Crim 2222bb

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs.FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs.GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs.HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs.BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs.BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs.THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO,respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

R E S O L U T I O N

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule — as many misunderstood it to do — that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing laws to the factual situations obtaining in the several petitions. Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people — not the Court — that should repeal, change or modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned

arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrest has committed it; and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a

subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two

(2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are: first — the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second — a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third — as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162),

their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon

who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case ofAmelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into — and all other appropriate courts are enjoined to do the same — the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is

G.R. No. L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for by law.

As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered disposed of in accordance with law.

The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of subversion in an information which reads as follows:

That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess and without the necessary license, permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of the Republic of the Philippines through lawless and violent means, of which the accused had knowledge, and which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of New Members to the NPA and collection of contributions from the members.

CONTRARY TO LAW.

The evidence for the prosecution is summarized in the decision of the lower court as follows:

xxx xxx xxx

. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused.

Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA Ideological movement, an example was the killing of the late

Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).

Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983).

On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government, emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be responsible

for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of the Philippine Constabulary, Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of accused, indicating his having understood, the allegations of his extra-judicial statement.

Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent, right to counsel and right to answer any question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the licensing of the firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows:

From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his refusal accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong (sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with pungent pain.

All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell unconscious and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of subject firearm.

After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as Exhibit "E" for the prosecution, consisting of

five (5) pages, including the certification of the administering officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial statement, attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who, unfortunately he cannot Identify and was able to obtain his admission of the subject firearm, by force and violence exerted over his person.

To support denial of accused of being involved in any subversive activities, and also to support his denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his barrio involving subversive activities but they

were released and were not formally charged in Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136, Hearing-May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her husband, the accused, was not in their house at that time and that she did not inform him about said firearm neither did she report the matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested his case in support of accused's through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no legs than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47).

The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as follows:

a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another.

The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states:

A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense.

The conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.

The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has been committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also tainted.

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search and seizure

which transpired afterwards could not likewise be deemed legal as being mere incidents to a valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra)

xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you surrender that firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped with a cellophane.

Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he was purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden.

Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides:

No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.. . .

The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him.

The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree measures may not have been supported by reliable evidence but the failure to present the investigator who conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the record discloses circumstances of weight and substance which were not properly appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said

that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or actually engaged in subversive acts, the prosecution never presented any other witness.

This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the subversives, the rebels, and the lawless with an the means at its command, it

should always be remembered that whatever action is taken must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties and protections will only fan the increase of subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Footnotes

Manila

EN BANC

G.R. No. 93335 September 13, 1990

JUAN PONCE ENRILE, petitioner, vs.HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON. IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134, Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE, State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO MANANQUIL; and PEOPLE OF THE PHILIPPINES,respondents.

Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile as having committed rebellion complexed with murder 1 with the Regional Trial Court of Quezon City, government prosecutors filed another information charging him for violation of Presidential Decree No. 1829 with the Regional Trial Court of Makati. The second information reads:

That on or about the 1st day of December 1989, at Dasmariñas Village, Makati, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, having reasonable ground to believe or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and there unlawfully, feloniously, willfully and knowingly obstruct, impede, frustrate or delay the apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in his house.

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a warrant of arrest pending personal determination by the court of probable cause, and (b) to dismiss the case and expunge the information from the record.

On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge Omar Amin, denied Senator Enrile's Omnibus motion on the basis of a finding that "there (was) probable cause to hold the accused Juan Ponce Enrile liable for violation of PD No. 1829."

On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the Information on the grounds that:

(a) The facts charged do not constitute an offense;

(b) The respondent court's finding of probable cause was devoid of factual and legal basis; and

(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator Enrile as alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting on December 1, 1989 preclude the prosecution of the Senator for harboring or concealing the Colonel on the same occasion under PD 1829.

On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for alleged lack of merit and setting Senator Enrile's arraignment to May 30, 1990.

The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack or excess of jurisdiction committed by the respondent court in refusing to quash/ dismiss the information on the following grounds, to wit:

I. The facts charged do not constitute an offense;

II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1 December 1989 is absorbed in, or is a component element of, the "complexed" rebellion presently charged against Sen. Enrile as alleged co-conspirator of Col. Honasan on the basis of the same meeting on 1 December 1989;

III. The orderly administration of Justice requires that there be only one prosecution for all the component acts of rebellion;

IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential Decree No. 1829;

V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829. The preliminary investigation, held only for rebellion, was marred by patent irregularities resulting in denial of due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting further proceedings in Criminal Case No. 90-777 until otherwise directed by this Court.

The pivotal issue in this case is whether or not the petitioner could be separately charged for violation of PD No. 1829 notwithstanding the rebellion case earlier filed against him.

Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the rebellion case filed against the petitioner on the theory that the former involves a special law while the latter is based on the Revised Penal Code or a general law.

The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515 [1956]) the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce Enrile v. Judge Salazar,(G.R. Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this Court the occasion to reiterate the long standing proscription

against splitting the component offenses of rebellion and subjecting them to separate prosecutions, a procedure reprobated in the Hernandez case. This Court recently declared:

The rejection of both options shapes and determines the primary ruling of the Court, which thatHernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means to its commission or as an unintended effect of an activity that commutes rebellion. (Emphasis supplied)

This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime of rebellion for the greater penalty to be applied, neither can he be charged separately for two (2) different offenses where one is a constitutive or component element or committed in furtherance of rebellion.

The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which states:

SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

xxx xxx xxx

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction.

xxx xxx xxx

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col. Honasan by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested or apprehended. And because of such failure the petitioner prevented Col. Honasan's arrest and conviction in violation of Section 1 (c) of PD No. 1829.

The rebellion charges filed against the petitioner in Quezon City were based on the affidavits executed by three (3) employees of the Silahis International Hotel who stated that the fugitive Col. Gregorio "Gringo" Honasan and some 100 rebel soldiers attended the mass and birthday

party held at the residence of the petitioner in the evening of December 1, 1989. The information (Annex "C", p. 3) particularly reads that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo" Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully armed rebel soldiers wearing white armed patches". The prosecution thereby concluded that:

In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his house in the presence of about 100 uniformed soldiers who were fully armed, can be inferred that they were co-conspirators in the failed December coup. (Annex A, Rollo, p. 65; Emphasis supplied)

As can be readily seen, the factual allegations supporting the rebellion charge constitute or include the very incident which gave rise to the charge of the violation under Presidential Decree No. 1829. Under the Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion complexed with murder and multiple frustrated murder but there could be 101 separate and independent prosecutions for harboring and concealing" Honasan and 100 other armed rebels under PD No. 1829. The splitting of component elements is readily apparent.

The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan. Necessarily, being in conspiracy with Honasan, petitioners alleged act of harboring or concealing was for no other purpose but in furtherance of the crime of rebellion thus constitute a component thereof. it was motivated by the single intent or resolution to commit the crime of rebellion. As held in People v. Hernandez, supra:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive.(p. 536)

The crime of rebellion consists of many acts. It is described as a vast movement of men and a complex net of intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in the one single crime of rebellion. (People v. Geronimo, 100 Phil. 90 [1956]; People v. Santos, 104 Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the basis of a separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:

In the nature of things, the giving of aid and comfort can only be accomplished by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation. (Cramer v. U.S., ante) This deed or physical activity may be, and often is, in itself a criminal offense

under another penal statute or provision. Even so, when the deed is charged as an element of treason it becomes Identified with the latter crime and can not be the subject of a separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal Code provides. Just as one can not be punished for possessing opium in a prosecution for smoking the Identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling in a prosecution for robbery, because possession of opium and force and trespass are inherent in smoking and in robbery respectively, so may not a defendant be made liable for murder as a separate crime or in conjunction with another offense where, as in this case, it is averred as a constitutive ingredient of treason.

The prosecution tries to distinguish by contending that harboring or concealing a fugitive is punishable under a special law while the rebellion case is based on the Revised Penal Code; hence, prosecution under one law will not bar a prosecution under the other. This argument is specious in rebellion cases.

In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the same. All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and can not be isolated and charged as separate crimes in themselves. Thus:

This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. ... (People v. Hernandez, supra, at p. 528)

The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan is too intimately tied up with his allegedly harboring and concealing Honasan for practically the same act to form two separate crimes of rebellion and violation of PD No. 1829.

Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of conspiring with Honasan was committed in connection with or in furtherance of rebellion and

must now be deemed as absorbed by, merged in, and Identified with the crime of rebellion punished in Articles 134 and 135 of the RPC.

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses, and assume the political complexion of the main crime of which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty. (People v. Hernandez, supra, p. 541)

In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and convicted of the crime of rebellion, faced an independent prosecution for illegal possession of firearms. The Court ruled:

An examination of the record, however, discloses that the crime with which the accused is charged in the present case which is that of illegal possession of firearm and ammunition is already absorbed as a necessary element or ingredient in the crime of rebellion with which the same accused is charged with other persons in a separate case and wherein he pleaded guilty and was convicted. (at page 662)

xxx xxx xxx

[T]he conclusion is inescapable that the crime with which the accused is charged in the present case is already absorbed in the rebellion case and so to press it further now would be to place him in double jeopardy. (at page 663)

Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the Court had the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an alleged member of the New Peoples Army (NPA), was charged with illegal possession of firearms and ammunitions in furtherance of subversion under Section 1 of PD 1866. In his motion to quash the information, the petitioner based his arguments on the Hernandez and Geronimo rulings on the doctrine of absorption of common in rebellion. The Court, however, clarified, to wit:

... in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR

ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case.

The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866 because no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must make up its mind whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion case and charge him with murder and multiple frustrated murder and also violation of P.D. 1829. It cannot complex the rebellion with murder and multiple frustrated murder. Neither can it prosecute him for rebellion in Quezon City and violation of PD 1829 in Makati. It should be noted that there is in fact a separate prosecution for rebellion already filed with the Regional Trial Court of Quezon City. In such a case, the independent prosecution under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately.

In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his being prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon the other issues raised by the petitioner.

WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is QUASHED. The writ of preliminary injunction, enjoining respondent Judges and their successors in Criminal Case No. 90-777, Regional Trial Court of Makati, from holding the arraignment of Sen. Juan Ponce Enrile and from conducting further proceedings therein is made permanent.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and Regalado, JJ., concur.

ENRILE vs. AMIN

by Admin on July 7, 2014 in Criminal Law Digests, Philippine Jurisprudence

ENRILE vs. AMIN (G.R. No. 93335)

Facts: Together with the filing of an information charging Enrile as having committed rebellion

complexed with murder, government prosecutors filed another information charging him for

violation of PD No. 1829. The second information reads:

That on or about the 1st day of December 1989, at Dasmariñas Village, Makati, Metro Manila

and within the jurisdiction of this Honorable Court, the above-named accused, having

reasonable ground to believe or suspect that Ex-Col. Gregorio “Gringo” Honasan has

committed a crime, did then and there unlawfully, feloniously, willfully and knowingly obstruct,

impede, frustrate or delay the apprehension of said Ex. Lt. Col. Gregorio “Gringo” Honasan

by harboring or concealing him in his house.

Petitioner filed a motion for reconsideration and to Quash/Dismiss the information (second

information) on the ground that the pending charge of rebellion complexed with murder and

frustrated murder against Enrile as alleged co-conspirator of Col. Honosan, on the basis of

their alleged meeting on December 1, 1989 preclude the prosecution of the Senator for

harbouring or concealing the Colonel on the same occasion under PD 1829. However, this

motion was denied.

Issue: Whether or not the petitioner could be separately charged for violation of PD No. 1829

notwithstanding the rebellion case earlier filed against him.

Held: No, Enrile could not be separately charged for violation of PD 1829.

The rejection of both options shapes and determines the primary ruling of the Court, which

that Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with

any other offense committed on the occasion thereof, either as a means to its commission or

as an unintended effect of an activity that commutes rebellion.

This doctrine is applicable in the case at bar. If a person cannot be charged with the complex

crime of rebellion for the greater penalty to be applied, neither can he be charged separately

for two (2) different offenses where one is a constitutive or component element or committed

in furtherance of rebellion.

The crime of rebellion consists of many acts. It is described as a vast movement of men and

a complex net of intrigues and plots. Jurisprudence tells us that acts committed in furtherance

of the rebellion though crimes in themselves are deemed absorbed in the one single crime of

rebellion. In this case, the act of harboring or concealing Col. Honasan is clearly a mere

component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot

therefore be made the basis of a separate charge

PONCE ENRILE VS. SALAZAR (G.R. NO. 92163)

Facts: In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile

was arrested by law enforcement officers led by Director Alfredo Lim of the NBI on the

strength of a warrant issued by Hon. Jaime Salazar of the RTC of Quezon City Branch 103 in

Criminal Case No. 9010941.

The warrant had issued on an information signed and earlier that day filed by a panel of

prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor

Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil Jr., charging

Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the

crime of rebellion with murder and multiple frustrated murder allegedly committed during the

period of the failed coup attempt from November 29 to December 10, 1990.

Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue,

Manila, without bail, none having been recommended in the information and none fixed in the

arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas

Karingal in Quezon City where he was given over to the custody of the Superintendent of the

Northern Police District, Brig. Gen. Edgardo Dula Torres.

On the same date of February 28, 1990, Senator enrile, through counsel, filed a petition for

habeas corpus herein (which was followed by a supplemental petition filed on March 2,

1990), alleging that he was deprived of his constitutional rights.

Issue: Whether the petitioner has committed complex crimes (delito compelio) arising from an

offense being a necessary for committing another which is referred to in the second clause of

Art. 48 of the RPC.

Held: There is one other reason and a fundamental one at that why Article 48 of the RPC

cannot be applied in the case at bar. If murder were not complexed with rebellion, and the

two crimes were punished separately (assuming that this could be done), the following

penalties would be imposable upon the movant namely; (1) for the crime of rebellion, a fine

not exceeding P20,000 and prision mayor, in the corresponding period, dependingupon the

modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for

the crime of murder, reclusion temporal in its maximum period to death, depending upon the

modifying circumstances present.

In other words, in the absence of aggravating circumstances, the extreme penalty could not

be imposed upon him. However, Art. 48 said penalty could not have to be meted out to him,

even in the absence of a single aggravating circumstance. Thus, said provision, if construed

in conformity with the theory of the prosecution, would be unfavorable to the movant.

The plaint of petitioner’s counsel that he is charged with a crime that does not exist in the

statute books, while technically correct so far as the Court has ruled that rebellion may not be

complexed with other offenses committed on the occasion thereof, must therefore be

dismissed as a mere flight of rhethoric. Read in the context of Hernandez, the information

does indeed charge the petitioner with a crime defined and punished by the RPC; simple

rebellion.

Petitioner finally claims that he was denied the right to bail. In the light of the Court’s

reaffirmation of Hernandez as applicable to petitioner’s case, and of the logical and

necessary corollary that the information against him should be considered as charging only

the crime of simple rebellion, which is bailable before conviction, that must now be accepted

as a correct proposition. But the question remains: Given the facts from which this case

arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a

right or vindicating its denial? The criminal case before the respondent Judge was the normal

venue for invoking the petitioner’s right to have provisional libery pending trial and judgment.

The original jurisdiction to grant or deny bail rested with said respondent. The correct course

was for petitioner to invoke that jurisdiction by filing petition to be admitted to bail, claiming a

right to bail per se by reason of the weakness of the evidence against him. Only after that

remedy was denied by the trial court should the review jurisdiction of this Court have been

invoked, and even then, not without first applying to the Court of Appeals if appropriate relief

was also available there.

The Court reiterates that based on the doctrine enunciated in People vs Hernandez, the

questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco

and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners

are entitled to bail, before final conviction, as a matter of right. The Court’s earlier grant bail to

petitioners being merely provisional in character, the proceedings in both cases are ordered

remanded to the respondent Judge to fix the amount of bail to be posted by the petitioners.

Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond

filed with this Court shall become functus oficio.

Manila

FIRST DIVISION

G.R. No. 112235 November 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ELIAS LOVEDIORO y CASTRO, defendant-appellant.

KAPUNAN, J.:

Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the Daraga, Albay Public Market when a man suddenly walked beside him, pulled a .45 caliber gun from his waist, aimed the gun at the policeman's right ear and fired. The man who shot Lucilo had three other companions with him, one of whom shot the fallen policeman four times as he lay on the ground. After taking the latter's gun, the man and his companions boarded a tricycle and fled. 1

The incident was witnessed from a distance of about nine meters by Nestor Armenta, a 25 year old welder from Pilar, Sorsogon, who claimed that he knew both the victim and the man who fired the fatal shot. Armenta identified the man who fired at the deceased as Elias Lovedioro y Castro, his nephew (appellant's father was his first cousin) and alleged that he knew the victim from the fact that the latter was a resident of Bagumbayan.

Lucilo died on the same day of massive blood loss from multiple gunshot wounds on the face, the chest, and other parts of the body. 2 On autopsy, the municipal health officer established the cause of death as hypovolemic shock. 3

As a result of the killing, the office of the provincial prosecutor of Albay, on November 6, 1992 filed an Information charging accused-appellant Elias Lovedioro y Castro of the crime of Murder under Article 248 of the Revised Penal Code. The Information reads:

That on or about the 27th day of July, 1992, at more or less 5:30 o'clock in the afternoon, at Burgos Street, Municipality of Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with Gilberto Longasa, who is already charged in Crim. Case No. 5931 before RTC, Branch I, and three (3) others whose true identities are at present unknown and remain at large, conniving, conspiring, confederating and helping one another for a common purpose, armed with firearms, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously fire and shoot one SPO3 JESUS LUCILO, a member of the Daraga Police Station, inflicting upon the latter multiple gunshot wounds causing his death, to the damage and prejudice of his legal heirs.

