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Republic of the Philippines

SUPREME COURTManila

THIRD DIVISION

G.R. Nos. 90297-98 December 11, 1992

PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.NOEL PAMA, accused-appellant.

DAVIDE, JR.,J.:

At around 10:30 o'clock in the evening of 2 October 1985, two (2) successive bursts of gunfirerang from the ground floor of the Market Square Building in Iloilo City. The several persons

within the area scampered to safety. After a few seconds, another burst of gunfire was heard;

thereupon, three (3) unidentified males were seen darting from the said building into the adjacent

J.M. Basa Street. Minutes later, responding elements of the Iloilo Integrated National Police(INP) arrived at the Market Square Building only to find two (2) men, one of whom was already

dead and the other seriously wounded and in critical condition; the latter asked the approachinglawmen to rush him to a hospital. The first, who sustained a gunshot wound on his right face and

on his right thigh and was sprawled in a pool of his own blood at the building's doorway, was

identified as Joji Nograles. The second victim, who was brought to the St. Paul's Hospital wherehe subsequently succumbed to two (2) gunshot wounds, was Cesar Habaradas. The policemen

commenced their search for the suspects, one of whom was reported to have run towards the pieralong Muelle Loney Street. Bystanders recounted to the pursuing lawmen that this suspect, upon

reaching the pier, dove into the river below.

Meanwhile, at the nearby compound of the Iloilo Drydock and Engineering Company (IDECO)

located across the Iloilo River, security guards Anselmo Garocho and Rodolfo Bolao of the

Royal Protective and Janitorial Services, Inc. (RPJSI) who were then conversing at their post,noticed an unidentified man walk by. The man, barefoot and with only his pants on, was soaking

wet. When accosted by the guards, he introduced himself as Noel Pama and alleged that he was

held up by three (3) men at a gasoline station along Muelle Loney Street. After being divested ofhis wallet, money, wristwatch, necklace, shirt and shoes, he jumped into the nearby river toescape from the holduppers who were about to kill him. The guards reported this incident to the

police authorities. After some time, policemen led by Sgt. Ronaldo Porras arrived at the

compound. They took Pama to the police headquarters. Pama was accomplished by his motherwho had arrived shortly after he called her by phone.

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A few days later, after the appropriate preliminary investigation was conducted, Noel Pama,

hereinafter referred to as the appellant, was charged with the killing of Nograles and Habaradas

in two (2) separate Informations for Murder filed with the Regional Trial Court (RTC) of Iloilo.The first Information was filed on 7 October 1985, docketed therein as Criminal Case No. 19409,

and raffled off to Branch 33 of said court.1The second was filed on 11 October 1985, docketed

as Criminal Case No. 19418 and raffled off to Branch 32 of the same court.

2

On 8 November 1985, following a Motion to Consolidate Cases filed by the prosecution, Judge

Felino A. Garcia (Branch 32) issued an Order to consolidate Criminal Case No. 19418 withCriminal Case No. 19409 in Branch 33 subject to the conformity of Judge Sixto R. Guanzon of

the said branch.3The latter agreed to the condition.

Consequently, both informations were amended to include two (2) other accused, Leonardo

Lava, Jr. and Robert Ignalaga. The accusatory portions of both Amended Informations which

were filed on 18 November 1985, read as follows:

CRIMINAL CASE NO. 19409:

xxx xxx xxx

That on or about the 2nd day of October, 1985, in the City of Iloilo, Philippinesand within the jurisdiction of this Court, said accused, armed withguns

respectively, conspiring and confederingamong themselves, workingtogether and

helping one another, with deliberate intent, with evident premeditation, treacheryand with a decided purpose to kill, did then and there wilfully, unlawfully and

criminally shoot and hit Joji Nograles with the said gun (sic), with which the

accused was (sic) provided at the time, thereby causing upon the said Joji

Nograles gunshot wound (sic) on vital parts of his body, which caused his deathfew (sic) moments thereafter.

CONTRARY TO LAW. 4


xxx xxx xxx

That on or about the 2nd day of October, 1985, in the City of Iloilo, Philippines

and within the jurisdiction of this Court, said accused, armed withguns

respectively,conspiring and confederatingamong themselves, workingtogetherand helping one another, with evident premeditation, treachery and with a decided

purpose to kill, did then and there wilfully, unlawfully and criminally shoot and

hit Cesar Habaradas with the said gun (sic), with which the accused wereprovided at the time, thereby causing upon the said Cesar Habaradas gunshot

wounds on vital parts of his body which caused his death few (sic) hours

thereafter.

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CONTRARY TO LAW.5

On 19 November 1985, Judge Sixto. R. Guanzon issued the orders for the arrest of accusedLeonardo Lava, Jr. and Robert Ignalaga.

6Both accused could not, however, be found and have

thus remained at large.

Upon arraignment on 21 November 1985, appellant, assisted by counsel, entered a plea of not

guilty. Thereafter, the appellant moved for a separate trial; the trial court issued on 23 December

1985 an order granting the said motion considering that the appellant's two (2) co-accusedremained at large. A joint trial of both cases was also ordered.

7

At the joint trial on the merits, the prosecution presented as its witnesses Patrolman (Pat.) Zarex

Celis, Pat. Eliseo Villavicencio, Sgt. Ronaldo Porras, Pfc. Gregorio M. Gopeteo, Jose Regacho,

Dr. Tito Doromal, Anselmo Garocho, Suzette Nograles Ravena, and Efrain Habaradas. Appellant

took the witness stand in his defense and denied involvement in the death of Nograles andHabaradas. He likewise presented Sgt. Mariano Palmes, Police Capt. Luena Layador and Leonisa

Pama as his witnesses.

On 17 March 1989, the trial court promulgated separate decisions in the two (2) cases, both dated

22 February 1989, finding the appellant guilty beyond reasonable doubt of the crime of Murder

in Criminal Case No. 19409 8and of the lesser crime of Homicide in Criminal Case No.19418.

9The dispositive portions of the decisions reads as follows:


WHEREFORE, premises considered, this court finds the accused guilty of murder

beyond reasonable doubt and hereby sentences the accused to suffer the penalty

of reclusion perpetua.

The accused is hereby ordered to pay the heirs of Joji Nograles the sum ofP35,450.00 representing expenses for the coffin, tomb, mass, food and

miscellaneous expenses during the burial, during (sic) the wake, burial clothing,

and attorney's fees.

The accused is hereby ordered to indemnify the heirs of Joji Nograles the sum of

P30,000.00.

SO ORDERED. 10


WHEREFORE, premises considered, this court finds the accused guilty of

homicide beyond reasonable doubt, and applying the Indeterminate Sentence

Law, hereby sentences the accused to suffer the penalty of eight (8) years and one(1) day ofprision mayoras minimum to sixteen (16) years of reclusiontemporalas maximum.

