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G.R. No. 80762 March 19, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR., NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant. SARMIENTO, J.: In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida who eluded arrest and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the penalty of imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, to indemnify the heirs of the deceased victim in the amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to pay the costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara, Iloilo. Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial court's decision. During the pendency of their appeal and before judgment thereon could be rendered by the Court of Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal and chose instead to pursue their respective applications for parole before the then Ministry, now Department, of Justice, Parole Division. 3 On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to indemnify the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of the trial court was affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this case to us for review. 6 The antecedent facts are as follows: At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto informed Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like to surrender to the authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at the Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who "backrode" on his motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the police on duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the Gonzales spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence where Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's residence at Sitio Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada, clad only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for about an hour during which time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and the immediate surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning, Patrolman Centeno, accompanied by a photographer, went back to the scene of the killing to conduct further investigations. Fausta Gonzales, on the other hand, was brought back that same day by Barangay Captain Paja to the police substation in Ajuy. When Patrolman Centeno and his companion arrived at Sitio Nabitasan, two members of the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been informed of the incident, were already there conducting their own investigation. Patrolman Centeno continued with his sketch; photographs of the scene were likewise taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy. The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after completed, a report was made with the following findings: PHYSICAL FINDINGS 1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity. EXTERNAL FINDINGS 1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of the arm, right, directed upward to the right axillary pit. 2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an entrance of 5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of the forearm, right, with 1 cm. wound exit. 3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1 cm. in width. 4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and 7th ribs, right located 1.5 inches below the right nipple.

5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right, located at the left midclavicular line at the level of the 5th rib left. 6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located at the mid left scapular line at the level of the 8th intercostal space. 7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left thoracic cavity. 8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle, located at the upper 3rd axilla left. 9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd arm left, directed downward. 10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right. 11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and mysentery coming out. 12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed downward to the aspex of the light thoracic cavity. 13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial border of the right scapula. 14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right elbow. 15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd, forearm, right. 16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull. INTERNAL FINDINGS: 1. Stab wound No. 5, injuring the left ventricle of the heart. 2. Stab wound No. 6, severely injuring the right lower lobe of the lungs. 3. Stab wound No. 7, injuring the right middle lobe of the lungs. 4. Stab wound No. 11, injuring the descending colon of the large intestine, thru and thru. 5. Stab wound No. 12, severely injuring the apex of the right lungs (sic). CAUSE OF DEATH: MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED, STABBED (sic), INCISED AND PUNCTURED WOUNDS. JESUS D. ROJAS, M.D. Rural Health Physician Ajuy, Iloilo 11 The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because they penetrated the internal organs, heart, lungs and intestines of the deceased." 12 On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective custody for "having been involved" in the killing of Lloyd Peñacerrada. He requested that he be taken to the P.C. headquarters in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by the Ajuy police force. 13 Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C. Company, an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the spouses Augusto and Fausta Gonzales. The information read as follows: The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES of the crime of MURDER committed as follows: That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused with four other companions whose identities are still unknown and are still at large, armed with sharppointed and deadly weapons, conspiring, confederating and helping each other, with treachery and evident premeditation, with deliberate intent and decided purpose to kill, and taking advantage of their superior strength and number, did then and there wilfully, unlawfully and feloniously attack, assault, stab, hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which said accused were provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada multiple wounds on different parts of his body as shown by autopsy report attached to the record of this case which multifarious wounds caused the immediate death of said Lloyd D. Peñacerrada. CONTRARY TO LAW. Iloilo City, August 26, 1981. 14 When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial, however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented himself to Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused except as earlier explained, Lanida, pleaded not guilty to the crime. At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C.

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Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the widow. Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at around 11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed that the victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four (4) incised wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim, nevertheless opined that due to the number and different characteristics of the wounds, the probability that at least two instruments were used is high. 18 The police authorities and the P.C. operatives for their part testified on the aspect of the investigation they respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly on the expenses she incurred by reason of the death of her husband while Barangay Captain Bartolome Paja related the events surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the location of the houses of the accused, as well as on other matters. By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident. According to Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the afternoon on February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as a tractor driver by one Mr. Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales spouses' house at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity prompted him to approach the place where the shouts were emanating. When he was some 15 to 20 meters away, he hid himself behind a clump of banana trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly recognized all the accused as the place was then awash in moonlight. 24 Huntoria further recounted that after the accused were through in stabbing and hacking the victim, they then lifted his body and carried it into the house of the Gonzales spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his way home. Upon reaching his house, he related what he saw to his mother and to his wife 26 before he went to sleep. 27 Huntoria explained that he did not immediately report to the police authorities what he witnessed for fear of his life. 28 In October 1981 however, eight months after the extraordinary incident he allegedly witnessed, bothered by his conscience plus the fact that his father was formerly a tenant of the victim which, to his mind, made him likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of his volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo where Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29 Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted to rape her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales, Sr., claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of the crime 31when the incident happened. He asserted that he only came to know of it after his grandchildren by Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32 The trial court disregarded the version of the defense; it believed the testimony of Huntoria. On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court erred in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not appreciating his defense of alibi. The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate court held that: . . . Huntoria positively identified all the accused, including the herein accused-appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have difficulty recognizing the assailant at a distance of 15 to 20 meters is without merit, considering that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not say who was hacking and who was stabbing the deceased, it was only because the assailant were moving around the victim. As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation is satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980): "The natural reticence of most people to get involved in a criminal case is of judicial notice. As held in People v. Delfin, '. . . the initial reluctance of witnesses in this country to volunteer information about a criminal case and their unwillingness to be involved in or dragged into criminal investigations is common, and has been judicially declared not to affect credibility.'" It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about 10 years and that he and Huntoria were in good terms and had no misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He said that he could not think of any reason why Huntoria should implicate him. (Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33

The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found the sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court: Finally, we find that the trial court erroneously sentenced the accusedappellant to 12 years and 1 day to 17 years and 4 months of reclusion temporal. The penalty for murder under Article 248 is reclusion temporal in its maximum period to death. As there was no mitigating or aggravating circumstance, the imposible penalty should be reclusion perpetua. Consequently, the appeal should have been brought to the Supreme Court. With regard to the indemnity for death, the award of P40,000.00 should be reduced to P30,000.00, in accordance with the rulings of the Supreme Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128 SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987). 35 The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty imposed being reclusion perpetua. After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the appellant of the crime charged. To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman Centeno of the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are the alleged various blood stains and their locations relative to the scene of the crime, there was however no indication as to their quantity. This is rather unfortunate for the prosecution because, considering that there are two versions proferred on where the killing was carried out, the extent of blood stains found would have provided a more definite clue as to which version is more credible. If, as the version of the defense puts it, the killing transpired inside the bedroom of the Gonzales spouses, there would have been more blood stains inside the couple's bedroom or even on the ground directly under it. And this circumstance would provide an additional mooring to the claim of attempted rape asseverated by Fausta. On the other hand, if the prosecution's version that the killing was committed in the field near the linasan is the truth, then blood stains in that place would have been more than in any other place. The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben Sazon who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state clearly the reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be safe from possible revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to him the participation of other persons in the killing of the victim. Finally, without any evidence on that point, P.C. investigators of the 321st P.C. Company who likewise conducted an investigation of the killing mentioned in their criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have conspired in killing Lloyd Peñacerrada. Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the autopsy report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that one bladed instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned, Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too impossible. And then there is the positive testimony of Dr. Rojas that there were only five wounds that could be fatal out of the sixteen described in the autopsy report. We shall discuss more the significance of these wounds later. It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous scrutiny of Huntoria's testimony is compelling. To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a "linasan" while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away from where the crime was being committed. According to him, he recognized the six accused as the malefactors because the scene was then illuminated by the moon. He further stated that the stabbing and hacking took about an hour. But on cross-examination, Huntoria admitted that he could not determine who among the six accused did the stabbing and/or hacking and what particular weapon was used by each of them. ATTY. GATON (defense counsel on cross-examination): Q And you said that the moon was bright, is it correct? A Yes, Sir. Q And you would like us to understand that you saw the hacking and the stabbing, at that distance by the herein accused as identified by you? A Yes, sir, because the moon was brightly shining. Q If you saw the stabbing and the hacking, will you please tell this Honorable Court who was hacking the victim? A Because they were surrounding Peñacerrada and were in constant movement, I could not determine who did the hacking. ATTY. GATON: The interpretation is not clear. COURT: They were doing it rapidly.

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A The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw the rapid movement of their arms, Your Honor, and I cannot determine who was hacking and who was stabbing. But I saw the hacking and the stabbing blow. ATTY. GATON: Q You cannot positively identify before this Court who really hacked Lloyd Peñacerrada? A Yes sir, I cannot positively tell who did the hacking. Q And likewise you cannot positively tell this Honorable Court who did the stabbing? A Yes sir, and because of the rapid movements. Q I noticed in your direct testimony that you could not even identify the weapons used because according to you it was just flashing? A Yes, sir. 39 (Emphasis supplied) From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the appellant in the killing of Lloyd Peñacerrada. It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which would categorize the criminal liability of the appellant as a principal by direct participation under Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that inculpates him by inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation under paragraph 3 thereof. What then was the direct part in the killing did the appellant perform to support the ultimate punishment imposed by the Court of Appeals on him? Article 4 of the Revised Penal Code provides how criminal liability is incurred. Art. 4. Criminal liability — Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (Emphasis supplied.) Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of the Revised Penal Code, on the other hand, provides how felonies are committed. Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. (Emphasis supplied.) Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission must be punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by means of deceit or fault. Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a felony in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was performed by the appellant. It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood as "any bodily movement tending to produce some effect in the external world." 40 In this instance, there must therefore be shown an "act" committed by the appellant which would have inflicted any harm to the body of the victim that produced his death. Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who "hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant "hacked or "stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant. This lack of specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal Code previously discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the total of sixteen inflicted, as adverted to above, while there are six accused charged as principals, it follows to reason that one of the six accused could not have caused or dealt a fatal wound. And this one could as well be the appellant, granted ex gratia argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not after all the oldest (already sexagenarian at that time) and practically the father of the five accused? And pursuing this argument to the limits of its logic, it is possible, nay even probable, that only four, or three, or two of the accused could have inflicted all the five fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further, it is possible, nay probable, that all the fatal wounds, including even all the non-fatal wounds, could have been dealt by Fausta in rage against the assault on her womanhood and honor. But more importantly, there being not an iota of evidence that the appellant caused any of the said five fatal wounds, coupled with the prosecution's failure to prove the presence of conspiracy beyond reasonable doubt, the appellant's conviction can not be sustained. Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify in October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While

ordinarily the failure of a witness to report at once to the police authorities the crime he had witnessed should not be taken against him and should not affect his credibility, 41 here, the unreasonable delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for eight months. Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been satisfactorily explained. His lame excuse that he feared his life would be endangered is too pat to be believed. There is no showing that he was threatened by the accused or by anybody. And if it were true that he feared a possible retaliation from the accused, 44 why did he finally volunteer to testify considering that except for the spouses Augusto and Fausta Gonzales who were already under police custody, the rest of the accused were then still free and around; they were not yet named in the original information, 45 thus the supposed danger on Huntoria's life would still be clear and present when he testified. Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he was a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because the victim was also his landlord. xxx xxx xxx Q Now, Mr. Huntoria, why did it take you so long from the time you saw the stabbing and hacking of Lloyd Peñacerrada when you told Mrs. Peñacerrada about what happened to her husband? A At first I was then afraid to tell anybody else but because I was haunted by my conscience and secondly the victim was also my landlord I revealed what I saw to the wife of the victim. 46 xxx xxx xxx (Emphasis ours.) At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very source of his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this milieu, tenants like Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate themselves with the latter. In this instance, volunteering his services as a purported eyewitness and providing that material testimony which would lead to the conviction of the entire family of Augusto Gonzales whose wife, Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a perverted sense, be a way by which Huntoria sought to ingratiate himself with the surviving family of his deceased landlord. This is especially so because the need to get into the good graces of his landlord's family assumed a greater urgency considering that he ceased to be employed as early as May 1981. 47 Volunteering his services would alleviate the financial distress he was in. And Huntoria proved quite sagacious in his choice of action for shortly after he volunteered and presented himself to the victim's widow, he was taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him employment and provided lodging for his family. 48 Given all the foregoing circumstances, we can not help but dismiss Huntoria as an unreliable witness, to say the least. At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family tradition and culture, aging parents are sheltered and insulated by their adult children from any possible physical and emotional harm. It is therefore improbable for the other accused who are much younger and at the prime of their manhood, to summon the aid or allow the participation of their 65-year old 49 father, the appellant, in the killing of their lone adversary, granting that the victim was indeed an adversary. And considering that the appellant's residence was about one kilometer from the scene of the crime, 50 we seriously doubt that the appellant went there just for the purpose of aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a perceived enemy. Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in which the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should not at once look with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it may be sufficient to acquit the accused. 52 In fine, the guilt of the appellant has not been proven beyond reasonable doubt. WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is hereby ACQUITTED. Costs de oficio. SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. G.R. No. L-35748 December 14, 1931 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants. Teofilo Mendoza for appellants. Attorney-General Jaranilla for appellee. VILLA-REAL, J.: Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former as principal

