Kulang-digests-march-9.docx

PEOPLE OF THE PHILIPPINES vs. JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAÑO, MANUEL "JUN" ABENOJA, JR., and FREDDIE "BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN G.R. No. 110290 January 25, 1995 *this case appeared twice under R130 Sec26 Admissions of a Party and R130 Sec33 so I included the discussion on both doctrines

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FACTS: In 5 separate informations filed on May 1987 with the Baguio City RTC, the accused were charged with murder, frustrated murder and attempted murder. The crimes were allegedly committed on September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta. Only Agustin and Wilfredo Quiaño were arrested. However, Quiaño escaped so the cases proceeded only against Agustin. RTC decision: acquitting the Agustin in frustrated murder case and attempted murder for insufficiency of evidence but convicting him in the two murder cases, with treachery as the qualifying circumstance. PROSECUTION: -

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At past 7:30 p.m. of 6 September 1986 in Baguio City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car. While they were cruising along Malvar Street and nearing the Baptist church, a man came out from the right side of a car parked about two meters to the church. The man approached the Brasilia, aimed his armalite rifle through its window, and fired at the passengers. The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car which then sped away. All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown off. Dominic was able to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and told her what had happened. Later, she and her mother brought her father and Anthony to the hospital. Danny Ancheta went home and was then brought to the Notre Dame Hospital for treatment. Anna Theresa Francisco was brought to the funeral parlor. The police later arrived at the crime scene and conducted an investigation. they recovered some empty shells of an armalite rifle. On 30 January 1987, accused Wilfredo "Sonny" Quiaño, an alleged former military agent or "asset" who had been picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy."

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During the investigation, Wilfredo Quiaño was assisted by Atty. Reynaldo Cajucom, a representative of the Integrated bar of the Philippines (IBP). Ms. Christie Napeñas, a stenographic notes of the proceedings during the investigation. 10 Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo Quiaño which he signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia. Appellant Agustin, was picked up in Sto. Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was taken to the office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo Cajucom assisted the appellant during the investigation. Ms. Christie Napeñas took down stenographic notes of the proceedings during the investigation. The stenographic notes consisted of 22 pages, each of which was signed afterwards by the appellant and Atty. Cajucom. Ms. Napeñas subsequently transcribed these notes which the prosecution marked as Exhibit "C." He identified Quiaño as "Sony," the triggerman.

DEFENSE: -

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presented the appellant Agustin and his wife, Elizabeth Agustin. appellant, who is a farmer and whose highest educational attainment was grad four, impugned the validity of his extrajudicial statement. alleged that in the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he was met by two armed men who took him to their car where two other companions, armed with armalites, were waiting. They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City. Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the shooting, which he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City. While he was giving his statement at the fical's office, the armed men stayed with him and their presence deterred him from telling the investigating fiscal that he was being threatened. He further declared that although he was given a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but not in Ilocano, the dialect he understands. Finally, he asserted that he was promised by his captors that he would be discharged as a state witness if he cooperates, but the plan did not push through because his co-accused, Quiaño, escaped. Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally learned that he was detained at Camp Dangwa.

TRIAL COURT: admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force, intimidation, and other irregularities because of

the following reasons: (mainly improbabilities, singed each and every page of steno notes etc.)

discuss nitong shit) because Par. 3 thereof expressly refers to both confession and admission.

The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime," and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan," and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he was not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court was established by the prosecution's evidence, it found his conviction for murder inevitable.

X x x (1) the right to counsel means not just any counsel, but a "competent and independent counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and in the presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions. X x x

ISSUE: W/N trial court erred in considering Agustin’s extrajudicial confession as admissible evidence against him? YES Argument: -

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argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice but was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty. Arthur Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover, when Atty. Cajucom briefly conferred with him and when the city Fiscal interrogated him, his military escorts were present. his extrajudicial confession is in violation of consti rights and inadmissible and his conviction cannot stand, there being no other evidence linking him to the crimes charged.

HELD: The extrajudicial admission — not extrajudicial confession — of the appellant, which is the only evidence of the prosecution linking him to the commission of the crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution. *take note first that contrary to the pronouncement of the trial court and the characterization given by the appellant himself, the assailed extrajudicial statement is not extrajudicial confession. It is only an extrajudicial admission. In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged.

AS TO THE ISSUE ON COUNSEL: In Morales vs. Enrile: The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory of inculpatory, in whole or in part, shall be inadmissible in evidence. We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok, 23 People vs. Albofera, 24 People vs. Marquez, 25 People vs. Penillos, 26 and People vs. Basay, 27 among other cases. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the assistance of counsel. That counsel must be a lawyer. The waiver of the right to counsel must be voluntary, knowing, and intelligent. Consequently, even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given.

Confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, and admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt.

AS TO THE EXTRAJUDICIAL ADMISSION:

Nothing in the extrajudicial statement of the indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt.

On the other hand, the same stenographic reporter, who took down the stenographic notes when accused Wilfredo Quiaño was being investigated by City Fiscal Balajadia, transcribed the notes, and the transcription 34 was subscribed and sworn to by the accused before City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation.

Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12, Article III of the Constitution, the distinction is irrelevant (so bakit pa nag

The extrajudicial admission of the appellant, contained in twenty-two pages of yellow pad, does, indeed, appear to be signed by him and Atty. Reynaldo Cajucom. These were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the records, the transcript of the notes, which consists of twelve pages, was not signed by the appellant since it does not indicate any jurat.

Since we cannot even read or decipher the stenographic notes in the yellow pads, we cannot expect the appellant, who is a farmer and who reached only the fourth grade, to read or decipher its contents. Firstly, he was not fully and properly informed of his rights. It is at once observed that the appellant was not explicitly told of his right to have a competent and independent counsel of his choice, specifically asked if he had in mind any such counsel and, if so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted by one to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no other independent evidence was offered to prove its existence. Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City fiscal at the time the appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as shown in the abovequoted portion of Exhibit "C," the city fiscal immediately suggested the availability of Atty. Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether he could hire such counsel; and if he could not, whether he would simply exercise his right to remain silent and to counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City fiscal, through suggestive language, immediately informed him that Atty. Cajucom was ready to assist him. While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may reject the counsel chosen for him by the investigator and ask for another one, the circumstances obtaining in the custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the other hand, the city Fiscal clearly suggested the availability of Atty. Cajucom. Also the presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him, was like a Damocles sword which vitiated his free will. Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the appellant and that no injustice be committed to him, and, moreover, he generally has in his favor the presumption of regularity in the performance of his duties, there are special circumstances in these cases which convince us that he was unable to assist the appellant in a satisfactory manner. For one, he admitted on crossexamination that at that time, and even until the time he took the witness stand, he

was an associate of the private prosecutor, Atty. Arthur Galace, in these and the companion cases. Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and Tagalog. OTHERS: Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on February 1987 by military men in Pangasinan without a warrant for his arrest. Since the crimes with which the appellant was charged were allegedly committed on September 1986 or more than five months earlier, no arrest without a warrant could have been legally and validly effected. a warrantless arrest should comply with the conditions prescribed in Section 5, rule 113 of the Rules of Court. Said section provides: Sec. 5. Arrest without warrant when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. None of these exceptional circumstances were present at the time the appellant was arrested on February 1987. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards stacked against him. Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which links him to the crimes of which he was convicted, he must then be acquitted.

PEOPLE OF THE PHILIPPINES vs. RAMON CHUA UY G.R. No. 128046, March 7, 2000 -

FACTS: Ramon Chua Uy was arrested in the evening of 11 September 1995 by the elements of the Anti-Narcotics Unit of the Philippine National Police in Malabon, Metro-Manila, in the course of a buy-bust operation3 and a follow-up search of his residence, and was subsequently charged in three cases. The accusatory portion of the Information4 in 1st crim case alleges: Chua sold and delivered for and in consideration of the amount of P5,000.00 to SPO1 Alberto Nepomuceno, Jr. who acted as poseur buyer white crystalline substance contained in a sealed plastic bag with markings with net weight of 5.8564 grams which substance when subjected to chemistry examination gave positive results for Methamphetamine Hydrochloride otherwise known as "Shabu" which is a regulated drug.

