hands of the
deceased (pp. 303-307, tsn, April 16, 1969). On June 6, 1968, these paraffin
casts were turned over by Sgt. Leva to Lt. Col. Minardo B. Pinones, the Chief
Chemist, who examined the same and the result (Exh. "L", p. 349, tsn, April
17, 1969) showed that the paraffin cast lifted from the left cheek of the
deceased was positive for the presence of nitrates (pp. 346, 347, tsn, Id.),
while the paraffin casts lifted from both hands of the deceased were negative
(p. 348, tsn, Id.).

On June 4, 1968, Lt. Col. Perez arrived in Agusan and at the residence of the
accused the latter surrendered to the former a Cal. .357 Magnum firearm
with five have ammunitions and one spent shell (pp. 182-191, tsn, may 8,
1969; pp. 37-43, May 5, 1969), which firearm (Exh. "F") was found ballistically
to be the firearm from which the recovered bullet or slug (Exh. "C") that killed
Atty. Jose Ong Oh, Jr. (deceased) was fired (Exh. "P"; pp. 162-167, tsn, April
18, 1969).
On June 5, 1968, the next day after the accused surrendered the aforesaid
firearm (Exh. "F"), he executed a third affidavit Exh. "Y") consisting of six (6)
pages, at the Headquarters of the Agusan PC Provincial Command at
Butuan City (pp. 193, 194, tsn, May 8, 1969), in which affidavit, accused,
among others, admitted that the surrendered firearm (Exh. "F") is his own
unlicensed revolver that killed the deceased, but that the killing was
accidental as the forefinger of the deceased's left hand was inserted into the
trigger guard of said revolver causing it to fire and hitting the deceased
himself.

Upon the other hand, the version of self-defense as developed by appellant

during the trial is as follows, quoting also from Appellant's Brief:

On the same date, May 30, 1968, at 9:00 P.M. Ratilla who was sent to look for
the deceased, Atty. Jose Ong Oh, Jr., arrived with one Carmelito Omboy.
Ratilla told the herein accused-appellant that the deceased, Atty. Jose Ong
Oh, Jr., was at that time at the Helen's Bakery, then said Ratilla after telling
the herein accused-appellant the fact that Atty. Jose Ong Oh, Jr., was at the
Helen's Bakery went upstairs their house and said accused-appellant keep
on looking towards the direction of Helen's Bakery but could not see the
deceased, so he went to the middle of Mabini Street where he saw the jeep
of the deceased then parked. Then after seeing the parked jeep of the floor
of their house. Then he saw that the deceased, Atty. Jose Ong Oh, Jr., was
walking towards the cargo truck and look at its engine and upon seeing the
three sacks of copra being unloaded from the truck he (the deceased)
pulled his hair and saying. "This is a delay of the loading." Then he went
around the said truck and the herein accused-appellant could see from the
face of the deceased, Atty. Jose Ong Oh, Jr. that he was angry over the
unloading- of the three sacks of copra. That at the distance of about three to
four meters the herein accused-appellant told the deceased, Atty. Jose Ong
Oh, Jr.: "It is good that you are here," but the deceased did not answer, then
he offered him a seat while he (the accused-appellant) 'was sitting on a
rattan chair, telling the deceased to "sit down first" and pointing to a chair in
front where he was then sitting, but the deceased, Atty. Jose Ong Oh, Jr.,
answered: "No. I am in hurry" then the accused-appellant stood up, placed
his hands on the shoulder of the deceased and requested him again to sit
down; then the deceased, Atty. Jose Ong Oh, Jr., inquired and said: "What
shall we talk about, about the loading?", then the accused-appellant asked
the deceased whether it was true that he gave the loading of his copra on M/
V Sweet Hope to another labor union, Then the deceased, Atty. Jose Ong
Oh, Jr., answered in a harsh voice and said: "It is true; this is our copra; you
cannot tell me to whom I will give the loading of the copra." Then the herein
accused-appellant in turn raised his voice and said: "What do you mean? I
cannot interfere? Have you forgotten our contract? And that the last shipment
was not handled by us, so this shipment should be ours", then the deceased
replied and said: "It is none of your business. Litsi it is none of your business,
why do you interfere with our loading?" That because the herein accused-
appellant was hurt said to the deceased: "You are trampling on my right
already. You are a traitor, you big Chinese communist, you rascal "Then he
stood up to avoid the deceased, but the deceased said: "What do you mean
by rascal? communist? traitor? at the same time stepping forward towards
him (accused appellant) and pulling out his revolver from his (deceased)
right hip pocket. However, before the deceased could put his finger on the
trigger of his revolver, the accused-appellant splashed Tanduay wine
contained in the glass he was holding on Ms right hand on the face of the
deceased and with his left hand, he (the accused-appellant) gripped the
drum of the deceased's revolver which the deceased held with his right
hand. That the accused-appellant tightened his grip on the deceased's right
hand so that he could wrestle the former's revolver. But the deceased placed
his left hand over the accused-appellant's left hand trying to loosen his grip
so that he (the deceased could shoot him. The accused-appellant began to
feel afraid that he will be shot by the deceased if his left hand could be
wrestled from its hold on the drum of the deceased's revolver. Then he
(accused-appellant) threw the glass that he was then holding with his right
hand and with his right hand he pulled deceased's left hand which was on
top of his left hand, but he noticed the growing strength of deceased's left
hand, and he remembered that he had a firearm at his waist, so he pulled it
and struck deceased's face hitting lightly the deceased near his jaw with the
end of the barrel of the revolver because the deceased parried his blow.
Then the deceased struggled to point his gun at him, so he (accused-
appellant) pistol whipped the deceased again but he was surprised why he
could not, (sic) however, he found out that deceased's left forefinger was
then inserted into the trigger guard of his revolver and both of them were
then pulling his (accused appellant's) revolver, then he pushed forward with
his revolver the deceased, however, the deceased met his forward push and
his left finger still inserted into the trigger guard of his revolver, and after a
while he heard a sunburst and it was his gun that fired and his left hand still
holding the right hand of the deceased which was still holding his revolver.
Then a little later, deceased's left hand and his. forefinger inside the trigger
guard of accused-appellant's revolver loosened its grip then he saw the
deceased slump to the ground on his right side. That it was the left forefinger
of the deceased which pushed the trigger of the accused-appellant's
revolver that caused it to fire. That after the deceased slumped to the ground
he (the accused-appellant) released his grip on deceased's revolver and
deceased's revolver dropped to the ground by the side of the deceased.
Then the herein accused-appellant after taking a look at the deceased left
and proceeded upstairs of his house and throw his gun. Then he went down
again from his house and proceeded towards the Municipal Building of
Nasipit. That the accused-appellant had six more bullets in his revolver, and
that he did not fire them at the deceased because he had no intention to
shoot the deceased, he did not care to find out where the deceased was hit
and what occurred to his mind was to notify the police so that the police
could bring the deceased to the hospital and for him to surrender and report
the incident. Cf. decision Appendix "A", pp. 50 to 58.)

The refusal of the trial court to give credence to appellant's version of self-
defense is the basic and main assignment of error.

We agree with the court a quo in rejecting the plea of selfdefense. It has
found the prosecution witnesses more credible, and rightly so, because they
all appear to be disinterested witnesses, specially the public officials among
them, the Municipal Judge, the Chief of Police, and certain officers of the
Philippine Constabulary, whose testimonies, touching on how the crime was
committed, totally discredit the story of self-defense which fails to inspire
belief. The finding of the trial court on the relative credibility of the witnesses
in this case deserves full respect.

To begin with the initial unlawful aggression imputed to the deceased by the
defense, in order to erect the main prop of the defense invoked by appellant,
is belied by the more natural and credible testimony of the State witnesses.
Thus, the supposed aggression committed by the deceased according to
appellant and his witnesses was in whipping out his gun and pointing it at
appellant after a heated exchange of angry words. It is entirely belied by the
fact that no gun was found near the fallen body of the deceased or in the
immediate vicinity thereof, and that the slug (Exhibit "C") that caused the
death and extracted from the brain of the deceased was fired from
appellant's unlicensed gun (Exhibit "F"), as established by the ballistic
examination conducted by an expert, Capt. Constantino Y. Leyva, Chief of
the PC Central Laboratory, Camp Crame.

If the appellant fired his unlicensed gun with his right hand, as the presence
of nitrates thereon would prove, and there being no nitrate found on his left
hand, when he was subjected to paraffin test the day following the shooting
incident (Exhibit "K") also in Camp Crame, the defense theory that the
deceased pulled out a gun which appellant tried to wrest from the deceased
with his left hand, and that in the course of the struggle for the possession of
the gun, it went off with the deceased's finger also pressed against the
trigger, would be pure concoction. Under such theory, the left least, of the
deceased that supposedly fired the gun. But paraffin test conducted on
June 2, 1968 showed both hands of the deceased negative for nitrates (See
Exhibit "L"). It was the left cheek of the deceased that was found positive for
the presence of nitrates, which shows that the gun was close to the face
when it was fired.

If there was a struggle for the possession of the gun of the deceased as
claimed by appellant, there is the much greater likelihood of the gun being
held down on the level of the body during the struggle, not the level of the
head. That the gun was fired close to the face is more indicative of a
deliberate aim with complete freedom from any force that could distort its
accuracy, as would happen in a hand-to-hand struggle for the possession of
the gun. The entry of the slug through the mouth, likewise, renders
appellant's version of how the gun went off while he and the deceased who
allegedly pulled out his gun very improbable, as was his first version, as
given in his statement (Exhibit "Z-1"). An these improbabilities and plain
untrustworthiness in the testimony of the appellant, and the physical findings
of experts, would make the version of the prosecution that it was appellant
who drew his own gun from his right waist and fired at the deceased directly
on the face, at close range, easily the more natural and thus the more
credible of the diametrically conflicting versions of the defense and the
prosecution.

In the protective surrounding of appellant's residence where his

confrontation with the deceased took place, and appellant having been quite
justifiably angered by what he heard that the deceased had a rival union to
load his copra, by which act he felt cheated and unjustly discriminated,
together with the numerous members of his union, and his anger perhaps
showing itself very visibly because he had been drinking in celebration of his
son's birthday, the deceased could not have assumed the aggressive stance
portrayed of him. It was appellant, therefore, who deliberately fired at the
deceased, infuriated by how he felt seriously aggrieved by the deceased's
act in violating an agreement on the loading of the latter's copra by the two
rival unions under some kind of rotation scheme. The deceased himself must
have been angered on seeing three sacks of his copra unloaded from the
truck that stopped near appellant's house, and taking on an attitude that was
more hostile than friendly, the deceased added fuel to appellant's fury,
igniting in the latter a violent temper, as to mark him as the real aggressor,
not the deceased.
The element of unlawful aggression not having been established, appellant's
plea of self-defense, or even that of incomplete self-defense, must fall. The
other requisite of self- defense which is that of the reasonable necessity of
the means employed to prevent or repel the aggression must, likewise, have
to be found wanting, once the basic requisite of unlawful aggression is
shown to be non-existent. Neither could it be said, from how the evidence
has been analyzed above, that the appellant gave no provocation, which is
the third and last requisite of the justifying circumstance of self-defense.

With the constant shifting of appellant's version from that of absolute denial
that he shot at the deceased, pointing to an unknown person as the
assailant, to that of accidental shooting, and finally to that of legitimate self-
defense, the utter incredibility of each of the changing theory he gave from
the time he first gave statement in custodial interrogation, to the time he
testified in court, becomes so manifest for him to be deserving of any bit of
credence as a witness in his own behalf. This is true with his witnesses who
merely tried to give corroboration to his principal testimony.

Finding, therefore, that appellant shot and killed the deceased not in lawful
self- defense, his liability for the killing, authorship of which he admitted, is
beyond doubt. The only question now is whether the shooting was attended
with treachery as to raise the slaying to the category of murder as charged,
and as found by the trial court, said court holding that there was treachery,
even if the attack was frontal, because it was sudden and unexpected.

To constitute treachery, the method, form or means adopted in killing the

victim must be consciously and deliberately chosen to insure its execution
without any risk to the offender arising from the defense which the victim
might make. 1 In the case at bar, the resort of the appellant to the use of Ms
firearm was, as he and his witnesses declared, the hostile and insulting
manner the deceased responded to appellant's demand for explanation why,
in violation of their existing agreement, deceased was loading his copra in
the vessel with the employment of laborers, not of his union but of a rival
labor union. There is no evidence that even before the arrival of the
deceased at the residence of appellant when asked to see the latter,
appellant had already formed an intent to kill the deceased. His business
relationship with the victim was such that appellant would not gain from the
death of the deceased who was giving livelihood to him and his union
members, for appellant to desire to do away with the deceased. Appellant
had sought the deceased at the Oceanic bodega of the latter upon hearing
of the loading being done by rival union members. In doing so, he could not
have had murder in his heart and commit it at the very stronghold of his
intended victim. All appellant wanted was an explanation of, and rectification
for, an act committed by the deceased considered by appellant as highly
discriminatory and prejudicial to the interest of many laborers whose union
he headed. If appellant drew his gun and fired at the deceased, it was
clearly because of the unexpected turn of events that aroused the killer
instinct in him, as shown by his having been previously indicted also for
murder of a police sergeant, and convicted by the same trial court and
sentenced to death (Decision, p. 100, p. 532, Rollo), which developed from
the unfriendly, if not hostile and belligerent, manner with which the deceased
dealt with appellant in their confrontation at the latter's place of residence.
For in this respect, We are inclined to believed more the defense version that
the killing was preceded by some discussion which grew heated, not as cold
blooded as the prosecution would want to prove it was.

In U.S. vs. Namit, 38 Phil. 926, it was held that the circumstance that the
attack was sudden and unexpected to the person assaulted did not
constitute treachery, where it did not appear that the aggressor had
consciously and deliberately adopted a mode of attack intended to facilitate
the perpetration of the killing without risk to himself. As already shown,
appellant had not the time to reflect on the means or mode of attack for it to
be said that he deliberately and consciously pulled out his gun and fired at
the deceased to insure the commission of the crime without risk to himself.
He fired only once. One shot would not be so certain to disable the
deceased from making a defense. Before he was shot, the deceased was
splashed on the face by appellant with liquor from a glass the latter was
holding and then slapped on the left side of the face. The shooting was thus
preceded not only by a heated discussion, but acts on the part of appellant
that showed not mere hostility but such a heated temper that could break
into a violent attack, to put the deceased on, his guard. The circumstances
just mentioned negate the presence of treachery, as held in the case of
People vs. Gonzales, 76 Phil. 473. For there to be treachery by reason of the
suddenness and unexpectedness of the attack, it has been generally held
that there must have been no warning of any sort to the deceased or
offended party. 2 His act of going to the Municipal Building right after he had
shot at the victim but once, can hardly suggest a strong and prior homicidal
intent, a circumstance also not quite compatible with a conscious and
deliberate choosing of the mode, form or means of assault to insure the
execution of the crime without risk to himself. Unconvinced nor persuaded
that treachery was present in the killing, We cannot find appellant guilty of
murder.
We neither could view the fact that both appellant and the deceased were
friends as giving rise to the aggravating circumstance of abuse of
confidence when appellant killed the deceased, as held by the trial court.
We agree with the defense in invoking the ruling of People vs. Luchico, 49
Phil. 689, in that before the fatal shooting of the deceased, the latter, from the
time he had hired other laborers for the loading of his copra, not the
appellant's men, as he should have done under a supposed agreement with
appellant, and even more after being sought for by appellant for the alleged
breach of the agreement, and with the heated exchange of words between
them when they finally came face to face, whatever feeling of confidence,
deceased had of appellant had vanished. The sight of his truck parked near
the residence of appellant, with three sacks of his copra unloaded therefrom,
also helped to vanish whatever confidence he had in appellant, for that sight
reflected the hostility of appellant towards him. The deceased himself
naturally got mad at the appellant, a mood not quite compatible with the
charitable feeling of confidence. The deceased then knew, beyond mere
suspicion, that appellant was mad at him. It certainly cannot be said,
therefore, that the commission of the crime was facilitated by the confidence
deceased had in appellant, which alone would justify the appreciation of
abuse of confidence as an aggravating circumstance. 3

Upon the other hand, appellant had been drinking while celebrating his
son's birthday. He was told of the loading of the victim's copra by a rival
union laborers, by which act of the deceased, he felt cheated and
discriminated in alleged breach of a standing agreement. This fact aroused
his passion, and caused obfuscation. However, after seeing the appellant
fan from the single shot he fired, he went forthwith to the Municipal Building
and placed himself at the disposal of the law and the authorities. We note
from these facts the presence of the mitigating circumstances of (1)
drunkenness which was not shown to be intentional nor habitual; (2) passion
and obfuscation; and (3) voluntary surrender. With these three mitigating
circumstances, and with no aggravating circumstance to offset them, the
penalty to be imposed should be one degree lower than that for simple
homicide or reclusion temporal which is prision mayor, or from 6 years, 1 day
to 12 years (Article 64(5), Revised Penal Code. Applying the indeterminate
Sentence Law, the penalty should be from 6 years of prision correccional to
12 years of prision mayor.

As to the amount of indemnity and damages awarded, the amount of actual

and compensatory damages, represented by the loss of expected earnings,
finds support in the case of Alcantara vs. Surro, et al., G.R. No. L-4555, July
23, 1953, 59 O.G. 2769. From the physical condition of the deceased, and
his social standing when gunned down by appellant, his heirs are also
entitled to moral damages as awarded by the court a quo, but the amount so
awarded may be reasonably reduced from P50,000.00 to P20,000.00, there
being no aggravating circumstance, but there are three mitigating ones.
However, as held recently in the case of Nora Aguilar Matura vs. Hon.
Alfredo C. Laya and People of the Philippines, G.R. Nos. L-44550-51 and
L-44552-53, July 30, 1979 that there is no basis for awarding exemplary
damages when not even one aggravating circumstance was established, no
exemplary damages may be awarded. The amount of P10,000.00 for
attorney's fees may likewise be reasonably reduced to P5,000.00, the private
prosecutors that helped in the prosecution of the case being deemed to
have rendered service for a fellow member of the bar more in the spirit of
professional fraternity.

WHEREFORE, with the modification as to the penalty which is a prison term

as above indicated, instead of death, and as to the amount of damages
awarded, also as above indicated, the judgment of the trial court is affirmed
in all other respects, with costs.

SO ORDERED.

x--x

G.R. No. L-29271 August 29, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ADELINO BARDAJE, defendant-appellant.

MELENCIO-HERRERA, J.:

The accused ADELINO Bardaje in this case, after trial, has been convicted
of Forcible Abduction with Rape, and sentenced to death. The case is before
us on automatic review.

On December 20, 1965, MARCELINA Cuizon lodged the following complaint

with the Court of First Instance of Samar against ADELINO and five (5) others
'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel
Ansuas (hereinafter called the FIVE OTHERS):

The undersigned complainant, after having been duly sworn to according to

law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal,
Silvino Odal and Fidel Ansuas of the crime of Rape, committed as follows:

That on or about the period from the 14th day to 17th day of December,
1965, in Bo. Lopig, Sta. Rita, Province of Samar, Philippines, and within the
jurisdiction of this Honorable Court the above-named accused, conspiring,
confederating together and helping one another, with lewd design, by means
of force and intimidation, and at nighttime, did then and there wilfully,
unlawfully and feloniously drag one Marcelina Cuizon from the house of one
Norma Fernandez and brought her to a far away place and once there,
accused Adelino Bardaje, by means of force and intimidation forcibly had
sexual intercourse with her several times while his co-accused were on
guard.

Contrary to law. (Emphasis supplied).

ADELINO was arrested on December 17th, and it was on December 20th,

when he signed the alleged confession, Exhibit "C", admitting having
kidnapped and molested MARCELINA, 1 which was probably the basis for
MARCELINA's complaint, presumably prepared with the help of the Fiscal.
What has been noticed is that, in Exhibit "C", ADELINO had mentioned that,
besides the FIVE OTHERS, a sixth, Domingo Odal, was with the group when
MARCELINA was "kidnapped". There is no indication in the record as to why
Domingo Odal was not included in MARCELINA's complaint as one of the
accused.

The following day, December 21st, the Fiscal's office filed the following
Information with the Court:

The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio

Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the
crime of Rape with Illegal Detention committed as follows:

That on or about the period from the 14th day to 17th day of December,
1965, in Bo. Crossing, Municipality of Sta. Rita, Province of Samar,
Philippines and within the jurisdiction of this Honorable court the above-
named accused, conspiring, confederating together and helping one
another, with Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel
Ansuas, with lewd design, by means of force and intimidation, armed with
bolos and at nighttime, did then and there wilfully, unlawfully and feloniously
drag one Marcelina Cuizon, a minor of 14 years old, from the house of one
Norma Fernandez and brought her to a far away place and once there,
accused Adelino Bardaje, by means of force and intimidation forcibly had
sexual intercourse with her for several times while his co-accused were on
guard.

That the commission of the crime the aggravating circumstances that it was
committed in an uninhabited place and with the aid of armed men, were
present. (Emphasis supplied).

It will be noted that the complaint filed directly by MARCELINA with the Court
was amended by the Fiscal in the Information. While MARCELINA charged
ADELINO only with Rape, the Fiscal charged him with "Rape with Illegal
Detention". MARCELINA merely alleged that she was dragged from the
house of Norma Fernandez by means of force and intimidation and at
nighttime. On the other hand, the Information added that the accused were
"armed with bolos". The name of the barrio was also changed from Lopig to
Crossing. Lastly, the Information included the allegation that the crime of
Rape with Illegal Detention was committed with the "aggravating
circumstances that it was committed in an uninhabited place and with the
aid of armed men".

Of the six (6) persons accused, the FIVE OTHERS were never arrested, and
only ADELINO stood trial. The period of the offense was from December 14th
to 17th, with the complaint having been filed on December 20th, or barely
three (3) days thereafter. With that time frame in mind, an analysis of the
Information will show the assumption that only ADELINO was the principal
culprit while the FIVE OTHERS were either principals by cooperation or
accomplices. Thus, the clause "with" Lucio Malate, Pedro Odal, Mariano
Odal, Silvino Odal and Fidel Ansuas" indicates that it was ADELINO who had
dragged MARCELINA "with" the help of the FIVE OTHERS. Both the
complaint and Information also indicated that ADELINO was the only one
who committed the rape, while the FIVE OTHERS were merely accomplices.

On June 2, 1966, before the arraignment of ADELINO, the Information was

amended to include the allegation that MARCELINA was detained and
deprived of liberty for a period of th0ree (3) days, which allegation could be
taken into account in connection with Illegal Detention 2 but not in
connection with Forcible Abduction. 3 Since according to Exhibit "C",
MARCELINA was "kidnapped" at midnight of December 14th, and ADELINO
was arrested in the morning of December 17th, or an interval of less than 72
Hours, it could not be correctly pleaded that MARCELINA was deprived of
liberty for three (3) days. 4

After the trial was concluded, ADELINO's lawyer submitted his Memorandum
on July 26, 1967, in which he specifically argued that "the prosecution did
not establish the elements of Rape and Illegal Detention as prescribed by
Articles 335 and 267 of the Revised Penal Code." It was only in the
Memorandum of the Fiscal, dated July 27, 1967, when the position was
taken that the crime which should be imputed to ADELINO is Rape with
Forcible Abduction. The prosecution's Memorandum stated:

Although the information is for Rape with Illegal Detention instead of Rape
with Forcible Abduction, yet from the body of the information it could be
clearly gleaned that the elements of abduction are sufficiently alleged therein
and hence the accused can be convicted thereunder (People vs. Emiliano
Javete, CA 01956-57-CR April 7, 1964 (82-1965).

The following day, July 28, 1967, the trial Court found ADELINO guilty of
Forcible Abduction with Rape with the aggravating circumstances of
dwelling and aid of armed men, and sentenced him to death.

The version of complainant MARCELINA Cuizon, 14 years of age, is that in

December, 1965, she and her mother were living in the house of her aunt,
Sofia Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as a
beautician. At 7:00 o'clock in the evening of December 14, 1965 while she
was then eating supper, ADELINO, whom she knew when they were "still
small", and who was her classmate in Grade II (1960), accompanied by the
FIVE OTHERS, entered the house and began drinking "sho hoc tong" which
they brought along. After the liquor had been fully consumed, Silvino Odal
broke the kerosene lamp causing complete darkness. She then ran to the
room where her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and
Adriano Odal, followed her, tried to extricate her from her mother's embrace
and dragged the two of them to the sala. Pedro Odal choked the mother's
neck thereby loosening her hold on the daughter and the four males, two of
whom were armed with bolos, forced her downstairs and by holding and
dragging her, brought her to the mountain about two kilometers from Barrio
Crossing. That was about 12 midnight. On the way, ADELINO slapped her
rendering her unconscious. She regained consciousness in a hut, with
ADELINO holding her hands, and removing her panty. She bit and kicked
him. Despite her struggle, ADELINO succeeded in having sexual intercourse
with her while his other companions stayed outside on guard.
Under cross-examination, MARCELINA declared that she did not know who
owned the hut and that it was just a one-room affair where a woman and two
small children lived; that she and Appellant slept in that same room as the
woman, while the FIVE OTHERS slept near the kitchen. 5

At about 8:00 o'clock the following morning, December 15, ADELINO and
the FIVE OTHERS brought her to another mountain, 6 kilometers farther,
arriving there past twelve o'clock noon at the house of one called Ceferino
(also called Cipriano) who lived there with his family. She was kept in one
room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas,
still armed with bolos, drinking and guarding her. In the evening, ADELINO
had another sexual intercourse with her even though she bit and kicked him
and shouted for help which was to no avail as all present were relatives of
ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita
(daughter of Ceferino) the next day, because ADELINO threatened to kill her
if she did not. Her curling paraphernalia was taken by Adriano Odal, upon
ADELINO's instructions, from Norma Fernandez (her cousin) who gave the
equipment as she (Norma) was also threatened. MARCELINA and her
"captors" stayed in Ceferino's house for two days. In the morning of
December 17, two soldiers with her father, Alejo Cuizon, arrived. The soldiers
apprehended ADELINO while the FIVE OTHERS jumped down the window
and fled. Upon her father, she embraced him and cried. They all returned to
Barrio Crossing. She and her mother, Maria Fernandez, then went to
Catbalogan, where she filed a complaint at the Fiscal's Office on December
20, 1965 and submitted to a medical examination at the Samar Provincial
Hospital.