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by direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs. Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments of error with reference to Romana Silvestre, to wit: 1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information. 2. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt. The following facts were proved at the hearing beyond a reasonable doubt: Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the complainant. The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same municipality of Paombong. About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving it.lawphil.net As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation. With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused, who promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both of the accused went to

lived in the barrio of Santo Niño, in the same municipality; that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below found her guilty of arson as accomplice. Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in the commission of the act by another act without which it would not have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions. Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire? The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice, encouragement, or agreement, or material, through external acts. In the case of the accusedappellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an accomplice. The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550, paragraph 2, of the Penal Code, which reads as follows: ART. 550. The penalty of cadena temporal shall be imposed upon: xxx xxx xxx 2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to meet together, without knowing whether or not such building or house was occupied at the time, or any freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and fifty pesetas. While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know whether there were people or not in the others, inasmuch as the same danger exists. With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night. For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code. By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered. Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur. THE UNITED STATES, Plaintiff-Appellee, v. CATALINO APOSTOL, Defendant-Appellant.

5

Francisco Solicitor-General

Ortigas Harvey

for Appellant. for Appellee.

SYLLABUS 1. ARSON; EDIFICE USED AS DWELLING. — The words "Edifice used as a dwelling" in paragraph 1 of article 553 of the Penal Code, signify and edifice intended for human habitation, in an uninhabited place, at a time when it is unoccupied. DECISION ARELLANO, C.J. : The judgment entered in this case by the Court of First Instance of Nueva Ecija finds that on the 16th of December, 1907, five individuals, among them being the accused herein, went to the house where Pedro Tabilisima, Celestino Vergara, and Tranquilino Manipul were living, and there inquired after some carabaos that had disappeared, and because these above-mentioned inmates answered that they knew nothing about the matter, ordered them to leave the house, but as the three men named above refused to do so, the accused, Catalino Apostol, set fire to the hut and the same was burnt down. In the opinion of the trial court the responsibility of the accused has been fully established by the testimony of the injured parties. And inasmuch as,, according to the same, the act comes within the provisions of article 549 of the Penal Code, Catalino Apostol was sentenced to sixteen years and one day of cadena temporal, to the accessories of the law, to indemnity the value of the burnt hut in the sum of P1, and to pay the costs. An appeal having been taken to this court, the defense claimed, on behalf of the offender: (1) The absence of proof of criminal intent; (2) that in view of the fact that the burnt hut was situated in an uninhabited place, it is not proper to apply article 549, but article 554 of the Penal Code. Criminal intent as well as the will to commit a crime are always presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary shall appear. (Art. 1, Penal Code.) As to the circumstances connected with the burning of the hut, Pedro Tabilisima testified that he and his friends were in the same; that the accused and his companions arrived at 8 p.m. and questioned them about carabaos that they said had been stolen from them; that after they replied that they knew nothing, the former set fire to the house and they jumped out of it; that the witness and two companions lived in the house; that it was situated in an uninhabited place, surrounded by fields; that the nearest houses were far away, and cries could not be heard from one house to another; and that the burnt house was not worth more than P1, because it was a small one, the witness himself having constructed it. Celestino Vergara says that several individuals arrived at 8 o’clock at night, asked them for carabaos that they claimed to have lost, wounded Tranquilino Manipul, who was asleep, and Pedro Tabilisima, forced them to leave the house, and as they did not want to do so for fear of being assaulted the accused set fire to the same; they tried to put out the fire as long as they could, but when no longer able jumped out of the house. The house was in an uninhabited locality, in the fields, the nearest house being a small store to which the cry of a person might carry, and the neighboring houses could be seen. Tranquilino Manipul testified in almost the same terms as this last witness. The argument which the defense advances, based on article 554, which in connection with 553 punishes the setting fire to a building intended for habitation, in an uninhabited place, does not apply, because the article in question refers to an edifice intended for human habitation in an uninhabited place at a time when the same is unoccupied. It is article 549, which punishes with the very severe penalties of cadena temporal to cadena perpetua "those who shall set fire to any edifice, farmhouse, hut, shed, or vessel in port, with knowledge that one or more persons were within the same," that must be applied. The law must be applied as laid down in the abovequoted excerpt. But the court, in view of the nature of the crime and considering the circumstances attending the same, recognizes the extreme severity of the penalty; therefore we apply the remedy afforded it by article 2, paragraph 2, of the Penal Code, when a strict application of the provisions of the code would result in an excessive penalty, taking into consideration the degree of malice and the injury caused by the crime. For the reasons above set forth the judgment appealed from is hereby affirmed with costs against the Appellant. Ten days from date let a

confirming judgment be entered, and ten days thereafter let the case be remanded to the lower court for action. Without prejudice to the immediate execution of the judgment, let the clerk of this court, as provided in the said article 2 of the Penal Code, respectfully address a communication to the Honorable, the GovernorGeneral of these Islands, giving the result of this decision and the sentence, requesting him, should he so desire, to make use of the prerogative with which he is invested in order to reduce or mitigate the penalty imposed. So ordered. Torres, Johnson, Carson and Moreland, JJ., concur. G.R. No. L-6486 March 2, 1911 THE UNITED STATES, plaintiff-appellee, vs. RAFAEL B. CATOLICO, defendant-appellant. B. Pobre for appellant. Acting Attorney-General Harvey for appellee. MORELAND, J.: This is an appeal from a judgment of the Court of First Instance of the Province of Cagayan, Hon. Charles A. Low presiding, convicting the defendant of the crime of malversation of public funds and sentencing him to two months' imprisonment, to perpetual disqualification to hold public office or public employment of any kind, and to the payment of the costs. It appears from the proofs of the prosecution that the accused as justice of the peace of Baggao, Province of Cagayan, on the 2d day of October, 1909, had before him sixteen separate civil cases commenced by Juan Canillas against sixteen distinct individuals, each one for damages resulting from a breach of contract; that said cases were all decided by the appellant in favor of the plaintiff; that each one of the defendant in said cases appealed from the decision of the justice of the peace and deposited P16 as required by law, at the same time giving a bond of P50, each one of which was approved by the court; that on the 12th day of said month the plaintiff in said cases presented a writing to the appellant as said justice of the peace, alleging that the sureties on the said bonds were insolvent and later demonstrated this to the satisfaction of the appellant; that thereupon the latter ordered the cancellation of the said bonds and, in the same order, required each of the appellants to file another bond within fifteen days, that, inasmuch as none of the appellants in said causes presented new bonds within the time fixed, the plaintiff in said causes applied to the appellant, as said court, for an order declaring final the judgment entered in each of the said sixteen cases and commanding the execution of the same, at the same time asking that the sums deposited by the defendants in said actions be attached (so called in the record) and delivered to him in satisfaction of said judgments; that the accused acceded to the petition of the plaintiff, ordered said sums attached and delivered same to the plaintiff, at the same time requiring of the plaintiff a bond of P50 for each attachment, conditioned that he would respond for the damages which should result from such attachment. After this attachment (so called) the attorney for the defendants in the said sixteen cases presented a complaint against the appellant to the Court of First Instance, by virtue of which said court ordered that the plaintiff, Juan Canillas, deliver to the clerk of the Court of First Instance the sums deposited by the defendants in said actions. Canillas obeyed the order of the court and made the delivery as required. Upon these facts the Acting Attorney-General recommends the acquittal of the accused. We are in entire accord with that recommendation. The case made against the appellant lacks many of the essential elements required by law to be present in the crime of malversation of public funds. The accused did not convert the money to his own use or to the use of any other person; neither did he feloniously permit anybody else to convert it. Everything he did was done in good faith under the belief that he was acting judicially and correctly. The fact that he ordered the sums, deposited in his hands by the defendants — appellants in the sixteen actions referred to, attached for the benefit of the plaintiff in those actions, after the appeals had been dismissed and the judgments in his court had become final, and that he delivered the said sums to the plaintiff in satisfaction of the judgment which he held in those cases, can not be considered an appropriation or a taking of said sums within the meaning of Act No. 1740. He believed that, as presiding officer of the court of justice of the peace, he had a perfect right under the law to cancel the bonds when it was clearly shown to him that the sureties thereon were insolvent, to require the filing of new undertakings, giving the parties ample time within which to do so, to dismiss the appeals in case said undertakings were not filed, and to declare the judgment final. He believed that after said appeals had been dismissed and said judgment had become final, the sums deposited were subject to be applied in payment of the judgments in the actions in which said sums had been deposited and that he was acting judicially and legally in making such applications. To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences, as, in law, is equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea — a crime is not committed if the mind of the person performing the act complained of be innocent.

6

In the case at bar the appellant was engaged in exercising the functions of a court of justice of the peace. He had jurisdictions of the actions before him. He had a right and it was his duty to require the payment by each appellant of P16, as well as the giving of a proper undertaking with solvent sureties. While, in dismissing the appeals and delivering the P256 to the plaintiff in the said cases, he may have exceeded his authority as such court and passed beyond the limits of his jurisdiction and power, a question we do not now discuss or decide, it was, so far as appears from the record, at most a pure mistake of judgment, an error of the mind operating upon a state of facts. Giving the act complained of the signification most detrimental to the appellant, it, nevertheless, was simply the result of the erroneous exercise of the judicial function, and not an intention to deprive any person of his property feloniously. His act had back of it the purpose to do justice to litigants and not to embezzle property. He acted that honest debts might be paid to those to whom they were legally and justly due, and not to enrich himself or another by criminalmisappropriation. It was an error committed by a court, not an act done by a criminal-minded man. It was a mistake, not a crime. It is true that a presumption of criminal intention may arise from proof of the commission of a criminal act; and the general rule is that, if it is proved that the accused committed the criminal act charged, it will be presumed that the act was done with criminal intention, and that it is for the accused to rebut this presumption. But it must be borne in mind that the act from which such presumption springs must be a criminal act. In the case before us the act was not criminal. It may have been an error; it may have been wrong and illegal in the sense that it would have been declared erroneous and set aside on appeal or other proceeding in the superior court. It may well be that his conduct was arbitrary to a high degree, to such a degree in fact as properly to subject him to reprimand or even suspension or removal from office. But, from the facts of record, it was not criminal. As a necessary result no presumption of criminal intention arises from the act. Neither can the presumption of a criminal intention arise from the act complained of, even though it be admitted that the crime, if any, is that of malversation of public funds as defined and penalized in Act No. 1740. It is true that that Act provides that "In all prosecutions for violations of the preceding section, the absence of any of the public funds or property of which any person described in said section has charge, and any failure or inability of such person to produce all the funds and property properly in his charge on the demand of any officer authorized to examine or inspect such person, office, treasury, or depositary shall be deemed to be prima facie evidence that such missing funds or property have been put to personal uses or used for personal ends by such person within the meaning of the preceding section." Nevertheless, that presumption is a rebuttable one and constitutes only a prima facie case against the person accused. If he present evidence showing that, in fact, he has not put said funds or property to personal uses, then that presumption is at an end and the prima facie case destroyed. In the case at bar it was necessary for the accused to offer any such evidence, for the reason that the people's own pleading alleged, and its own proofs presented, along with the criminal charge, facts which showed, of themselves, that said money had not been put to personal uses or used for personal ends. In other words, the prosecution demonstrated, both by the allegations in its information filed against the accused and by its proofs on the trial, that the absence of the funds in question was not due to the personal use thereof by the accused, thus affirmatively and completely negativing the presumption which, under the act quoted, arises from the absence of the funds. The presumption was never born. It never existed. The facts which were presented for the purpose of creating such presumption were accompanied by other facts which absolutely prevented its creation. On the other hand, if it be admitted that the crime, if any, is that of estafa, as defined in paragraph 5 of article 535 of the Penal Code, then the presumption just referred to does not arise. Mere absence of the funds is not sufficient proof of conversion. Neither is the mere failure of the accused to turn over the funds at any given time sufficient to make even a prima facie case. (U. S. vs. Morales, 15 Phil. Rep., 236; U. S. vs. Dominguez, 2 Phil. Rep., 580.) Conversion must be affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows. (U. S. vs. Morales, supra.) The judgment of conviction is reversed and the defendant ordered discharged from custody forthwith. Arellano, C. J., Mapa and Trent, JJ., concur. G.R. No. 97471 February 17, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants. The Solicitor General for plaintiff-appellee. Edward C. Castañeda for accused-appellants. REGALADO, J.: The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following manner: That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1 On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof: ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua. The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3 Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4 For the material antecedents of this case, we quote with approval the following counter-statement of facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the same with page references to the transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the defense. This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7). Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6). At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9). Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10). Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10). Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14). Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15). The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23). Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26). On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27). Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6 As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even slowed the car down as he drove away, until