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The accused is hereby ordered to pay the heirs of the deceased Cesar Habaradas

the sum of P26,450.00 representing expenses for the coffin, tomb, mass, food

during the burial, attorney's fees and other miscellaneous expenses.

The accused is hereby ordered to indemnify the heirs of Cesar Habaradas the sum

of P30,000.00.

SO ORDERED.11

The evidence for the prosecution upon which the decisions are based is succinctly summarized in

the Appellee's Brief as follows:

Prosecution witness Jose Regacho testified that at around 10:00 o'clock in the

evening of October 2, 1985, he and a friend left Mila's Refreshment and Beer

House located at Hoskyn's Compound along Guancho Street, Iloilo City andproceeded to Irong-Irong Restaurant which is on top of the Market Square

Building. This restaurant has two entrances or doors, one fronting J.M. BasaStreet within the Taheebo store and the other on the side of Freedom Grandstand(pp. 3-5 TSN Regalado January 15, 1987). The sidewalk along J.M. Basa St. leads

to a passageway or alley about 15 arms length long and one and one-half arms-

length wide. After or at the end of this passageway or alley are stores and thestairway leading to the offices (Exhibit "K-2") and an open space where byturning to the left one can find the stairway leading to the restaurant (marked

during the hearing as Exh. "K-1"- pp. 7-13,Ibid.). As they were near the open

space, Regacho saw a person of about 5'8" or 5'9" in height, "mestizo", with curlyhair, who was later identified as Joji Nograles (one of the deceased), talking to a

female child about 6-7 years old. The witness likewise saw two women near the

door beside the Freedom Grandstand (p. 14,Ibid.). Then he saw three personsbriskly walking towards the tall, curly-haired "mestizo" (Nograles). Suddenly, oneof the three men whom he identified in court as appellant (p. 23,Ibid.) shot

Nograles. Regacho and his companion turned around and started running away

along the passageway. As they were running away, Regacho heard another shot.Upon reaching the outside portion of the alley the heard two more successive

shots. He identified the person who fired the first shot as the appellant (p.

22,Ibid.) since he was familiar with the faces of the three persons as he hadalready seen them on several occasions at Irong-Irong Restaurant prior to October

2, 1985.

At about the same time, about 10:30 p.m., Pat. Darex (sic) Celis of the Iloilo INP

was waiting for Maj. Norberto Plagata near the Freedom Grandstand when he

heard two successive gunshots from the direction of the ground floor of the

Market Square Building which was about 36 feet away (pp. 8-10, TSN Celis, 10July 1986). The shots came from the entrance leading to the restaurant. He then

saw a man lying on the ground at the entrance Market Square Building beside

Freedom Grandstand and one person running with a limp towards the stairs ofIrong-Irong Restaurant. People scampered about. He heard another two

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successive shots. After a while he saw the limping man ran (sic) out of the exit of

the building facing Freedom Grandstand. He met the limping man who turned out

to be Cesar Habaradas (pp. 11-12,Ibid.) and turned him over to his companion sothat he could proceed to investigate the shooting since a police car had appeared.

Pat. Celis learned and gathered that the suspect ran towards the exit facing J.M.

Basa Street. One of the suspects went to the pier at Muelle Loney, the other to thedirection of Gaisano and Aldeguer and the third ran along J.M. Basa St. (pp. 13-15,Ibid.). Pat. Celis with other policeman pursued the man who ran towards

Muelle Loney. They asked the bystanders, who told them that they saw a running

man jump into the water. The police searched the tugboats and barges. On atugboat they found a pair of tennis shoes which they turned over to the Homicide

Section (pp. 14-16,Ibid.). They returned to the scene of the crime and continued

investigating. After a while, they were informed through their radio to proceed to

RETRASCO Compound because a person there was arrested by the securityguard. His companion proceeded to the Retrasco Compound. When the patrol car

returned Celis (sic) informed him (sic) that a person, barefoot and wet, wearing

only maong pants, was arrested. So Pat. Celis returned to headquarters and theresaw the person and conducted a body search on him and found P320.00 cash on

the left back pocket of his pants. He made appellant try on the tennis shoes and

saw that they made a snug fit. The cash was returned to appellant (pp. 20-

22,Ibid.).

Pat. Eliseo Villavicencio of the Iloilo INP also heard the gunfire at about 10:30p.m. of October 2, 1985 as he was travelling along Mapa St., Iloilo City on board

a patrol jeep with other members of INP (sic) Iloilo. As soon as they heard the

gunfire coming from the direction of J.M. Basa St., they quickly proceeded to that

place. On the way, they heard two more shots. They parked at Photo Magic andran towards the Freedom Grandstand (pp. 3-5, TSN Villavicencio, August 28,

1986). Pat. Villavicencio was approached by a limping man (Cesar Habaradas)

who said, "Bring me to the hospital, I was shot. I am seriously wounded." He took

the wounded man to their jeep and sped toward St. Paul's Hospital. As they wereapproaching the gate of the hospital, the wounded man who was on the arms of

Pat. Villavicencio uttered that he had a companion who was also shot. Asked who

shot him, Cesar Habaradas breathing heavily and blood flowing from his chest,replied that Junior Lava and Noel Pama shot him. Habaradas also said that his

companion was left behind at the Market Square Building. Pat. Villavicencio

returned to the area and there saw a man lying on his stomach near the side of theentrance of the Market Square Building. That man was Joji Nograles. He was

already dead (pp. 5-8,Ibid.). He was brought to the Porras Funeral Homes where

the following day October 3, 1985, Dr. Tito Doromal (Medico Legal Officer of

the Iloilo Integrated National Police) conducted an autopsy on the body which hadbullet wounds in the right face and right thigh. The bullet wound on the right face

was fatal. The bullet entered the face just below the chekbone (sic) travelling

backward, slightly upward and penetrating the second cervical vertebral (sic) andlacerating the spinal cord. The deformed slug was extracted from the spinal canal.

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Around the entrance wound are gunpower burns around 8 by 7 centimeters in

diameter (TSN Feb. 12, 1988 pp. 6-9).

The bullet wound on the thigh was located on (sic) the middle of the thigh and the

direction was backward and upward. The slug that was extracted was deformed

suggesting the (sic) bullet hit hard (sic) object and then, deflected, goes (sic)upward.

Cesar Habaradas also succumbed to gunshot wound (sic) at St. Paul's Hospitalthat same night and was brought to Porras Funeral Home where he was also

autopsied by Dr. Doromal on Oct. 3, 1985 (pp. 10-27, TSN Feb. 12, 1986).

Pat. Villavicencio saw Patrolman Tony Frias and Rico Arcones. He told the latter

about the man he brought to the hospital. He went with Rico Arcones to the police

station where they were informed about the man arrested at the Iloilo Drydockand Engineering Company (IDECO). The man was later brought to the station

and Identified as Noel Pama. Pat. Villavicencio told the investigator that NoelPama was named by Cesar Habaradas as one of those who shot him (pp. 9-

11,Ibid.).