When cross-examined, Complainant admitted that Ceferino, his wife. and

seven children were living in the same hut where she was taken the second
time, which hut was about waist high from the ground, consisted of one
room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room
and the sala was a wall of split bamboos so that noise inside the room could
be heard clearly from the other side. 6

Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital,
declared that he examined MARCELINA on December 20, 1965 and issued
a Medical Certificate with the following findings:

1. No evidence of external injuries around the vulva or any part of the

body.
2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.

3. Vagina easily admits two fingers.

4. Vaginal smear negative for spermatozoa 7

Explaining the "old healed laceration", the doctor stated that laceration may
have been caused by possible sexual intercourse or other factors, and if it
were intercourse, he estimated that it could have occured " say, two weeks or
one month" or possibly more. 8

For his part, ADELINO, aged 18, admitted having had carnal knowledge of
MARCELINA but denied having raped her. He claims that they eloped on
December 14 to 17, 1965 as previously planned, they having been
sweethearts since November 12, 1964. As such, they used to date in
Tacloban and "anything goes". MARCELINA's family used to have a house in
Barrio Crossing but now MARCELINA just stays in the house of her aunt,
Sofia, which is about five houses away from theirs. In the evening of
December 14, 1965, while Sofia, MARCELINA's mother and others were
eating, MARCELINA handed him a bag and beauty culture equipment
through the window, went downstairs, after which the two of them walked to
the mountains, to Ceferino Armada's house. Ceferino was a cousin of
ADELINO's mother. He and MARCELINA slept in the bedroom with 18-year
old Narita, Ceferino's daughter. While in that hut, food was brought to them
by his sister, Nenita. MARCELINA curled Narita's hair the next day.

In the morning of December 17, 1965, Sets. Terado and Gacelos,

accompanied by MARCELINA's father, Alejo Cuizon, apprehended him for
having kidnapped MARCELINA. The latter ran to him and embraced him and
said she was to blame. notwithstanding, he was boxed by the soldiers as
instructed by MARCELINA's father and taken to Maulong PC Headquarters
for questioning. During the investigation, he was boxed and kicked and was
forced to sign a statement implicating the FIVE OTHERS as his companions
even if untrue. He did not know who attested to his statement as one Sgt.
Gacelos took the document elsewhere.

Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA
was allegedly forcibly brought the second time, corroborated that portion of
ADELINO's testimony regarding their stay in his house adding that
MARCELINA and ADELINO had told him that they had eloped; that
MARCELINA even offered to curl his daughter's hair (Narita's and
Concepcion's), and helped in house chores and in the threshing of palay,
while ADELINO helped in carrying palay because it was rainy.

The trial Court found the prosecutors version of the incident more worthy of
credence stating that Complainant had no improper motive to implicate
ADELINO in such a detestable crime as Rape.

On the basis of the evidence, testimonial and documentary, we find that the
guilt of ADELINO has not been established beyond reasonable doubt.

In crimes against chastity, the conviction or acquittal of an accused depends

almost entirely on the credibility of a complainant's testimony since by the
intrinsic nature of those crimes they usually involve only two persons the
complainant and the accused. The offended party's testimony, therefore,
must be subjected to thorough scrutiny for a determination of its veracity
beyond reasonable doubt.

In the instant case, we find MARCELINA's charge that she was forcibly
abducted and afterwards raped by ADELINO in conspiracy with FIVE
OTHERS highly dubious and inherently improbable.

To start with, according to the medical findings, "no evidence of external

injuries was found around the vulva or any part of the body" of Complainant,
a fact which is strange, indeed, considering that Complainant was allegedly
"dragged" slapped" into unconsciousness, "wrestled" with, and criminally
abused. Physical evidence is of the highest order and speaks more
eloquently than an witnesses put together. We are also faced with the
medical finding of "old healed lacerations" in the hymen which, according to
the testimony of the examining physician would have occurred two weeks or
even one month before if said lacerations had been caused by sexual
intercourse. This expert opinion bolsters the defense that MARCELINA and
ADELINO had previous amorous relations at the same time that it casts
serious doubts on the charge of intercourse by force and intimidation.

Secondly, by Complainant's own admission, the first hut she was taken to
was a small one-room affair occupied by a woman and two small children.
Her charge, therefore, that she was ravished in that same room is highly
improbable and contrary to human experience.

Thirdly, from her own lips, Complainant testified that the second hut where
she was taken, that of Ceferino Armada, consisted of a small room
separated from the sala by a wall of split bamboos. Further, that Ceferino
with his wife and seven children all lived therein. It challenges human
credulity that she could have been sexually abused with so many within
hearing and distance. It is unbelievable, too, that under those circumstances
the FIVE OTHERS could have stood guard outside, armed with bolos and
drinking, while ADELINO allegedly took advantage of her. If rape were,
indeed, their malevolent intent, they would, in all probability, have taken turns
in abusing her. That they did not, indicates that there was, indeed, some
special relationship between MARCELINA and ADELINO. Furthermore, with
people around, and the hut constructed as it was, it would have been an
easy matter for MARCELINA to have shouted and cried for help. Surely, the
old man Ceferino, his wife and/or his children could not have been insensible
to her outcries notwithstanding their relationship to ADELINO. The aphorism
still rings true that evidence to be believed must not only come from the
mouth of a credible witness but must be credible in itself.

Additionally, Complainant admits that she even curled the hair of Narita, one
of Ceferino's daughters, a fact inconsistent with her allegation of "captivity".
That she was threatened with death if she did not accede to such an
inconsequential request defies credulity. The livelihood is that, as the
defense maintains, MARCELINA was not forcibly abducted but that she and
ADELINO had, in fact, eloped and that she had brought her beauty culture
paraphernalia with her, or, that she herself had sent for them from her cousin
Norma Fernandez voluntarily and not under threat from ADELINO.

The totality of the foregoing circumstances count with such great weight and
significance that they lend an aura of improbability and reasonable doubt to
the allegation that MARCELINA had been "kidnapped" or "illegally detained"
and that when she and ADELINO engaged in sexual intercourse, it was
because of force or intimidation exercised upon her. They are circumstances
that were overlooked by the trial Court and justify a reversal of its finding of
guilt as an exception to the established rule that the findings of fact of a trial
Judge based on the relative credibility of witnesses are entitled to great
respect and will not be disturbed by appellate Courts.

This case also constitutes an exception to the general belief that a young girl
would not expose herself to the ordeal of public trial if she were not
motivated solely by a desire to have the culprit who had ravished and
shamed her placed behind bars. As we view it, MARCELINA was confronted
with a paradoxical situation as a daughter of relative tender age who could
not shamefacedly admit to her parents that she had eloped and voluntarily
submitted to sexual intercourse, since that elopement must have met with
righteous indignation on the part of her parents. As a result, MARCELINA
was faced with no other choice but to charge ADELINO with rape or incur
the ire of her parents and social disrepute from a small community.

In respect of the alleged confession of ADELINO, suffice it to re-state that "an

extrajudicial confession made by an accused shag not be sufficient ground
for conviction unless corroborated by evidence of corpus delicti. 9 Corpus
delicti is proved when the evidence on record shows that the crime
prosecuted had been committed. That proof has not been met in the case at
bar, the evidence establishing more of an elopement rather than kidnapping
or illegal detention or forcible abduction, and much less rape. Moreover,
ADELINO, aged 18, was by himself when being investigated by soldiers, 10
without benefit of counsel nor of anyone to advise him of his rights. Aside
from his declaration that Ws confession was obtained through maltreatment
and violence, 11 it was also vitiated by a procedural irregularity testified to
by no less than prosecution witness Sgt. Pedro Gacelos to the effect that he
and room after he presented the statement to the Clerk of Court, Mr. Rojas.
12 There is reason to believe, therefore that the so called confession was
attested without ADELINO's presence so that the latter cannot be said to
have duly subscribed and sworn to it.

It should also be noted that throughout the hearings before the trial Court, it
was assumed that ADELINO was being held responsible for the complex
crime of Rape with Illegal Detention. While it is true that an accused can be
punished for a crime described by the facts alleged in tile Information
despite a wrong designation of the crime in the preamble of the Information,
13 yet, in capital cases, it should be desirable that, whenever a discrepancy
is noted between the designation of the crime made by the Fiscal and the
crime described by the facts pleaded in his Information. The lower Court
should call attention of the accused to the discrepancy, so that the accused
may be fully apprised of the nature and cause of the accusation against him.
This was not done in regards to ADELINO who all the time was under the
impression that he was being tried for Rape with Illegal Detention, and not
for Forcible Abduction with Rape. If ADELINO had known that he was being
tried for Forcible Abduction with Rape, he may have changed the strategy or
tactics of his defense. Not that it could be said he would have done so; but
he should have been advised he had the right, and given the opportunity, to
do so.

Again, one of the rights of an accused is "to have compulsory process

issued to secure the attendance of witnesses on his behalf. 14 ADELINO
had stated that, while MARCELINA was in the house of Ceferino Armada,
she curled the hair of Narita. one of the latter's children, as well as the hair of
other girls in the vicinity.

ADELINO wanted to have Narita testify on his behalf, and a subpoena had
been issued to her. But instead of taking effective steps to have Narita
brought to Court, the lower court gave responsibility for Narita's attendance
to the defense, expressly stating that, if the defense was not able to bring
her to the Court, her testimony will be dispensed with. The record shows:

ATTY. BOHOL

I appear as counsel for the accused. Up to now, Your Honor, the witnesses
we have been expecting have not yet arrived. This representation, with the
consent of the Clerk of Court have wired the Chief of Police of Sta. Rita,
Samar to bring Ceferino Armada and Narita Armada tomorrow for the
hearing, continuation of this case for those persons mentioned to testify, your
Honor, for the accused. We pray, Your Honor, that we be given time to hear
from the Chief of Police to bring those persons tomorrow, Your Honor.

COURT

What will be the nature of the testimonies of those witnesses.

xxx xxx xxx

COURT

How about the other girl?

ATTY. BOHOL

Narita Armada will substantially be corroborative, Your Honor.

COURT

Suppose the two witnesses do not arrive tomorrow, for which this case is set
also?

ATTY. BOHOL

If we receive information and find that those witnesses could really not come
for this case, Your Honor, I will be constrained to submit the case for decision
based on the testimony of the accused. However, Your Honor, if it will be all
right with the Honorable Court and we find that there is hope that within this
week Ceferino Armada could come here, in view of the distance, I pray
before the Honorable Court that we be given time within this week to present
Ceferino Armada, and upon his failure, submit the case for decision

COURT

The Court will not allow that anymore, anyway this case is set for tomorrow.
The Court wail grant the postponement today on condition that any witness
not presented tomorrow will be considered waived Afterall as you have
manifest, 4 their testimonies will be corroborative.

xxx xxx xxx

COURT

What I mean is that you should have taken the necessary precaution for the
attendance of your witness today considering that there is a subpoena for
the witnesses.-

ORDER - for the reason that accused have no more witnesses to present
today, the trial of this case is hereby Postponed for tomorrow, July 26, 1967
at 8:30 A.M., with the warning that witnesses not presented during that day
shall be considered waived. 15

Considering that this case involved a prosecution for a capital offense, the
lower Court acted precipitously in not having Narita brought to Court, by
ordering her arrest if necessary ADELINO was deprived of his right "to have
compulsory process issued to secure the attendance of witnesses on his
behalf."

Crucial questions should also have been asked by the trial Court of
witnesses. MARCELINA testified before the lower Court on December 1,
1966. On December 12, 1966, P Gacelos, the PC Sgt. who investigated the
complaint against ADELINO, testified:

Q. Was that investigation of M Cuizon reduced to writing?

A. Yes, Sir. 16
It would have been advisable if the lower Court had right then and there
asked for the production of the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had
sexual intercourse previous to December 14th. On the other hand, ADELINO
had testified that he and MARCELINA used to go together to Tacloban, and
while there several times, "we had sexual intercourse because she likes it."
17 Considering the possible infliction of the death penalty on ADELINO, the
lower Court could have asked MARCELINA if she had had sexual
intercourse prior to December 14th and, if so, if it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really
been sweethearts. The lower Court could have asked MARCELINA if she
realized that, charging ADELINO with Rape with Illegal Detention, the latter
could be sentenced to death. If that had been explained to her clearly by the
lower Court, she might then have admitted that she was neither raped nor
"kidnapped" nor illegally detained.

MARCELINA could had been examined on the two matters mentioned

above, with the Court excluding the public from the hearing under the
provisions of Rule 119, Section 14. MARCELINA might have testified without
feeling the pressure of her relatives or other persons, if such pressure had in
fact existed.

It may not be amiss to state then that just as in pleas of guilty where a grave
offense is charged trial Judges have been enjoined to refrain from accepting
them with alacrity but to be extra solicitous in seeing to it that an accused
fully understands the import of his plea, so also, in prosecutions for capital
offenses, it behooves the trial Courts to exercise greater care in
safeguarding the rights of an accused. The trial Judge should also take a
more active role by means of searching questions in the examination of
witnesses for the ascertaintment of the truth and credibility of their
testimonies so that any judgment of conviction imposing the supreme
penalty may rest on firm and unequivocal grounds. The life and liberty of an
individual demand no less.

WHEREFORE, upon reasonable doubt, the judgment appealed from

imposing the death penalty, is reversed and the appellant, Adelino Bardaje,
acquitted of the crime with which he is charged. His immediate release is
ordered unless lie is held on other charges.

Costs de oficio.
SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero,

Abad Santos and De Castro, JJ., concur.

x--x

G.R. Nos. 108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS,

and JOSELITO TAMAYO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

G.R. Nos. 114931-33 November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN,
RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants.

PUNO, J.:

The case before us occurred at a time of great political polarization in the

aftermath of the 1986 EDSA Revolution. This was the time when the newly-
installed government of President Corazon C. Aquino was being openly
challenged in rallies, demonstrations and other public fora by "Marcos
loyalists," supporters of deposed President Ferdinand E. Marcos. Tension
and animosity between the two (2) groups sometimes broke into violence.
On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known
"Coryista."

From August to October 1986, several informations were filed in court

against eleven persons identified as Marcos loyalists charging them with the
murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul
Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617
against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero;
Criminal Case No. 86-47790 against Richard de los Santos y Arambulo;
Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal
Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were
Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and
Benjamin Nuega as well as Annie Ferrer charging them as accomplices to
the murder of Salcedo.

The cases were consolidated and raffled to the Regional Trial Court, Branch
XLIX, Manila. All of the accused pleaded not guilty to the charge and trial
ensued accordingly. The prosecution presented twelve witnesses, including
two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police
officers who were at the Luneta at the time of the incident. In support of their
testimonies, the prosecution likewise presented documentary evidence
consisting of newspaper accounts of the incident and various photographs
taken during the mauling.

The prosecution established that on July 27, 1986, a rally was scheduled to
be held at the Luneta by the Marcos loyalists. Earlier, they applied for a
permit to hold the rally but their application was denied by the authorities.
Despite this setback, three thousand of them gathered at the Rizal
Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led
by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar
of the Philippines, the loyalists started an impromptu singing contest, recited
prayers and delivered speeches in between. Colonel Edgar Dula Torres, then
Deputy Superintendent of the Western Police District, arrived and asked the
leaders for their permit. No permit could be produced. Colonel Dula Torres
thereupon gave them ten minutes to disperse. The loyalist leaders asked for
thirty minutes but this was refused. Atty. Lozano turned towards his group
and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega
added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and
used tear gas and truncheons to disperse them. The loyalists scampered
away but some of them fought back and threw stones at the police.
Eventually, the crowd fled towards Maria Orosa Street and the situation later
stabilized. 1

At about 4:00 p.m., a small group of loyalists converged at the Chinese

Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular
movie starlet and supporter of President Marcos, jogging around the
fountain. They approached her and informed her of their dispersal and Annie
Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then
she continued jogging around the fountain chanting "Marcos pa rin, Marcos
pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga
nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie
Ferrer was arrested by the police. Somebody then shouted "Kailangang
gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a
cigarette vendor, saw the loyalists attacking persons in yellow, the color of
the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing
a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin
iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers
appeared to be Marcos loyalists. They caught Salcedo and boxed and
kicked and mauled him. Salcedo tried to extricate himself from the group but
they again pounced on him and pummelled him with fist blows and kicks
hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an
electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the
maulers so he could extricate Salcedo from them. But the maulers pursued
Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave
Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They
backed off for a while and Sumilang was able to tow Salcedo away from
them. But accused Raul Billosos emerged from behind Sumilang as another
man boxed Salcedo on the head. Accused Richard de los Santos also
boxed Salcedo twice on the head and kicked him even as he was already
fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left
side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his
nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar
but the latter lunged at the victim again. Accused Joselito Tamayo boxed
Salcedo on the left jaw and kicked him as he once more fell. Banculo saw
accused Romeo Sison trip Salcedo and kick him on the head, and when he
tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry
Neri approach the victim but did not notice what he did. 7

Salcedo somehow managed to get away from his attackers and wipe off the
blood from his face. He sat on some cement steps 8 and then tried to flee
towards Roxas boulevard to the sanctuary of the Rizal Monument but
accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the
process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin.
Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9

The mauling resumed at the Rizal Monument and continued along Roxas
Boulevard until Salcedo collapsed and lost consciousness. Sumilang
flagged down a van and with the help of a traffic officer, brought Salcedo to
the Medical Center Manila but he was refused admission. So they took him
to the Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained various
contusions, abrasions, lacerated wounds and skull fractures as revealed in
the following post-mortem findings:

Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right
side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x
3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0
x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.

Hematoma, scalp; frontal region, both sides; left parietal region; right
temporal region; occipital region, right side.

Fractures, skull; occipital bone, right side; right posterior cranial fossa; right
anterior cranial fossa.

Hemorrhage, subdural, extensive.

Other visceral organs, congested.

Stomach, about 1/2 filled with grayish brown food materials and fluid. 10

The mauling of Salcedo was witnessed by bystanders and several press

people, both local and foreign. The press took pictures and a video of the
event which became front-page news the following day, capturing national
and international attention. This prompted President Aquino to order the
Capital Regional Command and the Western Police District to investigate the
incident. A reward of ten thousand pesos (P10,000.00) was put up by
Brigadier General Alfredo Lim, then Police Chief, for persons who could give
information leading to the arrest of the killers. 11 Several persons, including
Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on
the basis of their identification, several persons, including the accused, were
apprehended and investigated.

For their defense, the principal accused denied their participation in the
mauling of the victim and offered their respective alibis. Accused Joselito
Tamayo testified that he was not in any of the photographs presented by the
prosecution 12 because on July 27, 1986, he was in his house in Quezon
City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of
the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at his
office near the Luneta waiting for some pictures to be developed at that time.
15 He claimed to be afflicted with hernia impairing his mobility; he cannot
run normally nor do things forcefully. 16 Richard de los Santos admits he was
at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He
said that he merely watched the mauling which explains why his face
appeared in some of the photographs. 18 Unlike the other accused, Nilo
Pacadar admits that he is a Marcos loyalist and a member of the Ako'y
Pilipino Movement and that he attended the rally on that fateful day.
According to him, he saw Salcedo being mauled and like Richard de los
Santos, merely viewed the incident. 19 His face was in the pictures because
he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan also testified
that he tried to pacify the maulers because he pitied Salcedo. The maulers
however ignored him. 21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer
opted not to testify in their defense.

On December 16, 1988, the trial court rendered a decision finding Romeo
Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo
guilty as principals in the crime of murder qualified by treachery and
sentenced them to 14 years 10 months and 20 days of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was
likewise convicted as an accomplice. The court, however, found that the
prosecution failed to prove the guilt of the other accused and thus acquitted
Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin
Nuega. The dispositive portion of the decision reads as follows:

WHEREFORE, judgement is hereby rendered in the aforementioned cases

as follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No.
86-47322, the Court finds that the Prosecution failed to prove the guilt of the
two (2) Accused beyond reasonable doubt for the crime charged and
hereby acquits them of said charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617,

the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty
beyond reasonable doubt, as principals for the crime of Murder, defined in
Article 248 of the Revised Penal Code, and, there being no other mitigating
or aggravating circumstances, hereby imposes on each of them an
indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS
and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY
(20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS of
Reclusion Temporal, as Maximum;

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790,

the Court finds the Accused Richard de los Santos guilty beyond reasonable
doubt as principal for the crime of Murder defined in Article 248 of the
Revised Penal Code and, there being no other extenuating circumstances,
the Court hereby imposes on him an indeterminate penalty of from
FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of
Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion
Temporal as Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the

Court finds the Accused guilty beyond reasonable doubt as principal, for the
crime of "Murder" defined in Article 248 of the Revised Penal Code and
hereby imposes on him an indeterminate penalty of from FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal,
as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l,

the Court finds that the Prosecution failed to prove the guilt of the Accused
for the crime charged beyond reasonable doubt and hereby acquits him of
said charge;

6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007,

the Court finds that the Prosecution failed to prove the guilt of the Accused
beyond reasonable doubt for the crime charged and hereby acquits them of
said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court
finds the said Accused guilty beyond reasonable doubt, as accomplice to
the crime of Murder under Article 18 in relation to Article 248 of the Revised
Penal Code and hereby imposes on her an indeterminate penalty of NINE (9)
YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE
(12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion
Temporal, as Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan,
Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and
severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as
actual damages and the amount of P30,000.00 as moral and exemplary
damages, and one-half (1/2) of the costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan,
Richard de los Santos and Joselito Tamayo had been under detention during
the pendency of these cases shall be credited to them provided that they
agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the
Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail
unless they are being detained for another cause or charge.

The Petition for Bail of the Accused Rolando Fernandez has become moot
and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison
and Joselito Tamayo is denied for lack of merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega
are hereby cancelled. 22

On appeal, the Court of Appeals 23 on December 28, 1992, modified the

decision of the trial court by acquitting Annie Ferrer but increasing the
penalty of the rest of the accused, except for Joselito Tamayo, to reclusion
perpetua. The appellate court found them guilty of murder qualified by
abuse of superior strength, but convicted Joselito Tamayo of homicide
because the information against him did not allege the said qualifying
circumstance. The dispositive portion of the decision reads:

PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED

as follows:

1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel

Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond
reasonable doubt of Murder and are each hereby sentenced to suffer the
penalty of Reclusion Perpetua;

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY

beyond reasonable doubt of the crime of Homicide with the generic
aggravating circumstance of abuse of superior strength and, as a
consequence, an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as
Maximum is hereby imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an

accomplice to the crime of Murder.

CONSIDERING that the penalty of Reclusion Perpetua has been imposed in

the instant consolidated cases, the said cases are now hereby certified to
the Honorable Supreme Court for review. 24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of
Court inasmuch as Joselito Tamayo was not sentenced to reclusion
perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of
the decision of the Court of Appeals against the four accused-appellants
sentenced to reclusion perpetua.

Before this court, accused-appellants assign the following errors:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED

THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO
SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO
HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR
THE DEATH OF STEPHEN SALCEDO.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING

CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND
INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO
SUMILANG.

III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE

ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT
ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE
ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF
THE DECEASED.
IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING

THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING

THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE)
CAUSED IN A TUMULTUOUS AFFRAY. 25

In their additional brief, appellants contend that:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A

CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-
SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE
TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME
JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS

"D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT
PROPERLY IDENTIFIED.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN

CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR
DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE
MATTER.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN
TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL
GROUNDS SURROUNDING THE INCIDENT. 26
Appellants mainly claim that the Court of Appeals erred in sustaining the
testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and
Renato Banculo, because they are unreliable, doubtful and do not deserve
any credence. According to them, the testimonies of these two witnesses are
suspect because they surfaced only after a reward was announced by
General Lim. Renato Banculo even submitted three sworn statements to the
police geared at providing a new or improved version of the incident. On the
witness stand, he mistakenly identified a detention prisoner in another case
as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and
unresponsive prompting the trial court to reprimand him several times. 28

There is no proof that Banculo or Sumilang testified because of the reward

announced by General Lim, much less that both or either of them ever
received such reward from the government. On the contrary, the evidence
shows that Sumilang reported the incident to the police and submitted his
sworn statement immediately two hours after the mauling, even before
announcement of any reward. 29 He informed the police that he would
cooperate with them and identify Salcedo's assailants if he saw them again.
30

The fact that Banculo executed three sworn statements does not make them
and his testimony incredible. The sworn statements were made to identify
more suspects who were apprehended during the investigation of Salcedo's
death. 31

The records show that Sumilang was admonished several times by the trial
court on the witness stand for being argumentative and evasive. 32 This is
not enough reason to reject Sumilang's testimony for he did not exhibit this
undesirable conduct all throughout his testimony. On the whole, his
testimony was correctly given credence by the trial court despite his
evasiveness at some instances. Except for compelling reasons, we cannot
disturb the way trial courts calibrate the credence of witnesses considering
their visual view of the demeanor of witnesses when on the witness stand. As
trial courts, they can best appreciate the verbal and non-verbal dimensions
of a witness' testimony.