7

he saw that his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7 Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9 On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be kidnapping for ransom as charged in the information. We likewise agree. Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon. Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his membership in the rebellious movement in which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the motive of the offender assumes importance because if the attack was by reason of the previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11 In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12 With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention. That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno: Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew? A Santo Domingo Exit. Q And how about the checks, where were you already when the checks was (sic) being handed to you? A Also at the Sto. Domingo exit when she signed the checks. Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto. Domingo, after all you already received the money and the checks? A Because we had an agreement with her that when she signed the checks we will take her to her house at Villa (sic) Verde. Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the checks? A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow you to get out of the car." 16 Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnapping. These were merely

amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532. The lower court, in support of its theory, offers this ratiocination: The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim was carried away and extorted for more money. The accused admitted that the robbery was carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three checks. . . . In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974) under which where robbery on the highway is accompanied by extortion the penalty is reclusion perpetua. 18 The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made. Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20 Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our country, roving bands were organized for robbery and pillage and since the then existing law against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21 The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity: The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied). In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. 24 Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit: WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people: WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries;

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WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied). Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous. True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25 Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of doubt. If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28 We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage. Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of the Code. We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an information charging

them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. 31 These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons. 32 WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs. SO ORDERED. Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur. [G.R. No. 142773. January 28, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM, LEON DELIM, MANUEL DELIM alias BONG (At Large), ROBERT DELIM (At Large), and RONALD DELIM alias BONG, accused-appellants. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision,[1] dated January 14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding accused-appellants Marlon Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the supreme penalty of death. The court also ordered accusedappellants to pay, jointly and severally, the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary damages. Accused-appellants Marlon, Ronald and Leon, together with Manuel alias Bong and Robert, all surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads: That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with short firearms barged-in and entered the house of Modesto Delim and once inside with intent to kill, treachery, evident premedidation (sic), conspiring with one another, did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and prejudice of his heirs. CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659.[2] Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were apprehended. Accused Robert and Manuel remain at-large. At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not guilty to the charge. At the trial, the prosecution established the following relevant facts[3] Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he was adopted by the father of Marlon, Manuel and Robert. However, Modestos wife, Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison, Pangasinan. On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to have their supper in their home. Joining them were Modesto and Ritas two young grandchildren, aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into the house and closed the door. Each of the three intruders was armed with a short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto.[4] Marlon, Robert and Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and Manuel, who were also armed with short handguns, stayed put by the

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door to the house of Modesto and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day, January 24, 1999. As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident the night before and sought his help for the retrieval of Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modestos house, to locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there. On January 26, 1999, Randy reported the incident to the police authorities. At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was already dead. The cadaver was bloated and in the state of decomposition. It exuded a bad odor. Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately rushed to the police station to report the incident and to seek assistance. When informed of the discovery of Modestos cadaver, the local chief of police and SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes. Pictures were taken of the cadaver.[5] Rita and Randy divulged to the police investigators the names and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto and killed him. Rita and Randy gave their respective sworn statements to the police investigators.[6] Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to find them in their respective houses. The police officers scoured the mountainous parts of Barangays Immalog and Labayog to no avail. The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which reads: SIGNIFICANT EXTERNAL FINDINGS: - Body - both upper extremities are flexed - both lower extremities are flexed - (+) body decomposition - (+) worms coming out from injuries - 10 x 10 ml. GSW, pre-auricular area, right - 20 x 20 ml. GSW, mandibular areas, right - 10 x 10 ml. GSW, maxillary area, right - 10 x 10 ml. GSW, below middle nose, directed upward (POE) - 30 x 40 ml. GSW, mid parieto occipital area (POEx) - 2 x 1 cms. lacerated wound, right cheek - 1 x 1 cm. stabbed wound, axillary area, left - 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm - 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm - 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm - 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm - #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left forearm - 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm 10 x 6 cms. Inflamed scrotum penis inflamed SIGNIFICANT INTERNAL FINDINGS: - no significant internal findings CAUSE OF DEATH: GUN SHOT WOUND, HEAD.[7] The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no licenses for their firearms.[8] Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan.[9] To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi.[10] Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modestos house. He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning politics. Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that city where he was a stay-in worker. Sally Asuncion corroborated Leons alibi. She testified that Leon Delim never went home to his hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred that on January 23, 1999, his brother was at her house to give her his

laundry. She claimed that the distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus. Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January 1998 up to February 1999.[11] Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City. The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive portion of the trial courts decision reads: WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined and penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary damages. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of promulgation. The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision. SO ORDERED.[12] The trial court appreciated treachery as a qualifying circumstance and of taking advantage of superior strength, nighttime and use of unlicensed firearms as separate of aggravating circumstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail the decision alleging that: I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR. III THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI.[13] Before resolving the merits of the case at bar, we first resolve the matter of whether the crime charged in the Information is murder or kidnapping. During the deliberation, some distinguished members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form in light of the allegation therein that the accused willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of Modesto Delim from helping the latter. They submit that the foregoing allegation constitutes the act of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the fact that the Information went further to charge accused with the killing of the victim should be of no moment, the real nature of the criminal charge being determined not from the caption or the preamble of the Information nor from the specification of the law alleged to have been violated these being conclusions of law but by the actual recital of facts in the complaint or information. They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for kidnapping the victim. It bears stressing that in determining what crime is charged in an information, the material inculpatory facts recited therein describing the crime charged in relation to the penal law violated are controlling. Where the specific intent of the malefactor is determinative of the crime charged such specific intent must be alleged in the information and proved by the prosecution. A decade ago, this Court held in People v. Isabelo Puno, et al.,[14] that for kidnapping to exist, there must be indubitable proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and not where such restraint of his freedom of action is merely an incident in the commission of another offense primarily intended by the malefactor. This Court further held: x x x. Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims liberty does not constitute kidnapping or serious illegal detention.[15] If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victims liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is

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merged into, or absorbed by, the killing of the victim.[16] The crime committed would either be homicide or murder. What is primordial then is the specific intent of the malefactors as disclosed in the information or criminal complaint that is determinative of what crime the accused is charged with--that of murder or kidnapping. Philippine and American penal laws have a common thread on the concept of specific intent as an essential element of specific intent crimes. Specific intent is used to describe a state of mind which exists where circumstances indicate that an offender actively desired certain criminal consequences or objectively desired a specific result to follow his act or failure to act.[17]Specific intent involves a state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific intent must be alleged in the Information and proved by the state in a prosecution for a crime requiring specific intent.[18] Kidnapping and murder are specific intent crimes. Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred from the circumstances of the actions of the accused as established by the evidence on record.[19] Specific intent is not synonymous with motive. Motive generally is referred to as the reason which prompts the accused to engage in a particular criminal activity. Motive is not an essential element of a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for the commission of the offense charged does not show guilt and absence of proof of such motive does not establish the innocence of accused for the crime charged such as murder.[20] The history of crimes shows that murders are generally committed from motives comparatively trivial.[21] Crime is rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for kidnapping.[22] In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of a loved one, the motive is revenge. In this case, it is evident on the face of the Information that the specific intent of the malefactors in barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty and that killing him was merely incidental to kidnapping.[23] Irrefragably then, the crime charged in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268 thereof. The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder. In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of the evidence of the accused. The proof against the accused must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.[24] In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendants agency in the commission of the act.[25] Wharton says that corpus delicti includes two things: first, the objective; second, the subjective element of crimes.[26] In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death.[27] To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.[28] In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds,[29]defensive in nature. The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing of the victim as well as the nature, number and location of the wounds sustained by said victim are evidence of the intent by the malefactors to kill the victim with all the consequences flowing therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps v. State:[31] This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the

circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise. The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It relied on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of murder. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.[32] What was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites concur: x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt.[33] The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the guilt of accused for the offense charged.[34] For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.[35] If the prosecution adduced the requisite circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution. In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill Modesto: 1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto.They then seized Modesto and herded him out of his house: FISCAL TOMBOC: What were you doing then at that time in your house? A We were eating, sir. Q You said we, who were your companions eating then at that time? A My father, my mother and the two children and myself, sir. Q While taking your supper that time, do you recall if there was anything unusual that happened at that time? A When we were about to start to eat three armed men entered our house. Q Do you know these three armed men who entered your house? A Yes, sir. Q Who are they, name them one by one? A Marlon Delim, Robert Delim and Ronald Delim. Q Are these three persons inside the courtroom now? A Two of them, sir. Q Who are these two who are inside the courtroom? A Marlon and Ronald, sir. Q Will you please stand up and point to them? A (Witness is pointing to a person seated on the bench inside the courtroom, who, when his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person seated on the bench inside the courtroom, who, when his name was asked he answered Ronald Delim). Q You said that these two armed persons entered your house, what kind of arm were they carrying at that time? A Short handgun, sir. Q When these three armed persons whom you have mentioned, armed with short firearms, what did they do then when they entered your house? A They took my father, sir. Q Who took your father? A Marlon Delim, Robert Delim and Ronald Delim, sir. Q When these three persons took your father, what did you do then? A None, sir. COURT: How did they get your father? A They poked a gun and brought him outside the house, sir. FISCAL TOMBOC: Who poked a gun? A Marlon Delim, sir. Q Again, Mr. Witness, will you point to the person who poked a gun? A (Witness is pointing to Malon (sic) Delim, one of the accused). Q After bringing your father out from your house, what transpired next? A Manuel Delim and Leon Delim said, Stay in your house, and guarded us. COURT: You said your father was taken out, who? A Marlon, Robert and Ronald, sir. FISCAL TOMBOC: Where did these three persons bring your father? A I do not know where they brought my father, sir. COURT: Was your father taken inside your house or outside? A Inside our house, sir. Q You said that Marlon poked a gun at your father, is that correct? A Yes, sir.