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2nd crim case: have in his possession, custody and control white crystalline substance separately contained in five (5) sealed plastic bags of shabu

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3rd crim case: RAMON was charged with the illegal possession of "traces" of shabu found on three (3) plastic scoops and other drug paraphernalia which were seized from his supposed residence in a follow-up search.

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PROSECUTION: -

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At around 5:00 o'clock in the afternoon of September 11, 1995, a female confidential informant personally informed the members of the AntiNarcotics Unit of the Malabon Police Station, that accused Ramon Chua Uy "alias Chekwa" had asked her to look for a buyer of shabu at a price of P1,000.00 per gram. Acting on the given information, the members of the unit subsequently planned a buy-bust operation against the accused. SPO4 Eddie Regalado instructed the confidential informant to consum[m]ate a deal with the accused by telling him that a prospective buyer is willing to purchase five (5) grams of the illicit drug to be delivered in front of the Justice Hall of Malabon located along Sanciangco Street, Barangay Catmon. At 6:30 p.m., the confidential informant called up and informed the police officers that accused Chua Uy already agreed on the transaction as well as to the place of delivery. P/Insp. Ricardo Aquino, Chief of the Narcotics Unit, at once formed the buybust team composed of SPO4 Federico Ortiz and PO1 Joel Borda. After securing five (5) P1,000.00-peso bills to be used in the operation from P/Inp. Aquino, SPO4 Regalado have (sic) them photocopied, after which, [he] affixed his signatures (sic) on each of the xerox copies although the serial number of the bills were previously recorded. The group then proceeded to Barangay Catmon at about 7:00 p.m., with SPO1 Nepomuceno designated to act as the poseur buyer. When they reached the place, SPO1 Nepomuceno first went to a store near the tennis court while the rest of the team positioned themselves in strategic locations. At 8:20 of the same evening, SPO1 Nepomuceno saw a white Toyota car came to a stop. Their confidential informant immediately stepped out of the

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car and approached SPO1 Nepomuceno and ordered him to board the vehicle. Once inside, SPO1 Nepomuceno caught sight of the driver and the other male companion of accused Chua Uy through the back seat where he and the accused together with the confidential informant were seated. After a few minutes conversation, accused Chua Uy opened up his brown attaché case and ensuingly handed over to SPO1 Nepomuceno five (5) grams of 'shabu' placed in a transparent plastic packet. In exchange for the substance, SPO1 Nepomuceno delivered the five (5) P1,000-peso bills which accused Chua Uy put in his right front pocket. SPO1 Nepomuceno then simply opened the rear right door of the car and lighted a cigarette as pre-arranged signal. SPO4 Regalado and PO3 Ortiz consequently closed in on the vehicle. Thereupon, SPO1 Nepomuceno introduced himself and informed the accused of his constitutional rights before placing him under arrest. He later turned over to SPO1 Regalado the five (5) grams of 'shabu' Thereafter, SPO4 Regalado and PO3 Ortiz seized the brown attaché case from accused Chua Uy which yielded five (5) more plastic packets of "shabu,", along with several drug paraphernalia. SPO4 Regalado likewise recovered the buy-bust money from the accused after the consumated (sic) transaction. The one packet of suspected "shabu" which was the subject of the sale including the five (5) packets of the same substance, taken from the brown attaché case, bearing the respective initials of SPO4 Regalado and SPO1 Nepomuceno were brought to the NBI Forensic Division. Laboratory examination of the pieces of evidence shows positive result for methamphetamine hydrochloride, a regulated drug. The team brought accused Chua Uy to their office where he was referred to SPO2 Vicente Mandac for proper investigation. In the course thereof, it was learned that there were still undetermined quantity of shabu left at the residence of the accused at No. 402 Gen. Vicente St., San Rafael Village, Navotas, Metro Manila. Forthwith, SPO4 Regalado applied on the following day for a search warrant before this Court to lawfully search the said premises of the accused for shabu. During the search and in the presence of Bgy. Kagawad George So and Rodolfo Salvador including Maritess Puno, the alleged owner of the house and live-in partner of accused Chua Uy, the team was able to confiscate assorted articles intended for the repacking of the regulated drug. SPO1 Nepomuceno identified them as follows: one (1) white plastic scoop; one (1) blue plastic scoop; one (1) tangerine plastic scoop; one (1) Selecta ice cream cup; and one (1) white plastic container. All the items were marked by SPO1 Nepomuceno with his initials "AGN." Along with the aforesaid articles were three (3) pieces of plastic scoops and two (2) plastic glasses (sic) with traces of "shabu." SPO4 Eddie Regalado corroborated the testimony of SPO Nepomuceno, claiming that he was positioned fifteen (15) to twenty (20) meters away when he saw SPO1 Nepomuceno entered the white Toyota car at the time of the operation. He further went to say that a caliber 9mm pistol was also recovered from accused Chua Uy but considering that up to now they have not received any certification from the Firearms and Explosives Unit, showing

whether accused is authorized to carry firearm, no case has yet been filed against the latter. Further, SPO4 Regalado said that accused Chua Uy has admitted to him that he is just a neophyte in the illegal trade.8

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RAMON’s version: -

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the quantity of the illicit drug allegedly seized from him were merely "planted" by the police officers. he has been in the business of manufacturing t-shirts and selling them in different places for almost fifteen (15) years already. That on the date of the incident at issue, it took him up to 7:30 to 8:30 in the evening to return home because he had made deliveries and had collected bigger amount of money. On board his L300 delivery van together with his driver and while they were about to enter the house, he saw a white Toyota Corolla car parked in front of the gate. A man, whom he identified as a certain Arnold, alighted from the car and approached them. Arnold was offering the said car for sale to him at a cheaper price but he declined the offer inasmuch as he already owns a van. Due to the persistence of Arnold, he agreed to test drive the vehicle bringing along with him his attache case containing the day's collection. With Arnold on the wheel, they traversed the interior alley of Dela Cruz then came out at M.H. del Pilar and proceeded to J. Alex Compound before turning to Gov. Pascual Ave., on their way back to his house. At the junction of Justice Hall Street and Gov. Pascual Ave., somebody blocked their car. Arnold lowered his side window and inquired what was it all about. Although he did not quite understand the conversation, he overheard that it was a "police bakal." When Arnold informed him that they will have to go along with the man to the police headquarters, two other men boarded their car while an owner jeep followed them from behind. Reaching the headquarters, Arnold and the two men went inside while he was left behind inside the car. Soon after, one of the two returned to him and insisted in getting his attache case. He refused at first to surrender the same but had to give up on account of the persistence exerted on him. Ten minutes later, a man ordered him to go inside the headquarters and likewise asked him why there was "shabu" in his attache case. He denied owning the "shabu" and tried to look for Arnold who was no longer around. He even inquired how his attache case was opened considering that the key was still with him. Finally, he was dragged inside the headquarters where he saw his attache case already thrown wide. He again reiterated his earlier query and tried to look for his money but instead he was informed about the "shabu" found inside his attache case which he, nonetheless, denied ownership. The man who earlier stopped them and those inside the headquarters, who were forcing him to admit ownership of the "shabu" told him that they were policemen. Furthermore, he recalls that aside from some documents, list of collections, checks, check booklets and 9 mm pistol, his attache case contained P132,000.00 which he was able to collect from different persons. Only a bundle consisting of P20.00 peso bills was left while the rest of his money comprising of bundles of P10, P20, P100, P500 and P1,000 peso bills were already missing.

Maritess Puno, the other defense witness, testified on the events which transpired during the follow-up search by the police of RAMON's suspected house at No. 402 Gen. Vicente Street, San Rafael Village, Navotas, and on the fact that she knew RAMON. 1

TRIAL COURT: -

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found credible the testimonies of the witnesses for the prosecution and its evidence to have established beyond reasonable doubt the culpability of RAMON in the 1st and 2nd crim cases. But for the 3rd crim case (illegal possession of "traces" of shabu found on three (3) plastic scoops and other drug paraphernalia which were seized from his supposed residence in a follow-up search ) RAMON CHUA UY is hereby ACQUITTED for lack of sufficient evidence. gave credence to the prosecution's story of a legitimate buy-bust operation of planning" the buy-bust operation. The presumption that Unsatisfied, RAMON appealed from the decision.