Banculo's mistake in identifying another person as one of the accused does

not make him an entirely untrustworthy witness. 33 It does not make his
whole testimony a falsity. An honest mistake is not inconsistent with a truthful
testimony. Perfect testimonies cannot be expected from persons with
imperfect senses. In the court's discretion, therefore, the testimony of a
witness can be believed as to some facts but disbelieved with respect to the
others. 34

We sustain the appellate and trial courts' findings that the witnesses'
testimonies corroborate each other on all important and relevant details of
the principal occurrence. Their positive identification of all petitioners jibe
with each other and their narration of the events are supported by the
medical and documentary evidence on record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of

Investigation, testified that the victim had various wounds on his body which
could have been inflicted by pressure from more than one hard object. 35
The contusions and abrasions found could have been caused by punches,
kicks and blows from rough stones. 36 The fatal injury of intracranial
hemorrhage was a result of fractures in Salcedo's skull which may have been
caused by contact with a hard and blunt object such as fistblows, kicks and
a blunt wooden instrument. 37

Appellants do not deny that Salcedo was mauled, kicked and punched.
Sumilang in fact testified that Salcedo was pummeled by his assailants with
stones in their hands. 38

Appellants also contend that although the appellate court correctly

disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight
to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the
Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-
operatives who witnessed the rally and subsequent dispersal operation. Pat.
Flores properly identified Exhibit "O" as his sworn statement and in fact gave
testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit
merely reiterates what the other prosecution witnesses testified to.
Identification by Pat. Bautista is a surplusage. If appellants wanted to
impeach the said affidavit, they should have placed Pat. Flores on the
witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was
being mauled at the Luneta starting from a grassy portion to the
pavement at the Rizal Monument and along Roxas Boulevard, 41 as he
was being chased by his assailants 42 and as he sat pleading with his
assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and
the mauling published in local newspapers and magazines such as the
Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and
the Malaya. 47 The admissibility of these photographs is being questioned
by appellants for lack of proper identification by the person or persons who
took the same.

The rule in this jurisdiction is that photographs, when presented in evidence,

must be identified by the photographer as to its production and testified as
to the circumstances under which they were produced. 48 The value of this
kind of evidence lies in its being a correct representation or reproduction of
the original, 49 and its admissibility is determined by its accuracy in
portraying the scene at the time of the crime. 50 The photographer, however,
is not the only witness who can identify the pictures he has taken. 51 The
correctness of the photograph as a faithful representation of the object
portrayed can be proved prima facie, either by the testimony of the person
who made it or by other competent witnesses, after which the court can
admit it subject to impeachment as to its accuracy. 52 Photographs,
therefore, can be identified by the photographer or by any other competent
witness who can testify to its exactness and accuracy. 53

This court notes that when the prosecution offered the photographs as part
of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected
to their admissibility for lack of proper identification. 54 However, when the
accused presented their evidence, Atty. Winlove Dumayas, counsel for
accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to
prove that his clients were not in any of the pictures and therefore could not
have participated in the mauling of the victim. 55 The photographs were
adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the
defense exhibits. And at this hearing, Atty. Dumayas represented all the
other accused per understanding with their respective counsels, including
Atty. Lazaro, who were absent. At subsequent hearings, the prosecution
used the photographs to cross-examine all the accused who took the
witness stand. 56 No objection was made by counsel for any of the accused,
not until Atty. Lazaro appeared at the third hearing and interposed a
continuing objection to their admissibility. 57

The objection of Atty. Lazaro to the admissibility of the photographs is

anchored on the fact that the person who took the same was not presented
to identify them. We rule that the use of these photographs by some of the
accused to show their alleged non-participation in the crime is an admission
of the exactness and accuracy thereof. That the photographs are faithful
representations of the mauling incident was affirmed when appellants
Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves
therein and gave reasons for their presence thereat. 58
An analysis of the photographs vis-a-vis the accused's testimonies reveal
that only three of the appellants, namely, Richard de los Santos, Nilo
Pacadar and Joel Tan could be readily seen in various belligerent poses
lunging or hovering behind or over the victim. 59 Appellant Romeo Sison
appears only once and he, although afflicted with hernia is shown merely
running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the pictures.
The absence of the two appellants in the photographs does not exculpate
them. The photographs did not capture the entire sequence of the killing of
Salcedo but only segments thereof. While the pictures did not record Sison
and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang
and
Banculo 61Appellants' denials and alibis cannot overcome their eyeball
identification.

Appellants claim that the lower courts erred in finding the existence of
conspiracy among the principal accused and in convicting them of murder
qualified by abuse of superior strength, not death in tumultuous affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal

code as follows:

Art. 251. Death caused in a tumultuous affray. When, while several

persons, not composing groups organized for the common purpose of
assaulting and attacking each other reciprocally, quarrel and assault each
other in a confused and tumultuous manner, and in the course of the affray
someone is killed, and it cannot be ascertained who actually killed the
deceased, but the person or persons who inflicted serious physical injuries
can be identified, such person or persons shall be punished by prison
mayor.

If it cannot be determined who inflicted the serious physical injuries on the

deceased, the penalty of prision correccional in its medium and maximum
periods shall be imposed upon all those who shall have used violence upon
the person of the victim.

For this article to apply, it must be established that: (1) there be several
persons; (2) that they did not compose groups organized for the common
purpose of assaulting and attacking each other reciprocally; (3) these
several persons quarrelled and assaulted one another in a confused and
tumultuous manner; (4) someone was killed in the course of the affray; (5) it
cannot be ascertained who actually killed the deceased; and (6) that the
person or persons who inflicted serious physical injuries or who used
violence can be identified. 62

A tumultuous affray takes place when a quarrel occurs between several

persons and they engage in a confused and tumultuous affray, in the course
of which some person is killed or wounded and the author thereof cannot be
ascertained. 63

The quarrel in the instant case, if it can be called a quarrel, was between one
distinct group and one individual. Confusion may have occurred because of
the police dispersal of the rallyists, but this confusion subsided eventually
after the loyalists fled to Maria Orosa Street. It was only a while later after
said dispersal that one distinct group identified as loyalists picked on one
defenseless individual and attacked him repeatedly, taking turns in inflicting
punches, kicks and blows on him. There was no confusion and tumultuous
quarrel or affray, nor was there a reciprocal aggression at this stage of the
incident. 64

As the lower courts found, the victim's assailants were numerous by as much
as fifty in number 65 and were armed with stones with which they hit the
victim. They took advantage of their superior strength and excessive force
and frustrated any attempt by Salcedo to escape and free himself. They
followed Salcedo from the Chinese Garden to the Rizal Monument several
meters away and hit him mercilessly even when he was already fallen on the
ground. There was a time when Salcedo was able to get up, prop himself
against the pavement and wipe off the blood from his face. But his attackers
continued to pursue him relentlessly. Salcedo could not defend himself nor
could he find means to defend himself. Sumilang tried to save him from his
assailants but they continued beating him, hitting Sumilang in the process.
Salcedo pleaded for mercy but they ignored his pleas until he finally lost
consciousness. The deliberate and prolonged use of superior strength on a
defenseless victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant

case. There is no proof that the attack on Salcedo was deliberately and
consciously chosen to ensure the assailants' safety from any defense the
victim could have made. True, the attack on Salcedo was sudden and
unexpected but it was apparently because of the fact that he was wearing a
yellow t-shirt or because he allegedly flashed the "Laban" sign against the
rallyists, taunting them into mauling him. As the appellate court well found,
Salcedo had the opportunity to sense the temper of the rallyists and run
away from them but he, unfortunately, was overtaken by them. The essence
of treachery is the sudden and unexpected attack without the slightest
provocation on the part of the person being attacked. 66

The qualifying circumstance of evident premeditation was alleged in the

information against Joselito Tamayo. Evident premeditation cannot be
appreciated in this case because the attack against Salcedo was sudden
and spontaneous, spurred by the raging animosity against the so-called
"Coryistas." It was not preceded by cool thought and reflection.

We find however the existence of a conspiracy among appellants. At the

time they were committing the crime, their actions impliedly showed a unity
of purpose among them, a concerted effort to bring about the death of
Salcedo. Where a conspiracy existed and is proved, a showing as to who
among the conspirators inflicted the fatal wound is not required to sustain a
conviction. 67 Each of the conspirators is liable for all acts of the others
regardless of the intent and character of their participation, because the act
of one is the act of all. 68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages,
P30,000.00 as moral and exemplary damages, and one half of the costs of
the suit. At the time he died on July 27, 1986, Salcedo was twenty three
years old and was set to leave on August 4, 1986 for employment in Saudi
Arabia. 69 The reckless disregard for such a young person's life and the
anguish wrought on his widow and three small children, 70 warrant an
increase in moral damages from P30,000.00 to P100,000.00. The indemnity
of P50,000.00 must also be awarded for the death of the victim. 71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and

modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard

de los Santos are found GUILTY beyond reasonable doubt of Murder without
any aggravating or mitigating circumstance and are each hereby sentenced
to suffer the penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond

reasonable doubt of the crime of Homicide with the generic aggravating
circumstance of abuse of superior strength and, as a consequence, he is
sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as minimum to TWENTY (20) YEARS of reclusion temporal as
maximum;
3. All accused-appellants are hereby ordered to pay jointly and severally
the heirs of Stephen Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED.

x--x

[G.R. No. 144656. May 9, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRICO

VALLEJO Y SAMARTINO @ PUKE, accused-appellant.
DECISION
PER CURIAM:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 88,
Cavite City, sentencing Gerrico Vallejo y Samartino to death and ordering
him to indemnify the heirs of the victim in the amount of P100,000.00 as civil
indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year
old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of

Rape with Homicide alleged:

That on or about the 10th day of July 1999, in Barangay Ligtong I,

Municipality of Rosario, Province of Cavite, Philippines and within the
jurisdiction of this Honorable Trial Court, the above-named accused, with
lewd design, by means of force and intimidation, did then and there, willfully,
unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y
DITALO, a nine-year old child against the latters will and while raping the
said victim, said accused strangled her to death.

CONTRARY TO LAW.[2]
Accused-appellant was arraigned on July 26, 1999 and, with the assistance
of counsel, pleaded not guilty to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the
victims mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty.
Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of
the Public Attorneys Office; Pet Byron Buan, NBI Forensic Biologist; Aida
Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario,
Cavite police station; and Jessiemin Mataverde and Charito Paras-Yepes,
both neighbors of the victim.

The victims mother, Ma. Nida Diolola, testified that at around 1:00 oclock in
the afternoon of July 10, 1999, she sent her 9-year old daughter Daisy
Diolola to their neighbors house in Pilapil, Ligtong I, Rosario, Cavite, so that
Aimee Vallejo, the sister of accused-appellant, could help Daisy with her
lessons. Aimees house, where accused-appellant was also staying, is about
four to five meters away from Daisys house. Ma. Nida saw her daughter go
to the house of her tutor. She was wearing pink short pants and a white
sleeveless shirt. An hour later, Daisy came back with accused-appellant.
They were looking for a book which accused-appellant could copy to make a
drawing or a poster that Daisy would submit to her teacher. After finding the
book, Daisy and accused-appellant went back to the latters house. When
Ma. Nida woke up at about 5:30 oclock after an afternoon nap, she noticed
that Daisy was not yet home. She started looking for her daughter and
proceeded to the house of Aimee, Daisys tutor. Aimees mother told Ma. Nida
that Daisy was not there and that Aimee was not able to help Daisy with her
lessons because Aimee was not feeling well as she had her menstrual
period. Ma. Nida looked for Daisy in her brothers and sisters houses, but she
was not there, either. At about 7:00 oclock that evening, Ma. Nida went back
to her neighbors house, and there saw accused-appellant, who told her that
Daisy had gone to her classmates house to borrow a book. But, when Ma.
Nida went there, she was told that Daisy had not been there. Ma. Nida went
to the dike and was told that they saw Daisy playing at about 3:30 oclock in
the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was
playing in front of her house that afternoon and even watched television in
her house, but that Daisy later left with accused-appellant.

Ma. Nida and her brother and sister searched for Daisy the whole evening of
June 10, 1999, a Saturday, until the early morning of the following day, June
11, 1999, a Sunday, but their search proved fruitless. Then, at about 10:00
oclock in the morning of June 11, 1999, she was informed that the dead
body of her daughter was found tied to the root of an aroma tree by the river
after the compuerta by a certain Freddie Quinto. The body was already in
the barangay hall when Ma. Nida saw her daughter. Daisy was wearing her
pink short pants with her sleeveless shirt tied around her neck. Barangay
Councilmen Raul Ricasa and Calring Purihin reported the incident to the
Rosario police. The other barangay officers fetched accused-appellant from
his house and took him to the barangay hall. At the barangay hall, Ma. Nida
pointed to accused-appellant Gerrico Vallejo as the probable suspect since
he was with the victim when she was last seen alive.[3]

Another witness, Jessiemin Mataverde, testified that at around 3:00 oclock in

the afternoon of that day, she saw Daisy playing with other children outside
her house. She asked Daisy and her playmates to stop playing as their noise
was keeping Jessiemins one-year old baby awake. Daisy relented and
watched television instead from the door of Jessiemins house. About five
minutes later, accused-appellant came to the house and told Daisy
something, as a result of which she went with him and the two proceeded
towards the compuerta.

Jessiemin testified that at around 5:00 oclock that afternoon, while she and
her daughter were in front of a store across the street from her house,
accused-appellant arrived to buy a stick of Marlboro cigarette. Accused-
appellant had only his basketball shorts on and was just holding his shirt.
They noticed both his shorts and his shirt were wet. After lighting his
cigarette, accused-appellant left.[4]

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at
about 4:30 oclock in the afternoon of July 10, 1999, while she and her
husband and children were walking towards the compuerta near the
seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio
who said that it was a good day for catching milkfish (bangus). For this
reason, according to this witness, they decided to get some fishing
implements. She said they met accused-appellant Gerrico Vallejo near the
seashore and noticed that he was uneasy and looked troubled. Charito said
that accused-appellant did not even greet them, which was unusual. She
also testified that accused-appellants shorts and shirt (sando) were wet, but
his face and hair were not.[5]

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police
Chief Ricardo B. de la Cruz, Jr. responded to the call together with his men,
PO2 Garcia, SPO1 Araracap and PO2 Lariza. When they arrived, Daisys
body was already in the barangay hall. SPO1 Cuevas took photographs of
the body. At that time, Daisy was wearing pink short pants and a dirty white
panty with a dirty white sleeveless shirt wrapped around her neck. The body
was afterwards taken to the Samson Funeral Parlor in Rosario, Cavite. The
inquiries conducted by the police showed that one Freddie Quinto was
fishing near the compuerta when he accidentally hit the body of Daisy, which
was in the mud and tied to the root of an aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others,

a certain Raymond and Esting, were also taken into custody because they
were seen with accused-appellant in front of the store in the late afternoon of
July 10 1999. Later, however, the two were released. Based on the
statements of Jessiemin Mataverde and Charito Paras-Yepes, the policemen
went to the house of accused-appellant at about 4:00 oclock in the afternoon
of July 11, 1999 and recovered the white basketball shirt, with the name
Samartino and No. 13 printed at the back, and the violet basketball shorts,
with the number 9 printed on it, worn by accused-appellant the day before.
The shirt and shorts, which were bloodstained, were turned over to the NBI
for laboratory examination.[6]

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00
oclock in the evening of July 11, 1999, he conducted a physical examination
of accused-appellant. His findings[7] showed the following:

PHYSICAL FINDINGS:

Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee,
left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior
aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left,
13.0 x 5.0 cms.

Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.

Lacerations, left ring finger, posterior aspect, 0.3 cm.
(Living Case No. BMP-9902, p. 101, records)

At about 10:00 oclock in the evening, Dr. Vertido went to the Samson Funeral
Parlor in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy
Diolola. The autopsy revealed the following postmortem findings:[8]

Body in early stage of postmortem decomposition characterized by foul

odor, eyes and tongue protruding, bloating of the face and blister formation.

Washerwomans hands and feet.

Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms.
Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms.,
lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms.,
arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior
aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms.,
forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect,
1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0
cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior
aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect.

Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

Fracture, tracheal rings.

Hemorrhages, interstitial, neck, underneath, nailmarks. Petechial

hemorrhages, subendocardial, subpleural.

Brain and other visceral organs are congested.

Stomach, contains rice and other food particles.

CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora,

gaping and congested. Hymen, moderately tall, thick with fresh lacerations,
complete at 3:00, 6:00 and 9:00 oclock positions, edges with blood clots.
[Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was

informed of the rape and murder at past 10:00 oclock in the evening of June
11, 1999. The mayor said he immediately proceeded to the municipal jail,
where accused-appellant was detained, and talked to the latter. Accused-
appellant at first denied having anything to do with the killing and rape of the
child. The mayor said he told accused-appellant that he could not help him if
he did not tell the truth. At that point, accused-appellant started crying and
told the mayor that he killed the victim by strangling her. Accused-appellant
claimed that he was under the influence of drugs. The mayor asked
accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a
resident of Rosario, as his lawyer. When accused-appellant said he did,
Mayor Abutan fetched Atty. Leyva from his house and took him to the police
station about 11:00 oclock that evening.[9]
Atty. Lupo Leyva corroborated Mayor Abutans testimony. He said that upon
arriving at the police station, he asked accused-appellant if he wanted his
services as counsel in the investigation. After accused-appellant assented,
Atty. Leyva testified that he sort of discouraged the former from making
statements as anything he said could be used against him. But, as accused-
appellant was willing to be investigated, Atty. Leyva said he advised him to
tell the truth. PO2 Garcia, the investigator, informed accused-appellant of his
constitutional rights to remain silent and to be assisted by counsel and
warned him that any answer he gave could and might be used against him
in a court of law. PO2 Garcia asked questions from accused-appellant, who
gave his answers in the presence of Atty. Leyva. After the statement was
taken, Atty. Leyva and accused-appellant read it and afterwards signed it.
Atty. Leyva testified that he did not see or notice any indication that accused-
appellant had been maltreated by the police. In his sworn statement (Exh.
M), accused-appellant confessed to killing the victim by strangling her to
death, but denied having molested her.[10]

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999,
he took blood samples from accused-appellant in his office for laboratory
examination to determine his blood type. Likewise, the basketball shorts and
shirt worn by accused-appellant on the day the victim was missing and the
victims clothing were turned over to the Forensic Chemistry Division of the
NBI by PO1 Amoranto of the Rosario, Cavite police for the purpose of
determining the presence of human blood and its groups.[11]

The results of the examinations conducted by Pet Byron T. Buan showed

accused-appellant to belong to Group O. The following specimens: (1) one
(1) white no. 13 athletic basketball shirt, with patches Grizzlies in front and
SAMARTINO at the back; (2) one (1) violet no. 9 athletic basketball short
pants; (3) one (1) white small Hello Kitty T-shirt with reddish brown stains; (4)
one (1) cut pink short pants with reddish brown stains; (5) one (1) cut dirty
white small panty with reddish brown stains, were all positive for the
presence of human blood showing the reactions of Group A.[12]

Pet Byron Buan also testified that before he took the blood samples, he had
a conversation with accused-appellant during which the latter admitted that
he had raped and later killed the victim by strangulation and stated that he
was willing to accept the punishment that would be meted out on him
because of the grievous offense he had committed. Mr. Buan observed that
accused-appellant was remorseful and was crying when he made the
confession in the presence of SPO1 Amoranto at the NBI laboratory.[13]
When accused-appellant was brought before Inquest Prosecutor Elpidia J.
Itoc at around noon of July 13, 1999 in Cavite City, accused-appellant had
with him a handwritten confession which he had executed inside his cell at
the Municipal Jail of Rosario. In his confession, accused-appellant admitted
not only that he killed the victim but that he had before that raped her.
Accused-appellant said he laid down the victim on a grassy area near the
dike. He claimed that she did not resist when he removed her
undergarments but that when he tried to insert his penis into the victims
vagina, she struggled and resisted. Accused-appellant said he panicked
and killed the child. He then dumped her body in the shallow river near the
compuerta and went home.[14]

Atty. Sikat Agbunag, a lawyer from the Public Attorneys Office, testified that
at noon of July 13, 1999, while she was in their office in Cavite City,
Prosecutor Itoc came together with accused-appellant and some policemen.
Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his
confession. Atty. Agbunag read the document, informed accused-appellant
of his constitutional rights, and warned him that the document could be used
against him and that he could be convicted of the case against him, but,
according to her, accused-appellant said that he had freely and voluntarily
executed the document because he was bothered by his conscience.
Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to
the document and swore to it before Prosecutor Itoc.[15]

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic

Biologist Pet Byron Buan took buccal swabs and hair samples from
accused-appellant, as well as buccal swabs and hair samples from the
parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The
samples were submitted to the DNA Laboratory of the NBI for examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on

the specimens collected by Dr. Vertido. She testified that the vaginal swabs
of the victim taken by Dr. Vertido during the autopsy contained the DNA
profiles of accused-appellant and the victim.[16]

The defense then presented as witnesses accused-appellant Gerrico Vallejo

and his sister Aimee Vallejo. Their testimonies show that at about 1:00 oclock
in the afternoon of July 10, 1999, accused-appellant, Aimee, and their sister
Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite
when Daisy Diolola came to ask accused-appellant to draw her school
project. After making the request, Daisy left.[17] Accused-appellant did not
immediately make the drawing because he was watching television.
Accused-appellant said that he finished the drawing at about 3:00 oclock in
the afternoon and gave it to the victims aunt, Glory. He then returned home
to watch television again. He claimed he did not go out of the house until
7:00 oclock in the evening when he saw Ma. Nida, who was looking for her
daughter. Accused-appellant said he told her that he had not seen Daisy.
After that, accused-appellant said he went to the pilapil and talked with
some friends, and, at about 8:00 oclock that evening, he went home.

At 9:00 oclock in the morning of July 11, 1999, barangay officials fetched
accused-appellant from his house and took him to the barangay hall, where
he was asked about the disappearance of Daisy. He claimed that he did not
know anything about it. Accused-appellant was allowed to go home, but, at
11:00 oclock that morning, policemen came and invited him to the police
headquarters for questioning. His mother went with him to the police station.
There, accused-appellant was asked whether he had something to do with
the rape and killing of Daisy. He denied knowledge of the crime.

At 4:00 oclock that afternoon, accused-appellant accompanied the police to

his house to get the basketball shorts and shirt he was wearing the day
before, which were placed together with other dirty clothes at the back of
their house. According to accused-appellant, the police forced him to admit
that he had raped and killed Daisy and that he admitted having committed
the crime to stop them from beating him up. Accused-appellant claimed the
police even burned his penis with a lighted cigarette and pricked it with a
needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo

Leyva went to see him in the investigation room of the police station and told
him that they would help him if he told the truth. Atty. Leyva asked him
whether he wanted him to be his counsel, and accused-appellant said he
answered in the affirmative. He said Atty. Leyva informed him of his
constitutional rights. Accused-appellant claimed that, although he admitted
to Mayor Abutan and Atty. Leyva the commission of the crime, this was
because the police had maltreated him. Accused-appellant said he did not
tell the mayor or Atty. Leyva that he had been tortured because the
policemen were around and he was afraid of them. It appears that the family
of accused-appellant transferred their residence to Laguna on July 12, 1999
because of fear of reprisal by residents of their barangay.[18] According to
accused-appellant, Mayor Abutan and Atty. Leyva were not present when he
gave his confession to the police and signed the same. Accused-appellant
claims that although Exhibit N was in his own handwriting, he merely copied
the contents thereof from a pattern given to him by the police.[19]
On July 31, 2000, the trial court rendered a decision finding accused-
appellant guilty of the offense charged. The dispositive portion of its decision
reads:

WHEREFORE, in view of all the foregoing considerations, the Court finds the
accused Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of
the crime of Rape with Homicide, as charged in the Information, accordingly
hereby sentences him to the supreme penalty of DEATH. The accused is
directed to indemnify the heirs of the victim in the amount of P100,000.00 as
civil indemnity and P50,000.00 as moral damages.

SO ORDERED.[20]

Hence this appeal. Accused-appellant contends that:

I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY
AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE
PROSECUTION.

II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT

TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT
DESPITE ITS BEING HEARSAY IN NATURE.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING

PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF
THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS
OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE
LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION
DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL
ASSISTANCE.

We find accused-appellants contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available,

provided sufficient circumstantial evidence is presented by the prosecution
to prove beyond reasonable doubt that the accused committed the crime.
[21] In rape with homicide, the evidence against an accused is more often
than not circumstantial. This is because the nature of the crime, where only
the victim and the rapist would have been present at the time of its
commission, makes the prosecution of the offense particularly difficult since
the victim could no longer testify against the perpetrator. Resort to
circumstantial evidence is inevitable and to demand direct evidence proving
the modality of the offense and the identity of the perpetrator is
unreasonable.[22]

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial

evidence is sufficient to sustain a conviction if:

(a) there is more than one circumstance;

(b) the facts from which the inferences are derived are proven; and

(c) the combination of all circumstances is such as to produce conviction

beyond reasonable doubt.[23]

In the case at bar, the following circumstantial evidence establish beyond

reasonable doubt the guilt of accused-appellant:

1. The victim went to Aimee Vallejos house, where accused-appellant was

residing, at 1:00 oclock in the afternoon of July 10, 1999, for tutoring.

2. At around 2:00 oclock in the afternoon, accused-appellant and Daisy went

together to the latters house to get a book from which the former could copy
Daisys school project. After getting the book, they proceeded to accused-
appellants residence.

3. From accused-appellants house, Daisy then went to the house of

Jessiemin Mataverde where she watched television. Accused-appellant
thereafter arrived and whispered something to Daisy, and the latter went with
him towards the compuerta.

4. At about 4:30 oclock in the afternoon, the spouses Iluminado and Charito
Yepes saw accused-appellant coming out of the compuerta, with his clothes,
basketball shorts, and t-shirt wet, although his face and hair were not.
According to these witnesses, he looked pale, uneasy, and troubled (balisa).
He kept looking around and did not even greet them as was his custom to
do so.