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Q What did Ronald and Robert do while Marlon was poking his gun to your father? A Ronald and Robert were the ones who pulled my father out, sir.[36] Randys account of the incident was corroborated by his mother, Rita, who testified: PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at around 6:30 in the evening while preparing for your supper three (3) armed men entered inside your house, who were these three (3) men who entered your house? A I know, Marlon, Bongbong and Robert, sir. ATTY. FLORENDO: We just make of record that the witness is taking her time to answer, Your Honor. PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered your house, are these three (3) persons who entered your house in Court now? A They are here except the other one, sir. Q Will you please step down and point to the persons who entered your house? A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim. Q After these three (3) armed men entered your house, what happened then? A My husband was brought out, sir. Q What is the name of your husband? A Modesto Delim, sir.[37] 2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun, acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat until 7:00 a.m. of the next day: FISCAL TOMBOC: When your father was pulled out from your house by these three persons, what did you and your mother do while these three persons were taking out of your house? A We did not do anything because Manuel and Leon Delim guarded us. COURT: Where, in your house? A Yes, sir. FISCAL TOMBOC: From that very time that your father was pulled out by these three persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then? A They were at the door, sir. COURT: Why do you know that they were guarding you? A Because they were at the door, sir. FISCAL TOMBOC: What was their appearance that time when these two persons were guarding you, these Leon and Manuel? A They were armed, sir. Q What do you mean by armed? A They have gun, sir. Q What kind of firearm? A Short firearm, sir. Q By the way, where are these Leon and Manuel now, if you know? A Leon is here, sir. Q About Manuel? A None, sir. Q Will you please stand up and point at Leon, Mr. Witness? A (Witness pointed to a person seated on the bench inside the courtroom, who when his name was asked, answered, Leon Delim).[38] 3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help from their relatives and police authorities. 4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was found under the thick bushes in a grassy area in the housing project located about 200 meters away from the house of Modesto. The cadaver exuded bad odor and was already in the state of decomposition: Q So what did you do then on January 27, where did you look for your father? A The same place and at 3:00 oclock P.M., we were able to find my father. COURT: Where? A At the housing project at Paldit, Sison, Pangasinan, sir. FISCAL TOMBOC: Do you have companions at that time when you were able to look for your father on January 27, 1999 at 3:00 oclock P.M.? A Yes, sir. Q Who? A My Aunt, sir. Q What is the name of your Aunt? A Nida Pucal, sir. Q Who else? A Pepito Pucal, Bernard Osias and Daniel Delim, sir. COURT: When you found your father, what was his condition? A He was dead, sir. COURT: Go ahead. FISCAL TOMBOC: You said that he was already dead, what was his appearance then when you saw him dead? A He has bad odor, sir, in the state of decompsition (sic).[39] The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that his penis and

scrotum were inflamed. The victim sustained five gunshot wounds and defensive wounds on the left arm and forearm: PROS. TOMBOC: Q Will you please tell the Honorable Court your findings, Doctora? WITNESS: A First finding: Upon seeing the cadaver, this is the position of the body, both upper extremities are flexed and both lower extremities are flexed (Nakakukot). Q How many days had already elapsed when you autopsied the cadaver of the victim, Doctora? A Four (4) days upon the recovery of the body, sir. Q And what was your findings Doctora? A The body was already under the state of decomposition, sir, with foul odor and there were so many worms coming out from the injuries, there were tiny white worms, sir. Q What else did you observe Doctora? A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim was an igorot (sic) and they have tradition that they will bury immediately. Whether they like it or not I should do it, sir. Q What else Doctora? A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir. And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit. Q So there were two (2) gunshot wounds (GSW) Doctora? A Yes sir. And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW, below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx). Q How many all in all are the gunshot wound? A Five (5) sir. And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left forearm. Q How many stabbed wound are there Doctora? A There were seven (7) stabbed wounds, sir. Q Those stabbed wounds were defensive wounds, Doctora? A Yes sir.[40] The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and the distention of his scrotum and penis are evidence that the cadaver was in the stage of putrefaction and that the victim had been dead for a period ranging from three to six days.[41] Admittedly, there are variant factors determinative of the exact death of the victim. An equally persuasive authority states: Chronological Sequence of Putrefactive Changes Occurring in Tropical Region: Time Since Death Condition of the Body 48 hours Ova of flies seen. Trunk bloated. Face discolored and swollen. Blisters present. Moving maggots seen. 72 hours Whole body grossly swollen and disfigured. Hair and nails loose. Tissues soft and discolored.[42] The lapse of two or three to four days from the seizure of the victim in the evening of January 23, 1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of the contention of the prosecution that the victim was killed precisely by the very malefactors who seized him on January 23, 1999. 5. When police authorities went to the residences of all the malefactors, the latter had flown the coop and were nowhere to be found: COURT: In connection with this case, you investigated the wife and son of Modesto Delim? A Yes, sir. Q In the course of the investigation did you come to know who were the suspects? A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his brothers, sir. Q What are the names of the brothers? A Manuel Delim, Leon Delim I cannot remember the others, sir. Q By reason of that information were you able to apprehend any of them for investigation? A No, sir. Q Why? A Because when we were dispatched by the Chief of Police no Delim brothers could be found, they all left the place, sir. Q In what place did you look for the brothers Delim? A Within the vicinity, sir. Q In what place? A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place where the cadaver was found in Paldit, sir. Q Where did you look for the Delim brothers? A Nearby barangays, Immalog, sir.

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Q Wherelse (sic)? A Labayog, Sison, sir. Q Wherelse? A In mountainous part of Immalog, part of Tuba Benguet, sir. Q What was the result? A Negative result, sir.[43] 6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of Modesto and Rita: COURT: These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999? A Yes, sir, I know them. Q Why do you know Manuel and Leon prior to January 23, 1999? A They are my neighbors, sir. Q How about Marlon, Robert and Bongbong do you know them before January 23, 1999? A I know them, sir. Q Why do you know them? A They used to go to our house, sir. Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your husbands name is Modesto Delim are they related with each other? A Yes, sir.[44] The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the commission of an offense does not create a legal presumption of guilt, nevertheless, the same is admissible in evidence against them and if not satisfactorily explained in a manner consistent with their innocence, will tend to show that they, in fact, killed Modesto.[45] It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or grudge between Modesto on the one hand and Marlon, Ronald and Leon and their coaccused on the other before the incident, or any motivation on the part of the three malefactors to cause harm to Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon, Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all.[46] In this case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took Modesto from his house at the gunpoint, hogtied, put a piece of cloth in his mouth and after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and the cadaver of Modesto was found concealed under the bushes and already in a state of putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and died because of a gunshot wound on the head. The criminal acts and the connection of Marlon, Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt, the act itself furnishes the evidence, that to its perpetration there was some causes or influences moving the mind.[47] The remarkable tapestry intricately woven by the prosecution should not be trashed simply because the malefactors had no motive to kill Modesto. Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald and Leon to rebut the same and explain what happened to the victim after taking him from his house in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the victim may have been able to escape and that thereafter a person or some other persons may have killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied having seized and killed the victim and interposed alibi as their defense. Leon is equally guilty for the death of Modesto because the evidence on record shows that he conspired with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the victim. There is conspiracy when two or more persons agree to commit a felony and decide to commit it.[48] Conspiracy must be proven with the same quantum of evidence as the felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by direct evidence or by circumstantial evidence. Conspiracy is deducible from the acts of the malefactors before, during and after the commission of the crime which are indicative of a joint purpose, concerted action and concurrence of sentiment.[49] To establish conspiracy, it is not essential that there be proof as to the existence of a previous agreement to commit a crime.[50] It is sufficient if, at the time of the commission of the crime, the accused had the same purpose and were united in its execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who among the accused actually shot and killed the victim.[51]This is based on the theory of a joint or mutual agency ad hoc for the prosecution of the common plan: x x x The acts and declarations of an agent, within the scope of his authority, are considered and treated as the acts and declarations of his principal. What is so done by an agent, is done by the principal through him, as his mere instrument. Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). If the conspiracy be proved to have existed, or rather if evidence be given to the jury of its existence, the acts of one in furtherance of the common design are the acts of all; and whatever one does in furtherance of the common design,

he does as the agent of the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1, 710.[52] In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declaration of each, while in the pursuit of the common design, are the acts, words and declarations of all.[53] In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized and executed with precision evincing a preconceived plan or design of all the malefactors to achieve a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the commission of the crime were (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house to prevent them from seeking assistance from police authorities and their relatives before their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and Ronald.[54] Patently, Leon, a lookout for the group, is guilty of the killing of Modesto.[55] Leon may not have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a principal by direct participation.[56] If part of a crime has been committed in one place and part in another, each person concerned in the commission of either part is liable as principal. No matter how wide may be the separation of the conspirators, if they are all engaged in a common plan for the execution of a felony and all take their part in furtherance of the common design, all are liable as principals. Actual presence is not necessary if there is a direct connection between the actor and the crime. [57] Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same were marred by inconsistencies: 1. Randy initially stated that he did not know where the assailants brought his father. Later however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison, Pangasinan; 2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their house. She later changed her testimony and declared that it was Robert, together with Marlon and Ronald who barged into the house; 3. Rita likewise testified that two men stood outside the house guarding them. Later, she testified that after the three men brought out the victim, the two other accused entered the house and guarded them there; 4. Rita claimed that she went out to look for her husband the next day, or on January 25, 1999, and she was accompanied by her son Randy. However, Randy testified that he was alone when he looked for his father from January 24 to 26, 1999.[58] We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial court, its calibration of the collective testimonies of witnesses and its assessment of the probative weight thereof and its conclusions culled from its findings are accorded by the appellate court great respect, if not conclusive effect, because of its unique advantage of observing at close range the demeanor, deportment and conduct of the witnesses as they give their testimonies before the court. In the present case, the trial court gave credence and full probative weight to the testimonies of the witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were moved by any improper or ill motive in testifying against the malefactors and the other accused; hence, their testimonies must be given full credit and probative weight.[59] The inconsistencies in the testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative weight. It must be borne in mind that human memory is not as unerring as a photograph and a persons sense of observation is impaired by many factors including the shocking effect of a crime. A truth-telling witness is not always expected to give an error-free testimony considering the lapse of time and the treachery of human memory. What is primordial is that the mass of testimony jibes on material points, the slight clashing of statements dilute neither the witnesses credibility nor the veracity of his testimony.[60] Variations on the testimony of witnesses on the same side with respect to minor, collateral or incidental matters do not impair the weight of their united testimony to the prominent facts.[61] Inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony.[62] Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms and the true meaning of answers to isolated questions propounded to a witness is to be ascertained by due consideration of all the questions propounded to the witness and his answers thereto.[63] Randys testimony that he did know where the malefactors brought his father is not inconsistent with his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison, Pangasinan. Randy may not have known the destination of accusedappellants but he saw the direction to which they went. While it may be true that when asked to identify the three who barged into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout her testimony that those who barged into their house were Ronald and Marlon. Leons counsel never cross-examined Rita and impeached her testimony on her identification of Leon as one of those

13

who barged into their house to give her an opportunity to explain her perceived inconsistency conformably with Rule 132, Section 13 of the Revised Rules of Evidence which reads: Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.[64] Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired impeachment of her.[65] As to whether Rita and Randy were together in looking for Modesto or Leon merely stood guard by the door of the house or entered the house are inconsequential. The fact is that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for the seizure and killing of Modesto. This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they responded with consistency upon material details that could only come from a firsthand knowledge of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to disregard the findings of the trial court regarding their credibility. Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving credence and probative weight to their evidence to prove their defense of alibi. They aver that their collective evidence to prove their defense is strong. We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in criminal prosecution because the same is easy to concoct between relatives, friends and even those not related to the offender.[66] It is hard for the prosecution to disprove. For alibi to merit approbation by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and convincing evidence that they were in a place other than the situs criminis at the time of the commission of the crime; that it was physically impossible for them to have committed the said crime.[67] They failed to discharge their burden. Moreover, Rita and Randy positively and spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he claimed he was when the crime was committed, was only two kilometers away from the house of Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City does not constitute proof that he was in Laoag City on the day of the commission of the crime. With respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided in, left Dumaguete City and arrived in Manila on January 29, 1999. The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of superior strength and the use of unlicensed firearms as separate aggravating circumstances. The Office of the Solicitor General contends that indeed treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248 of the Revised Penal Code. The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and penalized by Article 248 of the Revised Penal Code. Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of qualifying the crime.[68] As this Court held: No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of defendant.[69] Article 14, paragraph 16 of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove the following elements: (a) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted.[70] Although the victim may have been defenseless at the time he was seized but there is no evidence as to the particulars of how he was assaulted and killed, treachery cannot be appreciated against the accused.[71] In this case, the victim was defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence that Modesto was defenseless immediately before and when he was attacked and killed. It cannot be presumed that although he was defenseless when he was seized the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To take advantage of superior strength means to purposely use force that is out of proportion to the means of defense available to the person attacked.[72] What is primordial, this Court held in People v. Rogelio Francisco[73] is that the assailants deliberately took advantage of their combined strength in order to consummate the