After trial, the court a quo found accused-appellant guilty beyond reasonable doubt of the crime of Murder. The dispositive portion of said decision, dated September 24, 1993 states:

WHEREFORE, in view of all the foregoing considerations, this Court finds the accused ELIAS LOVEDIORO guilty beyond reasonable doubt as principal, acting in conspiracy with his co-accused who are still at large, of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of Reclusion Perpetua with all the accessories provided by law; to pay the heirs of the deceased SPO3 Jesus Lucilo through the widow, Mrs. Remeline Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos representing the civil indemnity for death; to pay the said widow the sum of Thirty Thousand (P30,000.00) Pesos representing reasonable moral damages; and to pay the said widow the sum of Eighteen Thousand Five Hundred Eighty-Eight (P18,588.00) Pesos, representing actual damages, without subsidiary imprisonment however, in case of insolvency on the part of the said accused.

With costs against the accused.

SO ORDERED.

Hence, the instant appeal, in which the sole issue interposed is that portion of trial court decision finding him guilty of the crime of murder and not rebellion.

Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as supporting his claim that he should have been charged with the crime of rebellion, not murder. In his Brief, he asseverates that Armenta, a police informer, identified him as a member of the New People's Army. Additionally, he contends that because the killing of Lucilo was "a means to or in furtherance of subversive ends," 4 (said killing) should have been deemed absorbed in the crime of rebellion under Arts. 134 and 135 of the Revised Penal Code. Finally, claiming that he did not fire the fatal shot but merely acted as a look-out in the liquidation of Lucilo, he avers that he should have been charged merely as a participant in the commission of the crime of rebellion under paragraph 2 of Article 135 of the Revised Penal Code and should therefore have been meted only the penalty of prison mayor by the lower court.

Asserting that the trial court correctly convicted appellant of the crime of murder, the Solicitor General avers that the crime committed by appellant may be considered as rebellion only if the defense itself had conclusively proven that the motive or intent for the killing of the policeman was for "political and subversive ends." 5 Moreover, the Solicitor General contends that even if appellant were to be convicted of rebellion, and even if the trial court had found appellant guilty merely of being a participant in a rebellion, the proper imposable penalty is not prision mayor as appellant contends, but reclusion temporal, because Executive Order No. 187 as amended by Republic Act No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable for individuals found guilty as participants in a rebellion.

We agree with the Solicitor General that the crime committed was murder and not rebellion.

Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968, rebellion is committed in the following manner:

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or prerogatives. 6

The gravamen of the crime of rebellion is an armed public uprising against the government. 7 By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. 8 One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, 9 thus:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippine Islands or any part thereof," then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.

Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated.

In such cases, the burden of demonstrating political motive falls on the defense, motive, being a state of mind which the accused, better than any individual, knows. Thus, in People v. Gempes, 10 this court stressed that:

Since this is a matter that lies peculiarly with (the accused's) knowledge and since moreover this is an affirmative defense, the burden is on them to prove, or at least to state, which they could easily do personally or through witnesses, that they killed the deceased in furtherance of the resistance movement.

From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit, without any political motivation, it has been held that the crime would be separately punishable as a common crime and would not be absorbed by the crime rebellion. 11

Clearly, political motive should be established before a person charged with a common crime — alleging rebellion in order to lessen the possible imposable penalty — could benefit from the law's relatively benign attitude towards political crimes. Instructive in this regard is the case of Enrile v. Amin, 12 where the prosecution sought to charge Senator Juan Ponce Enrile with violation of P.D. No. 1829, 13 for allegedly harboring or concealing in his home Col. Gregorio Honasan in spite of the senator's knowledge that Honasan might have committed a crime. This Court held, against the prosecution's contention, that rebellion and violation of P.D 1829 could be tried separately 14 (on the principle that rebellion is based on the Revised Penal Code while P.D. 1829 is a special law), that the act for which the senator was being charged, though punishable under a special law, was absorbed in the crime of rebellion being motivated by, and related to the acts for which he was charged in Enrile vs. Salazar (G.R. Nos. 92163 and 92164) a case decided on June 5, 1990. Ruling in favor of Senator Enrile and holding that the prosecution for violation of P.D. No. 1829 cannot prosper because a separate prosecution for rebellion had already been filed and in fact decided, the Court said:

The attendant circumstances in the instant case, however constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense. 15

Noting the importance of purpose in cases of rebellion the court in Enrile vs. Amin further underscored that:

[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately.

It follows, therefore, that if no political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice.

The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the instant case is striking. Two witnesses, both former NPA recruits identified the accused Ompad, alias "Commander Brando," a known hitman of the NPA, as having led three other members of the NPA in the liquidation of Dionilo Barlaan, a military informer, also in a rebel infested area. In spite of his notoriety as an NPA hitman, Ompad was merely charged with and convicted of murder, not rebellion because political motive was neither alleged nor proved.

As stated hereinabove, the burden of proof that the act committed was impelled by a political motive lies on the accused. Political motive must be alleged in the information. 17 It must be established by clear and satisfactory evidence. In People v. Paz and Tica we held:

That the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of proving clearly and satisfactorily. The lone uncorroborated assertion of appellant that his superiors told him of Dayrit being an informer, and his suspicion that he was one such, is neither sufficient or adequate to establish that the motivation for the killing was political, considering appellant's obvious interest in testifying to that effect. 18

Similarly, in People v. Buco, 19 the Court stressed that accused in that case failed to establish that the reason for the killing of their victim was to further or carry out rebellion. The evidence adduced by the defense therein simply showed that appellant Francisco Buco was ordered by Tomas Calma, alias "Commander Sol" to kill municipal mayor Conrado G. Dizon. However, the evidence likewise showed that Calma was induced by an acquaintance, a civilian, to order the killing on account of private differences over a ninety (90) hectare piece of land. The court attributed no political motive for the killing, though committed by known members of the Hukbalahap movement. 20

People v. Dasig 21 has a factual milieu almost similar to the instant case. There, the Court held that "the act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of a rebellion." In Dasig the Court however noted that the accused, who was charged with murder, not only admitted his membership with the NPA but also executed an extrajudicial confession to the effect that he was a member of an NPA "sparrow unit," a fact to which even the Solicitor General, in his brief therein was in agreement. The Solicitor General's brief in Dasig which this Court favorably quoted, noted that:

[T]he sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. 22

By contrast, the Solicitor General vigorously argues for a different result in the case at bench. He states that accused-appellant's belated claims to membership in the NPA were not only insubstantial but also self serving 23an averment to which, given a thorough review of the circumstances of the case, we fully agree. He states:

[In the case cited] the appellants, admittedly members of the NPA, clearly overcame the burden of proving motive or intent. It was shown that the political motivation for the killing of the victim was the fact that Ragaul was suspected as an informer for the PC. The perpetrators even left a letter card, a drawing on the body of Ragaul as a warning to others not to follow his example. It is entirely different in the case at bar where the evidence for the appellant merely contains self-serving assertions and denials not substantial enough as an indicia of political motivation in the killing of victim SPO3 Jesus Lucilo. 24

In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial confession to having participated in the killing of Lucilo as follows:

Q What was that incident if any, please narrate?

A July 27, 1992 at more or less 12:00 noon. I am at home, three male person a certainalias ALWIN, ALIAS SAMUEL and the other one unknown to me, fetched me and told me to go with them, so I asked them where, Alwin handed me a hand gun and same he stopped/call a passenger jeepney and told me board on said jeepney. (sic)

Q Please continue.

A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said jeep, so we walk towards Daraga Bakery we stopped walking due to it is raining, when the rain stopped we continue walking by using the road near the bakery. (sic)

Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near the bakery where did you proceed?

A I am not familiar with that place, but I and my companion continue walking, at more less 4:30 P.M. July 27, 1992 one of my companion told us as to quote in Bicol dialect, to wit:

"AMO NA YADI AN TINAMPO PALUWAS" (This is the place towards the poblacion), so, I placed myself just ahead of a small store, my three (3) companions continue walking towards poblacion, later on a policeman sporting white T-shirt and a khaki pant was walking towards me, while the said policeman is nearly approaching me, ALWIN shot the said policeman in front of the small store, when the said policeman fell on the asphalted road, ALWIN took the service firearm of the said policeman, then we ran towards the subdivision, then my two (2) companions commanded a tricycle then we fled until we reached a hill wherein there is a small bridge, thereafter Ka Samuel took the handgun that was handed to me by them at Pilar, Sorsogon. (sic)

Q Do you know the policeman that was killed by your companion?

A I just came to know his name when I reached home and heard it radio, that he is JESUS LUCILO. (sic)

Q What is your participation in the group?

A Look-out sir.

Q I have nothing more to asked you what else, if there is any? (sic)

A No more sir. 25

It bears emphasis that nowhere in his entire extrajudicial confession did appellant ever mention that he was a member of the New People's Army. A thorough reading of the same reveals nothing which would suggest that the killing in which he was a participant was motivated by a political purpose. Moreover, the information filed against appellant, based on sworn statements, did not contain any mention or allusion as to the involvement of the NPA in the death of SPO3 Lucilo. 26 Even prosecution eyewitness Nestor Armenta did not mention the NPA in his sworn statement of October 19, 1992. 27

As the record would show, allegations relating to appellant's membership in the NPA surfaced almost merely as an afterthought, something which the defense merely picked up and followed through upon prosecution eyewitness Armenta's testimony on cross-examination that he knew appellant to be a member of the NPA. Interestingly, however, in the same testimony, Armenta admitted that he was "forced" to pinpoint appellant as an NPA

member.28 The logical result, of course, was that the trial court did not give any weight and credence to said testimony. The trial court, after all, had the prerogative of rejecting only a part of a witness' testimony while upholding the rest of it. 29 While disbelieving the portion of Armenta's testimony on appellant's alleged membership in the NPA, the trial court correctly gave credence to his unflawed narration about how the crime was committed. 30 Such narration is even corroborated in its pertinent portions, except as to the identity of the gun wielder, by the testimony of the appellant himself.

In any case, appellant's claim regarding the political color attending the commission of the crime being a matter of defense, its viability depends on his sole and unsupported testimony. He testified that, upon the prodding of aliasAlwin and alias Samuel, he joined the NPA because of the organization's goals. 31 He claimed that his two companions shot Lucilo because he "had offended our organization," 32 without, however, specifying what the "offense" was. Appellant claimed that he had been a member of the NPA for five months before the shooting incident. 33

As correctly observed by the Solicitor General, appellant's contentions are couched in terms so general and non-specific 34 that they offer no explanation as to what contribution the killing would have made towards the achievement of the NPA's subversive aims. SPO3 Jesus Lucilo, a mere policeman, was never alleged to be an informer. No acts of his were specifically shown to have offended the NPA. Against appellant's attempts to shade his participation in the killing with a political color, the evidence on record leaves the impression that appellant's bare allegations of membership in the NPA was conveniently infused to mitigate the penalty imposable upon him. It is of judicial notice that in many NPA infested areas, crimes have been all-too-quickly attributed to the furtherance of an ideology or under the cloak of political color for the purpose of mitigating the imposable penalty when in fact they are no more than ordinary crimes perpetrated by common criminals. In Baylosis v. Chavez, Jr., Chief Justice Narvasa aptly observed:

The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more stringent laws and more rigorous law-enforcement, cannot be gainsaid. 35

In the absence of clear and satisfactory evidence pointing to a political motive for the killing of SPO3 Jesus Lucilo, we are satisfied that the trial court correctly convicted appellant of the crime of murder. 36 It is of no moment that a single eyewitness, Nestor Armenta, sealed his fate, for it is settled that the testimony of one witness, if credible and positive, is sufficient to convict. 37 Against appellant's claims that he acted merely as a look-out, the testimony of one

witness, his blood relative, free from any signs of impropriety or falsehood, was sufficient to convict the accused. 38 Moreover, neither may lack of motive be availing to exculpate the appellant. Lack or absence of motive for committing a crime does not preclude conviction, there being a reliable eyewitness who fully and satisfactorily identified appellant as the perpetrator of the felony. 39 In the case at bench, the strength of the prosecution's case was furthermore bolstered by accused-appellant's admission in open court that he and the eyewitness, his own uncle, bore no grudges against each other. 40

Finally, treachery was adequately proved in the court below. The attack delivered by appellant was sudden, and without warning of any kind. 41 The killing having been qualified by treachery, the crime committed is murder under Art. 248 of the Revised Penal Code. In the absence of any mitigating and aggravating circumstances, the trial court was correct in imposing the penalty of reclusion perpetua together with all the accessories provided by law.

WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September 14, 1993, sentencing the accused of Murder is hereby AFFIRMED, in toto.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

Footnotes

Manila

EN BANC

G.R. No. L-2990 December 17, 1951

OSCAR ESPUELAS Y MENDOZA, petitioner, vs.THE PEOPLE OF THE PHILIPPINES, respondent.

Carlos P. Garcia, Cosme P. Garcia and B.E. Enerio for petitioner.Office of the Solicitor Jesus A. Avanceña for respondent.

BENGZON, J.:

Article 142 of the Revised Penal Code punishes those who shall write, publish or circulate scurrilous libels against the Government of the Philippines or any of the duly constituted authorities thereof or which suggest or incite rebellious conspiracies or riots or which tend to stir up the people againts the lawful authorities or to disturb the peace of the community.

The appellant Oscar Espuelas y Mendoza was, after trial, convicted in the Court of First Instance of Bohol of a violation of the above article. The conviction was affirmed by the Court of Appeals, because according to said court.

"About the time compromised between June 9 and June 24, 1947, both dates inclusive, in the town of Tagbilaran, Bohol, Oscar Espuelas y Mendoza had his picture taken, making it to appear as if he were hanging lifeless at the end of a piece of rope suspended form the limb of the tree, when in truth and in fact, he was merely standing on a barrel (Exhibit A, C-I). After securing copies of his photograph, Espuelas sent copies of same to several newspapers and weeklies of general circulation (Exhibit C, F, G, H, I), not only in the Province of Bohol but also throughout the Philippines and abroad, for their publication with a suicide note or letter, wherein he made to appear that it was written by a fictitious suicide, Alberto Reveniera and addressed to the latter's supposed wife translation of which letter or note in hereunder reproduced:

Dearest wife and children, bury me five meters deep. Over my grave don't plant a cross or put floral wreaths, for I don't need them.

Please don't bury me in the lonely place. Bury me in the Catholic cemetery. Although I have committed suicide, I still have the right to burried among Christians.

But don't pray for me. Don't remember me, and don't feel sorry. Wipe me out of your lives.

My dear wife, if someone asks to you why I committed suicide, tell them I did it because I was not pleased with the administration of Roxas. Tell the whole world about this.

And if they ask why I did not like the administration of Roxas, point out to them the situation in Central Luzon, the Leyte.

Dear wife, write to President Truman and Churchill. Tell them that here in the Philippines our government is infested with many Hitlers and Mussolinis.lawphil.net

Teach our children to burn pictures of Roxas if and when they come across one.

I committed suicide because I am ashamed of our government under Roxas. I cannot hold high my brows to the world with this dirty government.

I committed suicide because I have no power to put under Juez de Cuchillo all the Roxas people now in power. So, I sacrificed my own self.

The accused admitted the fact that he wrote the note or letter above quoted and caused its publication in the Free Press, the Evening News, the Bisayas, Lamdang and other local periodicals and that he had impersonated one Alberto Reveniera by signing said pseudonymous name in said note or letter and posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree."

The latter is a scurrilous libel against the Government. 1 It calls our government one of crooks and dishonest persons (dirty) infested with Nazis and a Fascistis i.e. dictators.

And the communication reveals a tendency to produce dissatisfaction or a feeling incompatible with the disposition to remain loyal to the government. 2

Writings which tend to overthrow or undermine the security of the government or to weaken the confidence of the people in the government are against the public peace, and are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the very government itself (See 19 Am. Law Rep. 1511). Regarded as seditious libels they were the subject of criminal proceedings since early times in England. (V op. cit.).

As explained by Paterson, 3 ". . . the great factors of government, consisting of the Sovereign, the Parliament, the ministers of state, the courts of justice, must be recognized as holding functions founded on sound principles and to be defended and treated with an established and well-nigh unalterable respect. Each of these great institutions has peculiar virtues and peculiar weaknesses, but whether at any one time the virtue or the weakness predominates, there must be a certain standard of decorum reserved for all. Each guarded remonstrance, each fiery invective, each burst of indignation must rest on some basis of respect and deference towards the depository, for the time being, of every great constitutional function. Hence another limit of free speech and writing is sedition. And yet within there is ample room and verge enough for the freest use of the tongue and pen in passing strictures in the judgment and conduct of every constituted authority."

Naturally, when the people's share in the government was restricted, there was a disposition to punish even mild criticism of the ruler or the departments of government. But as governments grew to be more representative, the laws of sedition became less drastic and freedom of expression strife continue to be prohibited.

The United States punished seditious utterances in the act of July 14, 1798 containing provisions parallel to our own article 142. Analogous prohibitions are found in the Espionage Act of June 1917 and the seditious libel amendment thereto in May, 1918.

Of course such legislation despite its general merit is liable to become a weapon of intolerance constraining the free expression of opinion, or mere agitation for reform. But so long as there is a sufficient safeguard by requiring intent on the part of the defendant to produce illegal action-such legislation aimed at anarchy and radicalism presents largely a question of policy. Our Legislature has spoken in article 142 and the law must be applied.

In disposing of this appeal, careful thought had to be given to the fundamental right to freedom of speech. Yet the freedom of speech secured by the Constitution "does not confer an absolute right to speak or publish without responsibility whatever one may choose." It is not "unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 4" So statutes against sedition have guaranty, although they should not be interpreted so as to agitate for institutional changes. 5

Not to be restrained is the privilege of any citizen to criticize his government officials and to submit his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the market." However, let such criticism be specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up. Such wholesale attack is nothing less than an invitation to disloyalty to the government. In the article now under examination one will find no particular objectionable actuation of the government. It is called dirty, it is called a dictatorship, it is called shameful, but no particular omissions or commissions are set forth. Instead the article drip with male-violence and hate towards the constituted authorities. It tries to arouse animosity towards all public servants headed by President Roxas whose pictures this appellant would burn and would teach the younger generation to destroy.