Anselmo Garocho, Jr., security guard of the Royal Protective and JanitorialServices Inc., was posted together with another Security Guard, Rodolfo Bolao, atPost No. 4 of the IDECO on that evening of October 2, 1985. At around 10:30

p.m., they saw a man coming from the river. The man was wet, shirtless and

barefoot, wearing trousers only. They took the man, who gave his name as NoelPama, into custody. Pama claimed that he was held up at Muelle Loney where his

watch and necklace were taken by the holduppers. He jumped into the the river to

avoid getting stabbed. Pama used the guardhouse phone to contact his mother,after which Garocho phoned the police. Per police instruction, the security guardsheld Pama while waiting for the police to arrive (pp. 20-27, TSN Garocho, March

18, 1986).

Sgt. Ronaldo Porras, who was one of the patrol policeman to come, likewise

testified, corroborating the testimonies of the other police witnesses (pp. 3-19TSN Porras, 18 March 1986).

Suzette Nograles Ravena, older sister of Joji Nograles, testified on the damagesand expenses incurred on account of her brother's death (pp. 2-8 TSN Ravena,

February 27, 1987).12

Upon the other hand, the evidence for the appellant, as summarized in the Appellee's Brief, is asfollows:

The defense presented the testimony of appellant Noel Pama who denied

participation in the killings, averring that in the evening of October 2, 1985 he

was at Kweba Club drinking with his friend Jojo Sorongon. At about 10:45 p.m.

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he went out to buy cigarettes outside where it was cheaper. Outside, he felt the

urge to vomit so he ran towards the gasoline station and there threw up. At that

moment, from his back someone announced "hold-up". He was held-up by threemen who got his wristwatch and his necklace. They brought him to the side of

Muelle Loney where they stripped him of his shirt and Hush Puppies shoes. One

said "Tiruha na lang ina" (shoot him). When he heard that, he jumped into thewater and swam 100 to 120 meters to the other side. On the riverbank he askedthe security guards for help, telling them he had been held-up. He called his

mother by phone. She arrived, even before the police came. The police brought

him to the station and placed him in jail. He was investigated the next morningand a paraffin cast was taken of his hands (pp. 3-21, TSN Pama April 12, 1988).

Leonisa Pama, mother of appellant, testified that she went to IDECO after beingsummoned by her son at about 10:30 p.m. of October 2, 1985. After a while the

police arrived and arrested her son upon the suspicion that he was involved in the

killing that evening. Earlier that afternoon, she gave her son, who asked for

money, P300.00 in order to entertain his friend Jojo Sorongon. The police, whosearched his (sic) son took his wallet with P150.00 on (sic) it. The following day

October 3, 1985 the wallet with P150.00 was returned to appellant. Noel told herhe was with a woman when he was held-up (pp. 3-24, TSN Pama, Sept. 7, 1988).

Sgt. Mariano Palmes of the PC Crime Laboratory testified that pursuant to the

request for casting made by the Station Commander of the Iloilo Police Station hemade a paraffin test on the appellant and also on the victims Joji Nograles and

Cesar Habaradas. The cast was indorsed to Camp Crame Quezon City for

examination. The report he later received showed that the three casts takenyielded all negative results (pp. 2-23, TSN Palmes Aug. 11, 1987).

Capt. Luena Layador, Asst. Chief of the Chemistry Branch, PC Crime Laboratory,Camp Crame, testified that she conducted the test on the castings made by Sgt.

Palmes. All the casting (sic) showed negative results for gunpower residues. She

examined the cotton swabbings from the barrel of the .22 Caliber Magnum Smithand Wesson revolver brought by Sgt. Palmes and found the same to be positive

for gunpower residues indicating that it had recently been fired. The negative

findings on the paraffin cast of appellant's hand means (sic) that appellant had not

fired a gun (pp. 3-19, TSN Layador, March 8, 1988.13

The judgment of conviction for Murder in Criminal Case No. 19409 is anchored principally on

the trial court's findings that a conspiracy existed among the appellant, who was positivelyidentified by Jose Regacho, and his co-accused, and that the crime was committed with treachery

a qualifying circumstance properly alleged in the information. While the trial court admitted

that there was no evidence to show who among the three (3) assailants actually fired the fatal

shots, the appellant is nevertheless liable for the death of Joji Nograles because conspiracy wasestablished; hence, the act of any one of the three (3) is the act of all. It also declared that the

existence of treachery was proved through the testimony of Jose Regacho to the effect that Joji

Nograles, who was then talking to a 6-7 year old girl, was suddenly approached by the three (3)

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assailants and fired at; the victim did not expect the attack; thus, he could not have put up an

effective defense. Appellant and his companions insured the consummation of the killing without

risk to themselves. The court a quo, however, ruled that evident premeditation, which is alsoalleged in the information as a qualifying circumstance, was not proven as no evidence was

offered to show that the appellant had ample time to meditate and reflect upon the impending

deed.

The trial court rejected the appellant's defense of alibi because he was positively identified by

witness Jose Regacho and was unable to prove that he was at some other place at the time thevictims were shot and that it was also impossible for him to have been at the place of the incident

at that time. The presence of the appellant at the scene of the crime was likewise inferred by the

trial court from the declaration of Cesar Habaradas, the other victim, that he (Habaradas) was

shot by the appellant and Junior Lava. The trial court admitted this declaration as part of the resgestaein this case to prove that both deceased were together, and as a dying declaration in

Criminal Case No. 19418 where the victim is Cesar Habaradas.

The trial court likewise discarded appellant's story that he was held up and divested of his wallet,money, shirt, wristwatch, shoes and necklace, and that he jumped into the Iloilo river and swam

to the other side when one of the holduppers threatened to kill him. Such story is belied by thefact that when he was brought to the police headquarters, the appellant had his wallet with him

which contained P150.00; moreover, the policeman who bodily searched him found P320.00 in

the left back pocket of his pants. As to his defense that he could not have fired a gun because he

was negative for gunpowder residues, the court, invoking its finding of conspiracy, declared suchresult to be irrelevant.

The judgment of conviction for the lesser offense of homicide in Criminal Case No. 19418 isbased on the same findings and conclusion as in Criminal Case No. 19409 except that it

overruled the prosecution's insistence on the presence of the qualifying circumstances oftreachery and evidence premeditation and instead placed greater reliance on the declaration ofthe victim, Cesar Habaradas. The trial court admitted and considered the same as a dying

declaration under Section 37, Rule 130 of the Rules of Court.

