Madali.docx

G.R. Nos. 67803-04. July 30, 1990.* PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. Pat. RICARTE MADALI and ANNIE MORTEL MADALI, defendants-appellants. Criminal Law; Evidence; Credibility of witnesses; Matters of credibility are ordinarily addressed to the discretion and discernment of the trial court which is presumed to have observed the demeanor of the witnesses at the stand.—Matters of credibility are ordinarily addressed to the discretion and discernment of the trial court which is presumed to have observed the demeanor of the witnesses at the stand. While the ponente of the decision below was able to hear only the testimony of accused Ricarte Madali, the Court sees no reason for not giving sufficient weight to his factual findings considering that he took pains in thoroughly studying the case even to the extent of conducting an ocular inspection of the scene of the crimes and hearing part of the cross-examination of Madali thereat. Same; Same; Murder; Self-defense; For self-defense to prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that placed the defendant's life in danger and forced him to inflict more or less severe wounds upon his assailant employing therefore reasonable means to resist the said attack.—The defense is anchored on the justifying circumstance of self-defense. In order that such plea can prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that placed the defendant's life in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to resist the said attack.

said intruder from executing whatever vicious plans he had, As it were, he fired directly at his victims and all four shots hit their targets. Same; Same; Same; Lower court correct in characterizing the felonious assault on Agustin Reloj as frustrated murder.—The lower court is correct in characterizing the felonious assault on Agustin Reloj as frustrated murder. While Agustin Reloj was hit only below his right hip, Madali's act of shooting was plainly attended by an intent to kill. This is evidenced by the revealing statements of Madali while accosting Agustin Reloj some fifteen (15) meters from Madali's house, thus: "So you are here, you devil, now you are finished. he have been waiting for you. he have been waiting for you for three night already." The statements "now you are finished" and "I have been waiting for you for three nights already" sufficiently show that Madali not only intended to do away with Agustin Reloj but also that the crime had been premeditated. Same; Same; Same; No doubt that Madali committed murder when he shot Felix Gasang twice in the body.—There is likewise no doubt that Madali committed murder when he shot Felix Gasang twice in the body. Treachery qualified the killing to murder punishable under Article 248 of the Revised Penal Code. There was treachery because of the suddenness of the attack. Felix was raising his hands, and saying that he would not fight back when Madali feloniously fired at him twice. Annie Madali's uttering "Here comes another" before Madali shot Felix may not be considered sufficient warning so as to rule out suddenness of the attack. However, no generic aggravating circumstance has been sufficiency proven.

Same; Same; Same; Same; Same; Defense miserably failed to pass said test.—The defense miserably failed to pass said test. Its allegation that the Madali residence was hurled with stones before Madali confronted the Gasang group, was not credibly established. No one was able to positively identify the stone-throwers. Not even Madali and his wife, Annie. There is no proof that the stones found in the Madali yard were indeed the stones thrown at their house. It is interesting to note that even defense witness Antonio Morales, a fellow policeman of Madali, testified that he did not have personal knowledge on where the stones were discovered because he was only informed by Galang (another policeman) "who in turn was only told by Ricarte that the latter was stoned."

Same; Same; Same; Court agrees with the trial court that with respect to the killing of Apriano Gasang and the wounding of Merlinda Gasang, the crime committed was the complex crime of murder with frustrated murder inasmuch as a single shot hit them both.—We agree with the trial court that with respect to the killing of Cipriano Gasang and the wounding of Merlinda Gasang, the crime committed was the complex crime of murder with frustrated murder inasmuch as a single shot hit them both. It is immaterial that Merlinda Gasang was wounded on the leg and not on a vital part of her body. What is of primordial consideration is the fact that the criminal act which killed Cipriano also caused Merlinda's injury. As in the killing of Felix, treachery qualified the killing of Cipriano to murder because of the suddenness of the attack.

Same; Same; Same; Same; Madali's means of resisting them was unreasonable under the circumstances.—Granting that Agustin Reloj and Felix and Cipriano Gasang were armed with clubs and a knife, Madali's means of resisting them was unreasonable under the circumstance. Having known that an interloper was inside his yard, Madali, being a policeman, should have first fired a warning shot to deter

Same; Same; Conspiracy; Court finds that proof beyond reasonable doubt has not been established as to the existence of conspiracy between the Madali Spouses.— Nevertheless, the Court finds that proof beyond reasonable doubt has not been established as to the existence of conspiracy between the Madali spouses. While direct proof is not essential to prove conspiracy as it may be shown by acts and

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circumstances from which may logically be inferred the existence of a common design among the accused to commit the offense(s) charged, the evidence to prove the same must be positive and convincing considering that conspiracy is a facile devise by which an accused may be ensnared and kept within the penal fold.

TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as maximum. (E)ach of them is also sentenced to suffer all the accessory penalties provided for by law, and each is ordered to pay in solidum the offended party, Agustin Reloj, the sum of P200.00 as reimbursement of medical and hospitalization expenses.

Same; Same; Same; Same; Ricarte Madali could have nevertheless accomplished his criminal acts without Annie's cooperation and assistance.—Annie's participation in the shooting of the victims consisted of beaming her flashlight at them and warning her husband of the presence of other persons in the vicinity. By beaming her flashlight at a victim, Annie assisted her husband in taking a good aim. However, such assistance merely facilitated the commission of the felonious acts of shooting. Considering that, according to both of the Madali spouses, "it was not so dark nor too bright" that night or that "brightness and darkness were equally of the same intensity." Ricarte Madali could have nevertheless accomplished his criminal acts without Annie's cooperation and assistance.

"(2) For the murder of Felix Gasang, each accused is sentenced the penalty of reclusion perpetua and each of them is likewise sentenced to suffer the accessory penalties provided for by law, and eachis also ordered to pay in solidum to the heirs of Felix Gasang, the sum of P12,000, as death indemnity.

Same; Same; Motive; Proof of motive unnecessary where there is clear identification of the accuses.—Proof of motive is unnecessary where there is a clear identification of the accused. More so in this case where the principal accused does not deny having fired the fatal shots, APPEAL from the decision of the Regional Trial Court of Romblon, Br. 81. Reyes, J. The facts are stated in the opinion of the Court. The Solicitor General for plaintiff-appellee. Juan B. Soliven for defendants-appellants. FERNAN, C.J.: Husband and wife Patrolman Ricarte Madali and Annie Mortel Madali appeal from a decision of the Regional Trial Court of Romblon, Branch LXXXI1 finding them guilty beyond reasonable doubt of killing father and son Cipriano and Felix Gasang, and seriously wounding Agustin Reloj and Cipriano's daughter, Merlinda. The dispositive portion of the decision states: "WHEREFORE, the Court hereby finds the guilt of accused Ricarte Madali and Annie Mortel Madali beyond reasonable doubt of the following offenses and sentences each of them as follows: "(1) For the frustrated murder of Agustin Reloj, each accused is meted an indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum to

"(3) For the murder of Cipriano Gasang and the mortal (sic) wounding of Merlinda Gasang (which has been converted into a complex crime of murder with frustrated murder) each accused is sentenced to the penalty of reclusion perpetua together with the accessory penalties provided for by law and to indemnify in solidum the heirs of Cipriano Gasang the sum of P12,000.00 and each is also ordered to pay in solidum, Merlinda Gasang the sum of P6,000 for reimbursement of medical and hospitalization expenses. "Each of the accused is likewise ordered to pay in solidum the heirs of deceased, Cipriano Gasang and Felix Gasang, the sum of P50,000.00, which amount represents the value of the loss (sic) earning capacity of deceased Cipriano and Felix, both surnamed Gasang, and the sum of P30,000,00 as moral damages, and the sum of P10,000.00 as exemplary damages. 'The sentences of reclusion perpetua and the indeterminate penalty imposed upon each accused should be served successively, with proportionate costs. "IT IS SO ORDERED."2 According to the prosecution, said crimes stemmed from an altercation between the son of the Madali spouses, Ramon, and the group of Felix Gasang, who was twenty years old when he was killed.3 It appears that on October 26, 1979, Felix figured in a fistfight with someone who was a friend of Ramon. The latter interceded and mauled Felix with a "chako".4 One of Felix's companions then was Agustin Reloj.5 The following day, the police summoned Felix to the municipal building. Felix's mother, Desamparada Gasang, went with him.6 At the police station, Ricarte Madali, a police officer, angrily scolded Felix and his cousin, Arnaldo Fadriquilan, and told them that because they were "very brave", he would put them in jail for twelve hours. Madali added after asking about Felix's age that he would "sow bullets" in the body of Felix.7 According to witness policeman Aristeo Fetalino, Madali also uttered, "Kailangan sa imo lubongan bala" which means, what you need is a bullet embedded in you.8 Madali's father-in-law, Agustin Mortel, who arrived at

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the police station, agreed with Madali that Felix and his group must be "sown with bullets" to eradicate them.9 Another group mate of Felix was detained at the municipal jail but Felix was sent home with his mother.10 At around 9:00 o'clock in the evening of October 31, 1979, Felix and his cousin, Agustin Reloj, went home together from the town plaza. Their houses were located near each other in sitio Marawi, barangay Cagbo-aya, San Agustin, Romblon.

first and the second shots but only a second elapsed between the second and the third shots. The fourth shot came about two minutes later.16 Cipriano was ''beyond the gate" of the Madali residence when he was shot by Madali. Merlinda was around three meters from her father.17 She saw Annie focused her flashlight at Cipriano and she heard Annie say, "Yara pa, yara pa, barila" meaning

Felix and Agustin parted ways at the Marawi bridge. Felix dropped by the store of Coroy Mangao to buy cigarettes while Agustin proceeded home. Around fifteen meters from the house of Ricarte Madali, the latter accosted, him, held him by his arm and said, "So you are here, you devil, now you are finished. he have been waiting for you. he have been watching for you for three nights already."11 Then Madali dragged Agustin towards the gate of his (Madali's) house. When Agustin asked Madali why he was dragging him, Madali said that the reason was because Agustin helped in fighting his son.

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As one of Agustin's feet stepped over the knee-high fence at the gate of the Madali residence, he was clubbed by Annie Madali with a piece of wood. Annie struck him first on the left shoulder and would have given him another blow had not Agustin freed himself from Madali's hold. Annie landed that blow on Madali instead.12

** Merlinda Gasang testified before the fire burned down the capitol building in Romblon destroying court records including those of Criminal Cases Nos. 981-982. Counsel for the prosecution and the defense agreed not to present Merlinda and Roman Galicia anymore (TSN, August 20, 1981). A copy of the complete transcript of stenographic notes of the testimony of Merlinda was submitted by the private prosecutor to the court (Record, pp. 98-121).

Agustin was looking back as he ran away when Madali shot him. He was hit below his right hip. He fell to the ground and did not get up fearing that Madali might shoot him again. Agustin was still lying down on the ground with his eyes focused on Madali when Felix Gasang arrived, He saw Annie beamed her flashlight at Felix and she said, "Here comes another."13 Agustin saw Felix raising his hands as Annie focused her flashlight on Felix. Felix told Madali that he would not fight with him but then Madali shot Felix twice. Felix fell to the ground. Madali was still near the gate of his house when Cipriano Gasang arrived. Annie beamed her flashlight at Cipriano and she said, "Here comes, here comes another, fire upon him."14 Madali shot Cipriano who fell to the ground. Merlinda Gasang, who was with her father Cipriano, clung to the fence nearby and shouted that she was also hit Then Desamparada Gasang arrived and shouted for help. One Romeo Manes came and carried away Merlinda. Agustin slowly stood up and as he walked towards his house, he saw Roman Galicia (Galicha) and the Madali spouses who were then entering their gate.15 Merlinda Gasang** was at home when she heard an explosion. Her father, Cipriano, was also at home then but after the second shot, he went out of the house towards the direction of the source of the gunfire. There was a minute interval between the

13 Ibid., p. 10-12. 14 Ibid., p. 13. 15 Ibid., pp. 13-15.

"Here comes another one, here comes another one, shoot."18 That was when the fourth explosion occurred and Merlinda heard her father exclaim that he was hit. Merlinda felt that she was also hit.19 She did not fall to the ground because she was able to take hold of the wooden fence.20 She saw both her brother Felix and Agustin lying flat on the ground with the latter's head turned to one side.21 Merlinda shouted for help. Romeo Manes came and brought her to the Tablas Island Emergency Hospital.22 She did not notice anymore where Ricarte Madali was at that time because she was looking towards the direction of their house. She saw her mother running to her.23 Desamparada Gasang was washing the dishes after supper when she heard the first shot. After the fourth shot, she became apprehensive because a policeman was mad at her family.24 She proceeded to where she heard the gunbursts and she met her daughter Merlinda who informed her that she was shot by Madali and that she saw Annie focused a flashlight on her. Then Desamparada saw her husband crawling on the ground. She asked him to stand up but he could not do so. Cipriano told her, "Ging iwagan ako ni Annie Madali cag ging baril ako ni Ricarte Madali."

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(Annie focused a light on me and Ricarte Madali shot me.) She then went back to her daughter and shouted for help. The bodies of Cipriano and Felix Gasang were not removed from the road until around midnight. They were brought to the Gasang residence for autopsy.25 The rural health physician who conducted the postmortem examinations on both Cipriano and Felix found that Cipriano sustained a gunshot wound at the right lower quadrant of the abdomen along the mammary line. From that point of entry, the bullet followed an obliquely downward course penetrating the small and large intestines and the urinary bladder, and exited at the middle of the left buttock. Cipriano's death was caused by hemorrhage due to the gunshot wound.26 Felix also died of hemorrhage resulting from the gunshot wound at the right second intercostal space within the midclavicular line of the chest. The bullet veered backwards towards the left hitting the right lung, its blood vessels and the fourth cervical vertebra. The second gunshot wound was at the right side of the abdomen at about the level of the navel and within the right anterior axillary line. The bullet hit the subcutaneous tissues and exited at the posterior axillary line.27 Merlyn (Merlinda) Gasang sustained a gunshot wound at the anterior upper third portion of her right leg with no exit wound and which would incapacitate her for ten to fifteen days.28 However, she stayed for treatment at the emergency hospital in San Agustin for 39 days. Later, she was brought to the hospital in Romblon for extraction of the slug lodged in her leg. For the treatment of her wound, Merlinda spent P6,200.00. She could not go to school for three months.29 Agustin Reloj suffered a gunshot wound at the glutael region of the right thigh. The bullet entered the lateral aspect of the upper third of the right thigh and exited at the posterior aspect of the gluteus maximus muscle. The attending physician certified that Agustin's injury would incapacitate him for seven to nine days,30 Agustin, who was then a laborer, stayed one week at the hospital and spent P200 for the treatment of his wound. For his pain and anxiety, he stated, that he should be compensated in the amount of P500.00.31

Gasang. The information alleged that they conspired, confederated and mutually helped each other in killing Felix and Cipriano treacherously, with evident premeditation and with the use of a .38 caliber revolver.35 In the separate information for multiple frustrated murder in Criminal Case No. 982, conspiracy, treachery and evident premeditation were also alleged as having attended the felonious assault with the use of a .38 caliber revolver on Merlinda Gasang and Agustin Reloj which could have resulted in the crime of murder had not timely and able medical assistance intervened.36 At the -trial,. both Madali and his wife, who had pleaded not guilty to the crimes charged, testified in their own defense. According to Madali, at around 9:00 o'clock in the evening of October 31, 1979, he and his family were about to sleep when a stone was hurled at their house. His wife said that it could have been a stray stone. But then, three other stones landed on the GI sidings, and the lawanit and bamboo walls of their house. Madali went to their porch where he noticed a person crouching near their gabi plants. He could not identify the person because of the fog so he went inside their room and dressed up in his fatigue trousers and jacket. He went down the house and noticed that there was no one in the gabi plants anymore. Madali was behind their kitchen and about to go back to his house when someone hit his left shoulder. The person struck. him again but he was able to catch the club aimed at him and strike the person with his nightstick. Madali was about to give him another blow with his nightstick but the person caught it. They tried to get each other's club. They were in that position when Madali's foot stepped into a low canal, causing him to fall down flat on his back. The intruder fell with him and landed on Madali's stomach. The person shouted at someone in the vicinity what the latter was tarrying about. As Madali tried to get up, he heard his wife call, "Carte, Carte." Just then he kicked the intruder on the stomach and the latter fell to the ground.

Madali voluntarily surrendered to the San Agustin police.32 He handed his .38 caliber service revolver to the policemen who arrived at the scene of the crime and they noted that there were only two remaining bullets in the revolver.33 He was placed under technical arrest by the provincial commander of the Philippine Constabulary.34

Madali hurriedly stood up, pulled his gun and fired at the intruder. He noticed two other persons approaching him. One person had a club and the other had what looked like a knife. He warned them, "This is a policeman. Do not come near." One of the persons proceeded to strike him and Madali was hit on his forehead by the man with the club. Madali in turn dealt him with a blow by swinging back his left forearm. The man with a club fell down.

After the investigation, on February 1, 1980, two informations were filed against Patrolman Madali and his wife, Annie Mortel Madali. In Criminal Case No. 981, said spouses were charged with multiple murder for the killing of Felix and Cipriano

When the man with the knife was about to stab him, Madali fired his gun at him. As that man was still closing in on him, Madali shot him again. The man with the knife retreated to the gate and fell just outside of it.

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After firing two shots, Madali turned sideward and saw the man with the club about to strike him. So, Madali shot him. The man walked away. Madali later identified the man crouching amidst their gabi plants as Agustin Reloj.37 Annie Mortel Madali corroborated her husband's testimony from the stoning of their house until he dressed up, got his gun and nightstick, and went out of the house. When she heard Madali opening the door to the stairs, Annie got up and went to their balcony to peep. She saw her husband going around their house in a clockwise direction. When he was near their kitchen, Annie saw him grappling with someone over the possession of a club. Her husband and his protagonist fell into a canal, trampling the gabi plants. She heard the man say, "Hay, naga tanga pa kamo dira!" meaning "What are you still waiting for!" Annie then saw two persons rushing inside their premises. One person was holding a club while the other one had something which he appeared to thrust forward. Losing her composure, Annie warned her husband by calling out his name, "Carte, Carte!" Then she heard a gunshot and the person holding a club who grappled with her husband ran out of the premises. Annie heard her husband say, "Pulis ini, ayaw maglapit" meaning "This is a policeman do not come near." After that, she heard three more gunshots. The two who came rushing inside their premises scampered away and out of their fence. She could not recognize the three intruders. Madali then walked towards her and asked her to call the police. Annie went inside their sala and told her daughter Agnes to summon the police.38 Policeman Numeriano Galang who heard the gun reports, met Agnes on his way to sitio Marawi. When he arrived at the Madali residence, he found Madali with his face and jacket smeared with mud and with a swollen forehead.39 Galang asked Madali what happened but he did not put his investigation in writing.40 At the yard, he found stones, two slippers and a nightstick.41 He did not find bloodstains in the yard because it was drizzling.42 Neither did he find bloodstains outside the yard because he inspected only the areas surrounding the Madali house.43 Policeman Antonio Morales arrived at the scene of the crime with two other policemen. He found Felix Gasang lying flat on his belly about one foot from the gate.44 To identify him, they turned Felix's body face up and found that his right hand was holding a knife.45 Later, that knife was turned over to police investigator Pfc. Ernesto Solano.46 The other victim (Cipriano) was found about five to six meters from the body of Felix.47 Like Galang, Morales saw pieces of stones which were different from the stones found in Madali's yard which were mere corals or "boga", two pairs of slippers and the gabi plants which appeared to have been been trampled upon.48

To prove aggression on the part of his victims, Madali presented a medical certificate stating that on November 1, 1979, he was examined at the Tablas Island Emergency Hospital for a vertical contusion (hematoma) on his left forehead and another contusion on the left deltoid region.49 The lower court gave full faith and credit to the evidence of the prosecution, especially the testimonies of eyewitnesses victims Agustin Reloj and Merlinda Gasang. It found that the concerted acts of Madali and his wife while committing the crimes proved conspiracy between them thereby making their criminal responsibility collective. While finding that the prosecution failed to prove evident premeditation, the lower court positively appreciated treachery to qualify as murder the killing of both Cipriano and Felix Gasang. It noted, however, that the prosecution erred in charging as the separate crimes of murder and frustrated murder the killing of Cipriano and the wounding of Merlinda. Observing that only one bullet hit Cipriano and his daughter, Merlinda, the lower court concluded that the Madali spouses should have been charged with the complex crime of murder and frustrated murder. Accordingly, it imposed the penalties set out above for the crimes of frustrated murder, murder and the complex crime of murder and frustrated murder. In this appeal, the Madali spouses pray for their acquittal arguing that the lower court erred in: [a] finding Annie Mortel Madali guilty as principal by direct participation; b] not finding that the Gasangs and their kins were motivated [c] not inding that Ricarte Madali acted in self-defense; and [d] in giving credence and/or adopting the theory of the prosecution instead of that of the defense. The prosecution of these cases was highlighted by notable developments. Firstly, before the defense could present its evidence, on September 6,1980, the capitol building of Romblon was razed to the ground. All court records were lost. The records of Criminal Cases Nos. 981 and 982 were, however, reconstituted and the accused arraigned anew.50 Secondly, prosecution eyewitness, Roman Galicia recanted his testimony and appeared for the defense claiming that he did not see the gunwielder.51 He alleged that he testified for the prosecution for fear that the special prosecutor would revive the rape case against him.52 The lower court thereafter disregarded his entire testimony inasmuch as only the transcript of his cross-examination as prosecution witness could be reproduced.53 Thirdly, only the testimony of Ricarte Madali was heard by the ponente below as the previous presiding judge was transferred to another sala.54 In view of the disqualification of Roman Galicia as a witness, the issue of the credibility of the eyewitnesses has gained importance in this case. Significantly, it is the word of the accused Madali spouses as against that of the surviving victims,