crime. It is necessary to show that the malefactors cooperated in such a way as to secure advantage from their superiority in strength.[74]In this case, the prosecution failed to adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof that the three took advantage of their numerical superioty and their handguns when Modesto was shot and stabbed.[75] In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period. Although the special aggravating circumstance of the use of unlicensed firearms was proven during the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess the firearm. Lack of license to possess a firearm is an essential element of the crime of violation of PD1866 as amended by Republic Act No. 8294, or as a special aggravating circumstance in the felony of homicide or murder.[76] Neither can dwelling, although proven, aggravate the crime because said circumstance was not alleged in the Information as required by Rule 110, Section 8 of the Revised Rules of Court.[77] Although this rule took effect on December 1, 2000, after the commission of the offense in this case, nonetheless it had been given retroactive effect considering that the rule is favorable to the accused.[78] There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which shall be taken from the medium period of reclusion temporal, ranging from 14 years, 8 months and one day to 17 years and 4 months. Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with prevailing jurisprudence.[79] The amount of P25,000.00 as exemplary damages is in order.[80] In addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof, likewise in consonance with prevailing jurisprudence.[81] IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of the Revised Penal Code. There being no modifying circumstances in the commission of the crime, each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of P25,000.00 by way of exemplary damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Vitug, J., see separate opinion. Ynares-Santiago, and Sandoval-Gutierrez, JJ., joins the dissent of J. Vitug. G.R. No. L-66884 May 28, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE TEMBLOR alias "RONALD," defendant-appellant. The Solicitor General for plaintiff-appellee. Wilfred D. Asis for defendant-appellant. GRIÑO-AQUINO, J.: The accused-appellant Vicente Temblor alias "Ronald" was charged with the crime of murder in Criminal Case No. 1809 of the Court of First Instance (now Regional Trial Court) of Agusan del Norte and Butuan City for shooting to death Julius Cagampang. The information alleged: That on or about the evening of December 30, 1980 at Talo-ao, Buenavista, Agusan del Norte, Philippines and within the jurisdiction of this Honorable Court, the said accused conspiring, and confederating with one another with Anecito Ellevera who is at large, did then and there wilfully, unlawfully and feloniously, with treachery and with intent to kill, attack, assault and shoot with firearms one Julius Cagampang, hitting the latter on the vital parts of the body thereby inflicting mortal wounds, causing the direct and instantaneous death of the said Julius Cagampang. CONTRARY TO LAW: Article 248 of the Revised Penal Code. Upon arraignment on June 8, 1982, he entered a plea of not guilty. After trial, he was convicted and sentenced to suffer the penalty of reclusion perpetua, with the accessory penalties thereof under Articles 41 and 42 of the Revised Penal Code, and to indemnify the heirs of the victim in the amount of P12,000 without subsidiary imprisonment in case of insolvency. He appealed. The evidence of the prosecution showed that at about 7:30 in the evening of December 30, 1980, while Cagampang, his wife and their two children, were conversing in the store adjacent to their house in Barangay Talo-ao, Buenavista, Province of Agusan del Norte, the accused Vicente Temblor alias Ronald, arrived and asked to buy a half-pack of Hope cigarettes.

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While Cagampang was opening a pack of cigarettes, there was a sudden burst of gunfire and Cagampang instantly fell on the floor, wounded and bleeding on the head. His wife Victorina, upon seeing that her husband had been shot, shouted her husband's name "Jul" Two persons, one of whom she later Identified as the accused, barged into the interior of the store through the main door and demanded that she brings out her husband's firearm. "Igawas mo ang iyang armas!" ("You let out his firearm!") they shouted. The accused fired two more shots at the fallen victim. Terrified, Victorina hurried to get the "maleta" (suitcase) where her husband's firearm was hidden. She gave the suitcase to the accused who, after inspecting its contents, took her husband's .38 caliber revolver, and fled. In 1981, some months after the incident, Victorina was summoned to the Buenavista police station by the Station Commander Milan, where she saw and Identified the accused as the man who killed her husband. The accused's defense was an alibi. He alleged that from 4:00 o'clock in the afternoon of December 30, 1980, he and his father had been in the house of Silverio Perol in Barangay Camagong, Nasipit, Agusan del Norte, where they spent the night drinking over a slaughtered dog as "pulutan," until 8:00 o'clock in the morning of the following day, December 31, 1980. The accused and his companion, admittedly members of the dreaded NPA (New People's Army) were not apprehended earlier because they hid in the mountains of Malapong with other members- followers of the New People's Army. Temblor surrendered to Mayor Dick Carmona of Nasipit during the mass surrender of dissidents in August, 1981. He was arrested by the Buenavista Police at the Buenavista public market on November 26, 1981 and detained at the Buenavista municipal jail. The accused capitalized the fact that the victim's widow, Victorina, did not know him by name. That circumstance allegedly renders the Identification of the accused, as the perpetrator of her husband's killing, insufficient. However, during the trial, the accused was positively identified by the widow who recognized him because she was less than a meter away from him inside the store which was well lighted inside by a 40-watt flourescent lamp and by an incandescent lamp outside. Her testimony was corroborated by another prosecution witness — a tricycle driver, Claudio Sabanal — who was a long-time acquaintance of the accused and who knew him as "Ronald." He saw the accused in the store of Cagampang at about 7:30 o'clock in the evening of December 30, 1980. He heard the gunshots coming from inside the store, and saw the people scampering away. Dr. Alfredo Salonga who issued the post-mortem examination report certified that the victim sustained three (3) gunshot wounds. Rebutting the accused's alibi, the prosecution presented a Certification of the Nasipit Lumber Company's Personnel Officer, Jose F. Tinga (Exh. D), and the NALCO Daily Time Record of Silverio Perol (Exh. D), showing that Perol was not at home drinking with the accused and his father, but was at work on December 30, 1980 from 10:50 o'clock in the evening up to 7:00 o'clock in the morning of December 31, 1980. The accused did not bother to overcome this piece of rebuttal evidence. In this appeal, the appellant alleges that the court a quo erred: 1. in finding that he was positively identified by the prosecution witness as the killer of the deceased Julius Cagampang; and 2. in rejecting his defense of allbi. The appeal deserves no merit. Was the accused positively Identified as the killer of Cagampang? The settled rule is that the trial court's assessment of the credibility of witnesses while testifying is generally binding on the appellate court because of its superior advantage in observing their conduct and demeanor and its findings, when supported by convincingly credible evidence as in the case at bar, shall not be disturbed on appeal (People vs. Dava, 149 SCRA, 582).<äre||anº•1àw> The minor inconsistencies in the testimony of the eyewitness Victorina Vda. de Cagampang did not diminish her credibility, especially because she had positively Identified the accused as her husband's assailant, and her testimony is corroborated by the other witnesses. Her testimony is credible, probable and entirely in accord with human experience. Appellant's self-serving and uncorroborated alibi cannot prevail over the positive Identification made by the prosecution witnesses who had no base motives to falsely accuse him of the crime. Furthermore, the rule is that in order for an alibi to be acceptable as a defense, it is not enough that the appellant was somewhere else when the crime was committed; it must be demonstrated beyond doubt that it was physically impossible for him to be at the scene of the crime. Here it was admitted that Perol's house in barrio Camagong, Nasipit is accessible to barrio Talo-ao in Buenavista by jeep or tricycle via a well-paved road in a matter of 15 to 20 minutes. The testimony of the witnesses who had positively Identified him could not be overcome by the defendant's alibi. (People vs. Mercado, 97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.) Appellant's alleged lack of motive for killing Cagampang was rejected by the trial court which opined that the defendant's knowledge that Cagampang possessed a firearm was motive enough to kill him as killings perpetrated by members of the New People's Army for the sole purpose of acquiring more arms and ammunition for their group are prevalent not only in Agusan del Norte but elsewhere in the country. It is known as the NPA's "agaw armas" campaign. Moreover, proof of motive is not essential when the culprit has been positively Identified (People vs. Tan, Jr., 145 SCRA 615). The records further show that the accused and his companion fled after killing Cagampang and taking his firearm. They hid in the mountains of

Agusan del Norte. Their flight was an implied admission of guilt (People vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422). WHEREFORE, the judgment appealed from is affirmed in all respects, except as to the civil indemnity payable to the heirs of the Julius Cagampang which is increased to P30,000.00. SO ORDERED. G.R. No. L-68969 January 22, 1988 PEOPLE OF THE PHILIPPINES, petitioner, vs. USMAN HASSAN y AYUN, respondent. SARMIENTO, J.: This is a pauper's appeal of the decision 1 of the Regional Trial Court of Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25, 1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond reasonable doubt as principal of the Crime of MURDER, and there being neither aggravating nor mitigating circumstance attending the commission of the crime, and pursuant to Paragraph No. 1 of Article 64 of the Revised Penal Code, hereby imposes upon the said accused the penalty of RECLUSION PERPETUA and all its accessory penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of P12,000.00 and to pay the costs." 2 Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the time of his death on July 23,1981, the deceased was employed as manager of the sand and gravel business of his father. On the other hand, Hassan was an illiterate, 15-year-old pushcart cargador. 4 The quality of justice and the majesty of the law shine ever brightest when they are applied with more jealousy to the poor, the marginalized, and the disadvantaged. Usman Hassan, the herein accused-appellant, belongs to this class. At the time of the alleged commission of the crime, he was poor, marginalized, and disadvantaged. He was a flotsam in a sea of violence, following the odyssey of his widowed mother from one poverty-stricken area to another in order to escape the ravages of internicine war and rebellion in Zamboanga del Sur. In the 15 years of Hassan's existence, he and his family had to evacuate to other places for fear of their lives, six times. His existence in this world has not even been officially recorded; his birth has not been registered in the Registry of Births because the Samal tribe, to which he belongs, does not see the importance of registering births and deaths. Usman was convicted on the bases of the testimony of a lone eyewitness for the prosecution and the sloppiness of the investigation conducted by the police investigator, Police Corporal Rogelio Carpio of the Homicide and Arson Section of the Zamboanga City Police Station, who also testified for the prosecution. We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that Usman Hassan must, therefore, be set free. The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, married, and a resident of Zamboanga City. On the day of the killing, he was employed at the sand and gravel business of the father of the deceased but was jobless at the time of his examination-inchief on February 3, 1982. He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July 23, 1981; that he was a backrider in the motorcycle of Ramon when they went to buy mangoes at Fruit Paradise near the Barter Trade Zone in Zamboanga City that while he was selecting mangoes, he saw a person stab Ramon who was seated at his red Honda motorcycle which was parked about two or three meters from the fruit stand where he Samson) was selecting mangoes; that he saw the assailant stab Ramon "only once" and that after the stabbing, the assailant ran towards the PNB Building. When asked at the cross-examination if he knew the assailant, Samson said, "I know him by face but I do not know his name." 5 This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding the motorcycle with both of his hands, the assailant come from behind, held his left hand and stabbed him from behind on his chest while the victim was sitting on the motorcycle." He claimed that he was able to see the assailant because it was very bright there that Ramon was facing the light of a petromax lamp, and that all these happened in front of the fruit stand a — distance of about 6 to 7 meters from the side of the road. Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, but "he did not see if the aggressor was wearing shoes," that the assailant stabbed Ramon with a knife but "he did not exactly see what kind of knife it was, and he did not see how long the knife was He said he brought the wounded Ramon to the Zamboanga City General Hospital in a tricycle. On cross-examination, Samson testified: xxx xxx xxx Q When you rushed Ramon Pichel, Jr. to the hospital you came to know that he was already dead, is that correct? A Yes, sir, I learned that he was already dead. Q In the hospital, were you investigated by the police? A They just asked the description of that person as to his attire and his appearance. Q And it was while in the hospital that you told them the description of the one who stabbed Ramon Pichel, Jr.? A Yes, Sir.