Unable to accept both verdicts, appellant filed a Notice of Appeal on 20 March 1989 wherein he

manifested his intention to appeal the decisions to the Court of Appeals.14

Considering the

penalty of reclusion perpetuaimposed in what the trial court considered as the more seriousoffense (in Criminal Case No. 19409), the appeal should have been interposed directly to this

Court.15

However, the trial court, guided only by the Notice of Appeal, erroneously forwarded

the records of both cases to the Court of Appeals16

which, in turn, properly forwarded the same

to this Court.17

We accepted the appeal in our Resolution of 30 October 1989.18

In his Appellant's Brief filed on 10 January 1990, appellant contends that the trial court:

1. . . . ERRED WHEN IT ACCEPTED THE TESTIMONY OF A BIASED AND

SURPRISE WITNESS AS AGAINST THE TESTIMONY OF AN EXPERTWITNESS.

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2. . . . ERRED WHEN IT TOTALLY ACCEPTED CIRCUMSTANTIAL

EVIDENCE IN CONVICTING THE ACCUSED.

3. . . . SERIOUSLY ERRED WHEN IT TOTALLY DISCARDED THE

SCIENTIFIC FINDINGS OF AN EXPERT WITNESS, HENCE THE

FINDINGS OF FACTS AND THE LAW THAT WAS MADE APPLICABLEWERE NOT IN CONSONANCE WITH THE EVIDENCE.19

In support of his first assigned error, appellant impugns the credibility of Jose Regacho whotestified only upon the invitation of the father of Joji Nograles; prior to the trial Regacho did not

furnish the policeman with any sworn statement. Neither was he investigated by the latter

regarding the incident. Appellant thus avers that the bare allegation that he fired a gun cannotoutweigh the finding made by an expert witness that he (appellant) was negative for gunpowder

residue. Hence, the inevitable conclusion is that he never fired a gun.

As to the second assigned error, appellant jumps to the conclusion that the respective testimonies

of Garocho, Villavicencio, Celiz and Porras constitute circumstantial evidence which is notsufficient to support his conviction. Quoting Moran,20

he alleges the "[B]efore a conviction can

be had upon circumstantial evidence, the circumstances proven, should constitute anUNBROKEN CHAIN which leads to one fair and reasonable conclusion which points to the

defendant to the exclusion of others, as the guilty persons (sic)."21

Anent the last assigned error, appellant insists that the trial court committed a serious error in not

considering in his favor the negative results of the paraffin test. Since he was found negative for

gunpowder residuethus strongly indicating that he never fired a gun he could not haveshot Nograles or Habaradas. Furthermore, no documentary or oral evidence was presented by the

prosecution to refute the evidence brought forth by the expert witness, Capt. LayadorForensic

Chemist of the PC Crime Laboratory.

The appeal is unmeritorious.

1. The first assigned error involves the credibility of witness Jose Regacho. Deeply embedded in

our jurisprudence is the rule that when the issue of credibility of a witness is concerned, appellate

courts will generally not disturb the findings of the trial court, considering that the later is in abetter position to decide the question, having heard the witness himself and observed his

deportment and manner of testifying during trial, unless certain facts of substance and value have

been plainly overlooked which, if considered, might affect the result of the case.22

The trialcourt gave full faith and credit to Regacho's testimony. We find nothing in the record to compel

Us to do otherwise. That Regacho came from nowhere, was not listed as a prosecution witness,

did not submit himself to an investigation by any police authority and did not furnish any sworn

statement, do not diminish or impair his credibility at all or place his testimony under suspicion.The natural reticence of most people to get involved in a criminal case is of judicial notice.

23It

is likewise settled that the prosecution is not precluded from calling as a witness a person who

was not listed as such in the information.24

There is as well no law which requires that thetestimony of a prosecution witness should first be reduced in writing.

25Besides, the defense

counsel failed during cross-examination to dent the testimony of Regacho or create doubt as to

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his motive. Moreover, appellant did not offer any credible evidence to show any interior or

improper motive which may have moved Regacho to testify against him. Where there is no

evidence to show any dubious reason or improper motive why a prosecution witness shouldtestify falsely against the accused or falsely implicate him in the heinous crime, said testimony is

worthy of full faith and credit.26

2. It is not true that appellant's convictions are based on circumstantial evidence. On the contrary,

such convictions were based primarily on the positive identification by Regacho and the

declaration of Cesar Habaradas which was admitted as a dying declaration in Criminal Case No.19418 and as part of the res gestaein Criminal Case No. 19409. The circumstantial evidence

presented served only to strengthen further the already formidable evidence stacked against him.

Be that as it may, even if We are to assume that the convictions were based solely on

circumstantial evidence, such evidence would, nevertheless, still be sufficient to support thesame. Section 4, Rule 133 of the Rules of Court provides:

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is

sufficient for conviction if:

a) There is more than one circumstance;

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

c) The combination of all the circumstances is such

as to produce a conviction beyond reasonable doubt.

The concordant combination and cumulative effect of the following circumstances produced

conviction beyond reasonable doubt: (a) appellant was seen with two (2) others at the Market

Square Building; (b) the three (3) walked briskly towards Joji Nograles; (c) one of them(identified by Regacho as the appellant) shot Nograles; (d) this first shot was followed by

another shot although Regacho was unable to see who fired it; (e) two (2) other successive shotswere later heard; (f) a limping man, identified later as Cesar Habaradas, ran out of the exit of the

Market Square Building facing the Freedom Grandstand; (g) Cesar Habaradas had sustained

gunshot wounds; (h) nearing the gate of the hospital where he was brought, Habaradas declared

that he was shot by the appellant and Junior Lava, and that a companion of his who was also shotwas left behind at the Market Square Building; (i) returning to the said building, Pat.

Villavicencio saw Joji Nograles, who was already dead; (j) on the basis of the information that

the suspects ran towards the pier at Muelle Loney, the policemen proceeded in that direction andwere informed that the suspect jumped into the river; (k) on a tugboat which they searched, the

policemen found a pair of tennis shoes; (1) meanwhile, across the river at the RETRASCO

Compound, a man without any shirt and shoes emerged from the river and was accosted by the

security guards; he identified himself as Noel Pama, the appellant herein; (m) at the policeheadquarters were appellant was brought, he was made to try on the pair of shoes; the same fit

snugly.

Furthermore, as correctly ruled by the trial court, conspiracy existed among the three (3)

assailants. There is conspiracy when two (2) or more persons come to an agreement concerning

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the commission of a felony and decide to commit it.27

Direct proof is not essential to prove

conspiracy; it may be shown by acts and circumstances from which may logically be inferred the

existence of a common design among the accused to commit the offense charged;28

it maylikewise be deduced from the mode and manner in which the offense was perpetrated.

29The

presence of the appellant and his two (2) companions at the Market Square Building, their

simultaneous movement towards and concerted attack on Joji Nograles and Cesar Habaradas andtheir coordinated escape from the building, reveal nothing less than a joint purpose and design,concerted action and community of interest which establish beyond reasonable doubt the

existence of a conspiracy.30

Accordingly, it does not matter at all if the appellant did not inflict

the fatal shots on Nograles and Habaradas. Where conspiracy is established, the act of one is theact of all.