Analyzed for meaning and weighed in its consequences the article cannot fail to impress thinking persons that it seeks to sow the seeds of sedition and strife. The infuriating language is not a sincere effort to persuade, what with the writer's simulated suicide and false claim to martyrdom and what with is failure to particularize. When the use irritating language centers not on persuading the readers but on creating disturbances, the rationable of free speech cannot apply and the speaker or writer is removed from the protection of the constitutional guaranty.

If it be argued that the article does not discredit the entire governmental structure but only President Roxas and his men, the reply is that article 142 punishes not only all libels against the Government but also "libels against any of the duly constituted authorities thereof." The "Roxas people" in the Government obviously refer of least to the President, his Cabinet and the majority of legislators to whom the adjectives dirty, Hitlers and Mussolinis were naturally directed. On this score alone the conviction could be upheld. 6

As heretofore stated publication suggest or incites rebellious conspiracies or riots and tends to stir up people against the constituted authorities, or to provoke violence from opposition who may seek to silence the writer. 7Which is the sum and substance of the offense under consideration.

The essence of seditious libel may be said to its immediate tendency to stir up general discontent to the pitch of illegal courses; that is to say to induce people to resort to illegal methods other than those provided by the Constitution, in order to repress the evils which press upon their minds. 8

"The idea of violence prevades the whole letter" says Justice Paredes of the Court of Appeals. "The mere fact that a person was so disgusted with his "dirty government" to the point of taking his own life, is not merely a sign of disillusionment; it is a clear act to arouse its readers a sense of dissatisfaction against its duly constituted authorities. The mention made in said letter of the situation in Central Luzon, the Hukbalahaps, Julio Guillen and the banditry in Leyte, which are instances of flagrant and armed attacks against the law and the duly constituted authorities cannot but be interpreted by the reading public as an indirect justification of the open defiance by the Hukbalahaps against the constituted government, the attempt against the life of President Roxas and the ruthless depredations committed by the bandits of Leyte, thus insinuating that a state on lawlessness, rebellion and anarchy would be very much better than the maladministration of said President and his men.

To top it all, the appellant proclaimed to his readers that he committed suicide because he had "no power to put under juez de cuchillo all the Roxas people now in power." Knowing, that the expression Juez de Cuchillo means to the ordinary layman as the Law of the Knife, a "summary and arbitrary execution by the knife", the idea intended by the appellant to be conveyed was no other than bloody, violent and unpeaceful methods to free the government from the administration of Roxas and his men.

The meaning, intent and effect of the article involves maybe a question of fact, making the findings of the court of appeals conclusive upon us. 9

Anyway, it is clear that the letter suggested the decapitation or assassination of all Roxas officials (at least members of the Cabinet and a majority of Legislators including the Chief Executive himself). And such suggestion clinches the case against appellant.

In 1922 Isaac Perez of Sorsogon while discussing political matter with several persons in a public place uttered theses words: "Filipinos must use bolos for cutting off Wood's head" — referring to the them Governor-General, Leonard Wood. Perez was found guilty of inciting to sedition in a judgment of this court published in Volume 45 of the Philippine Reports. That precedent is undeniably opposite. Note that the opinion was penned by Mr. Justice Malcolm probably of speech. Adopting his own words we could say, "Here the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the

President of the United States and other high office, under form of government, instead of affording immunity from promiscuous comment, seems rather to invite abusive attacks. But in this instance, the attack on the President passes the furthest bounds of free speech and common decency. More than a figure of speech was intended. There is a seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws."

The accused must therefore be found guilty as charged. And there being no question as to the legality of the penalty imposed on him, the decision will be affirmed with costs.

Pablo, Padilla, Montemayor and Reyes, JJ., concur.Jugo, J., concurs in the result.

Separate Opinions

TUASON, J., dissenting:

Article 142 of the Revised Penal Code, as amended, entitled "Inciting to Sedition", provides:

The penalty of prision correccional in its maximum period and a fine not exceeding 2,000 pesos shall be imposed upon any person without taking any direct part the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the United States or the Government of the Commonwealth of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.

In the case of U.S. vs. Dorr, 2 Phil., 332, this Court traced the origin and history of the predecessor of Article 142 and expounded its meaning. Mr. Justice Ladd, who wrote the decision, said:

Several allied offenses or modes of committing the same offense are defined in that section, viz: (1) The uttering of seditious words or speeches; (2) the writing, publishing, or circulating of scurrilous libels against the Government of the United States or the Insular Government of the Philippines Islands; (3) the writing, publishing or circulating of libels which tend to disturb or obstruct any lawful officer in executing his office; (4) or which tend to instigate others to cabal or meet together for unlawful purposes; (5) or which suggest or incite rebellious conspiracies or riots; (6) or which tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government; (7) knowingly concealing such evil practices.

Referring to case (2) — scurrilous libels against the Government of the United States or the Insular Government of the Philippines Islands which the Court said may stand on a somewhat different footing from the rest-the Court went on to say:

In the determination of the question we have encountered great difficulty, be reason of the almost entire lack of American precedents which might serve as a guide in the construction of the law. There are, indeed, numerous English decisions, most of them of the "Government, the constitution, or the law generally," attacks upon the Houses of Parliament, the Cabinet, the Established Church, and other governmental organisms, but these decisions are not now accessible to us, and, if they were, they were made under such different conditions from which prevail at the present day, and are founded upon the theories of government so foreign to those which have inspired the legislation of which the enactment in question forms a part, that they would probably afford but little light in the present inquiry. In England, in the latter part of the eighteenth century, any "written ensure upon public men for their conduct as such", as well as any written censure "upon the laws or upon the institutions of the country," would probably have been regarded as a libel upon the Government. (2 Stephen, History of the Criminal Law of England, 348.) This has ceased to be the law in England, and it is doubtful whether it was ever the common law of any American State. "It is true that there are ancient dicta to the effect that any publication tending to 'posses the people with an ill opinion of the Government' is a seditious libel (per Holt, C.J., in R. vs. Tuchin, 1704 St. Tr., 532, and Elenborough, C.J., in R. vs. Cobbet, 1804, 29 How. St. Tr., 49), but no one would accept that doctrine now. Unless the words used directly tend to foment riot or rebellion or otherwise to disturb the peace and tranquility of the Kingdom, the utmost lattitude is allowed in the discussion of all public affairs." (11 Enc. of the Laws of England 450.) Judge Cooley says (Const. Lim., 901): "The English common law rule which made labels on the constitution or the government indictable, as it was administered by the courts,

seems to us unsuited to the condition and circumstances of the people of America, and therefore never to have been adopted to the States."

After citing the Act of Congress of July 14, 1798, commonly and historically known as the "Sedition Act," and after nothing that "the term 'government' would appear to be used here in the abstract sense of the existing political system, as distinguished from the concrete organisms of the Government — the House of Congress and the Executive — which are also specially mentioned," the Court reached the opinion that "this is the (abstract) sense in which the term is used in the enactment under consideration." The Court pointed out that, "while libels upon forms government, unconnected with defamation of individuals, must in the nature of things be of uncommon concurrence, the offenses is by no means imaginary one," and cited a case (Republic vs. Dennie, 4 Yeates [Pa.], 267) in which the defendant was indicted for bringing into contempt and hatred the independence of the United States, the constitution of this Commonwealth and of the United States; for exciting popular discontent and dissatisfaction against the scheme of polity instituted; for condemning the principles of the Revolution, and revailing the characters of the patriots and statesmen; for endangering, subverting, and totally destroying therepublican constitutions and free governments of the said United States and the Commonwealth of Pennsylvania.

In consonance with the principles laid down, the Court held that the article published by Dorr, in which he virulently attacked the policy of the Civil Commission in appointing Filipinos to office, did not come within the purview of the law, although it "may have had the effect of exciting among certain classes dissatisfaction with the Commission and its measures." It found that there was nothing in the article which could "be regarded as having a tendency to produce anything like what mat be called disaffection, or, other words, a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws."

The message which the accused herein caused to be published with his picture contained no libel or criticism against the instituted system of government as distinct from the administration. On the contrary, the gist of the message was that the author was desperate and was going to kill himself because many men in the government were following the practices of absolute and despotic rulers in other parts of the world. He wanted President Truman and Mr. Churchill, leading exponents of such democratic institutions as are consecrated in the Philippine Constitution, to be informed that President Roxas and others in his administration were unfaithful to the tenets of constitutional government. He pointed to the turbulent situation in Central Luzon, the rampant banditry in Leyte, the attempted assassination of President Roxas by Guillen, etc., not as examples to be emulated to be emulated but as the direct outcome of what he claimed widespread graft and corruption in the Government. He pretended to have decided to take his life because he was impotent to remedy or suppress this deplorable state of affairs, and he ashamed of the way the Government was being conducted. He likened some men in the Government, whom he did not specify, to Hitler and Mussolini, not that he idolized those notorious characters but because, he felt, evil forces that undermined the ideas and ideals of the Constitution were at

work in our republic. In short, far from advocation the overthrow or change of the present scheme of polity, the article evinced intense feeling of devotion to the welfare of the country and its institutions.

President Roxas was the only official named in the article. But the defendant did not counsel violence in his reference to the President and the unnamed officials. In his statement to the effect that he was going to kill himself because he could not kill President Roxas and the men who surrounded the Executive, it is not a necessary deduction that he wished others to do it. Let it be remembered that the message was addressed to the writer's "wife" and "children" who, it turned out, were imaginary.

At best, the meaning of the sentence is doubtful and the norm is that, where the defendant's intention is ambiguous he should be given the benefit of the doubt. The courts may not subject an act or utterance to a microscopic examination in an endeavor to find in it germs of seditious utmost caution is called for lest the freedom of expression be impaired. Although statutes against sedition have been held not to violate the constitutional guaranty to the freedom of expression, the courts are warned to so construe or interpret them as not to abridge that freedom. (33 C.J., 164, citing U.S. vs. Apurado et al., 7 Phil., 422.) It is axiomatic that the Constitution is the paramount law and that legislation has to be adjusted thereto. Accordingly in the solution of clashes, which frequently occur, between liberty or free speech and prosecution for sedition, the criterion, it is submitted, should be the presence or absence of real, not imaginary, danger of the utterance materializing or inciting others to disloyalty to the Government and its laws.

There is no inciting to sedition unless, according to Mr. Justice Holmes' theory expressed in connection with a similar topic, "the words used are used in such circumstances and are of such a nature as to create clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." In the very law punishing inciting to sedition there is the requirement that the words alleged to be seditious or libelous lead ortend to the consummation of the evils sought to be prevented. Even in the ordinary offenses of threat and defamation, words are not taken at face value, but their import or gravity is gauged by the circumstances surrounding each particular case.

The term "lead" and "tend" are used in Article 142 of the Revised Penal Code in their ordinary signification. Thus understood, lead as a verb means "to draw or direct by influence" or "to prevail on," and tend means "to conduce to an end." (Webster's International Dictionary.)

Judge by these tests, and granting for the present purposes that the defendant did intend to incite others to sedition, the article was harmless as far as the safety of the Government and its officers was concerned, and should have been ignored, as many others more serious than this one have been. The message, like an evil imagining from which no harm proceeds except to the individual himself, was not conducive to the attainment of the prisoner's aims. If words are "the keys of persuasion" and "the triggers of action," the article under consideration

was far from possessing either of these qualities, taking into consideration the personality do the man who wrote it and what he "did." that the while thing was comical if it were not "tragic." The general reaction, it is fairly safe to say, was one of regret for a man of eccentric and unbalanced mind or ridicule and curiosity for a grosteque stunt. The witnesses for the Government themselves, some of whom were constabulary officers stationed at Tagbilaran, stated that upon reading the article and seeing the author's picture they just laughed it off, "thinking that this fellow must be crazy." That was akin to our own reaction, and there is little or no doubt that it exemplified the general effect upon the minds of other readers of the article. It is certain that none would commit a rash act upon a vague suggestion of a man who hanged himself and whom they had never heard of before, while those who had known him, like the constabulary officers above mentioned, were that the picture was a fake and though the subject was a crank.

Attack more serious, virulent and inflamatory than the one at bar, by persons well known in politics and public life and having influence and large following, have frequently appeared in the press or been launched on the platforms. What the defendant did or said was very tame and mild by comparison. Nevertheless, those critics have not been brought to court; and it is to the everlasting credit of the administration and, in the long run, for the good of the Government, that the parties reviled and the prosecutors have adopted a tolerant attitude. A well-known author on criminal law quoting classical writers on the same subject has truly said:

Yet while such is no doubt the law, prosecutions of this class have recently fallen, in England as well as in the United States, for several reasons, into disuse. In the first place, it is now generally felt that unless criticism be permitted to penetrate even to the foundations of government, revolution rather than reform may result. Time, says Bacon, is the greatest of destructives; and truth is to be constantly employed in repairing the breaches which time makes. The wise conservative, therefore, is often apparently the most destructive radical; as he is the most prudent repairer who, when the piers of a bridge are weakend by a storm, advices that the work of reconstruction should begin at the foundation. To prevent the application of revolutionary criticism to government is of all modes of government the most revolutionary. And closely allied with this position is another, that among countries used to freedom libels only begin to bring the state into contempt when they are prosecuted by the state as contemptuos. The sedition laws, for instance, were among the Chief causes of the overthrow of the administration of John Adams; and their repeal one of the chief causes of the popularity of that of Jefferson. If, however, seditious libels are to be prosecuted, it is well to keep in mind the noble words of princes from whose edicts the English common law, imbued as it is in so many other respects with the spirit of freedom, has much, in reference to the law of libel, to learn: "Imppp. Theodosius, Arcarius et Honorius, A.A.A. Rufino P.P. Si quis modetiae nescius et pudoris ignarus improbo petulantique maledicto nomina nostra crediderit lacessenda, ac temulentia trubulentus obtrectator temporum nostrorum fuerit, eum poenae nolumus subiugari

neque durum aliquid nec asperum sustinere, quoniam, si ex levitate processerit, contemnedum est, si ex insania, miseratione dignissium, si ab injuria, remittendum." (2 Wharton's Criminal Law Section 1947.)

In somewhat parallel vein is the dissent of Mr. Justice Holmes, joined in by Mr. Justice Brandeis, in U.S. vs. Abrams, 250 U.S., 621, 629. Said Justice Holmes:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may some to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

Moreover, the subject of this prosecution does not reveal personal malice or hatred. Except for the "Juez de Cuchillo" item which, like words coming from a babe's mouth, did not have the weight or chance to sway the listeners, the article was but a statement of grievances against officials abuses and misgovernment that already were of common knowledge and which more influential and responsible speakers and writers had denounced in terms and ways more dangerous and revolutionary.

Paras, C.J., and Feria, J., concur.

Footnotes

Manila

FIRST DIVISION

G.R. No. 168051 September 27, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.HONORATO C. BELTRAN, JR., accused-appellant.

CHICO-NAZARIO, J.:

Murder is one of the instances when man descends to a level lower than that of the beast, for it is non-instinctive killing, a deliberate destruction of a member of the same species for reasons other than survival.1

This is an appeal from the Decision of the Court of Appeals in CA-G.R. CR No. 00755, dated 31 March 2005,2affirming with modifications the Decision of the Regional Trial Court (RTC) of Pallocan, Batangas City, Branch 4, in Criminal Case No. 10525, dated 9 October 2001,3 convicting the accused-appellant Honorato C. Beltran, Jr., alias Jun-Jun and Junior, of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of deceased Norman H. Concepcion, the amount of P75,000.00 as moral damages,P50,000.00 as civil indemnity, and P18,252.00 as actual damages.

On 3 November 1999, appellant was indicted in an Information4 for Murder allegedly committed as follows:

That on or about October 25, 1999 at around 10:00 o'clock in the evening at Velasquez Road, Brgy. Sta. Rita, Batangas City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a bolo, a deadly weapon, with intent to kill and with the qualifying circumstance of treachery, did then and there, willfully, unlawfully and feloniously attack, assault and hack with the said bolo, suddenly and without warning one Norman Concepcion y Habla while the latter was unarmed and completely defenseless, thereby hitting him on the different parts of his body, which directly caused the victim's death.

When arraigned on 9 November 1999, appellant pleaded "Not Guilty" to the charge therein.5 Thereafter, trial on the merits ensued.

The prosecution established its case through the testimonies of its witnesses, namely: Ever D. Sales, Rolando G. Dalisay, Dr. Dinah R. Lucero, SPO1 Julian M. de Castro and Normita H. Concepcion. Their testimonies are summarized as follows:

Ever D. Sales (Ever) was a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City. He worked as a gasoline boy in Caltex Gasoline Station at San Pascual, Batangas City.

Ever testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home using his bicycle. While traversing the Velasquez Road, he saw appellant holding a bolo and standing in front of his house situated at the side of Velasquez Road. On the opposite side of the same road, he saw Norman H. Concepcion (Norman) standing in front of an automobile repair shop. Exhausted by the travel, Ever decided to stop by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six meters, stalking Norman who was then walking near the automobile shop. Appellant approached Norman, and, without a warning, hacked him with a bolo. Norman tried to avoid the blow by moving backwards and shielding his face with his left arm. However, Norman's left hand was hit and wounded by the bolo. When Norman turned around and ran, appellant hacked him at the back causing him to fall down on a grassy area. Appellant repeatedly hacked Norman with a bolo.

Fearing for his own safety, Ever immediately left the nipa hut and sought help in a nearby sari-sari store. Later, he went to the crime scene and found no trace of appellant. He also discovered the bloodied and lifeless body of Norman sprawled on the ground. Afterwards, he proceeded home and narrated to a relative named Renato Sales (Renato) what he just witnessed. Later, Renato informed a certain Carmina Baliwag of the incident, who in turn, relayed the same to Normita Concepcion (Normita), the sister of Norman. Ever also declared that he did not know of any reason why appellant hacked Norman to death.6

Rolando G. Dalisay (Rolando) is a resident of Velasquez Subdivision, Barangay Sta. Rita, Batangas City, where he is engaged in a carpentry business.