5. The fishing boat which accused-appellant used as a bomber (a boat for

catching fish with dynamite) was docked by the seashore.
6. A little before 5:00 oclock in the afternoon, Jessiemin Mataverde also saw
accused-appellant buying a Marlboro cigarette from a store. Jessiemen also
noticed that accused-appellants clothes were wet but not his face nor his
hair.

7. By 5:30 oclock in the afternoon, as Ma. Nida Diolola looked for her
daughter, she was told by accused-appellant that Daisy had gone to her
classmate Rosarios house. The information proved to be false.

8. Daisys body was found tied to an aroma tree at the part of the river near
the compuerta.

9. During the initial investigation, accused-appellant had scratches on his

feet similar to those caused by the thorns of an aroma tree.

10. The clothes which accused-appellant wore the day before were
bloodstained. The bloodstains on accused-appellants clothes and on Daisys
clothes were found positive of human blood type A.

11. Accused-appellant has blood type O.

12. The vaginal swabs from Daisys body contained her DNA profile as well
as that of accused-appellant.

Accused-appellant contends that the bloodstains found on his garments

were not proven to have been that of the victim as the victims blood type
was not determined.

The contention has no merit. The examination conducted by Forensic

Biologist Pet Byron Buan of both accused-appellants and the victims
clothing yielded bloodstains of the same blood type A.[24] Even if there was
no direct determination as to what blood type the victim had, it can
reasonably be inferred that the victim was blood type A since she sustained
contused abrasions all over her body which would necessarily produce the
bloodstains on her clothing.[25] That it was the victims blood which
predominantly registered in the examination was explained by Mr. Buan,
thus:[26]

ATTY. ESPIRITU

Q: But you will agree with me that more probably than not, if a crime is being
committed, and it results in a bloody death, it is very possible that the blood
of the victim and the blood of the assailant might mix in that particular item
like the t-shirt, shorts or pants?

A: It is possible when there is a huge amount of blood coming from the victim
and the suspect, Sir. It is possible. It will mix. Whichever is the dominant
blood in it, it will be the one which will register. For example, if there is more
blood coming from the victim, that blood will be the one to register, on
occasions when the two blood mix.

Q: But in these specimens number 1 to 5, it is very clear now that only type A
and no type O blood was found?

A: Yes, sir.

Accused-appellant also questions the validity of the method by which his

bloodstained clothes were recovered. According to accused-appellant, the
policemen questioned him as to the clothes he wore the day before.
Thereafter, they took him to his house and accused-appellant accompanied
them to the back of the house where dirty clothes were kept.[27] There is no
showing, however, that accused-appellant was coerced or forced into
producing the garments. Indeed, that the accused-appellant voluntarily
brought out the clothes sought by the police becomes more convincing
when considered together with his confessions. A consented warrantless
search is an exception to the proscription in Section 2 of Article III of the
Constitution. As we have held, the consent of the owner of the house to the
search effectively removes any badge of illegality.[28]

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-

Magsipoc is also questioned by accused-appellant. He argues that the
prosecution failed to show that all the samples submitted for DNA testing
were not contaminated, considering that these specimens were already
soaked in smirchy waters before they were submitted to the laboratory.

DNA is an organic substance found in a persons cells which contains his or

her genetic code. Except for identical twins, each persons DNA profile is
distinct and unique.[29]

When a crime is committed, material is collected from the scene of the crime
or from the victims body for the suspects DNA. This is the evidence sample.
The evidence sample is then matched with the reference sample taken from
the suspect and the victim.[30]
The purpose of DNA testing is to ascertain whether an association exists
between the evidence sample and the reference sample.[31] The samples
collected are subjected to various chemical processes to establish their
profile.[32] The test may yield three possible results:

1) The samples are different and therefore must have originated from
different sources (exclusion). This conclusion is absolute and requires no
further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the
samples have similar DNA types (inconclusive). This might occur for a
variety of reasons including degradation, contamination, or failure of some
aspect of the protocol. Various parts of the analysis might then be repeated
with the same or a different sample, to obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source
(inclusion).[33] In such a case, the samples are found to be similar, the
analyst proceeds to determine the statistical significance of the Similarity.[34]

In assessing the probative value of DNA evidence, therefore, courts should

consider, among others things, the following data: how the samples were
collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the
proper standards and procedures were followed in conducting the tests, and
the qualification of the analyst who conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of
accused-appellant, the smears taken from the victim as well as the strands
of hair and nails taken from her tested negative for the presence of human
DNA,[35] because, as Ms. Viloria-Magsipoc explained:

PROSECUTOR LU:

Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the

clothing of the victim and of the accused gave negative results for the
presence of human DNA. Why is it so? What is the reason for this when there
are still bloodstains on the clothing?

A: After this Honorable Court issued an Order for DNA analysis, serological
methods were already conducted on the said specimens. And upon inquiry
from Mr. Buan and as far as he also knew of this case, and we also
interviewed the mother who came over to the laboratory one time on how
was the state of the specimens when they were found out. We found that
these specimens were soaked in smirchy water before they were submitted
to the laboratory. The state of the specimens prior to the DNA analysis could
have hampered the preservation of any DNA that could have been there
before. So when serological methods were done on these specimens, Mr.
Byron could have taken such portion or stains that were only amenable for
serological method and were not enough for DNA analysis already. So
negative results were found on the clothings that were submitted which were
specimens no. 1 to 5 in my report, Sir.

Q: I also noticed that specimen no. 6-B consisting of the smears taken from
the victim also proved negative for human DNA, why is it so?

A: Because when we received the vaginal smears submitted by Dr. Vertido,

the smear on the slide was very, very dry and could have chipped off. I
already informed Dr. Vertido about it and he confirmed the state of the
specimen. And I told him that maybe it would be the swab that could help us
in this case, Sir. And so upon examination, the smears geared negative
results and the swabs gave positive results, Sir.

Q: How about specimen no. 7, the hair and nails taken from the victim, why
did they show negative results for DNA?

A: The hair samples were cut hair. This means that the hair did not contain
any root. So any hair that is above the skin or the epidermis of ones skin
would give negative results as the hair shaft is negative for DNA. And then
the nails did not contain any subcutaneous cells that would be amenable for
DNA analysis also, Sir.

Q: So its the inadequacy of the specimens that were the reason for this
negative result, not the inadequacy of the examination or the instruments
used?

A: Yes, Sir.

Thus, it is the inadequacy of the specimens submitted for examination, and

not the possibility that the samples had been contaminated, which
accounted for the negative results of their examination. But the vaginal
swabs taken from the victim yielded positive for the presence of human DNA.
Upon analysis by the experts, they showed the DNA profile of accused-
appellant:[36]
PROSECUTOR LU:

Q: So based on your findings, can we say conclusively that the DNA profile
of the accused in this case was found in the vaginal swabs taken from the
victim?

A: Yes, Sir.

Q: That is very definite and conclusive?

A: Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other

conclusion than that accused-appellant is guilty of the crime charged.
Evidence is weighed not counted. When facts or circumstances which are
proved are not only consistent with the guilt of the accused but also
inconsistent with his innocence, such evidence, in its weight and probative
force, may surpass direct evidence in its effect upon the court.[37] This is
how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written

confessions presented as evidence against him. He alleges that the oral
confessions were inadmissible in evidence for being hearsay, while the
extrajudicial confessions were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in

pertinent parts:

(1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel, preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.

(2) No torture, force, violence, threat, intimidation or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17

shall be inadmissible in evidence against him.
There are two kinds of involuntary or coerced confessions treated in this
constitutional provision: (1) coerced confessions, the product of third degree
methods such as torture, force, violence, threat, and intimidation, which are
dealt with in paragraph 2 of Section 12, and (2) uncounselled statements,
given without the benefit of Miranda warnings, which are the subject of
paragraph 1 of the same section.[38]

Accused-appellant argues that the oral confessions given to Mayor Abutan

of Rosario, Cavite and to NBI Forensic Biologist should be deemed
inadmissible for being violative of his constitutional rights as these were
made by one already under custodial investigation to persons in authority
without the presence of counsel. With respect to the oral confessions, Atty.
Leyva testified:[39]

PROSECUTOR LU:

Q: Upon meeting this Gerrico Vallejo at the police station were you able to
confer with him?

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as
a lawyer during that investigation?

A: I did, as a matter of fact, I asked him whether he would like me to

represent him in that investigation, Sir.

Q: And what was his answer?

A: He said yes.

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used
against him, so its a sort of discouraging him from making any statement to
the police, Sir.

Upon cross-examination, Atty. Leyva testified as follows:[40]

Q: You stated that you personally read this recital of the constitutional rights
of the accused?
A: Yes, Sir.

Q: But it will appear in this recital of constitutional rights that you did not
inform the accused that the statement that he will be giving might be used
against him in a court of justice?

A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY ESPIRITU

The only thing that is stated here is that Maaaring gamitin pabor o laban sa
iyo.

COURT

Let the witness answer.

A: I told him that, as a matter of fact, and I also told him to tell the truth and
nothing but the truth.

The testimony of Atty. Leyva is not only corroborated by the testimony of

Mayor Renato Abutan,[41] it is also confirmed by accused-appellant who
testified as follows:[42]

ATTY. ESPIRITU:

Q: Did Atty. Leyva explain to you the meaning and significance of that
document which you are supposed to have executed and signed?

A: Yes, Sir.

Q: What did Atty. Leyva tell you?

A: That they are allowing me to exercise my constitutional right to reveal or

narrate all what I know about this case, Sir.
Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to
give that statement?

A: Yes, Sir.

Q: And did he tell you that what you would be giving is an extra-judicial
confession?

A: Yes, Sir.

Clearly, accused-appellant cannot now claim that he was not apprised of the
consequences of the statements he was to make as well as the written
confessions he was to execute. Neither can he question the qualifications of
Atty. Lupo Leyva who acted as his counsel during the investigation. To be an
effective counsel, a lawyer need not challenge all the questions being
propounded to his client. The presence of a lawyer is not intended to stop an
accused from saying anything which might incriminate him but, rather, it was
adopted in our Constitution to preclude the slightest coercion as would lead
the accused to admit something false. Indeed, counsel should not prevent
an accused from freely and voluntarily telling the truth.[43]

Indeed, accused-appellant admitted that he was first asked whether he

wanted the services of Atty. Leyva before the latter acted as his defense
counsel.[44] And counsel who is provided by the investigators is deemed
engaged by the accused where the latter never raised any objection against
the formers appointment during the course of the investigation but, on the
contrary, thereafter subscribed to the veracity of his statement before the
swearing officer.[45] Contrary to the assertions of accused-appellant, Atty.
Leyva was not the municipal attorney of Rosario, Cavite but only a legal
adviser of Mayor Renato Abutan.[46]

Accused-appellant contends that the rulings in People vs. Andan[47] and

People vs. Mantung[48] do not apply to this case. We disagree. The facts of
these cases and that of the case at bar are similar. In all these cases, the
accused made extrajudicial confessions to the municipal mayor freely and
voluntarily. In all of them, the extrajudicial confessions were held admissible
in evidence, being the spontaneous, free, and voluntary admissions of the
guilt of the accused. We note further that the testimony of Mayor Abutan was
never objected to by the defense.
Indeed, the mayors questions to accused-appellant were not in the nature of
an interrogation, but rather an act of benevolence by a leader seeking to
help one of his constituents. Thus, Mayor Abutan testified:[49]

PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what
exactly did he tell you?

A: At first he said that he did not do that. That was the first thing he told me.
Then I told him that I will not be able to help him if he will not tell me the truth.

Q: And what was the reply of the accused?

A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what exactly did he tell you about the incident?

A: I asked him, Were you under the influence of drugs at that time?

Q: What else did he tell you?

A: I told him, What reason pushed you to do that thing? x x x

Q: Please tell us in tagalog, the exact words that the accused used in telling
you what happened.

A: He told me that he saw the child as if she was headless at that time. That
is why he strangled the child, Sir. (Ang sabi niya po sa kin, nakita niya raw
yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya.)

xxxxxxxxx

COURT:

Q: When you told the accused that you will help him, what kind of help were
you thinking at that time?

A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor.

In People vs. Mantung,[50] this Court said:

Never was it raised during the trial that Mantungs admission during the press
conference was coerced or made under duress. As the records show,
accused-appellant voluntarily made the statements in response to Mayor
Marquez question as to whether he killed the pawnshop employees.
Mantung answered in the affirmative and even proceeded to explain that he
killed the victims because they made him eat pork. These circumstances
hardly indicate that Mantung felt compelled to own up to the crime. Besides,
he could have chosen to remain silent or to do deny altogether any
participation in the robbery and killings but he did not; thus accused-
appellant sealed his own fate. As held in People v. Montiero, a confession
constitutes evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and
knowingly confess to a crime unless prompted by truth and his conscience.

And in People vs. Andan, it was explained:

Thus, it has been held that the constitutional procedures on custodial

investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby
appellant orally admitted having committed the crime. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The
rights under Section 12 are guaranteed to preclude the slightest use of
coercion by the state as would lead the accused to admit something false,
not prevent him from freely and voluntarily telling the truth.[51]

For the same reason, the oral confession made by accused-appellant to NBI
Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would
have this Court exclude this confession on the ground that it was
uncounselled and that Mr. Buan, who initiated the conversation with
accused-appellant, was part of the NBI. The issue concerning the
sufficiency of the assistance given by Atty. Leyva has already been
discussed. On the other hand, the questions put by Mr. Buan to accused-
appellant were asked out of mere personal curiosity and clearly not as part
of his tasks. As Buan testified:[52]

PROSECUTOR LU:

Q: What was the subject of your conversation with him?

A: It is customary when we examine the accused. During the examination,
we talk to them for me to add knowledge on the case, Sir.

Q: What did you talk about during your conversation?

A: I asked him if he was the one who did the killing on this victim, Daisy
Diolola, Sir.

Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?

A: I remember that while asking him, he was crying as if feeling remorse on

the killing, Sir.

....

Q: And it was you who initiated the conversation?

A: Yes, Sir.

Q: Do you usually do that?

A: Yes, Sir. We usually do that.

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir.
And any information either on the victim or from the suspect will help me
personally. Its not an SOP, Sir.

The confession, thus, can be likened to one freely and voluntarily given to an
ordinary individual and is, therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant

is also attacked on the ground that these were extracted from him by means
of torture, beatings, and threats to his life. The bare assertions of
maltreatment by the police authorities in extracting confessions from the
accused are not sufficient. The standing rule is that where the defendants
did not present evidence of compulsion, or duress nor violence on their
person; where they failed to complain to the officer who administered their
oaths; where they did not institute any criminal or administrative action
against their alleged intimidators for maltreatment; where there appeared to
be no marks of violence on their bodies; and where they did not have
themselves examined by a reputable physician to buttress their claim, all
these will be considered as indicating voluntariness.[53] Indeed,
extrajudicial confessions are presumed to be voluntary, and, in the absence
of conclusive evidence showing that the declarants consent in executing the
same has been vitiated, the confession will be sustained.[54]

Accused-appellants claim that he was tortured and subjected to beatings by

policemen in order to extract the said confession from him is unsupported by
any proof:[55]

ATTY. ESPIRITU:

Q: Did they further interrogate you?

A: Yes, sir.

Q: What else did they ask you?

A: They were asking me the project, Sir.

Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?

A: The investigator, Sir.

Q: How many were they inside that room?

A: Five, Sir.

Q: They are all policemen?

A: Yes, Sir.

xxxxxxxxx
Q: Until what time did they keep you inside that room?

A: Up to 11:00 in the evening, Sir.

Q: Between 10:30 in the morning up to 11:00 oclock in the evening, what did
you do there?

A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.

Q: The 5 of them?

A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the
questioning?

A: Yes, Sir.

Q: In what way did they hurt you?

A: They burned my private part with a lighted cigarette butt and pierced me
with a needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.

Q: Who is this Mercado?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.

Q: Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?

A: They were asking me to take off the pants which I was wearing at the time,
Sir.

Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.

Q: What?

A: They boxed me, Sir.

Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette
butt?

A: It was painful, Sir.

Q: In what part of your body were you pricked by a needle?

A: At my private part, Sir.

These bare assertions cannot be given weight. Accused-appellant testified

that he was made to stay in the municipal hall from 10:00 oclock in the
morning until 11:00 oclock that night of July 10, 1999, during which time he
was boxed, tortured, and hit with a piece of wood by policemen to make him
admit to the crime. However, accused-appellant was physically examined by
Dr. Antonio Vertido at about 9:00 oclock in the evening of the same day.
While the results show that accused-appellant did sustain injuries, the same
are incompatible with his claim of torture. As Dr. Vertido testified:[56]

PROSECUTOR LU:

Q: What were your findings when you conducted the physical examination of
the suspect?
A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and
feet of the suspect, and I also found hematoma on the left ring finger,
posterior aspect and at the same time, a laceration on the left ring finger.

xxxxxxxxx

Q: In your findings, it appears that the accused in this case suffered certain
physical injuries on his person like this abrasion on the thigh, right anterior
lateral aspect lower third of the knee, what could have caused this injury?

A: Abrasions are usually caused when the skin comes in contact with a
rough surface, Sir. Hematoma are usually caused by a blunt instrument or
object and laceration is the forcible contact of the skin from that blunt object.

Q: I am particularly interested in your findings hematoma on the left ring

finger, posterior aspect and laceration left ring finger posterior aspect, what
could have caused those injuries on the accused?

A: My opinion to these hematoma and laceration found on the said left ring
finger was that it was caused by a bite, Sir.

If the account of accused-appellant that he was beaten up is true, Dr.

Antonio Vertido would have found more than mere abrasions and hematoma
on his left finger. Dr. Vertidos findings are more consistent with the theory that
accused-appellant sustained physical injuries as a result of the struggle
made by the victim during the commission of the rape in the compuerta.

At all events, even if accused-appellant was truthful and his assailed

confessions are inadmissible, the circumstantial evidence, as already shown,
is sufficient to establish his guilt beyond all reasonable doubt. The
prosecution witnesses presented a mosaic of circumstances showing
accused-appellants guilt. Their testimonies rule out the possibility that the
crime was the handiwork of some other evil mind. These witnesses have not
been shown to have been motivated by ill will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was

ever called to corroborate his claim. The defense presented only accused-
appellants sister, Aimee Vallejo, to corroborate his story. We have held time
and again that alibi cannot prosper if it is established mainly by the accused
and his relatives, and not by credible persons.[57] It is well settled that alibi
is the weakest of all defenses as it is easy to contrive and difficult to
disprove. For this reason, this Court looks with caution upon the defense of
alibi, especially when, as in this case, it is corroborated only by relatives or
friends of the accused.[58]

Article 266-B of the Revised Penal Code provides that When by reason or on
the occasion of the rape, homicide is committed, the penalty shall be death.
[59] Therefore, no other penalty can be imposed on accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the

Regional Trial Court, Branch 88, Cavite City, finding accused-appellant
Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of
Rape with Homicide and sentencing him to the supreme penalty of DEATH
and directing him to indemnify the heirs of the victim in the amount of
P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby
AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised

Penal Code, upon the finality of this decision, let the records of this case be
forthwith forwarded to the President of the Philippines for the possible
exercise of the pardoning power.

SO ORDERED.

x--x

[G.R. No. 104383*. July 12, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VALERIANO

AMESTUZO y VIAS, FEDERICO AMPATIN y SABUSAB, ALBINO BAGAS y
DALUHATAN and DIASCORO VIAS y ODAL, accused,
ALBINO BAGAS y DALUHATAN, accused-appellant.
DECISION
KAPUNAN, J.:

One of the cardinal rules of criminal law is that the guilt of the accused must
be proven beyond reasonable doubt by the prosecution. If the inculpatory
facts and circumstances are capable of two or more explanations, one of
which is consistent with the innocence of the accused and the other
consistent with his guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction.[1] In the present case,
there being a doubt as to the guilt of accused-appellant, the constitutional
presumption of innocence stands and he must be acquitted.

This is an appeal from the decision dated November 28, 1991 of the
Regional Trial Court, Branch 131, Kalookan City in Criminal Case No. 36930
finding accused-appellant Albino Bagas guilty of the complex crime of
robbery in band with double rape and sentencing him accordingly.

At about nine-thirty in the evening of February 22, 1991, a group of eight

armed men wearing masks entered the house of complainant Perlita delos
Santos Lacsamana at Sacred Heart Village, Kalookan City and robbed the
said premises of valuables in the total amount of P728,000.00. In the course
of the robbery, two members of the gang raped Maria Fe Catanyag and
Estrella Rolago, niece and employee, respectively of complainant
Lacsamana.

On February 27, 1991, accused-appellant Albino Bagas, Valeriano

Amestuzo, Federico Ampatin, Dioscoro Vias and four other accused, whose
identities are unknown and who are still at large up to the present, were
charged with the complex crime of robbery in band with double rape under
the following information:

That on or about the 22nd day of February 1991, in Kalookan City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping one another, all armed
with guns, with intent of gain, and by means of violence, threats and
intimidation upon the person of Perlita delos Santos de Lacsamana, did then
and there willfully, unlawfully and feloniously take, rob and carry away the
following, to wit:

Cash money in the amount of -----------P128,000.00

Jewelries worth ------------------------- 600,000.00

Total ------------------------------- P728,000.00

all belonging to said complainant, to the damage and prejudice of the latter,
in the aforesaid amount of P728,000.00; and on the occasion thereof, said
accused conspiring together and mutually helping one another likewise by
means of force and violence and with the use of their weapons, willfully,
unlawfully and feloniously have sexual intercourse with Fe Catanyag y
Cabaero and Estrella Rolago y Madrid both residents of said house, against
their will and without their consent.

Contrary to law.[2]

On arraignment, all the accused including accused-appellant Albino Bagas

pleaded Not Guilty to the charge. Thereafter, trial ensued.

The facts as found by the trial court and as presented in the Solicitor
Generals Brief are as follows:

The incident happened at the compound of Block 5, Road 32, Phase II of the
Sacred Heart Village in Kalookan City (pp. 6-7, TSN, July 2, 1991). In the
compound are the main house where Mrs. Perlita Lacsamana resides and
another house which serves as the office and quarters for Lacsamanas
employees. In between of these two houses is about three (3) meter-wide
area where the dirty kitchen and the garage are found. In the first floor of the
main house is the masters bedroom, and on the second floor is the
guestroom (pp. 6-8, TSN, July 2, 1991).

While at the masters bedroom on that particular evening at about 9:30 p.m.,
Lacsamana overheard her maid, cried aray, aray, aray. She immediately went
out but as soon as she opened the door of her room, two (2) men (one of
them is accused Amestuzo while the other one remains unarrested) poked
their guns on her. At gun point, Lacsamana, Lea, Edwin, and Belen were
forcibly brought to the second floor of the main house. Thereat, Lacsamana
saw four (4) other male persons ransacking her premises. The said male
persons, armed with guns and knives, tied her including all her employees
and members of her household with the use of torn electric fan wire and
television wire. After that they were told to lie down with face against the floor
but a minute later she was asked where the masters bedroom is and when
she answered that it is on the ground floor, she was again forcefully brought
down. On her way down, she saw, aside from the six (6) male persons who
were inside her house, two (2) other male persons (later identified as
accused Ampatin and Vias) outside the main house but within the compound
(pp. 8-10, TSN, July 2, 1991).

Once they were already inside the masters bedroom, the six (6 ) armed male
persons (two (2) of them were Amestuzo and Bagas) ransacked the same
and took all her monies, jewelries, shoes, jackets, colored television and
imported wine. Likewise, aforesaid accused ate the foods found by them in
their kitchen. (pp.10-11, 13, TSN, July 2, 1991).
After ransacking the room, two (2) of the accused, one (1) of them is
Amestuzo, brought Estrella Rolago inside her room and afterwhich she was
in turn brought to the guest room. Thereat she heard Rolago pleading
Maawa kayo, maawa kayo then after ten (10) minutes, Rolago, with
bloodstain on her shorts, was brought in back to the guest room (pp. 13-14,
TSN, July 2, 1991). Rolago was raped by Amestuzo (pp. 17-20, TSN, July 3,
1991).

Almost simultaneously, Bagas likewise sexually assaulted and ravished Fe

Catanyag (pp. 38-40, TSN, July 3, 1991; pp. 2-5, TSN, July 4, 1991).
Thereafter, Bagas shouted at her to stand up and although she was
experiencing pain on her private part which was bleeding at that time, she
stood up, dressed up and proceeded to the servants quarter (pp. 4-5, TSN,
July 4, 1991).

Thereafter, Mrs, Lacsamana shouted for help. Sensing that the accused had
already left, they locked the door. With the help of her employer and co-
employees, more particularly Nanding, she and Rolago were brought the
nearby Neopolitan Clinic and from there they proceeded to the St. Lukes
Hospital where Dr. Brion treated Catanyag and Rolago (pp. 6-7, TSN, July 4,
1991; pp. 19-20, TSN, July 3, 1991).[3]

On November 28, 1991, the trial court rendered judgment convicting all the
accused. The dispositive portion of the trial courts decision reads as follows:

WHEREFORE, this Court renders judgment CONVICTING accused

VALERIANO AMESTUZO y VIAS, FEDERICO AMPATIN y SABUSAB, ALBINO
BAGAS y DALUHATAN, DIOSCORO VINAS y ODAL of the complex crime of
ROBBERY IN BAND WITH DOUBLE RAPE and sentences each of them to
suffer imprisonment of DOUBLE RECLUSION PERPETUA and orders them to
jointly and severally indemnify to complainant Perlita delos Santos de
Lacsamana the amount of P800,000.00 representing the value of monies and
properties taken forcibly away by the accused and to indemnify, jointly and
severally, Ma. Fe Catanyag and Estrella Rolago the amount of FIFTY
THOUSAND (P50,000.00) PESOS each.

SO ORDERED.[4]

From the judgment of conviction by the trial court, only herein accused-
appellant Bagas appealed to this Court. His appeal is based mainly on (1)
the alleged deprivation of his constitutional right to be represented by
counsel during his identification, (2) the trial courts error in giving due weight
to the open court identification of him which was based on a suggestive and
irregular out-of-court identification, and (3) the trial courts improper rejection
of his defense of alibi.