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Agustin Reloj and Merlinda Gasang. Both prosecution and defense failed to present corroborative witnesses to buttress their testimonies. Matters of credibility are ordinarily addressed to the discretion and discernment of the trial court which is presumed to have observed the demeanor of the witnesses at the stand. While the ponente of the decision below was able to hear only the testimony of accused Ricarte Madali, the Court sees no reason for not giving sufficient weight to his factual findings considering that he took pains in thoroughly studying the case even to the extent of conducting an ocular inspection of the scene of the crimes and hearing part of the cross-examination of Madali thereat.55 The defense is anchored on the justifying circumstance of self-defense. In order that such plea can prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that placed the defendant's life in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to resist the said attack.56 The defense miserably failed to pass said test. Its allegation that the Madali residence was hurled with stones before Madali confronted the Gasang group, was not credibly established. No one was able to positively identify the stone-throwers. Not even Madali and his wife, Annie. There is no proof that the stones found in the Madali yard were indeed the stones thrown at their house. It is interesting to note that even defense witness Antonio Morales, a fellow policeman of Madali, testified that he did not have personal knowledge on where the stones were discovered because he was only informed by Galang (another policeman) "who in turn was only told by Ricarte that the latter was stoned."57 Indeed, the defense story is riddled with contradictions and loopholes which the appellants failed to rectify. At the trial, Agustin Reloj sketched a map of the neighborhood and placed Felix Gasang's body on a spot across the road from the Madali gate.58 The defense tried to discredit Reloj's sketch and his testimony thereon by presenting policemen Morales and Galang who testified that Felix's body was found close to the gate of the Madali residence. However, the testimonies of said policemen clashed with each other. Morales testified that both the two dead bodies were found close to the gate while Galang swore that while one body was near the gate, the other body was five meters away from the Madali fence.59 It should be noted that ten days after the alleged commission of the crime, police investigator Fetalino found blood stains in the middle of the street indicating that a blood-drenched body had been dragged across the street.60 If it were really true that both Agustin and Cipriano were armed with clubs, at least Cipriano's club

would have been found as he died on the spot. The nightstick found by the police could not have been the one used by any of the victims. According to defense witness policeman Galang, the nightstick was similar to that of a policeman.61 Hence, it could have been the same nightstick which Madali admittedly used in striking one of the intruders.62 Granting that Agustin Reloj and Felix and Cipriano Gasang were armed with clubs and a knife, Madali's means of resisting them was unreasonable under the circumstance. Having known that an interloper was inside his yard, Madali, being a policeman, should have first fired a warning shot to deter said intruder from executing whatever vicious plans he had. As it were, he fired directly at his victims and all four shots hit their targets. Moreover, if Agustin, Felix and Cipriano were the intruders, then they should be credited for their extraordinary bravery in entering the Madali yard. They were neighbors and they must have known that as a policeman, Madali possessed a service revolver. The lower court, which saw for itself the Madali yard considered it "rather inconceivable" for people like the victims to ever dare go inside the premises armed only with a knife and clubs.63 The lower court is correct in characterizing the felonious assault on Agustin Reloj as frustrated murder. While Agustin Reloj was hit only below his right hip, Madali's act of shooting was plainly attended by an intent to kill. This is evidenced by the revealing statements of Madali while accosting Agustin Reloj some fifteen (15) meters from Madali's house, thus: "So you are here, you devil, now you are finished. he have been waiting for you. he have been waiting for you for three nights already."64 The statements "now you are finished" and "I have been waiting for you for three nights already" sufficiently show that Madali not only intended to do away with Agustin Reloj but also that the crime had been premeditated. They satisfactorily prove that Madali had formed a determination to commit the crime prior to the moment of its execution; that he had clung to his determination and that there was sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.65 Moreover, after uttering those damaging statements, Madali dragged Reloj towards his gate. Annie then clubbed Reloj who, however, succeeded in freeing himself from Madali's hold. Reloj was running away when Madali shot him, hitting him below the right hip.66.

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Indeed, firing at his fleeing victim and subsequently shooting to death two (2) other persons on the same occasion, to our mind, evince quite clearly the intent to kill being then entertained by Madali. There is likewise no doubt that Madali committed murder when he shot Felix Gasang twice in the body. Treachery qualified the killing to murder punishable under Article 248 of the Revised Penal Code. There was treachery because of the suddenness of the attack. Felix was raising his hands,67 and saying that he would not fight back when Madali feloniously fired at him twice. Annie Madali's uttering "Here comes another" before Madali shot Felix may not be considered sufficient warning so as to rule out suddenness of the attack.68 However, no generic aggravating circumstance has been sufficiency proven. We agree with the trial court that with respect to the killing of Cipriano Gasang and the wounding of Merlinda Gasang, the crime committed was the complex crime of murder with frustrated murder inasmuch as a single shot hit them both.69 It is immaterial that Merlinda Gasang was wounded on the leg and not on a vital part of her body. What is of primordial consideration is the fact that the criminal act which killed Cipriano also caused Merlinda's injury.70 As in the killing of Felix, treachery qualified the killing of Cipriano to murder because of the suddenness of the attack. Annie Mortel Madali's defense strategy is to deny participation in the commission of the crimes and to interpose an alibi. She insists that like any other wife, her natural reaction to situations which involve risk is "to stay away, meditate and to shout and warn her husband of the intruders rushing towards him."71 She bewails the fact that the prosecution has pictured her as "a brave, pugnacious and aggressive wife like the heroine of the pre-war movie 'Annie of the Indies'."72 Indeed, Annie's role in the commission of the crimes may appear to be straight out of an action picture were it not for the fact that her denials and uncorroborated alibi cannot stand against the categorical declarations of prosecution eyewitnesses Agustin Reloj and Merlinda Gasang on her participation therein.73 She should have presented witnesses to support her story. As she herself admitted, she and her husband were not alone in their house when they were allegedly stoned. Six of their children were home then.74 Some of them must have been within the age of discernment inasmuch as their eldest child was 21 years old and therefore, any one of them could have corroborated her story. Nevertheless, the Court finds that proof beyond reasonable doubt has not been established as to the existence of conspiracy between the Madali spouses. While direct proof is not essential to prove conspiracy as it may be shown by acts and circumstances from which may logically be inferred the existence of a common design among the accused to commit the offense(s) charged, the evidence to prove

the same must be positive and convincing considering that conspiracy is a facile devise by which an accused may ba ensnared and kept within the penal fold.75 With this and the principle that in criminal prosecution, doubts must be resolved in favor of the accused, as guides, the Court rules that the liability of Annie Mortel Madali with respect to the crimes committed herein, is only that of an accomplice. Annie's participation in the shooting of the victims consisted of beaming her flashlight at them and warning her husband of the presence of other persons in the vicinity. By beaming her flashlight at a victim, Annie assisted her husband in taking a good aim. However, such assistance merely facilitated the commission of the felonious acts of shooting. Considering that, according to both of the Madali spouses, "it was not so dark nor too bright"76 that night or that "brightness and darkness were equally of the same intensity."77 Ricarte Madali could have nevertheless accomplished his criminal acts without Annie's cooperation and assistance. Neither may Annie's shouts of "here comes, here comes another, shoot" be considered as having incited Ricarte to fire at the victims to make Annie a principal by inducement. There is no proof that those inciting words had great dominance and influence over Madali as to become the determining cause of the crimes.78 The rapidity with which Madali admittedly fired the shots79 eliminated the necessity of encouraging words such as those uttered by Annie. The fact that Annie dealt a blow on Agustin while he was being dragged by Madali to their yard does not make her a principal by direct participation. Annie's act, being previous to Madali's act of shooting Agustin, was actually not indispensable to the crime committed against Agustin.80 Proof of motive is unnecessary where there is a clear identification of the accused.81 More so in this case where the principal accused does not deny having fired the fatal shots. But the Madali spouses must have harbored a deep resentment against the Gasang family to put into action Madali's threat of "sowing bullets" on them. What makes Madali's crimes even more reprehensible is the fact that he claims to have committed them in the pursuit of his task as a peace officer. He even went to the extent of wearing his fatigue jacket and trousers to create a facade of performance of an official function. Sadly, he misused his authority and his wife, harboring an improper sense of connubial cooperation, did not even try to dissuade him. Under Article 48 of the Revised Penal Code, the penalty for a complex crime shall be the maximum period of the penalty for the most serious crime. The death penalty being the maximum period of the penalty for murder of reclusion temporal

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maximum to death under Article 248 of the same Code, the death penalty should be imposed for the complex crime of murder with frustrated murder considering that under Article 63, an indivisible penalty cannot be affected by the presence of any mitigating or aggravating circumstance. It should be noted that under the ruling in People v. Muñoz, L-38968-70, February 9, 1989, Article III, Section 19(1) of the 1987 Constitution does not change the period of the penalty for murder except only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. Hence, the lower court correctly imposed the penalty of reclusion perpetua on Ricarte Madali for said complex crime. The mitigating circumstance of voluntary surrender which was proven but not appreciated in favor of Ricarte Madali by the trial court, should be considered in imposing on him the penalty for the murder of Felix Gasang. The presence of this mitigating circumstance without any aggravating circumstance to offset the same justified the imposition of the minimum period of the penalty for murder pursuant to Article 64(2) of the Revised Penal Code. Accordingly, the proper penalty should be the indeterminate sentence of not less than ten (10) years and one (1) day of prision mayor as minimum and not more than twenty (20) years of reclusion temporal as maximum.82 The same mitigating circumstance should be considered in the imposition of the penalty on Ricarte Madali for the crime of frustrated murder committed against Agustin Reloj. The penalty for frustrated murder in accordance with Article 50 in relation to Article 248 is prision mayor in its maximum period to reclusion temporal in its medium period. Taking into consideration the mitigating circumstance of voluntary surrender and applying the Indeterminate Sentence Law, the penalty imposed on Ricarte Madali is four (4) years, two (2) months and one (1) day of prision correccional as minimum to 12 years of prision mayor as maximum.

indeterminate penalty of from six (6) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Ricarte Madali and Annie Mortel Madali shall also be liable to the heirs of Cipriano and Felix Gasang for indemnity in the total amount of sixty thousand pesos (P60,000) in the proportion of 2:1 (2 shares for Ricarte Madali as principal and iv share for Annie Mortel Madali as accomplice), with each accusedappellant being subsidiarily liable for the other in case of insolvency. The Court sees no reason to disturb the lower court's findings on the reimbursement of hospitalization and medical expenses in favor of Merlinda Gasang and Agustin Reloj as well as the award of damages, except to clarify that payment thereof shall likewise be in the proportion of 2:1 as above stated and with each accused being subsidiarily liable for the other in case of insolvency. WHEREFORE, except as hereinabove modified, the decision of the lower court is hereby affirmed. Costs against the appellants. SO ORDERED. Gutierrez, Jr., Feliciano, Bidin and Cortés, JJ., concur. Decision affirmed with modification.

As an accomplice, Annie Mortel Madali should be imposed the penalty next lower in degree than that prescribed by law for the consummated felonies.83 For the complex crime of murder and frustrated murder, like her husband, she shall be imposed the penalty of reclusion perpetua,84 considering that the penalty prescribed by law for Ricarte Madali is the death penalty. For the murder of Felix Gasang, the penalty imposable on her is prision mayor maximum to reclusion temporal medium,85 and there being no aggravating nor mitigating circumstances, the penalty should be reclusion temporal minimum.86 Applying the Indeterminate Sentence Law, Annie Mortel Madali should therefore be meted the penalty of six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years and eight (8) months of reclusion temporal as maximum. For the crime of frustrated murder committed against Agustin Reloj, Annie Mortel Madali shall be sentenced to an

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because: (1) The contradictions pointed out against them involve only the relative locations of .the three carinderias near the scene of the crime, not the acts of commission of the three defendants at a distance of about seven meters from where the two state witnesses were then standing; (2) The uncertainties pointed out refer to the description of .the pieces of iron used by Felicisimo Tan and Fidelina Tan, that is, as to the size, length and other details. Considering that the place was not well lighted and that there was little time to observe, accurate description of the weapons used could not be expected three years later when the witnesses testified. Same; Same; Same; Same; Where contention that witnesses testified out of spite was not believed.—The contention that Enrique Gelario and Enrique Gela testified against Felicisimo Tan and Fidelina Tan out of spite because the latter had refused to transport the former to their respective barrios, is not well' taken. It is not natural for a person to testify under oath against his neighbor on a matter of life and. death just because of a trifling incident causing slight inconvenience,

No. L-24491. September 30, 1969. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUFINO GENSOLA, FIDELINA TAN and FELICISIMO TAN, defendants-appellants Criminal law; Justifying circumstances; Where the facts belied legitimate defense.— The claim of legitimate defense was denied on the following grounds: (1) the serious wounds and fractures of the skull on the back of the head and on the left forehead of the victim, which could have been caused only by strong blows with pieces of iron, (2) the testimony of the doctor who performed autopsy testified that he did not see any pile of stones near the dead body of the victim, which belies the claim of the accused that the victim fell and his forehead struck against a pile of stones. Same; Criminal liability; Assumption of criminal liability for another.—The penal law does not allow anyone to assume the criminal liability of another. Remedial law; Evidence; Witnesses; Credibility; Where contradictions involve minor matters.—The testimonies of the principal prosecution witnesses were believed

Criminal law; Conspiracy; Where facts belied presence of conspiracy; Case at bar.— Conspiracy was found to be absent in the case at bar for the following reasons: (1) Fidelina Tan's intention revealed by the words she muttered to herself, "He does not appear because I will kill him," was not shared by Feliciano Tan, who kept silent. Silence is not a circumstance indicating participation in the same criminal design. With respect to Rufino Gensola, he was not even in the truck at the time. (2) When Miguel Gayanilo was crossing Gerona St, it was only Rufino Gensola who followed closely behind, Fidelina Tan and Felicisimo Tan were in the middle of the street. The words shouted by Fidelina Tan, "Rufino, strike him," were meant as a command and did not show previous concert of criminal design. (3) The blows given with pieces of iron on the back of the head and on the left forehead by Felicisimo and Fidelina after Rufino had struck with a piece of stone the left face of Miguel, do not in and by themselves show previous concert of criminal design. Particularly when it is considered that Rufino and Fidelina remained for a few seconds observing the prostrate body of Miguel until Fidelina muttered, "He is already dead." In the absence of conspiracy, the liability of the three appellants is individual, that is, each appellant is liable only for his own act. Same; Principals; Principal by inducement; "Inducement" defined; Command must be the moving cause of the offense.—The second class of principals, according to Article 17 of the Revised Penal Code, comprises, "those who directly force or induce others to commit it (the act)." Those who directly induce others to commit the act are called "principals by inducement" or "principals by induction," from the Spanish "autores por inducción." The word "inducement" comprises, in the opinion of Viada and the Supreme Court of Spain, reward, promise of reward, command, and pacto.

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With respect to command, it must be the moving cause of the offense. In the case at bar, the command shouted by Fidelina, "Rufino, strike him," was not the moving cause of the act of Rufino Gensola. The evidence shows that Rufino would have committed the act at his own volition, even without said words of command. Same; Criminal liability; Where injury was inflicted upon dying person; Case at bar.—Assuming that the trauma inflicted by Felicisimo was by itself sufficient to produce death due to traumatic shock, should Fidelina be also held liable considering that death could have resulted anyway f rom the act of Felicisimo and that a person cannot be killed twice? The obvious answer is that although a dead person cannot be killed again, a dying person can still be killed. Miguel was not dead but dying when Fidelina struck his left forehead with a piece of iron. Hence, the trauma inflicted by her hastened the death of Miguel from traumatic shock made doubly severe. She must, therefore, be also held criminally liable for the death of the victim. Same; Aggravating circumstances; Alevosia (treachery); Where killing was attended by treachery.—The crime committed is murder if the killing is attended with the qualifying circumstance of alevosia. Same; Same; Same; Same; Case at bar.—There was alevosia because after Rufino suddenly struck Miguel Gayanilo with a stone, Miguel, defenseless, was struck by Felicisimo Tan with a piece of iron on the back of the head and by Fidelina Tan with a piece of iron on the left forehead. APPEAL from a decision of the Court of First Instance of Iloilo. Imperial-Reyes, J. The facts are stated in the opinion of the Court. Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C. Borromeo and Solicitor Pedro A. Ramirez for plaintiff-appellee. Dominador Garin for defendant-appellant Rufino Gensola. Juan C. Orendain for other defendants-appellants. CAPISTRANO, J.: Appeal from the decision of the Court of First Instance of Iloilo finding the defendants, Rufino Gensola, Fidelina Tan and Felicisimo Tan, guilty as principals of the crime of murder and sentencing each of them to reclusión perpetua and ordering said defendants to pay in solidum the sum of P6,000 as indemnity to the heirs of the deceased Miguel Gayanilo.

Rufino Gensola was the driver, while Fidelina Tan and Felicisimo Tan were the conductors, of a passenger truck, Gelveson No. 17 (belonging to Jose Tan, father of Fidelina and Felicisimo), with station at Guimbal, Iloilo. They suspected Miguel Gayanilo of. having punctured the tires of the truck while it was parked in front of his carinderia on Gerona St., Guimbal, on November 18, 1958. In the afternoon of the following day, November 19, on the return trip of the truck, then driven by a temporary driver, Restituto Gersaneva, from Iloilo City, Enrique Gelario and Enrique Gela were among the passengers of the truck, Before the truck entered the poblacion of Guimbal, it parked on Gonzales St. to discharge a passenger and his baggage. Enrique Gelario and Enrique Gela, overheard Fidelina Tan mutter to herself, obviously referring to someone she did not name: "He does.not appear because I will kill him." ("No aparece porque le voy amatar.") The truck then continued on its way and parked in front of Teodora Gellicanao's carinderia on Gerona St. in the poblacion. All the passengers got off the truck. Enrique Gelario and Enrique Gela crossed the street towards the carinderia of Pedro Genciana to await 'another passenger truck for their respective barrios. The Gelveson No. 17 then left in the direction of the nearby carinderia of Violeta Garin, returned a short time later, and parked in front of the bodega of its owner, Jose Tan, The time was about 6:30 p.m. Miguel Gayanilo was crossing the street from the public market in the direction of his carinderia with Rufino Gensola, holding in his right hand a stone as big as a man's fist, following closely behind. At this time, Felicisimo and Fidelina Tan were standing in the middle of the street. After Miguel Gayanilo had crossed the middle of the street near the two, Fidelina Tan shouted, "Rufino, strike him." Upon hearing the shout Miguel looked back and Rufino suddenly struck him on the left face with the stone. Felicisimo then struck Miguel with a piece of iron on the back of the head causing serious wounds and fracture of the skull. Not content with the two blows already given, Fidelina struck Miguel with another piece of iron on the left forehead causing serious wounds and fracture of the skull. Miguel fell to the ground near the canal along the side of the street. Rufino Gensola immediately left for his house situated on Gonzales St. Felicisimo and Fidelina observed the prostrate body for a few seconds until Fidelina muttered: "He is already dead." ("Ya esta muerto.") The two then left the scene of the crime. The autopsy report shows that Miguel Gayanilo suffered lacerated wounds on the left face, serious wounds and fracture of the skull on the back of the head, and serious wounds and fracture of the skull on the left forehead. Death was caused by traumatic shock. The death of Miguel Gayanilo caused by traumatic shock which resulted from the strong blows inflicting trauma on the back of the head and on the left forehead, was admitted particularly by the accused Rufino Gensola, who assumed sole responsibility for the same.