31

3. That the appellant was found negative for nitrates is beyond question. However, for him tomaintain that the negative result of the paraffin test would be sufficient to justify his acquittal is

another matter. The absence of nitrates in a suspect's hand is not conclusive proof that he did not

fire a gun. InPeople vs.Talingdan,32

this Court, speaking through Mr. Justice Hugo. E.

Gutierrez, Jr., ruled:

Moreover, the defense also presented NBI chemist Rolando Vitug who testifiedthat the paraffin test results of his laboratory examination on the persons of the

appellants were found to be negative.This finding however, is not conclusive to

show that a person has not fired a gun. As pointed out by the Court of Appeals, it

is possible for a person to fire a gun and yet be negative for the presence ofnitrates, as when firing while wearing gloves or by washing the hands afterwards.

(People v. Roallos 113 SCRA 584 [1982]). Emphasis supplied)

Defense witness Capt. Layador testified that the kind of paraffin test conducted on the appellant

is only 75% reliable in the determination of whether the subject fired a gun. She said that moremodern methods for nitrate testing are already in use in other countries. She also revealed thatthere are several factors which could affect the results of a paraffin test and admitted that even if

a person had fired a gun, it is possible that he could be negative for gunpowder residues.33

The trial court correctly admitted as a dying declaration the statement made by Cesar Habaradas

made to Pat. Villavicencio while they were approaching the gate of the St. Paul's Hospital where

the former died at 11:20 o'clock that same evening of the incident,34

or barely an hour afterbeing shot. Habaradas sustained two (2) bullet wounds on the thoraco-abdominal regions, the

first of which was a thru and thru wound with the bullet cutting lobe of the upper lung, exiting at

the 4th intercostal space, chipping the upper border of the 5th rib, left paravertebral area and

finally exiting on the skin at the left supero-lateral scapular area. The second was located abovethe left superior iliac spine with the bullet penetrating and perforating the abdominal cavity; thru

and thru the descending colon; stomach; right lobe of the liver; right diaphragm, penetrating the

6th intercostal space, along the right mid-clavicular line; the slug was recovered underneath the

skin at the level of the 5th intercostal space. The cause of death was hemorrhage secondary tobullet wounds.

35Doubtless, Habaradas declaration is admissible as a dying declaration in

Criminal Case No. 19418, where he is the victim, because (a) it was made under consciousness

of an impending death; (b) the declaration referred to the cause and surrounding circumstances of

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the declarant's injury and impending death; and (c) the declarant was a competent

witness.36

That such declaration was made by the victim under consciousness of an impending

death can hardly be doubted for,as a matter of fact, Habaradas died about an hour after making the said declaration.

37The

portion of his declaration relating to his companionJoji Nogralesas having been also shot

was likewise properly appreciated as part of the res gestaeunder Section 42, Rule 130 of theRules of Court in Criminal Case No. 19409.

We also agree with the court that no qualifying circumstances were established in Criminal CaseNo. 19418, hence appellant could only be held liable for homicide.

Conformably with the current policy of this Court, the indemnity should be increased toP50,000.00 in each case.

WHEREFORE, the challenged decisions in Criminal Case No. 19409 and Criminal Case No.19418 of Branch 33 of the Regional Trial Court of Iloilo are hereby AFFIRMED subject to the

modification as to the indemnity, which is hereby increased to P50,000.00 in each case.

Costs against Appellant Noel Pama.

SO ORDERED.

Gutierrez, Jr., Bidin, Romero and Melo, JJ., concur.

Footnotes

1 Original Records, Crim. Case No. 19409, 1.

2Id., Crim. Case No. 19418, 1.

3Id., 12.

4Id., Crim, Case No. 19409, op. cit., 15.


6Id., Crim. Case No. 19409, 17;Id., Crim. Case No. 19418, 15.

7Id., Crim. Case No. 19418, 19.

8 Original Records, Crim. Case No. 19409, 411-428.

9Id., Crim. Case No. 19416, 95-112.

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10Id., Crim. Case No. 19409, op. cit., 428.


12 Brief for the Plaintiff-Appellee, 5-12;Rollo, 135-142.

13 Brief for the Plaintiff-Appellee, 12-14;Rollo; 142-144.


15 Section 5(2) (d), Article VIII, 1987 Constitution; Section 3(c), Rule 122, Rules

of Court; and Section 17 of the Judiciary Act of 1948, as amended.

16 Original Records, Crim. Case No. 19409, op. cit., 431.

17Rollo, 2.

18Id., 64.

19Rollo, 69.

20 The appellant fails to indicate the particular volume and edition of Moran's

book where the quoted portion of the Court of Appeals decision is cited.

21Rollo, 86.

22 People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92 SCRA 465

[1979]; People vs. Abejuela, 92 SCRA 503 [1979].

23 People vs. Pacabes, 137 158 [1985]; People vs. Sabellano, 198 SCRA 196

[1991]; People vs. Caraig, 202 SCRA 357 [1991].

24 People vs. Manabat, 100 Phil. 603 [1956]; People vs. Bagsican, 6 SCRA 400

[1962]; People vs. Zapatero, 58 SCRA 450 [1974].

25 People vs. De Guzman, 194 SCRA 618 [1991].

26 People vs. Valera, 90 SCRA 400 [1979]; People vs. Angeles, 92 SCRA 432

[1979].

27 Article 8, Revised Penal Code.

28 People vs. Tingson, 47 SCRA 243 [1972].

29 People vs. Manlangit, 73 SCRA 49 [1976].

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30 People vs. Lunar, 45 SCRA 119 [1972]; People vs. Custodio, 47 SCRA 289

[1972].

31 People vs. Sumayo, 70 SCRA 488 [1976]; People vs. Alonzo, 73 SCRA 483

[1976]; People vs. Maranion, 199 SCRA 421 [1991].

32 191 SCRA 333 [1990].

33 TSN, 8 March 1988, 23-25.

34 Exhibit "C" (Autopsy Report on the cadaver of the deceased Cesar Habaradas);Original Records, Crim. Case No. 19418, 66.

35 Exhibit "C" (Autopsy Report on the cadaver of the deceased Cesar Habaradas);Original Records, Crim. Case No. 19418, 66.

36 Section 37, Rule 130, Rules of Court; People vs. Balbas, 122 SCRA 859[1983];

37 People vs. Bustos, 171 SCRA 243 [1989].

G.R. No. L-539, People v. Buyco, 80 Phil. 58

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

January 27, 1948

G.R. No. L-539

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,

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vs.

MELITON BUYCO,defendant-appellant.

C. Golez and Espeleta & Espeleta for appellant.

Assistant Solicitor General Carmelino G. Alvendia and Acting Solicitor Isidro C. Borromeo for

appellee.