ISSUE: W/N trial court erred (1) in giving credence to the testimony of the prosecution witnesses and in disregarding the evidence for the defense; and (2) in finding him guilty beyond reasonable doubt of the crimes of drug pushing and drug possession. – no and no HELD: No merit in this appeal. FIRSTLY, A buy-bust operation is a form of entrapment whereby ways and means are resorted for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan; it is a procedure or operation sanctioned by law and which has consistently proved itself to be an effective method of apprehending drug peddlers, and unless there is a clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimony on the operation deserved full faith and credit. As has been repeatedly held, credence shall be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary; moreover in the absence of proof of motive to falsely impute such a serious crime against appellant, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over appellant's self-serving and uncorroborated claim of having been framed. We, of course, are aware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. But the defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the law enforcement agencies acted in the regular performance of their official duties. Such is also a standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act. There is also no basis to overturn the trial court's findings on witness credibility. We are convinced that in the evening of 11 September 1995, an honest- to- goodness entrapment operation against RAMON was conducted by the team. As to the price of P1,000 per gram of shabu paid by the "poseur-buyer" Nepomuceno to RAMON cannot be considered "so exhorbitant" as to render the account of the buy-

bust improbable. In fact, in a buy-bust operation conducted by the policemen in Sampaloc, a month earlier, P500 only fetched 0.395 gram of shabu, 25 which meant that the selling price then was already more than P1,000 for a full gram of shabu. As to the buy-bust money, Nepomuceno categorically stated that after receiving the information from their informant, Police Inspector Ricardo Aquino, Chief of the AntiNarcotic Unit, formed a team to conduct a buy-bust operation "and prepared marked money worth P5,000 in P1,000 denomination and instructed [him] to act as poseur buyer in the operation." They photocopied (xeroxed) them and "got the serial numbers." After the operation, they submitted them to the prosecutor's office. Nepomuceno underwent grueling cross-examination by defense counsel but he never wavered on his testimony on the conduct of the buy-bust operation. On cross-examination, Nepomuceno revealed that the source of their buy-bust money is Mayor Amado S. Vicencio. As to the failure to present the informer, it did not diminish the integrity of the testimony of the witnesses for the prosecution. Informers are almost always never presented in court because of the need to preserve their invaluable service to the police. Their testimony or identity may be dispensed with since his or her narration would be merely corroborative, as in this case, when the poseur- buyer himself testified on the sale of the illegal drug. On the other hand, RAMON only offered an unsubstantiated tale of frame-up. He did not even present his own driver named "Lolong" to corroborate his tale. As against the positive testimonies of the prosecution witnesses that they caught RAMON in a buy-bust operation, supported by other evidence such as the packets of shabu sold by and seized from him, RAMON's negative testimony must necessarily fail. An affirmative testimony is far stronger than a negative testimony, especially when it comes from the mouth of credible witness. Since RAMON was caught in flagrante selling shabu, the trial court correctly ruled that his warrantless arrest and the seizure of his attache case containing more shabu was also valid and lawful. We now address RAMON's contention that since the NBI Forensic Chemist did not testify, his findings that the specimens submitted to him were indeed shabu and weighed so much, are hearsay and leave the evidence of the prosecution insufficient to convict. RAMON's premise is that at the pre-trial he did not waive the Forensic Chemist's testimony but only "stipulated on the markings of the prosecution's evidence." Indeed, the records disclose that during the pre-trial, conducted immediately after the arraignment, RAMON, duly represented by counsel de parte Atty. Gerardo Alberto, and the prosecution stipulated on the markings of the prosecution's exhibits, and agreed to dispense with the testimony of Forensic Chemist Loreto F. Bravo. It may at once be noted that neither RAMON nor his counsel made express admission that the contents of the plastic bags to "be marked" as Exhibits "D," "D-1," "D-2," "D3," "D-4," and "E" contain shabu. That RAMON agreed to dispense with the testimony of Forensic Chemist Bravo may not be considered an admission of the findings of Bravo on the contents of the plastic bag. Strictly, from the tenor of the Joint Order, it is clear that RAMON and his counsel merely agreed to the marking of the exhibits, and the clause "thereby dispensing with the

testimony of forensic Chemist Loreto E. Bravo" must be understood in that context. Even granting for the sake of argument that RAMON admitted during the pre-trial that Exhibits "D" to "D-4," inclusive, and Exhibit "E" contained shabu, the admission cannot be used in evidence against him because the Joint Order was not signed by RAMON and his counsel. Section 4 of Rule 118 of the Rules of Court expressly provides: Sec. 40. Pre-trial agreements must be signed. No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed and his counsel. Put in another way, to bind the accused the pre-trial order must be signed not only by him but his counsel as well. The purpose of this requirement is to further safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge, as he may have waived his presence at the pre-trial conference; eliminate any doubt on the conformity of the accused to the facts agreed upon. Nevertheless, RAMON cannot take advantage of the absence of his and his counsel's signatures on the pre-trial order. When the prosecution formally offered in evidence what it had marked in evidence during the pre-trial, RAMON did not object to the admission of Bravo's Preliminary Report (Exh. "B"), Final Report (Exh. "C"), another Final Report (Exh. "F"), and of the plastic bags (Exhibits "D" to "D-4" inclusive, and "E"). When asked to comment on the exhibits formally offered, RAMON's counsel merely stated: ATTY. DOMINGO: No objection to these exhibits Your Honor only insofar as to form part of the testimony of the witness/es who testified and identified said exhibits and only insofar or in accordance with the stipulations the prosecution and the defense had entered into during the pre-trial stage of the proceedings. In its offer of the exhibits, the prosecution explicitly described what the foregoing exhibits was and the purposes for which they were offered, thus: FISCAL ALIPOSA: We are now offering in evidence the following: Exhibit "A", is the letter-request; Exhibit "B", the preliminary report; Exhibit "B-1", signature of the forensic chemist; Exhibit "C", final report of Crim. Case Nos. 16199-MN and 16200-MN; Exhibit "C-1", the signature of forensic chemist; These exhibits are being offered to establish the fact that after the apprehension of the accused, the necessary request was prepared and findings in the preliminary and final reports are both positive for shabu or methamphetamine hydrochloride.

Exhibits "D", "D-1", "D-2", "D-3", and "D-4", are plastic packs of shabu found inside the attache case opened while inside the vehicle of the accused together with the prosecution witness in the course of the buy-bust operation; Exhibit "E" is the 5.84 grams of shabu which was the subject of the buy-bust operation; Exhibit "F" and "F-1", final report and signature of the forensic chemist in Crim. Case No. 16201-MN, showing the specimen examined to be positive for shabu; xxx

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We likewise offered these exhibits as part of the testimony of the witness or witnesses who testified thereon Your Honor. In addition to the foregoing admission by RAMON of the prosecution's exhibits, he likewise never raised in issue before the trial court the non-presentation of Forensic Chemist Bravo. RAMON cannot now raise it for the first time on appeal. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. In People v. Dela Cruz: "every objections to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the ground for objection shall have become apparent, otherwise the objection shall be considered waived. Finally, as to the reports of Forensic Chemist Bravo, it must be stressed that as an NBI Forensic Chemist, Bravo is a public officer, and his report carries the presumption of regularity in the performance of his function and duty. Besides, by virtue of Section 44, Rule 130, entries in official records made in the performance of office duty, as in the case of the reports of Bravo, are prima facie evidence of the facts therein stated.