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Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La Merced? A Yes, sir, Q Can you recall what time was that? A I do not know what time was that. Q And it was all La Merced Funeraria that the police brought to you the accused? A... Q For Identification? A Yes, sir. Q And he was alone when you Identified him? A Yes he was alone. Q Aside from working with the Pichel family in their sand and gravel business, do you have any blood relationship with them? A Yes. sir. 6 (Emphasis supplied) xxx xxx xxx What comes as a surprise is that Samson's statement 7 which was taken only on July 25, 1981, two days after the stabbing, and sworn to only on July 27, 1981, also two days after it was taken, or four days after the killing, was never presented or mentioned by the prosecution at all. The information was practically forced out of Police Corporal Rogelio P. Carpio, a witness for the People, during his cross-examination. 8 The sworn statement contained the following questions and answers: xxx xxx xxx Q-14. What and please narrate it to me briefly in your own words, the incident you are referring? A-14. While I was busy selecting some mangoes, I saw unidentified person whom I can recognize by face if seen again embraced my companion Ramon Pitcher Jr. while the latter was aboard his motorcycle parked within the area. That this person without much ado, and armed with a knife suddenly stabbed him (Ramon). That by coincidence to this incident, our eye met each other and immediately thereafter, he fled the area toward the Philippine National Bank (PNB). That this unidentified person was sporting a semi-long hair, dressed in White Polo-Shirt (Short sleeve), maong pants height to more or less 5'5, Dark Complexion. That as this unidentified person fled the area I immediately came to aid my companion, Ramon Pitcher, Jr., and rushed him to Zamboanga General Hospital, on board a Tricycle. That may companion (Ramon) did not whispered (sic) any words to me for he was in serious condition and few minutes later, he expired. Q-15. Was tills unidentified person was with companion when he attack (sic) Ramon Pitcher Jr.? A-15. He was alone Sir. Q-16. Can you really Identified (sic) this person who attacked and stabbed your companion, Ramon Pitcher, Jr., that evening in question? A-16. Yes, Sir, Q-17. Do you still remember that confrontation we made at the Office of La Merced Funeral Homes, wherein you were confronted with one Usman Hassan, whom this Officer brought along? A-17. Yes, Sir. Q-18. Was he the very person, who attacked and stabbed your companion, Ramon Pitcher, Jr.? A-18. Yes, Sir, he was the very person who attacked and stabbed my companion, Ramon Pitcher, Jr., that evening in question. Q-19. Why? A-19. Because his face and other physical appearance were fully noted by me and this I cannot forget for the rest of my life. Q-20. Before this incident, was there any altercation that had ensued while in the process of buying some mangoes in that area? A-20. None Sir. Q-21. Were you able to note what kind of knife used by said Usman Hassan in stabbing your companion, Ramon Pitcher Jr.? A-21: None Sir, Q-22. Well, I have nothing more to ask of you, do you have anything more to say, add or alter in this statement? A-22. No more Sir. Q-23. Are you willing to give a supplemental statement if needed in the future? A-23. Yes, Sir. 9 (Emphasis supplied) xxx xxx xxx The version of the sole eyewitness appearing in his statement 10 is substantially the same as that embodied in the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted a s Exhibit "2." This exhibit for the prosecution confirms the sworn statement of witness Samson that an unidentified person, whom he recognized only by face, appeared and without any provocation, the latter embraced the victim and stabbed the same allegedly with a knife." The rest of the Case Report: is also significant in that it confirms the confrontation between the accused and Jose Samson in the funeral parlor arranged by the police Investigator and prosecution witness, Corporal Carpio. xxx xxx xxx From this end, a follow-up was made within the premises of the Old Barter Trade, wherein the person of USMAN HASSAN Y AYUN, of Paso Bolong, this City, was arrested in connection with the above stated incident. That this Officer and companions arrested this person Usman due to his physical appearance, which was fully described by victim's

companion. Jose Samson. During his arrest, a knife, measuring to more or less seven (7) inches in blade was confiscated in his possession. The person of Usman Hassan was brought along at the La Merced Funeral Homes for a confrontation with victims companion, Jose Samson and in this confrontation, Jose Samson positively Identified said Usman Hassan as the very person who stabbed the victim. Usman Hassan, on the other hand, denied the charges levelled against hub and admitted ownership of said knife; claiming among other things that he used said knife for slicing mangoes. 11 xxx xxx xxx We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of proof — beyond reasonable doubt — required by the Constitution, the law, and applicable jurisprudence to convict an accused person. The said evidence denies us the moral certainty which would allow us to pronounce, without uneasiness of conscience. Usman Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y Uro, and condemn him to life imprisonment and in effect turning him into a flotsam again in a sea of convicted felons in which he would be a very young stranger. In evaluating the worth of the testimony of the lone eyewitness for the prosecution against the denial and alibi of the accused, value judgment must not be separated from the constitutionally guaranteed presumption of innocence. When the evidence for the prosecution and the evidence for the accused are weighed, the scales must be tipped in favor of the latter. This is because of the constitutional presumtion of innocence the accused enjoys as a counter-foil to the awesome authority of the State that is prosecuting him. The element of doubt, if reasonable in this case, must operate against the inference of guilt the prosecution would draw from its evidence. That evidence, as it happens, consists only of the uncorroborated statement of the two policemen which, as previously observed, is flawed and therefore suspect. 12 The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with the evidence sought to be introduced by Police Corporal Carpio. We discover, for example, that the expert testimony of the medico-legal officer of the National Bureau of Investigation, Dr. Valentin Bernalez, presented by the prosecution, contradicted, on material points, the testimony of the one eyewitness, Jose Samson. While Samson averred on the witness stand that he saw the assailant stab the deceased "from behind on his chest" 13 only once, the NBI medico-legal officer Identified two stab wounds, one at the front portion of the chest at the level and third rib, (sic) and another stab wound located at the left arm posterior aspect." 14 The same medical expert also concluded from the nature and location of the chest wound, which was the cause of death, that the same was inflicted on the victim while the alleged accused was in front of him." 15 The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern Police Sector, 16 at Zamboanga City, particularly by Police Corporal Rogelio P. Carpio, leaves much to be desired. For one, we are not satisfied with the procedure adopted by the police investigators in the Identification of the accused as the assailant. We have no doubt that Usman Hassan was "presented" alone 17 to Jose Samson by the police investigator and prosecution witness, Police Corporal Carpio, and his police companions, at the office of the La Merced Funeral Homes in Zamboanga City. As correctly termed by the very evidence 18 of the prosecution, the procedure adopted by the police investigators was a confrontation" between Jose Samson, Jr. and Usman. Earlier, on direct examination, Corporal Carpio testified that Usman was alone when he was brought to Samson for confrontation in the funeral parlor. However, on cross-examination, Carpio made a turnabout by saying that the accused was Identified by Samson in a "police line-up;" this tergiversation we dare say, was an afterthought, more the result of an over or careless cross-examination, augmented by the leading questions 19 of the trial judge rather than a fastidiousness if not sincerity, on the part of the police investigator, to honestly correct erroneous statements in his examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio. There was no such police line-up as the police investigator, to honestly correct erreoneous statements in his examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio. There was no such police investigator claimed on second thought. The manner by which Jose Samson, Jr. was made to confront and Identify the accused alone at the funeral parlor, without being placed in the police line-up, was "pointedly suggsestive, generated confidence where there was none, activated visual imagination, and, all told, subserted his reliability as eyewitness. This unusual, coarse, and highly singular method of Identification, which revolts against the accepted principles of scientific crime detection, alienates the esteem of every just man, and commands neither our respect nor acceptance." 20 Moreover, the confrontation arranged by the police investigator between the self-proclaimed eyewitness and the accused did violence to the right of the latter to counsel in all stages of the investigation into the commission of a crime especially at its most crucial stage — the Identification of the accused.

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As it turned out, the method of Identification became just a confrontation. At that critical and decisive moment, the scales of justice tipped unevenly against the young, poor, and disadvantaged accused. The police procedure adopted in this case in which only the accused was presented to witness Samson, in the funeral parlor, and in the presence of the grieving relatives of the victim, is as tainted as an uncounselled confession and thus falls within the same ambit of the constitutionally entrenched protection. For this infringement alone, the accused-appellant should be acquitted. Moreover, aside from this slipshod Identification procedure, the rest of the investigation of the crime and the preparation of the evidence for prosecution were done haphazardly, perfunctorily, and superficially. Samson was not investigated thoroughly and immediately after the incident. As previously mentioned, his statement was taken by the investigator only two days after the murder of Ramon Pichel, Jr. and sworn only two days after it had been taken. Similarly, there is nothing in the record to show that the fruit vendor—from whom Samson and the deceased were buying mangoes that fateful evening and who certainly must have witnessed the fatal stabbing—was investigated, or why he was not investigated. Nor is any explanation given as to why the companion 21 of the accused at the time Corporal Carpio arrested him (accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00 P.M., according to Usman) of that same evening near the scene of the crime, was not also investigated when he could have been a material witness of the killing or of the innocence of the accused. In addition, the knife and its scabbard, 23 Confiscated by Carpio from Usman (tucked on the right side of his waist") at the time of his arrest, were not even subjected to any testing at all to determine the presence of human blood which could be typed and compared with the blood type of the deceased. A crime laboratory test — had Carpio or the prosecuting fiscal, or even the trial judge, insisted on it — would have revealed whether or not the knife in question (confiscated from the accused by Carpio one hour after the alleged commission of the crime) had indeed been the weapon used to kill Ramon. The police investigator instead nonchalantly dismissed this sin of omission by saying that the knife could have been cleaned or the bloodstain could have been taken away. 24 This presumption of the deadly weapon's having been "cleaned" of bloodstains is tantamount to pronouncing the accused of being guilty. Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a separate case, 26 of Assistant City Fiscal of Zamboanga City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a similar stabbing took place at Plaza Pershing near the place of the earlier incident, with the suspect in that frustrated homicide case being a certain Benhar Isa, 'a notorious and a deadly police character" in Zamboanga City, with a long record of arrests. In that resolution, Fiscal Murillo said the same Benhar Isa was tagged as 'also a suspect in the stabbing of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City." The said resolution further states that "with regards to this incident or witnesses ever testified for fear of possible reprisals." 27 The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a policeman on August 28, 1981, while he (Isa) "was apparently under the influence of liquor armed with a knife (was) molesting and extorting money from innocent civilians' and "making trouble." 28 The records of the case at bar do not show any attempt on the part of Corporal Carpio, or any other police officer, to investigate or question Benhar Isa in connection with the killing of Pichel, Jr. Was it fear of the notorious police character that made the police officers disregard the possible connection between the slaying of Ramon and that of the person (Harun Acan y Arang of the Ministry of National Defense) 29 who was allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.? And yet questioning Isa might have provided that vital link to the resolution of Usman's guilt or innocence. But why should the police officers investigate Isa when Usman Hassan was already in custody and could be an available fall guy? Usman Hassan, instead, became a victim of a grave injustice. Indeed, Usman Hassan is too poor to wage a legal fight to prove his innocence. And he is so marginalized as to claim and deserve an honest-to-goodness, thorough, and fair police investigation with all angles and leads pursued to their logical, if not scientific, conclusions. Sadly circumstanced as he is, the authority of the State was too awesome for him to counteract. The appealed decision made much ado of the admission by Usman "that he was arrested at the former barter trade, which is a place just across the place of the stabbing at the Fruit Paradise." 30 The trial judge found it "therefore strange that on the very evening of the stabbing incident he was still at the barter trade area by 8:00 o'clock in the evening when he usually comes to the city proper at about 6:00 o'clock in the morning and goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the afternoon." 31 Usman's explanation — that, at around 7:00 o'clock P.M., he was waiting for transportation to take him home — was found by the trial court as 'flimsy and weak since he did not explain why he had to go home late that evening." 32 But the whole trouble is nobody asked him. The trial judge did not propound any single question to the accused, and only three to his mother on innocuous matters, by way of clarification, if only to put on record what the mother and son could articulate with clarity. Taking into account their poverty and illiteracy, the mother and son needed as much, if not more, help, than the trial judge extended to the