HILADO, J.:

Appellant was charged in and convicted by the Court of First Instance of Iloilo in Criminal Case

No. 405, now subject of this appeal, wherein the information alleged that on or about February

22, 1946, in the municipality of Oton, Province of Iloilo, Philippines, said appellant, being a first

class private of the Military Police in said province, with deliberate intent, treachery and abuse of

authority, and with a decided purpose to kill, did then and there fire several shots with a

Thompson submachine gun against Ireneo Gellangala, Apolonio Ikoy, and Napoleon Zambales,

hitting them on different parts of their bodies and as a result Irineo Gellangala and Apolonio Ikoy

died instantaneously and Napoleon Zambales died a few days later. The trial court, presided over

by his Honor, Judge Jose Quisumbing, after due trial, rendered judgment on May 8, 1946,

finding the following facts as proven through the testimony of the eye-witnesses Eusebio Davila,

Pedro Zambales, and Juanito Espera, and that of Doctor Ramon V. Ferrer, who performed the

autopsy of the corpse of Apolonio Ikoy and examined that of Irineo Gellangala, and Manuel F.

Cartagena, who operated upon the now deceased Napoleon Zambales: that during a dance on the

occasion of the feast of the patron saint of barrio Trapiche, municipality of Oton above

mentioned, "between 12 and 12 of the midnight of February 22, 1946," there was a verbal brawl

followed by a fist fight between Cornelio Soliman and an unknown individual who later resulted

to be a resident of Iloilo City; that Eusebio Davila, chief of the Municipal Police of Oton, and

Juanito Espera, a municipal policeman, who were at the place of the incident, intervened to

pacify the fighters; that the latter had been scarcely pacified when a third party intervened

delivering fist blows upon Cornelio Soliman which knocked him to the ground; that Eusebio

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Davila attempted to help Cornelio Soliman to his feet, at which moment the accused Meliton

Buyco, now appellant, who was on patrol with his six companions, fired in the air two discharges

from his Thompson submachine gun; that Eusebio Davila, who saw Meliton Buyco fire,

approached the latter and prohibited him from firing again to avoid personal injury among those

present; that Meliton Buyco replied that Davila leave him alone because he was an agent of the

law; that minutes later Meliton Buyco got hold with is left hand of the back around the left

shoulder of Apolonio Ikoy, who was the one who had boxed Cornelio Soliman, and pushed him

forward, firing at him with a discharge from his Thompson submachine gun which killed him

right then and there. Another bullet of the same discharge by Meliton Buyco found its mark in

the body of Irineo Gellangala, who was in almost a straight line from the spot from which

Apolonio Ikoy was; that Irineo Gellangala fell and died instantaneously; that the accused

appellant Meliton Buyco fired another shot aimed at a group of persons, among them Pedro

Zambales and his son Napoleon Zambales, and a bullet of this last shot hit Napoleon Zambales,

who died after six days in St. Paul's Hospital, City of Iloilo; that Eusebio Davila tried to place

Meliton Buyco under arrest but the latter threatened him with his Thompson submachine gun,

and when Eusebio Davila attempted to succor the three wounded persons, Meliton Buyco warned

him to withdraw from the spot, and in view of this attitude on the part of the accused, Eusebio

Davila desisted from his purpose through fear that he might be another victim of Meliton Buyco.

Upon examination of the corpse of the deceased Apolonio Ikoy by Doctors Ferrer and Cartagena,

there were found three wounds in his body, one which entered the found three wounds in his

body, one which entered the back on the level of the right scapula, another a little below toward

the angle of the right scapula, and a third on the left side near the lumbar region, which wounds

caused the instantaneous death of Apolonio Ikoy (Exhibit C); on the corpse of Irineo Gellangala

there was found one wound in the head penetrating the upper part of the hind occipital bone

emerging through the frontal bone, which likewise caused the instant death of said deceased

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(Exhibit D); and in the corpse of Napoleon Zambales there were found the following wounds

according to the medical certificate, Exhibit B:

A bullet wound allowing entrance of 45 cal. bullet situated at the epigastric region with the bullet

lodging just anterior to the skin of the lumbar region to the left side of the eight vertebrae;

Two wounds in the stomach, one at its anterior and another at its posterior aspect; and three

wounds at different loops of the small intestines.

The defense, through the testimony of the appellant Meliton Buyco and of his companions, the

MP soldier Enrique Bernales and Corporal Braulio Taleon, and Lt. Jose M. F. Pelo, and the

musician Antonio Herradura, attempted to prove that on the night in question Corporal Braulio

Taleon, the appellant Meliton Buyco, and Pvt. Enrique Bernales, and four other companions,

arrived at barrio Trapiche from their station in Guimbal, near the auditorium where a dance was

being held; that the jeep used by them developed engine trouble, and while they where fixing it,

they heard that a fight was going on inside the auditorium causing public disorder which the

municipal policemen under the command of Chief Eusebio Davila could not pacify; that the

accused Meliton Buyco, followed by Cpl. Braulio Taleon and Private Enrique Bernales, entered

the auditorium, intervened in the fight to pacify the combatants, but were unsuccessful; that one

of the combatants hurled himself against Corporal Taleon, wrested from the latter his rifle and

aimed the same at him, who had fallen on the ground; that the appellant, upon seeing this, fired a

shot from his Thompson submachine gun at the individual who afterwards resulted to be

Apolonio Ikoy, the latter falling dead; that after these events, and for fear of reprisal which might

come from the relatives of Apolonio Ikoy, the MP patrolmen fled from the place and finally

reached their detachment station in Guimbal, where they reported the incident to their chief, Lt.

Belo.

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The trial judge, who saw, heard and observed the testify, did not believe the version given by the

latter. Below we quote the analysis that His Honor made of the defenses version as related by its

witnesses:

E juzgado no de credito a la version presentada por la defensa mediano (mediante) el testimonio

de Meliton Buyco, y de sus compaeros Enrique Bernales y Braulio Taleon y del musico

Antonio Herradura.

El testimonio de teniente Jose M. F. Belo no tiene materialidad al caso de autos ni constituye

defensa a favor del acusado Meliton Buyco.

El testigo Antonio Herradura, a quien el juzgado estuvo observando en todo el curso de su

declaracion, no ha infundido confianza alguna en el animo del juzgado; pues desde el comienzo

de su testimonio ha estado mintiendo hasta el exretmo de decir que no revelo a ninguno lo que el

habia visto en la noche de autos y que solo lo revelaba por primera vez en aquel dia cuando

declaraba en la vista como tesigo; Ilego tambien a afirmar que no se vio ni se entrevisto con

cualquiera de los abogados de la defensa y que estos le presentaron a el como testigo sin saber de

lo que el tenia que declarar; lo cual el juzgado cree que es una falsedad. Ningun abogado, por

mas leve que sea el delito o falta atribuido a su cliente, cometera la imprudencia de presentar a su

testigo sin antes anterarse de lo que el testigo tiene que declarar.