PEOPLE OF THE PHILIPPINES vs. ALBERTO LASE, alias "BERT" G.R. No. 97957 March 5, 1993 FACTS:

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(2) days after the killing of Dante Huelva, a criminal complaint for murder was filed by the Acting Station Commander of the Integrated National Police (INP) of Dimasalang, Masbate with the 5th (MCTC) at Dimasalang, Masbate against Lase. The Judge presiding over the said court asked both Ramon Sayson, who was Dante's companion when the incident occurred, and Godofreda Huelva, Dante's mother, searching questions. The court then issued a warrant for the arrest of the accusedappellant Lase and fixed the bail bond for his temporary liberty at P30,000.00. Lase was arrested on 20 May 1987 and was released the following day after posting the required bond. Having failed to submit his counter-affidavit for purposes of the preliminary investigation, the MCTC considered him as having waived the second stage of the preliminary investigation and ordered the records of the case forwarded to the Office of the Provincial Fiscal of Masbate. Accused-appellant then sought a reinvestigation of the case; this request was consequently granted. 2nd Assistant Provincial Fiscal Jesus C. Castillo issued a resolution, duly approved by Provincial Fiscal Hermenigildo Betonio, Jr., dismissing the case for insufficiency of evidence and directing the police authorities to investigate further and gather more evidence to ferret out the real perpetrator. During the said reinvestigation, Ramon Sayson testified for the prosecution. On appeal to the DOJ by the offended party, however, the abovecited resolution was reversed by the then Secretary of Justice and so the Provincial Fiscal was directed to file an information for murder against accused-appellant. November 1988, the Office of the Provincial Fiscal filed with the Regional Trial Court (RTC) of Masbate an Information charging the accused-appellant with the crime of murder. PROSECUTION: -

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On May 18, 1987, at about 6:30 o'clock in the evening, Domingo Pangantihon was on his way home from Piaong, Dimasalang, Masbate, when appellant Alberto Lase and Ramon Sayson passed him by. At that moment, Dante Huelva was about six meters ahead of them and was urinating by the roadside. Appellant proceeded directly to the back of Dante Huelva and without any warning stabbed him once with a 7-inch long Batangas knife in the stomach. Afterwards, appellant ran away. Dante Huelva shouted for help. Ramon Sayson came to his rescue and brought him towards the Poblacion. Meanwhile, Godofreda Huelva, mother of the victim Dante Huelva, was on her way home to Piaong, Dimasalang, Masbate, at about 7:00 o'clock in the evening of May 18, 1987, coming from her daughter's house in Canomay, Dimasalang, Masbate, when she met Eliza Cortes who informed her that her son Dante was stabbed.

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She proceeded to the Dr. Alino's Hospital and found out that Dante was already dead. The following morning, Ramon Sayson told her that it was appellant Alberto Lase who stabbed Dante. The stabbing of Dante Huelva was reported to the Integrated National Police (INP) of Dimasalang, Masbate, on the same night of the incident. The following morning, Police Cpl. Carlos Mitra of the Dimasalang INP conducted an investigation of said stabbing incident. He investigated Ramon Sayson who disclosed that appellant was the assailant of Dante Huelva and readily identified and pointed to appellant among the persons presented in a police line-up. Ramon Sayson executed a sworn statement. The blood-stained pants of Dante Huelva and the hole thereon were likewise identified. The autopsy conducted on the body of Dante Huelva by Dr. Ernesto Tamayo revealed cause of death and further testified that the wounds sustained by the victim were caused by a sharp pointed instrument

In her rebuttal testimony, Godofreda Huelva testified that accused-appellant offered to settle the case for the sum of P10,000.00. DEFENSE (ACCUSED): -

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interposed the defense of alibi that on May 18, 1987, at around 5:30 in the afternoon, he was with Miguel Andueza at the house of Kagawad Marcelo Tamayo. They waited for Artemio Andueza who was then drunk. At around 7:00, in the evening, they were fetched by Mrs. Andueza who informed them that something happened in Piaong. On their way home, they passed by the clinic to visit Dante Huelva. He saw Juan Huelva and the policeman at the clinic. The barangay captain talked to the policeman. Dante Huelva was already dead when they arrived. The charges levelled against him is (sic) not true. In fact, after preliminary investigation by the fiscal, the case against him was dismissed. The reason why he was implicated in this case was because Ramon Sayson told the policeman that Dante Huelva's assailant was tall and that victim's (sic) parents wanted to be paid for the death of the victim.

In his surrebuttal testimony, accused-appellant vaguely denied this offer of compromise. He, however, insinuated that he could offer a higher amount: The defense also sought to discredit the testimony of Dominico Pangantihon because it was months after the incident, and only after Ramon Sayson failed to testify, that he decided to come out and testify as an alleged eyewitness to the killing. The trial court gave full credit to the version of the prosecution and disregarded the defense of alibi in view of the positive identification of the accused-appellant and the possibility of his being at the scene of the crime at the time of its commission. Hence this appeal. ISSUE: W/N trial court erred in assessing the credibility of the prosecution witnesses and if his guilt was proven beyond reasonable doubt? HELD: No and No.

Lase unleashes the force of his arguments against the credibility of prosecution witnesses Dominico Pangantihon, who belatedly came out in the open as a witness to the incident, and Police Corporal Carlos Mitra. Lase argues that while it may be true that in a long line of cases this Court "had enunciated the credibility of the testimony of a witness who had incurred delay in reporting the crime he witnesses, it had also nevertheless ruled that: the silence of an alleged eyewitness for several weeks renders his credibility doubtful . . . The long delay in reporting the crime or its author to the authorities not caused by threat, intimidation or coercion, renders the testimony untruthful. (People vs. Besa, 183 SCRA 533). He then avers that in the instant case, the testimony of Dominico Pangantihon could not be believed because the delay of the latter in reporting the incident was not caused by threat, intimidation or coercion, but by his own fear of being implicated. Such reasoning is alleged to be unacceptable because being a barangay official (councilman) at that time, it was his duty and responsibility to report the crime. As a matter of fact, he should have apprehended the assailant who was alone at the time of the attack. As to P/Cpl. Mitra, accused-appellant claims that said witness "incurred various glaring material inconsistencies which render his testimony doubtful and unreliable." Additionally, accused-appellant suggests that the testimonies of prosecution witnesses Dr. Tamayo and Godofreda Huelva are likewise unreliable. *also no related masyado but in his third assigned error, Lase insists that the qualifying circumstance of treachery is not alleged in the information filed by the prosecution. Moreover, nocturnity, even if considered as absorbed in treachery, was not present in this case. OSG: refutes the arguments of the accused-appellant and maintains that the latter's guilt has been proven beyond reasonable doubt; however, it agrees with the accusedappellant's observation that treachery was not alleged in the information and that nighttime was not purposely and deliberately sought. The lower court's findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal absent any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could have affected the result of the case. The exception to the foregoing settled doctrine has not been shown to exist in this case. The failure of prosecution witness Dominico Pangantihon to immediately report the incident certainly did not detract from his credibility. While it was his duty as a barangay official to have assumed the responsibility of reporting the incident, come to the succor of the victim or even run after and arrest the assailant, it is a sad reality that not all in our society, including many of our public officials, are imbued with the highest sense of civic duty which is necessarily expected of leaders in the community. Such indifference or apathy should not, however, cast any shadow of doubt on or impair the credibility of a person who fails to report a crime or immediately come forward to testify. The initial reluctance of witnesses in this country to volunteer information about a criminal case or their unwillingness to be involved in or dragged into criminal investigations is common. Delay in itself is, therefore, not enough. It would, of course, be entirely different if it clearly appears to the trial court that the witness

himself is not credible for the rule is settled that evidence, to be believed, must not only proceed from a credible witness but must also be credible in itself. Respect should not likewise be accorded to such testimony if there is proof that the said witness is influenced by improper or ulterior motives in so volunteering to testify for the victim sometime after the occurrence of the incident. The trial court, after observing the demeanor and deportment of said witness, together with the variations in his expressions while on the witness stand — which are badges of truthfulness — concluded that both he and his testimony are credible. Lase presents no factual bases or strong arguments to convince Us that the trial court erred in that regard. Nor has he shown any improper motive which could have impelled Dominico to testify against him or implicate him in the commission of the crime. The absence of evidence as to an improper motive strongly tends to sustain the conclusion that none existed, and that the testimony is worthy of full faith and credit. For indeed, if an accused had nothing to do with the crime, it would be against the natural order of events and of human nature and against the presumption of good faith for a prosecution witness to falsely testify against the accused. The alleged contradictions or inconsistencies in the testimony of Cpl. Mitra relate to minor, if not inconsequential, matters. The rule is settled that minor inconsistencies do not affect the credibility of witnesses; on the contrary, they may even heighten their credibility. MAIN: Then too, accused-appellant offered to compromise the case for the sum of P10,000.00. The second paragraph of Section 27, Rule 130 of the Revised Rules of Court expressly provides that: In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. Murder is not among those criminal cases which may be compromised. As regards the third assigned error, it is clear that both the accused-appellant and the OSG may not have carefully read the Information filed in this case. Contrary to their claims, the Information does allege treachery. More specifically, it states: ". . . the said accused, with intent to kill, evident premeditation, treachery and taking advantage of nighttime, did then and there . . . . " The trial court likewise missed the word treachery when it quoted the Information in its decision. Interestingly, the criminal complaint filed on 20 May 1987 by the INP Acting Station Commander of Dimasalang with the MCTC mentions only treachery as a qualifying circumstance. In all likelihood, either both the accused-appellant and the Office of the Solicitor General merely relied on the Information as quoted in the decision and in the Appellant's Brief, or that the latter merely relied on its representation in the Appellee's Brief to the effect that the Information does not allege the qualifying circumstance of treachery. In this regard, the Office of the Solicitor General failed to exercise due care in the preparation of the Appellee's Brief, while the counsel for accused-appellant unjustly took advantage of the inadvertence committed by the trial court.