prosecution witnesses during their examination by asking them clarificatory and mostly leading questions. In that sense and to that extent, the accused was disadvantaged. A fact that looms large, though mutely to testify on the innocence of the accused but the importance of which was brushed away by the trial judge was the presence of the accused near the scene (about 100 to 150 meters away) soon after the stabbing (he testified at around 7:00 P.M. although Police Corporal Carpio stated it was 8:00 P.M.) where he was found sitting on his pushcart with a companion. If he were the assailant, he would have fled. But the trial court instead indulged in conjecture, foisting the probability that the accused 'was lulled by a false sense of security in returning to the place (of the stabbing), when no police officers immediately responded and appeared at the scene of the crime," adding 'there are numerous cases in the past where criminals return to the scene of their crimes, for reasons only psychologist can explain." 33 It must have escaped the trial court's attention that Usman has no criminal record, and, therefore, he could not be generally classed with criminals. In the second place, the trial court's rationalization ignores the biblical truism recognized by human nature and endorsed with approval by this Court that "(T)he wicked flee when no man pursueth but the righteous are as bold as a lion." 34 And now as a penultimate observation, we could not help but note the total absence of motive ascribed to Usman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive is not essential in order to arrive at a conviction, because, after all, motive is a state of mind, 35 procedurally, however, for purposes of complying with the requirement that a judgment of guilty must stem from proof beyond reasonable doubt, the lack of motive on the part of the accused plays a pivotal role towards his acquittal. This is especially true where there is doubt as to the Identity of the culprit 36 as when 'the Identification is extremely tenuous," 37 as in this case. We can not end this travail without adverting to the cavalier manner in which the trial court disregarded the claimed young age of Usman Hassan. The defense claims that the accused Usman Hassan is a minor, basing such claim on the testimony of Lahunay Hassan, the mother of said accused, who declared that her son Usman Hassan, who is one of her four (4) children, was born in the year 1967. She testified that she was just told by a person coming from their place about the year of the birth of her son Usman. However on cross-examination, Lahunay Hassan cannot even remember the date or year of birth of her other children. The failure of Lahunay Hassan to remember the date or year of birth of her children is of course understandable, considering that she is unschooled and she belongs to a tribe that does not register births, deaths or marriages, however, it is strange that she only took pains to find out the year of birth of her son Usman. For this reason, the Court granted a motion of the defense on September 13, 1982, to have the herein accused examined by a competent dentist to determine his age. However, the findings of the dentist of Zamboanga General Hospital which is marked as Exhibit "5" shows the following: "age cannot be determined accurately under present mouth conditions. Approximately, he can be from 14 to 21 years of age." This simply means that the herein accused could either be 14 years of age or 21 years of age, or any age in between those aforestated years. From the observation of this court, the accused Usman Hassan was about 18 years of age at the time he committed this crime and this observation is based on his personal appearance, his size and facial features and other personal characteristics, hence he can not be classified as a youthful offender under Article. 189 of Presendential Decree No. 603, as ammended by Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680, it was ruled by the Supreme Court that "In cases where the age of the culprit is at issue as a basis for claiming an exempting mitigating circumstance, it is incumbent upon the accused to establish that circumstance ad any other elements of defense. 38 Considering that the age of the accused could exempt him from punishment or cause the suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal Code, if found guilty, more meticulousness and care should have been demanded of medical or scientific sources, and less reliance on the observation of the judge as had happened in this case. The preliminary findings of the dentist that the accused could be anywhere between fourteen to twenty one years, despite the difficulty of arriving at an accurate determination due to Hassan's mouth condition, would have placed the trial judge on notice that there is the probability that the accused might be exempted from criminal liability due to his young age. All the foregoing indicates that the accused had not been granted the concern and compassion with which the poor, marginalized, and disadvantaged so critically deserve. It is when judicial and police processes and procedures are thoughtlessly and haphazardly observed that cries of the law and justice being denied the poor are heard. In any event, all this would not be of any moment now, considering the acquittal of the accused herein ordered. WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless he is held for another legal cause. With costs de oficio. SO ORDERED. Yap (Chairman), Paras and Padilla, JJ., concur.

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G.R. No. L-5272 March 19, 1910 THE UNITED STATES, plaintiff-appellee, vs. AH CHONG, defendant-appellant. Gibb & Gale, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct: The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room. On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law. At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense. Article 8 of the Penal Code provides that — The following are not delinquent and are therefore exempt from criminal liability: xxx xxx xxx 4 He who acts in defense of his person or rights, provided there are the following attendant circumstances: (1) Illegal aggression. (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith. In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.) The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily

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committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law. Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit. The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.) Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says: In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.) And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language: It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime. And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence." And to the same effect in its sentence of December 30, 1896, it made use of the following language: . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court. That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of

malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.) But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine: In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that — There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by — Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also — Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And — In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break

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the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.) Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted. If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.) The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily." Parson, C.J., in the Massachusetts court, once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.) In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.) To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar. QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to

the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in selfdefense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door

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of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered. Johnson Moreland and Elliott, JJ., concur. Arellano, C.J., and Mapa, J., dissent. G.R. No. L-47722 July 27, 1943 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in his own behalf. Maximo L. Valenzuela for appellant Galanta. Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the abovequoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him.

Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below. In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender,

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overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation — not condonation — should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present — appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EUTIQUIA CARMEN @ Mother Perpetuala, CELEDONIA FABIE @ Isabel Fabie, DELIA SIBONGA @ Deding Sibonga, ALEXANDER SIBONGA @ Nonoy Sibonga, and REYNARIO NUEZ @ Rey Nuez, accused-appellants. DECISION MENDOZA, J.: This is an appeal from the decision[1] of the Regional Trial Court, Branch 14, Cebu City, finding accused-appellants Eutiquia Carmen @ Mother Perpetuala, Celedonia Fabie @ Isabel Fabie, Delia Sibonga @

Deding Sibonga, Alexander Sibonga @ Nonoy Sibonga, and Reynario Nuez @ Rey Nuez guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to pay the heirs of the victim the amount of P50,000.00 as indemnity as well as the costs. The information[2] against accused-appellants alleged: That on or about the 27th day of January, 1997 at about 2:00 oclock p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping one another, with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there inflict fatal physical injuries on one Randy Luntayao which injuries caused the death of the said Randy Luntayao. Accused-appellants pleaded not guilty to the charge, whereupon they were tried. The prosecution presented evidence showing the following: At around 2 oclock in the afternoon of January 27, 1997, Honey Fe Abella, 10, and her friend Frances Claire Rivera, 7, were playing takyan in front of the house of one Bebing Lastimoso in Quiot, Pardo, Cebu City, when suddenly they heard a child shout, Tabang ma! (Help mother!). The cry came from the direction of the house of accused-appellant Carmen, who is also known in their neighborhood as Mother Perpetuala. The two children ran towards Mother Perpetualas house.[3] What Honey Fe saw on which she testified in court, is summarized in the decision of the trial court, to wit: While there[,] she saw a boy, whose name . . . she [later] came to know as one Randy Luntayao, . . . being immersed head first in a drum of water. Accused Alexander Sibonga was holding the waist of the body while accused Reynario Nuez held the hands of the boy at the back. Accused Eutiquia Carmen, Delia Sibonga, and Celedonia Fabie were pushing down the boys head into the water. She heard the boy shouting Ma, help for two times. Later, she saw accused Reynario or Rey Nuez tie the boy on the bench with a green rope as big as her little finger. . . . After that Eutiquia Carmen poured [water from] a plastic container (galon) . . . into the mouth of the boy. Each time the boy struggled to raise his head, accused Alexander Sibonga banged the boys head against the bench [to] which the boy was tied down.She even heard the banging sound everytime the boys head hit the bench. For about five times she heard it. According to this witness after forcing the boy to drink water, Eutiquia Carmen and accused Celedonia Fabie alias Isabel Fabie took turns in pounding the boys chest with their clenched fists. All the time Rey Nuez held down the boys feet to the bench. She also witnessed . . . Celedonia Fabie dropped her weight, buttocks first, on the body of the boy. Later on, Eutiquia Carmen ordered Delia or Deding Sibonga to get a knife from the kitchen. Eutiquia Carmen then slowly plunged the stainless knife on the left side of the boys body and with the use of a plastic gallon container, the top portion of which was cut out, Eutiquia Carmen [caught] the blood dripping from the left side of the boys body. Honey Fe heard the moaning coming from the tortured boy. Much later she saw Nonoy or Alexander Sibonga, Reynario Nuez, Delia Sibonga, Celedonia Fabie, and Eutiquia Carmen carry the boy into the house.[4] Eddie Luntayao, father of the victim, testified that he has five children, the eldest of whom, Randy, was 13 years old at the time of the incident. On November 20, 1996, Randy had a nervous breakdown which Eddie thought was due to Randy having to skip meals whenever he took the boy with him to the farm. According to Eddie, his son started talking to himself and laughing. On January 26, 1997, upon the suggestion of accused-appellant Reynario Nuez, Eddie and his wife Perlita and their three children (Randy, Jesrel, 7, and Lesyl, 1) went with accusedappellant Nuez to Cebu. They arrived in Cebu at around 1 oclock in the afternoon of the same day and spent the night in Nuezs house in Tangke, Talisay. The following day, they went to the house of accused-appellant Carmen in Quiot, Pardo,[5] where all of the accused-appellants were present. Eddie talked to accused-appellant Carmen regarding his sons condition. He was told that the boy was possessed by a bad spirit, which accused-appellant Carmen said she could exorcise. She warned, however, that as the spirit might transfer to Eddie, it was best to conduct the healing prayer without him. Accused-appellants then led Randy out of the house, while Eddie and his wife and two daughters were locked inside a room in the house.[6] After a while, Eddie heard his son twice shout Ma, tabang! (Mother, help!). Eddie tried to go out of the room to find out what was happening to his son, but the door was locked. After about an hour, the Luntayaos were transferred to the prayer room which was located near the main door of the house.[7] A few hours later, at around 5 oclock in the afternoon, accusedappellants carried Randy into the prayer room and placed him on the altar. Eddie was shocked by what he saw. Randys face was bluish and contused, while his tongue was sticking out of his mouth. It was clear to Eddie that his son was already dead. He wanted to see his sons body, but he was stopped from doing so by accused-appellant Eutiquia Carmen who told him not to go near his son because the latter would be resurrected at 7 oclock that evening.[8] After 7 oclock that evening, accused-appellant Carmen asked a member of her group to call the funeral parlor and bring a coffin as the child was already dead. It was arranged that the body would be transferred to the house of accused-appellant Nuez. Thus, that night, the Luntayao family, accompanied by accused-appellant Nuez, took Randys

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body to Nunezs house in Tangke, Talisay. The following day, January 28, 1997, accused-appellant Nuez told Eddie to go with him to the Talisay Municipal Health Office to report Randys death and told him to keep quiet or they might not be able to get the necessary papers for his sons burial. Nuez took care of securing the death certificate which Eddie signed.[9] At around 3 oclock in the afternoon of January 28, 1997, accusedappellant Carmen went to Tangke, Talisay to ensure that the body was buried. Eddie and his wife told her that they preferred to bring their sons body with them to Sikatuna, Isabela, Negros Occidental but they were told by accused-appellant Carmen that this was not possible as she and the other accused-appellants might be arrested. That same afternoon, Randy Luntayao was buried in Tangke, Talisay.[10] After Eddie and his family had returned home to Negros Occidental, Eddie sought assistance from the Bombo Radyo station in Bacolod City which referred him to the regional office of the National Bureau of Investigation (NBI) in the city. On February 3, 1997, Eddie filed a complaint for murder against accused-appellant Nuez and the other members of his group.[11] He also asked for the exhumation and autopsy of the remains of his son.[12] As the incident took place in Cebu, his complaint was referred to the NBI office in Cebu City. Modesto Cajita, head of NBI, Region VII (Cebu), took over the investigation of the case. He testified that he met with Eddie Luntayao and supervised the exhumation and autopsy of the body of Randy Luntayao.[13] Cajita testified that he also met with accused-appellant Carmen and after admitting that she and the other accused-appellants conducted a pray-over healing session on the victim on January 27, 1997, accused-appellant Carmen refused to give any further statement. Cajita noticed a wooden bench in the kitchen of Carmens house, which, with Carmens permission, he took with him to the NBI office for examination. Cajita admitted he did not know the results of the examination.[14] Dr. Ronaldo B. Mendez, the NBI medico-legal officer who conducted the autopsy on Randy Luntayao, testified that he, the victims father, and some NBI agents, exhumed the victims body on February 20, 1997 at Tangke Catholic Cemetery in the Tangke, Talisay, Cebu. He conducted the autopsy on the same day and later submitted the following report (Exhs. E and F):[15] FINDINGS Body in advanced stage of decomposition wearing a white shirt and shorts wrapped in printed blanket (white and orange) placed in white wooden coffin and buried underground about 4 feet deep. Contusion, 3.0 x 4.0 cms. chest, anterior, left side. Fracture, 3rd rib, left, mid-clavicular line. Fracture, linear, occipital bone right side extending to the bases of middle cranial fossae right to left down to the occipital bone, left side. Fracture, diastatic, lamboidal suture, bilateral. Internal organs in advanced stage of decomposition. Cranial vault almost empty. CAUSE OF DEATH: [The victim] could have died due to the internal effects of a traumatic head injury and/or traumatic chest injury. Dr. Mendez testified that the contusion on the victims chest was caused by contact with a hard blunt instrument. He added that the fracture on the rib was complete while that found on the base of the skull followed a serrated or uneven pattern. He said that the latter injury could have been caused by the forcible contact of that part of the body with a blunt object such as a wooden bench.[16] On cross-examination, Dr. Mendez admitted that he did not find any stab wound on the victims body but explained that this could be due to the fact that at the time the body was exhumed and examined, it was already in an advanced state of decomposition rendering such wound, if present, unrecognizable.[17] Accused-appellants did not testify. Instead, the defense presented: (a) Ritsel Blase, an alleged eyewitness to the incident; (b) Maria Lilina Jimenez, Visitacion Seniega, and Josefina Abing, alleged former patients of accused-appellant Carmen; (c) Dr. Milagros Carloto, the municipal health officer of Talisay, Cebu and; (d) Atty. Salvador Solima of the Cebu City Prosecutors Office. Ritsel Blase, 21, testified that since 1987 she had been with the group of accused-appellant Carmen, whom she calls Mother Perpetuala. She recounted that at around 2 oclock in the afternoon of January 27, 1997, while she was in the house of accused-appellant Carmen, she saw Eddie Luntayao talking with the latter regarding the treatment of his son. The boy was later led to the kitchen and given a bath prior to treatment. After water was poured on the boy, he became unruly prompting accused-appellant Carmen to decide not to continue with the treatment, but the boys parents allegedly prevailed upon her to continue. As the boy continued to resist, accused-appellant Carmen told accused-appellants Delia Sibonga and Celedonia Fabie to help her (Carmen) lay the boy on a bench. As the child resisted all the more, Eddie Luntayao allegedly told the group to tie the boy to the bench. Accusedappellant Delia Sibonga got hold of a nylon rope which was used to tie the child to the bench. Then Carmen, Delia Sibonga, and Fabie prayed over the child, but as the latter started hitting his head against the bench, Carmen asked Nuez to place his hands under the boys head to cushion the impact of the blow everytime the child brought down his head. To stop the boy from struggling, accused-appellant Fabie held the boys legs, while accused-appellant Nuez held his shoulders. After praying over the boy,