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The lower court found the three defendants guilty as principals of the crime of murder and rendered judgment as follows: "Por tanto, el Juzgado declara a los acusados Rufino Gensola, Fidelina Tan y Felicisimo Tan culpables, fuera de toda duda racional, del delito de asesinato, tal como se alega en la querella y, no habiendo circumstancias que pueden modificar su responsibilidad criminal, condena a cada uno de los tres a sufrir la pena de reclusión perpetua, a indemnizar, mancomunada y solidariamente, a los herederos de Miguel Gayanilo en la suma de P6,000.00 sin sufrir prisión subsidiaria correspondiente, en caso de insolvencia, dada la naturaleza de la pena principal, a las accesorias de la ley y a pagar ademas, cada uno una tercera (1/3) parte de las costas del juicio." Defendant appealsed. Appellants contend that Rufino Gensola alone inflicted with stone blows the serious wounds and fractures of the skull which caused the death of Miguel Gayanilo, but that he did so in legitimate defense of Fidelina Tan and of himself. The contention is unmeritorious in view of the following considerations: (1) The testimony of Rufino Gensola and Fidelina Tan that Miguel Gayanilo, then drunk, angrily demanded to know from Fidelina why she suspected him of f having punctured the tires of the truck and was about to strike Fidelina with a stone, and that in legitimate defense of Fidelina and of himself Rufino picked up two stones, struck Miguel on the left face with one 'stone and threw the other stone at him when he started to run away, hitting him on the back of the head and causing him to fall and strike his forehead against a pile of stones, is belied by, first, the serious wounds and fractures of the skull on the back of the head and on the left forehead of the victim, which could have been caused only by strong blows with pieces of iron; and, second, by the testimony of Dr. Juan Encanto, who performed the autopsy, that he did not see any pile of stones near the dead body of Miguel Gayanilo when he arrived at the place in response to a call (2) The admission of Rufino Gensola that he alone was responsible for the serious wounds and fractures of the skull inflicted upon Miguel Gayanilo in legitimate defense of Fidelina Tan and of himself, has no probative value because it constitutes, in the face of contrary credible evidence for the prosecution, an assumption by Rufino Gensola of the criminal liability of Felicisimo Tan and Fidelina Tan. The penal law does not allow anyone to assume the criminal liability of another. Appellants contend that the testimonies of the principal prosecution witnesses, Enrique Gelario and Eurique Gela, are unworthy of credence because of contradictions and uncertainties, showing that they were not present and did not witness the commission of the crime. The contention is untenable for the following

reasons. (1) The contradictions pointed out involve only the relative locations of the three carinderias near the scene of the crime, not the acts of commission of the three defendants at a distance of about seven meters from where the two state witnesses were then standing, (2) The uncertainties pointed out refer to the description of the pieces of iron used by Felicisimo Tan and Fidelina Tan, that is, as to the size, length and other details. Considering that the place was not well lighted and that there was little time to observe, accurate description of the weapons used could not be expected three years later when the witnesses testified. (3) The contention that Enrique Gelario and Enrique Gela testified against Felicisimo Tan and Fidelina Tan out of spite because the latter had ref used to transport the former to their respective barrios, is not well-taken. It is not natural for a person to testify under oath against his neighbor on a matter of life and death just because of a trifling incident causing slight inconvenience. (4) We find the testimonies of the four defense witnesses, Fidelina Tan, Felicisimo Tan, Elias Gensola and Salvador Gayatao, that Enrique Gelario and Enrique Gela were not present at the scene of the crime because they had already left Gerona St walking to another street to await transportation to their respective barrios, unworthy of credence. Let us now consider the criminal liability of the three appellants. The lower court found them guilty as principals of the crime of murder on the assumption that there was conspiracy among them. We do not agree, for the following reasons: (1) Fidelina Tan's intention revealed by the words she muttered to herself, "He does not appear because I will kill him," was not shared by Felicisimo Tan, who kept silent. Silence is not a circumstance indicating participation in the same criminal design. With respect to Rufino Gensola, he was not even in the truck at the time. (2) When Miguel Gayanilo was crossing Gerona St., it was only Rufino Gensola who followed closely behind. Fidelina Tan and Felicisimo Tan were in the middle of the street. The words shouted by Fidelina Tan. "Rufino, strike him," were meant as a command and did not show previous concert of criminal design, (3) The blows given with pieces of iron on the back of the head and on the left forehead by Felicisimo and Fidelina after Rufino had struck with a piece of stone the left face of Miguel, do not in and by themselves show previous concert of criminal design. Particularly when it is considered that Rufino immediately left thereafter while Felicisimo and Fidelina remained for a few seconds observing the prostrate body of Miguel until Fidelina muttered, "He is already dead." In the absence of conspiracy, the liability of the three appellants is individual, that is, each appellant is liable only for his own act. Appellant Rufino Gensola is liable only for the lacerated wounds inflicted by him on the left face of Miguel Gayanilo. Such lacerated wounds caused disfigurement ("deformity") of the face within the meaning of Article 268 (3) of the Revised Penal

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Code punishable by prisión correccional in its minimum and medium periods in relation to the Indeterminate Sentence Law. The offense having been committed with treachery, the penalty should be imposed in its maximum period. Is appellant Fidelina Tan also liable for the offense considering that she gave the command "Rufino, strike him"? The second class of principals, according to Article 17 of the Revised Penal Code, comprises "those who directly force or induce others to commit it (the act)." Those who directly induce others to commit the act are called "principals by Inducement" or "principals by induction," from the Spanish "autores por inducción." The word "inducement" comprises, in the opinion of Viada and the Supreme Court of Spain, reward, promise of reward, command, and pacto. With respect to command, it must be the moving cause of the offense. In the case at bar, the command shouted by Fidelina, "Rufino, strike him," was not the moving cause of the act of Rufino Gensola. The evidence' shows that Rufino would have' committed the act of his own volition. even without said words of command. Are the appellants Felicisimo Tan and Fidelina Tan both liable for the 'death of Miguel Gayanilo? Our opinion is in the affirmative. The trauma inflicted by Felicisimo and the trauma inflicted by Fidelina, combined, produced death due to traumatic shock. When Fidelina struck with a piece of iron the left forehead of Miguel, he was not yet dead. It was only after the trauma inflicted by Fidelina that the dying Miguel fell to the ground and died seconds later. This is clear from the evidence that after Miguel had fallen to the ground, Felicisimo and Fidelina observed his prostrate body for a few seconds until Fidelina muttered; "He is already dead." Assuming that the trauma inflicted by Felicisimo was by itself sufficient to produce death due to traumatic shock, should Fidelina be also held liable considering that death could have resulted anyway from the act of Felicisimo and that a person cannot be killed twice? The obvious answer is that although a dead person cannot be killed again, a dying person can still be killed. Miguel was not dead but dying when Fidelina struck his left forehead with a piece of iron. Hence, the trauma inflicted by her hastened the death of Miguel from traumatic shock made doubly severe. She must, therefore, be also held criminally liable for the death of the victim.

PREMISES CONSIDERED, that part of the appealed judgment sentencing each of the appellants Felicisimo Tan and Fidelina Tan to reclusión perpetua is affirmed. Said appellants are also ordered to pay in solidum the sum of P12,000 as indemnity to the heirs of the deceased, Miguel Gayanilo. That part of the judgment against appellant Rufino Gensola is modified by sentencing said appellant to an indeterminate penalty of from 3 months. of arresto mayor as minimum to 3 years of prisión correccional as maximum. Costs against the appellants. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando and Teehankee, JJ., concur. Barredo, J., did not take part, Reyes, J.B.L., Dizon and Sanchez, JJ., are on leave. Judgment against Gensola modified and affirmed as regards to other defendants. Notes.—(a) Credibility not affected by contradictions in minor details.—See People vs. Viñas, 25 SCRA 682; People vs. Guardo, 24 SCRA 851; People vs. Pelago, 24 SCRA 1027; People vs. Albapara, 22 SCRA 1043 ("Differences in details serve to enhance rather than destroy credibility"); People vs. Belchez, 22 SCRA 1321. (b) Conspiracy.—See the annotation in 26 SCRA 761766. (c) Principal by inducement.—A person may be regarded as a principal by inducement if his acts or words, done or uttered before the commission of the offense for that purpose, were the- direct and determining cause thereof (People vs. Castillo, 17 SCRA 721). (d) Treachery.—See the annotation in 27 SCRA 30-40.

Was the killing murder? Our opinion is in the affirmative because it was attended with the qualifying circumstance of alevosia. There was alevosia because after Rufino suddenly struck Miguel Gayanilo with a stone, Miguel, defenseless. was struck by Felicisimo Tan with a piece of iron on the back of the head and by Fidelina Tan with a piece of iron on the left forehead.

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No. L-20911. October 30, 1967. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SULPICIO DE LA CERNA, ET AL., defendants. SULPICIO DE LA CERNA,SERAPIO MAQUILING,TEODORO LIBUMFACIL,GODOFREDO ROTOR,SEVERINO MATCHOCA,and ANTONIO BAUTISTA, defendants-appellants. Preliminary investigation; Effect of failure to raise irregularity before entering plea; Case at bar.—When the municipal court finished with the preliminary investigation, it opined that only De la Cerna was guilty while the rest of the accused were not. The fiscal, however, without seeking a review of the findings of the court, conducted his own investigation and, afterwards, indicted all the accused. It is contended that this was serious error. Held: The objection was raised only after the prosecution had already rested its case. Hence, whatever procedural defect there was, had been waived by the appellants by their failure to raise it before entering their pleas. Criminal law; Self-defense; Case at bar.—Appellant's version of self-defense cannot be accepted. The autopsy reports contradict Sulpicio's claim that he shot the decedents frontally while he was up in his house. For both deceased each sustained a gunshot wound directly at the back. Moreover Casiano's wound of entry—located along the 12th rib—is lower than the wound of exit—located along the 6th rib— showing that the bullet flight path was upwards, not downwards. A gun fired from the elevated flooring of a house like Sulpicio's, and aimed downwards, could not have caused such wounds. Rafael's cadaver bore a stab wound on the left side. Appellant's version could not account for this. Same; Motive; Case at bar.—Sulpicio has more reason to kill Rafael than the latter would have as to him. The source of the possible motive is the same: land trouble between Rafael and Sulpicio's father, and the ejectment suit instituted against the latter by the former. Considering that Rafael was the prevailing party in the land dispute before the NARRA, it is quite hard to believe that he would be the one

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entertaining a grudge against those over whom he had prevailed. Rather, it was the accused, who were defeated and who were now facing an ejectment suit that harbored resentment against the deceased. Criminal procedure; Effect of retraction by a prosecution witness of his previous testimony; Case at bar.—Mere retraction by a prosecution witness does not necessarily vitiate the original testimony otherwise credible. The proper thing for the trial court to do is to weigh and compare both testimonies. Here, the lower court, after having done so, accepted, Caña's testimony for the prosecution. In this, it did not err. Firstly, the original testimony is positive and replete with details, and Caña withstood a long and thorough cross-examination which could not have been so, if the story were merely fabricated. Secondly, Caña's narration of the shooting incident was fully corroborated by the other prosecution witnesses. Lastly, the charged inconsistencies and improbabilities therein are too insignificant to affect the substance thereof. Criminal law; Evident premeditation; Case at bar.—There being a previous direct conspiracy one day before the killing, evident premeditation is duly established. This qualifying circumstance is further buttressed by the following actuations of appellant on February 3, 1958: (1) Upon seeing Rafael near his house, Sulpicio told his companions to get ready since the one they were awaiting was there already. And then he shot Rafael. (2) As Rafael was being brought to Demetrio's house, Sulpicio ordered his companions to burn his house so they would have an excuse already. (3) With the other appellants, he pursued the wounded Rafael to Demetrio's house, where after they had stoned the same and thrust their bolos thru its wallings, they ordered the women to leave lest they be killed also; and (4) after Serapio had already shot at Rafael, Sulpicio still fired a third shot, finally killing Rafael. All these overtly show appellant's determination to end Rafael's life. The killing, therefore, was properly qualified as murder. Same; Conspiracy.—The rule has always been that conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. APPEAL from a decision of the Court of First Instance of Cotabato. The facts are stated in the opinion of the Court. Godofredo Galindez for defendants-appellants. Solicitor General for plaintiff-appellee. BENGZON, J.P., J.: Sixteen persons, among them herein appellants, were indicted by the provincial fiscal in the Court of First In-stance of Cotabato for double murder for the fatal shooting of Rafael and Casiano Cabizares,1 father and son, in Barrio Cebuano,

municipality of Tupi, province of Cotabato, on February 3, 1958. All pleaded not guilty. In the course of the trial, after the prosecution had rested the People's case, the accused filed a motion to dismiss on the ground, inter alia, that the fiscal, after conducting his own preliminary investigation, included in the charge the other accused who were already dropped therefrom by the Municipal Court. The trial court denied said motion but acquitted accused Gaspar Bautista, Agapito Avellana, Cesar Abapo and Eriberto Matchoca for insufficiency of evidence against them. The defense then presented its evidence. While at this stage, accused Segundo de la-Cerna died and the charge against him was dropped. After trial, the lower court, on January 3, 1962 promulgated its decision. Acquitted were Guillermo Esperanza, Concordio Pardillo, Deogracias Pardillo, Andres Abapo and Joaquin Libumfacil. Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling, as principals, and Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil, as accomplices. For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and Serapio Maquiling as principals, and Ramon Alquizar as accessory. A motion to reconsider by the convicted accused failed to move the lower court. So the said accused followed up with their notice of appeal. Two days later accused Ramon Alquizar was allowed to withdraw his intended appeal. And during the pendency of the appeal in this Court, accused Serapio Maquiling moved to withdraw his appeal also, and this was granted on August 8, 1967. The present appeal, therefore, involves only Sulpicio de la Cerna as principal for the killing of both Rafael and Casiano Cabizares; and Teodoro Libumfacil, Godofredo, Originally, there were two informations but upon motion of the accused, they were consolidated and jointly tried in the same proceedings. The first question is procedural. It appears that when the municipal court finished with the preliminary investigation, it opined that only appellant Sulpicio de la Cerna was guilty while the rest of the accused were not. The fiscal, however, without seeking a review of the findings of the court, conducted his own investigation and, afterwards, indicted all the accused. It is contended that this was serious error. The objection, however, was raised only after the prosecution had already rested its case. Hence, whatever procedural defect there was, had been waived by the appellants by their failure to raise it before entering their pleas.2 Appellants next assail the lower court for relying on the prosecution witnesses who gave, in substance, the following narration of facts and circumstances: Early in the morning of February 3, 1958, Rafael Cabizares. accompanied by his wife, Hospicia, his brothers Marearito and Romualdo, and his sons Gumercindo, Marcelo, Casiano, Juan and Lamberto, left Barrio Cebuano headed for the poblacion of Tupi, Cotabato, bringing five sacks of corn loaded on a bull cart to be milled in Tupi. Juan, Marcelo and Lamberto, who were all minors, were then

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going to school. Upon approaching a hilly part, they had to stop since the carabao could not pull the bull cart uphill. Rafael then requested his two brothers and his son Gumercindo to accompany him up the hill and carry on their backs the sacks of corn. With Rafael leading, the four proceeded uphill. As the four approached Sulpicio de la Cerna's house on top of the hill and were about to put down the sacks of corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, who fell down. Sulpicio then ordered his companions to burn his house so that they would have an excuse. Meanwhile, Casiano, Gumercindo, Marcelo and Romualdo brought the wounded Rafael Cabizares to the house of the latter's father, Demetrio, 100 meters away. Felisa Bastismo, Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time. After the group reached the house, Rafael's, wounds were washed with hot water and then he was brought inside the third room of the house. Subsequently, appellant Sulpicio and the other accused arrived at the premises, armed with firearms, bolos and canes. They stoned the house and trust their bolos thru the bamboo walls and flooring. Finding that there were women inside the house, the accused ordered them to get out or else they would be killed also. As Felisa Bastismo and Ursula Cabizares alighted from the besieged house, Marcelo Cabizares followed them, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he was able to escape to the nearby forest. Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he got from appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room. At this moment, Casiano Cabizares jumped down from the house thru the kitchen door and ran away. Serapio Maquiling followed him and shot the latter at the back, killing him a few meters away from Demetrio's house. Appellant Sulpicio de la Cerna then got back the carbine, climbed up the house and fired once more at Rafael, who was now lying down on the floor, killing him finally. Thereafter, the cadaver of Casiano Cabizares was tied to a bamboo pole, carried by accused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the burned house of Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael's house. The post mortem examination3 conducted that very same day showed that Casiano Cabizares died from a gunshot wound, the bullet entering the back and passing out in front, while Rafael Cabizares sustained three gunshot wounds of entrance, one gunshot exit wound, and one stab wound. Dr. Bienvenido Garcia, the Municipal Health Officer, explained that the bullet which caused the first wound located in front, at the left lower abdomen, did not go thru at the back but split into two parts after entering the body. However, these two parts were already palpable on the left buttock of the decedent from which they were extracted. The bullet which caused the second wound located directly at the back lodged in the 11th thoracic vertebra. The third bullet entered near the left breast and went out at the right lumbar region.

The prosecution also presented proof that prior to the incident, a land dispute arose between Rafael and some of the accused,4 and that he had filed complaints5 with the Agrarian Court against the latter, the trial of which cases was scheduled on February 10, 1958. Appellants would have this Court believe that they are innocent. The four appellants convicted as accomplices insist they were never at the vicinity of the killing. On the other hand, appellant Sulpicio de la Cerna claims that both Rafael and Casiano were killed in self-defense. Sulpicio's version of what transpired is this: In the morning of February 3, 1958, Guillermo Esperanza and Sulpicio de la Cerna had just roasted corn in the latter's house when Rafael, Casiano, and others, all armed with bolos and canes, arrived. Rafael demanded of Sulpicio to come down for a confrontation. The latter's refusal to do so angered Rafael who threw his cane at Sulpicio and ordered his companions to surround the house, thrust their bolos thru it and burn it. Because the house was on fire, and fearing that he would be killed, bulpicio alerted Guillermo Esperanza got his carbine and fired indiscriminately at his attackers to drive them away. When Rafael and Casiano were hit, their companions fled. Guillermo Esperanza and Sulpicio then got down from the burning house and left, passing by the prostrate bodies of the decedents. Sulpicio proceeded to the house of one Pedro Esperanza to drink water and while there, he saw a jeep coming loaded with policemen, to whom he surrendered himself and his carbine. Expectedlv, Guillermo Esperanza gave the same version as above-narrated. Said appellant’s version cannot be accepted. The autopsy reports contradict Sulpicio’s claim that he shot the decedents frontally while he was up in his house. For both deceased each sustained a gunshot wound directly at the back. Morever Casiano’s wound of entry—located along the 12th rib—is lower than the wound of exit—located along the 6th rib6—showing that the bullet flight path was upwards, not downwards. A gun fired from the elevated flooring7 of a house like Sulpicio’s, and aimed downwards, could not have caused such wounds. Lastly, Rafael’s cadaver bore a stab wound on the left side. Appellant’s version could not account for this. While on the one hand nothing was found around the burned house of appellant Sulpicio de la Cerna, such as the alleged cane thrown by Rafael, nor any other weapon or stones which may indicate agression or violence, on the other, bloodstains were found inside Demetrio Cabizares’ house8 and also on the ground at the spot where, according to the prosecution,9 Casiano fell when shot by Serapio Maquiling. An empty carbine shell (Exh. I) was also found by Dr. Garcia in the kitchen. In this regard, his testimony is not hearsay, as appellant contends, for although Dr. Garcia did not personally pick it up, he saw the empty shell taken from the floor and handed over to his companions before finally reaching him.10 While Casiano’s body was found near Sulpicio’s burned house, even appellant’s own

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witness11 admitted having found Rafael’s body inside Demetrio’s house right after the incidents occurred. Appellant’s supposition that Rafael’s companions must have returned and carried away his body can hardly be accepted since there is no reason why they would not also bring back Casiano’s body. Moreover, we find it hard to believe that Sulpicio, after felling the decedents and dispersing the latter’s companions, would still leave his house when it was not yet totally burned, as he himself admitted. The natural thing for him to have done—were it true that it was decedents who set fire to it—was to put down the fire and save his house. Anyway his life was no longer in danger. Lastly, Sulpicio has more reason to resent and kill Rafael than the latter would have as to him. The source of the possible motive is the same: land trouble between Rafael Cabizares and Sulpicio’s father, and the ejectment suit instituted before the Agrarian Court against the latter by the former. Considering that Rafael was the prevailing party in the land dispute before the NARRA, it is quite hard to believe that he would be the one entertaining a grudge against those over whom he had prevailed. Rather, it was the accused, who were defeated and who were now facing an ejectment suit which was set for hearing, that harbored resentment against the deceased. Furthermore, all the foregoing considerations fit well into the prosecution’s version. We have gone over the testimonies of the prosecution witnesses and found them credible. That most of them are related to the victims does not necessarily impair their credibility.12 Appellants however invite our attention to inconsistencies and improbabilities allegedly abounding in their testimonies. We shall consider each witness and their testimonies separately. 1. Romualdo Cabizares—He was with his brother Rafael when the latter was shot near Sulpicio’s house and was among those who brought Rafael to their father’s (Demetrio) house 100 meters away. He did not go up the house since he had to go back and evacuate his family to a forest 400 meters away. Having done so, he went back and saw the incidents around Demetrio’s house from a place covered with corn plants just 25 meters away. Appellants point out that his statements on the whereabouts of Conrado Pardillo were inconsistent, leading the lower court to disbelieve him and acquit Pardillo. We find no inconsistency since Pardillo’s going to Rafael’s house with the other accused was after the events in Demetrio’s premises had taken place.13 The lower court acquitted Pardillo not because it disbelieved Romualdo but rather, taking his testimony as true, the court held that the facts proved were insufficient to tack criminal liability on Pardillo.14 This witness was able to observe the events around Demetrio’s house. Even if the corn plants where he hid were sparse, because of the 25-meter distance from the accused whose attentions were focused on Demetrio’s house, and considering that he was in a hidden place15 while the accused were in the open field, Romualdo could see them without their noticing him. It is true that the forest where