We agree with the trial court that the crime was committed with treachery because of the sudden and unexpected attack on the victim, who was then urinating at the side of the road, with a deadly 7-inch Batangas knife. Lase consciously adopted this mode of attack to facilitate or insure the commission of the crime without risk to himself arising from any defensive or retaliatory act on the part of the victim. We likewise agree with the conclusion of both the accused-appellant and the Office of the Solicitor General that evident premeditation was not duly established by the prosecution.

PEOPLE OF THE PHILIPPINES vs. VEVINA BUEMIO G.R. Nos. 11401122. December 16, 1996 FACTS: Sometime in September, 1991, Cecilia Baas, a clerical employee at the Villamor Air Base in Pasay City, learned from Catalina Asis that Vevina Buemio could send job applicants abroad for employment. They met several times and Vevina promised to provide Cecilia with a job as a factory worker in Japan with a minimum salary of 10,000 yen a day. Vevina also promised to provide Cecilia with all the necessary travel documents in exchange of P60,000.00 as placement fee and for the expenses in the processing of travel documents. Cecilia believed Vevina because the latter was the wife of an official at the Villamor Air Base. P30,000.00 was paid representing half of the fees agreed upon. Cecilia paid the second half of the fees at Vevinas residence. In both instances, Vevina issued receipts acknowledging Cecilias payments. At the airport on the day when Cecilia, Marilou Gonzales, Rafael Andres and Armando Garcia were supposed to leave for Japan, Vevina handed them their pasports and tickets. To their surprise, they found out that they were bound for Korea, not Japan. Vevina explained to them that she would be following them in Korea where they would be getting their plane tickets for Japan. When Cecilia noticed that the name appearing on the passport given her was that of Pacita Garcia, Vevina told her that she could use other names in her passport like other people do. Convinced by Vevinas explanations, the group took off for Korea. Vevina informed them later that the plane tickets to Japan were expensive in Korea. She proposed that she herself would proceed to Japan where she would buy their tickets. She left for Japan with Lito Camora and Sergio Andres who had complete tickets. However, Vevina came back to Korea without the groups tickets. Instead, she advised them to go back to the Philippines using their round-trip tickets. Believing Vevina's promise that she could still send them to Japan without any expense on their part, the group left for the Philippines on October 16, 1991 with Vevina staying behind in Korea. Since Vevinas arrival in the Philippines on October 22, 1991, Vevina promised to return their money but when she failed to do so, they filed their respective complaints before the National Bureau of Investigation (NBI). It was sometime in October, 1991 that, the same situation happened to Elisio Principe, Ramon Villanueva and Eduardo Gutierrez. Because Vevina was leaving for Korea, she instructed each of the three to give P1,500.00 to one Jenny who would secure their passports. The three obliged but only Principe and Gutierrez were given their passports. When Vevina arrived from Korea, she advised Villanueva to secure his passport himself as there were some problems. Villanueva did as instructed and personally secured his passport. The three were then made to sign application forms for Korean visas upon Vevinas guarantee that the onward visa from Korea was necessary for them to reach Japan. Unfortunately, the Korean Embassy denied their visa applications.

On October 24, 1991, Principe, together with Gutierrez and Villanueva, their respective wives and Elsa Sta. Ana, went to Vevinas house and handed her P90,000.00 representing half of the placement fee agreed upon. The balance would be given to Vevina before their departure for Japan. Vevina then signed a typewritten receipt. After a week had gone by without a word from Vevina, Principe, Villanueva and Gutierrez went to her residence to inquire. Vevina told them that the money they had given her was insufficient and that she needed P50,000.00 more. Since they did not have that amount with them, the three agreed to deliver it to Vevina at Villanuevas residence that evening, then receipt was handwritten. A travel tax amounting P10,000.00 was again asked and paid. Having failed to get their money back, the three reported the matter to the NBI where they were instructed to verify from the Philippine Overseas Employment Administration (POEA) whether Vevina was authorized to recruit job applicants for abroad. The POEA accordingly issued a certification dated June 11, 1992 stating that VEVINA BUEMIO, in her personal capacity was neither licensed nor authorized x x x to recruit workers for overseas employment from Jan., 1991 to the present. Vevina was apprehended by NBI agents on January 27, 1992. Two days later, an information for illegal recruitment, docketed as Crim. Case No. 92-0129, was filed against her in the Regional Trial court in Pasay City for falsely representing and alleging that she could secure employments as factory workers abroad. On the same day, eleven (11) informations for estafa were likewise filed in the same court against Vevina for having allegedly defrauded the victims. On February 11, 1992, the following amended information for illegal recruitment: “ did then and there wilfully, unlawfully and feloniously recruit for a fee aforesaid persons without corresponding license from the Department of Labor and Employment. The number of complainants, however, diminished when some of them executed affidavits of desistance upon the common allegation that Vevina did not promise them employment abroad but merely assisted in the processing of their travel papers. DEFENSE: -

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Vevina swore that during the first week of October, 1991 when she was in Korea, Principe, Villanueva and Gutierrez went to her residence in Villamor Air Base requesting for assistance in going to Japan. Jennilyn, her friend who ran errands for her, accompanied the three who had learned from a certain Baltazar, Vevinas former client, that Vevina could help them because of her job as the field officer of the Continental Tour and Travel Agency. From the telephone conversation with her husband and Jennilyn, she learned that the three had relatives in Japan who could provide them employment in that country. The day after Vevina arrived from Korea on October 23, 1991, Principe told her by phone that he and his companions would be arriving at her residence at 6:00 p.m. Since she told them that she had an appointment at 10:30

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p.m., that day being her husbands birthday, Principe told her that they would be coming to her place instead at 12:00 midnight. The three arrived at the appointed time. It was the first time for her to meet them. Principe, who would be shouldering the expenses of Villanueva and Gutierrez, was the spokesman of the group. As the three handed her P90,000.00, she emphasized to them that part of the amount defray the expenses for her own ticket and hotel accommodations as she would be travelling with them. The three having given her their business registration papers, income tax returns and calling cards, Vevina immediately processed their travel documents and passports. She first proposed that the three go to Thailand but the Thai Airline did not issue tickets for them because they had not secured an onward visa. Thus, she next proposed that since entry to Hongkong would not entail securing a visa thereto, the three should take a Hongkong-Japan-Korea route. Because Villanueva and Gutierrez wanted to be sure first that Principe would be granted a Japanese visa, no tickets were issued to them. However, all three later decided to give up their travel plans and demanded that she gave them back their money. She agreed to return the money as soon as some of the groups gave back the money that they used.] She had received P50,000.00 for Principes ticket at Villanuevas residence, and P10,000.00 for their hotel accommodations.

TRIAL COURT: convicting accused of illegal recruitment. ISSUE: 1.

2. 3.