Accused-appellant maintains that from the time he was arrested until he was
presented to the complainants for identification, he was deprived of the
benefit of counsel. He narrates the circumstances surrounding his arrest and
investigation as follows:

On February 26, 1991, four days after the alleged incident, a group of
policemen together with accused Federico Ampatin, who was then a
suspect, went to the handicrafts factory in NIA Road, Pasay City where
accused-appellant was working as a stay-in shell cutter. They were looking
for a certain Mario and searched the first and second floors of the building.
Failing to find said Mario, the police hit Ampatin at the back of his neck with
a gun and uttered, Niloloko lang yata tayo ng taong ito and Magturo ka ng
tao kahit sino. It was at this juncture that Ampatin pointed to accused-
appellant Bagas as he was the first person Ampatin chanced to look upon.

Thereafter, he was arrested and made to board the police vehicle together
with accused Ampatin. While on board the jeep, accused Ampatin told him
that he (Ampatin) committed an error in pointing him out to the police,
namumukaan lang niya ako, napagkamalian lang niya ako. They were
brought to the Urduja Police Station in Kalookan City and placed under
detention together with the other two accused, Amestuzo and Vias. When the
complainants arrived, accused-appellant was brought out, instructed to turn
to the left and then to the right and he was asked to talk. Complainant
Lacsamana asked him if he knew accused Amestuzo and Vias. Accused-
appellant answered in the negative. The policemen told the complainants
that accused-appellant was one of the suspects. This incited complainants
to an emotional frenzy, kicking and hitting him. They only stopped when one
of the policemen intervened.[5]

Accused-appellant alleges that the trial court committed a serious error

when it deprived him of his constitutional right to be represented by a lawyer
during his investigation. His singular presentation to the complainants for
identification without the benefit of counsel, accused-appellant avers, is a
flagrant violation of the constitutional prerogative to be assisted by counsel
to which he was entitled from the moment he was arrested by the police and
placed on detention. He maintains that the identification was a critical stage
of prosecution at which he was as much entitled to the aid of counsel as
during the trial proper.

The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the
1987 Constitution, or the so-called Miranda rights, may be invoked only by a
person while he is under custodial investigation.[6] Custodial investigation
starts when the police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect taken into
custody by the police who starts the interrogation and propounds questions
to the person to elicit incriminating statements.[7] Police line-up is not part of
the custodial investigation; hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage.[8] This was settled in the
case of People vs. Lamsing[9] and in the more recent case of People vs.
Salvatierra.[10] The right to be assisted by counsel attaches only during
custodial investigation and cannot be claimed by the accused during
identification in a police line-up because it is not part of the custodial
investigation process. This is because during a police line-up, the process
has not yet shifted from the investigatory to the accusatory[11] and it is
usually the witness or the complainant who is interrogated and who gives a
statement in the course of the line-up.[12]

Hence, herein accused-appellant could not yet invoke his right to counsel
when he was presented for identification by the complainants because the
same was not yet part of the investigation process. Moreover, there was no
showing that during his identification by the complainants, the police
investigators sought to elicit any admission or confession from accused-
appellant. In fact, records show that the police did not at all talk to accused-
appellant when he was presented before the complainants. The alleged
infringement of the constitutional rights of the accused while under custodial
investigation is relevant and material only to cases in which an extra-judicial
admission or confession extracted from the accused becomes the basis of
his conviction.[13] In the present case, there is no such confession or extra-
judicial admission.

Accused-appellant also makes much ado about the manner in which he was
presented to the complainants for identification. It is alleged that the
identification was irregular as he was not placed in a police line-up and
instead, made to stand before the complainants alone.

Again, the contention has no merit. As aptly pointed out by the Solicitor
General, there is no law requiring a police line-up as essential to a proper
identification.[14] The fact that he was brought out of the detention cell alone
and was made to stand before the accused by himself and unaccompanied
by any other suspects or persons does not detract from the validity of the
identification process.

However, we agree that complainants out-of-court identification of accused-

appellant was seriously flawed as to preclude its admissibility. In resolving
the admissibility and reliability of out-of-court identifications, we have applied
the totality of circumstances test enunciated in the case of People vs.
Teehankee[15] which lists the following factors:

xxx (1) the witness opportunity to view the criminal at the time of the crime;
(2) the witness degree of attention at that time; (3) the accuracy of any prior
description given by the witness; (4) the level of certainty demonstrated by
the witness at the identification; (5) the length of time between the crime and
the identification; and (6) the suggestiveness of the identification process.

The out-of-court identification of herein accused-appellant by complainants

in the police station appears to have been improperly suggestive. Even
before complainants had the opportunity to view accused-appellant face-to-
face when he was brought our of the detention cell to be presented to them
for identification, the police made an announcement that he was one of the
suspects in the crime and that he was the one pointed to by accused
Ampatin as one of culprits. According to accused-appellant -

Q: When the complaining witnesses arrived at the Urduja precinct at that

time you mentioned, were you immediately kicked by them?

A: No, sir.

Q: How long a time from the time they arrived at the Urduja precinct to the
time that you were kicked by them?

A: Around 10 minutes, sir.

Q: And how were you identified or recognized by the complaining

witnesses?

A: Because upon arrival at the Urduja police station, the policemen

announced that I am one of the suspects in this case and thereafter, the
complainants started kicking me, sir.
Q: So that the announcement of the policemen that you were one of the
suspects came first then they started kicking you?

A: Yes, sir.[16]

It is, thus, clear that the identification was practically suggested by the police
themselves when they announced to the complainants that accused-
appellant was the person pointed to by Ampatin. The fact that this
information came to the knowledge of the complainants prior to their
identification based on their own recall of the incident detracts from the
spontaneity of their subsequent identification and therefore, its objectivity.

In a similar case, People vs. Cruz,[17] accused Cruz, a suspected co-

conspirator in a case of robbery with homicide, was presented to the
witnesses alone and made to walk and turn around in their presence. Then
the police pointed out to the accused and several others as the persons
suspected by the police as the perpetrators of the robbery committed in
Goso-on. The Court, in rejecting the subsequent identification made by the
witnesses, reasoned that:

The manner by which (witnesses) were made to identify the accused at the
police station was pointedly suggestive, generated confidence where there
was none, activated visual imagination, and all told, subverted their reliability
as eyewitnesses.

In Tuason vs. Court of Appeals,[18] an NBI agent first pointed the accused
to the witnesses after which the latter identified the accused. The Court held
that such identification was doubtful as the same was not spontaneous and
independent as there was improper suggestion coming from the NBI agent.
We ruled that a show-up or the presentation of a single suspect to a witness
for purposes of identification is seriously flawed as it constitutes the most
grossly suggestive identification procedure now or ever used by the police.

Likewise in People vs. Meneses,[19] where the accused was presented to

the lone witness as the suspect in the crime inside the police investigators
office, the Court pronounced that although the police officer did not literally
point to the accused as in the Tuason case, the confrontation and the
identification proceeding therefrom was objectionable.

The Court also finds that the trial court erroneously rejected accused-
appellants alibi.
Accused-appellant clearly and positively testified that at the time of the
crime, February 22, 1991, he was working as a shell cutter in a factory in
Pasay City where he was a stay-in employee. He rendered overtime work
until ten oclock in the evening that night because they had to rush work.
After ten p.m., he, together with his stay-in co-workers, went to sleep. Four
days later, he was arrested when accused Ampatin randomly pointed him
out to the police.[20]

This testimony of accused-appellant was materially corroborated by two of

his co-employees who were with him on the night of the incident. Rodolfo
Rosales, his co-worker, testified that he worked overtime until 10 p.m. in the
Pasay City factory together with accused-appellant. Upon finishing work,
they went to sleep in their quarters on the second floor of the building
because they were stay-in employees of the factory.[21] Another co-worker
of accused-appellant, Clemente Gahelan, was similarly offered as a witness
to corroborate Rosales testimony and his testimony was duly admitted by the
prosecution.[22]

The employer of accused-appellant Rolando Ocasla, likewise testified that

on the night of the incident, accused-appellant worked overtime in his
factory until 10 p.m. After 10 p.m., he personally locked the door of the
premises which was the only means of ingress and engress, as he always
does because it was his means of preventing any pilferage of materials. He
was the only one who had keys to said door. Around five a.m. of the following
day, he woke up accused-appellant and told him to drink his coffee. He also
declared that there was nothing unusual about accused-appellants behavior
either, before, during or after the date of the alleged crime.[23]

The defense of alibi or denial assumes significance or strength when it is

amply corroborated by a credible witness.[24] And to be given weight,
accused must prove not only that he was somewhere else when the crime
was committed but that he was so far away that it was physically impossible
for him to be present at the crime scene or its immediate vicinity at the time
of its commission. [25]

In this case, we find accused-appellants alibi sufficiently corroborated by the

testimonies of his co-workers and his employer who categorically stated that
they were with accused-appellant on the night of the crime. There was no
evidence that these witnesses were related to accused-appellant; neither
was it shown that they had any personal interest nor motive in the case. As
impartial credible witnesses, their testimonies cannot be doubted absent a
clear showing of undue bias or prejudice, or convincing proof of the
impropriety of their motives to testify for the accused.[26]

Accused-appellant vehemently argues that it was physically impossible for

him to have been present at the scene of the crime or its immediate vicinity
at the time of its commission. First, the crime was committed around 9:30 in
the evening of February 22, 1991. Accused-appellant, as well as two other
witnesses, testified that he worked in the factory until 10 p.m. that night and
went to sleep after. Second, there was only one door in the factory which
was the only means of entrance and exit and this door was kept locked by
witness Ocasla after ten p.m. that night. Ocasla was the only person who
had a key to this door. Third, the windows on the first floor of the building
consisted of hollow blocks with small holes which do not allow passage. The
second and third floor windows were 14 and 21 feet high, respectively. There
was no possible means of exit through these windows without accused-
appellant getting hurt or injured. Lastly, the crime took place in Kalookan City
around 9:30 p.m. while accused-appellants place of work was in Pasay City.
Assuming for the sake of argument that he was able to leave the premises
after 10 p.m. that night, by the time he reaches Kalookan, the crime would
have already been completed.

The Court has held that where an accused sets up alibi as a defense, the
courts should not be too readily disposed to dismiss the same, for, taken in
the light of all the evidence on record, it may be sufficient to reverse the
outcome of the case as found by the trial court and thereby rightly set the
accused free.[27] Though inherently weak as a defense, alibi in the present
case has been sufficiently established by corroborative testimonies of
credible witnesses and by evidence of physical impossibility of accused-
appellants presence at the scene of the crime. Alibi, therefore, should have
been properly appreciated in accused-apellants favor.

Another significant evidence which the trial court failed to consider is the
voluntary confession of accused Federico Ampatin absolving accused-
appellant Bagas of the crime. Ampatins testimony was clear and categorical:

Q: When you reached that house where Bagas was working what
happened?

A: All the persons were ordered to lie down, sir.

xxx
Q: And what did they do to you?

A: Immediately I was instructed to follow the policemen who went upstairs,

sir.

Q: Why did that policemen go upstairs?

A: He was looking for Mario, sir.

xxx

Q: Upon reaching the second floor, what happened there?

A: They did not see any person there, sir.

Q: What followed next?

A: P/O Melmida pistol-whipped me, sir.

Q: Where were you hit?

A: On the left portion of my neck, sir.

Q: Did Melmida utter any remark while hitting you?

xxx

A: He told me to point to somebody else, sir, saying these words, Magturo ka

ng tao kahit sino.

xxx

Q: So what did you do when you were ordered to point to anyone?

A: Because at that time I cannot yet stand up he forced me to go downstairs,

sir.

xxx

Q: Were you able to reached (sic) the ground floor?

A: Yes, sir.
Q: And what happened there?

A: I pointed to Albino Bagas, sir, because he was the only first person I saw
there at the ground floor while his companions were on the other side
because I dont want to get hurt anymore, Your Honor.

Court: When you see (sic) Bagas was lying face down at the tme you pointed
to him?

A: Yes, your Honor.

Court: You did not bother to look at his face?

A: No more Your Honor because I was in a hurry to point to somebody

because I was afraid that I will be hurt again, Your Honor.

xxx

Court: You mean to say at the time you pointed to Albino Bagas you did not
know him?

A: No I dont know him, Your Honor.[28]

Ampatin and accused-appellant were charged as co-conspirators in the

crime of robbery with rape. As a co-accused, it would have been more
consistent with human nature for Ampatin to implicate accused-appellant if
indeed he was one of the gang. In fact, the Court has recognized that as is
usual with human nature, a culprit, confessing a crime is likely to put the
blame as far as possible on others rather than himself.[29] The fact that he
testified to the innocence of a co-accused, an act which resulted in no
advantage or benefit to him and which might in fact implicate him more,
should have been received by the trial court as an indicum of the truth of
Ampatins testimony and the innocence of herein accused-appellant.
Ampatins testimony, therefore, should have been given weight by the trial
court. More so, the same was substantially corroborated by another witness,
Rodolfo Rosales, accused-appellants co-worker and who was present when
accused-appellant was arrested. Rosales testified as follows:

Q: Now, do you know when was Albino Bagas arrested in connection with
this case?
A: Last February 25, that was Monday, sir.

Q: And where were you when he was arrested?

A: I was there at that time.

xxx

Q: xxx what was the reaction of Albino Bagas when he was being pointed to
and arrested by the arresting officers?

A: The situation goes like this, sir, the policemen arrived there and they were
holding the persons of Ampatin and they were looking for a person named
Mario that was what I heard, sir, and then the policemen forced us to be
identified or to be seen by the guide. Ampatin at first at the ground floor but
since there was nobody there by the name of Mario they proceeded to the
second floor and upon looking one of the policemen shouted, Wala rito,
niloloko lang tayo ng taong ito.

Court: Then what happened next?

Witness: And I noticed that the reaction of Federico Ampatin that he was
afraid, so, because of fear he was able to point on the person of Albino
Bagas but when asked he does not know the name of Albino Bagas, Your
Honor.

Atty. Pacis: Before going to the second floor, because according to you the
arresting officers and the guide went to the second floor, was Albino Bagas
at the ground floor seen by the guide and the policemen?

A: We were the first group of persons seen by the policemen and Albino and
I were beside each other, sir.

Q: And you want to impressed (sic) upon this Honorable Court that at first at
the ground floor, Albino Bagas was not identified by this Ampatin before
going to the second floor?

A: The guide was not able to identify the person of Albino Bagas and that
was the reason why they still made searches at the second floor, sir.

Q: How was Federico Ampatin able to identify Albino Bagas when he was
accompanied by the policemen went downstairs?
A: I noticed from the reaction of Federico Ampatin that he was afraid after
hearing the shout of the policemen, sir.

xxx[30]

The testimony of witness Rosales corroborates Ampatins declaration in court

that he does not know herein accused-appellant and merely pointed to him
out of fear of the police. These testimonies remain unrebutted by the
prosecution as the arresting officers were not presented to refute or deny the
same. The foregoing testimonies exculpating accused-appellant have
sufficiently cast at least a shadow of doubt as to his guilt.

WHEREFORE, the decision of the trial court convicting accused-appellant

Albino Bagas of the crime of robbery with multiple rape is hereby REVERSED
and he is ACQUITTED of the crime charged. His immediate release is
hereby ordered unless he is held for some other valid charges.

SO ORDERED.

x--x

G.R. No. L-27606 July 30, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DOMICIANO BERAME alias DOMING, defendant-appellant.

Jose E. Fantonial for appellant.

Solicitor Felix Q. Antonio, 1st Assistant Solicitor General Antonio A. Torres

and Trial Attorney Lotita C. Dumlao for appellee.

FERNANDO, J.:

Evidence both direct and circumstantial resulted in the conviction for the
crime of murder of Domiciano Berame, now appellant, for the killing of the
deceased Quirico Maningo, apparently arising from the intense partisanship
generated by local politics. 1 In the original information for murder filed, a
certain Anastacio Montinola was likewise included, but he died soon
thereafter. Appellant Berame was positively Identified by a son of the
deceased, who was just a meter away at the salary of their rented house at
the time of the fatal incident. In the judgment now on appeal, the trial court
likewise took into consideration the flight of the appellant, his surrender
coming only after a month, the statement at the hospital made by the
wounded co-accused Montinola that along with him, appellant participated
in the act of shooting, and the fact that a rubber shoe, found in a swampy
area where assailants hid for a while, did fit the right foot of appellant. As
against such proof considered conclusive of the trial court, the defense of
alibi was unavailing. A careful study of the record persuades us of the
correctness of such a conclusion. We affirm.

According to the testimonial evidence: It was about 6:30 in the evening of

April 13, 1966, that an assailant suddenly shot Quirico Maningo, then seated
on a chair facing the main door of the sala of his rented house in Rizal Street,
Suba District Danao City. 2 His adopted son Danilo Maningo, was seated
one meter away from his right side. 3 Several successive shots were fired at
Quirico Maningo. 4 He saw his father, Quirico Maningo, slump to the floor,
wounded, with blood on his neck and breast 5 He looked towards the main
door where the shots came from and saw the accused holding a .38 caliber
revolver. 6 He was easily Identifiable, as there was a "big light" at the main
door of the house. 7 Appellant was standing on a bright spot as he fired his
gun several times at Quirico Maningo. 8 When the firing ceased, the witness
ran towards the main door of the house and saw two persons, one of them
being the accuse Berame scampering away. 9 Quirico Maningo, the victim,
was rushed to the Danao City General Hospital, but he was dead on arrival.
10 The appealed decision did likewise note that later that same evening, the
PC Provincial Commander of the Philippine Constabulary with a Sergeant
Armando Alfoja started the investigation of the killing of Quirico Maningo. In
a swampy area at the back of the hospital near the cemetery of Danao City,
where it was suspected one of the alleged assailants was hiding, they saw
footprints and recovered a rubber shoe. Appellant was required at the trial to
put it on. It turned out that it corresponded exactly with his right foot. 11
Moreover, appellant took flight after the killing and hid himself He did not
surrender until almost a month later, on May 8, 1966. 12 There was in
addition the statement from one of those accused in the original information,
Anastacio Montinola. As one of the suspects, he was pursued by the police
authorities. When cornered, instead of surrendering, he decided to shoot it
out. He was hit, it turned out, mortally. He admitted then and there that he
was one of the killers of Quirico Maningo, and his companions were a certain
Doming and one Erning. He made the admission anew at the Southern
Islands Hospital when he was further questioned. 13

The appealed decision, both thorough and comprehensive, discussed in

detail the evidence for both the prosecution and the accused. The defense
of alibi was carefully considered. It was not, as found by the trial court,
sufficiently persuasive. It is easily understandable why. Appellant was
positively identified. What is more there were compelling tell-tale
circumstances. If anything can be said to detract from the high quality of the
appealed decision, it was the assertion of the possibility "that a person could
be at Danao City at about 6 to 6:30 in the evening and be in Cebu City at 7
to 8 same evening. 14 That was by way of disposing of the claim of appellant
that since he was in Cebu City at about that time, and Danao City is about
thirty-two kilometers away from Cebu City, he could not have been
responsible for the killing. Certainly, such an off hand, perhaps even possibly
rash statement of the trial court, could not be a sufficient basis for his
acquittal. Witnesses are not noted for exactitude and precision in mentioning
the time. The hours mentioned were approximations. Moreover, as to the
circumstantial evidence, only the application of the res gestae rule to the
statement of Montinola was sought to be refuted. No attempt was made to
explain the flight of appellant causing the delay in his surrender for about a
month and a shoe discovered near the scene of the crime fitting his right
foot. The thirteen pages appellant's brief had another glaring deficiency.
There was not even a reference to the direct testimony Identifying; appellant
as one who fired the fatal shots. That is why, as noted at the outset, there
would be no justification for the reversal of the appealed decision.

1. As is usually the case in criminal offenses, there was a direct conflict in

the evidence submitted by the prosecution and the defense. What is
undeniable is that there was testimony coming from a competent and
credible eyewitness to the offense, Danilo Maningo, the son of the
deceased. He heard the shots being fired and saw who perpetrated the
deed. He was only a meter away, right at the scene of the crime. He had
direct and immediate knowledge. He Identified the accused. It was not
difficult for him to do so as there was a "big light" at the door of the house. He
was subjected to an intensive cross-examination. He stood his ground. He
did not budge. His version of the incident, as a matter of fact, was
reinforced. There was, in addition, testimony from one Carmencita Trinidad,
who, coming from the church, heard the shots after which she saw two
persons running away from the house of the deceased, one of whom was
slightly taller than she, an assertion verified when it was shown that
appellant's height as compared to her was precisely that. At about the same
time, a certain Jorge Durano, whose house was located at the back of the
hospital near the seashore and cemetery of Danao City, testified that he saw
a person walking fast going towards a barrio in the north near the swampy
area, his attention being called to such individual wearing rubber shoes. As
against that, there was the testimony from appellant who, as noted in the
decision, claimed "that at the time of the incident, at about 6:30 in the
evening of April 13, 1966, he was in Cebu City in the house of Atty. Gabriel a
neighbor, conversing with the latter and that was the gist of the testimonies
of two other witnesses, Nene Aranas and Libbi Cudilla also his neighbors. 15
This is a case, therefore. where the trial court, after hearing and observing
the witnesses testify, and weighing what was said by them, did choose to
believe the prosecution rather than the defense. For such a finding to be
overturned, there must be a showing that it did overlook a material fact or
circumstance or did misinterpret its significant. 16 What was said in People
v. Tilaon 17 comes to mind: "Finally, the rule is now firmly established to the
point of becoming elementary in this jurisdiction and elsewhere that where
there is an irreconcilable conflict in the testimony of witnesses, the appellate
court will not disturb the findings of the trial court when the evidence of the
successful party, considered by itself, is adequate to sustain the judgment
appealed from. 18

2. The appealed decision, moreover, finds impressive support from

circumstances that point unerringly to appellant's guilt. They simply cannot
be explained away. That could be the reason why his counsel did not even
bother to do so. As noted in the decision, a rubber shoe left in a swampy
area by someone leaving in a hurry the scene of the crime was just the right
size. It did fit appellant's right foot. That was demonstrative evidence of the
most persuasive kind. So it has been held time and time again. First there
was United States. v. Tan Teng. 19 decided in 1912. Of more recent vintage
is People v. Otadora, 20 promulgated in 1950. The appealed decision was
likewise based on the fact of appellant having been in hiding for sometime
with the evident purpose of evading arrest. He did not surrender until after
the lapse of a month. That again was a circumstance that could not be
ignored. There is relevance to this excerpt from the opinion of Justice
Malcolm in United States v. Sarikala: 21 "Third, Sarikala left the scene of the
murder immediately thereafter. Flight, when unexplained, is a circumstance
from which an inference of guilt may be drawn. 'The wicked flee, even when
no man pursueth but the righteous are as bold as a lion " 22

3. Then, too, there was a statement made by one of the original co-
accused, Anastacio Montinola, on his being captured after the gunplay
where he was wounded, it turned out, mortally. He admitted his participation
in the killing of Maningo and pointed to appellant as one of his companions.
While not amounting to a dying declaration, the lower court considered it as
part of the res gestae, and rightly so. That was assigned as error by
appellant's counsel in view of the nine hours that had elapsed from the time
of the killing before its utterance. That is not enough to take it out of the
operation of the principle. The teaching of a host of cases from United States
v. David, 23 a 1903 decision, is to the effect that it should be given
credence. As was stressed by the then Chief Justice Concepcion in People
v. Ner 24 All that is required for the admissibility of a given statement as part
of the res gestae, is that it be made under the influence of a startling event
witnessed by the person who made the declaration before he had time to
think and make up a story, or to concoct or contrive a falsehood, or to
fabricate an account, and without any undue influence in obtaining it, aside
from referring to the event in question or its immediate attending
circumstances" 25 As far back as 1942, in People v. Nartea 26 the marked
trend of decisions, according to Justice Ozaeta, is to extend, rather than
narrow, the scope of the doctrine admitting declarations as part of the res
gestae. Whether specific statements are admissible as part of the res gestae
is a matter within the sound discretion of the trial court, the determination of
which is ordinarily conclusive upon appeal, in the absence of a clear abuse
of discretion. 27 Here, again, there cannot possibly be any abuse of
discretion. That much is clear.

4. The last error assigned is the alleged failure of the lower court to hold
that the prosecution was unable to prove beyond reasonable doubt the guilt
of appellant, and therefore he should be entitled to the constitutional
presumption of innocence. 28, It requires a certain degree of temerity to
make such an assertion in the face of the competent and credible evidence
of record. This is one of those cases where the culpability of appellant was
shown in a manner that should remove any misgivings. The stage of moral
certainty certainly was reached. The defense of alibi was indisputably devoid
of merit. There was positive Identification. Then there were the
circumstances that indicated conclusively his participation in the criminal
act. The alibi was therefore disproved by direct and circumstantial evidence.
29 It, is not inappropriate to conclude with this observation by Justice
Endencia in People v. Dagatan, 30 considering the distance involved
between Cebu and Danao City: "In this particular case, appellants loosely
told the court that at around eleven o'clock on the night of June 11, 1937,
they were not in Carmen when the crime was being committed because they
were in Cebu. They, however, failed to present credible and tangible
evidence that it was physically impossible for them to be at Carmen at that
time. On the contrary, they themselves furnished evidence that Carmen is
only about 40 kilometers from Cebu City, with abundant means of
transportation such as buses, jeepneys and trucks plying between the two
places, which would at most take an hour to go from one place to the other,
and according to Saturnino himself, it would only take him 40 minutes if he
were to drive the car himself " 31 The trial court therefore correctly decided
that appellant is guilty of the crime of murder, the offense being qualified by
elevosia with the aggravating circumstance of dwelling being offset by the
mitigating circumstance of voluntary surrender. The appropriate penalty
then, as.imposed in the appealed decision, is reclusion perpetua.