Rolando supported the testimony of Ever by stating that on 25 October 1999, at around 10:00 in the evening, he was walking along Velasquez Road to buy some medicines when, at a distance of about 15 meters, he saw appellant hacking Norman with a bolo. He noticed that when Norman fell on the ground, appellant continued his onslaught by relentlessly hacking the former. Afraid that he might be seen by the appellant, he immediately went home and informed his wife about the incident. When the barangay tanod and policemen arrived at the crime scene, he proceeded thereto and told them what he had witnessed. Further, he stated that he personally knows appellant as the latter was a former employee in his carpentry business. He also personally knew Norman since the latter was a relative of his wife. Lastly, he testified that appellant and Norman had a previous quarrel which, however, was subsequently settled in their barangay office.7

SP01 Julian D. Mendoza was the investigating officer of the instant case. On 26 October 1999, at about 12:00 midnight, his station received an information regarding the hacking incident. He and a certain SPO3 Mario Panaligan rushed to the crime scene. Upon arriving thereat, he inquired from the people present the identity of the dead person and of the killer. Rolando approached him and narrated that the dead person was Norman and the killer was appellant. Normita also arrived at the crime scene and told him relevant information. With this lead, they proceeded to appellant's house but the latter was not there.

On 27 October 1999, a certain Tomas Dimacuha surrendered the appellant. Later, the brother of appellant, Sherman Beltran, brought before him the bolo, about three palms in length, used by appellant in hacking Norman to death.8

Dr. Dinah R. Lucero, Medical Officer IV of the Batangas City Health Office, testified that she conducted the post mortem examination on the cadaver of Norman on 26 October 1999 at the Eternal Memorial Chapel. She declared that, aside from the fact that Norman's body was almost decapitated, the latter suffered seven stab wounds and his cause of death was "massive blood loss secondary to multiple hacking wound."9 The death certificate issued by Lucero shows that Norman was twenty-two (22) years of age at the time of his demise.10

Lastly, Normita, sister of Norman, testified that on the evening of 25 October 1999, Carmina Baliwag called her on the telephone and instructed her to proceed to Velasquez Road. Upon arriving thereat, she was shocked to discover the dead body of Norman lying on the ground. She claimed that appellant had a motive to kill Norman since an altercation occurred between the two on 22 October 1999, which, however, was settled later on 25 October 1999. In establishing her claim for damages, she stated that she spent an amount of P61,000.00 in connection with Norman's death, and that the latter worked as an assistant to the electrician at First Gas Company with a monthly income of P6,000.00. She also claimed that she was "shocked" at the sudden and gruesome death of Norman, and that she felt "pity" for him.11

On the other hand, the defense argued its case by presenting the testimony of the appellant himself and a certain Dr. Luisito Briones.

Appellant admitted that he hacked Norman with a bolo but insisted that he did the same in self-defense. He narrated that on 25 October 1999, at about 10:00 in the evening, he and his mother were resting inside their house when suddenly, he heard Norman shouting and insulting him outside their house and challenging him to a fight. When he came out of the house, he noticed that Norman was accompanied by several unidentified persons. Thereafter, he tried to pacify Norman but the latter slapped the back of his head and pulled out an ice pick from his pocket. He retreated and looked for something to defend himself. He found a bolo near a tamarind tree in front of their house and took the same. When Norman was about to enter appellant's house, the latter hacked him with the bolo. Norman tried to avoid the blow but the same hit his left arm. Appellant lost grip of the bolo and the same fell on the ground. While appellant was reaching for the bolo, Norman grabbed his head and tried

to stab him with the ice-pick. Appellant, however, eluded the counter-attack but he sustained a minor wound on the forehead. Upon gaining control of the scuffle, appellant took the bolo and hacked Norman four consecutive times, most of them landed on the head. When appellant noticed that Norman was no longer moving, he fled therein and went to his brother, Sherman Beltran, in Bauan, Batangas, where he stayed that same night and hid therein the bolo. The next day, he went to his sister's house in Lipa City. Later that day, he went to the Granja Hospital, also in Lipa City, for treatment of his wound on the forehead.

Appellant also claimed that on 22 October 1999, he was mauled by Norman near a sari-sari store; that Norman is taller than him since he is only 5'4 in height; that he was forced to kill Norman because the latter insulted him and his mother; and that he was on his way to Bauan City to surrender to police when he was apprehended by the barangay officers in Lipa City.12 Appellant was twenty-nine years (29) of age at the time of his arrest.13

Dr. Luisito D. Briones testified that he treated appellant on the morning of 26 October 1999 at Granja Hospital in Lipa City for a lacerated wound on the forehead. He also claimed that the wound was possibly caused by a knife and that it was already on the healing stage. He also issued a medical certificate attesting to the same.14

On 9 October 2001, the RTC rendered its Decision15 finding appellant guilty beyond reasonable doubt of the crime of murder. It reasoned that appellant's claim of self-defense cannot be sustained in view of the positive and credible testimonies of the prosecution witnesses. In closing, the trial court ruled:

In the light of all the foregoing consideration and upon the evidence, accused Honorato Beltran, Jr. y Casia alias "Jun-Jun" is hereby found GUILTY beyond reasonable doubt of the crime of Murder charged in the information. Consequently, the accused is hereby sentenced to Reclusion perpetua together with all the accessory penalties inherent therewith and to pay the costs. He is further directed to indemnify the heirs of Norman Concepcion in the sum of P61,000.00 as actual damages and the sum of P75,000.00 as moral damages.16

Aggrieved, appellant filed a notice of appeal therein on 22 October 2001.17 Subsequently, on 3 January 2003, appellant filed his Appellant's Brief with this Court assailing the Decision of the RTC dated 9 October 2001.18Pursuant to our ruling in the case of People v. Mateo,19 we issued a Resolution dated 8 November 2004, transferring the instant case to the Court of Appeals for disposition.20 On 31 March 2005, the Court of Appeals promulgated its Decision affirming with modifications the assailed RTC Decision. Aside from reducing the amount of actual damages awarded by the RTC, it also ordered appellant to pay the heirs of Norman an amount ofP50,000.00 as civil indemnity. The dispositive portion thereof reads:

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Aside from moral damages in the amount of P75,000.00, appellant is ordered to pay the

heirs of the deceased, Norman Concepcion, the following amounts: (a) Fifty Thousand (P50,000.00) as civil indemnity; and (b) Eighteen Thousand Five Hundred Twenty-Five (P18,525.00) as actual damages.21

Dismayed, appellant appealed the afore-quoted Decision before this Court by adopting and invoking the same arguments stated in his Appellant's Brief dated 3 January 2003, to wit:

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF EVER SALES DESPITE OF ITS BEING UNBELIEVABLE AND BIASED, INSTEAD OF THE SELF-DEFENSE INTERPOSED BY THE APPELLANT.

THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH THE SAME BEYOND REASONABLE DOUBT.

ASSUMING THAT ACCUSED-APPELLANT IS NOT ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF SELF-DEFENSE, THE TRIAL COURT ERRED IN NOT CONSIDERING IN HIS FAVOR THE MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION ON THE PART OF THE OFFENDED PARTY WHICH IMMEDIATELY PRECEDED THE ACT AND VOLUNTARY SURRENDER.

THE TRIAL COURT GRAVELY ERRED IN AWARDING EXCESSIVE ACTUAL DAMAGES.22

Anent the first issue, appellant argued that the testimony of prosecution witness, Ever, is biased, unbelievable and confusing; that the trial court should not have considered them; that his acquittal is proper on the ground of self-defense; and that the elements of self-defense are present in the instant case.

The contention is without merit.

Prosecution eyewitness, Ever, testified that on 25 October 1999, at about 10:00 in the evening, he left his workplace and proceeded home using his bicycle. While traversing Velasquez Road, he saw appellant holding a bolo and standing in front of his house situated

at the side of Velasquez Road. On the opposite side of the same road, he saw Norman standing in front of an automobile repair shop. Exhausted by the travel, he decided to stop by and rest momentarily at a nipa hut near the same road. Minutes later, he saw appellant, from a distance of six meters, stalking Norman who was walking then near the automobile repair shop. Appellant approached Norman, and without a warning, repeatedly hacked him with a bolo. Although it occurred late in the evening, the light coming from the moon and the electric post therein provided him with good visibility to identify appellant and Norman, and to witness how the heinous act was executed.23 This testimony was corroborated by another prosecution eyewitness, Rolando. Thus, the positive identification and categorical declarations of Ever on the witness stand under solemn oath deserves full faith and credence.

Appellant, however, posited that there were inconsistencies between the testimony of Ever in open court and his sworn statements before the investigators. According to appellant, Ever testified during his direct examination that he was at a distance of about six meters, more or less, from appellant and Norman when the hacking occurred; that the place where the killing occurred was "lighted" by the moon; and that during his cross-examination, he stated that there was no other person within the area when he witnessed the hacking. On the other hand, appellant claimed that Ever declared in his sworn statements before the investigators that he was more or less 20 meters from the place where the hacking took place; that there was light coming from the electric post and the moon; and that during his cross-examination, he also stated that the mother of appellant was outside the house when the hacking took place.24

This Court had consistently ruled that the alleged inconsistencies between the testimony of a witness in open court and his sworn statement before the investigators are not fatal defects to justify a reversal of judgment of conviction. Such discrepancies do not necessarily discredit the witness since ex-parte affidavits are almost always incomplete. It bears emphasis that a sworn statement or an affidavit does not purport to contain a complete compendium of the details of the event narrated by the affiant. Sworn statements taken ex-parte are generally considered to be inferior to the testimony given in open court.25

Moreover, as aptly stated by the Office of the Solicitor General (OSG), when Ever testified in court that "there was light coming from the moon, sir" he was not denying what he stated in his sworn statement that "there was a light from the lamp (electric) post and the moon."26 The appellant also testified that the place where the hacking incident occurred was lighted by an electric post. As the foregoing circumstances clearly established that the place where the hacking occurred was lighted by the moon and an electric post, the testimony of Ever as to the identity of the killer and the victim, and how the killing was executed, must stand.

Further, the alleged inconsistencies with respect to the presence of appellant's mother in the place where the hacking took place, and the distance between the nipa hut where Ever rested and the area where the hacking took place, are minor inconsistencies and trivial matters that serve to strengthen rather than weaken the credibility of Ever for they erase the

suspicion of rehearsed testimony. Also, they are not material in the instant case since none of them is an essential element of murder.27

More importantly, the RTC had observed that Ever was candid, straightforward and credible in giving his testimony on the witness stand. It found Ever to be unbiased since he was neither a friend nor an enemy of appellant and Norman but just a mere neighbor. It also found that there was no ulterior motive for him to testify against appellant.28

It is a well-settled doctrine in our jurisprudence that when the credibility of a witness is in issue, the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect.29This is because the trial court has the unique opportunity to observe the demeanor of a witness and is in the best position to discern whether they are telling the truth.30 It is worth stressing at this point that the Court of Appeals affirmed such findings of the RTC. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.31 We find no compelling reason to deviate from such findings of the RTC and the Court of Appeals.

On another point, appellant contended that he merely acted in self-defense when he hacked Norman to death.

We disagree.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril.32 It is an act positively strong showing the intent of the aggressor and not merely a

threatening or intimidating attitude.33 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked.34

There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon.35 In order to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.36

In the instant case, there was no unlawful aggression on the part of Norman that justified the act of appellant in hacking him to death. There was no actual or imminent danger on the life of appellant when he came face to face with Norman. As narrated by Ever, Norman was just walking on the road and was not provoking appellant into a fight. It was the appellant who approached and suddenly hacked Norman repeatedly even when the latter was already fallen on the ground. In short, appellant was the unlawful aggressor.

Even if this Court were to adopt the version of facts of appellant, the result or conclusion would be the same.

Appellant alleged that he was resting inside his house when he heard Norman shouting invectives against him and challenging him to a fight. When he went outside the house to pacify Norman, the latter slapped the back of his head and brought out an ice-pick. Appellant retreated and when Norman tried to follow him inside the house, he took a bolo and repeatedly hacked Norman. The foregoing circumstances does not justify the act of appellant in hacking Norman. Obviously, mere shouting of invectives and challenging one to a fight does not put one's life in actual or imminent danger. In the same vein, mere slapping of one's head does not place a person's life in serious danger such that it compels him to use a bolo and hack the offender.

As regards the brandishing of an ice-pick, appellant had several less harmful means of avoiding the same as he was not cornered or trapped. He could have run inside his house and locked the door, or, called the neighbors or authorities for help. Unfortunately, appellant did not avail himself of any of those options and instead chose to hack Norman. Quite conspicuously, no convincing evidence was presented to show that Norman was, indeed, armed with an ice-pick at the time of the incident. In fact, no ice-pick was found in the crime scene nor in the body of Norman. There was also no proof adduced showing that Norman attempted to stab appellant or tried to barge into the latter's house.37

The fact that appellant sustained an injury on his head, allegedly caused by Norman's ice-pick, does not signify that he was a victim of unlawful aggression or that he acted in self-defense.38 The physician who treated appellant testified that the latter was diagnosed on 26 October 1999, the day after the hacking incident; that appellant was discharged on the same day he was treated in the hospital since he was only an out-patient; and that at the time he

examined the head injury of appellant, it was already on its healing stage.39 It is clear from the foregoing that appellant's head injury was not serious or severe. The cause of the same is likewise doubtful. Thus, the superficiality of the injury sustained by appellant is no indication that his life and limb were in actual peril.40

In stark contrast, Norman was almost decapitated and sustained fatal injuries on the head and neck. All in all, Norman sustained seven fatal wounds, most of them located at the head and neck. Based on the foregoing, it is difficult to believe that Norman was the unlawful aggressor. The gravity, location, and number of wounds sustained by Norman are eloquent physical evidence showing a determined effort on the part of appellant to kill Norman, and not just to defend himself.41

Time and again, we held that unlawful aggression is a sine qua non for upholding the justifying circumstance of self-defense.42 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-defense.43 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated even if the other elements are present.44 To our mind, unlawful aggression is clearly absent in the case at bar.

The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.45

The act of appellant in repeatedly hacking Norman on his head and neck was not a reasonable and necessary means of repelling the aggression allegedly initiated by the latter. As stated earlier, no convincing evidence was presented to show that Norman was armed with an ice-pick at the time of the incident. In fact, no ice-pick was found in the crime scene or in the body of the victim. There was also no proof showing that Norman attempted to stab appellant or tried to barge into the latter's house. Granting arguendo that Norman was armed with an ice-pick, the repeated hackings were not necessary since he can overpower or disable Norman by a single blow on non-vital portion/s of his body.

Again, as correctly observed by the OSG, had the appellant merely wanted to protect himself from what he perceived as an unlawful aggression of Norman, he could have just disabled Norman.46 When Norman fell on the ground, appellant should have ceased hacking the former since the alleged aggression or danger no longer exists. By appellant's own testimony, however, he hacked Norman with his bolo even when the latter was already lying on the ground. It appears, therefore, that the means used by appellant, which were simultaneous and repeated hackings, were adopted by him not only to repel the aggression of Norman but

to ensure the latter's death. In sum, such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression.

Like an alibi, self-defense is inherently weak for it is easy to fabricate.47 Thus, this Court had consistently ruled that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-defense.48 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.49 In the instant case, appellant failed to discharge such burden with clear and convincing evidence. Therefore, his plea of lawful self-defense must fall.

With regard to the second issue, appellant contended that there was no treachery that qualified his act to murder in the absence of direct evidence showing that his attack on Norman was sudden; that Norman was not deprived of an opportunity to defend himself; and that appellant did not employ treachery to insure the execution of the crime.

Appellant's contention is bereft of merit.

Treachery is a sudden and unexpected attack under circumstances that render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack.50 It is as an aggravating circumstance that qualifies the killing of a person to murder. Article 14, paragraph (16) of the Revised Penal Code states the concept and essential elements of treachery as an aggravating circumstance, thus:

ART. 14. Aggravating circumstances. - The following are aggravating circumstances:

x x x x

16. That the act be committed with treachery (alevosia).

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 specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

As can be gleaned from the foregoing, two essential elements/conditions are required in order that treachery may be appreciated: (1) The employment of means, methods or manner of execution that would insure the offender's safety from any retaliatory act on the part of the offended party, who has, thus no opportunity for self-defense or retaliation; and (2) deliberate or conscious choice of such means, methods or manner of execution. Further, it must always be alleged in the information and proved in trial in order that it may be validly considered.51

In the case at bar, treachery was alleged in the Information against appellant. Moreover, all the essential elements/conditions of treachery were established and proven during the trial.

Appellant, while holding a bolo, had waited for the dark to set in before making his move so that nobody, especially Norman, would notice his impending attack. When he saw Norman, alone and unarmed, casually walking near an auto repair shop, he followed him surreptitiously. Later, appellant came out and approached the unsuspecting Norman, who, in turn, faced the former. Appellant took advantage of the stunned and hapless Norman by swiftly hacking him with a bolo. As the assault was sudden and unexpected, Norman was forced to move backwards and raise his left arm to shield his face but it was too late. Norman's left arm was immediately hit by the bolo. When Norman turned his back on appellant and tried desperately to run, appellant hacked him again at the back causing him to fall on the ground. As the bloodied and moaning Norman was lying on the ground, appellant unleashed his full wrath by repeatedly hacking him on the neck and head. Upon noticing that Norman was no longer moving and was, in fact, almost decapitated, he stopped the hacking and fled the scene.

As viewed from the foregoing, the suddenness and unexpectedness of the appellant's attack rendered Norman defenseless, vulnerable and without means of escape. Appellant's use of nighttime and a deadly bolo, as well as the sudden attack and repeated hackings on the vital portions of Norman's body, were especially adopted by him to immediately cripple Norman and prevent him from retaliating or escaping. Appellant deliberately adopted them in order to overpower the much younger, taller, and larger Norman. Considering that Norman was alone and unarmed, there was absolutely no way for him to defend himself or escape. Further, the fact that Norman sustained several fatal wounds while appellant allegedly sustained a single superficial wound on his forehead shows that Norman was not able to retaliate or defend himself. Given the foregoing, there is no doubt in our minds that appellant intended and was determined to kill Norman.