W/N Vevina was denied due process? No. There were three resettings of the hearings of the case where the defense was given an opportunity to present additional witnesses before the trial court finally ordered the case submitted for decision. W/N Vevina was guilty of illegal recruitment? Yes. W/N affidavit of desistance from some of the complainants exonerates the accused? NOPEY NOPE

AS TO CREDIBILITY OF WITNESSES/VICTIMS: As a rule, appellate courts will not disturb the findings of the trial court on said issue unless certain facts or circumstances of weight have been overlooked, misunderstood or misapplied which, if considered, might affect the result of the case. This is because the trial court heard the testimony of the witnesses and observed their deportment and manner of testifying during the trial. No negative circumstances attend this case as to warrant departure from the general rule. In fact, a review of the transcript of stenographic notes in this case shows that the testimonies of the prosecution witnesses are credible. AS TO ILLEGAL RECRUITMENT: Article 13 (b) of the Labor Code defines recruitment as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or

abroad, whether for profit or not. The pertinent provisions of the Labor Code on illegal recruitment are as follows: ART. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry (now Department) of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. xxxxxxxxx Recruitment for overseas employment is not in itself necessarily immoral or unlawful. It is the lack of the necessary license or permit that renders such recruitment activities unlawful or criminal. When three or more persons are victimized, the offense becomes illegal recruitment in large scale, an offense constitute of economic sabotage. In other words, the crime of illegal recruitment in large scale is committed when a person (a) undertakes any recruitment activity defined under Art. 13(b) or any prohibited practice enumerated under Art. 34 of the Labor Code; (b) does not have a license or authority to lawfully engage in the recruitment and placement of workers; and (c) commits the same against three or more persons, individually or as a group. The last two requisites are present in this case. By appellants own admission, she was a field officer of a travel agency who merely assisted prospective travellers procure the necessary travel papers. Her admission is proof that she was not a license recruiter per the records of the POEA. Although some of the complainants desisted from pursuing their cases against appellant, it is undeniable that more than three persons raised claims that they had been victimized by appellants recruitment activities. The prosecutions theory that appellant promised employment abroad to the complainants has been proven beyond reasonable doubt not only by the testimonies of prosecution witnesses but also by the aforequoted receipts signed by appellant indicating that she received placement fees. Moreover, if indeed it is true that the amount she demanded and collected from the complainants were mere processing fees needed to secure travel papers, then she would have received them upon official receipts of the travel agency, in its office and at the appropriate office hours. The evidence proven, however, shows that two of the receipts were prepared by a complainants wife while another appears to be in appellants own handwriting on a yellow ruled pad paper, and that she received various

amounts in places other than her office including her own residence, and after office hours. In one instance, a transaction even occurred at midnight in her own home. Appellant also claims that the visa applications of the complainants she had presented in evidenced prove that they were not as seekers for jobs overseas. This stretches judicial credulity to the limits. The four complainants who testified for the prosecution could not have afforded travel abroad, much more as tourist. That appellant even accompanied some complainants abroad on the pretext that she would secure their plane tickets there does not help her case any. Instead of bolstering her claim that she was merely helping the complainants secure travel papers, that story instead undermines the alleged legality of her activities. She did not actually have to go abroad to secure tickets and travel documents since these may be obtained just as easily within this country. The rule, therefore, that for evidence to be believed, it must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can proved as probable under the circumstances, finds meaning in this case. MAIN: We note, however, that the trial court omitted Cecilia Baas in its decision. Since Cecilia Baas is named one of the complainants in the amended information for illegal recruitment and who testified in court to prove her charges, her case should have been duly considered. The trial court stated that the complainants executed affidavits of desistance except Principe, Villanueva and Gutierez. This, perhaps, explains why the trial court did not even mention the testimony of Cecilia Baas in its decision. However, the records show that the only the following executed affidavits of desistance: Lito B. Camora , Roel B. Perez, Magdalena P. Arizala and Fe P. Domagtory, and Eduardo P. Prudenciado, Leonilo D. Arganda and Rose V. Flores. Of these seven persons, Camora, Arizala, Prudenciado, Arganda and Flores filed complaints for estafa against appellant while Perez and Domagtory did not. Affidavits of desistance, however, may not exonerate an accused from criminal liability, especially when the evidence already adduced suffices to convict. In People v. Romero, the Court holds: The fact that complainants Bernardo Salazar and Richard Quillope executed a Joint Affidavit of Desistance does not serve to exculpate accused-appellant from criminal liability insofar as the case for illegal recruitment is concerned since the Court looks with disfavor the dropping of criminal complaints upon mere affidavit of desistance of the complainant, particularly where the commission of the offense, as is in the case, is duly supported by documentary evidence. Generally, the Court attaches no persuasive value to affidavits of desistance, especially when it is executed as an afterthought. It would be a dangerous rule for courts to reject testimonies solemnly taken before the courts of justice simply because the witnesses who had given them, later on, changed their mind for one reason or another, for such rule would make solemn trial a mockery and place the investigation of truth at the mercy of unscrupulous witness(es).

Complaints Bernardo Salazar and Richard Quillope may have a change of heart insofar as the offense wrought on their person is concerned when they executed their joint affidavit of desistance but this will not affect the public prosecution of the offense itself. It is relevant to note that the right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the sovereign power instinctly charged by the common will of the members of society to look after, guard and defend the interest of the community, the individual and social rights and liberties of every citizen and the guaranty of the exercise of his rights. The cardinal principle which states that to the State belongs the power to prosecute and punish crimes should not be overlooked since a criminal offense is an outrage to the sovereign State. As provided by the Civil Code of the Philippines: Art. 2034. There may be a compromise upon the civil liability arising from an offense; but such compromise shall not extinguish the public action for the imposition of the legal penalty. While the trial court included the eleven estafa cases in the docket numbers appearing on the face of the decision to identify the cases under consideration, it omitted any mention about them. A thorough search on the records for a reason for such omission yielded a negative result. Notably, the Solicitor General failed to notice the same omission in his brief. The settled rule is that where other crimes or felonies are found to have been committed by an accused charged with violation of another law, conviction under the latter law does not preclude punishment under the other statutes.

THE PEOPLE OF THE PHILIPPINES V. ARCADIO PUESCA ALIAS "BIG BOY", WALTER APA, FILOMENO MACALINAO, JR. ALIAS "WHITE", MAGNO MONTAÑO ALIAS "EDOL", JOSE GUSTILO ALIAS "PEPING" AND RICARDO DAIRO ALIAS "CARDING" G.R. NO. L-27909. DECEMBER 5, 1978 FACTS: On the early evening of November 27, 1960, Candido Macias and his wife, Marcela Macias, were taking supper in their house located in Barrio Sinayawan, Davao del Sur and lies near the road to Digos. Under the house were their son, Fortunato Macias, and son-in-law, Anacleto Delfino. Fortunato Macias was repairing a jeep, assisted by Anacleto Delfino who was holding a lighted "Petromax" lamp. Suddenly, strangers with firearms unceremoniously entered the house. Three of them went upstairs. Marcela Macias and Candido Macias heard the voice of one of them emanating from the sala, ordering the occupants of the house to lie down on the floor. Candido Macias left the table and went out to the sala. Two gun reports were heard and Candido Macias instantly slumped to the floor. Marcela Macias stood up and walked towards her husband but before she could reach him, she was met by one of the intruders who ordered her to lie flat on the floor, otherwise all of them would die. Someone under the house also directed Fortunato Macias and Anacleto Delfino not to move. Turning to his left, Fortunato Macias saw two armed men. He immediately ran towards the coconut plantation near the house where he took refuge. Anacleto Delfino also turned around to see who those persons were. When he held his lamp up, he saw two gunmen, one tall and the other short. He identified one of them as appellant Arcadio Puesca and the other as appellant Magno Montaño. According to Delfino, appellant Puesca fired at him and he was hit between the elbow and the armpit. Delfino brought down the lamp and lay flat on his belly. When he was brought to the sala which was then lighted by a "Petromax" lamp, Delfino saw his father-in-law, Candido Macias, lying on the floor near the door. He was already dead. He also noticed two persons with firearms whom he identified as appellants Jose Gustilo and Filomeno Macalinao, Jr. At that time, Marcela Macias noticed that the intruders were ransacking the house. The trunk in the master’s bedroom was forcibly opened, and the sum of P20,000.00 was taken. This sum represented the proceeds from the sale of a parcel of land for P17,000.00 together with their income from a twenty-four-hectare riceland and their three jeeps for hire. They also took the gun of Candido Macias which was lying on the bed, as well as his new pair of pants and other clothes. The aparador in the sala was toppled down by appellants Gustilo and Macalinao. When Francisco Macias, another son of Candido Macias, heard the gun reports he rushed to his father’s house which was about eighty (80) meters away from his home. As he approached the house, two persons with carbines who were in the kitchen fired upon him. He was ordered to crawl to the sala and to lie flat on his stomach on the floor. He observed that the house was being ransacked. When Francisco Macias tried to look around, two men kicked him on the head. Later, Francisco was told to go