Romualdo took his family was 400 meters away, but the accused took some time before they followed to Demetrio’s house and Romualdo ran back after hiding his family.16 2. Margarito Cabizares—He was beside his brother Rafael at the hill top when the latter was shot by Sulpicio. When he tried to hide near some banana clumps, Guillermo Esperanza stabbed him, hitting him near the left shoulder and causing him to fall unconscious. Shortly later when he recovered consciousness, he followed Rafael who was being brought to Demetrio’s house but he was told by Rafael to save himself so he went to a forest 400 meters away where he saw the goings-on around Demetrio’s house. Appellants state that nothing much can be gathered from his testimony. However, they overlook the obvious fact that Margarito was an eyewitness to the shooting of Rafael near Sulpicio’s house. Although he lost consciousness after being stabbed, it was momentary only, the wound not being very serious.17 It was not impossible for him to have observed activities around Demetrio’s house at a distance of 400 meters. Witness Bonifacio Barro corroborates him on this point.18 Lastly, he need not be a ballistics expert to recognize gunshot bursts. 3. Gumercindo Cabizares—He was with his father Rafael at the hill top. He warned his father just before Sulpicio fired the carbine. After Rafael was hit, he helped carry him to Demetrio’s house but did not stay there since he was told by Rafael to go to Dadiangas to call the P.C. Appellants claim that his testimony regarding a conversation with Juan Cabizares on the way downhill is contradicted by Juan himself who stated that he was not with those who brought Rafael to Demetrio’s house. We fail to see any contradiction. Juan did not deny having conversed with Gumercindo. And what the latter said was that after meeting Juan, they went ahead and Juan probably followed behind.19 We do not think it is stupidity for a son to warn his father of imminent danger—as Gumercindo did—and to come to the latter’s aid despite danger. We prefer to consider such behavior as "courage under fire." 4. Marcelo Cabizares—He was near the bullcart downhill and when he heard gun shots, he went uphill. There he helped carry his father Rafael to his grandfather Demetrio’s house. After the accused arrived in the latter’s house, the women were ordered to get out. He followed Ursula Cabizares and Felisa Bastismo on the way down but he was held by Pardillo and boxed by Serapio Maquiling. Still, he was able to escape. Appellants point out to two statements of his, one wherein he was able to identify all the accused and the other, wherein he was able to name only four of them, alleging material inconsistency. The statements however referred to different situations. The first was when all the accused arrived at Demetrio’s place, and the second statement refers to those whom Marcelo Cabizares saw when he came down from the house.20 He was able to run away after Serapio Maquiling boxed

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him because he was freed from the hold of Pardillo and Serapio.21 On redirect, he clarified that he left Demetrio’s house in the morning.22 5. Juan Cabizares—He also stayed with the bullcart downhill and when he heard gun shots, he went uphill and saw his father wounded. He then followed behind the group carrying Rafael to Demetrio’s house and while inside the house, saw the killing of Rafael and Casiano. Juan did not lie when he said his father was shot by Sulpicio for altho he did not see the actual shooting, he had good reasons to conclude that Sulpicio fired the shot since he saw the latter, shortly after the shooting, holding the carbine which was still pointed at Rafael.23 Anyway, his testimony on the point is merely corroborative of the others who were eyewitnesses. He was able to identify Serapio Maquiling as the one who first shot his father in Demetrio’s house although Serapio was behind the bamboo partition, since there were openings in it enabling one to see thru and he peeped thru it.24 The measurements in the third room (3 m x 4 m) are compatible with Juan’s statement that Sulpicio was 1-1/2 m away from Rafael when the third shot was fired since Sulpicio did not go inside the room but fired from the window outside.25 Juan was competent to testify on what occurred outside the house since he was also peeping thru the slits in the bamboo walls.26 6. Felisa Bastismo—She was the mother of Rafael Cabizares. She was with Ursula Cabizares and Segundino Cabizares inside Demetrio’s house when the wounded Rafael was brought in. After Rafael’s wounds were washed, Felisa went down from the house with Ursula, as ordered by the accused. And in the corn fields nearby, she witnessed the killing of Casiano. Appellants make much of Felisa’s testimony referring to Rafael’s “wounds” when he was brought in the house and argue that Rafael had been shot at least twice already. But Felisa did not examine the wound of Rafael. Neither did she state how many wounds he had. The substance of her testimony is only that Rafael was wounded when he arrived. As to the impossibility for the stones to go thru the broken window shutter (Exh. K), Felisa admitted that she merely heard the sound when they fell on the floor.27 Surely, appellant cannot seriously contend that one has to see stones going thru the house to know that it is being stoned. Anyway, it is not impossible for a large stone hurled against a bamboo shutter to cause a hole therein measuring 14” x l1/2.” And assuming that such hole appears more to have been cut by a bolo and forced open, Felisa testified that the accused also thrust their bolos thru the walls.28 It is not impossible for Felisa to have seen Casiano’s shooting for she lay flat on the ground after having witnessed it already.29 She also explained why she was alone in the corn fields although she left the house together with Ursula. Being 76 years old, she was slower than Ursula, and she stumbled while fleeing so she was able to reach up to the corn fields only.30 As to Juan’s arrival, the testimonies of

the other witnesses are uniform that the group carrying Rafael arrived in Demetrio’s house first and Juan, who followed behind, arrived afterwards.31 Juan corroborates Felisa that he helped carry Rafael to the third room.32 Marcelo probably noticed Juan only after Rafael had been brought to the third room, leading him to say that Juan arrived after Rafael was brought there.33 7. Ursula and Segundino Cabizares—Both were in Demetrio’s house with Felisa Bastismo. They saw the arrival of the accused and the stoning and thrusting of bolos thru the wallings. One of the bolos wounded Segundino Cabizares on the left thigh. Ursula Cabizares hid in a palay container but when they were ordered to get out, she and Felisa Bastismo left and returned later in the afternoon. While Ursula was evidently mistaken when she said that Margarito was also in the house, the error is immaterial. Contrary to appellants’ contention, she saw Serapio Maquiling on her way down the house.34 As to whether the other accused besides appellant Antonio Bautista were armed with bolos, she stated she did not know since she only saw the bolo tips penetrating thru the wallings.35 Her positive statement that she saw appellant Godofredo Rotor36 prevails, of course, over the negative testimony of Maximo Cana. Appellants argue that since Segundino Cabizares was fearful, he could not have been moving inside the besieged house of Demetrio, peeping every now and then thru the openings in the walls and observing the accused. They seem to forget however that different people react differently even when apprehensive. Thus, Segundino’s restlessness inside the house is neither unnatural or ridiculous to believe. 8. Bonifacio Barro—He was with Fiscal Daproza and Sgt. Paladin inside Demetrio’s house a few days after February 3, 1958 and upon orders of the Fiscal, he took out part of the flooring (Exh. K), the bamboo slatch (Exhs. L and L-l) and the stones (Exhs. M, M-l and M-2). His statement that Exhs. M, M-l and M-2 were some of the stones Fiscal Daproza found on the roof of Demetrio’s house corroborates the other prosecution witnesses who testified that the accused stoned the house. He also stated that there were other stones inside the house, corroborating Romualdo Cabizares.37 9. Dr. Bienvenido Garcia—As municipal health officer, he performed the autopsy on Rafael and Casiano Cabizares on February 3, 1958. He found Casiano’s body near the burned house of Sulpicio de la Cerna, and Rafael’s, inside Demetrio’s house. In the latter house, he also saw a bullet hole on the floor (Exh. J-1) and a carbine shell (Exh. 1). Appellants would cavil on Dr. Garcia’s statement that he saw Exh. J (part of the flooring) only in court. What he said however was that he saw it as cut already from the floor only in court.38 His statements as to the room dimensions (3-4 m x 4-5 m) and the distance of Rafael’s body to the partition (1 m or 2 ft.) are approximations only and not exact measurements.39 A difference of a few insignificant meters is to

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be expected. Lastly, his statements that the bullet hole (Exhibit J-1) was on the floor coincides with Barro’s testimony that Exh. J was cut from the flooring.40 From all the foregoing, it is apparent that the so charged inconsistencies and improbabilities in the testimonies are without substantial and significant basis. Hence, the lower court’s findings should stand, especially since they involve an appreciation of the evidence and credibility of the witnesses. We now proceed to the criminal liability of the appellants. The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the first shot, fired by him, was not attended with treachery since there is evidence that Rafael was warned by his son Gumercindo just before he was hit in the lower abdomen.41 However, even assuming the argument to be tenable, the second shot, by Serapio Maquiling, was definitely treacherously fired since Rafael was then in the third room of Demetrio’s house, wounded and defenseless. The treachery here has to be independently considered due to the sufficient lapse of time42 from the first shot, in which the following events intervened: (1) the bringing of Rafael to Demetrio’s house 100 meters away after being hit; (2) the washing of his wounds and his being brought to the third room to rest; (3) the arrival of the accused and their ordering the two women to get out. It was only after the women left that Serapio climbed up the kitchen and fired the second shot at Rafael. Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling since both were acting as co-conspirators pursuant to their understanding in the meeting held the day before in Andres Abapo’s house, as will be shown presently. Anyway, the third shot, fired by Sulpicio, was treacherously done. Rafael was then flat on the floor and although still alive, was completely defenseless, having been shot twice already. The portion of Dr. Garcia’s testimony43 cited by appellants shows that Rafael died after the third shot hit him— “Q. After wound No. 1 was inflicted, is it possible that Rafael Cabizares was still alive? A. Rafael Cabizares was still alive. Q. After inflicting wound No. 2, is it possible that Rafael Cabizares was still alive? A. He was still alive. Q. When wound No. 3 was inflicted, was he still alive by your conclusion? A. He was dead. Q.

What makes you conclude that he was already dead when wound No. 3 was inflicted? A. Because wound No. 3 is mortal.” thus corroborating Juan Cabizares’ testimony that his father was still alive after the second shot wounded him. Evident premeditation was also present in this case. The previous plan to kill Rafael Cabizares was testified to by witness Maximo Caña who was present in the meeting of February 2, 1958, in the house of Andres Abapo. Of the many persons present, he recognized only appellants Sulpicio de la Cerna, Antonio Bautista, Severino Matchoca and Serapio Maquiling. Bautista told the group that the purpose of the meeting was to plan the killing of Rafael Cabizares. Then both he and Serapio Maquiling signified their willingness to execute it. Appellant Sulpicio also offered to do it provided his family would be taken care of. To this offer, Bautista and Maquiling replied that they would take care of Sulpicio’s family. Caña testified further that none of those attending voiced out any objection but all agreed to the plan. Cana was also present in the early morning of February 3, 1958, when Matchoca, accompanied by Bautista, gave the magazine of bullets to Godofredo Rotor. He was likewise with the accused when Rafael was shot at the hill top, and when he (Rafael) and Casiano were killed in Demetrio’s place. However, one year and ten months after he had testified for the prosecution, witness Cana was presented as a defense witness. As such, he completely retracted on his previous testimony, explaining that all what he had stated was false since he was not in Tupi on February 2 and 3, 1958. Gaudencio Esperanza, presented to corroborate him, testified that in August, 1958, Hospicia Cabizares, widow of Rafael, went to the former’s house where Cana was staying, and gave the latter P50.00 to testify falsely for the prosecution. On rebuttal, Hospicia Cabizares denied this.44 We have thus two sets of testimonies by Caña, completely at variance with each other. Now the rule is that mere retraction by a prosecution witness does not necessarily vitiate the original testimony otherwise credible.45 The proper thing for the trial court to do is to weigh and compare both testimonies. Here, the lower court, after having done so, accepted Caña’s testimony for the prosecution. In this, it did not err. Firstly, the original testimony is positive and replete with details, and Caña withstood a long and thorough cross-examination which could not have been so, if the story were merely fabricated. Secondly, Caña’s narration of the shooting incident was fully corroborated by the other prosecution witnesses. Lastly, the charged inconsistencies and improbabilities therein are too insignificant to affect the substance thereof. On the other hand, in his subsequent testimony,46 Caña was evasive and most of his answers were: I don’t remember” or “I don’t know”. His statement that

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he was in Marbel on February 2 and 3, 1958 is not only uncorroborated but even contradicted by two prosecution witnesses who saw him with the accused on February 3, 1958.47 Caña was also insincere, claiming that his conscience bothered him greatly but he admitted that he could not sleep only in the mornings48 and notwithstanding the serious predicament he was in—because of the inconsistent statements made in open court—he was even smiling.49 Moreover, according to Gaudencio Esperanza, who is the father-in-law of Serapio Maquiling, Caña was only constrained to testify falsely when he was bribed by Rafael’s widow, Hospicia Cabizares, sometime in August, 1958. This pretense can not be believed since a month prior to that, or on July 28, 1958, Caña had already executed an affidavit (Exh. V) incriminating the appellants. It also appears highly improbable for Rafael’s widow to go to the house of a relative of the accused and in his presence openly bribe Caña, a resident therein. Lastly, it is hard to believe that although Gaudencio Esperanza knew of this incident, he told the defense counsel about it only after Caña had already testified for the defense and had been incarcerated to face a charge of perjury.50 The impulse of a man similarly situated would have been to relate such matter at once to his accused relatives. Gaudencio’s failure to do so makes of his story a worthless fabrication. There being a previous direct conspiracy one day before the killing, evident premeditation is duly established.51 This qualifying circumstance is further buttressed by the following actuations of appellant on February 3, 1958: (1) Upon seeing Rafael near his house, Sulpicio told his companions to get ready since the one they were awaiting was there already. And then he shot at Rafael. (2) As Rafael was being brought to Demetrio’s house, Sulpicio ordered his companions to burn his house so they would have an excuse already. (3) With the other appellants, he pursued the wounded Rafael to Demetrio’s house where after they had stoned the same and thrust their bolos thru its wallings, they ordered the women folk to leave lest they be killed also; and (4) after Serapio had already shot at Rafael, Sulpicio still fired a third shot, finally killing Rafael. All these still overtly show appellant’s determination to end Rafael’s life. The killing, therefore, was properly qualified as murder. However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares, notwithstanding a conspiracy between him and Serapio Maquiling. The conspiracy was to kill Rafael only and no one else. Nothing was said or agreed upon about the members of Rafael’s family. In fact, in executing their plan appellants let the two women inside Demetrio’s house leave unhurt and they did no harm to the remaining companions of Rafael in the house. Their target was solely Rafael Cabizares. And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable.52 Here, only Serapio killed

Casiano Cabizares. The latter not even going to the aid of his father Rafael but was fleeing away when shot. Although Serapio got the carbine from Sulpicio, the latter cannot be considered a principal by indispensable cooperation or an accomplice. There is no evidence at all that Sulpicio was aware Serapio would use the rifle to kill Casiano. Presumably, he gave the carbine to Serapio for him to shoot Rafael only as per their agreement. Neither is there concrete proof that Sulpicio abetted the shooting of Casiano. Sulpicio might have been liable if after the shooting of Rafael, Serapio returned the carbine to him but upon seeing Casiano fleeing, immediately asked again for the carbine and Sulpicio voluntarily gave it to him. Serapio’s criminal intention then would be reasonably apparent to Sulpicio and the latter’s giving back of the rifle would constitute his assent thereto. But such was not the case. Sulpicio, therefore, must be acquitted for the killing of Casiano Cabizares. Appellants Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil all put up alibi as their defense. This the trial court rejected but it held them liable as accomplices only, finding reasonable doubt on their guilt as coprincipals. Appellants would again advance their respective alibis here. Appellant Rotor claims that at dawn on February 3, 1957, he went alone to the spring in Barrio Cebuano to fetch water and after staying awhile there, started back home. On the way back, his mother met him and told him not to go home because of an incident (the killing of the decedents) so he went instead to Simeon Navajas’ house and stayed there until February 18, 1958. The prosecution, however, proved that in the early morning of February 3, 1958, Rotor was with Maximo Caria fetching water in the spring. On their way home, they met appellants Bautista and Matchoca. The latter gave Rotor a carbine magazine with bullets, saying: “Here is the magazine of the bullets and give it to Sulpicio de la Cerna.” And appellant Bautista said: “Please hurry. Give it to Sulpicio de la Cerna because we will follow later on.” Shortly afterwards, Caña went with him to Sulpicio’s house where he gave the magazine to Sulpicio, saying: “Here are some bullets supposed to be given to you.”53 Rotor was seen outside—downstairs of—Sulpicio’s house later that morning by Margarito and Gumercindo Cabizares. After Sulpicio had fired at Rafael, Rotor got the pistol from appellant Libumfacil and fired also at Rafael.54 This appellant was also seen by Romualdo, Ursula and Segundino Cabizares as among those who arrived at Demetrio’s house.55 When Ursula Cabizares alighted from the house, she saw Rotor outside holding a pistol which he gave to Libumfacil commenting that it was stuck.56 After the killing of the decedents, Romualdo Cabizares saw him with the group following the cadaver of Casiano Cabizares which was being brought near Sulpicio’s burned house.57 In the face of the overwhelming positive identification of six prosecution witnesses, Rotor’s uncorroborated alibi must fail. Although he was not present or did not participate in the meeting of February 2, 1968, his presence in the situs of the

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shootings on February 3, 1958 was not merely passive. His active participation— shooting at Rafael and carrying a pistol—which has a direct connection with the criminal design against Rafael Cabizares makes him a principal by indirect conspiracy, not an accomplice only. Motive is not wanting. Rotor admitted that his wife is the sister of Sulpicio’s wife58 and the evidence shows that his father had a land dispute with Rafael Cabizares and was a respondent in the case before the Agrarian Court.59 Appellant Bautista claims that on February 2, 1958, he left Barrio Cebuano for Tupi (5 kms. away) to get a truck to load his corn. That afternoon, he returned to Cebuano where they loaded corn but he could not return to Tupi as the truck would not start, so he slept at home. Early the next day, February 3, 1958, they pushed the truck to start it. Later, appellant Matchoca arrived and helped them. He also rode in the truck but upon reaching an uphill road, it stopped again. They were able to recharge its batteries from a tractor that happened to pass by. They continued the trip and finally arrived in the poblacion of Tupi at about 8:00 A.M. Several months later, while he was at Sergio Rotor’s house, his child told him that a P.C. soldier was waiting at home, so instead of going home, he had a conference with Andres Abapo, Ramon Alquizar, Roberto Matchoca (son of Severino) and Agapito Avellana. They all decided to proceed to Tupi and surrender to the Mayor. Appellant Matchoca related the same incident told by Bautista regarding the trip to Tupi. He then claimed to have returned to Barrio Cebuano about noontime and there learned of the incident. The next day, he evacuated his family to avoid trouble. The prosecution, however, has established that these two appellants were in the meeting held in Abapo’s house on February 2, 1958. They openly participated therein. Their meeting with appellant Rotor early the following morning has also been established thru the testimony of Maximo Caña. These two were also seen outside Sulpicio’s house. Bautista was carrying a bolo and a cane and was heard shouting at Rafael thus: “Rafael, you cannot reach the trial because we will kill you.”60 Gumercindo Cabizares also heard Matchoca shouting: “Go ahead, shoot. We will kill him so that he will not reach the day of the hearing.”61 Bautista and Matchoca were among those who went to Demetrio’s house.62 The former thrust his bolo thru the bamboo wallings hitting Segundino Cabizares.63 When Ursula Cabizares came down from the house, she saw Bautista holding a bolo.64 Romualdo, on the other hand, claimed having seen him holding a firearm.65 After the killings had taken place, Bautista went with the group that proceeded back to Sulpicio’s burned house whereas Matchoca marched with the other group headed for Rafael’s house.66 __________________

The positive identification of the several prosecution witnesses must prevail over the alibis proferred by these appellants. Their presence and active participation in the meeting in Abapo’s house make them actual conspirators in the killing of Rafael. They were also present and zealously participating in the execution of their criminal design, giving a carbine magazine and instructions to appellant Rotor, threatening Rafael and giving encouragement to Sulpicio to shoot at the latter. They were among those who laid siege to Demetrio’s house and left together with the others after finally accomplishing their criminal deeds as agreed upon. Appellants Bautista and Matchoca are therefore also liable as co-principals in Rafael’s murder. Regarding motive, it was proved that both were among those involved in the land conflict with Rafael Cabizares and were among the respondents in the case before the Agrarian Court. Appellant Libumfacil’s story is that in the morning of February 3, 1958 he was in the Menzi Area about 6 kilometers from Barrio Cebuano. That afternoon, he returned to the poblacion of Tupi. To corroborate him, Lauro Esconde stated that he saw Libumfacil that day working on the latter’s farm lot in the Menzi area. However, Maximo Caña saw appellant Libumfacil outside Sulpicio’s house when the former arrived there with appellant Rotor in the morning of February 3, 1958. Libumfacil had a pistol which he also fired at Rafael.67 Gumercindo Cabizares also saw him holding a pistol which he gave to Rotor who then took a shot at Rafael.68 Appellant Libumfacil was seen by Caña again among those who went with the other accused downhill from Sulpicio’s house to Demetrio’s house.69 The other prosecution witnesses saw him also around Demetrio’s house, armed with a pistol.70 He was among those who stoned the house.71 When Ursula Cabizares alighted therefrom, she saw appellant Libumfacil outside, conversing with Rotor and receiving from the latter a pistol which had gotten stuck. After the incidents in Demetrio’s house, Libumfacil went with appellants Rotor and Bautista to Sulpicio’s burned house.72 Libumfacil’s alibi, though corroborated, cannot overcome the positive identification of the eight prosecution witnesses who saw him. Although he was not present in Abapo’s house on February 2, 1958, he was present at Sulpicio’s house and in the premises of Demetrio’s house with the other accused and appellants. He was armed, had fired at Rafael also, and took part in the stoning of Demetrio’s house where Rafael was brought. His actuations manifest that he was aware of the criminal design of the original conspirators that he approved of it and carried it out, thus showing that his presence at the scene of the crime was not merely passive. Consequently, he is a co-principal in Rafael’s murder. And motive is not wanting. It was established that his mother had a land conflict with Rafael73 and that his stepfather Diosdado Esperanza was one of the respondents in the case before the Agrarian Court. We find therefore all five appellants guilty as co-principals in the murder of Rafael Cabizares.