Appellant, however, asseverated that there was no treachery since the attack was frontal or face to face, such that Norman had been forewarned of the attack and, thus, placed him in a position where he can defend himself. Appellant also claimed that there was a quarrel between him and Norman prior to the hacking incident which, in effect, negate treachery since it disproved the fact that the attack was sudden and unexpected. We are not persuaded.

There is no dispute that Norman was facing appellant at the time of the first blow. Subsequently, however, Norman turned his back and tried to run but he was hacked at the back, and when he fell on the ground, he was hacked again repeatedly. It is settled that treachery is to be appreciated when the victim was initially attacked frontally, but was attacked again after being rendered helpless and had no means to defend himself or to retaliate.52 As long as the attack was sudden and unexpected, and the unarmed victim was not in a position to repel the attack, there is treachery.53

The quarrel between Norman and appellant prior to the hacking incident does not negate treachery. It is true that there is no treachery if the killing was preceded by an altercation or dispute. The same, however, does not apply in the instant case. The misunderstanding between the two occurred on 22 October 1999. This was settled before their barangay officials on the morning of 25 October 1999. Cooler heads then had already set in. In fact, the two shook hands before the same barangay officials. Thus, there was no reason for Norman to suspect that appellant still held a grudge against him and to prepare or anticipate appellant's retaliation. It must also be noted that no conversation or struggle occurred between them shortly before the hacking incident.

Appellant argued that if his plea of self-defense cannot be considered, he is still entitled to the mitigating circumstances of sufficient provocation on the part of the offended party and voluntary surrender under Article 13 paragraphs (4) and (7) of the Revised Penal Code, respectively.

We reject these contentions.

Article 13 paragraph (4) of the Revised Penal Code provides that a person's criminal liability may be mitigated if there was a sufficient provocation or threat on the part of the offended party which immediately preceded the crime. Before the same can be appreciated, the following elements must concur: (1) That the provocation or threat must be sufficient or proportionate to the crime committed and adequate to arouse one to its commission; (2) That the provocation or threat must originate from the offended party; and (3) That the provocation must be immediate to the commission of the crime by the person provoked.

Norman did not in any way provoke appellant into a fight on that fateful night. There was no argument or physical struggle that ensued between them shortly before appellant hacked Norman with a bolo. Norman was innocently walking along the road when, all of a sudden, appellant surfaced and hacked him in rapid succession. The alleged altercation between the two occurred much earlier (22 October 1999) as to reasonably and sufficiently incite the appellant to act the way he did. In the absence of sufficient provocation on the part of the offended party, appellant's assertion of mitigating circumstance cannot be sustained. Moreover, and more importantly, this ordinary mitigating circumstance cannot offset the qualifying aggravating circumstance of treachery which is present in the instant case.

Likewise, appellant is not entitled to the mitigating circumstance of voluntary surrender. Article 13, paragraph (7) of the Revised Penal Code states that the offender's criminal liability may be mitigated if he voluntarily surrendered to a person in authority or his agents. Accordingly, the essential elements of voluntary surrender are: (1) that the offender had not been actually arrested or apprehended; (2) that the surrender was voluntary and spontaneous; and (3) that the offender surrendered himself to a person in authority or his agent.

Appellant was already apprehended for the hacking incident by the barangay officials of Lipa City just before he was turned over to the police by a certain Tomas Dimacuha.54 Assuming that appellant had indeed surrendered to the authorities, the same was not made spontaneously.55 Immediately after the hacking incident, appellant, instead of proceeding to the barangay or police, went to his brother, Sherman Beltran, in Bauan, Batangas, and the next day, to his sister in Lipa City. It took him three long days to surrender to the police authorities.56Moreover, the flight of appellant and his act of hiding until he was apprehended by the barangay officials are circumstances highly inconsistent with the spontaneity that characterizes the mitigating circumstance of voluntary surrender.57

As to the last issue, appellant insisted that the trial court has awarded excessive damages in favor of Norman's heirs. He argued that there was no proof or justification for the same.

When death occurs due to a crime, the following damages may be awarded: (1) a civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.58 Thus, we agree with the Court of Appeals that the award of P50,000.00 for civil indemnityex delicto to Norman's heirs is proper without need of proof other than appellant's commission of murder that resulted in Norman's death.59 Likewise, we agree with the Court of Appeals that moral damages should be awarded since Normita testified during the trial that she suffered moral shock and wounded feelings because of the brutal and sudden death of Norman. However, we deem it necessary to reduce the amount of the same fromP75,0000.00 to P50,000.00.

Normita claimed that she spent a total amount of P61,080 for the burial and funeral expenses of Norman. However, the receipts on record shows that only an amount of P18,420.82 was spent therein.60 Normita's claim of expenses for the food, drinks, flowers, chairs and tables during the funeral and burial of Norman, as well as the traditional 40 days prayer thereafter, were not supported by any receipts. These expenses are merely written, listed, and signed by Normita in one sheet of yellow paper, and submitted as evidence in the trial court. Thus, as general rule, Normita is entitled only to an amount of P18,420.82 since actual damages may be awarded only if there are receipts to support the same. However, in the case of People v. Dela Cruz,61 this Court declared that when actual damages proven by receipts during the trial amount to less than P25,000.00, such as in the present case, the award of temperate damages for P25,000.00, is justified in lieu of actual damages for a lesser amount. This Court ratiocinated therein that it was anomalous and unfair that the heirs of the victim who tried but succeeded in proving actual damages to less P25,000.00 only would be in a worse situation than those who might have presented no receipts at all but would be entitled to P25,000.00 temperate damages. Thus, instead of P18,420.82, an amount ofP25,000.00 as temperate damages should be awarded to the heirs of Norman. Actual damages for loss of earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate the same.62Although there are exceptions to this rule, none is availing in the present case.63

Moreover, exemplary damages in the amount of P25,000.00 should be awarded in this case since the qualifying circumstance of treachery was firmly established.64

WHEREFORE, the Decision of the Court of Appeals dated 31 March 2005 is hereby AFFIRMED withMODIFICATIONS: We award Norman's heirs civil indemnity of P50,000.00 for Norman's death; moral damages, in the amount of P50,000.00; temperate damages, in lieu of actual damages, in the amount of P25,000.00; and lastly, exemplary damages in the amount of P25,000.00.

SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

Manila

SECOND DIVISION

G.R. No. 70639 June 30, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.PEDRO DOLLANTES, HAMLET DOLLANTES, ALFREDO DOLLANTES, LAURO DOLLANTES, MONICO DOLLANTES, SIDRITO LOKESIO, MERLANDO DOLLANTES, HUGO GRENGIA, DANNY ESTEBAN AND LEONILO VILLAESTER, accused-appellants.

PARAS, J:

This is an appeal from a decision of the Regional Trial Court of Dumaguete City, 7th Judicial Region, Branch XL, in Criminal Case No. 5832, convicting the nine (9) accused, Pedro Dollantes, Hamlet Dollantes, Lauro Dollantes, Monico Dollantes, Sidrito Lokesio, Merlando Dollantes, Hugo Grengia, Danny Esteban and Leonilo Villaester, all equally guilty of the complex crime of "Assault upon a Person in Authority Resulting in Murder" and sentencing the abovementioned accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased, jointly and severally, the sum of P30,000.00 to pay attomey's fees in the amount of P3,000.00 and to pay the costs.

All of the accused were charged as follows:

That on or about the 21st day of April 1983 at nighttime, in the Municipality of Tayasan, Province of Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and helping one another with evident premeditation and treachery, and with intent to kill did then and there, willfully, unlawfully and feloniously attack, assault and stab one Marcos Gabutero, Barangay Captain of Maglihe, Tayasan, Negros Oriental, an agent of a person in authority and which fact accused had full knowledge, while the latter was in the lawful performance of his official duty or function as Barangay Captain or on the occasion of such function, with a bolo and hunting knives with which the accused were then armed and provided, thereby inflicting the following wounds in the victim, viz:

1. Stab wound measuring three and a half (3 1/2) cm. in length and half (1/2) cm. in width, ten (10) cm. depthness located at the left anterior aspect of the trunk at the level of the 3rd intercostal space, 5 cm. away from the anterior mid-line. The wound was oriented horizontally and directed vertically and slightly to the back. Ventricle and lung tissue penetrated.

2. Stab wound measuring four (4) cm. in length, 1 cm. in width, eleven and a half (11 1/2) cm. depthness, located at the right anterior aspect of the trunk, at the level of the 2nd intercostal space about five (5) cm. away from the anterior and midline, the wound was oriented horizontally and directed downward and slightly to the back.

3. Incised wound five (5) cm. in length, 1 cm. in width located at the left anterior aspect of the trunk about 26 cm. below the left clavicle and four (4) cm. away from the anterior mid-line. The wound was oriented obliquely.

4. Incised wound measuring two (2) cm. in length and one (1) cm. in width, located at the right anterior aspect of the trunk about twenty-one (21) cm. below the right clavicle and eight (8) cm. away from the anterior line. The wound was oriented obliquely.

5. Incised wound measuring one and a half (1 1/2) cm. in length, half (1/2) cm. in width located at the anterior aspect of the upper extremity about nine (9) cm. above the wrist

joint one and a half (1 1/2) cm. away from the anterior mid-line and medially. The wound was oriented vertically.

6. Incised wound measuring four (4) cm. in length, 1 cm. in width located at the lateral aspect of the right upper extreme about five (5) cm. above the elbow joint and five (5) cm. away from the posterior midline laterally. The wound was oriented horizontally.

7. Through and through stab wound located at the left upper extremity the wound of entrance measuring about three and a half (3 1/2) cm. in length and one (1) cm. in width located at the posterior aspect of the forearm above five (5) em. below the elbow joint, three (3) cm. away from the anterior mid-line medially. The wound was oriented vertically.

8. Incised wound measuring 3 cm. in length half (1/2) cm. in width located at the lateral aspect of the left upper extremity about five (5) cm. below the elbow joint and (5) cm. away from the posterior mid-line. The wound was oriented horizontally.

9. Stab wound measuring one and one-half (1 1/2) cm. in width and four (4) cm. depthness located at the left anterior aspect of the trunk, about seven and a half (7 1/2) cm. above the ihac crest and twelve (12) cm. away from the anterior mid-line. The wound was oriented obliquely and directed downward, slightly to the right and posteriority, perforating part of the intestine.

10. Stab wound measuring three (3) cm. in length, one (1) cm. in width and seven and a half (7) cm. in depthness, located at the left posterior of the trunk about three (3) cm. above the lower angle of the scapula, and seven (7) cm. away from the posterior mid-line. The wound was oriented obliquely and directed downward and slightly to the left.

11. Stab wound measuring three(3) cm. in length, one (l) cm. in width and twelve (12) cm. in depthness, located at the left posterior aspect of the trunk about thirteen (13) cm. below the lower angle of the scapula and six (6) cm. away from the posterior mid-line. The wound was oriented obliquely and directed anteriority to the left.

12. Hemothorax on the left pleural cavity, which wounds caused the latter's untimely death.

Contrary to Art. 248, 148 and 48 of the Revised Penal Code.

(Information, Original Record, pp. 3-4)

The findings of facts of the trial court are as follows:

That deceased Marcos Gabutero at the time of his death was the Barangay Captain of Barangay Maglihe, Tayasan, Negros Oriental; that due to the approaching fiesta of barangay Maglihe, a dance was held in said barangay in the evening of April 21, 1983; that while the Barangay Captain was delivering a speech to start the dance, the accused Pedro Dollantes went to the middle of the dancing floor, making a dance movement known in the visayan as "nagkorantsa", brandishing his knife and challenging everyone as to who was brave among the people present; the Barangay Captain approached Pedro Dollantes and admonished him to keep quiet and not to disturb the dance. However, the accused, instead of heeding to the advice of the Barangay Captain, stabbed the latter on the left arm; that accused Hugo Grengia held the left hand of accused Pedro Dollantes and Dionilo Garol was able to get from the hand of Pedro Dollantes the hunting knife. Immediately thereafter, accused Hamlet Dollantes, who rushed towards the Barangay Captain, stabbed the Barangay Captain at the back and the other co-accused also took turns in stabbing the Barangay Captain; the Barangay Captain at that time was not armed. Except for the accused Hugo Grengia, Danny Esteban and Leonilo Villaester who were merely holding stones, the other co-accused participated in the stabbing incident. When the Barangay Captain fell to the ground and died, the accused in this case took turns in kicking the dead body of the Barangay Captain and were dancing around said dead body; that the Barangay Captain suffered eleven (11) wounds in the different parts of his body, two of which happened to be at the back of his dead body. According to the attending physician, Dr. Rogelio Kho who examined the body of the deceased, the victim died of "Severe hemorrhage and cardiac tamponade due to stab wounds." (Decision, Crim. Case No. 5832, Rollo, p. 75).

The evidence for the prosecution consisted principally of the testimonies of Dionilo Garol, Bonifacio Cero, Marciana Gabutero, the wife of the deceased, Pat. Ricardo Barrera, Dr. Rogelio Kho who conducted the post mortem examination of the deceased, Ponsimillo Balasabas, the Municipal Treasurer of Tayasan, Negros Oriental and Pat. Jose Amis of the Integrated National Police.

On the other hand, the defense presented the following witnesses: Accused: Hugo Grengia, Leonilo Villaester, Danny Esteban, Alfredo Dollantes, Hamlet Dollantes, and other witnesses: Machim Dollantes and Tacio Fausto.After a careful evaluation of the evidence, the trial court was convinced that all the accused in this case conspired in the commission of the crime.

Thus on February 20, 1985, the trial court rendered its decision finding all the accused guilty of the complex crime of assault upon a person in authority resulting in murder. The dispositive portion of the decision reads as follows:

WHEREFORE, the prosecution having proven the guilt of all the accused beyond reasonable doubt, this Court hereby finds the accused Pedro Dollantes, Hamlet Dollantes, Alfredo Dollantes, Lauro Dollantes, Monico Dollantes, Sidrito Lokesia, Merlando Dollantes, Hugo Grengia, Danny Esteban and Leonilo Villaester, guilty of the complex crime of assault upon a person in authority resulting in murder, and hereby sentences the above-mentioned accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of Marcos Gabutero, jointly and severally, the sum of Thirty Thousand (P30,000.00) PESOS, to pay attorney's fees in the amount of Three Thousand (P3,000.00) Pesos, and to pay the costs of the proceedings.

SO ORDERED. (RTC Decision, Rollo, p. 79)

From the aforementioned decision, all the accused appealed. Accused Hugo Grengia submitted a separate brief.

The appellant raised the following assignment of errors:

FIRST ERROR

THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDIT TO THE BIASED, INCREDIBLE AND CONTRADICTORY STATEMENTS OF THE PROSECUTION WITNESSES DIONILO GAROL, BONIFACIO CERO AND MARCIANA GABUTERO AND IN NOT CONSIDERING AT LEAST THE UNCONTRADICTED TESTIMONY OF INDEPENDENT WITNESSES DOLLANTES AND TACIO FAUSTO.

SECOND AND THIRD ERRORS

THE TRIAL COURT ERRED IN NOT GIVING WEIGHT TO THE EXPERT PROSECUTION WITNESS DR. ROGELIO R. KHO WHICH IN EFFECT

CONTRADICTS THE THEORY OF THE PROSECUTION AND THAT THE TRIAL COURT ERRED IN DECIDING THAT CONSPIRACY EXISTS.

FOURTH ERROR

THE TRIAL COURT ERRED FROM NOT GIVING WEIGHT TO THE TESTIMONY OF ACCUSED HUGO GRENGIA, LEONILO VILLAESTER alias "Laon," DANILO ESTEBAN, HAMLET DOLLANTES, ALFREDO DOLLANTES AND THE TESTIMONY OF INDEPENDENT WITNESSES TACIO FAUSTO AND MCLEAN DOLLANTES.

FIFTH ERROR

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE COMPLEX CRIME OF ASSAULT UPON A PERSON IN AUTHORITY RESULTING TO MURDER AND SENTENCING THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA AND TO INDEMNIFY THE HEIRS OF MARCOS GABUTERO, JOINTLY AND SEVERALLY, THE SUM OF THIRTY THOUSAND (P30,000.00) PESOS, and TO PAY THE COSTS OF THE PROCEEDINGS. (Brief for Accused-Appellant, Rollo, p. 62)

In his separate brief, accused Hugo Grengia assigns the following errors:

1. The lower court erred in not giving weight and credence to the admission of accused-appellant Hamlet Dollantes that he was the lone perpetrator of the alleged stabbing of victim Marcos Gabutero.

2. The lower court erred in not considering the testimonies of prosecution witnesses, namely: Patrolman Ricardo Barrera, Dr. Rogeho Kho which in effect buttressed the theory of the defense.

3. The lower court erred in not considering the entry in the police logbook of the Tayasan Integrated National Police, dated April 21, 1983, as testified to by Patrolman Jose Amis.

4. The lower court erred in holding that conspiracy exist in perpetration of the felony.

5. The lower court erred in holding that the case of People vs. Agag (L-64951, June 29, 1984) is applicable to the case at bar to justify the conviction of the accused-appellants.

6. The lower court erred in not giving weight and credence to the testimony of the defense witnesses.

7. Finally, the trial court erred in holding that the accused-appellant herein is guilty of the crime charged. (Brief for accusedappellant Hugo Grengia, pp. 1-2)

The appeal is without merit.

The issue hinges on the credibility of witnesses.

The accused were positively identified by three (3) prosecution eye witnesses. They were: Dionilo Garol, Bonifacio Cero and Marciana Gabutero, the wife of the victim. Except for the latter, the two other witnesses Garol and Cero are not related to the victim or the accused. The testimonies of these three (3) witnesses were subjected to a lengthy cross-examination and were found credible and free from material contradictions by the trial court (Rollo, p. 75).