WHEREFORE, the decision of the lower court of March 8, 1967 finding the
accused Domiciano Berame alias Doming guilty beyond reasonable doubt
of the crime of murder and imposing the penalty of reclusion perpetua is
affirmed, with the only modification that the indemnity due the heirs of the
deceased should be in the amount of P12,000.00 and not P6,000.00.

Barredo, Muoz Palma, Aquino and Martin, JJ., concur.

Antonio, J., took no part.

Concepcion, Jr., J., is on leave

x--x

G.R. No. L-30069 September 30, 1969

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANASTACIO BULAWIN, defendant-appellant.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General

Isidro C. Borromeo and Solicitor Eduardo C. Abaya for plaintiff-appellee.
Francisco Milan as counsel de officio for defendant-appellant.

SANCHEZ, J.:
The charge is murder. Defendant Anastacio Bulawin was found guilty thereof
by the trial court and sentenced to an indeterminate prison term ranging
from ten (10) years, eight (8) months and one (1) day of prision mayor, as
minimum, to twenty (20) years of reclusion temporal, as maximum, to
indemnify the heirs of the deceased, Ciriaco Jimenez, in the amount of
P6,000 and to pay the cost. 1

Appeal was taken to the Court of Appeals. 2 The appellate court was of the
view that the crime committed by defendant was murder, qualified by
treachery without any circumstance, aggravating or mitigating which
would call for the imposition of reclusion perpetua. Accordingly, the case
was certified to this Court upon the provisions Sections 17 and 31 of the
Judiciary Act of 1948 and Section 3, Rule 50 of the Revised Rules of Court.

September 23, 1963 was the barrio fiesta of Barrio Mabatao, Salvador,
Lanao del Norte. A political meeting was, on the night of September 22,
being held at the fair grounds of the barrio. About 12:30 o'clock in the early
morning of September 23, 1963, Ciriaco Jimenez was leisurely walking
towards the meeting place. Just as he was about twenty meters therefrom,
he was shot. The bullet, found its mark "at the back of his buttocks, two
inches below the waistline." About 6:00 o'clock p.m. on the same day,
September 23, Ciriaco Jimenez died at the Aurora Provincial Hospital.

The errors assigned in the brief of counsel de officio funnel down to one
single proposition: Has the People discharged its heavy burden of proving
the guilt of appellant beyond reasonable doubt? To this question, we
addressed ourselves. For the purpose, we explored the entire record.

1. The People's case was built mainly on the testimony of three witnesses:
Candido Autor, Sergeant Roberto Laurie of the Philippine Constabulary and
Aniceto Dacalos.

Candido Autor. He is the People's mainstay. He is supposedly the only

eyewitness to the crime. Because of this, his testimony must have to be
scrutinized with a sharp judicial eye. The People's proof should be beyond
reasonable doubt. But as we read the transcript, that testimony appears to
be sufficiently infected with grave doubts which prevent us from accepting
his word without reservation. Autor said that he was a farmer, although the
record shows that his occupation "is to extract tooth", for which reason he
played hide-and-seek with the police. 3 According to Autor, at about 12:00
o'clock in the morning of September 23, 1963, he was passing water beside
a small road about twenty meters from the place where the political meeting
was being held. He claimed to be just about one fathom from and to the left
of appellant Anastacio Bulawin when the latter with a pistol shot Ciriaco
Jimenez. The victim at that time was about two fathoms from and with his
back to his aggressor. The three formed a sort of a triangle. 4 The gist of
Autor's direct examination was that he saw the actual shooting and yet, there
appears to be a contradiction of this alleged fact when he was cross-
examined.1awphl.nt On this point, his direct examination yields the
following:

Q. While you were there on this occassion, was there any unusual incident
that happened?

A. Yes, sir.

Q. Will you please tell the Court what was that all about?

A. Ciriaco Jimenez was shot.

xxx xxx xxx

Q. How do you know that the accused Anastacio Bulawin shot Jimenez?

A. Because I was there at that time.

Q. Where?

A. In the place.

Q. How far were you from Anastacio Bulawin?

A. More or less one fathom.

xxx xxx xxx

Q. You said in answer to the question of the Court you saw Ciriaco Jimenez
shot by Anastacio Bulawin. What was the position of Ciriaco Jimenez and
Anastacio Bulawin when Ciriaco Jimenez was shot?

A. Ciriaco Jimenez was walking to the meeting place with his arms akimbo.

Q. Will you please demonstrate?

A. As demonstrated by the witness, the arms of Ciriaco Jimenez were closed
behind the buttocks.

Q. At your position as you demonstrated where was Anastacio Bulawin when

he shot?

A. Anastacio Bulawin was near the place where I was urinating.

xxx xxx xxx

Q. What part of the body of Ciriaco Jimenez was hit by the shot?

A. Ciriaco Jimenez was hit at his back.

COURT

Q. What part of the back was he hit?

A. At the back of his buttock, two inches below the waist line.

PROSECUTION

Q. When Ciriaco Jimenez was hit at the back, what happened with Ciriaco
Jimenez?

A. Ciriaco Jimenez was able to turn his face to the back and fell to the
ground. 5

But, then, on cross-examination, Autor declared:

Q. Did you not see him before You heard the shot?

A. I did not.

xxx xxx xxx

Q. What was Anastacio Bulawin doing when you first saw him for the first
time?

A. After the shot was fired, I saw Anastacio Bulawin.

Q. Do you mean to tell us that you did not see Bulawin until after you heard
the shot?

A. Yes, sir.

Q. How far was he from you at that time?

A. In my estimate, one fathom, more or less.

Q. Do you mean to say that you did not see him despite the fact that he was
only one fathom more or less from you before the report of the shot?

A. I did not.

xxx xxx xxx

Q. You did not see either of them before you urinated?

A. No, sir. 6

The foregoing inconsistency, placed in proper focus, sets Autor's testimony

on infirm grounds.

Soon after the incident, people went to the place where Jimenez fell.
Amongst them were Governor Ali Dimaporo, Vice-Governor Arsenio
Quibranza, Mayor Apolonio Yap and many others. Witness Autor, however,
testified that he communicated to nobody, although "Mr. Quibranza,
Dimaporo and his leaders were still there," 7 and left for home without even
extending a helping hand to the victim. Autor said that he did not mention
the incident to the people in his own house. These circumstances suggest a
substantial amount of improbability.

Of interest is Autor's declaration that the only person to whom he ever

mentioned what he saw 6 was a brother of the victim. And this he did in the
morning following the incident. It would seem odd then that the brother of the
victim did not inform the authorities about it. The record does not so indicate.
No one appeared to have ever thought at that time of taking Autor's
statements, certainly very important to this case. For, he was, as already
stated, allegedly the sole eyewitness to the crime. Well it is to remember that
an investigation was then being conducted by the Constabulary. Appellant
and a number of witnesses were in the barracks located in the same town of
Salvador.
Added dubieties there are. We note in the criminal complaint filed in the
municipal court on October 3, 1963 10 days after the crime by Capt.
Wilfredo C. Golez, Commanding Officer of the PC, that the name of Candido
Autor was not mentioned as one of the witnesses. Even in the criminal
information the Provincial Fiscal filed in the Court of First Instance on
October 9, 1964, the name of this witness, Candido Autor, was conspicuous
in its absence. And yet, the evidence is that Autor the only eyewitness to
the crime was in his home in nearby Barrio Salong as early as June, 1964.

Sergeant Roberto Laurie, 73rd PC Company stationed at Salvador, Lanao del

Norte. The gist of his testimony is that at about 2:00 o'clock in the morning of
September 23, 1963, he was awakened by Lt. Mejia, Junior Officer of the
unit, who told him that there was shooting in Mabatao during the rally and
asked him to escort the victim to the hospital. He saw the victim, Ciriaco
Jimenez, at the gate of the guardhouse in a three-fourths truck. With Jimenez
were Governor Dimaporo, Vice-Governor Quibranza, Rufo Jimenez, Jose
Villarta and some PC soldiers. He described in court the dialogue between
him and the victim, Ciriaco Jimenez, as follows:

Q. You stated you met Ciriaco Jimenez with these persons you have
mentioned. What else did you do when you met Ciriaco Jimenez?

A. When I get inside the truck I said, "What's happened?" he said, "I was
shot." I further asked him, "Who shot you?" he said, "Anastacio Bulawin." I
further asked him, "Why did you see Anastacio Bulawin when it was dark?"
he replied that "I clearly saw him." I inquired from him as to whether he will
live with the wound be sustained. He replied that "I will live. Just bring me to
the hospital." 8

On cross-examination, 9 however, his attention was drawn to his affidavit

dated October 3, 1963 appearing on page 7 of the record below and to a
specific question and answer therein, viz:

Q. On page 7 of the record of this case is an affidavit wherein the affiant is

Roberto A. Laurie. Will you please look at this signature above these
typewritten words [and tell us] whether that is yours or not?

A. That is mine, sir.

Q. This affidavit of yours was duly sworn to before Justice of the Peace
Panfilo Rama of Salvador, Lanao del Norte?
A. Yes, sir.

Q. I am going to remind you sergeant about the statement you made in this
affidavit wherein the question was asked in this wise:

"Q. What question did you ask to the victim?" and your answer is this,

"A. I asked him who shot him and he answered me that it was Bulawin. Then
I asked another question. Why did you recognize him when in fact it is dark?
Then the victim did not answer. I further asked another question, do you think
you will not die of your wound you received? He did not answer any more. So
Lt. Mejia ordered the driver to leave immediately for Aurora so that the victim
will be given immediate treatment of his wound." Is that correct?

A. The statement there is correct." 10

And here is how he attempted to reconcile the two versions:

COURT

Q. Therefore what you testified now before this Court is not correct because
it did not tally with what you said in that affidavit?

A. I have not read that affidavit because it is three years already. I even
forget there is affidavit being executed.

Q. Which is now the truth that the victim told you that he recognized
Anastacio Bulawin as his assailant or he did not answer you at all?

A. In my affidavit that is right.

Q. What is right?

A. I don't remember because it is placed in the affidavit. 11

The value of Laurie's testimony is, indeed, impaired. First, because he did
not hesitate in Court to overshoot his mark. One wonders whether he
did so to make a weak case look good. Then, it does not strike us as natural
that given that opportunity, Sgt. Laurie, or any other constabulary officer for
that matter, did not put that statement of the deceased Ciriaco Jimenez into
writing, the better to preserve its worth as evidence. Written words speak a
uniform language. Oral recollection, in turn, could suffer from the treachery
of memory or from coloring. The deceased's statement, it should be
remembered, at least forms part of the res gestae.

Aniceto Dacalos. Thus witness claims that he was in the dancing hall when a
child came running and reported to the people there that somebody was
shot. With Governor Dimaporo, Vice Governor Quibranza, Mayor Yap and
others, they went to the scene which was more or less twenty meters away.
There, they saw Ciriaco Jimenez. Upon arrival, so his version goes, he
inquired from Jimenez who shot him. The following from the transcript of
Dacalos' testimony is quite revealing as to why defendant was a suspect:

Q. What did he answer?

A. He replied that there is no other person who would shoot me except

Anastacio Bulawin because we are enemies. 12

Witness Dacalos, the record discloses, followed Roberto Laurie to the

witness stand on December 9, 1965. It is interesting to note that as in the
case of Laurie his version leaves traces of an effort to fortify the res
gestae angle, by the following:

Q. What else did you do?

A. I further asked him, "Are you certain that it was really Anastacio Bulawin
who shot you?" and he replied that I clearly saw him because the light
reached the place where he was then. 13

This last statement would contradict the affidavit of Sgt. Laurie who asked
question along similar lines. "Why did you recognize him when in fact it is
dark?" And, according to the affidavit of Sgt. Laurie heretofore quoted, "the
victim did not answer." This witness, Aniceto Dacalos, a neighbor and an old
friend of Ciriaco Jimenez, like the alleged eyewitness Candido Autor, did not
figure in the list of witnesses for the prosecution, either in the criminal
complaint filed by PC Capt. Golez or in the Fiscal's indictment. His name
was not amongst those who gave affidavits to back up the criminal charge.
This gives the impression that Aniceto Dacalos, the neighbor of the
deceased, was but an eleventh-hour witness. To take his testimony on its
face value, we fear, is to rate truth so lightly.
The foregoing evidence of the People leaves much to be desired. It exhibits
a gap between doubtful evidence and proof beyond reasonable doubt. That
gap is not bridged. The evidence does not produce in an unprejudiced mind
that moral certainty so necessary to bring about conviction in a criminal
case. It is in this context that we find ourselves unprepared to send appellant
to jail for life, or, for that matter, for a long term of imprisonment. Because, we
are not morally convinced.

2. But if more were needed, circumstances there are which cast a heavy pall
of doubt on the sufficiency of the People's evidence. At about 4:00 o'clock
that morning of September 23, appellant herein was placed under arrest in
his own home. He was brought to the PC barracks. And yet, at about 2:00
o'clock in the afternoon of that day, he was released by Capt. Golez who told
him: "We cannot detain you here because there was no complaint filed.
However, you should report to this headquarters every day." 14 If really this
man were pinpointed by the deceased at about 2:00 a.m. of September
23 as the author of the grave crime of murder it must be borne in mind
that the affidavits were executed not on the 23rd of September but on
October 3, 1963 it does not seem probable that the peace officers would
release him so soon. There is then probability that the reason why he was
arrested was because he was merely a suspect. But without evidence
against him. And this could have sprung from the fact that as barrio captain,
the deceased Ciriaco Jimenez lodged a complaint for theft of large cattle
against a son of appellant by the name of Bitoy, amongst others. 15

And then, two of the defense witnesses, namely, Lamberto Maghinay and
Paciencio Bacaling were, likewise, investigated by the Constabulary on that
same morning of September 23, 1963. Nothing in the record suggests that
the testimonies of these two witnesses were taken in writing. The record
below at least does not show any such written statements. And these two
witnesses with another by the name of Melecio Lomolho supported the alibi
offered as a defense by appellant.

The foregoing facts are significant because, as aforesaid, the affidavits of the
People's witnesses were only taken on October 3, 1963, even as the peace
officers had prompt knowledge of the crime and allegedly learned of facts
which linked appellant to the crime as early as about two hours after the
perpetration thereof. And, as aforesaid, the criminal complaint was lodged in
the municipal court only on that day, October 3.

3. There is a dearth of autoptic or demonstrative evidence which would

positively connect appellant with the crime. Nothing in the record shows that
the officers even made any effort to locate the alleged pistol used by
appellant. Nor is there evidence that appellant has had one. In the morning
of September 23, 1963, Sgt. Aniceto Dacalos, in the presence of Sgt.
Sarbida, pointed at appellant as the owner of a big hat which was apparently
left at the scene of the crime. Appellant denied this. Even that hat was not
exhibited in court. Or, its whereabouts accounted for.

And, Autor testified that he (Autor) who knew appellant very well saw
appellant at the scene of the crime, recognized him because the light was
bright and the distance between the two was only about one fathom, asked
him "What is that?", whereupon appellant "ran away." 16 If all these were true,
it does not seem probable that appellant would make himself a sitting duck,
go to and stay in his home in Barrio Salong, about one kilometer from the
scene of the crime. And there to be arrested at about 4:00 o'clock in the
morning by Sgt. Sarbida and a provincial policeman by the name of Madid.
What did he run for?

4. We are not unmindful of the fact that appellant left his barrio on the 29th of
September, 1963, that is, five days after Ciriaco Jimenez was shot, and went
to live with his parents and sisters in Lopez Jaena, Misamis Occidental. 17
But he did so because he was warned daily by his neighbors that there were
Maranaos hired by the brothers of the deceased Ciriaco Jimenez to liquidate
him. If he really intended to hide from the authorities, he would have done so
at the first opportunity. It would seem to us that his flight was induced by his
instinct of self-preservation.

5. The defense is alibi. The version given is that at about 6:00 o'clock in the
afternoon of September 22 after the cock-fighting was over, appellant
conducted a game of "hantak" in the cockpit of Dalama, which was about
five kilometers from the scene of the crime. That game of "hantak" lasted till
about 3:00 o'clock the following morning of September 23. After which,
appellant went over to the house of Lamberto Maghinay where they took a
drink for a few minutes. Then, appellant went home where he was arrested
as aforesaid. His testimony in this respect was corroborated by Lamberto
Maghinay, Paciencio Bacaling and Melecio Lomolho. It is to be recalled at
this point that witnesses Maghinay and Bacaling were investigated at the
Constabulary headquarters on that morning of September 23, 1963.

Of course, alibi is known to be the weakest of all defenses. It is easy to

concoct, difficult to disprove. 18 Nonetheless, where the evidence for the
prosecution is weak and betrays lack of concreteness on the question of
whether or not defendant is the author of the crime charged, alibi as a
defense assumes importance. Not very long ago, this Court, speaking
through Mr. Justice J.B.L. Reyes, in People vs. Fraga, L-12005, August 31,
1960, pointed out that "[t]he rule that alibi must be satisfactorily proven was
never intended to change the burden of proof in criminal cases; otherwise,
we will see the absurdity of an accused being put in a more difficult position
here the prosecution's evidence is vague and weak than where it is strong."
19

In the end, we have but to bear in mind that, by Constitution and law, a
defendant in a criminal case is entitled to an acquittal, unless his guilt is
shown beyond a reasonable doubt. 20 We cannot downgrade this precept
by accepting less than what it exacts. Else, the protection afforded may be
more in sound than in substance. The People's evidence does not measure
up to this standard in this, a grave crime of murder.

For the reason that guilt has not been established beyond reasonable doubt,
we vote to reverse the judgment under review, to acquit defendant-appellant
Anastacio Bulawin of the crime charged, and to set him at liberty. Costs de
officio. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Capistrano and

Barredo, JJ., concur.
Castro and Teehankee, JJ., took no part.
Reyes, J.B.L., J., is on leave.

x - - -x

G.R. No. L-32146 November 23, 1981

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LUIS DELMENDO y BAL-OT and FLORENTINO DELMENDO IPAC
defendants-appellants.

GUERRERO, J.:

This is a case where the accused, Luis Delmendo y Balot and Florentino
Delmendo y Bal-ot having volunteered to donate their blood to save the life
of one, Alfredo Buccat, who had been earlier shot in his house in the evening
of February 26, 1969 and in fact, the accused Luis Delmendo did donate
250 cc. of his blood, were later charged with the murder of said Alfredo
Buccat upon the affidavits of the widow, Magdalena Buccat, and her son,
Elpidio Buccat, who were both present at the commission of the crime, which
affidavits were given to the police authorities on March 14, 1969 or 16 days
after the shooting of Alfredo Buccat.

The information against the two accused-appellants charges

That on or about the 26th day of February, 1969, at about 7:30 in the
evening, in barrio Agtipal Municipality of Bacnotan, Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused namely, LUIS DELMENDO and FLORENTINO DELMENDO,
conspiring together and mutually aiding one another, with intent to kill and
with treachery and evident premeditation and did then and there willfully
unlawfully and feloniously shoot one ALFREDO BUCCAT, inflicting upon said
offended party, Alfredo Buccat, the following wounds:

Gunshot wound entering left anterior chest at lst interspace, mid-clavicular

line, going thru and shattering manubrium sterni going thru right internal
mammary vessels, thru right upper lobe of right lung including its deep
vessels, out thru right axilla and thru posterior aspect of right upper arm.

which caused the death of the said Alfredo Buccat.

That the following aggravating circumstances were attendant in the

commission of the offense:

1. That the crime was committed in the nighttime.

2. That the crime is committed in the dwelling place of the offended party.

CONTRARY TO Article 248 of the Revised Penal Code.

The accused-appellants pleaded not guilty, hence, the case proceeded to

trial. Upon completion thereof, the trial court convicted the two accused in its
decision promulgated May 4, 1970, the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered finding the accused LUIS

DELMENDO and FLORENTINO DELMENDO guilty beyond reasonable doubt
of the crime of Murder as charged qualified by treachery. The court
considers the mitigating circumstance of drunkenness in favor of the
accused to offset the aggravating circumstance of dwelling, and hereby
sentences each one of them to suffer LIFE IMPRISONMENT, to indemnify the
heirs of the deceased in the amount of P12,000.00 plus moral damages of
P5,000.00 and exemplary damages of P3,000.00 without subsidiary
imprisonment in case of insolvency, plus the accessory penalties provided
for by law, and to pay the costs.

The two accused appealed the decision of conviction but the records were
erroneously transmitted to the Court of Appeals. On June 17, 1970, the same
were forwarded to this Court.

In assailing the decision under review, the accused-appellants submit the

following assignment of errors:

1. The trial court erred in finding that "at a distance of about nine meters Luis
fired at the deceased. " (p. 20, Decision.)

2. The trial court erred in concluding that "the identity of Luis as the gun
wielder was corroborated by the findings of Col. Minardo Finones, Chief of
the P.C. Central Laboratory showing that Luis Delmendo was positive for
powder burns." (p. 21, Decision.)

3. The trial court erred in holding that "with the positive identification of
both accused, the defense of alibi interposed by the accused, inherently
weak as it is, ail the more becomes even weaker and is not worthy of
credit." (p. 22, Decision.)

4. The trial court erred in finding that "Florentino Delmendo conspired with
Luis Delmendo to commit the offense. " (p. 23, Decision.)

5. The trial court erred in convicting defendants-appellants of the crime of

murder qualified by treachery, in sentencing each one of them to suffer life
imprisonment, to indemnify the heirs of the deceased in the amount of
P12,000.00 plus moral damages of P5,000.00 and exemplary damages of
P3,000.00 instead of acquitting them upon the ground of reasonable doubt.
(p. 25, Decision.) (Brief for Defendants-Appellants, pp. 1-3).

The crucial issue in the case at bar is the Identities of the assailants who shot
the victim, Alfredo Buccat, in his house in Barrio Agtipal Municipality of
Bacnotan, La Union in the evening of February 26, 1969. The wife of the
deceased and his son, Magdalena Buccat and Elpidio Buccat, respectively,
point to the two defendant-appellants as the malefactors. Both accused,
however, stoutly denied the accusation against them.

The version of the prosecution may be narrated in the following recital,

quoting the People's Brief, pp. 2-4, to wit:

At about 10:00 o'clock in the morning of February 26,1969, the appellant

Florentino Delmendo arrived at the house of the spouses Alfredo and
Magdalena Buccat in Barrio Agtipal Bacnotan, La Union, while it was being
repaired (pp. 90, 91, 104, 161, t.s.n.). After helping in the work and drinking
basi that was served by Magdalena to the workers, at about 12:00 o'clock
noon, Florentino left only to return at about 1:00 o'clock in the afternoon of
the same day (pp. 105, 106, t.s.n.). Not long after Florentino arrived, he had
a quarrel with his brother Federico and they almost boloed each other had
not the proverbial cooler heads intervened to pacify them (pp. 106, 107, 108,
109, t.s.n.). After they had been pacified, Magdalena advised Federico to go
home to avoid further trouble (pp. 107, 108, 109, t.s.n.). Soon thereafter
Florentino left, sore at her for sending his brother home, otherwise he would
have killed him (pp. 106, 108, t.s.n.). Later on he returned with his co-
appellant Luis Delmendo (p. 106, t.s.n.).

Upon seeing the two appellants, Alfredo, who was in the yard talking with
Cipriano Delarna and Eniong Oredena, told his son Elpidio not to bring out
basi anymore because the 'drunks are here again referring to the appellants
(pp. 83, 91, 92, 110, 148, 158, 169, 170, t.s.n.), whereupon Cipriano and
Eniong left while father and son ascended their house for supper (pp. 82, 83,
148, 149, t.s.n.). While Alfredo and his family were having supper, the
appellants went up to the house (pp. 83, 94, 152, t.s.n.). Luis sat on the
window sin east of the dining table where the Buccats were eating, his feet
dangling out of the window, while Florentino stood beside him (pp. 83, 93,
152, 166, t.s.n.). A while thereafter, Florentino vomitted, causing the spouses
to complain of the appellants' bad manners, especially at a time that they
were eating (pp. 84, 85, 152, 153, 157, t.s.n.). Luis stood up and whispered
something to Florentino (pp. 84, 85, 153, 168, t.s.n.). Afterwards they left
eastward following the pathway to their houses (pp. 85, 95, t.s.n.).

Later on the appellants returned as the Buccat family had just finished
supper and while in the yard at a distance of about nine meters, appellant
Luis fired several times at Alfredo from behind (pp. 75, 76, 78, 81, 95, 117,
118, 154, 155, 170, 173, 174, t.s.n.). Alfredo slumped and fell down to the
floor (pp. 97, 119, t.s.n.). Magdalena and her son Elpidio ran to the kitchen
and screamed for help as they saw the appellants fleeing northward (pp. 81,
96, 119, 156, 174, t.s.n.).

The stricken victim was rushed to the Lorma Hospital in San Fernando, La
Union (p. 86, t.s.n.), where he was attended to by Dr. Rufino Macagba Jr.,
director of the hospital (pp. 40, 41, t.s.n.), but expired at about 11:20 o'clock
in the evening due to severe loss of blood caused by the gunshot wound
sustained on the chest (pp. 40, 41, 42, 43, 44, 45, t.s.n.; Exhs. "F" and "G "). "

The principal witnesses for the prosecution are Magdalena Buccat, the
widow, and Elpidio Buccat, son of the victim. The testimony of the widow,
lifted from the decision of the trial court, is as follows:

MAGDALENA BUCCAT, widow of the deceased, testified that in the evening

of February 26, 1969, she was at home and that right after supper with her
deceased husband and their two children Elpidio and Gloria, and an aunt of
her husband, they tarried awhile on the table where they ate. That was on the
cemented ground floor of their two-storey house.