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The aggravating circumstance of treachery, applicable against appellant Sulpicio de la Cerna only, is offset by his voluntary surrender after the incident. This mitigating circumstance however can not benefit the remaining appellants who did not voluntarily surrender. For all the appellants, therefore, the penalty for Rafael Cabizares’ murder must be imposed in the medium period. For the killing of Casiano Cabizares, appellant Sulpicio de la Cerna must be acquitted. WHEREFORE, the judgment appealed from is modified as follows: (a) Appellants Sulpicio de la Cerna, Godofredo Rotor, Antonio Bautista, Severino Matchoca, and Teodoro Libumfacil are hereby found guilty as principals for the murder of Rafael Cabizares and sentenced to each suffer reclusion perpetua, to indemnify, jointly and severally, the heirs of Rafael Cabizares the sum of P6,000.00 and to pay the costs; (b) Appellant Sulpicio de la Cerna is hereby acquitted for the murder of Casiano Cabizares. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Judgment modified. ________________ © Copyright 2016 Central Book Supply, Inc. All rights reserved. People vs. De la Cerna, 21 SCRA 569, No. L-20911 October 30, 1967

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APPEAL from the judgment of the Regional Trial Court of Aparri, Cagayan, Br. 10. Daculi, J.

VOL. 188, AUGUST 3, 1990 313 People vs. Cagalingan G.R. No. 79168. August 3, 1990.* PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO CAGALINGAN y ROMINA, JOVITO CAGALINGAN y ROMINA and VICTOR ROMINA, JR. y VELANCIO, defendants-appellants. Criminal Law; Self-Defense; Elements of Unlawful Agression; Case at bar.—A review of the evidence, however, fails to lend credence to the appellants' claim that there was unlawful aggression on the part of the deceased. Lory Bunabon categorically stated that the deceased Joemar Desor and the appellant Jovito Cagalingan were laughing and joking as they were grappling for the possession of the basket of crabs which Joemar Desor wanted to get from Jovito Cagalingan. For unlawful aggression to be present, there must be a real danger to life or personal safety. Here, there was no danger to the life of Jovito Cagalingan as they (Jovito and Joemar) were in a frolicsome mood. Same; Same; Evidence; Defense of alibi cannot prevail over his positive identification.—As for the alibi of Victor Romina, Jr. that he was inside the Ryan Cinema at the time of the commission of the crime, suffice it to state that the said moviehouse is only about 100 to 150 meters away from the scene of the crime and the said appellant has not shown that it was physically impossible for him to be at the scene of the crime at the time it was committed. Besides, his alibi cannot prevail over his positive identification by Lory Bunabon, Same; Same; Conspiracy; A person who assaults a victim already fatally wounded by another is an accomplice; Case at bar.—We find, however, that Jovito Cagalingan and Victor Romina, Jr. are only accomplices in the crime since their participations therein were not absolutely indispensable in the commission of the crime. Lory Bunabon declared that Jovito Cagalingan stabbed the deceased Joemar Desor after Alfredo Cagalingan had stabbed the deceased at the back, while Victor Romina, Jr. stabbed the said deceased while the latter was already lying prostrate on the ground. While the acts of Jovito Cagalingan and Victor Romina, Jr. show a community of design with the principal, Alfredo Cagalingan, who inflicted the fatal wound, and they (Jovito and Victor) cooperated in hastening the victim's death, the said appellants' acts were not absolutely indispensable in the commission of the crime. A person who assaults a victim already fatally wounded by another is only regarded as an accomplice.

The facts are stated in the opinion of the Court. The Solicitor General for plaintiff-appellee. Juan T. Antonio for defendants-appellants. PADILLA, J,: This is an appeal interposed by the accused from the judgment** rendered in Criminal Case No. X-87-187 of the Regional Trial Court of Cagayan at Aparri, finding them guilty of the crime of Murder and sentencing the accused Jovito Cagalingan xx Romina and Victor Romina, Jr. xx Velancio to suffer the penalty of reclusion perpetua; the accused Alfredo Cagalingan xx Romina, to suffer an indeterminate penalty of from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, and ordering all of said accused to pay, jointly and severally, the heirs of the deceased Joemar Desor the amounts of P11,500.00, as actual damages, and P30,000.00, as indemnity for the death of said Joemar Desor, and the costs of suit. The facts of the case, according to the People's counsel, are as follows: "On or about 1:30 in the afternoon of June 4, 1984 at Looban, Block 14, Centro, Aparri, Cagayan, eight persons were playing bingo in the house of the spouses Alfredo and Benita Flores. Two of the players were Lory Bunabon and Veron Cagalingan (pp. 6-7, tsn, Dec. 11,1984), Not long after her arrival and while seated at the door of the balcony, Lory Bunabon saw the accused Jovito Cagalingan about six meters away holding a basket containing claws of crabs. Joemar Desor (the victim) approached Jovito, took hold of the basket, and jokingly asked the latter to give him the crabs so that he could roast them. Jovito refused saying that he was bringing them home for their viand (pp. 50-53 and 58-59, tsn, Dec. 11,1984). Soon thereafter, the two were laughing although each of them was grappling for the possession of the basket (pp. 53-54, tsn, Dec. 11, 1984). In order to gain advantage over Jovito to secure the possession of the basket, Joemar held the throat of Jovito with his right hand (pp. 51-54, tsn, Dec. 11,1984). Jovito however was able to remove the hand of Joemar and went at the back of the latter (p. 80, tsn, Dec. 11,1989), Veron Cagalingan, wife of Alfredo Cagalingan, saw them and shouted that Jovito was being killed by Joemar. This impelled accused Alfredo Cagalingan, who was inside the house of his parents-in-law Alfredo and Benita Flores, to jump out of the house and proceed to the scene. Holding a bolo measuring 15 1/2 inches long (Exh. C), Alfredo went behind Joemar and stabbed him twice on the right side of his body parallel to his navel (pp. 9-10, tsn, Dec. 11,1984). Jovito who was able to free himself from Joemar drew his nine inch kitchen knife from his waist and also stabbed the victim twice (pp. 11-12, tsn, Dec. 11,1984).

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While the stabbing was being perpetrated, accused Victor Romina, Jr. jumped out of the window of his house to join the other accused. Using a nine-inch kitchen knife (Exh. D), he also stabbed Joemar once. The latter at the time was already immobile, lying prostrate on the ground (p. 12, tsn, Dec. 11,1984). Mercedes Desor, mother of the victim, heard the commotion and rushed to the crime site. There, she saw his (sic) son Joemar lying prostrate on the ground with the three accused still holding the bladed weapons dripping with blood. At this juncture, Alfredo Cagalingan was heard uttering a challenge saying 'who else still is brave man companion of Joemar Desor' (pp. 27-28, tsn, May 15, 1985). Thereafter, Alfredo and Jovito Cagalingan went towards the direction of the police precinct while Victor Romina, Jr. ran eastward towards the Ryan Cinema (p. 28, tsn, May 15, 1989). The mother of the victim embraced and pulled her son up but both of them fell down. She screamed for help. Her nephew and cousin responded and brought Joemar to the Aparri Emergency Hospital where the victim was treated by a certain Dr. Macria Ayuyang (pp. 28, 29, tsn, May 15, 1985). Unfortunately, Joemar died after then (sic) minutes from arrival due to loss of blood (pp. 3-8, tsn, Aug. 12, 1985). Dr. Romulo de Rivera, Municipal Health Officer of Aparri, Cagayan, conducted an autopsy on the cadaver of the victim and submitted his medico-legal necropsy report (Exh. H) containing the following findings, to wit: 1. stabbed wound—4.0 cm. x 1.5 cm. x 11.0 cm. depth below the right axilla directed inward with sharp end backward. 2. stabbed wound—6.0 cm. ws 3.0 cm. x 22.0 cm. in depth over the right flank with 8th rib fractured sharp end anteriorly. 3. stabbed wound—4.0 cm. x 1.5 cm. x 26.0 cm. in depth perpendicular end of the wound with sharp end downward. 4. stabbed wound—3.5 cm. x 1.5 cm. x 6.0 cm. over the right lumber region with sharp end upward. 5. stabbed wound—2.0 cm. x 1.0 cm. x 5.0 cm. along left infra-axillary region with sharp end downward. CAUSE OF DEATH: shock secondary to hemorrhage due to multiple stabbed wounds.' On the basis of the foregoing happenings, the Assistant Provincial Fiscal of Cagayan, after due preliminary investigation, filed the corresponding Information for murder against the three accused-appellants with the Regional Trial Court."1 The defendant-appellant Alfredo Cagalingan, while admitting having inflicted injuries upon the deceased Joemar Desor, insisted that he acted in legitimate defense of his brother when he inflicted the mortal wounds which resulted in the death of the said Joemar Desor. His version of the incident is summarized by the trial court as follows:

"x x x that about 1:30 in the afternoon of June 4, 1984, he was inside their house, owned by his parents-in-law Alfredo Torres and Benita Flores, at Looban, Aparri, Cagayan, listening to a radio drama when he heard screams from the bingo players. Looking through the window he saw Joemar Desor on top of his brother Jovito, about seven meters away, lying on the ground being strangulated by Joemar. He went to pacify Joemar telling him 'do not do that manong we are but one.' Joemar answered 'even all of you.' When Joemar partly unsheathed his knife he stabbed him several times with a big bolo (Exh. '5'-defense, Exh. 'C'-prosecution), thinking that Joemar will kill his brother with his (Joemar's) stainless steel knife (Exh, '1'defense). Thereupon he went to the police headquarters and surrendered to Pat. Edwin Reyes telling him 'sir, he am surrendering because he killed somebody, Joemar Desor.'"2 The accused-appellant, Jovito Cagalingan, upon the otherhand, denied having stabbed the deceased Joemar Desor. He claimed that while he was on his way home, at about 1:00 o'clock in the afternoon of 4 June 1984, he was suddenly boxed on his right cheek by Joemar Desor. He just cried and went away because Joemar Desor was bigger than he and was the recognized "kingpin" of the neighborhood. But Joemar Desor followed and boxed him several times on the chest causing him to fall. When he fell, Joemar Desor went astride him and sat on his belly, and then held his neck, choking him. As a result, he lost consciousness. When he regained consciousness, he saw his brother, Alfredo Cagalingan, jumping out from the window of their house and coming to them. Alfredo then stabbed Joemar Desor with a bolo. After a while, Pat. de la Cruz of the local police arrived at the scene and he (Jovito) was brought to the police precinct.3 The defendant-appellant Victor Romina, Jr. also denied having stabbed the deceased Joemar Desor and interposed the defense of alibi. He declared that at about 12:20 o'clock in the afternoon of 4 June 1984, he went to see a movie at the Ryan Cinema with his friend, one Ferdinand from Faire, Cagayan. At around 3:00 o'clock in the afternoon, his name was flashed on the screen of the cinema as "wanted outside". He went outside and was met by policemen who then arrested him and brought him to the police station for investigation.4 His testimony was corroborated by Ferdinand Ugale who declared that he and Victor Romina, Jr. went to see a movie at the Ryan Cinema at about 12:30 o'clock in the afternoon of 4 June 1984; and that while they were watching a movie, the name of Victor Romina, Jr. was flashed on the screen as "wanted outside" and Victor Romina, Jr. left him inside the moviehouse.5 In support of their appeal, the defendants-appellants claim that the trial court erred: (1) in not holding that the accused Alfredo Cagalingan killed the deceased Joemar Desor in defense of his relative; (2) in not holding that Jovito Cagalingan and Victor Romina, Jr. had no participation in the killing of the said Joemar Desor; and (3) in sentencing the accused Jovito Cagalingan to suffer the penalty of reclusion perpetua.

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1. The appellants first claim that the trial court seriously erred in finding that unlawful agression was not present in the killing of Joemar Desor. They argue that there was unlawful aggression on the part of the deceased because the latter was strangulating Jovito Cagalingan when he was stabbed by Alfredo Cagalingan. A review of the evidence, however, fails to lend credence to the appellants' claim that there was unlawful aggression on the part of the deceased. Lory Bunabon categorically stated that the deceased Joemar Desor and the appellant Jovito Cagalingan were laughing and joking as they were grappling for the possession of the basket of crabs which Joemar Desor wanted to get from Jovito Cagalingan. For unlawful aggression to be present, there must be a real danger to life or personal safety.6 Here, there was no danger to the life of Jovito Cagalingan as they (Jovito and Joemar) were in a frolicsome mood. Besides, it would appear that the deceased was unarmed at the time and sustained five (5) stab wounds in different parts of his body,7 which indicates that the act (stabbing) was not in defense of a relative but a determined effort to kill the deceased. It would also appear that when Alfredo Cagalingan voluntarily surrendered to the police, he did not inform the latter that he killed the deceased in order to protect the life of his brother Jovito. He merely said that he accidentally injured one Desor.8 As stated by the Court in one case,9 "if he had really acted in self-defense, the probability is that he would have immediately informed the authorities of that fact if only to minimize his guilt if not to exculpate himself." 2. We also find no merit in the claims of the appellants Jovito Cagalingan and Victor Romina, Jr. that they did not participate in the commission of the crime. Lory Bunabon positively identified the said appellants as among those who stabbed the deceased Joemar Desor.10 Lory Bunabon could not have been mistaken in her identification of the appellants (Jovito and Victor) as perpetrators of the crime because she was near them and the protagonists were her immediate neighbors in the community. Besides, the trial court found that the testimony of Jovito Cagalingan "is replete with self-contradiction—a mark of untruthfulness and incredulousness"11 and we find nothing in the record which would justify our setting aside said finding. As for the alibi of Victor Romina, Jr. that he was inside the Ryan Cinema at the time of the commission of the crime, suffice it to state that the said moviehouse is only about 100 to 150 meters away from the scene of the crime and the said appellant has not shown that it was physically impossible for him to be at the scene of the crime at the time it was committed. Besides, his alibi cannot prevail over his positive identification by Lory Bunabon. 3. Finally, the appellants claim that the penalty of reclusion perpetua, imposed by the trial court upon the appellants Jovito Cagalingan and Victor Romina, Jr. is excessive. Appellants argue that with the elimination of the death penalty in the 1987 Constitution, the penalty for Murder was accordingly reduced.

The contention is without merit. This issue had been laid to rest in the case of People vs. Muñoz,12 where the Court ruled that Article III, Section 19(1) of the 1987 Constitution does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except that it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The Court therein further ruled that the range of the medium and minimum penalties for murder remains unchanged. We find, however, that Jovito Cagalingan and Victor Romina, Jr. are only accomplices in the crime since their participations therein were not absolutely indispensable in the commission of the crime. Lory Bunabon declared that Jovito Cagalingan the deceased Joemar Desor after Alfredo Cagalingan had stabbed the deceased at the back, while Victor Romina, Jr. stabbed the said deceased while the latter was already lying prostrate on the ground.13 While the acts of Jovito Cagalingan and Victor Romina, Jr. show a community of design with the principal, Alfredo Cagalingan, who inflicted the fatal wound, and they (Jovito and Victor) cooperated in hastening the victim's death, the said appellants' acts were not absolutely indispensable in the commission of the crime. A person who assaults a victim already fatally wounded by another is only regarded as an accomplice.14 The penalty for appellants Jovito Cagalingan and Victor Romina, Jr. as accomplices must be modified. They are hereby sentenced to suffer an indeterminate penalty of from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, and eight (8) months of reclusion temporal, as maximum. With the modification above indicated, the judgment appealed from is hereby AFFIRMED in all other respects, with costs against the appellants. SO ORDERED.

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G.R. No. 80130. August 19, 1991.* BENJAMIN ABEJUELA, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents. Criminal Law; Intent; Accomplice; Knowledge of the criminal intention of the principal is indispensable in order to hold a person liable as an accomplice.—In a number of cases decided by this Court, it has been held that knowledge of the criminal intention of the principal is indispensable in order to hold a person liable as an accomplice. Thus: “It appearing that the accused who drove the taxicab in which the other accused rode did not actually take part in the conspiracy to commit the crime of robbery but only furnished the means through which the robbery could be perpetrated, with knowledge of the said criminal design, he is not guilty as principal of the crime of robbery with homicide but is an accomplice therein.” “There is no evidence that appellant had conspired with the malefactors, nor that he actually participated in the commission of the crime. He cannot, therefore, be considered as a principal. But in going with them, knowing their criminal intention and in staying outside of the house with them while the others went inside the store to rob and kill, appellant effectively supplied the criminals with material and moral aid, making him guilty as an accomplice.” Same; Evidence; Evidence necessary to convict; In criminal proceedings, proof beyond reasonable doubt is necessary before a judgment of conviction can be rendered.—It is axiomatic that in criminal proceedings, proof beyond reasonable doubt is necessary before a judgment of conviction can be rendered. Not an iota of doubt must cloud the Court’s mind. A conviction of a criminal offense must be based on clear and positive evidence and not on mere assumptions.

Remedial Law; Criminal Procedure; Rule that the civil liability is not extinguished by acquittal where the same is based on reasonable doubt or where the court has expressly declared that the liability of the accused is not criminal but only civil in nature.—We decree the acquittal of Abejuela because we seriously doubt whether he had knowledge of the plan of Balo to defraud Banco Filipino by means of posting false deposits and withdrawing these later. Because of this doubt, however, his exoneration will not extinguish his civil liability. Thus, the civil liability is not extinguished by acquittal where the same is based on reasonable doubt as only preponderance of evidence is required in civil cases, or where the court has expressly declared that the liability of the accused is not criminal but only civil in nature. Criminal Law; Estafa thru falsification of commercial documents; Damages; Although petitioner was unaware of the criminal workings in the mind of Balo, he nevertheless unwittingly contributed to their eventual consummation by recklessly entrusting his passbook to Balo and by signing the withdrawal slips.—It has been satisfactorily established that Banco Filipino suffered damage in the amount of P176,145.25 representing the fictitious deposits posted by Glicerio Balo, Jr. and systematically withdrawn through the passbook of petitioner Abejuela. Although Abejuela, was unaware of the criminal workings in the mind of Balo, he nevertheless unwittingly contributed to their eventual consummation by recklessly entrusting his passbook to Balo and by signing the withdrawal slips. Abejuela failed to exercise prudence and care. Therefore, he must be held civilly accountable. PETITION for certiorari to review the decision of the Court of Appeals. The facts are stated in the opinion of the Court. Vicente Y. Bayani for petitioner. FERNAN, C.J.: In this petition for review by certiorari, petitioner seeks a reversal of the decision of the Court of Appeals dated September 16, 1987 which affirmed in toto the decision of the Regional Trial Court, Branch VII of Palo, Leyte, dated January 11, 1984, convicting him as an accomplice in the complex crime of estafa thru falsification of a commercial document under Article 315, paragraph 2 (a) of the Revised Penal Code in relation to Article 172 thereof.1 The facts of this case are uncontroverted. Petitioner Benjamin Abejuela, a businessman engaged in the manufacture and fabrication of hand tractors and other agricultural equipment, had a savings deposit with Banco Filipino, Tacloban Branch. Sometime in April or May 1978, petitioner was befriended by Glicerio Balo, Jr., an employee of Banco Filipino in the same Tacloban Branch. On several occasions, petitioner Abejuela and Balo would dine together, go to nightclubs or have drinking sprees.2 They became close friends. Balo even became the godfather of Abejuela’s daughter.3 Moreover, Balo offered

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Abejuela financial assistance in the latter’s welding business, claiming that he was expecting a large sum of money out of the insurance policy of his late father. On August 3, 1978, Balo went to Abejuela’s welding shop to borrow the latter’s passbook. Abejuela was surprised and thought that it was not possible for Balo to use his passbook. Balo showed Abejuela some checks purporting to be the proceeds of his father’s insurance policy. He wanted to deposit the checks in Abejuela’s account with Banco Filipino. Abejuela then suggested that Balo open his own account. However, Balo explained that he was prohibited from opening an account with Banco Filipino since he was employed with that bank as a savings bookkeeper. Abejuela advised Balo to open an account instead with another bank but Balo insisted that he wanted the checks deposited with Banco Filipino so that he could facilitate their immediate encashment as well as avail himself of some privileges. Balo assured Abejuela that there was nothing wrong in allowing him to use his passbook and even reassured Abejuela that he would accompany him to the bank to make the deposit. Accepting Balo’s explanations and assurances, Abejuela entrusted his passbook to Balo. On August 8, 1978, Balo returned Abejuela’s passbook where a deposit in the amount of P20,000.00 was already reflected. Once again, Balo assured Abejuela that there was nothing wrong with the deposit, and stated that he just deposited one of his checks. On the same, day Balo requested Abejuela himself to withdraw, in the former’s behalf, money from his account with Banco Filipino. Again with assurances from Balo, Abejuela reluctantly agreed. He went to Banco Filipino and withdrew the amount of P15,000.00 which he gave to Balo at a restaurant called Felisa’s Cafe. Balo’s practice of depositing and withdrawing money using Abejuela’s passbook continued for quite some time. During the month of August 1978, the account of Abejuela with Banco Filipino reflected a total deposits of P176,145.00 and a total withdrawal of P175,607.96. In the meantime, Abejuela borrowed P20,000.00 from Balo, payable within 90 days from August 9, 1978. But feeling apprehensive over Balo’s constant use of his passbook, Abejuela decided to pay his loan on August 31, 1978 by borrowing P10,000.00 from his father and taking the other P10,000.00 from his business profits.4 Abejuela also closed his account with Banco Filipino by surrendering his passbook and withdrawing the balance of his deposit. Thereafter, the bank’s accountant and interest bookkeeper discovered a discrepancy between the interest reconciliation balance and the subsidiary ledger balance. The interest bookkeeper could not locate the posting reconciliation and the proof reconciliation. He also notice that Account No. 6701-0160 in the name of Benjamin Abejuela reflected four (4) large deposits on various dates from August 3, 1978 to August 23, 1978, totaling P176,145.25, but the deposits slips thereof could not be located.