Dionilo Garol who was six (6) meters away, saw clearly what happened. He testified that when the Barangay Captain started to deliver his speech, the accused Pedro Dollantes brandishing a knife shouted "Who is brave here?" (TSN, page 6, Oct. 7, 1983). The victim then approached to admonish him t the latter stabbed the victim on the arm. Garol immediately approached the accused Pedro Dollantes and tried to wrest the knife away from the hand of the accused. The accused Hugo Grengia also tried to grab the knife but it was Garol who succeeded. The accused Grengia then told him "Do not try to intervene because you might be included in the plan." (TSN, page 8, Oct. 17, 1983). Then Grengia made some signs by nodding his head and the accused Hamlet Dollantes and Alfredo Dollantes rushed to and attacked the victim followed by the other co-accused in this case who also rushed at and stabbed the victim. He specified that accused Alfredo Dollantes, Lauro Dollantes, Monico Dollantes and Sidrito Lokesio were carrying knives while the accused Merlando Dollantes was carrying a bolo; and that they stabbed the victim one after another. He said that the accused Danny Esteban, Hugo Grengia andLeonilo Villaester were all carrying stones which they threw at the store of the victim's wife (TSN, pp. 7-10; Oct. 17, 1983).

This testimony was fully corroborated by another prosecution eyewitness Bonifacio Cero who was about three (3) meters away and whose narration tallied on all material ints with that of Dionilo Garol as to what transpired that night. He stated further that when he saw the Barangay Captain being stabbed he tried to approach the group but he was held by Danny Esteban who said "do not try to interfere, you are not a party to this. We have already gotten what we have been aiming for." (TSN, page 12, Oct. 18, 1983). Thereafter, he ran away but Alfredo Dollantes, Pedro Dollantes and Danny Esteban stoned him because they intended to kill him also. He also testified that when he returned to the crime scene, he saw Hugo Grengia, Danny Esteban and companions simultaneously kicking the dead body and shouting "who is brave among here. "

Marciana Gabutero, the wife of the victim funy corroborated the testimonies of Garol and Cero. She also added that Hugo Grengia wanted to be a Barangay Captain and she happened to know that as a fact, because he told the crowd not to long as Barangay Captain. She also testified that the accused Leonilo Villaester splashed one glass of tuba on the face of the deceased and that the victim had had a misunderstanding with the Dollantes on a theft case involving Hamlet Dollantes (Rollo, pp. 68-69).

It will be noted that the above witnesses were categorical and straightforward when they stated that they saw appellants stab the victim. They even specified the type of weapon used by each of said appellants.

There is no possibility that they could have been mistaken in their Identification for apart from being near the crime scene which was well illuminated with two Petromax lamps (TSN, page 6, Oct. 19, 1983), these witnesses are familiar with the appellants since they are all residents of the same locality. Furthermore, there is no showing that the witnesses had any motive to testify falsely against the appellants.

In fact, under similar circumstances, the Court has held that where the scene of the stabbing was clearly lighted and no motive was shown why prosecution witnesses would incriminate the appellants, identification would be given full faith and credit (People v. Escoltero, 139 SCRA 218).

The theory of the defense in this case is that it was only the accused Hamlet Dollantes who stabbed the victim while the other accused did not participate in the stabbing incident (Rollo, pp. 75-76).

In an attempt to disprove the findings of the trial court, appellants pointed out that there are certain inconsistencies that render the testimonies of prosecution witnesses, incredible.

For one thing they claim that Dionilo Garol could not have een Hamlet Dollantes stab the victim because as Garol himself stated, when said accused rushed towards the victim, he ran away. The evidence shows however, that Garol clearly testified that he saw au of them stab the Barrio Captain, one after another and it was only after the Barrio Captain fell to the ground that he ran towards the municipal hall to report the incident to the police (TSN, page 11, Oct. 17, 1983).

Another circumstance allegedly raising grave doubts on the credibility of Dionilo Garol was his failure to report to the police authorities the fact of stoning (Rollo, pp. 71-72).

However, the fact of stoning was not the means used to kill the victim and the omission of the same in the narration in the report does not detract from the established fact that the victim was stabbed several times which caused his death.

It was also pointed out that Dionilo Garol testified that the store of the victim's wife was stoned while Bonifacio Cero also testified that he was the one being stoned.

There appears to be no inconsistency between the two testimonies. The fact that the store of the victim's wife was stoned does not preclude the possibility that Bonifacio Cero was also stoned.

Finally, appellants maintain that Bonifacio Cero could not have seen with precision the stabbing of the victim while he was being hugged by Danny Esteban and he had a feeling that he would be killed by the group. Much less could it be possiblefor accused Danny Esteban, Leonflo Villaester, Sidrito Lokesio and Alfredo Dollantes who were at the store of Severina Cadillero, to join in stabbing the victim, the appellants argued (Rollo, pp. 73-74).

The records show that Cero testified that he saw appellants stab the deceased before he was embraced by appellant Danny Esteban who told him "do not interfere you are not a party to this. We have already gotten what we have been aiming for." (TSN, page 12, Oct. 18, 1983). Clearly, the language is unmistakable that in that at said point, the stabbing and the killing being described by all the witnesses had already been accomphshed.

Indeed, if there be any inconsistency or contradictions in their testimonies, the same are trivial and merely refer to minor matters which do not affect credibility. They do not detract from the essential facts or vital details of the crime pinpointing their criminal responsibility (Appellee's Brief, p. 16). As held by this Court, discrepancies in minor details are to be expected from an uncoached witness (People v. Arbois, 138 SCRA 31). Such minor variations would rather show the sincerity of the witnesses and the absence of connivance between them to make their testimonies tally in every respect (People v. Pielago, 140 SCRA 419, 423). Truth to tell, such trivial differences constitute fail-safe reliability.

Accused Hugo Grengia claims that the trial court erred in not giving weight to the admission of accused Hamlet Dollantes that he was the lone perpetrator of the killing incident (Brief for Accused-Appellant Hugo Grengia, p. 7). Thus the defense argues that the accused Pedro Dollantes, Alfredo Dollantes, Merlando Dollantes, Lauro Dollantes, Sidrito Lokesio, Monico Dollantes and Leonilo Villaester, did not stab the victim and were not at the scene of the crime and that it was only accused Hamlet Dollantes who stabbed the victim.

As found by the trial court, such claim is not supported by sufficient evidence. On the contrary, an entry in the Police Logbook (Exhibit "D") of the Integrated National Police of Tayasan, Negros Oriental, shows that one Gloria Callao, wife of the accused Lauro Dollantes, turned over to the police two (2) hunting knives owned by the accused Hamlet Dollantes and Alfredo Dollantes. Moreover, as correctly pointed out by the Solicitor General, such theory is behed by the Identification made by the prosecution witnesses and by the number and location of the victim's wounds which are mute evidence that several persons comn)itted the crime (People's Brief, p. 17).

As repeatedly held by the Supreme Court, the claim of alibi by the accused cannot prevail over positive Identification by credible witnesses (People v. Tirol, 102 SCRA 58); more so where as in the case at bar, it was not demonstrated that it was physically impossible for the accused to have been at the scene of said crime at the time of its commission (People v. Mercado, 97 SCRA 232).

On the other hand, the claim of Hamlet Dollantes of self-defense when he stabbed the victim is not sustained by the records. As found by the trial court, the victim was not armed at the time of the incident, so that there was no danger to the life and limb of the accused. The latter claims that he had to stab the victim who boxed him and would not release his wounded hand (Rollo, p. 76). Apart from the obvious disproportion of the means used to repel the alleged attack, three witnesses of the prosecution testified that the accused Hamlet Dollantes rushed towards the victim and stabbed the latter at the back. Said testimonies were corroborated by the Post Mortem Examination (Exhibit "A") and the Sketch (Exhibit "B") of the human body of the victim which showed a stab wound at the back. Furthermore, the nature, character, location and extent of the wound suffered by the victim, negates the accused's claim of self-defense. (People v. Tolentino, 54 Phil. 77). In fact, the eleven (11) wounds suffered by "he victim are indicative of aggression (People v. Somera, 83 Phil. 548; People v. Mendoza, L-16392, Jan. 30, 1965).

Accused-appellant Hugo Grengia submits that the prosecution failed to prove the existence of conspiracy. Among others, he pointed out that he was unarmed at the time of the incident, that his name was not mentioned in the report made by Dionilo Garol to Patrolman Barrera as to the perpetrators of the crime; that his name was not included in the entry in the police logbook of the Integrated National Police of Tayasan, Negros Oriental and that he had no participation in the commission ofthe felony except the alleged nodding of his head at a time when he was trying to wrest the knife from Pedro Dollantes which is not an indication of conspiracy (Brief for Grengia, pp. 13-16).

While it is true that the accused Hugo Grengia, Danny Esteban and Leonilo Villaester did not participate in the stabbing, the lower court finds them equally liable as principals with the other accused in this case. They were found to be holding stones which they threw at the store owned by the victim and his wife; they participated in kicking and dancing around the dead body of the Barangay Captain and although Grengia also tried to wrest the knife from Pedro Dollantes, he clearly told Dionilo Garol when the latter succeeded in getting the knife and was holding the hands of Pedro Dollantes, "do not try to intervene here because you might be included in the plan." (TSN, pp. 7-10, Octoer 17, 1983). Danny Esteban uttered the same statements to Bonifacio Cero, saying "do not try to interfere you are not a party to this. We have already gotten what we have been aiming or." (TSN, pp. 9-14, October 18,1983).

Furthermore, as previously stated, while the victim was delivering a speech, Hugo Grengia was telumg people not to listen to the victim as he will not stay long as a Barangay Captain. It

is also to be noted that although he was a compadre of the victim, he never tried to help the former while he was being stabbed and after the incident, he never visited the victim's family.

Thus, the lower court found the existence of conspiracy as follows:

The accused Hugo Grengia, Danny Esteban and Leonilo Villaester by their acts, aimed at the same object, and their acts, though apparently independent, are in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. The conduct of the defendants, before, during and after the commission of the crime clearly shows that they acted in concert. (People v. Emilio Agag, L-64951, June 29, 1984, Justice Relova) There being conspiracy, the Court finds them guilty of Murder. (Decision, Crim. Case No. 5832, Rollo p. 77)

In one case, this Court held "that while the acts done by the petitioners herein vary from those of their co-accused, there is no question that they were all prompted and linked by a common desire to assault and retaliate against the group..... Thus, they must share equal liability for all the acts done by the participants in the felonious undertaking." (Pring v. Court of Appeals, 138 SCRA 185-186 [1985]).

Appellant Hugo Grengia lays much stress on the testimony of Dr. Rogeho Kho that it is possible that all the stab wounds were inflicted by the same weapon, in a desperate effort to show that only one person committed the crime and that there is no conspiracy.

The records show however, that said Doctor merely replied to he questions propounded by the defense lawyer as to the different possibilities on how the wounds of the victim may have been inflicted. But testifying specifically on the case at bar, he categorically stated that actually the wounds could be produced by a single bladed weapon with different sizes but not necessarily only a single bladed weapon.

Thus, the Doctor testified as follows:

Atty. Jayme:

Q Basing upon your physical findings, Doc, upon the victim Marcos Gabutero, is it possible Doc, that in accordance with your drawing that the wounds inflicted was caused by a single bladed weapon, is it possible, Doctor, that this wound was caused by a single bladed weapon? Is it possible that this. I repeat the question, your Honor.

Q According to your drawing which is labelled "BS" which according to you "blunt and sharp bladed weapon which is practically single bladed weapon, according to your physical findings there is similarly in the weapons used, could we say practically, Doctor, that these stab wounds as well as those incised wounds may be caused by one single-bladed weapon?

A Actually it could be produced by a single bladed weapon with different sizes but not necessarily only a single bladed weapon.

Q According to you it was a single bladed weapon with different or several sizes, now, what is your honest observation upon your physical findings, what will be themaximum weapon used? I have here a zerox copy for your own reference.

A With respect to the length of the wound there are two wounds that have three em. in length, it could be possible that the same kind of weapon or instrument has been used. This refers to Wounds Nos.10 and 11. By the way, Sir, this refers to the stab wounds because the size of the incised wounds is difficult to determine.

Atty. Jayme:

Yes, the stab wounds only.

A It's hard to determine Wound No. 9 because the length is not indicated here, so it is possible that there are 3 or 4 kinds of instrument or weapons being used. (TSN, pp. 26- 27, December 15, 1983)

Appellant Hugo Garcia also emphasizes the testimony of Dr. Kho that the latter did not observe any contusions on the body of the deceased, obviously to disprove that appellants danceda round and kicked the body after the victim was slain.

As correctly observed by the Solicitor General, "although the examining doctor failed to find any contusion or abrasion on the cadaver of the victim, nevertheless, such absence is not conclusive proof that appellants did not kick the deceased. It might be possible that kicks did not cause or produce contusions or abrasions or that they were not noticed by the doctor."

(Appellee's Brief, p. 22). Moreover, the fact of dancing and kicking complained of, is only one of the acts showing conspiracy, without which, conspiracy cannot be said not to have been established.

The lower court also found that treachery was present in the commission of the crime, and that the accused Alfredo Dollantes, Lauro Dollantes, Monico Dollantes, Sidrito Lokesio and Merlando Dollantes are as equally guilty as principals by direct participation. These accused took turns in stabbing the victim. In fact the victim was caught by surprise and did not have time to defend himself.

Finally, the records show that the Barangay Captain was in the act of trying to pacify Pedro Dollantes who was making trouble in the dance hall when he was stabbed to death. He was therefore killed while in the performance of his duties. In the case of People v. Hecto (135 SCRA 113), this Court ruled that "As the barangay captain, it was his duty to enforce the laws and ordinances within the barangay. If in the enforcement thereof, he incurs, the enmity of his people who thereafter treacherously slew him the crime committed is murder with assault upon a person in authority."

There is no qeustion that the trial court's conclusions on credibilitY of witnesses are entitled to great weight on appeal. (People v. Oliverio, 120 SCRA 22). After a careful review of the records, no plausible reason could be found to disturb the findings of fact and of law of the lower court in this case.

PREMISES CONSIDERED, the assailed decision is hereby AFFIRMED.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Padilla, Bidin and Cortes, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Manila

EN BANC

G.R. No. L-52787 February 28, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JESUS HECTO, PEDRO HECTO and LORETO HECTO, accused, PEDRO HECTO and LORETO HECTO,defendants-appellants.

The Solicitor General for plaintiff-appellee.

Oscar Bati for defendants-appellants.

RELOVA, J.:

From the decision of the then Court of First Instance of Leyte, rendered after trial in Criminal Case No. 1093, finding accused Pedro Hecto and Loreto Hecto guilty beyond reasonable doubt of the crime of murder with direct assault upon a person in authority and sentencing "each of them to the death penalty to be executed at a date to be set and in the manner provided for by law and to jointly and severally indemnify the heirs of Barrio Captain Catalino Pedrosa (represented by Mrs. Caridad B. Pedrosa of San Isidro, Dulag, Leyte) in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency and to pay 2/6 of the costs," (p. 22, Rollo) the aforementioned accused have appealed to this Court.

Following are the facts.

Sometime in January or February 1972, brothers Jesus Hecto and Pedro Hecto slaughtered a carabao in barrio San Isidro, municipality of Dulag, Province of Leyte. They did not pay the corresponding tumbada or slaughter fee and upon learning of this non-payment, Barangay Captain Catalino Pedrosa asked him (Jesus) to pay the same. Jesus replied that he could not yet pay the required slaughter fee because those who bought meat from him had not also paid him yet. Thereafter, Pedrosa met Municipal Treasurer Benedicto de la Paz who informed him that according to the Hecto brothers they had already paid the slaughter fee to him (Pedrosa). Pedrosa denied having received the fee mentioned.

On February 27, 1972, Catalino Pedrosa and his wife went to visit their farm and on their way home, about 3:00 in the afternoon, they met Jesus and Pedro Hecto. Pedrosa confronted the two about the false information they gave the municipal official concerning the alleged payment of the slaughter fee to him. A heated discussion ensued and the Hectos tried to attack Pedrosa. Mrs. Caridad Pedrosa pulled her husband away and the trouble was averted.

About 6:00 in the afternoon of March 24, 1972, Catalino Pedrosa left his house in barangay San Isidro to accompany a two-year old nephew to the house of the child's parents. On his

way back, about 6:30 he was shot by Jesus Hecto and Pedro Hecto and thereafter stabbed by Marcial Hecto and Roberto Silvano.

Caridad Pedrosa at the time was in her house preparing supper. Upon hearing the sound of a gunfire, she immediately ran to the door. However, she was prevented from going down the house by Loreto Hecto and Faustino Silvano, son and nephew, respectively, of Jesus Hecto. They pointed their guns at her. Notwithstanding, Caridad, could see Jesus Hecto pointing a gun at her husband, Catalino Pedrosa, who was already lying on the ground face up. This was followed by Pedro Hecto who also fired his own gun at Pedrosa. Thereafter, Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano carried the victim to a nearby ditch where Roberto and Marcial took turns in stabbing him with their bolos. The four assailants then walked away. Loreto Hecto and Faustino Silvano who were at the door of the house of the Pedrosas guarding Caridad joined the four.

The police was informed of the incident. Acting Chief of Police Nerio dela Cruz, with several policemen, arrived at the scene of the incident at about 8:00 that evening. They found the dead Pedrosa with three gunshots and three stab wounds on his body.

During the trial of the case, the accused Jesus Hecto died shortly after he had testified. Accordingly, the case against him was dismissed by the court. Trial proceeded against Pedro and Loreto Hecto while their confederates: Roberto Silvano, Marcial Hecto and Faustino Silvano remained at large.

The defense of appellants Loreto Hecto and Pedro Hecto was denial. Loreto testified that at the date and time of the incident he was in his house two kilometers away from barangay San Isidro drinking tuba with his hired farm laborers, Pablo Lirios and Felicito Bico. In the morning of that day, March 24, 1972, his farm laborers plowed his cornfield until about 4:00 in the afternoon. He then offered them tuba which they drank together in his house. About 6:00, his sister Lolita arrived telling them that their father Jesus fought with Catalino Pedrosa. He then left for barrio San Isidro to see his parents and, as a precautionary measure, he brought his mother Maria Ganaron to his house.