downstairs and to get the key of one of the jeeps from his house. As he went down, he was followed by two other armed men. The gun reports in the house of Candido Macias were also heard by the spouses Marietta Macias-Olarte and Epifanio Olarte, daughter and son-in-law, respectively, of Candido Macias. They immediately left their house to find out what was happening in Candido Macias’ house. On their way thereto, they heard bullets whistling over their heads. They sought shelter in the house of Anacleto Delfino, whose wife, Antonia Macias, was the sister of Marietta Macias-Olarte. Francisco Urbano, a tenant of Candido Macias, happened to reside at that time in said house. When the firing subsided, Marietta Macias-Olarte, Epifanio Olarte, Antonia Macias and Francisco Urbano went to the backyard of Delfino’s house. The distance from the house of Anacleto Delfino to the house of Candido Macias was some forty (40) meters. The group of Marietta Macias-Olarte then saw three men coming from the house of Candido Macias. As the three men neared their place, Epifanio Olarte tried to talk to Francisco Macias, but he was immediately pushed back and one of the escorts of Macias fired at him. Marietta Macias-Olarte and Francisco Urbano testified that they recognized the tall, stoop-shouldered gunwielder as Walter Apa because of the light of the moon and his proximity to them. They also recognized the shorter fellow as appellant Ricardo Dairo, when they saw was carrying a gun. Appellant Ricardo Dairo remained with the group of Marietta, while Francisco Macias and appellant Walter Apa continued on their way. Francisco Macias was not allowed by appellant Apa to turn his face sideways. After they secured the key from his house, Francisco Macias and appellant Walter Apa returned to the house of Candido Macias, passing through the backyard of the house of Delfino where they were joined by appellant Ricardo Dairo. Under the house of Candido Macias, Francisco Macias started the motor of one of the jeeps, and thereafter, eight of the men boarded the jeep. Apparently to prevent pursuit, the tires of the other jeep were fired upon. The jeep which was driven by Francisco proceeded towards Barrio Liling on the way to Davao City. After a while Francisco Macias was ordered to stop the vehicle and someone alighted from the rear, and Francisco Macias was ordered to move over to the center of the front seat. According to Francisco Macias, he was able to recognize fully the man who took over the steering wheel. He identified him as appellant Jose Gustilo. When Francisco tried to look sideways, one of them hit him on the head with a pistol. After the jeep had run for more than one hour, it was stopped. Francisco Macias went down the jeep and one of the men said that he should be shot. Francisco Macias pleaded for his life. Appellant Jose Gustilo intervened and suggested to his companions that they spare Francisco’s life. Francisco Macias was then hogtied and stripped of his clothes. The men then fled away in the jeep. After their departure, Francisco was able to untie his feet, and he walked about two kilometers to a friend’s house, where he borrowed a pair of pants

and shirts. Later, he boarded a passenger bus for Digos, a municipality adjacent to Hagonoy. The robbery and killing in the house of Candido Macias were reported that same night. Accompanied by police officers, Chief Viran went to the house off Candido Macias in Barrio Sinayawan and found Candido Macias dead. The furniture in the house were in topsy-turvy condition. The officer interviewed persons in the house and the latter assured him that they could recognize the culprits. The get-away jeep was recovered near a bridge on the road to Davao City. The following morning, Chief Viran found P17.00 in one-peso bills, while Chief Melendez found empty shells in the sleeping room of Candido Macias, and a bullet slug on the floor of the sala. They also saw downstairs a jeep with flat tires and a "Petromax" lamp destroyed by bullets. On December 1, 1960, Sgt. Lucio Baño met one Roger Cahilog who informed him that appellants Arcadio Puesca alias "Big Boy" and Jose Gustilo alias "Peping", slept in his house on the night of November 26, 1960 and that he overheard the two talking about robbery. He thus became suspicious of the two. The next day, appellants Puesca and Jose Gustilo were apprehended by Sgt. Baño and Lt. Javier in Davao City. A few days after, appellant Puesca, who was detained in the municipal jail of Digos, told Sgt. Baño and Chief Melendez that he would like to see Mayor Llanos in order to confess his participation in the crime. In the evening of that date, Mayor Llanos met appellant Puesca in his office on the second floor of the municipal building. Appellant Puesca was questioned by the Mayor on his participation. Present were Chief Melendez, Chief Viran, Lt. Javier and Lei Hong, owner of a tape recording machine. Appellant Puesca’s investigation was tape recorded by Lei Hong. Puesca confessed that he was one of the gang who entered the house of Macias and committed the robbery and killing therein. He mentioned as his companions Jose Gustilo alias "Peping", Magno Montaño alias "Edol", Felimon, Carding and Mariano. He said that there were others who were with them whose names he did not know but whom he could identify if he saw again. The confession of appellant Puesca was taken down in writing. Appellant Jose Gustilo, like Puesca, admitted to Mayor Llanos his participation in the commission of the crime and mentioned as his companions Puesca alias "Big Boy", Montaño alias "Edol", Macalinao, Carding, Mariano and others. The questioning of appellant Gustilo was tape recorded by Lei Hong, and was taken down in writing. Following the confession of appellants Puesca and Gustilo, appellant Montaño alias "Edol" was arrested by Chief Viran. In his own handwriting, appellant Montaño confessed his guilt and names as his confederates in the crime the same people again, recorded, in writing. The confessions of appellants Puesca and Montaño were subsequently subscribed and sworn to by the declarants before Augusto H. Fernandez, Justice of the Peace of Digos. Appellant Gustilo, on the other hand, refused to sign his confession and did not give any reason for his refusal.

Subsequently, appellant Macalinao, Jr. was arrested at the Sasa Airport, Davao City, as he was about to board a plane for Cebu. In a confrontation with appellant Puesca and later with appellant Gustilo, he was identified by the two as the person they had mentioned in their confessions as their companion in the commission of the crime. In order to identify all the culprits, Francisco Urbano and Marietta Macias-Olarte the pictures of some police characters, from which the two picked out the pictures of appellant Walter Apa and Ricardo Dairo. Appellants Apa and Dairo were picked up by the police and confined in jail. They also, pointed to as three of the men who had participated in the robbery and killing of Candido Macias in a group of people in the jail. The Cadaver of Candido Macias was autopsied by Dr. Julio M. Layug, Municipal Health Officer of Digos; testified that the second shot was fired while the victim was falling down, and that death supervened in only three or four minutes. The cause of death was due to "shock with internal hemorrhage caused by the gunshot wounds" ISSUE: 1. 2.

W/N evidence was sufficient to convict the accused? Y W/N admission by extrajudicial admission by co-accused is admissible against other co-accused? Generally, ONLY AGAINST THE PERSON WHO MADE IT BUT can be used as corroborative evidence against the other coaccused

HELD: 1. -

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YES. Court finds that the evidence clearly shows that appellants were positively identified by the prosecution witnesses as participants in the crime. Thus, Anacleto Delfino declared that appellants Arcadio Puesca and Magno Montaño were the persons he saw under the house of Candido Macias, his father-in-law; that he recognized them because he raised the lamp higher to find out who they were; He further stated that when he placed the lamp down on the ground, Puesca shot the lamp and ordered Anacleto to go upstairs. Puesca admitted in his confession that he fired at a man holding a "Petromax" "with the intention of hitting the light and to scare the man . . ." Delfino also testified that upon reaching the second floor of the house, he saw two armed men whom he identified as appellants Jose Gustilo and Filomeno Macalinao, Jr. After he was made to lie on the floor, he heard sounds in the room of something being broken. According to Puesca, a certain Felimon and Jose Gustilo were the first to go up the house followed by Magno Montaño, then he heard two shots fired inside the second floor of the house. This was confirmed by Magno Montaño who stated that Jose Gustilo and Felimon Macalinao went up the house and that after he heard those shots he asked Jose Gustilo why he shot the victim, and Gustilo replied that he "wanted to challenge me"

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Marietta and Francisco testified that they recognized Walter Apa as the tall stoop-shouldered person holding a gun and that the shorter fellow, also armed with a carbine, was Ricardo Dairo. After Francisco Macias and Walter Apa had proceeded to the former’s house, it was Ricardo Dairo who guarded Olarte, Antonio Macias, Delfino and Francisco Urbano. After a few minutes, Francisco Macias returned to the house of Candido Macias. Francisco Macias declared that two persons armed with carbines fired at him; He further testified that when he drove the jeep of the deceased with the appellants aboard, it was appellant Jose Gustilo who took over the wheel from him.