While thus lingering after supper at seven o'clock that evening she saw the
accused Luis Delmendo with Florentino Delmendo at their yard. Then she
saw Luis fire at her husband who, upon being hit, collapsed to the floor from
the chair where he was seated. Immediately she ran for help towards the
kitchen door where she again saw accused Luis and Florentino running
towards the north.

She did not know who finally brought her husband to the Lorma Hospital at
San Fernando, La Union, but when she followed to the hospital at 10 o'clock
that evening her husband was already dead.

On cross-examination, she disclosed that that same night a policeman by

the name of Espejo came to investigate. She admitted that she did not tell
anyone who the assailant of her husband was except to her son Elpidio who
likewise saw the assailant. But she said it was probable that she told
policeman Espejo that night. She also admitted that she advised her son
Elpidio not to ten anyone as yet who the assailant was because, according
to her, she was still afraid 'they might come back for asked the distance
between the assailant to her husband when shot, she disclosed that the
assailant was about six meters (nine meters by actual measurement).
That she recognized Luis fire at that distance as he was illuminated by the
kerosene lamp near the window and that it was a clear night with the moon
shining at one o'clock high.

The material testimony of the son Elpidio is likewise recited in the trial court's
decision, and We quote:

ELPIDIO BUCCAT, 19, son of the victim, testified that ... .

After the Buccat family had finished their supper, the victim rested for a while
on the same chair by the dining table but had changed his original sitting
position such that his back was turned against the dining table. Witness on
the other hand remained seated by the table facing west in his original
position now tinkering with the picture frame. He was reaching for the picture
frame when he saw both accused suddenly appear at the western window of
the dining room. He saw Luis Delmendo aim and fire at his father. At this
precise moment, Florentino was about one meter behind Luis Delmendo
After the gun fired, witness ran to the kitchen and out of the house to report
the shooting to a neighbor, Herminio Marquez.

Witness Elpidio Buccat did not reveal the Identities of the assailants of his
father that same night except to his mother who advised him not to reveal
their Identities yet to anybody for fear of reprisal.

Corporal Modesto Espejo of the Bacnotan Police Force was the first police
authority who, upon learning of the incident about 8:00 o'clock that evening,
proceeded immediately to the scene at Barrio Agtipal with Patrolman Partible
and two enlisted PC men assigned to Bacnotan. We also quote hereunder
Cpl. Espejo's testimony as cited in the decision:

Upon their arrival, the deceased was no longer there. He learned he was
brought to the Lorma Hospital at San Fernando by men from barrio Agtipal.
He interrogated the widow and their son and one Tinoy Delmendo (He was
not sure of the surname), but did not reduce them in writing because he
turned over the investigation to Sgt. Camilo Marquez. He gathered by his
routine police investigation that same evening that the deceased was shot in
his house at barrio Agtipal. He recovered six empty shells west of the house
on the ground under the window, and a slug inside the house embedded in
a window frame east of the house.

Later he made a verbal report to the chief of police to whom he also turned
over the six empty shells (Exh. D) and one slug (Exh. E). At the municipal
building a guard informed him that the suspects were also at the hospital. He
transmitted the information to Pat. Marquez who was then at the hospital.

The evidence for the prosecution further show that the accused Luis
Delmendo and Florentino Delmendo were subjected to paraffin tests at the
Provincial Constabulary Headquarters in San Fernando, La Union where they
were taken by Sgt. Camilo Marquez of the Police Force at the time said
accused Luis Delmendo and Florentino Delmendo were at the Lorma
Hospital in San Fernando, La Union where the two had gone to volunteer
with other barriomates to donate blood to the wounded Alfredo Buccat.
Paraffin casts of both hands of Luis Delmendo, Florentino Delmendo and
Fernando Ganiola were taken by staff Sgt. Godoy on 27 February 1969,
0830H. The chemistry report No. C-91-69 marked Exhibit "B"contained the
following findings: "1. Luis Delmendo Both hands gave POSITIVE result to
the test for the presence of gunpowder residue (Nitrates); and Fernando
Ganiola and Florentino Delmendo NEGATIVE to the test for the presence of
gunpowder residue (Nitrates)."

The trial court further summarized the testimony of Sgt. Camilo Marquez,
who took over the investigation of the case from Cpl. Modesto Espejo. Sgt.
Marquez admitted that the deceased Alfredo Buccat was his second cousin
and, therefore, a close relative of the aggrieved family. According to the
decision, p. 5; Records, p. 169.

He tried to talk to the widow and son but they could not give him some
enlightenment as they had not then recovered their composure and were
hysterical Others he interviewed refused to talk 'probably because they did
not have knowledge of the crime.' Thereafter, however, he tried to find clues,
and on March 17, 1969, he obtained a written statement of one Cipriano
Delarna

It is a fact that it was only on March 14, 1969 or after 16 days from the day of
the shooting incident that the widow, Magdalena and her son, Elpidio, both
went to the office of the Chief of Police of Bacnotan La Union and there and
then they gave their written statements about the shooting, Identifying the
accused, Luis Delmendo and Florentino Delmendo as the assailants who
shot Alfredo Buccat. Their affidavits were subscribed and sworn to before
Municipal Atty. and Special Counsel Eufemio R. Molina on March 19, 1969.

We come now to defense.

The version of the defense as maintained in their Brief, pp. 10-11, is that
"Between 4:30 and 5:00 o'clock in the afternoon, on Feb. 26, 1969, Florentino
was caned by Luis to repair the latter's bicycle. They then proceeded to the
house of Pedro Valmonte to borrow his tools. After repairing the bicycle for
more than one hour, both proceeded to the store of Magdalena Buccat,
widow of the deceased Alfredo Buccat, where they drank gin and coca-cola.
While thus drinking, Florentino Almodovar came along, and Luis invited him
to drink with them. The three drank in the store for about 30 minutes. After
drinking, all three proceeded east towards the house of barrio captain
Revelino Balen to fix the schedule of workers in a road construction project
in the barrio, but upon passing the house of a certain Antonio Corpuz,
Florentino Almodovar stayed behind, while Florentino and Luis went on their
way to the house of said barrio captain. After having stayed in the house of '
the barrio captain for about 30 minutes, he accompanied Luis to his house
for the purpose of borrowing rice. From the house of Luis, Florentino went
home. (pp. 282-303, TSN, March 4, 1970)."

Testifying for the defense, Revelino Balen, the barrio captain of Agtipal
Bacnotan, La Union, declared that between the hours of 7:00 and 8:00 in the
evening of February 26, 1969 he was working in his flue-curing barn in
Agtipal when he heard gun reports from a northerly direction. He proceeded
northward to investigate the cause of the gunfire when he met children who
were running southward and reporting, "Tata Pidong was shot." He then
proceeded to the house of Alfredo Buccat the victim, and found his bleeding
body inside the kitchen. There were many people near the crime scene. He
called for a tricycle to bring the victim to the hospital. On the way to the
Lorma Hospital he asked the victim who shot him, but the latter answered " I
do not know." He saw both accused at the hospital but did not know their
purpose in going there.

Pedro Valmonte, barrio councilman of Agtipal also testified for the defense,
saying that between 7:00 and 8:00 p.m. on the date of the incident, he heard
gun reports and when he heard the sound of a horn giving the alarm, he
proceeded to the house of the victim which was rumored to be the source of
the gun reports. He came upon the victim loaded into a tricycle for the
purpose of rushing him to a hospital. He also stated that he inquired from
Magdalena Buccat and her son Elpidio Buccat if they knew the assailants
and they replied in the negative. He asked Magdalena where the assailant
was at the time he fired at the victim and Magdalena pointed to the
southeastern part of her house saying, "That is the place where the flash of
light came from." Valmonte also declared that he searched for evidence
particularly empty shells to help authorities solve the crime but he could not
find any at the place pointed to by the widow. He, however, found six empty
shells about a meter below the window west of the house and he covered
them with a wash basin to avoid them being touched by anyone.

This witness further testified that he campaigned for blood donors willing to
give their blood for the victim, and two caretela loads of people responded to
the request for blood, he accompanying them up to the national road where
they were later on transported to the Lorma Hospital where the victim was
taken. He also said that both accused, Luis Delmendo and Florentino
Delmendo were among those who volunteered to donate their blood to the
victim.

As to the fact of the blood donation given by the accused Luis Delmendo the
records disclosed that in truth and in fact, said accused donated 250 cc. of
his blood type "B" to the victim Alfredo Buccat, on February 26, 1969 as
shown in the certificate issued by Nora Safra, medical technologist of the
Lorma Hospital. (Exh. " 1 ").

The trial court in convicting the two accused, reached such conclusion on
the following rationale:

That Luis Delmendo fired the gun that killed the deceased; that Florentino
Delmendo was near and in company with Luis; and that both of them were
positively Identified by the witnesses Magdalena Buccat and Elpidio Buccat
the court has no valid reason to doubt. At a distance of about nine meters at
night one can easily be Identified by the light of a kerosene lamp (such as
that used by the family of the deceased) especially if the party is well-known
to the Identifier. Both the accused and the witnesses are barriomates and are
well known to each other. Furthermore, the Identity of Luis as the gun wielder
was corroborated by the findings of Col. Minardo Finones chief of the P.C.
Central Laboratory showing that Luis Delmendo was positive for powder
burns.

The testimonies of Magdalena and Elpidio, even if they are the widow and
son, respectively, of the deceased corroborate each other in an respects.
They have been shown not to be perjured and no motive or reason was ever
faintly suggested why they will perjure their testimonies. Indeed, the accused
himself admitted that before the incident, they were in the best of terms with
the deceased. Aside from these, the testimony of Magdalena and Elpidio of
the shooting as well as the place where Luis fired from was further
substantiated by the testimony of police Corporal Modesto Espejo who
testified that he recovered six empty shells thereat plus a slug embedded on
the frame of the eastern window of the ground floor of the victim's house.
(Decision, pp. 21-22; Records, pp. 185-186).

Assailing the above decision, the main thrust of the defense is that the
testimonies of the widow, Magdalena, and her son, Elpidio, relative to the
Identity of the malefactors cannot be believed and relied upon because
there are compelling reasons why their declarations cannot be given full faith
and credence. And these are: (1) The three kerosene lamps were all inside
the house as testified to by Mrs. Buccat. It must have been dark outside
considering that it was already between 7:00 and 8:00 o'clock in the
evening, hence, it was quite difficult for her to recognize persons outside of
her house at the time of the incident; (2) While she testified that she saw one
of the malefactors aim his gun to her husband, she did not even warn her
husband of the danger to his life; she did not shout a warning at all. This is
an unnatural behavior of a wife witnessing the danger to her husband. Had
she really seen the accused Luis Delmendo aim his gun at the deceased
husband of Mrs. Buccat, the latter would have certainly shouted a warning to
him as a natural and instinctive reaction; (3) Her testimony on cross-
examination that despite the time of the night (between 7:00 to 8:00 o' clock)
she was even able to recognize the color of the shirts of the appellants, i.e.,
Luis was wearing light brown shirt while Florentino was wearing a reddish
shirt (p. 136, TSN, October 16, 1969), are exaggerations in an attempt to
appear credible, only to unmask her incredibility. It is unbelievable to
recognize with accuracy the color of a shirt at that time of the night
especially when the color of the shirt is dark. It is next to impossible since
any colored object on a dark night without the aid of artificial light would
appear to be black to the naked eye. And since the alleged assailants were
some nine meters away from the victim (p. 7, Decision) and therefore even
further away from Mrs. Buccat, an accurate Identification cannot be relied
upon; (4) When Mrs. Buccat was investigated by the police immediately after
the shooting, she did not mention the names of the assailants of her husband
to the police investigator, her reason being. "I did not then mention because I
was then crying." (p. 139, TSN, Oct. 16, 1969). The defense argues that her
reason for not divulging the assailants of her husband on the night she was
investigated is flimsy for even if she was crying, it was easy for her to
mention the names of the assailants, but she did not. It would have been
more natural for her to mention the names of the assailants in the course of
her investigation even if not asked or prodded to do so. It was only on March
14, 1969, or more than two weeks after the incident, that she divulged the
names of her husband's assailants allegedly because it was only then that
she "had composed" herself. Thus, she testified:
CROSS-EXAMINATION

BY ATTORNEY GUALBERTO:

Q The first time you ever gave your statement about who killed your
husband was March 14, 1969, which is found on your statement on page 34
of the record of the case?

A Yes, your Honor.

Q That was the only time when you divulged the identities of the alleged
assailant of your husband to peace officers?

A Yes, sir.

Q That was also the only time when you mentioned about the incident
surrounding the circumstances surrounding the incident?

A Yes, Your Honor. (p. 141, TSN, October 16, 1969)

Required to explain the rather unreasonable delay in divulging the Identities

of the assailants of her husband, Mrs. Buccat testifying on redirect
examination declared:

RE-DIRECT EXAMINATION

BY ATTORNEY CACANINDIN:

Q Why did it take you until March 14, to go to the police officers and give
your written statement?

A At the time of the week few days after the incident, I had not yet
composed myself. On March 14, when I had composed myself, I went to the
authorities to give my statement. (p. 142, TSN, October 16, 1969.)

According to the defense, the other alleged eyewitness to the incident,

Elpidio Buccat, son of the deceased Alfredo Buccat, must also suffer the
same fate. His testimony cannot be given faith and credence for like her
mother, his declarations cannot be believed. While he allegedly witnessed
the whole incident, he refrained from divulging to the authorities the identities
of his father's assailants allegedly because he was advised by her mother
not to do so for fear of their lives. Thus, he declared:
CROSS-EXAMINATION

BY ATTORNEY CARIASO

Q When you saw them (appellants), did you not go to the police authority
and tell the authorities to arrest them as they are the assailants of your
father?

A Not yet, sir.

Q Why?

A I was advised by my mother not to make a report to the authorities yet

for fear of our lives.

Q When were you advised by your mother?

A The following day, Sir, after the incident. (pp. 181-182, TSN, October 23,
1969.)

The defense considers the foregoing testimony as valueless for two reasons:
First, because on the night of the incident immediately after his father was
shot, the police investigators were already in their house conducting an on
the spot investigation. So he could have informed them of the identities of his
father's assailants right then and there, since there was yet no instructions
from his mother not to divulge the names of the malefactors, if it is true that it
was the following day of the incident that his mother advised Mm not to give
the authorities the identities of the assailants. Second, because his testimony
on this point is in direct contradiction with his mother's testimony to the effect
that immediately after the body of her husband was brought to the hospital,
she told Elpidio of the identity of the assailants at the same time telling him
"not to talk as yet about the matter, " to wit:

CROSS-EXAMINATION

BY ATTY. CARIASO

Q Aside from Espejo, did you ever tell any other person especially
members of your household about the Identity of the assailants of your
husband?
A None, sir.

COURT:

You did not tell anybody, or you do not remember having told anybody?

A It was to Elpidio, my son, whom I told, sir, that "You will not talk as yet
about the matter".

Q When did you tell Elpidio?

A When the body of my husband was already brought to the hospital (p.
99, TSN, October 15, 1969. )

The testimony of Elpidio that his mother told him not to reveal the Identity of
the assailants to the police authorities is a lie because the body of the
deceased was brought to the hospital on the same night of the incident. And
since the testimony is false, the defense argues that his whole testimony
should be disregarded under the principle of falsus in uno falsus omnibus,
false in one, false in all under "the cardinal rule which has served in all ages,
and has been applied to all conditions of men, that a witness wilfully
falsifying the truth in one particular, when upon oath, ought never to be
believed upon the strength of his own testimony, whatever he may
assert." (U.S. vs. Osgood 27 Fed. Case No. 15971-a, p. 364).

The defense maintains that the trial court erred in concluding that "the
Identity of Luis as the gun wielder was corroborated by the findings of Col.
Minardo Finones Chief of the P.C. Central Laboratory, showing that Luis
Delmendo was positive for powder burns." (p. 21, Decision). It is contended
that the findings of the laboratory that both hands of Luis Delmendo were
positive for powder bums is not conclusive that he fired the gun in the light of
the passion of Col. Finones that there is such a thing as "false negative," that
is if he did not fire a gun but found positive for nitrates (p. 10, TSN, Sept. 23,
1969); that it is possible that a person who did not fire a gun could be found
positive for powder burns; that "even a mere handling, for one occasion, of
fertilizer could produce nitrates on one's hand" (pp. 11-12, TSN, Sept. 23,
1969). In short, Col. Finones admitted that (1) one who works in a laboratory
and handles nitrates will have nitrates in his hands (p. 7, TSN, Sept. 23,
1969); (2) even smoking could produce nitrates (p. 11, Id.); (3) even
urinating also produces nitrates (p. 11, Id); and (4) handling of fertilizer also
produces nitrates. (p. 13, Id.).
The defense further contends that although Col. Finones testified that
nitrates from gun powder is fine and thin whereas other nitrates give fighter
color and bigger smell, he admitted that this is not conclusive (p. 12, TSN,
Sept. 23, 1969). This means that although thin and fine nitrates were found in
the hands of Luis Delmendo such fact is not conclusive that he fired a gun.

It is not disputed that accused Luis Delmendo was at the time of the incident
an employee of the Filipinos Magnetite Corporation, FILMAG for short,
working under Engineer Daniel P. Cafuir Chemical Engineer, in the Assay
Department of said firm (pp. 330-331, TSN, March 5, 1970). Luis was then a
laboratory technician in said firm, assisting the firm's chemist in "the analysis
of elements, iron concentrate and copper ores that he used to handle
chemicals and although he was equipped with gloves to prevent him from
contamination, he had been working without gloves, reason for which the
firm used to reprimand him. (p. 332, TSN, Id.). Engineer Cafuir likewise
declared that: "The chemicals most often used in the laboratory are acid
solvents like hydrocloric acid, sulphuric acid, nitrate acid, perphloric acid,
nitric acid, potassium dichromate, chemicals which pertain to other analysis
of different elements ammonium nitrate, potasium iodine, sodium
thiasulphate " (pp. 336-337, TSN, March 5, 1970).

In convicting the two accused for the murder of the victim in this case, the
conviction must be based on evidence that is clear, positive and strong
creating a moral certainty as to the guilt of the accused. The charge against
them must be proved beyond reasonable doubt. Since the two alleged
eyewitnesses to the commission of the crime are the widow and son of the
victim, their testimonies pointing to the accused as the perpetrators must be
subjected to a rigid test which should demonstrate beyond cavil their
truthfulness, honesty and rectitude as actual eyewitnesses to the
perpetration of the criminal act. There must never be any shadow of doubt,
any cloud of suspicion or deception to conceal the facts and disguise the
truth. The first, if not the basic foundation upon which the prosecution builds
its case against the accused is proof beyond reasonable doubt that it is the
said accused who committed the crime charged. In other words, the Identity
of the accused is the first duty of the prosecution.

As earlier indicated, the widow, Magdalena, and her son, Elpidio, both point
the accusing finger to the two accused as the assailants. Yet, the evidence
clearly show that it took them 16 days after the commission of the crime to
lay the blame upon both accused for the first time when on March 14, 1969,
these alleged eyewitnesses went to the police department in the townhall to
make their written statements and accuse the two defendants, although
police investigators (one of them the police sergeant who was their close
relative) had gone to the house of the victim and the witnesses to conduct an
on-the spot investigation that very night when the shooting occurred on
February 26, 1969. The credibility of their testimonies are, therefore, seriously
attacked.

What is the rule in criminal law jurisprudence in similar or analogous cases

where there is delay or failure to identify the accused at the earliest
opportunity? In the following cases, the Supreme Court has uniformly held
that such an identification is an afterthought designed to implicate the
accused and cannot be the basis of conviction. Thus

In People vs. Baquiran 20 SCRA 451, 456-458, the Supreme Court said:

The widow's behavior after the incident was even more puzzling and leads
us to the conclusion that she did not at all recognize her husband's assassin
and that her subsequent Identification of the appellant was an afterthought
born of a prejudiced mind. She related that when she reported the murder to
the PC detachment at Tumauini around one o'clock in the morning of April
30, 1959, she told Sgt. Venturina that it was Fulgencio Baquiran who shot her
husband. But Sgt. Venturina denied this and testified that she refused and
would not talk about the matter. Mateo Forto who, she admitted, was present
when she made the report to Sgt. Venturina, confirmed the sergeant's
testimony and added that she said that she was not able to recognize any of
the killers. Forto also disclosed that on the way to Tumauini, he questioned
Juanita as to the identity of her husband's assailants and that the widow
replied that she was not able to recognize them because they had the brim
of their caps tilted downwards. Bernardo Gumatay, chief of police of
Tumauini, testified similarly. When he investigated the widow at the scene of
the crime, the latter revealed that she could not recognize the malefactors
because it was dark. Upon his return to Tumauini Gumatay entered the result
of the evening's investigation in the police blotter under date of April 30,
1959 (Exh. 3). Dr. Laman, who overheard the conversation between Gumatay
and the widow, corroborates the former's testimony. These witnesses have
not been shown by the prosecution to have any inordinate interest in the
acquittal of the accused. No one is a relative of barrio-mate of the appellant.
They are disinterested persons and the record does not indicate any reason
for us to disbelieve their testimonies or to suspect their motives.

The natural reaction of one who witnesses a crime and recognizes the
offender is to reveal it to the authorities at the earliest opportunity. Juanita
Marilao did report the crime to the Constabulary but she did not reveal the
identity of the assailant although it was inquired into three times or more. it
taxes credulity that Juanita made no effort to expose the appellant then. Her
silence casts serious doubt on her subsequent identification of the appellant,
Had she really recognized the appellant, as the prosecution contended, she
would have immediately and spontaneously revealed his Identity upon
reporting the crime as would be expected according to the natural course of
things. The argument that she was still in a state of shock after the incident
and that she was afraid of reprisal from the assailants who were still at large
is not supported by the evidence on record. The fact that she was able to
seek out Ocampo and Forto to help her go to Tumauini on the night of the
murder does not show a confused and disorganized mind. If she were afraid
of reprisal, wouldn't it be more in consonance with common experience for
her to have revealed the identity of the accused that he might safely be put
behind bars? As it were, the accused was not ordered arrested until May 3,
1959 after Sgt. Venturina filed a complaint the day before. This is in itself
significant for it lends support to the declarations of Celedonia and Fulgencio
that the identification of the latter as the alleged assailant took place on May
1, 1959 and not on April 30 as asserted by both Juanita and Venturina. As
previously mentioned, Juanita testified that she identified the accused as the
murderer of her husband during the first hours of the morning of April 30,
1959 when she reported her husband's death to the PC detachment at
Tumauini. This was denied and contradicted by Sgt. Venturina who asserted
that the identification was made during the confrontation between the widow
and the appellant in the morning of April 30 around nine or ten o'clock in the
morning. Celedonia, who was investigated together with her mother as
Venturina himself admitted, testified that the investigation took place on May
1, 1959 and that the accused was not present at all. This corroborates
Baquiran's statements to the same effect. For more than twenty-four hours
then no word was received from the widow as to the identity of her
husband's killers. This despite the fact that after her husband's burial on
April 30, she decided to spend the rest of the day and night in Tamauini. If
Sgt. Venturina filed the complaint only on May 2, 1959, it could have been
due to the fact that the widow made her Identification only the day before,
May 1, 1959. But then, she had had more than ample time for reflection and
what was merely a suspicion deepened into a conviction. She admitted on
cross-examination that she was not able to identify her husband's killer
although she suspected somebody. Thus:

Q You want to make this Honorable Court understand that the Chief of
Police, together with his two policemen, Domingo and Taguba, went to that
place where your husband was shot and killed without interrogating or
making investigation regarding the assailant?
A He asked me, sir.

Q And there you told him that you were not able to identify the person
who shot and killed your husband, although you suspected somebody?

A Yes, sir. (t.s.n. 71).

She repeated her suspicions later to Chief of Police Gumatay after the burial
of her husband, mentioning the name of Baquiran as the suspect. Needless
to say, suspicion is no Identification. And the fact that she merely had
suspicions is an indication that at the time her husband was shot, she was
not able to make a positive Identification of the assailant.

In People vs. Bulawin 29 SCRA 710, 714-715, 719-720, where the witness
did not mention the incident to the people in his own house and where an
investigation was then being conducted by the Constabulary the Supreme
Court said

Soon after the incident, people went to the place where Jimenez felt
Amongst them were Governor Ali Dimaporo, Vice-Governor Arsenio
Quibranza, Mayor Apolonio Yap and many others. Witness Autor however,
testified that he communicated to nobody, although "Mr. Quibranza,
Dimaporo and his leaders were still there," and left for home without even
extending a helping hand to the victim Autor said that he did not mention the
incident to the people in his own house. These circumstances suggest a
substantial amount of improbability.

Of interest is Autor's declaration that the only person to whom he ever

mentioned what he saw was a brother of the victim. And this, he did in the
morning following the incident. It would seem odd then that the brother of the
victim did not inform the authorities about it. The record does not so indicate.
No one appeared to have ever thought at that time of taking Autor's
statements, certainly very important to this case. For, he was, as already
stated, allegedly the sole eyewitness to the crime. Well it is to remember that
an investigation was then being conducted by the Constabulary. Appellant
and a number of witnesses were in the barracks located in the same town of
Salvador. (pp. 714-715)

3. There is a dearth of autoptic or demonstrative evidence which would

positively connect appellant with the crime. Nothing in the record shows that
the officers even made any effort to locate the alleged pistol used by
appellant. Nor is there evidence that appellant has had one. In the morning
of September 23, 1963, Sgt. Aniceto Dacalos, in the presence of Sgt.
Sarbida pointed at appellant as the owner of a big hat which was apparently
left at the scene of the crime. Appellant denied this. Even that hat was not
exhibited in court. Or, its whereabouts accounted for. (p. 720)

In People vs. Cunanan 19 SCRA 769, where the witness revealed the Identity
of the accused seven days after the shooting of the victim and his reason
was that every member of the family of the deceased was very angry and he
was afraid to reveal the Identity of the culprit sooner as "something also
untoward would even happen," and "(t)he situation might be aggravated," (p.
775) the Supreme Court, thru Justice Sanchez, held:

7. The natural reaction of one who witnesses a crime is to reveal it to the

authorities unless, of course, he is the author thereof. It defies credulity that
not one or two but five such witnesses made no effort to expose Cunanan if
they really knew that he was the author thereof This stultified silence casts
grave doubts as to their veracity.