After further examination of the bank records, the manager, accountant and interest bookkeeper were convinced that the irregularities were caused by Balo who was the savings bookkeeper at that time and who had access to Abejuela savings account ledger. They concluded that Balo was able to manipulate the ledger, by posting the fictitious deposits after banking hours when the posting machine was already closed and cleared by the bank accountant. The bank officials confronted Balo, who feigned ignorance and initially denied the accusations, but later admitted having posted the false deposits. Petitioner Abejuela was also implicated because he was the owner of the passbook used by Balo in accomplishing his fraudulent scheme. On December 5, 1978, an information was filed against Glicerio Balo, Jr. and Benjamin Abejuela for the crime of estafa thru falsification of commercial documents.5 Separately arraigned, both pleaded “not guilty” to the crime charged.6 Trial followed. On May 29, 1979, acting on an application by Banco Filipino, the trial court issued an order of preliminary attachment against all the properties of accused Glicerio Balo, Jr. and Benjamin Abejuela not exceeding P176,145.25 in value, the amount allegedly embezzled or misappropriated. On September 4, 1979, the Deputy Sheriff of Palo, Leyte, filed a return of service and submitted an inventory of the goods taken from the two accused and which goods were placed in the custody of the National Bureau of Investigation. While the refrigerator and television set taken from the residence of Abejuela would not command a good price on account of their poor condition, the goods seized from Balo were appraised at P62,295.00.7 In the meantime, accused Glicerio Balo, Jr. was reportedly killed by members of the New People’s Army in the mountains of Mat-i, Balangkayan, Eastern Samar, on suspicion that he was a PC informer and a collaborator. This information came from a rattan gatherer and former NPA member whose testimony before the court a quo was never impeached. Consequently, on February 25, 1981, the trial court dismissed the case against Glicerio Balo, Jr., pursuant to Article 89 of the Revised Penal Code, but without prejudice to a civil action for recovery of damages arising from the offense which may be instituted by Banco Filipino and without prejudice also to the reinstatement of the instant criminal action in the event the accused would turn out to be alive.8 On September 7, 1981, Banco Filipino filed a motion praying for the forfeiture in its favor of the goods seized from the accused which were in the custody of the National Bureau of Investigation. On November 5, 1981, the trial court, thru District Judge Auxencio C. Dacuycuy, granted the motion and ordered the National Bureau of Investigation to deliver the seized goods to Banco Filipino. In addition, the bank was authorized to withdraw the savings deposit of Glicerio Balo, Jr. for eventual reversion to said bank.9 Thereafter, trial continued with respect to petitioner Abejuela. On January 11, 1984, the lower court adjudged petitioner Abejuela guilty. The dispositive portion of the decision reads:

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“WHEREFORE, the court finds the accused Benjamin Abejuela guilty beyond reasonable doubt as accomplice of the complex crime of estafa thru falsification of a commercial document under Art. 315, par. 2(a) of the Revised Penal Code in relation to Art. 172 thereof and as the amount involved is more than P22,000 he is hereby sentenced to an indeterminate penalty of not less than fifteen (15) years, three months and 11 days to not more than sixteen (16) years, eight months and 21 days of reclusion temporal, to indemnify Banco Filipino, Tacloban Branch, in the sum of One Hundred Seventy Six Thousand One Hundred Forty Five Pesos and Twenty Five Centavos (P176,145.25), without subsidiary imprisonment in case of insolvency, and to pay one half of the costs. “On May 29, 1979, the court issued a writ of preliminary attachment of the properties of defendants Glicerio Balo, Jr. and Benjamin Abejuela. This Attachment is hereby made permanent.”10 Abejuela appealed to the Court of Appeals. On September 16, 1987, the Appellate Court affirmed the decision of the trial court.11 A motion for reconsideration filed by petitioner was denied in a resolution dated October 7, 1987. Hence the instant appeal. Petitioner Abejuela contends that the Appellate Court erred in not acquitting him for the following reasons: “(1) Accused-petitioner has no knowledge of the criminal intent of his co-accused, Glicerio Balo, Jr., hence, there being no conspiracy, he cannot be convicted as principal, neither as accomplice, nor did he benefit from the effects of the crime, hence, he cannot be convicted even as an accessory. “(2) The lending of the accused-petitioner of his passbook was made in good faith, and after he was deceived by co-accused Glicerio Balo, Jr. that it is necessary because as employee of Banco Filipino he cannot deposit in the said Bank. “(3) The presumption of innocence and the ‘equipoise rule’ apply in favor of accused-petitioner.”12 Respondents, in their comment, maintain that petitioner Abejuela had knowledge of the fraudulent acts of Glicerio Balo, Jr. They asseverate that petitioner is an intelligent individual who can take care of his concerns, considering that he is a businessman who finished third (3rd) year college (commerce).13 Respondent also point out that Abejuela should not only have been convicted as an accomplice but as a principal by indispensable cooperation, because without the withdrawal slips which he executed allegedly in spite of his many doubts and apprehensions, Glicerio Balo, Jr. could not have succeeded in his scheme. Petitioner, on the other hand, claims that he had no knowledge at all of the fraudulent machinations of Balo, and that his act of lending his passbook was done in good faith. After carefully weighing the arguments of both parties as well as taking into consideration the evidence on record, we are inclined to believe that petitioner

Abejuela was completely unaware of the malevolent scheme of Balo. From Balo’s own admissions, it was he who deceived Abejuela through sweet talk, assurances, drinking sprees and parties and cajoled him into giving in to his requests. Furthermore, during that time, nobody would have questioned Balo’s source of money and since he had a perfect alibi, i.e. the insurance proceeds of his later father. When Balo showed Abejuela some checks purporting to be his father’s insurance proceeds, Abejuela was hoodwinked into believing that Balo indeed had money. Balo’s request to borrow Abejuela’s passbook in order to facilitate the encashment of the checks seemed reasonable enough, considering that they were close friends and “compadres”, Abejuela’s acquiescence to Balo’s overtures is understandable. Furthermore, the court takes judicial notice of the practice of banks in allowing anybody to deposit in an account even without the owner’s passbook, as long as the account number is known. Thus, even without Abejuela’s passbook, the false deposits could still have been posted by Balo in the savings account ledger of Abejuela. After all, the ledger is the record of the bank reflecting the transactions of the depositor, while the passbook is the record of the depositor. More often than not, it is the ledger which is more accurate and up-to-date. This is the reason why depositors have their passbooks updated for unrecorded transactions like interests, checks deposited beyond clearance cut-off time and bank charges. In the instant case, the evidence of the prosecution clearly points at Balo as the one who had posted the bogus deposits in Abejuela’s ledger. He was also the one who wisely manipulated petitioner Abejuela in order that the fictitious deposits could be placed at his (Balo) disposal. Thus, when Balo requested Abejuela to withdraw the amount he had earlier placed in the latter’s account, Abejuela had no choice but to give in. He actually believed that the money was really owned by Balo and he did not want Balo to think that he was interested in it. Thus, the prosecution miserably failed to prove beyond reasonable doubt that Abejuela had knowledge of the fraudulent scheme of Balo. The most that could be attributed to Abejuela was his negligence in lending his passbook and his utter gullibility. Knowledge of the criminal intent of the principal (in this case, Glicerio Balo, Jr.) is essential in order that petitioner Abejuela can be convicted as an accomplice in the crime of estafa thru falsification of commercial document. To be convicted as an accomplice, there must be cooperation in the execution of the offense by previous or simultaneous acts. However, the cooperation which the law punishes is the assistance rendered knowingly or intentionally, which assistance cannot be said to exist without the prior cognizance of the offense intended to be committed. In a number of cases decided by this Court, it has been held that knowledge of the criminal intention of the principal is indispensable in order to hold a person liable as an accomplice. Thus:

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“It appearing that the accused who drove the taxicab in which the other accused rode did not actually take part in the conspiracy to commit the crime of robbery but only furnished the means through which the robbery could be perpetrated, with knowledge of the said criminal design, he is not guilty as principal of the crime of robbery with homicide but is an accomplice therein.”14 “There is no evidence that appellant had conspired with the malefactors, nor that he actually participated in the commission of the crime. He cannot, therefore, be considered as a principal. But in going with them, knowing their criminal intention and in staying outside of the house with them while the others went inside the store to rob and kill, appellant effectively supplied the criminals with material and moral aid, making him guilty as an accomplice.”15 It is axiomatic that in criminal proceedings, proof beyond reasonable doubt is necessary before a judgment of conviction can be rendered. Not an iota of doubt must cloud the Court’s mind. A conviction of a criminal offense must be based on clear and positive evidence and not on mere assumptions.16 In the light of the facts and the evidence on record, we believe that the guilt of petitioner Abejuela has not been established beyond a reasonable doubt for which reason he must be acquitted. The question that must be resolved now is the effect of Abejuela’s acquittal on his civil liability. The Rules provide: “The extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered.”17 We decree the acquittal of Abejuela because we seriously doubt whether he had knowledge of the plan of Balo to defraud Banco Filipino by means of posting false deposits and withdrawing these later. Because of this doubt, however, his exoneration will not extinguish his civil liability. Thus, the civil liability is not extinguished by acquittal where the same is 14 People vs. Lingad, 51 O.G. p. 6191; Emphasis supplied based on reasonable doubt as only preponderance of evidence is required in civil cases, or where the court has expressly declared that the liability of the accused is not criminal but only civil in nature.18 In Banal vs. Tadeo, Jr.,19 we declared: .1s1 “While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law.” It has been satisfactorily established that Banco Filipino suffered damage in the amount of P176,145.25 representing the fictitious deposits posted by Glicerio Balo,

Jr. and systematically withdrawn through the passbook of petitioner Abejuela. Although Abejuela, was unaware of the criminal workings in the mind of Balo, he nevertheless unwittingly contributed to their eventual consummation by recklessly entrusting his passbook to Balo and by signing the withdrawal slips. Abejuela failed to exercise prudence and care. Therefore, he must be held civilly accountable. WHEREFORE, on reasonable doubt, Benjamin Abejuela is hereby ACQUITTED of the complex crime of estafa thru falsification of commercial documents. However, the writ of preliminary attachment issued by the Regional Trial Court of Leyte on May 29, 1979 against petitioner’s properties and those of his coaccused Glicerio Balo, Jr. to satisfy their civil obligation in the amount of P176,145.25 and which was subsequently made permanent by the said court stands. No pronouncement as to costs. _______________

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G.R. No. 90185. March 1, 1995.* PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO ABARRI y BATTING, CLEMENTE CAWALING y CIRINIO, CONRADO ESTRADA y CAWALING, JOSELITO PAJALAGO y GONZALES & RONNIE ANDALES y ROMIROSA, accused-appellants.

Evidence; Alibi; For alibi to prosper as a defense, the requisites of time and place must be strictly met.—We have consistently ruled that for alibi to prosper as a defense, two requirements must be satisfied—that the accused was not at the scene of the crime at the time it was committed and that it was physically impossible for him to be at that place and time (People v. Gaguban, G.R. No. 96287, April 25, 1994). The requisites of time and place must be strictly met (People v. Empleo, 226 SCRA 454 [1993]). Same; Same; Appellants failed to show physical impossibility for them to be at the scene of the crime.—In the case at bench, appellants failed to show that it was physically impossible for them to be at the scene of the crime when it was committed. Criminal Law; Acts of Lasciviousness; Robbery; Conspiracy; When Conspiracy Exists.—A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of the agreement need not rest on direct evidence, as the agreement itself may be inferred from the conduct of the parties disclosing a common understanding among them with respect to the commission of the offense (People v. Uy, 206 SCRA 270 [1992]; People v. Dela Cruz, 190 SCRA 328 [1990]). Same; Same; Same; Same; Common intent of robbing the victim and committing acts of lasciviousness inferred from appellant’s behaviors.—The common intent of robbing the victim and committing the acts of lasciviousness can be inferred from their behaviors. Abarri and Andales each poked a knife at Gan’s neck and forcibly brought her to the vacant lot. The other appellants followed them and watched while Abarri divested the victim of her valuables. After robbing the victim, Abarri with the use of a “balisong,” tore the upper portion of the victim’s blouse and all the other appellants participated in removing her clothes, pawing her and biting her nipples. Same; Same; Same; Same; Acts of the appellants in stripping naked and hogtying the victim and touching her private parts constitute lewd designs.—The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances (People v. Balbas, 129 Phil. 358 [1967]). We find that the acts of appellants in stripping naked and hogtying the victim and touching her private parts constitute lewd designs. Same; Robbery with Rape; When the acts of lasciviousness committed by Andales culminated in the raping of the victim when he was left alone with her, he alone is guilty of robbery with rape.—However, in the case of Andales, the acts of lasciviousness committed by him culminated in the raping of the victim when he was left alone with her. Nothing in the records show that the other accused had knowledge or were aware of the rape committed by Andales. Consequently, he alone is guilty of robbery with rape. Same; Same; Conspiracy; Before a remark can make one a principal by inducement or a co-conspirator, the same must be of a nature and uttered in such a manner as

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to become the determining cause of the crime.—Likewise, we do not regard the remarks made by Cawaling to Andales as sufficient to make him a principal by inducement or a co-conspirator. Before a remark can produce such an effect, the same must be of a nature and uttered in such a manner as to become the determining cause of the crime (People v. Canial, 46 SCRA 634 [1972]). The inducer must have such an overpowering moral ascendancy over the actor (People v. Balderama, 226 SCRA 537 [1993]), as to make the utterance a command from a superior to a subordinate. In the case at bench, it appears that the decision of Andales to rape the victim had been made before Cawaling uttered the remarks. Cawaling was then leaving the place with Abarri, Estrada and Pajalago while Andales purposely stayed behind with the victim. There is not even a showing that Cawaling had any moral influence over Andales. APPEAL from a decision of the Regional Trial Court of Kalookan City, Br. 124. The facts are stated in the opinion of the Court. The Solicitor General for plaintiff-appellee. Law Firm of Raymundo A. Armovit for accused-appellants. QUIASON, J.: This is an appeal from the decision of the Regional Trial Court, Branch 124, Kalookan City in Criminal Case No. C-31521, finding accused Ernesto Abarri y Batting, Clemente Cawaling y Cirinio, Conrado Estrada y Cawaling, Joselito Pajalago y Gonzales and Ronnie Andales y Romirosa guilty beyond reasonable doubt of robbery with rape and sentencing each of them to suffer the penalty of reclusion perpetua. I The information filed against the accused reads as follows: “That on or about the 14th day of October 1988, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another with intent to gain and by means of force, threats and intimidation upon the person of GREGORIA GAN y LIM, that is by poking a knife at the latter, did then and there willfully, unlawfully and feloniously take, rob and carry away the following articles, to wit: one (1) Chinese gold ring —— P5,000.00 one (1) lady’s wristwatch —— 2,000.00 Cash money amount (sic) to —— 250.00

TOTAL P7,250.00 belonging to said Gregoria Gan y Lim, to the damage and prejudice of the latter in the aforementioned total amount of P7,250.00; and on the occasion thereof, said accused with the use of force, violence and intimidation and with lewd designs, have sexual intercourse with one GREGORIA GAN y LIM, against the latter’s will and without her consent” (Rollo, p. 7). Upon arraignment, all the accused entered a plea of not guilty. On May 22, 1989, the trial court rendered its decision convicting all appellants of the crime of robbery with rape, the dispositive portion of which reads: “WHEREFORE, in view of the foregoing, this Court finds the accused ERNESTO ABARRI Y BATTING, CLEMENTE CAWALING Y CIRINIO, CONRADO ESTRADA Y CAWALING, JOSELITO PAJALAGO Y GONZALES and RONNIE ANDALES Y ROMIROSA guilty beyond reasonable doubt as co-principals in the special complex offense of robbery with rape as described and penalized under paragraph 2 of Article 294 of the Revised Penal Code, as amended. This Court appreciates the presence of the aggravating circumstance of nocturnity and there being no appreciable mitigating circumstance, this Court sentences each of the accused to suffer imprisonment of reclusion perpetua. This Court likewise hereby orders the five accused to indemnify the victim, jointly and severally, the amount of P20,000.00 as consequential damages; to return the amount of P250.00, the Seiko watch and the Chinese gold necklace, subject matter of the robbery, and if unable to do so, to pay the value thereof, jointly and severally, in the amount of P7,250.00; and to pay the costs. The accused shall be credited in the services of their sentences with full time the accused have undergone preventive imprisonment, pursuant to the provisions of Article 29 of the Revised Penal Code, as amended” (Rollo, p. 32). Hence, this appeal. On October 14, 1988, at around 7:30 P.M., while Gregoria Gan was walking along 4th Avenue, Kalookan City on her way home, Ernesto Abarri and Ronnie Andales stopped her and each poked a knife at her neck. Abarri then grabbed Gan’s bag and warned: “Kung gusto mong mabuhay, huwag kang sisigaw.” Gan was dragged by the two and brought inside a fenced, vacant lot strewn with garbage and covered with tall grass. Clemente Cawaling, Conrado Estrada and Joselito Pajalago followed them inside the vacant lot. Cawaling and Estrada were former employees of Gan. Once inside the vacant lot, Abarri, with the use of a “balisong,” tore the upper portion of Gan’s blouse. The other accused then started tearing the rest of the blouse and pulling down her pants. The torn blouse was used to tie her mouth, hands and feet. When she was completely naked, the accused started touching her private parts.