Appellant Pedro Hecto declared that on March 23 and 24, 1972 he stayed in his house because the palay which was harvested on March 21 was being threshed by Beato Andrade and Victor Isyo. The threshing was finished about 11:00 in the evening of March 24. About 9:00 some members of the police force of Dulag went to his house looking for his brother Jesus Hecto. They left upon finding that he was not there. About an hour later, Jesus arrived and said that he had killed somebody and that he was going to town to surrender. After a few days, he (Pedro Hecto) left for Tacloban City where he worked as carpenter until he was arrested on June 17, 1972.

Appellants claim that the trial court erred (1) in relying on inadmissible evidence in making a finding of facts relevant to the judgment of conviction; (2) in rendering a judgment of

conviction even if their respective guilts were not proven beyond reasonable doubt; and (3) in finding that the crime of murder was committed with assault upon a person in authority.

With respect to the first assigned error, We agree with appellants that the sworn statement of Constancio Bollena who did not testify at the hearing should not have been admitted and considered by the trial court. In said affidavit, Bollena said that he was talking with Pedrosa when Jesus Hecto, Pedro Hecto, Loreto Hecto, Marcial Hecto, Roberto Silvano and Faustino Silvano arrived; that after Loreto Hecto and Faustino Silvano proceeded to Pedrosas house, Jesus Hecto immediately drew and fired his gun twice at Pedrosa; that Jesus then turned his attention to Bollena who ran away and succeeded in evading the shot fired at him by Jesus. As aptly stated by the Solicitor General in his brief, the affidavit of Bollena should not be considered in passing judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay evidence for the reason that Bollena never testified in court. Appellants did not have the opportunity to cross examine him and test his credibility. " (p. 167, Rollo)

However, the conviction of appellants Pedro Hecto and Loreto Hecto by the trial court was not entirely based on the affidavit of Bollena. There were the testimonies of Caridad Pedrosa and Mario Cadayong. Hereunder are the said testimonies of Caridad Pedrosa, wife of the victim-

Q You said that you were inside your house. Immediately after you heard the first gunshot, what did you do?

ATTY. SANTOS:

Answered already, Your Honor.

COURT:

Let her answer because her testimony on this point is not very clear.

FISCAL CABLITAS:

A I ran towards the door of the house.

Q And you said you were threatened by Loreto and Faustino with guns. Where were you threatened by them?

A I was threatened by the door of our house because I was not able to go down. When I opened the door they threatened me with guns.

xxx xxx xxx

Q Did you know what was that gun report-the fourth gunshot report about?

A Yes, sir.

Q What was it about?

A The gunshot was fired by Pedro Hecto. I could see him still holding the gun.

Q To whom was it aimed when you saw that gun which he fired?

A Towards my husband.

xxx xxx xxx

Q When this fourth gunfire was made, were Loreto and Faustino still pointing their guns at you?

A Yes, they were still pointing their guns at me.

Q How did you manage to see what was happening to your husband?

A Because I looked at the two (2) persons pointing their guns to me and at the same time I looked also at the place where my husband has fallen?

xxx xxx xxx

Q After your husband was fired upon by Pedro Hecto what happened after that?

A They lifted my husband to the culvert.

Q Who lifted your husband?

A The four (4) of them.44

Q Who?

A Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto Silvano.

xxx xxx xxx

FISCAL CABLITAS:

Q Your husband, as you said, was the barrio captain of your place at the time when he was gunned down by the accused and by the other persons charged in the information who are simply residents of the place who are supposed to be under him. Will you please ten the Court the reason why your husband was killed?

xxx xxx xxx

A It was in the month of January or February when Jesus Hecto slaughtered their carabao.

Q What year?

A 1972.

Q And then?

A My husband asked for the permit of slaughtering the carabao.

Q What is this "tumbada" in your local parlance?

A Whenever somebody slaughter a carabao, a certain amount is asked from them.

Q For what is this amount-where does this go?

A For the municipal treasurer.

Q Municipal treasurer or barrio treasurer?

A Municipal treasurer.

Q And then, was Jesus Hecto able to pay the 'tumbada' to the barrio captain, your husband?

A Jesus Hecto did not give the amount to my husband because according to Jesus Hecto, the persons who partook of the carabao did not pay him yet.

xxx xxx xxx

FISCAL CABLITAS:

I am asking for the motive, Your Honor.

COURT:

Witness is being asked on what she knows about the motive.

FISCAL CABLITAS:

A Benedicto de la Paz asked my husband about the amount as payment for the slaughter of the carabao as according to his information, the amount was already given to him.

Q As a result of this, do you know what happened on February 27, 1972, as a result of this 'tumbada' in questions?

A We were from our farm when we passed by Pedro and Jesus Hecto at the waiting shed.

Q And then?

A My husband confronted Jesus Hector by saying 'You have told there that you have already given the amount as payment for the slaughter of the carabao; but why did you tell them when you have not given me this amount yet?'

Q What happened after this?

A There was an exchange of words between my husband and Jesus Hecto.

Q And then?

A I held my husband because they were about to harm my husband.

Q Who were about to harm your husband?

A Pedro Hecto and Jesus Hecto.

Q What did you do?

A I held my husband and we went home.

Q And what did Jesus Hecto and Perdo Hecto do when you held your husband and you went home?

A He said 'Ikaw, Captain, ka nga estrikto, magkikita kita ha iba nga adlaw' Meaning, 'You, Bo. Captain, you are very strict. We will see each other some day.' (pp. 310, 311, 314, 315, 323, 324, 325, and 326, tsn., Hearing on January 28, 1975)

and of Mario Cadayong:

Q You said Catalino Pedrosa was killed, do you know how he was killed?

A Yes, sir.

Q How?

A He was shot.

Q By whom?

A He was shot by Jesus Hecto and Pedro Hecto.

Q Now you are talking about shots, you mean to say that there were guns during the incident �

A Yes, sir.

Q How many guns have you seen?

A Pedro and Jesus Hecto were having one gun each.

xxx xxx xxx

Q And when while you were running towards the coconut tree to take cover, you heard a second shot?

A I did not run because the coconut tree was very near. While I was going to that tree to hide I saw Jesus Hecto holding the gun and firing the second fire.

x x x x x x x x x

COURT:

Just answer the question whether Catalino Pedrosa died after quivering.

WITNESS:

A Not yet because he was still shot.

ATTY. TAN:

Q He was shot by whom?

A Pedro Hecto. (pp. 432, 433, 435 & 445, tsn., June 3, 1976 hearing)

xxx xxx xxx

COURT:

Will you describe to us in proper sequence what you saw from the time Jesus Hecto pointed his gun to Catalino Pedrosa who was already fallen on the ground shaking?

A Catalino was shot again by Pedro. Catalino Pedrosa was carried by Pedro Hecto, Jesus Hecto and Roberto Silvano to the ditch. After that, Catalino was stabbed by Roberto and after that he was again stabbed by Marcial. We were stepping backwards as we saw Man Caring pointed to with a gun by someone.

Q Who is Man Caring?

A Caridad Pedrosa.

Q Who was pointing a gun at Caridad Pedrosa?

A Loreto and Faustino.

xxx xxx xxx

Q How about Roberto? You said he stabbed Catalino. What weapon did he use in stabbing at your uncle?

A He used a pisaw, a small bolo. Maybe it was pisaw. (Witness indicating a length of one-third of a meter.)

xxx xxx xxx

Q Did you see Pedro Hecto actually fire upon Catalino Pedrosa?

A Yes, sir.

Q Was Catalino hit?

A Maybe, he was hit because Catalino was just in front of Pedro and whose position was lying face upwards.

Q When Jesus Hecto fired upon Catalino Pedrosa, referring to the second shot you saw, was Pedro around?

A Yes, sir. He was around. (pp. 243, 244, 245, 247, tsn., September 9, 1975 hearing)

xxx xxx xxx

Q When for the first time did you see Pedro Hecto in the scene of the incident?

A I saw them when they were going to the waiting shed. I saw Jesus Hecto, Pedro Hecto, Marcial Hecto, Roberto Silvano going to the waiting shed. (p. 450, tsn., June 3, 1976 hearing)

Thus, it is clear that Mrs. Caridad Pedrosa and Mario Cadayong saw the killing of the victim, Catalino Pedrosa Considering the concerted action of Jesus Hecto, appellants Pedro and Loreto Hecto, Marcial Hecto, Roberto and Faustino Silvano, conspiracy among them has been successfully established by the prosecution. While their companions were slaying the deceased, appellant Loreto Hecto and Faustino Silvano were by the stairs of the house of Catalino to prevent any assistance which could come therefrom. After they had accomplished their criminal or unlawful purpose, they left together. Time and again We have ruled that concert of action at the time of consummating a crime and the form and manner in which assistance is rendered to the person or persons inflicting the fatal wounds on their victim determine complicity where it would not be otherwise evident. In a conspiracy, all are liable for the acts of one.

The fact that appellants went into hiding after the incident is evidence of guilt. Pedro Hecto was arrested two months later in Tacloban City, while Loreto Hecto presented himself before the authorities in March 1974 or after two years. Their three companions have not yet been arrested up to now.

Against the testimony of the People's witnesses, appellants Loreto and Pedro Hecto claim that they were elsewhere when the killing took place. Well established is the rule that where the accused have been positively Identified by witnesses as perpetrators of the offense, the defense of alibi is futile and unavailing.

We now come to the contention of the defense that the trial court erred in convicting them of the complex crime of murder with assault upon a person in authority. They pointed out that when the barangay captain was killed he was not in actual performance of his official duties. Be that as it may, the fact is, the attack on the deceased was occasioned by the official duties done by him. As the barangay captain, it was his duty to enforce the laws and ordinances within the barangay. If in the enforcement thereof he incurs the enmity of his people who thereafter treacherously slew him, the crime committed is murder with assault upon a person in authority.

WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification that for lack of necessary votes the sentence is reduced to reclusion perpetua and the indemnity increased to P30,000.00. With costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Abad Santos, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.

Aquino, J., took no part.

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Manila

SECOND DIVISION

G.R. No. L-31839 June 30, 1980

EDMUNDO S. ALBERTO, Provincial Fiscal and BONIFACIO C. INTIA 1st Asst. Provincial Fiscal, both of Camarines Sur, petitioners, vs.HON. RAFAEL DE LA CRUZ, in his capacity as Judge of the CFI of Camarines Sur and ELIGIO ORBITA,respondents.

CONCEPCION, J.:

Petition for certiorari, with a prayer for the issuance of a writ of preliminay injunction, to annul and set aside the order of the respondent Judge, dated January 26, 1970, directing the petitioners, Provincial Fiscal and Assitant Provincial Fiscal of Camarines Sur, to amend the information filed in Criminal Case No. 9414 of the Court of First Instance of CamarinesSur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused," so as to include, as defendants, Governor Armando Cledera and Jose Esmeralda, assistant provincial

warden of Camarines Sur; as well as the order dated February 18, 1970, denying the motion for the reconsideration of the said order.

In Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, Eligio Orbita, a Provincial guard, is prosecuted for the crime of Infedelity in the Custody of Prisoner, defined and punished under Article 224 of the Revised Penal Code, committed, as follows:

That on or about the 12th day of September. 1968, in the barrio of Taculod, municipality of Canaman, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Provincial Guard of Camarines Sur and specially charged with the duty of keeping under custody and vigilance detention prisoner Pablo Denaque, did then and there with great carelessness and unjustifiable negligence leave the latter unguarded while in said barrio, thereby giving him the opportunity to run away and escape, as in fact said detention prisoner Pablo Denaque did run away and escape from the custody of the said accused. 1

In the course of the trial thereof, or more particularly during the cross-examination of prosecution witness Jose Esmeralda, assistant provincial warden of Camarines Sur, the defense brought forht and confronted the witness with a note, marked as exhibit, purportedly written by Gov. Armando Cledera, asking Jose Esmeralda to send five men to work in the construction of a fence at his house at Taculod, Canaman, Camarines Sur, then leased by the province and used as an official guest house. Jose Esmeralda, declared, however, that he could not remember who ahnded the note for him; that he was not sure as to genuineness of the signature appearing therein and that he was not preszent when the note was made and signed by Gov. Cledera. 2 Beleiving that the escape of Pablo Denaque was made possible by the note of Gov. Cledera to Jose Esmeralda and that Cledera and Esmeralda are equally guilty of the offense for which tha accused Eligio Orbita had been charged, the defense cousel filed a motion in court seeking the amendment of the information so as to include Gov. cledera and Jose Esmeralda as defendants therein. 3

Acting upon said motion, as well as the opposition of the prosecution officers 4 and finding that "the court cannot grant the motion or order the inclusion of Gov. Cledera and Lt. Esmeralda at this stage unless an investigation is made," the respondent Judge directed the Fiscals office, within 15 days from date, to cause the further investigation of the case, taking into consideration the provisions of Article 156 in relation to Articles 223 and 224 of the Revised Penal Code in order to determine once and for all whether the Governor as jailer of the Province and his assistant have any criminatory participation in the circumstances of Pablo Denaque's escape from judicial custody. 5

In compliance with said order, the Fiscal set the reinvestigation of the case for December 19, 1969. Summonses were issued to Gov. Cledera Jose Esmeralda, Lorenzo Padua, the provincial warden, and the accused Eligio Orbita to be present thereat. 6 Dr. went thereat But, on the date set for the reinvestigation of the case, only Gov. Cledera Jose Esmeralda and

Lorenzo Padua appeared. The accused Eligio Orbita did not appear. Neither was the note (Exhibit 2) produced. Since no additional evidence was presented, the Fiscal manifested in Court on January 2, 1970 that "after conducting a reinvestigation of the case and after a thorough and intelligent analysis of the facts and law involved, no prima facie case against Governor Cledera and Jose Esmeralda exist, hence, they cannot be charged. 7

On January 19, 1970, the accused Eligio Orbita filed a "Motion for Reconsideration" praying "that the Order of this Honorable Court dated December 11, 1969 be, in that instead of ordering the Fiscal to reinvestigate this case, on the basis of the evidence already adduce during the trial of this case, he be ordered to amend the information on to include Cledera and Esmeralda it appearing the on record that their inclusion is warranted. 8

On January 26, 1970, the respondent Court issued the order complained of, the dispositive portion of which reads, as follows:

WHEREFORE, premises considered, in the light of the facts brought about by the prosecuting fiscal let the charges be so amended by including in the information the author or writer of Exhibit 2 and the person or persons who carried out the said orders considering the provisions of Article 156 in relation to Articles 223 and 224 of the Penal Code. 9

The Fiscal filed a motion for the reconsideration of said order, 10 but the motion was denied on February 18, 1970. 11Hence, the instant recourse.

From the facts of the case, We are convinced that the respondent Judge committed an error in ordering the fiscal to amend the information so as to include Armando Cledera and Jose Esmeralda as defendants in Criminal Case No. 9414 of the Court of First Instance of Camarines Sur. It is the rule that a fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. 12 Although this power and prerogative of the Fiscal, to determine whether or not the evidence at hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to judicial review, 13 it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so because in his opinion, he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case. The better procedure would be to appeal the Fiscal's decision to the Ministry of Justice and/or ask for a special prosecutor.

Besides, it cannot be said that the Fiscal had capriciously and whimsically refused to prosecute Cledera and Esmeralda.

In his order directing the Fiscal's office to conduct a further reinvestigation of the case, the respondent Judge candidly ad. muted that without a reinvestigation of the case, he cannot determine once and for all whether or not to include Gov. Cledera and Jose Esmeralda in the

information. Pursuant thereto, a reinvestigation was conducted by the fiscals office. Summonses were issued. But, no additional fact was elicited since Eligio Orbita did not appear thereat. Neither was the note (Exh. 2) presented and produced. Gov. Cledera could not admit nor deny the genuineness of the signature appearing in the note since it was not on hand. Such being the case, the prosecuting officers had reason to refuse to amend the information filed by them after a previous pre examination and investigation.

Moreover, there is no sufficient evidence in the record to show a prima facie case against Gov. Cledera and Jose Esmeralda. The order to amend the information is based upon the following facts:

1. Pablo Denaque, a detention prisoner for homicide, while working at the Guest House of Governor Cledera on September 12, 1968;

2. The Governor's evidence at that time is being rented by the province and its maintenance and upkeep is shouldered by the province of Camarines Sur,

3. That neither Governor Cledera nor Lt. Jose Esmeralda was charged or entrusted with the duty of conveying and the detainee from the jail to the residence of the governor.

4. That the de worked at the Governor Is by virtue of an order of the Governor (Exhibit 2) which was tsn by Lt. Esmeralda; and

5. That it was the accused Orbita who himself who handpicked the group of Prisoners to work at the Governor's on 12, 1968. 14

Article 156 of the Revised Penal Code provides:

Art. 156. Delivering prisoners from jails. — The city Of arrests mayor in its maximum period to prison correccional in its minimum Period shall be imposed upon any person who shall remove from any jail or penal establishment t any person confined therein or shall help the escape of such person, by means of violence, intimidation, or bribery.

If other means are used the penalty of arresto mayor shall be imposed. If the escape of the prisoner shall take place outside of said establishments by taking the guards by surprise, the same penalties shall be imposed in their minimum period.

The offenders may be committed in two ways: (1) by removing a person confined in any jail or penal establishment; and (2) by helping such a person to escape. To remove means to take

away a person from the place of his confinement, with or without the active compensation of the person released To help in the escape of a Person confined in any jail or penal institution means to furnished that person with the material means such as a file, ladder, rope, etc. which greatly facilitate his escape. 15 The offenders under this article is usually committed by an outsider who removes from jail any person therein confined or helps him escape. If the offender is a public officer who has custody or charge of the prisoner, he is liable for infidelity in the custody of prisoner defined and penalty under Article 223 of the Revised Penal Code. Since Gov. Cledera as governor, is the jailer of the province, 16 and Jose Esmeralda is the assistant provincial warden, they cannot be prosecuted for the escape Of Pablo Denaque under Article 156 of the Revised Penal Code. There is likewise no sufficient evidence to warrant their prosecution under Article 223 of the Revised Penal Code, which reads, as follows:

ART. 223. Conniving with or consenting to evasion. — Any Public officer who shall consent to the escape of a prisoner in his custody or charge, shall be punished

1. By prision correccional in its medium and maximum periods and temporary disqualification in its minimum period to perpetual special disqualification, if the fugitive shall have been sentenced by final judgment to any penalty.