In the end, we have here a specific case where evidence of Identification is

thoroughly unreliable. Reason: No valid explanation was given why the
People's witnesses did not report the odentity of appellant Nicolas Cunanan
to the authorities during a long period of time.

In People vs. Roxas, 73 SCRA 583, where the two witnesses gave their
statements after the wake, or a delay of five days from the shooting of the
deceased because their deceased uncle was a bachelor, without any family
to attend to his burial, the Supreme Court, speaking thru Justice Antonio,
ruled:

Delay or vacillation in making a criminal accusation does not necessarily

impair the credibility of the witness, if such delay is satisfactorily explained.
(p. 590)

In People vs. Aquino, 93 SCRA 772, where the witnesses reported 12 days
after the shooting, it was therein held with Justice Abad Santos as ponente
that:

If, indeed, these witnesses had recognized and Identified the assailants,
they would have reported the shooting and revealed the Identity of the
culprits, to the police authorities, at the earliest possible opportunity, as
could ordinarily be expected of witnesses to a fatal shooting. But, not one of
them did so.

The shooting was reported to the police by a certain Sulpicio Umiten, a

public school teacher in Kabacan. When the police authorities arrived at the
scene, Pacifico and Romulo claimed that they were among those questioned
by the police. Yet none of them, singled out and named the accused. They
attempted to explain their inability to disclose the identity of assailants, by
claiming that they were afraid because it was already getting dark, which
explanation is too crude to be convincing. Romulo added a lame excuse,
that questions asked of him did not extend to the identity of the culprits.
Pacifico and Romulo testified that two days after the shooting they were
investigated, and that they separately executed sworn statements wherein
they named the accused. But surprisingly, their alleged sworn statements
are both dated November 16, 1970, or twelve days after the shooting.

xxx xxx xxx

On the main, all that the prosecution had proved was the fact of death of
Benigno Pascua, but it failed to prove by outright, convincing and conclusive
evidence that such death was caused by the accused. The evidence for the
prosecution does not even show that attempts were made to recover the
Garand rifle allegedly used in the shooting, or that any of the accused was in
possession of a rifle at the time of the shooting. It does not even appear that
formal and thorough investigation was made of the accused, more
particularly of Pedro Casimina who appears to have been hastily included in
the murder charge.

Reviewing and putting altogether what happened immediately before, during

and after the shooting incident, We find many facts and circumstances that
are not very clear nor do they logically and naturally arise from an
assumption that Magdalena and Elpidio actually saw and Identified the
accused Luis and Florentino Delmendo shoot the deceased Alfredo Buccat
at the time and place charged. First, when the police went to the scene of
the crime in the evening of February 26, 1969 in the very house of the victim
to investigate the shooting, Magdalena Buccat did not identify the two
accused as the persons who shot her husband. Her testimony on this point
is vague and uncertain, if not vacillating, as shown in the transcript of the
stenographic notes during the trial on October 15, 1969, excerpts of which
follow:
Q Did you ever tell anyone that night that you recognized the person who
shot your husband?

A None, sir.

Q When was the first time that you ever told anybody that you recognized
the assailants of your husband?

A Maybe it was to Itong Espejo whom I told, sir.

Q And you told Espejo on that same night of the incident?

A Yes, sir.

Q Did you not say a while ago that you never told anyone the identity of
the assailants of your husband that night?

A I cannot remember if I told that to Itong Espejo, but maybe, I told it, sir,
because he talked to me that night.

Q But did you not state a while ago that you do not even remember
whether he investigated you that time?

ATTY. CACANINDIN: There is a lot of difference between investigation and

talking.

Q Aside from Espejo, did you ever tell any other person especially
members of your household about the identity of the assailants of your
husband?

A None, sir.

THE COURT:

You did not tell anybody, or you do not remember having told anybody?

A It was to Elpidio, my son, whom I told, sir, that 'You will not talk as yet
about the matter.

Q When did you tell Elpidio?

A When the body of my husband was already brought to the hospital.
(t.s.n., pp. 98-99, October 15, 1969)

In the latter part of her cross-examination, the same witness, Magdalena

Buccat, admitted that she did not tell Cpl. Modesto Espejo of the Bacnotan
Police Force who was the first police investigator of the case who arrived
soon after the shooting incident, who killed her husband because she was
then crying, as indicated in the following excerpts of her testimony during the
trial of the case on October 16, 1969, to wit:

Q Madame Witness, were you not investigated immediately after the

incident?

A I am not sure if I was investigated. I cannot remember. Maybe I was

investigated by I tong Espejo.

Q You were also investigated by the PC.

A No, sir.

Q There were no investigator, any agency, except Itong Espejo, who

came to your house. Is that right?

A Maybe he came with a companion, but I am not sure if they asked

questions from me. I was then crying.

Q That is why you did not tell Itong who killed your husband?

A I did not then mention because I was then crying. (t.s.n., pp. 138-139,
October 16, 1969)

We have also the testimony of Sgt. Camilo Marquez, a second cousin of the
deceased Alfredo Buccat, who declared that "upon going to Agtipal from the
hospital he had occasion to talk to Magdalena Arellano, widow of the
deceased Alfredo Buccat, but he was not able to talk to her because she
was hysterical and was continuously crying." (t.s.n., p. 55, September 23,
1969). The sergeant was also asked this question: "Q - In other words, you
tried with desperate efforts from February 26, 1969 up to March 14, 1969, to
talk with the widow and the children and yet was unable to make them talk?"
and his answer was: "A- They were all hysterical." (t.s.n., p. 59, Sept. 23,
1969).
This testimony of Sgt. Marquez must be believed in full because he is a
close relative of the deceased and it is but a normal and natural reaction of
the widow, shocked by the shooting of her husband, rendering her
speechless or unable to talk. But when the police accompanied by P.C.
soldiers and later followed by Sgt. Marquez, an of whom would provide
protection and security to the aggrieved family, it became the duty of the
widow to reveal the identities of the assailants, even in confidence to the
sergeant as a close relative if she really knew said assailants. But the widow
did not, and from this omission or failure to reveal the identities of the
perpetrators, We can only conclude that in truth she was not able to identify
the killers of her husband. Her reason that she was crying and was
hysterical, that she was not composed and that she was afraid of their lives
can no longer be justified in the light of the long delay of 16 days when she
finally went to give her statement to the police. Her explanation is no longer
valid to excuse the lateness of her accusation against the accused after
more than two weeks had passed. Indeed, "this stultified silence casts grave
doubts as to their veracity. " (People vs. Bulawin 29 SCRA 710).

Second, the testimony of Elpidio, 19-year old son of the deceased, who
claims to have seen the two accused shoot his father, is likewise doubtful. It
is even contradictory for, according to Elpidio, the first time he told anyone
about the identity of the assailants of his father was when he told his mother
and that was when she asked him if he saw Florentino and Luis Delmendo
shoot his father. His mother allegedly asked the question that same evening
of the shooting which was February 26, 1969, after the father was already in
the hospital. (t.s.n., pp. 177-178, Hearing of Oct. 23, 1969). Yet, according to
Elpidio himself on cross- examination, it was on the following day after the
incident that he was advised by his mother not to make a report to the
authorities for fear of their lives. (t.s.n., pp. 181-182, Hearing on Oct. 23,
1969). Contrary-wise, Magdalena told her son Elpidio not to talk as yet about
the matter when the body of her husband was already brought to the
hospital (which was in the evening of February 26, 1969). (t. t.s.n., p. 99,
Hearing of Oct. 15, 1969).

Following the testimony of Elpidio, he declared that after the shooting of his
father, he ran out of the kitchen door and sought help in the neighboring
house of Herminio Marquez, ten meters away from their own house, telling
Herminio that his father had been shot. Herminio Marquez is the brother of
Sgt. Camilo Marquez, the second police investigator of the incident and
admittedly a second cousin of the victim, Alfredo Buccat. This Herminio,
being a close neighbor, is also a close relative of the aggrieved family. Now,
when Elpidio on the witness stand was asked: "Q Did Herminio Marquez
ask you the Identity of the persons who shot your father when you came to
him?" Elpidio's answer was: "A No, sir." Then followed this question: "Q
And you did not volunteer to tell him "A No, sir." (t.s.n., p. 177, October
23,1969).

This failure of Elpidio to inform even their neighbor Herminio Marquez, who is
also a second cousin of his father, being the brother of police investigator
Sgt. Camilo Marquez, which would have been a very logical and natural
particular to disclose in Elpidio's report or account of what had happened to
his father as stated by him to Herminio as the former sought for help, must
cast grave doubts as to the credibility of Elpidio's testimony that he saw and
identified the two accused as the assailants of his father.

Third, the lapse of 16 days during which time Magdalena and Elpidio did not
go to the police to give their statements or affidavits also engenders grave
doubts that the two alleged eyewitnesses actually saw the two accused in
the act of shooting the victim. Claiming that they volunteered to go to the
Presidencia to be investigated in connection with the incident and that they
were not summoned, Magdalena explained that after the incident she had
not yet composed herself and it was only on March 14, 1969 that she had
composed herself.

Such explanation or reason is weak, if not sham, considering that the usual
mourning period had already elapsed. She may be the aggrieved widow but
certainly, her grief cannot be so protracted as to be neglectful to seek
immediate justice with the help of the police. That the witnesses
procrastinated or delayed in going to the police authorities strongly indicates
the conclusion that they did not actually see the assailants or they were not
sure and positive as to their identities.

Fourth, the circumstances of time and place further engender serious

misgivings that the two eyewitnesses, Magdalena and Elpidio, clearly saw
the faces of the assailants. The time of the shooting was between 7:00 and
8:00 o'clock in the evening of February 26, 1969. Three (3) small kerosene
lamps were lighted because it was already nighttime and supper had
already been partaken by the Buccat family. The two alleged eyewitnesses
were inside the house, on the ground floor and without any premonition
whatsoever of the coming danger. The assailants were outside the house,
some nine meters away from the place where Magdalena was. She declared
that she saw the assailants only through the window, the dimensions being 1
meter and 33 cms. It may be true that the moon was shining at one o'clock
position and it was only a half-moon, but considering the distance and the
conditions of the night, common experience show that it would be physically
difficult to immediately accustom the eyes to an object, more so a person,
standing outside in the premises of the yard.

That Magdalena could identify the color of the assailants' shirts and that
Elpidio could identify the color of their pants which must have been hidden
by the lower portion of the window through which they were sighted, appears
to be an exaggeration, if not imagination to lend credence to their
identification. These and other details which the witnesses recalled and what
each did after the shooting to prove their memory do not, however, impress
Us in the face of the indisputable fact that the witnesses delayed
unreasonably in accusing the two assailants to the police.

The records further show the lackadaisical action of the police in

apprehending and arresting the perpetrators. When Cpl. Modesto Espejo
with Patrolman Partible and 2 P.C. soldiers repaired to the scene of the
shooting right after the incident, no attempt was made to locate, search or
recover the firearm used. Cpl. Espejo said he investigated the widow and the
son (t.s.n., p. 27, Hearing of Sept. 23, 1969) although Elpidio, the son, said
he was not investigated by Cpl. Espejo (t.s.n., p. 180, Hearing of Oct. 10,
1969) but Espejo did not take their statements in writing that night, or even
after several days. He did not follow up his investigation because he rested.
(t. t.s.n., p. 31, Sept. 23, 1969) and worse, he did not even place in the
police blotter the report of his investigation as to who shot the victim. (t.s.n.,
p. 34, Sept. 23, 1969).

And Sgt. Camilo Marquez, a second cousin of the victim who took over the
investigation from Cpl. Espejo, did not interview the widow allegedly
because she was crying. Yet, the police waited until March 14, 1969, 16
days after the shooting, to resume its investigation when the affidavits of the
witnesses were taken, only to be subscribed and sworn to 5 days thereafter,
on March 19, 1969. From this indecision and hesitancy, it can be reasonably
inferred that the evidence then at hand was insufficient and doubtful to
formally charge the accused.

Now, to the motive. Generally, proof of motive is unnecessary to pin a crime

on the accused, if the evidence of identification is convincing; however,
where the proof of identification is not convincing, then proof of motive is
necessary. (People vs. Cunanan, L-17599, April 24, 1967, 19 SCRA 769;
People vs. Portugueza, L-22604, July 31, 1967, 20 SCRA 901; People vs.
Jamero, L-19852, July 29, 1968, 24 SCRA 206, People vs. Guardo, L-23541,
August 30, 1968, 24 SCRA 85 1). Motive to kill assumes pertinence only
when there is doubt as to the identity of the culprit, (People vs. Sales, 44
SCRA 489; People vs. Basuel, 44 SCRA 207). Proof of motive is important in
knowing the reasons for the commission of a criminal act. (People vs.
Custodia 47 SCRA 289). Absence of motive is important in determining the
truth as between conflicting versions of the incident object of the accusation.
(People vs. Boholst-Caballero, 61 SCRA 180; People vs. Beltran, 61 SCRA
246) In the case at bar, the lack of sufficient motive for the two accused to
shoot the victim is supportive of their defense of denial in the commission of
the crime. According to the prosecution evidence, the motive to kill arose
from the remarks of the victim referring to the two accused as "drunks" and
We quote the testimony of the widow:

Q Do you know the reason why they shot your husband?

A There is.

Q What was that?

A When the two accused were approaching our house, they were seen
by my husband.

Q What about when the two were arriving at your house?

A My husband said, "Do not bring out basi anymore because the drunks
are here again".

Q He was addressing who when he said that?

A To my son, Elpidio.

Q And who were the drunks referred to by your husband who were
arriving?

A Luis and Tino, sir.

Q For whom was that basi which Elpidio was trying to bring out?

A My husband intended that basi for my kumpadre, Eniong Oredena and

Cipriano de Larna. (pp. 81-82, Hearing of Oct. 15, 1969)

xxx xxx xxx

In another portion of the widow's testimony stating that the accused
Florentino Delmendo was sore at her, she related that Florentino and Ms
brother, Federico, had a quarrel at her house about 1:00 o'clock in the
afternoon of February 26, 1969 wherein she interceded and pacified them
sending home Federico to stop the fight between the brothers. We quote her
testimony:

THE COURT: (Addressing Magdalena Buccat)

After you had pacified them, what happened?

A Florentino got sore because I sent his brother home.

THE COURT:

Why did his brother Federico leave?

A Because I pleaded to him that he would go home so that their fight

would not go on.

THE COURT:

But he did not tell anything to you that he was sore at you? I refer to
Florentino.

A He did not do anything, Sir, but I saw him very sore at me. (t. s. n pp.
107-108, Hearing October 15, 1969)

Assuming that the deceased had referred to the accused as "drunks",

assuming that Florentino was sore because Magdalena pacified the fight
between the two brothers, Florentino and Federico, assuming further that
Magdalena remarked about the bad manners of the two accused when
Florentino vomitted, are these sufficient motives or reasons for the accused
to murder the deceased, Alfredo Buccat? We do not believe so. We hold and
rule that tested by the common experience and observation of mankind, the
said evidence fags short, far and below that degree of probability logically
and reasonably acceptable under the circumstances. For certainly, the role
of Magdalena as a peacemaker between the fighting brothers, Florentino
and Federico Delmendo was a good deed which normally deserves another
in return, and not an act of murder of the husband who was not even present
during the quarrel. Nor does the remark uttered by Alfredo Buccat referring
to the two accused as "drunks" sufficiently prove the reason for the shooting,
much less the comment on their bad manners. Indeed, the insufficiency of
the motive, nay its improbability by normal standards, weakens the
prosecution's identification of the accused. In fact, it strengthens the defense
claim that the accused were not the assailants.

The last point is the defense of alibi set up by the accused. Alibi is a weak
defense that cannot prevail over positive identification of the accused by
eyewitnesses (People vs. Estrocada 75 SCRA 295; People vs. Roncal 79
SCRA 509). Alibi assumes importance where evidence for prosecution is
weak and betrays lack of concreteness on question of whether or not the
accused committed the crane charged. An accused cannot be convicted on
the basis of evidence which, independently of his alibi is weak,
uncorroborated, and inconclusive. The rule that alibi must be satisfactorily
proven was never intended to change the burden of proof in criminal cases;
otherwise, there would be the absurdity of an accused being put in a more
difficult position where the prosecution's evidence is vague and weak than
where it is strong. (People vs. Lim, L-46890, Nov. 29, 1977, 80 SCRA 496).
The same rule is reiterated in People vs. Dilao, L- 43259, Oct. 23, 1980, 100
SCRA 358,394.

Re-stated otherwise, the weakness of the defense of alibi does not relieve
the prosecution of the required burden of proof. (People vs. Aquino, 93
SCRA 7'0 2; People vs. Salazar, 93 SCRA 796). And although alibi is the
weakest defense that an accused can avail of, it acquires commensurate
strength where no positive and proper identification has been made by the
witnesses of the offender. The prosecution has the onus probandi in
establishing the guilt of the accused and the weakness of the defense does
not relieve it of this responsibility. (People vs. Cruz, L-24424, March
30,1970,32 SCRA 181).

Applying the above jurisprudential rules to the case at bar, it is at once

discernible that the alibi of the two accused is so simple in their candidness
in admitting that each of them were in their respective houses which are very
near to the scene of the crime at the time of the shooting of the victim. The
house of the accused Luis Delmendo is about 200 meters from the house of
the victim (t.s.n., p. 413, hearing on March 5, 1970) and he (the accused)
was about to eat his supper when he heard the gun volleys (t.s.n., p. 394,
hearing, March 5, 1970). And with respect to the other accused Florentino
Delmendo his house is about 50 meters away from the house of Magdalena
Buccat (t.s.n., p. 310, hearing, March 4, 1970) and said accused was in the
street north of his house when he came to know for the first time that Alfredo
Buccat was shot (t.s.n., p. 319, hearing, March 4, 1970).
The above alibi is positively corroborated by witness Florentino Almodovar
who declared that he, together with the two accused drank gin and coca-
cola in the store of Magdalena Buccat that afternoon of February 26, 1969;
that they walked to the house of Antonio Corpuz where Almodovar stayed
behind while the two accused proceeded to the house of Barrio Captain
Revelino Balen; that after 30 minutes, he saw the two accused leave the
house, going northwards, after which he heard gun explosions, a successive
volley of fires coming from the west. (t.s.n., pp. 259-263, March 4, 1970
hearing).

While the defense of alibi frequently deserves little consideration because it

is easily fabricated, it is not always false and without merit (People vs.
Pulmones, 61 Phil. 680) as in the case at hand, and when coupled with the
improbabilities and uncertainties of the prosecution evidence, suffice to raise
reasonable doubt as to their responsibility (People vs. Bartolay, 42 SCRA 1).

We have already ruled herein that the prosecution has not presented clear,
positive and convincing evidence identifying the two accused as the actual
assailants or perpetrators of the shooting of the victim, Alfredo Buccat. The
basis of Our ruling have been laid down and explained and the inevitable
end result is that We must acquit the two accused not because their defense
of alibi is weak, although such defense has acquired commensurate strength
due to failure of positive and proper identification of the offenders by the
witnesses, but on the ground that the prosecution has failed to discharge its
responsibility of proving their guilt beyond reasonable doubt. For indeed, the
duty of the prosecution to prove the guilt of the accused beyond
peradventure of doubt is a primary one, and until and unless such duty has
been performed, the constitutional presumption of innocence to which the
accused is entitled must be upheld, whether his defense of alibi is weak or
strong.

While the prosecution is not required to submit such a degree of proof as,
excluding possibility of error, produces absolute certainty but only moral
certainty is required, or that degree of proof which produces conviction in an
unprejudiced mind (Rule 133, Sec. 2, Rules of Court), in the case at bar, We
are confronted with inculpatory facts and circumstances which are capable
of two or more explanations, one of which is consistent with the innocence of
the accused and the other consistent with their guilt. In such a situation, as
held by the Supreme Court in People vs. Abana, 76 Phil. 1; People vs.
Pacana 47 Phil. 48, 57; People vs. Bautista, 81 Phil. 78; People vs. Parayno,
L-24804, July 5, 1968, 25 SCRA 3, the evidence does not fulfill the test of
moral certainty and is not sufficient to support a conviction.

We have analyzed and weighed the whole proof of the case at hand, the
totality of all the facts and circumstances presented before Us, and after
such careful analysis, review and appraisal We find inability to let the mind
rest easy upon the moral certainty of their guilt.

Thus, in People vs. Gallora L-21740, Oct. 30, 1969, 29 SCRA 780, 786,
where the circumstances are in some respects similar to the present case,
the Supreme Court, speaking thru Justice Makalintal said:

The corroborated alibi of appellant; the fact that he did not hesitate to go
with the municipal authorities to the scene of the crime; the failure of the two
material witnesses for the prosecution to identify him when identification
would have been most timely and in accord with natural human reaction the
absence of evidence concerning motivation; and the finding of the telltale
handkerchief in the possession of another person all these circumstances
cannot but cast a grave doubt as to the guilt of appellant.

Indeed, the impartial and unbiased mind is not laid to rest easy upon the
moral certainty of the accused being guilty in the light of the very singular
fact that both accused Luis and Florentino, immediately volunteered to be
blood donors to save the life of the victim. Alfredo. The very evidence of the
prosecution show that both accused joined and rode with other volunteers in
two caretelas to the town and then took a Thames transportation jitney to San
Fernando town at the Lorma Hospital and there, Luis was tested as to the
suitability of his blood type and accordingly, gave 250 cc. of his life blood,
type "B" to the victim which is attested by the certification of the Medical
Technician, Nora Zafra, in Exhibit "1". According to the accused Luis, he
donated blood because Alfredo Buccat was his uncle, the latter being a
second cousin of Luis' father, and he had no misunderstanding with his
uncle.

The trial court's holding that this sacrifice of blood donation made by the
accused Luis Delmendo was possibly a manifestation of remorse on the part
of the accused after their drunken state had subsided, is clearly a distortion
for a drunken person cannot be accepted for blood transfusion or donation.
Likewise, to hold that possibly the accused went with the crowd to the
hospital to hide their responsibility for the crime is purely conjectural and
speculative. The records do not disclose any reasonable basis, not an iota of
proof for such a conclusion arrived at by the court a quo.
As to the P.C. findings in Exhibit "C" that the dorsal portion of both hands of
the accused Luis Delmendo was found positive for gunpowder residue
(nitrates), the same is, to Our mind, satisfactorily explained by the testimony
of Luis who at the time was employed with Filipinos Magnetite Corporation
{FILMAG} and his work was assisting the chemists in assaying or analyzing
iron concentrates and copper ore from the black sands dogged out by
FILMAG, using his hands, sometimes with gloves and other times without
gloves, causing yellowish discoloration on the palm, fingers, fingertips and
dorsal portion of both hands. The work involved the handling and mixing of
chemicals such as ammonium nitrate, potassium nitrate, sodium nitrate and
other reagents The nature of Luis' work as a laboratory technician is
corroborated by his immediate superior, Chemical Engineer Daniel P.Cafuir

That the presence of gunpowder residue (nitrates) on both hands of the

accused Luis do not conclusively prove that he had recently fired a gun is
admitted by the P.C. expert, Col. Minardo Finones who testified also for the
defense. The most significant testimony of Col. Finones is that there is no
difference in size between gunpowder residue and one caused by constant
handling of chemicals (t.s.n., p. 359, March 5, 1970 Hearing) and that the
continued handling of chemicals containing nitrates, potassium nitrate,
sodium nitrate and ammonium nitrate will give characteristic color of blue
specks on a person handling said chemicals (t.s.n., p. 362, March 5, 1970
Hearing); and that one who fired a gun may give a negative result and also
one who did not actually fire a gun is negative for paraffin test because
according to him, "there is a false positive and a false negative. False
negative is when he fired a gun and is negative for paraffin test; and false
positive when he never fired a gun but is positive for paraffin test. Why
because he has been handling some chemicals like potassium nitrate and
ammonium chloride, depending on the extent of contamination. Naturally
when tested with dyphenyl-amin reagents, it will show characteristics of blue
specks, and this is similar to gunpowder burns." (t.s.n., p. 354, March 5,
1970 Hearing)

In resume, where the evidence clearly and convincingly show that (1) the
material witnesses of the prosecution, the widow and son of the deceased
failed to reveal and identify the assailants to the police and P.C. authorities at
the earliest opportunity when they arrived to investigate the shooting soon
thereafter, not even to the police sergeant, a close relative of the aggrieved
family, who followed up the investigation; (2) that the son, reporting to and
seeking help from an uncle living only 10 meters away from the scene of the
crime, did not also disclose the assailants' identities; (3) that both material
witnesses delayed unreasonably for 16 days after the shooting to go to the
police department and make their sworn statement naming the two accused
as the perpetrators; (4) that the circumstances of time (between 7:00 and
8:00 o'clock in the evening), of place (witnesses are under the house in the
ground floor and looking through a small window out to the yard of the house
located in the barrio), and of distance (9 meters away) render accurate
Identification of perpetrators in a sudden and startling occurrence, difficult
and unreliable; (5) the police made no effort to locate and search for the fatal
weapon nor place in the police blotter the names of the suspects; (6) that the
motive shown was flimsy, inoffensive and trivial, hence insufficient; and (7)
both accused volunteered to donate their blood to the victim and in fact, one
gave 250 cc. of his blood, type "B " to save him the guilt of the two accused
has not been proven beyond reasonable doubt, thus they are entitled to
acquittal of the crime charged.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is

hereby REVERSED and SET ASIDE. The two accused are hereby
ACQUITTED and they are ordered released and set free immediately, unless
they are otherwise detained for some other lawful cause.

SO ORDERED.

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