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Abarri opened Gan’s handbag and took a bunch of keys, which included the key for her store at Carmen Planas Street in Binondo, Manila. He also got her watch valued at P2,000.00, necklace valued at P5,000.00 and wallet containing P250.00. After robbing Gan, appellants left except Andales. Before leaving, Cawaling told Andales: “Nognog, (referring to Andales) bahala ka na, sampung taon na rin na hindi nakakatikim 'yan, makatas pa 'yan.” Andales then dragged Gan to a dark spot and after loosening the tie on her legs, raped her twice. After satisfying his lust, Andales left. Gan waited for about 20 minutes before she started to roll over to the middle of the lot. In the process, the tie on her mouth loosened and she was able to shout for help. Responding to her cries, neighbors came and untied her hands. Meanwhile, at around 8:30 P.M. of the same day, Barangay Captain Anita Alejo was informed by a resident that somebody was opening the store of Gan. Repairing at the place, Alejo saw Abarri and Estrada. She noticed that the door of the store had been partly opened. When she asked the two what they were doing there, Abarri answered that Gan instructed them to get the latter’s pants. Alejo brought them to the barangay hall for investigation. Upon further questioning, Abarri admitted to forcibly bringing Gan to a vacant lot and binding her arms and legs. Alejo turned over the two to the custody of the police detachment in Binondo. The police brought Abarri and Andales to the crime scene. However, Gan was no longer there when they arrived. The police proceeded to Gan’s house where the latter positively identified the two as among those persons who robbed her. The findings of NBI Medico Legal Officer Roberto Garcia were as follows: (1) there were physical injuries outside the victim’s genitals, the age of which was consistent with the alleged time of commission of the crime at about 7:30 P.M. of October 14, 1988; (2) the victim’s hymen had old healed lacerations; (3) the opening of the hymen was big enough to accommodate or to allow the penetration of an averagesized adult male organ in erection without producing any new injury to the hymen. III The defense rests on denial and alibi. All of the accused claim that they were not at the scene of the crime as each of them was somewhere else. Abarri testified that at around 8:00 P.M. of October 14, 1988, he and Estrada were on their way home from work. While walking in Pulgueras Street in Binondo, Manila, they were accosted by some barangay tanod who accused them of breaking into a store. At first they denied their involvement. But after they were mauled at the Binondo Police Station, they were forced to admit their involvement in the robbery. Estrada corroborated the version of Abarri as to their whereabouts on the night of the robbery. He further testified that he and Cawaling were former employees of Gan. Cawaling, Pajalego and Andales all claimed that they were at their respected homes that night when the crime was committed. Cawaling claimed that he was

coerced by the police to admit his complicity. Andales claimed that he came to know his co-accused only at the city jail. We have consistently ruled that for alibi to prosper as a defense, two requirements must be satisfied—that the accused was not at the scene of the crime at the time it was committedand that it was physically impossible for him to be at that place and time (People v. Gaguban, G.R. No. 96287, April 25, 1994). The requisites of time and place must be strictly met (People v. Empleo, 226 SCRA 454 [1993]). In the case at bench, appellants failed to show that it was physically impossible for them to be at the scene of the crime when it was committed. The defense posits that no direct evidence on the conspiracy was established by the prosecution. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Proof of the agreement need not rest on direct evidence, as the agreement itself may be inferred from the conduct of the parties disclosing a common understanding among them with respect to the commission of the offense (People v. Uy, 206 SCRA 270 [1992]; People v. Dela Cruz, 190 SCRA 328 [1990]). The common intent of robbing the victim and committing the acts of lasciviousness can be inferred from their behaviors. Abarri and Andales each poked a knife at Gan’s neck and forcibly brought her to the vacant lot. The other appellants followed them and watched while Abarri divested the victim of her valuables. After robbing the victim, Abarri with the use of a “balisong,” tore the upper portion of the victim’s blouse and all the other appellants participated in removing her clothes, pawing her and biting her nipples. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances (People v. Balbas, 129 Phil. 358 [1967]). We find that the acts of appellants in stripping naked and hogtying the victim and touching her private parts constitute lewd designs. However, in the case of Andales, the acts of lasciviousness committed by him culminated in the raping of the victim when he was left alone with her. Nothing in the records show that the other accused had knowledge or were aware of the rape committed by Andales. Consequently, he alone is guilty of robbery with rape (People v. Hamiana, 89 Phil. 225 [1951]). Likewise, we do not regard the remarks made by Cawaling to Andales as sufficient to make him a principal by inducement or a co-conspirator. Before a remark can produce such an effect, the same must be of a nature and uttered in such a manner as to become the determining cause of the crime (People v. Canial, 46 SCRA 634 [1972]). The inducer must have such an overpowering moral ascendency over the actor (People v. Balderama, 226 SCRA 537 [1993]), as to make the utterance a command from a superior to a subordinate. In the case at bench, it appears that the decision of Andales to rape the victim had been made before Cawaling uttered the remarks. Cawaling was then leaving the place with

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Abarri, Estrada and Pajalago while Andales purposely stayed behind with the victim. There is not even a showing that Cawaling had any moral influence over Andales. The trial court, therefore, erred in convicting all the appellants of the crime of robbery with rape. In view of the fact that the charge of rape includes abusos deshonestos, the appellants, other than Andales, can be found guilty of committing the crime of robbery with abusos deshonestos. WHEREFORE, the decision appealed from is MODIFIED. Ernesto Abarri, Clemente Cawaling, Conrado Estrada and Joselito Pajalago are GUILTY beyond reasonable doubt of the separate crimes of robbery and acts of lasciviousness. This Court sentences each of them to an indeterminate penalty of SIX (6) MONTHS of arresto mayor as minimum to SIX (6) YEARS of prision correccional as maximum for the crime of acts of lasciviousness, and to indemnify Gregoria Gan jointly and severally in the amount of P10,000.00 as moral damages. For the crime of robbery, they are sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and 2 MONTHS of prision correccional as minimum to TEN (10) YEARS of prision mayor as maximum and to indemnify jointly and severally Gregoria Gan in the amount of P7,250.00 as actual damages. Ronnie Andales is FOUND GUILTY of the crime of robbery with rape. He is sentenced to suffer the penalty of reclusion perpetua, to indemnify Gregoria Gan in the amount of P30,000.00 as moral damages, and jointly and severally with the other appellants, the amounts of P7,250.00 as actual damages. SO ORDERED.

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THIRD DIVISION [G.R. No. 126021. March 3, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENE SIAO, accusedappellant. DECISION GONZAGA_REYES, J.: Accused-appellant Rene Siao together with Reylan Gimena were charged before the Regional Trial Court of the City of Cebu with the crime of rape committed as follows: "xxx xxx xxx: That on or about the 27th day of May, 1994, about 3:00 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, with deliberate intent and with force and intimidation upon person, did then and there willfully, unlawfully and feloniously have carnal knowledge with the undersigned, Estrella Raymundo, a minor, 14 years old, against the latters will."[1] Accused-appellant Rene Siao and Reylan Gimena pleaded "not guilty" to the charge. Hence, trial proceeded in due course. After trial, the Regional Trial Court of the City of Cebu convicted accused-appellant Rene Siao of the crime of rape as principal by induction and acquitted Reylan Gimena. The dispositive portion of the decision rendered on March 29, 1996 reads: "WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding accused Rene Siao GUILTY beyond reasonable doubt as principal by induction in the crime of rape committed against the person of Ester Raymundo and imposes upon him the penalty of RECLUSION PERPETUA. He is, likewise, directed to indemnify private complainant Ester Raymundo the sum of P50,000.00 as and for moral damages. Accused Reylan Gimena is hereby ACQUITTED because he acted under the impulse of uncontrollable fear of an equal, if not greater injury. For want of evidence, his cross-claim against Rene Siao should be, as it is hereby ordered, DISMISSED."[2] Hence, this appeal by Rene Siao. The Office of the Solicitor General[3] summarized the evidence for the prosecution in this wise: Joy Raymundo and private complainant Estrella Raymundo are cousins. They worked as house maids of appellants family. Reylan Gimena was also a helper of appellants family. Estrella was then a 14-year old "probinsiyana" from Palompon, Leyte (p. 5, TSN, September 16, 1994).

On May 27, 1994, at about 3:00 p.m., in the Siao residence located at 417-A Basak Brotherhood, Cebu City, appellant ordered Reylan Gimena, a houseboy of the Siaos, to pull Estrella to the room of the women. Gimena dragged her toward the womens quarters and once inside, appellant pushed her to the wooden bed (naomog). Appellant pointed a pistol colored white at Gimena and the face of Estrella (pp. 7-8, TSN, September 16, 1994). Producing a candle and a bottle of sprite, appellant asked Estrella to choose one among a pistol, candle or a bottle of sprite. He also told Gimena "Reylan, birahi si Ester." (Reylan do something to Ester.) Appellant lighted the candle and dropped the melting candle on her chest (p. 7, TSN, September 20, 1994). Estrella chose a bottle of sprite because she was afraid of the pistol. She was made to lie down on her back on the bed with her head hanging over one end. Whereupon, appellant poured sprite into her nostrils as she was made to spread her arms. While appellant dropped the bottle of sprite into her nostrils, he pointed the gun at her face. Estrella felt dizzy and her eyesight became blurred (p. 6, TSN, September 20, 1994). She tried to fold her arms to cover her breasts but appellant ordered Gimena to hold her hands (p. 10-15, TSN, September 16, 1994). Appellant then tied her feet and hands with an electric cord or wire as she was made to lie face down on the bed. After that, appellant untied her hands and feet but tied her back with the same wire (p. 17, TSN, September 16, 1994). As appellant pointed his pistol at her, he ordered Estrella to remove her pants and Tshirt, she sat on the bed and did as she was told and when she was naked, appellant commanded her to take the initiative (ikaw ang mauna sa lalaki.) She did not understand what appellant meant. At this point, appellant poked the gun at her temple (pp. 19-20, TSN, September 16, 1994). Appellant then commanded Gimena to remove his shorts. But Gimena refused. Gimena did not remove his shorts but let his penis out (p. 21, TSN, September 1, 1994; p. 11, TSN, September 20, 1994). Appellant spread the arms of Estrella and made her lie down spread-eagled (pp. 4-5, TSN, September 29, 1994). She felt dizzy and shouted for help twice. Appellant ordered Gimena to rape Estrella. At first Gimena refused to heed the command of appellant to rape Estrella (birahi) because, according to Gimena, he has a sister. Appellant said that if they would not obey, he would kill both of them (pp. 4-10, TSN, September 20, 1994. Appellant told Gimena, "Reylan, do something (birahi) to Ester!" Estrella was made to suck the penis of Gimena at gunpoint. She complied with the order of appellant and when the penis of Gimena was inside her mouth, appellant kept looking and pointing his handgun at them (pp. 11-14, TSN, September 20, 1994; pp. 19-20, TSN, September 21, 1994). Thereafter, Gimena got on top of Estrella (gisakyan) and did the sexual act (kayatan). She felt excruciating pain. Gimena made push-and-pull movements for around 10 minutes. Appellant looked on and said, "why did it take you long to penetrate?" While

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Gimena was making the push-and-pull movements, appellant held the legs of Estrella to keep them apart (pp. 21-24, TSN, September 20, 1994).

employment of the Raymundo cousins, the household of the Siaos had not fallen victim to thievery.

After Gimena had sexual intercourse with Estrella, she sat down. Not long after, appellant said: "You do it again." Gimena said that he could not do it again because he was already very tired. But appellant pointed the pistol at Gimenas temple. Gimena obeyed the order of appellant because the pistol was pointed at him (pp. 2526, TSN, September 20, 1994). They were made to lay side by side while appellant kept on pointing the pistol at them. Gimena, who was behind Estrella made a pushand-pull movements so that his organ would reach her private part (pp. 27-29, TSN, September 20, 1994).

At around noontime of the same day, upon his return from his morning chores, accused Gimena inquired from Ms. Paares whether his watch had been found. When informed that his watch had not been recovered, he confronted private complainant, who offered to pay for the value of the watch instead. Joy Raymundo agreed to accompany accused Gimena to the house of an aunt (of Joy and private complainant) for financial assistance. An hour later, accused Gimena and Joy Raymundo returned to the Siao compound and reported to Ms. Paares that the aunt was unable willing (sic) to help.

After the side by side position, they were made to assume the dog position (patuwad). Appellant commanded her to do it but she refused because she was already tired. Appellant pointed the pistol at her, so she obeyed his order. Gimena said: "I will not do that because I am already tired." At that, appellant pointed the pistol at Gimena. Thus, Gimena copulated with Estrella in the manner dogs perform the sexual intercourse. Gimena shouted for help. Somebody knocked on the door and they heard the voice of Teresita Paares, the older sister of appellant. Appellant ignored Paares and kept on pointing the pistol at Estrella and Gimena, as he looked at them with wide-open eyes (siga) (pp. 30-31, TSN, September 20, 1994). Shortly, appellant told them to go to the boys room. They complied with his order tearfully, after he followed them laughing all the while. Appellant then warned them: "If you will tell the police, I will kill your mothers." (pp. 33-34, TSN, September 20, 1994).

In the meantime, private complainant admitted to Ms. Paares that she stole the P1,300.00 but denied having taken the necklace. Private complainant initially returned the sum of P600.00 to Ms. Paares. When Ms. Paares stated that what she lost was P1,300.00, private complainant went to her quarters and returned with an additional P200.00. Private complainant explained that she could no longer produce the remaining money because she had already purchased a number of personal effects (pail, basin, pants, shorts) for herself with it.

At around 6:00 oclock in the evening of the same day, Estrella and Joy Raymundo sought permission to go home. On their way home, they met an old man who saw Estrella crying. The old man took them to his house. After the incident was reported to the police, Senior Police Officer Reynaldo Omaa conducted the investigation and arrested Gimena, who was identified by Esrtrella as the one who raped her on orders of appellant. The police officers looked for appellant to shed light on the reported rape. But they could not locate him (Exhibit "B"; pp. 5-7, TSN, December 13, 1994).[4] Accused-appellant Rene Siao, anchoring his defense mainly on denial, presents a different version of the case; his story "Private complainant Ester or "Estrella" Raymundo, together with her cousin Joy Raymundo, was employed as a maid by the Siao family on May 9, 1994. In the morning of May 27, 1997, a commotion in the household of Jose Siao awakened Teresita Paares, a sister of accused-appellant. Ms. Paares learned that accused Reylan Gimena, one of the houseboys of the Siao family, was accusing private complainant of stealing his wristwatch. This was not the first time accused Gimena confronted private complainant with the loss of his watch. Earlier in the week, Teresita had also lost money in the amount of P1,300.00, while her daughter Jan Bianca Abellana lost a necklace. It would turn out that the other househelpers of the Siaos had likewise lost personal articles. Marilyn Resujent, a maid, lost a brand new panty and sleeveless blouse. Simeon Siroy Jr., a houseboy, lost two T-shirts. Until the

A little while after accused Gimena and Joy returned from the house of Joy and Esters aunt, accused Gimena and private complainant went to the males quarters. Sometime thereafter, accused Gimena emerged from the males quarters and announced the recovery of his watch. Private complainant had revealed to accused Gimena the hiding place of his watch, which was under the ironing board. In the afternoon of May 24, 1994,[5] many people were present in the household of Jose Siao, father of accused-appellant. Ms. Beatriz Baricuatro was in the sala praying the rosary as was were habit. Joy Raymundo was in the kitchen. Ms. Paares was likewise downstairs going about her daily business. The grandchildren of Jose Siao were running in and out of the house. At about 3:00 p.m., Ms. Paares left their residence to seek the assistance of the barangay with respect to the lost necklace of her daughter. (Until this time, private complainant would not admit to stealing the necklace). Within an hour, Ms. Paares returned to the compound accompanied by Barangay Tanod Arturo Jabines. Private complainant was inside the males quarters when the two arrived. Accused had earlier reported for work at the retail store owned by Jose Siao. When Barangay Tanod Jabinez introduced himself, private complainant immediately begged for his forgiveness and promised not to do it again. Barangay Tanod Jabinez instructed the private complainant to address her pleas to her victims and not to him. Before the barangay tanod, private complainant admitted to stealing the necklace. Dissatisfied with the piece-meal confession of the private complainant, Ms. Paares decided to bring her to the barangay hall where she could report the theft. On the way to the barangay hall, private complainant confessed to selling the necklace and begged for forgiveness. At the last minute Ms. Paares relented and decided to give the private complainant a second chance.

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Upon their return to the Siao compound, private complainant and Joy Raymundo sought permission from Ms. Baricuatro to just return to their home in Leyte. Ms. Beatriz gave her consent and even handed them money for boat fare. At about 6:00 p.m., both housemaids left the Siao residence, bringing with them all their personal belongings. An hour later, some people came to the house of Jose Siao looking for private complainant and her cousin. At this time, accused-appellant Rene Siao remained unaware of the developments that unraveled in the residence of Jose Siao. In the morning of May 24, 1994,[6] accused-appellant made his usual rounds ]collecting the obligations of his fathers creditors. At noontime, accused-appellant went directly to the retail store of his father where he had lunch with his wife Gina, as was his habit. This was the usual hour of his fathers siesta and he would tend to the store in his fathers absence, as was his custom. At about 9:00 p.m. of the same evening, a barangay tanod came to the retail store and invited accused Gimena to the barangay hall. Jose Siao and Ms. Paares would follow. At the barangay hall, upon the complaint of a certain Rosalie Sallentes (who claimed to be related to the Raymundo cousins), Barangay Captain George Rama asked accused Gimena of the whereabouts of Ester and Joy Raymundo. Accused Gimena answered that he did not know. During the course of the investigation, and under threat by the Barangay Captain that his head would be broken if he did not tell the truth, accused Gimena confessed to tying up the private complainant to force her to reveal the place where his watch was being kept. He untied her after he recovered his watch from under the ironing board. The following evening, on May 28, 1994, accused Gimena was picked up by policemen at the retail store of Jose Siao and brought to the Tabo-an Police Station. Neither the police nor the barangay tanod looked for accused-appellant on the evenings of May 27 and 28, 1994. Private complainant would file a complaint against accused-appellant and accused Gimena on June 21, 1994.

"THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT SIAO GUILTY BY INDUCEMENT THE TRIAL COURT ERRED IN CHARACTERIZING THE INCONSISTENCIES AS MINOR AND IMMATERIAL THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSES"[9] The Court has carefully reviewed the records of this case and has found accusedappellants contentions to be without merit. Against the victims story, accusedappellant urges us to accept his own version. But we cannot do so, for we agree with the trial courts observation that a 14-year old girl from the province, nave and innocent to the ways of the world, is incapable of concocting serious charges against her employer and fabricating a story of aberrant sexual behavior as can only be told by one who has been subjected to it. First, accused-appellants assertion that the failure of the prosecution to present the gun used by him to force and intimidate Ester Raymundo and Reylan Gimena to perform sexual intercourse is fatal to the prosecutions cause is clearly untenable. This Court has held in People vs. Travero, that "[t]he non-presentation of the weapon used in the commission of the rape is not essential to the conviction of the accused. It suffices that the testimony of the rape victim is credible because the established rule is that the sole testimony of the offended party is sufficient to sustain the accuseds conviction if it rings the truth or is otherwise credible."[10] As to fact that accused-appellant Rene Siao forced and intimidated at gunpoint Ester Raymundo and Reylan Gimena to have carnal knowledge of each other, we are convinced that the same has been adequately proved by the prosecutions evidence. Even as under settled jurisprudence, the evidence for conviction must be clear and convincing to overcome the constitutional presumption of innocence, we find the straightforward, consistent and candid manner in which Ester Raymundo related her harrowing experience in the hands of accused-appellant as bearing all the earmarks of verity. Not only that, the corroborative testimony of Reylan Gimena was consistent in material respects with that of Ester Raymundo. Ester Raymundo testified as follows:

After the case was filed but before trial commenced, a person who presented himself as the father of private complainant set a meeting with the Siaos. The father of private complainant demanded 1 Million Pesos from the Siaos to drop the rape case."[7] As stated earlier, the trial court rendered a decision finding accused-appellant Rene Siao guilty of the crime of rape as principal by induction in accordance with Article 17(2) of the Revised Penal Code.[8] Insisting on his innocence, accused-appellant assigns to the trial court the following alleged errors:

Q: Now, in your position which you have stated awhile ago, what did Reylan do with his penis? COURT "If he did anything?" To avoid any leading question. You can ask, "What happened next?" "What did he do?" But to ask what did he do with his penis . . . FISCAL BUENVIAJE My questions are personal and very . . .

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Okay, ask simple questions. COURT FISCAL BUENVIAJE You can frame your question by just adding a few words "if he did anything." Q: Did Reylan make a push-and-pull? WITNESS ATTY. SENINING A: We did the sexual act (kayatan). That is leading also. FISCAL BUENVIAJE FISCAL BUENVIAJE Q: Was he successful in penetrating you? That is natural, that necessarily follows: A: Yes. COURT Q: And all the time Rene Siao was holding both of your legs? Let the Court ask the question: ATTY. SENINING One of the . . .

Q: What was the body movement of Reylan when he had a sexual intercourse with you?

COURT

A: He kept on push . . .

Sustained. That is very leading.

COURT

Q: Now, what did you feel when Reylan penetrated you?

"He made a push-and-pull movement."

A: I felt excruciating pain.

ATTY. FERNANDEZ

FISCAL BUENVIAJE

Making pumping action.

Q: So, what did you do because of that pain?

FISCAL BUENVIAJE

WITNESS

That is push-and-pull. I object that "pumping." This is not an artesian well.

A: I sat down when it was finished.

COURT

Q: How many minutes was Reylan doing the sexual act, the push-and-pull above you?

You will just Americanize "pumping." FISCAL BUENVIAJE

ATTY. FERNANDEZ Q: For how many minutes was Reylan doing the sexual act of push-and-pull? Your Honor, I would suggest, because there is no testimony to the effect that there was a push and pull. There was no establishment, Your Honor, the penetration was established but whether there was a push and pull after the first penetration. Just for justice in this matter it must be established by simple questions. COURT

WITNESS A: Ten (10) minutes, more or less. Q: Now, while Reylan was doing the push-and-pull for about 10 minutes, what was Rene Siao doing all the time?

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A: Rene Siao kept on looking and said, "Why did it take long to penetrate?

I would suggest . . . (not finished)

Q: Now, what was the position of both of the hands of Rene Siao?

FISCAL BUENVIAJE

COURT INTERPRETER

"Sexual act."

Witness demonstrating that Rene Siao held her both legs in order to spread it apart.

ATTY. SENINING

FISCAL BUENVIAJE

All right.

I would like to add some comments to the interpretation. According to the witness, while Reylan Gimena was doing the sexual act, all the time Rene Siao was holding both her legs. That is precisely the meaning.

WITNESS

Another question.