ACCUSED ARGUMENTS: It would have been difficult for Anacleto Delfino to recognize Puesca and Montaño because when Delfino turned around and put up the lamp, the lamp blocked Delfino’s face, preventing him from getting a clear view of the two. BUT this contention is not borne by the facts. When the witness, Anacleto Delfino, held the lighted lamp, he did not hold it directly in front of his face. He held the lamp at the right side of his face in such a manner that his view of the appellants who were just three meters away should not in the least be impeded. Moreover, because of the bright light of the "Petromax" lamp, identification of the culprits was not an improbability. That it was improbable for Delfino to have recognized Gustilo and Macalinao, Jr., since he saw them for the first time under the light of a kerosene lamp, and he was gripped by fear and lying on the floor with his face downward. BUT: Contrary to appellants’ contentions, fear does not necessarily detract from a person’s physical ability to observe. It should be borne in mind that a person will easily remember another who does him harm, because consciously or unconsciously he turns his attention to the offender.

Appellants further argued that it is doubtful for Marietta Macias-Olarte to have recognized appellants Walter Apa and Ricardo Dairo because she only saw the illumination of the moon but did not see the moon itself. BUT: This argument ignores the possibility that a person may be aware of the presence of the moon in the sky not necessarily because he looks at it directly but because of its manifestations, such as its effulgence on the structures on the ground. Moreover, Olarte recognized Walter Apa and Ricardo Dairo because of their proximity to her. Nor can the circumstance that Francisco Macias could only identify Jose Gustilo, although he was with the other perpetrators of the crime, render the identification of appellants made by the other witnesses incredible. BECAUSE: It should be recalled that there were circumstances which could have prevented Francisco Macias from recognizing the others. (ordered to lie flat, face downwards, on the floor; even while he was in the jeep, whenever he attempted to look at the other people in the back of the jeep, he was immediately hit with the butt of a pistol. He was hogtied and left on the road. He remembered that Gustilo had a moustache and had a light complexion.) The contention that there could not be robbery with homicide in this case, because there is "no evidence that appellants took and carried away the money" must fail. (again look at previous narration of ransack and evidence of money stolen) This robbery was further confirmed by the recitals contained in the confessions of Puesca, Gustilo and Montaño, wherein they stated that when they met in the Holiday Canteen at Sta. Ana, Davao City on November 25, 1960 at about 7:00 o’clock in the evening, they planned originally to raid and rob the Christensen Plantation, but upon seeing the plantation well-guarded, they changed their plans and decided to rob the Macias fam. AS TO CONSPIRACY:

At any rate, according to Delfino, he was looking straight at the appellants whose faces were clearly visible to him under the bright light of the kerosene lamp in the sala.

The evidence clearly and convincingly demonstrate that the appellants were engaged in a conspiracy to effect the object of their criminal purpose. Since conspiracy by its very nature is formed in utmost secrecy, it can seldom be proved by direct evidence.

"Q. Those persons looked at you squarely and plainly, without any attempt of hiding their identities, is that not correct?

Conspiracy is "generally proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished.

A. I do not know whether they were looking at me, but I was looking at them. Maybe they were looking at me also.

If it be proved that the defendants pursued by their acts the same object, one performing one part and another a part of the same, so as to complete it, with a view to the attainment of the same object, one will be justified in the conclusion that they were engaged in a conspiracy to effect the object . . .."

Q. The robbers did not shoot at this small lamp or put out its light? A. No, this lamp was placed at the center of the sala. Q. The two men nonchalantly were carrying their arms under the brightness of the light of this lamp, this kerosene lamp, correct? A. Yes, they were lighted by that lamp."

In contrast with evidence premeditation, which requires as an essential condition that a sufficient period of time must elapse to afford full opportunity for premeditation and reflection on the possible consequences of the intended criminal act, conspiracy arises on the very moment the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to accomplish it. OSG cites the following facts to show the existence of conspiracy:

First, upon breaking into the premises of the house of the victim, Candido Macias, three men went upstairs into the house. -

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Two others, appellants Arcadio Puesca and Magno Montaño, went under the house and immobilized Anacleto Delfino and Fortunato Macias who were then repairing a jeep While all this was going on in the house, appellants Walter Apa and Ricardo Dairo, who were armed with carbines, were standing outside apparently on guard Francisco Macias having gotten the ignition key of the jeep, all of the appellants boarded the jeep, and with Francisco Macias driving it, the appellants left the scene of the crime.

Second, the confessions of appellant Puesca, Montaño and Gustilo admit their participation in the commission of the crime at the house of Macias. The confession of Jose Gustilo, however, was the only one which was unsigned as he afterwards refused to affix his signature thereto; but his confession was tape recorded and from the replay of the recording made during the trial, it may be seen that his confession was freely and voluntarily given.Towards the end of his tape recorded confession, the following questions and answers were given: "In your confession now given to me, Peng, the incident of the hold-up in Makilala, the hold-up in Sinayawan, Hagonoy, Davao, in the house of the late Candido Macias, were you able to relate everything which you think you would tell me before you offered to make that confession? "Yes, sir, because I narrated all the things what I have already in mind. "You would like to tell me now that all the things which you just narrated are the truth and nothing but the truth? "Yes, sir. "Are you going to confirm the truth of the statement, which you told me now? "Yes, sir. "Are you going to affirm your confession even though these statements which you have narrated to me will be used against you? "Yes sir." The confessions accused are admissible against them. Their confessions could be considered as corroborative evidence of the testimonies of prosecution eyewitnesses pointing to them as the culprits who participated in the commission of the crime. Third, the testimonies of prosecution eyewitnesses find corroboration in the extrajudicial confessions of accused insofar as said confessions tell about the participation of their other companions in the commission of the crime. -

Puesca, in his extrajudicial confession, named Jose Gustilo alias "Peping", Magno Montaño alias "Edol", Felimon, Carding, Mariano and two others whose names he did not know, as his companions in the perpetration of the crime

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He narrated how the plan to rob the Macias family was conceived, as well as the manner in which they implemented the plan. Thus, in the tape recorded confession of appellant Gustilo, he declared that his confederates in the crime was again the same people, and a certain Carding and others And thus, in the confession of Montaño alias "Edol", which was in his own handwriting and which was also tape recorded, he mentioned same people According to his confession, it was Gustilo who shot to death the late Candido Macias and that it was Macalinao who got the 38 caliber pistol of the deceased. Both declarants corroborated the narration given by Puesca.

It is true that an extrajudicial confession is admissible only against the person who made it, but it is also settled that such confession is admissible as corroborative evidence of other facts that tend to establish the guilt of his co-defendants. This Court has also allowed its admission against a co-accused as circumstantial evidence to show the probability of the co-conspirator having actually participated in the commission of the crime. Fourth, the claim of the defense that the confessions of appellants Puesca, Gustilo and Montaño were extracted from them through force and violence is not supported by the evidence. No motive on the part of the investigating officials or officers has been proven With respect to the extrajudicial confessions; affixed their signatures on the documents. With respect to the extrajudicial confession of appellant Gustilo, the circumstance that he was able to refuse, without having been punished or maltreated for such refusal, is a strong indication that his confession was not extracted from him by force or intimidation. ON WHAT CRIME WAS COMMITTED: It is sufficient that the homicide was produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration. There is homicide by reason of the robbery when there is a direct relation, an intimate connection, between the robbery and the killing, whether the killing be prior or subsequent to the robbery or whether both crimes be committed. AS TO “band” issue In the case at bar, the crime committed is robbery with homicide. Considering that the crime was committed by six armed men, the circumstance of "band" should be considered merely as a generic aggravating circumstance. It is also obvious that the perpetrators of the offense waited for the night before committing the robbery to better accomplish their purpose. The trial court, therefore, correctly found the existence of "band" and "nocturnity." * also during the pendency of this appeal, appellant Jose Gustilo alias "Peping" died at the New Bilibid Prisons Hospital so wala na babye