the latter was released and carried inside the house. Accused-appellant Alexander Sibonga, who had arrived, helped carry the boy inside. After this, Blase said she no longer knew what happened inside the house as she stayed outside to finish the laundry.[18] Blase testified that the parents of Randy Luntayao witnessed the pray-over of their son from beginning to end. She denied that accusedappellants Fabie and Delia Sibonga struck the victim on his chest with their fists. According to her, neither did accused-appellant Carmen stab the boy. She claimed that Randy was still alive when he was taken inside the house.[19] The defense presented Maria Lilia Jimenez, 20, Visitacion Seniega, 39, and Josefina Abing, 39, who testified that accused-appellant Carmen had cured them of their illnesses by merely praying over them and without applying any form of physical violence on them.[20] Milagros Carloto, Municipal Health Officer of Talisay, Cebu, was also presented by the defense to testify on the death certificate she issued in which she indicated that Randy Luntayao died of pneumonia. According to her, Eddie Luntayao came to her office on January 28, 1997 to ask for the issuance of a death certificate for his son Randy Luntayao who had allegedly suffered from cough and fever.[21] On cross-examination, Dr. Carloto admitted that she never saw the body of the victim as she merely relied on what she had been told by Eddie Luntayao. She said that it was a midwife, Mrs. Revina Laviosa, who examined the victims body.[22] The last witness for the defense, Assistant City Prosecutor Salvador Solima, was presented to identify the resolution he had prepared (Exh. 8)[23] on the re-investigation of the case in which he recommended the dismissal of the charge against accused-appellants. His testimony was dispensed with, however, as the prosecution stipulated on the matters Solima was going to testify with the qualification that Solimas recommendation was disapproved by City Prosecutor Primo Miro. [24] The prosecution recalled Eddie Luntayao to the stand to rebut the testimonies of Ritsel Blase and Dr. Milagros Carloto. Eddie denied having witnessed what accused-appellants did to his son. He reiterated his earlier claim that after accused-appellants had taken Randy, he and his wife and two daughters were locked inside a room. He disputed Blases statement that his son was still alive when he was brought into the prayer room. He said he saw that his sons head slumped while being carried by accused-appellants.[25] As for the testimony of Dr. Carloto, Eddie admitted having talked with her when he and accused-appellant Nuez went to her office on January 28, 1997. However, he denied having told her that his son was suffering from fever and cough as he told her that Randy had a nervous breakdown. He took exception to Dr. Carlotos statement that he was alone when he went to her office because it was Nuez who insisted that he (Eddie) accompany him in order to secure the death certificate. [26] On November 18, 1998, the trial court rendered a decision, the dispositive portion of which states: WHEREFORE, in view of the foregoing facts and circumstances, [the] accused are all found guilty beyond reasonable doubt of the crime of Murder and are hereby [sentenced] to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to indemnify jointly and severally the heirs of the deceased Randy Luntayao in the sum of P50,000.00; and to pay the costs. The accused, are, however, credited in full during the whole period of their detention provided they will signify in writing that they will abide by all the rules and regulations of the penitentiary.[27] In finding accused-appellants guilty of murder, the trial court stated: Killing a person with treachery is murder even if there is no intent to kill. When death occurs, it is presumed to be the natural consequence of physical injuries inflicted. Since the defendant did commit the crime with treachery, he is guilty of murder, because of the voluntary presence of the qualifying circumstance of treachery (P v. Cagoco, 58 Phil. 530). All the accused in the case at bar had contributed different acts in mercilessly inflicting injuries to the victim. For having immersed the head of the victim into the barrel of water, all the herein accused should be held responsible for all the consequences even if the result be different from that which was intended (Art. 4, par. 1, RPC). It is pointed out that in P. v. Cagoco, 58 Phil. 524, even if there was no intent to kill[,] in inflicting physical injuries with treachery, the accused in that case was convicted of murder. In murder qualified by treachery, it is required only that there is treachery in the attack, and this is true even if the offender has no intent to kill the person assaulted. Under the guise of a ritual or treatment, the accused should not have intentionally immersed upside down the head of Randy Luntayao into a barrel of water; banged his head against the bench; pounded his chest with fists, or plunged a kitchen knife to his side so that blood would come out for these acts would surely cause death to the victim. . . . One who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not. Ordinarily, when a person commits a felony with malice, he intends the consequences of his felonious act. In view of paragraph 1 of Art. 4, a person committing a felony is criminally liable although the consequences of his felonious acts are not intended by him. . . . ....

23

Intent is presumed from the commission of an unlawful act. The presumption of criminal intent may arise from the proof of the criminal act and it is for the accused to rebut this presumption. In the case at bar, there is enough evidence that the accused confederated with one another in inflicting physical harm to the victim (an illegal act). These acts were intentional, and the wrong done resulted in the death of their victim. Hence, they are liable for all the direct and natural consequences of their unlawful act, even if the ultimate result had not been intended. [28] Hence, this appeal. Accused-appellants allege that the trial court erred in convicting them of murder.[29] First. It would appear that accused-appellants are members of a cult and that the bizarre ritual performed over the victim was consented to by the victims parents. With the permission of the victims parents, accused-appellant Carmen, together with the other accused-appellants, proceeded to subject the boy to a treatment calculated to drive the bad spirit from the boys body. Unfortunately, the strange procedure resulted in the death of the boy. Thus, accused-appellants had no criminal intent to kill the boy. Their liability arises from their reckless imprudence because they ought that to know their actions would not bring about the cure. They are, therefore, guilty of reckless imprudence resulting in homicide and not of murder. Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place. The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latters death. As already stated, accused-appellants, none of whom is a medical practitioner, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing. In United States v. Divino,[30] the accused, who was not a licensed physician, in an attempt to cure the victim of ulcers in her feet, wrapped a piece of clothing which had been soaked in petroleum around the victims feet and then lighted the clothing, thereby causing injuries to the victim. The Court held the accused liable for reckless imprudence resulting in physical injuries. It was noted that the accused had no intention to cause an evil but rather to remedy the victims ailment. In another case, People v. Vda. de Golez,[31] the Court ruled that the proper charge to file against a non-medical practitioner, who had treated the victim despite the fact that she did not possess the necessary technical knowledge or skill to do so and caused the latters death, was homicide through reckless imprudence. The trial courts reliance on the rule that criminal intent is presumed from the commission of an unlawful act is untenable because such presumption only holds in the absence of proof to the contrary.[32]The facts of the case indubitably show the absence of intent to kill on the part of the accused-appellants. Indeed, the trial courts findings can be sustained only if the circumstances of the case are ignored and the Court limits itself to the time when accused-appellants undertook their unauthorized treatment of the victim. Obviously, such an evaluation of the case cannot be allowed. Consequently, treachery cannot be appreciated for in the absence of intent to kill, there is no treachery or the deliberate employment of means, methods, and manner of execution to ensure the safety of the accused from the defensive or retaliatory attacks coming from the victim.[33] Viewed in this light, the acts which the trial court saw as manifestations of treachery in fact relate to efforts by accused-appellants to restrain Randy Luntayao so that they can effect the cure on him. On the other hand, there is no merit in accused-appellants contention that the testimony of prosecution eyewitness Honey Fe Abella is not credible. The Court is more than convinced of Honey Fes credibility. Her testimony is clear, straightforward, and is far from having been coached or contrived. She was only a few meters away from the kitchen where accused-appellants conducted their pray-over healing session not to mention that she had a good vantage point as the kitchen had no roof nor walls but only a pantry. Her testimony was corroborated by the autopsy findings of Dr. Mendez who, consistent with Honey Fes testimony, noted fractures on the third left rib and on the base of the victims skull. With regard to Dr. Mendezs failure to find any stab wound in the victims body, he himself had explained that such could be due to the fact that at the time the autopsy was conducted, the cadaver was already in an advanced state of decomposition. Randy Luntayaos cadaver was exhumed 24 days after it had been buried. Considering the length of time which had elapsed and the fact that the cadaver had not been embalmed, it was very likely that the soft tissues had so decomposed that, as Dr. Mendez said, it was no longer possible to determine whether there was a stab wound. As for the other points raised by accused-appellants to detract the credibility of Honey Fes testimony, the same appear to be only minor and trivial at best. Accused-appellants contend that the failure of the prosecution to present the testimony of Frances Claire Rivera as well as the knife used in

stabbing Randy Luntayao puts in doubt the prosecutions evidence. We do not think so. The presentation of the knife in evidence is not indispensable.[34] Finally, accused-appellants make much of the fact that although the case was tried under Judge Renato C. Dacudao, the decision was rendered by Judge Galicano Arriesgado who took over the case after the prosecution and the defense had rested their cases.[35] However, the fact that the judge who wrote the decision did not hear the testimonies of the witnesses does not make him less competent to render a decision, since his ruling is based on the records of the case and the transcript of stenographic notes of the testimonies of the witnesses.[36] Second. The question now is whether accused-appellants can be held liable for reckless imprudence resulting in homicide, considering that the information charges them with murder. We hold that they can. Rule 120 of the Revised Rules of Criminal Procedure provides in pertinent parts: SEC. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. In Samson v. Court of Appeals,[37] the accused were charged with, and convicted of, estafa through falsification of public document. The Court of Appeals modified the judgment and held one of the accused liable for estafa through falsification by negligence. On appeal, it was contended that the appeals court erred in holding the accused liable for estafa through negligence because the information charged him with having wilfully committed estafa. In overruling this contention, the Court held: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof. . . . The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. In People v. Fernando,[38] the accused was charged with, and convicted of, murder by the trial court. On appeal, this Court modified the judgment and held the accused liable for reckless imprudence resulting in homicide after finding that he did not act with criminal intent. Third. Coming now to the imposable penalty, under Art. 365, reckless imprudence resulting in homicide is punishable by arresto mayor in its maximum period to prision correccional in its medium period. In this case, taking into account the pertinent provisions of Indeterminate Sentence Law, the accused-appellants should suffer the penalty of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. As to their civil liability, accused-appellants should pay the heirs of Randy Luntayao an indemnity in the amount of P50,000.00 and moral damages also in the amount of P50,000.00.[39] In addition, they should pay exemplary damages in the amount of P30,000.00 in view of accusedappellants gross negligence in attempting to cure the victim without a license to practice medicine and to give an example or correction for the public good.[40] WHEREFORE, the decision of the Regional Trial Court, Branch 14, Cebu City, is AFFIRMED with the MODIFICATION that accused-appellants are hereby declared guilty of reckless imprudence resulting in homicide and are each sentenced to suffer an indeterminate prison term of four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. In addition, accusedappellants are ORDERED jointly and severally to pay the heirs of Randy Luntayao indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00, and exemplary damages in the amount of P30,000.00. SO ORDERED.