Sobrer el testimonio del acusado Meliton Buyco y de sus compaeros Enrique Bernales y

Braulio Taleon, el juzgado tampoco les da credito. El Exhibit E, presentado en contrapruebas,

que es la transcripcion fiel by correcta de las notas taquigraficas tomadas por el taguigrafo Sr.

Alfredo b. Corua de la declaracion del cabo Braulio Taleon el febrero 23, 1946, ante la (el)

fiscal Sr. Jose M. Zambarrano, que se constituyo en el lugar del suceso para investigar el caso de

autos, y en el que entre otras cosas Braulio Taleon declara que:

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. . . I just feel he was trying to grab my Thomson, but he was notable to get the Thompson. . . .

(El subrayado es nuestro);

contradice la pretension de la defensa de que Apolonio Ikoy arrebatoel Thompson submachine

gun de Braulio Taleon, cuando este estaba caido en tierra, y que le apunto con dicha arma.

Braulio Taleon trato de explicar esta contradiccion, diciendo que cuando le investigaba el fiscal

Zambarrano no se acordaba de todo lo ocurrido en la noche de autos por haberse desvelado

aquella noche, y que en el dia la vista, Mayo 2, 1946, ya se acordaba muy bien de los detalles del

suceso. Al efecto, cuando el juzgado le hizo repetir Braulio Taleon, druante la sesion de la tarde,

lo que el habia de clarado en ingles durante la sesion de la maana el testigo lo repitio

rapidamente en el mismo lenguaje ingles palabra por palabra y sin parar hasta terminar. Esto

demuestra, como lo ha observado el juzgado, que la declaracion de Braulio Taleon estaba

preparada de antemano y bien estudiada de memoria con el proposito de no equivocarse en su

testimonio.

En cuanto a la declaracion del acusado Meliton Buyco, estando la misma amoldada al testimonio

de sus testigos a quienes el juzgado no da credito, no merece favorable consideracion del

juzgado.

Es un hecho no discutido que la causa de la muerte de Apolonio Ikoy, Ireneo Gallangala y

Napoleon Zambales se (ha) debido a las heridas causadas por el acusado Meliton Buyco al

disparar descargas de su Thompson submachine gun contra ello. (Appendix, Appellant's Brief,

pp. VII-X.)

On page 70 of the stenographic transcript there appear, indicating the way the trial judge was

impressed by the testimony of the defense witness Herradura, the following question and answer:

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JUZGADO: Debe usted tener en cuenta que el Juzgado esta observando su actitud y manera de

declarar en este asunto?R. Si, Seor.

There is much in what the Solicitor General says in his brief about the unlikelihood of the

defense's version to the effect that Ikoy attacked Corporal Taleon, felling him down, wrested

from him his Thompson submachine gun, and was aiming the weapon against the corporal when

he (Ikoy) was shot by the accused. Among other things, the Solicitor General points out that

Taleon testified before the fiscal on the very day following the incident to the effect that Ikoy did

not succeed in getting hold of his gun (see also t.s.n., PP. 79-80). That Taleon's gun allegedly

wrested from him by Ikoy was not exhibited as evidence at the trial although it appears that

immediately after the incident it was taken by Taleon with him, is also mentioned by the

Solicitor General as another indication of the improbability of the version of the defense. It is

stated in this connection that if Ikoy really was holding Taleon's gun when appellant fired at him,

it must have been hit "by the bullets aimed at Ikoy." From the evidence, even that of the defense,

it appears that the accused so fixed the firing mechanism of his submachine gun that a single pull

at the trigger would fire several bullets automatically in succession. It is also pointed out that the

admitted flight of the "MP's after the fall of Ikoy, from fear of retaliation from the latter's

relatives, is indicative of guilty conscience, for otherwise, since they were all armed with

Thompson submachine guns, surely better armed than those relatives could possibly be, that fact

would have enabled them to stand their ground if they really were legally performing their duty.

It seems very unlikely that Ikoy, a plain citizen, who had had no trouble with Corporal Taleon,

from aught that appears in the record, should assault this officer of the law, who was armed with

a weapon no less deadly than a Thompson submachine gun and was accompanied by several

members of the MPC all likewise armed. And it is still harder to conceive under such

circumstances that Ikoy, not satisfied with allegedly downing the corporal, should wrest from

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him his gun and attempt to fire at him with it, within sight and near presence of the latter's

companions. For these and other reasons not necessary to set forth, it is no wonder that the trial

judge not only was not favorably impressed by the version of the defense but positively believed

that the witnesses who gave that version were not telling the truth.

On the other hand, the accused admits the killing and his counsel frankly asserts in his brief (p.

7) that his client, acting in defense of the person of Corporal Taleon "directed a burst of TG

(Thompson Gun) shots to Taleon's assailant." Here, then, is an admission that the accused

discharged more than one shot at the deceased. Having thus admitted that he killed the victim, it

was incumbent upon the accused to offer a justification satisfactory to the courts to exculpate

him. He endeavored to do this to carry the burden of proof that had been shifted on him

through the witnesses that he presented at the trial and himself. The trial judge who saw, heard,

and observed the witnesses testify was impressed by them in the manner described in his own

words quoted above. A careful review of the evidence and the record has failed to indicate

sufficient reasons for our disturbing the findings of fact made by the trial judge. Defense counsel

strenuously argues in effect that it is unbelievable that the appellant should have killed the victim

if it had not been for the purpose of defending his corporal from the alleged threat of Ikoy to

shoot. However, here is a case where the defense thus setup has failed to be established to the

satisfaction of the courts of justice. In such a case, the killing being admitted, the law presumes

that there was therefor (U.S. vs. Ricafort, 1 Phil., 173,U.S. vs. McMann, 4 Phil., 561;U.S. vs.

Reyes, 18 Phil., 495;U.S. vs. Balmori, 18 Phil., 578;People vs. Francisco, 44 Off. Gaz., 4847.)

The law must be applied to the facts. In the mind and eyes of the law in such cases, even though

the motive might have been successfully cancelled from the human perception of others, and

might be known only to the agent and to his God, still there it was impelling the agent to the

criminal transgression. The defense would have us deem it strange that the appellant should have
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willfully killed the three victims above named. But truth is at times stranger than fiction, and

under the established facts the actual case is one of those instances.

As said in theRicafort case,supra, ". . . In this, as in almost every crime apparently without

motive, the motives which might exist are innumerable motives unknown perhaps to the

relatives of the deceased who testified at the trial and not even disclosed to the three who

cooperated in a certain measure in the crime."

In the McMann case,supra, the court said: "The question of motive is of course very important

in cases where there is doubt as to whether the defendant is or is not the person who committed

the act, but in this case, where it is proved beyond all doubt that the defendant was the one who

caused the death of McKay, it is not so important to know the exact reason for the deed." In the

case at bar the accused admits having caused the death of the victims, aside from the evidence

against him.