2. By prision correccional in its minimum period and temporary special disqualification, in case the fugitive shall not have been finally convicted but only held as a detention prisoner for any crime or violation of law or municipal ordinance.

In order to be guilty under the aforequoted provisions of the Penal Code, it is necessary that the public officer had consented to, or connived in, the escape of the prisoner under his custody or charge. Connivance in the escape of a prisoner on the part of the person in charge is an essential condition in the commission of the crime of faithlessness in the custody of the prisoner. If the public officer charged with the duty of guarding him does not connive with the fugitive, then he has not violated the law and is not guilty of the crime. 17 For sure no connivance in the escape of Pablo Denaque from the custody of the accused Eligio Orbita can be deduced from the note of Gov. Cledera to Jose Esmeralda asking for five men to work in the guest house, it appearing that the notes does not mention the names of the prisoners to be brought to the guest house; and that it was the accused Eligio Orbita who picked the men to compose the work party.

Neither is there evidence to warrant the prosecution of Cledera and Esmeralda under Article 224 of the Revised Penal Code. This article punishes the public officer in whose custody or charge a prisoner has escaped by reason of his negligence resulting in evasion is definite amounting to deliberate non- performance of duty. 18 In the constant case, the respondent Judge said:

We cannot, for the present be reconciled with the Idea that the escape. of Denaque was facilitated by the Governor's or . his assistants negligence. According to law, if there is any negligence committed it must be the officer who is charged with the custody and guarding of the ... 19

We find no reason to set aside such findings.

WHEREFORE, the orders issued on January 26, and February 18, 1970 in Criminal Case No. 9414 of the Court of First Instance of Camarines Sur, entitled: "The People of the Philippines, plaintiff, versus Eligio Orbita, accused are hereby annulled and set aside. The respondent Judge or any other judge acting in his stead is directed to proceed with the trial of the case. Without costs.

SO ORDERED.

Barredo (Chairman), Abad Santos and De Castro, * JJ., concur.

Separate Opinions

Manila

EN BANC

G.R. No. L-27191 February 28, 1967

ADELAIDA TANEGA, petitioner, vs.HON. HONORATO B. MASAKAYAN, in his capacity as Judge of the Court of First Instance of Rizal, Branch V, and the CHIEF OF POLICE OF QUEZON CITY, respondents.

Ramon V. Sison for petitioner.Office of the Solicitor General for respondents.

R E S O L U T I O N

SANCHEZ, J.:

Pressed upon us in this, an original petition for certiorari and prohibition, is the problem of when prescription of penalty should start to run. The controlling facts are:

Convicted of slander by the City Court of Quezon City petitioner appealed. Found guilty once again by the Court of First Instance,1 she was sentenced to 20 days of arresto menor, to indemnify the offended party, Pilar B. Julio, in the sum of P100.00, with the corresponding subsidiary imprisonment, and to pay the costs. The Court of Appeals affirmed.2 We declined to review on certiorari.3 Back to the Court of First Instance of Quezon City, said court, on January 11, 1965, directed that execution of the sentence be set for January 27, 1965. On petitioner's motion, execution was deferred to February 12, 1965, at 8:30 a.m. At the appointed day and hour, petitioner failed to show up. This prompted the respondent judge, on February 15, 1965, to issue a warrant for her arrest, and on March 23, 1965 an alias warrant of arrest. Petitioner was never arrested.1äwphï1.ñët

Then, on December 10, 1966, petitioner, by counsel, moved to quash the warrants of arrest of February 15, 1965 and March 23, 1965. Petitioner's ground: Penalty has prescribed.

On December 19, 1966, the respondent judge ruled that "the penalty imposed upon the accused has to be served", rejected the plea of prescription of penalty and, instead, directed the issuance of another alias warrant of arrest. Hence, the present petition.

Arresto menor and a fine of P100.00 constitute a light penalty.4 By Article 92 of the Revised Penal Code, light penalties "imposed by final sentence" prescribe in one year. The period of prescription of penalties — so the succeeding Article 93 provides — "shall commence to run from the date when the culprit should evade the service of his sentence".5

What then is the concept of evasion of service of sentence Article 157 of the Revised Penal Code furnishes the ready answer. Says Article 157:

ART. 157. Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment 6 by reason of final judgment. However, if such evasion or escape shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs or floors, or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum period.

Elements of evasion of service of sentence are: (1) the offender is a convict by final judgment; (2) he "is servinghis sentence which consists in deprivation of liberty"; and (3) he evades service of sentence by escaping during the term of his sentence.7 This must be so. For, by the express terms of the statute, a convict evades "service of his sentence", by "escaping during the term of his imprisonment by reason of final judgment." That escape should take place while serving sentence, is emphasized by the provisions of the second sentence of Article 157 which provides for a higher penalty if such "evasion or escape shall have taken by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors or by using picklocks, false keys, disguise, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, ... "8 Indeed, evasion of sentence is but another expression of the term "jail breaking".9

A dig into legal history confirms the views just expressed. The Penal Code of Spain of 1870 in its Article 134 — from whence Articles 92 and 93 of the present Review Penal Code originated — reads:

Las penas impuestas por sentencia firme prescriben:

Las de muerte y cadena perpetua, a los veinte años.

x x x x x x x x x

Las leves, al año.

El tiempo de esta prescripcion comenzara a correr desde el dia en que se notifique personalmente al reo la sentencia firme, o desde el quebrantamiento de la condena si hubiera esta comenzado a cumplirse. x x x

Note that in the present Article 93 the words "desde el dia en que se notifique personalmente al reo la sentencia firme", written in the old code, were deleted. The omission is significant. What remains reproduced in Article 93 of the Revised Penal Code is solely "quebrantamiento de la condena". And, "quebrantamiento" or evasion meansescape.10 Reason dictates that one can escape only after he has started service of sentence.

Even under the old law, Viada emphasizes, where the penalty consists of imprisonment, prescription shall only begin to run when he escapes from confinement. Says Viada:

El tiempo de la prescripcion empieza a contarse desde el dia en que ha tenido lugar la notificacion personal de la sentencia firme al reo: el Codigo de 1850 no expresaba que la notificacion hubiese de ser personal, pues en su art. 126 se consigna que el termino de la prescripcion se cuenta desde que se notifique la sentencia, causa de la ejecutoria en que se imponga la pena respectiva. Luego ausente el reo ya no podra

prescribir hoy la pena, pues que la notificacion personal no puede ser suplida por la notificacion hecha en estrados. Dada la imprescindible necesidad del requisito de la notificacion personal, es obvio que en las penas que consisten en privacion de libertad solo porda existir la prescripcion quebrantando el reo la condena pues que si no se hallare ya preso preventivamente, debera siempre procederse a su encerramiento en el acto de serle notifirada personalmente la sentencia.11

We, therefore, rule that for prescription of penalty of imprisonment imposed by final sentence to commence to run, the culprit should escape during the term of such imprisonment.

Adverting to the facts, we have here the case of a convict who — sentenced to imprisonment by final judgment — was thereafter never placed in confinement. Prescription of penalty, then, does not run in her favor.

For the reasons given, the Court resolved to dismiss the petition for certiorari and prohibition. No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon,

Manila

EN BANC

G.R. No. L-1960 November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee.

MONTEMAYOR, J.:

Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service of sentence under the following information:

That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the said accused, being then a convict sentenced and ordered to serve two (2) years,

four (4) months and one (1) day of destierro during which he should not enter any place within the radius of 100 kilometers from the City of Manila, by virtue of final judgment rendered by the municipal court on April 5, 1946, in criminal case No. B-4795 for attempted robbery, did then and there wilfully, unlawfully and feloniously evade the service of said sentence by going beyond the limits made against him and commit vagrancy.

Contrary to law.

Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one (1) day ofprision correccional, with the accessory penalties of the law and to pay the costs. He is appealing from that decision with the following assignment of error:

1. The lower court erred in imposing a penalty on the accused under article 157 of the Revised Penal Code, which does not cover evasion of service of "destierro."

Counsel for the appellant contends that a person like the accused evading a sentence of destierro is not criminally liable under the provisions of the Revised Penal Code, particularly article 157 of the said Code for the reason that said article 157 refers only to persons who are imprisoned in a penal institution and completely deprived of their liberty. He bases his contention on the word "imprisonment" used in the English text of said article which in part reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment.

The Solicitor General in his brief says that had the original text of the Revised Penal Code been in the English language, then the theory of the appellant could be uphold. However, it is the Spanish text that is controlling in case of doubt. The Spanish text of article 157 in part reads thus:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo privacion de libertad por sentencia firme; . . . .

We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally approved and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that the word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de libertad" used in the Spanish text.

It is equally clear that although the Solicitor General impliedly admits destierro as not constituting imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila. This view has been adopted in the case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil., 968) wherein this Court held, as quoted in the brief of the Solicitor General that "it is clear that a person under sentence of destierro is suffering deprivation of his liberty and escapes from the restrictions of the penalty when he enters the prohibited area." Said ruling in that case was ratified by this Court, though, indirectly in the case of People vs. Jose de Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one evades the service of his sentence of destierrowhen he enters the prohibited area specified in the judgment of conviction, and he cannot invoke the provisions of the Indeterminate Sentence Law which provides that its provisions do not apply to those who shall have escaped from confinement or evaded sentence.

In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under article 157 of the Revised Penal Code (Spanish text), in that during the period of his sentence of destierro by virtue of final judgment wherein he was prohibited from entering the City of Manila, he entered said City.

Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs against the appellant. So ordered.

Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.

G.R. Nos. L-38346-47 October 23, 1964

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.TEOFILO DIOSO and JACINTO ABARCA, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Vicente R. Acsay counsel de oficio for defendants-appellants.

ESCOLIN, J.:ñé+.£ªwph!1

Mandatory review of the death sentences imposed by the Circuit Court of Rizal upon Teofilo Dioso and Jacinto Abarca for the crime of murder.

The crime was committed inside the New Bilibid Prison in Muntinglupa, Rizal where both accused were serving sentence, Abarca having been previously convicted by final judgment of the crime of homicide, and Dioso, of robbery.

At the time of the incident, Dioso and Abarca were members of the "Batang Mindanao" gang, while the victims Angelito Reyno and Fernando Gomez, also prisoners at the New Bilibid Prisons, belonged to a group known as the "Happy Go Lucky" gang. These rival factions had been involved in intermittent, and sometimes bloody, clashes, the latest of which resulted in the death of one Balerio a member of the "Batang Mindanao" gang

Suspecting that Reyno and Gomez had authored the slaying of their gangmate, the two accused set their Minds to avenge his death. They found the occasion to execute their nefarious design when they learned that Reyno and Gomez were sick and confined in the prison hospital. At 6:15 in the 'morning of September 12, 1972, Abarca, feigning illness, went to the hospital to seek admission as a patient. He was accompanied by his co-accused Dioso. Inside Ward 6 of the hospital they saw their intended victims: Reyno was taking breakfast with Gomez was lying down on a "tarima" [wooden bed] under a mosquito net. Dioso approached Reyno and spoke briefly to him, while Abarca headed towards the "tarima". Then, both accused suddenly drew out their improvised knives matalas Abarca raised the mosquito net over the "tarima" and stabbed Gomez, as Dioso, almost simultaneously, attacked Reyno with his knife. And after the latter had fallen, Dioso strode to the "tarima" to help his co-accused finish off Gomez.

When the accused rushed out of Ward 6, they were met at the corridor by Prison Guard Enriquito Aguilar Both gave themselves up and handed their weapons to him.

Dr. Ricardo E. Baryola medico-legal officer of the NBI, who performed the autopsy, found that both accused died of massive bleeding due to multiple stab wounds on the chest and abdomen. 1

The accused were immediately interrogated by prison investigator Buenaventura dela Cuesta; and they; readily executed their respective sworn statements, wherein they admitted responsibility for the death of the victims. 2

In his sworn statement, Teofilo Dioso narrated how he delivered the death blow on Reyno, thus: têñ.£îhqwâ£

T Pagdating ninyo sa ward 6 ano ang inyong ginawa?

S Tumuloy ho ako kay Reyno at tinamong ko kung saan si Intsik [Gomez] ngayon

tinuro ni Reyno sa akin. Sabi ho iyong nakakulambo. Pagkatapos, sinabi ko naman kay Abarca ang lugar ni Intsik ngayon, pinuntahan naman niya. Pagtapat niya kay Intsik, sinipa ko si Reyno sabay bunot ng aking matalas at sinaksak ko sa kanya. Noong sa pag-aakala kong patay na, iniwan ko at tumulong ako kay Abarca sa pagsaksak kay Gomez. Noong tumihaya na si Gomez, sumigaw ako kay Abarca na labas na tayo. Tumakas ka palabas at noong nasa pasilyo kami ng hospital nasalubong namin iyong guardiya at doon namin sinurender ang mga matalas namin. Tapos karning makapag-surrender, dinala kami ng guardiya sa Control Gate tuloy dito. [Exhibit "D", p. 21]

Jacinto Abarca on the other hand narrated his version of the killing as follows: têñ.£îhqwâ£

T Pagkatapos ninyong mapagkasunduan na manaksak sa ward 6, ano ang inyong ginawa?

S Ang sabi pa niya na bukas na tayo titira pagkatapos ng almosalan tapos naghiwalay na kami baka pa marinig ng iba. Kaninang umaga . pagkatapos naming kumain lumabas na ako sa ward 2 at nakita ko siya sa pintuan ng ward 4 na naghihintay sa akin. Ngayon, pumasok muna siya sa ward 4 at kumuha ng sigarilyo at pagkatapos tumuloy kami sa ward 6. Pagdating namin sa ward 6, siya ang umuna dahil sa hindi ko pa alam kung saan naka puwesto ang mga Happy Go [gang]. Pagkatapos lumapit siya doon sa nakaupo hindi ko alam kong kumakain o hindi at ako naman ay umupo sa isang tarima sa tabi ni intsik iyong tinira ko tapos bigla na lang siya bumunot ng matalas niya bago tinira iyong nakaupo sabay sabi na "tira na". Pagkatira niya, ako naman ay lumapit doon sa tarima ni intsik [Gomez]

bago ko biglang tinaas ang kulambo dahil nakahiga siya tapos tumakbo. Hinabol ko tapos paghabol ko, nadapa siya tapos sumuot sa silong ng tarima. Doon ko siya inabutan at sinaksak ko. Ngayon sa pagsaksak ko sa kanya, biglang dumating itong si Dioso at tumulong sa akin sa pagsaksak. Hindi nagtagal, sumigao si Dioso ng 'tama na' bago kami tumakbo palabas ng ward 6. Noong nasa pasilyo kami ng hospital, nasalubong namin iyong guardiya at doon namin sinurender ang mga matalas namin. Pagkatapos naming ma surrender ang mga matalas nang dinala kami ng guardiya sa labas. [Exhibit "C ", p. 2].

Dioso revealed the motive for the killing as follows: têñ.£îhqwâ£

T Bakit naman ninyo ni Abarca sinaksak sina Reyno at Gomez sa ward 6?

S Dahil po doon sa nangyari kay Balerio. Si Balerio po ay sinaksak ng mga "Happy Go" at iyong panaksak namin kanina ay iyon ang ganti naming mga BM sa mga "Happy Go". [Exhibit "D", p. 1]

Of similar tenor is the following statement of Abarca: têñ.£îhqwâ£

T lbig mo bang sabihin, iyong mga sinaksak ninyo sa hospital kanina ay iyon din ang pumatay sa sinasabi mong kakusa ninyo na si Balerio?

S Hindi ho pero katatak nila iyong pumatay kay Balerio. Pareho silang miembro ng "Happy Go Lucky" gang. Ngayon ang pagka panaksak namin kanina sa hospital noong dalawa na miembro ng "Happy Go" ay ganti naming mga BM [Batang Mindanao] sa pagkapatay nila kay Balerio. [Exhibit "C", p. 1].

When arraigned for the crime of murder, both accused voluntarily entered the plea of guilty. Thereafter the trial court required the presentation of evidence to determine the degree of their culpability. At the hearing, they acknowledged the voluntary execution of their respective confessions.

The trial court correctly found that the crime was perpetrated with alevosia. As revealed by the accused themselves, they inflicted the fatal blows while Gomez was lying down under a mosquito net, and Reyno was taking his breakfast. Clearly, neither of the victims was in a position to defend himself from the sudden and unexpected assault.

It is thus noted that in their briefs, no attempt was made to impugn the lower court's conclusion as to their guilt. Instead, they seek attenuation of the death sentence imposed by the trial court by invoking the circumstances of voluntary surrender and plea of guilty. We find no necessity to discuss at length the effects of such mitigating circumstances on the penalty imposed. Suffice it to say that the accused are quasi-recidivist, having committed the crime charged while serving sentence for a prior offense. As such, the maximum penalty prescribed by law for the new felony [murder] is death, regardless of the presence or absence of mitigating or aggravating circumstance or the complete absence thereof. 3

But for lack of the requisite votes, the Court is constrained to commute the death sentence imposed on each of the accused to reclusion perpetua

ACCORDINGLY, accused Teofilo Dioso and Jacinto Abarca are hereby sentenced to reclusion perpetua and to indemnify the heirs of the deceased, jointly and severally, the sum of P30,000.00. Costs against appellants.

SO ORDERED.1äwphï1.ñët

Fernando, C.J., Makasiar, Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana, Relova, De la Fuente and Cuevas, JJ., concur.

Teehankee and

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