COURT

Q: Did Reylan Gimena reach that climax wherein he was like being electrocuted?

Then continue.

COURT

WTNESS

Sustained; she does not even know what is a climax.

A: Then Reylan Gimena answered that he cannot do it because he is already very tired.

A: Rene Siao then said that "You do it again."

FISCAL BUENVIAJE FISCAL BUENVIAJE Q: Was Gimena able to consummate the act of rape on you? Q: Did Rene Siao allow Gimena to take a rest? ATTY. SENINING ATTY. SENINING That is a matter of law and interpretation. Again, Your Honor, please. COURT COURT Sustained. Anyway, you have the medical certificate. Next question. What is your ground? FISCAL BUENVIAJE ATTY. SENINING Q: Now, after that 10 minutes wherein Gimena raped you while Rene Siao was holding both of your legs, what happened next?

Leading.

ATTY. SENINING

COURT

I would just like to correct the word "rape."

Reform.

ATTY. FERNANDEZ

FISCAL BUENVIAJE

I would also . .

Q: What did Rene Siao do when at first Gimena refused because he was tired?

ATTY. SENINING

A: He pointed the handgun to Reylan Gimena.

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Q: What portion of the body of Gimena was pointed with a gun by Rene Siao?

A: Me.

A: At the left temple.

FISCAL BUENVIAJE

Q: So, what did Reylan do when Siao pointed the pistol on his temple?

Q: Was Gimena able to successfully penetrate you this second time around?

A: He obeyed the order because he was afraid of the handgun.

ATTY. SENINING

FISCAL BUENVIAJE

May I just request, Your Honor, that the . . . (not finished)

Q: So, what did Reylan do to you for the second sexual act?

COURT

ATTY. FERNANDEZ

Reform.

Your Honor, please, I would object, I would rather suggest that the question, "What did Reylan do after?"

FISCAL BUENVIAJE Q: You said Gimena also . . . (not finished)

FISCAL BUENVIAJE: COURT After the statement. Just ask, "What happened next?" COURT WITNESS Sustained. You already assumed that there was a second. A: He kept on push-and-pull toward my private part. FISCAL BUENVIAJE Q: Where did Gimena position himself in relation to you? Okay, I will reform. COURT INTERPRETER Q: What did Reylan Gimena do when Siao pointed his gun on his temple? The witness demonstrated by pointing at her left back. WITNESS COURT A: He obeyed the order because he is pointed with a handgun. Q: Were you face-to-face or was he behind you? Q: What position this time? A: He is behind. A: He was made to lie at my side. FISCAL BUENVIAJE Q: As you were now on your side, what did Reylan Gimena do? Q: And what did he do? A: Reylan Gimena also laid at his side. ATTY. FERNANDEZ Q: What did Rene Siao do, if any? I think that has been answered that he made push-and-pull. A: He kept on pointing the handgun. Q: Was he able to penetrate you the second time? Q: To whom?

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WITNESS

Q: What did he do to you?

A: Yes, Sir.

A: He told me to do it again but I was already tired and he pointed the handgun to me.

Q: For how many minutes, if you still remember, did Gimena do the push-and-pull action from your behind?

Q: Did you assume the dog position upon the order of Rene Siao? A: Yes, because I was afraid of the handgun.

A: Ten (10) minutes. Q: And what did Reylan do this time, if any? Q: Was he able to accomplish his act? A: Reylan answered that "I will not do that because I am already very tired." ATTY. SENINING What act?

Q: What did Rene Siao do upon hearing the statement of Reylan that he would not comply?

FISCAL BUENVIAJE

A: He again pointed his handgun.

Sexual act.

Q: Did Reylan comply wen Rene Siao pointed the gun to him?

ATTY. SENINING

A: Yes, because he was afraid.

Already answered, penetrated.

Q: And what did Reylan do to you?

FISCAL BUENVIAJE

A: Reylan made a push-and-pull because I was made by Rene Siao to assume the dog position (patuwad).

But there is still climax that is why I am asking. Q: Was Reylan able to penetrate you this time? ATTY. FERNANDEZ A: Yes, and I even shouted. I think I have no objection to the question whether Reylan Gimena ejaculated. Q: What did you shout? ATTY. SENINING In fact that will be part of my cross-examination.

A: "Tabang!" I asked for help "Tabang!" and then there was somebody who knocked. There was a knock made by my Ate and she asked, "What are you doing there?" And Rene Siao did not listen.

WITNESS FISCAL BUENVIAJE A: Maybe. Q: Now, after that 10 minutes, what happened next?

Q: According to you Rene Siao did not listen. In effect, did he order you and Reylan to continue the act?

A: After the 10 minutes he let me assume a dog position (patuwad).

WITNESS

FISCAL BUENVIAJE

A: Yes, Sir.

Q: Who ordered you to do the dog position?

Q: While Reylan Gimena was doing the sexual act on you, what was Rene Siao doing all the time?

A: Rene Siao. A: He kept on pointing the handgun and kept on looking with wide eyes (siga).

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Q: For about how many minutes was that dog position continued until termination?

Q: Now, as Ester was already lying down straight upon order of Rene Siao, what happened then?

A: Five (5) minutes.

A: I was told by him to go on top of the woman.

Q: After that, what happened next?

Q: What was the exact word of Rene Siao in ordering you so?

A: Then Rene Siao told us to do the act in the room of the boys."[11]

A: He said go on top of the woman so that you can deflower her.

Corroborating the foregoing, Reylan Gimena testified as follows:

Q: Did you understand what Rene Siao told you?

FISCAL BUENVIAJE

A: Yes, sir.

Q: After the sucking incident, what happened next?

Q: What was your understanding?

A: The woman was ordered to lie down.

A: He wants the woman to be raped.

COURT

COURT

The Court would like to ask one question.

Q: I think you have not answered the question of the prosecuting fiscal. If you can still recall, what were the words uttered or used by Rene Siao?

Q: When Ester was sucking your penis, did you ejaculate or did you feel warm liquid coming out of your penis?

A: He said that he wants me to fuck the woman and he wants it fast.

A: No, Your Honor.

Q: And did you lie on top of the woman of Ester?

Continue, Fiscal.

ATTY. SENINING

FISCAL BUENVIAJE

Leading.

Q: Now, you said Rene Siao ordered Ester to lie down, did she comply?

COURT

A: Yes, because he pointed a firearm to her.

Your just reform.

Q: Where did she lie down?

FISCAL BUENVIAJE

A: On the bed, sir.

Q: What did you do?

Q: What was the position of Ester as she was lying down?

A: I got on top of the woman.

A: She was lying face upward.

Q: Did you make a push and pull action on the vagina of Ester?

Q: What was the position of her legs?

ATTY. SENINING

A: Straight, sir.

Leading, Your Honor.

FISCAL BUENVIAJE

FISCAL BUENVIAJE Naturally, it follows. In the interest of justice, Your Honor.

40

COURT

Witness motioning as if he was spreading.

Let the Court ask the question.

COURT

Q: Were you able to penetrate or not?

To satisfy Atty. Fernandez. You rewind.

A: I was not able to penetrate yet.

(The tape was rewinded and played by the stenographer.)

FISCAL BUENVIAJE

COURT

Q: When you were not able to penetrate Ester, what was the reaction of Rene?

What is audible is the use of the word "kuan."

A: He said, "How is that?" Is it not inserted yet?" And I answered back, "Not yet, Pard, because it is hard." And he said, "If it is hard we will separate her legs."

You clarify this point. FISCAL BUENVIAJE

Q: In effect, did Rene fulfill his words of spreading the legs of Ester? We have the prerogative to ask. ATTY. SENINING COURT Leading, Your Honor, because the word is "we." "We will spread her legs." Never mind. You ask. COURT FISCAL BUENVIAJE You just reform. Please do not refrain us from clarifying. Q: What, if anything, did Rene do? COURT FISCAL BUENVIAJE Clarify. Q: After uttering those words that we will separate her legs? FISCAL BUENVIAJE ATTY. FERNANDEZ Because we will clarify what is not clarified. No. He answered "bilangkad," Your Honor. Q: After uttering those words, what did Rene do, if any? COURT A: He held the woman and spread her legs. No, Its on tape. ATTY. FERNANDEZ

Q: At this juncture wherein Rene Siao was already holding the legs of Ester in order to spread it, were you able to penetrate Ester?

After he said "kuan, he said "bilangkad."

ATTY. SENINING

COURT

Leading again, Your Honor, please.

Although you put it on record. No.

FISCAL BUENVIAJE

COURT INTERPRETER

This is cross-examination.

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Q: Did Ester comply to lie on her side? COURT A: Yes, because a firearm was pointed at her. I will allow. COURT FISCAL BUENVIAJE Q: Did you notice if Ester was bleeding? How can we . . . A: No, Your Honor. COURT Q: In her vagina? Never mind. I will allow. A: Yes, Your Honor. WITNESS FISCAL BUENVIAJE A: Yes, that was the time I penetrated. Q: At that position wherein Ester was lying on her side, what did Rene do? COURT A: He ordered another position. Q: So your penis was stiff? Q: Did you comply to fuck Ester in that position as ordered by Rene A: Yes, Your Honor. ATTY. SENINING Q: Did you like what you do? There is no basis yet. A: No, Your Honor. COURT Next question. FISCAL BUENVIAJE

There was no question yet. There was no evidence that he was commanded to have sexual intercourse.

Q: Did you ejaculate?

ATTY. SENINING

A: Yes, sir.

He told . . .

COURT

COURT

Q: What did you feel when you ejaculated?

Not yet. He only testified that Ester was made to lie sideways.

A: I do not know because that was my first time, Your Honor, with a woman.

FISCAL BUENVIAJE

FISCAL BUENVIAJE

Q: After Ester complied to the order of Rene to lie on her side, what more happened?

Q: You said you were able to penetrate Ester while Rene Siao was holding both of her thighs, then spreading it, and you said you ejaculated. After that, what happened next?

A: That was the time that mine penetrated.

A: He told the woman to lie on her side.

ATTY. SENINING

Q: Was that upon order of Rene?

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Leading again, Your Honor.

Q: In effect, did Ester comply to pose in a doggy position?

COURT

A: Yes, because a firearm was pointed to her.

Sustained.

COURT

FISCAL BUENVIAJE

You just put there parenthesis (gipatuwad).

Q: You said you were able to penetrate Ester as she was on her side, is that your own volition to fuck her on that position?

FISCAL BUENVIAJE Q: As Ester was in a dog position, did Rene utter anything to you?

ATTY. SENINING ATTY. SENINING Leading, Your Honor. Hearsay again, Your Honor. Leading, Your Honor. FISCAL BUENVIAJE COURT That is precisely the consequence. You just reform. COURT FISCAL BUENVIAJE Let the Court ask the question. Q: After Ester assumed that dog position, what did Rene do, if any? Q: Why did you fuck her on that position? A: He ordered me. A: Because it was the order of Rene, Your Honor. Q: What was the order? Sometimes it is the way you phrase the question. Okay, continue. ATTY. SENINING FISCAL BUENVIAJE Q: After this side position, what happened next?

I only request that the DSWD at my back, Your Honor, should not be allowed to coach the witness. I have no objection . . .

A: He ordered the woman to assume the doggy position.

COURT

COURT

I am warning the representative of the DSWD to leave the interpreter alone.

Lets just understand. "Gipatuwad." Lets just assume.

ATTY. SENINING

ATTY. FERNANDEZ

Are you interested in this case?

Crouching position.

COURT

COURT

Never mind, Compaero. There is a warning already.

Crouching.

(The last question of Fiscal Buenviaje was interpreted and answered by the witness).

FISCAL BUENVIAJE

COURT

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I understand because he is not used to using obscene words.

COURT

FISCAL BUENVIAJE

Third. The sexual intercourse. Oral sex first. After the third sexual intercourse.

He is not accustomed.

ATTY. FERNANDEZ

ATTY. FERNANDEZ

Third penetration, Your Honor.

We just would like to manifest that the witness is not familiar in using obscene words.

WITNESS

COURT

A: Yes, Your Honor.

We do not know. The understanding of the court is he is hesitant to use obscene words.

COURT Q: Were you afraid at that juncture or point of time?

ATTY. SENINING A: I was still afraid, Your Honor, because he kept on pointing his firearm to me. Not because that . . . Q: Did you like what did the third time, that is, penetrating Ester in a doggy position? ATTY. FERNANDEZ A: No, Your Honor. I would like to manifest that the witness is hesitant to use obscene words. Q: But you insist that your penis was still stiff? FISCAL BUENVIAJE A: Yes, Your Honor. Q: What did you do upon that order of Rene? Q: Did you easily penetrate the vagina of Ester? A: He ordered me to fuck the woman, sir. A: Not so easy, Your Honor."[12] Q: Did you comply with the order to fuck Ester? A: Yes, because I was afraid as he kept on pointing his firearm to me. Q: And you were able to penetrate Ester on that position? A: Yes, sir. COURT

To sum up, Ester Raymundo and Reylan Gimena were forced and intimidated at gunpoint by accused-appellant Rene Siao to have carnal knowledge of each other. Rene Siao called Reylan Gimena inside the womens quarter. After Rene Siao closed the door, he told Reylan, "Reylan, birahi si Ester". Since Reylan was at a loss as to what to do, Rene Siao commanded Ester at gunpoint to "suck (um-um) the penis" of Reylan Gimena.[13] Both Reylan and Ester performed the sexual act because they were afraid they will be killed. Thereafter, accused-appellant commanded Reylan to rape Ester in three (3) different positions, pointing the handgun at them the whole time.

Q: By the way, at this juncture your penis was still stiff after the third position? ATTY. SENINING Fourth. ATTY. FERNANDEZ

The testimony of Ester and Reylan were assessed by the trial court to be credible. Unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case, its assessment must be respected for it had the opportunity to observe the conduct and demeanor of the witnesses while testifying and detect if they are lying.[14] We find no reason to deviate from the findings of the trial court. If their story had only been contrived, Ester and Reylan would not have been composed and consistent in the face of such intense and lengthy interrogation.

Third, Your Honor.

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Second, accused-appellant faults the trial court for giving credence to the testimonies of Ester Raymundo and Reylan Gimena despite being fraught with substantial inconsistencies with regard to the following points: 1. Ester testified that Reylan pulled her to the womens quarter, while Reylan testified that when he entered the room Ester was already tied up in the bed; 2. Ester testified that she was lying "face down" on the bed, while Reylan testified that she was lying "face upward"; 3. Ester testified that before being made to undress, accused-appellant Rene Siao wound electrical wire around her neck and Gimena made no mention of this; 4. Ester testified that Gimena ejaculated while performing the sexual acts while Gimena testified that he did not ejaculate; and lastly, 5. Ester testified that she had sought help from her cousin Joy Raymundo on the way out from the womens quarter while Reylan testified that she just walked slowly towards the mens quarters as ordered by accused-appellant. It can readily be seen that the alleged inconsistencies are inconsequential considering that they refer to trivial matters which have nothing to do with the essential fact of the commission of rape, that is carnal knowledge through force and intimidation. This Court has consistently adhered to the rule that inconsistencies on minor details of the testimonies of witnesses serve to strengthen their credibility as they are badges of truth rather than an indicia of falsehood.[15] If at all, they serve as proof that the witnesses were not coached and rehearsed. Third, accused-appellant contends that the testimonies of the prosecution witnesses do not conform to common experience due to the following reasons: Reylan Gimena ejaculated three times in a span of less than 30 minutes; the rape took place within earshot and near the presence of other people; Ester and Reylan did not make a dash for freedom during the ten minutes it took Rene Siao to follow them from the womens quarter to the males quarter where the latter wanted them to resume their copulation; a barangay tanod was present at the place of the alleged rape at about 4:00 p.m.; the private complainant reported the incident to an old man she chanced upon on her way home. Again, the points raised by accused-appellant are trite and of no consequence. First of all, the important consideration in rape is not the emission of semen but the penetration of the female genitalia by the male organ.[16] Well-settled is the rule that penetration, however slight, and not ejaculation, is what constitutes rape.[17] Thus, this factor could not affect the case for the prosecution. Second, accused-appellants argument that it is impossible to commit a rape in house where there are many occupants is untenable. We have held in a number of cases that lust is no respecter of time and place.[18] It is not impossible to perpetrate a rape even in a small room. Rape can be committed in a house where there are many other occupants.[19] Third, Ester and Reylan could not be expected to flee or even to attempt to flee under the circumstances. Undoubtedly, considering that Ester was only fourteen-years old and a newly employed housemaid, while Reylan Gimena a seventeen-year old houseboy, they were easily intimidated and cowed into submission by accused-appellant, who aside from being their "amo" or employer, was menacingly threatening to kill them or their family with a gun if they did not do as he commanded them to do. Thus, it was not improbable for them not to attempt to escape when as accused-appellant perceived they had an opportunity to do so. Moreover, while most victims will immediately flee from their aggressors, others become virtually catatatonic because

of the mental shock they experience.[20] It was also not improbable for them to report the incident to an old man they met on the road as there was no on else to turn to. In a bid to exculpate himself, accused-appellant presents a totally different version of the story. Accused-appellant sought to establish by his story that since Ester was caught stealing money and the personal belongings of the people in the household she had motive to implicate accused-appellant in such a serious charge. We cannot see how a 14-year old girl from the rural area could fabricate such charges borne out of a desire for revenge. We agree with the following explanation by the trial court: "The court cannot believe that a 14-year-old girl who is a stranger in the city will vent her ire on Rene Siao. If Rene Siao were to be believed that he did not confront Ester about the latters act of committing the crime of theft, why would Ester take revenge on Rene Siao? The court cannot believe that this 14-year-old probinsyana will concoct a story so as to do damage against business men like Jose Siao, Beatriz Baricuatro and Rene Siao. As a matter of fact, filing a case in court would mean untold misery and inconvenience. It will expose her to shame. She mustered enough courage if only to make the truth prevail. She ventured to assume the role of David against Goliath."[21] On the contrary, this theory of accused-appellant backfires on him because it appears that due to the thefts allegedly committed by Ester, Rene Siao decided to vent his ire by subjecting her to a perverted form of punishment and using Reylan as an instrument thereof. As to the charge of accused-appellant that the father of Ester tried to extort a huge sum of money from the accused-appellants family so that the case against him will be dropped, we agree with the trial court that this contention is largely self-serving as it is uncorroborated. All told, we agree with the trial court that the testimony of Ester Raymundo as well as the testimony of Reylan Gimena corroborating the same support the prosecutions version of the fateful incident. The rape was committed on May 27, 1994 or after the effectivity of R.A. 7659 on December 31, 1993.[22] The governing law, Article 335 of the Revised Penal Code as amended by R.A. No 7659 imposes the penalty of reclusion perpetua to death, if committed with the use of a deadly weapon. It reads: "When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua.

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Whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18)years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

later converted into the Information) failed to allege the use of a deadly weapon, specifically, that herein accused-appellant was armed with a gun, the penalty to be reckoned with in determining the penalty for rape would be reclusion perpetua, the penalty prescribed for simple rape under Article 335, as amended by R.A. No. 7659. Simple rape is punishable by the single indivisible penalty of reclusion perpetua, which must be applied regardless of any mitigating or aggravating circumstance which may have attended the commission of the deed.[27] Hence, the penalty of reclusion perpetua imposed by the trial court is correct. As a final matter, the trial court erred in ordering accused-appellant Rene Siao to pay the complainant only the civil liability arising from the offense in the amount of P50,000.00. In addition, it should have ordered accused-appellant to pay the offended party moral damages, which is automatically granted in rape cases without need of any proof.[28] Currently, the amount of moral damages for rape is fixed at P50,000.00.[29] Moreover, the presence of one aggravating circumstance justifies the award of exemplary damages pursuant to Article 2230 of the Civil Code of the Philippines[30] We find the amount of P20,000.00 as exemplary damages reasonable on account of the fact that the aggravating circumstance of ignominy attended the commission of the crime of rape.

2. when the victim is under the custody of the police or military authorities. 3. when the rape is committed in full view of the husband, parent, any of the children or other relative within the third degree of consanguinity. 4. when the victim is a religious or child below seven (7) years old. 5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.

WHEREFORE, the decision of the Regional Trial Court, Branch 13, Cebu City, is hereby AFFIRMED with the MODIFICATION that accused-appellant Rene Siao is ordered to pay P50,000.00 to Ester Raymundo by way of moral damages, and P20,000.00 by way of exemplary damages in addition to the amount of P50,000.00 which the trial court ordered him to pay as indemnity. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation. Accused-appellant was held guilty of rape with the use of a deadly weapon, which is punishable by reclusion perpetua to death.[23] But the trial court overlooked and did not take into account the aggravating circumstance of ignominy and sentenced accused-appellant to the single indivisible penalty of reclusion perpetua. It has been held that where the accused in committing the rape used not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating circumstance of ignominy attended the commission thereof.[24] However, the use of a weapon serves to increase the penalty.[25] Since the use of a deadly weapon increases the penalty as opposed to a generic aggravating circumstance which only affects the period of the penalty, said fact should be alleged in the information, because of the accuseds right to be informed of the nature and cause of the accusation against him.[26] Considering that the complaint (which was

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