In theBalmori case,supra, we find the same idea expressed in a different way thus;

But, argues counsel, why should they set the fire in the presence of Agapita Rivera, well

knowing that their act was seen. We do not definitely know. Neither did we know, in a case

before us some months ago, why the accused, in apparent cold blood, killed three grown persons

and a little babe in plain view of several persons. We know only that he did it. While motive is

generally of great importance in a criminal case, it is not absolutely indispensable. The evidence

in the case relating to the actual commission of the crime may be so overwhelming that the

question of motive may become secondary. (U.S. vs. Balmori, 18 Phil., 578, 590.)

The trial judge found and held that the defendant was guilty of the crime charged; namely, triple

murder, and imposed upon him the penalty of reclusion perpetua, with indemnity to the heirs of

Apolonio Ikoy in the sum of P2,000, to the heirs of Irineo Gellangala in the sum of P2,000, and

to the heirs of Napoleon Zambales also in the sum of P2,000, with the accessories of the law, and

to pay the costs. In this we do not fully concur with his Honor.
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The evidence discloses, as found by the same judge, that Apolonio Ikoy and Irineo Gellangala

died from bullets discharged by the same shot which was aimed at the former. It will be

remembered that the shot was fired from a submachine gun and, as already stated, it appears that

the appellant to fixed the mechanism of his submachine gun that a single pull at the trigger

would fire several bullets automatically in succession. Viada (Vol. II, 5th ed., p. 529),

commenting on article 90 of the Spanish Penal Code, corresponding to article 48 of ourRevised

Penal Code,gives an example of the first case mentioned therein of a single act constituting two

or more grave or less grave felonies as follows: A person fire a gun against another with

intention to kill the latter, and not only kills him but also a third person who was beside the

victim: here, he says we have a single act, a single shot, which produces two homicides. In the

instant case, as regards Apolonio Ikoy, the evidence discloses that, while Apolonio Ikoy had his

back towards Meliton Buyco, the defendant-appellant, the latter got hold of the former's right

shoulder, pushed him forward and while Ikoy's body was moving in the direction of the push,

Buyco fired at this back (t.s.n., p. 14). It, therefore, appears that the aggressor employed means,

methods or froms in the execution of the crime which tended directly and specially to insure its

execution without risk to himself from the defense which the offended party might make

that

the act was committed with treachery. This qualified the killing of Apolonio Ikoy as murder

(Rev. Penal Code, art. 248).

The killing of Irineo Gellangala under the evidence must be classified as homicide, because the

wrongful act done consisting in the killing of Ireneo Gellangala constituted a felony (delito) for

which said agent is criminally liable, pursuant to article 4, paragraph 1, of theRevised Penal

Code (see alsoU.S. vs. Diana, 32 Phil., 344), which act is presumed to be voluntary (U.S. vs.

Gloria, 3 Phil., 333, 335).

It makes no difference whether the defendant's intention was to strike Dionisio Legara with the

butt of the billiard cue or not, for the blow fell on the head of Cayetano Gomez. . .
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The same crime would have been committed if the injured man and the deceased had been

Dionisio Legara, instead of the defendant's nephew, Cayetano Gomez; the crime of homicide

would have been committed just the same and one man would have been deprived of his life by

the criminal act of another. (U.S. vs. Diana, 32 Phil., 344, 348.)

. . . Although the wrongful act be committed against a person other than the one whom it was

intended to injure, this fact does not excuse the offender from criminal liability for the voluntary

commission of a wrongful act or misdemeanor, according to paragraph 3 of article 1 of the Penal

Code (Now art. 4 ofRevised Penal Code.per Arellano, C. J., inU.S. vs. Maisa, 8 Phil., 597).

By virtue of article 48 of theRevised Penal Code,as amended by Act No. 4000, the murder and

homicide thus resulting from that single discharged should be punished with the capital penalty,

i.e., the penalty for the more serious offense in the maximum period or degree.

As to the death of Napoleon Zambales, the evidence reveals that it resulted from another and

different shot by the same defendant-appellant from the same gun. The evidence discloses that

after discharging the shot which killed Apolonio Ikoy and Irineo Gellangala, the accused holding

his gun with the barrel pointing the direction where he was facing, changed his position to face

toward one side and fired another burst from the gun, which shot hit Napoleon Zambales (t.s.n.

p. 5). Six days later this third victim died in St. Paul's Hospital. Under art. 249, in relation to

article 4, paragraph 1, of theRevised Penal Code,the instant defendant must be held to have

thereby committed the crime of homicide. InU.S. vs. Gloria. 3 Phil., 333, 335,this Court held

that:

. . . All acts punishable by the law are presumed to be voluntary in the absence of proof to the

contrary. With respect to crimes of personal violence, the penal law looks particularly to the

material results following the unlawful act and holds the aggressor responsible for all the

consequences thereof.
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This last killing is a separate homicide also included in the charge and proven without objection

on the part of defense counsel. The Supreme Court of Spain held in a dispute, discharges four

shots from a pistol, mortally wounding with the first one of the combatants and inflicting with

the second physical injuries upon another, should be punished for the said crimes separately in

accordance with article 88 of the Spanish Penal Code upon the ground that, although the shots

were fired successively, they did not constitute onesinglebut two diverse act, for the two

different persons at whom they were directed (II Viada, 5th ed., pp. 633-634). The same Tribunal

in its judgment of February 7, 1879, held that a person who, posting himself in front of four

individuals, fires four shots with a pistol saying: "toma tu toma tu," wounding two of them, is

guilty of four different crimes of discharged of firearm against a determinate person, two

complexed with that of physical injuries, since the four shots were produced byfour distinct

acts(III Viada, 5th ed., p. 636).

The penalty corresponding to the killing of Napoleon Zambales, there being neither aggravating

nor mitigating circumstance, is reclusion temporal in its medium period (Revised Penal Code.

art. 249).

Wherefore, the judgment appealed from is hereby modified so that appellant Meliton Buyco, as

he is hereby, convicted of the crime of murder complexed with homicide for the deaths of

Apolonio Ikoy and Irineo Gellangala, for which, pursuant to article 48 of theRevised Penal

Code,in the opinion of a majority of this Court the penalty of death should be imposed upon

him, but there being no unanimity in this respect, said penalty is hereby lowered to reclusion

perpetua; and he is hereby convicted of the crime of homicide, without any modifying

circumstance, for the death of Napoleon Zambales, for which the indeterminate penalty of 6

years and 1 day ofprision mayor to 14 year, 8 months and 1 day of reclusion temporalis hereby

imposed on him, pursuant to article 249 of theRevised Penal Code,in relation with section 1

ofAct No. 4103(Indeterminate Sentence Law), as amended by section 1 of Act No. 4225. In all

other respects, the judgment appealed from is affirmed. So ordered.
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Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones, Padilla and Tuason, JJ., concur.

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art 6.48 case 7-8