11. People vs.

Oliva

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR OLIVA

@ Ka Ambot, EDGAR MANLAPAZ, BOCOY SEACHON, METCHEL
IBAYA, JOEL CINCO, AMY INOPIA @ Ka Jinky, Ka Nelly, JOHN
DOE and PETER DOE, Ka Yoli, Ka Gerson, NOLI SALCEDO @ Ka
Tony, BOGOY MANLAPAZ, VIRGILIO PANGUILINAN @ Ka
Ariel, Ka Riza, Ka Liza, accused.
OSCAR OLIVA and NOLI SALCEDO, accused-appellants.
DECISION
QUISUMBING, J.:
On appeal is the decision rendered on June 17, 1992, by the Regional Trial Court of
Masbate, Masbate, Branch 48, in Criminal Case No. 5132, finding appellants guilty of murder
and sentencing them to suffer the penalty of reclusion perpetua and to solidarily pay the heirs of
the victim P50,000 as civil indemnity.
On November 17, 1986, Assistant Provincial Fiscal Jesus Castillo filed an information for
kidnapping which reads:

The undersigned 2nd Assistant Provincial Fiscal accuses Edgar Manlapaz (at
large), Bogoy Seachon (at large), Metchel Ibaya (at large), Joel Cinco, Amy
Inopia alias Ka Jinky (at large), Alias Ka Ambot, Alias Ka Nelly, John Doe and
Peter Doe of the crime of Kidnapping, committed as follows:
That on or about May 26, 1986, in the morning thereof, at barangay Mapea,
Municipality of Masbate, Province of Masbate, Philippines, within the
jurisdiction of this court, the above-named accused confederating together
and helping one another with the used of force, violence and intimidation, did
then and there willfully, unlawfully and feloniously kidnap, detain and keep one
Jacinto Magbojos alias Dagoy against the latters will.
Contrary to law.[1]
First to be arraigned was Joel Cinco who entered a plea of not guilty to the abovequoted
charge. On March 31, 1987, upon motion of the prosecution and with consent of Cinco, the trial
court ordered the provisional dismissal of the case. The case against the rest of the accused who
were at large was ordered archived.

On October 21, 1988, the prosecution filed a motion to reinstate the case with motion to
amend and admit amended information charging Oscar Oliva alias Ka Ambot as one of the coaccused in the kidnapping.[2] The trial court admitted the amended information. On February 1,
1989, Oscar Oliva was arraigned and entered a plea of not guilty.
On March 1, 1989, the remains of the victim were exhumed. On May 9, 1989, Assistant
Provincial Prosecutor Juan Gallego filed a second motion to admit amended information, this
time, charging the accused with kidnapping with murder. The trial court admitted the said
information which reads:

The undersigned 4th Asst. Provl. Prosecutor accuses Oscar Oliva alias Ka
Ambot, Edgar Manlapaz, Bocoy Seachon, Metchel Ibaya, Joel Cinco, Amy
Inopia alias Ka Jinky, alias Ka Nelly, John Doe, and Peter Doe, Ka Yoli, Ka
Gerson, Noli Salcedo alias Ka Tony, Bogoy Manlapaz, Virgilio Panguilinan
alias Ka Ariel, Ka Riza, Ka Liza, of the crime of Kidnapping with Murder,
committed as follows:
That on or about May 26, 1986, in the morning thereof, at Barangay Mapea,
Municipality of Masbate, Province of Masbate, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused conspiring
together, confederating with and mutually helping one another with the use of
force, violence and intimidation, did then and there willfully, unlawfully and
feloniously kidnap, detain and keep one Jacinto Magbojos alias Dagoy
against the latters will, and with intent to kill, with treachery, evident
premeditation and use of superior strength, did then and there willfully,
unlawfully and feloniously took turns in stabbing and shooting the victim in the
different parts of his body causing his instantaneous death.
CONTRARY TO LAW.[3]
Upon arraignment, appellants Oliva and Salcedo, assisted by their respective counsel,
entered a plea of not guilty to the charge. Thereafter, trial on the merits ensued. Subsequently,
the trial court rendered judgment, convicting Oliva and Salcedo of murder but acquitting Joel
Cinco of the offense charge, thus:

WHEREFORE, the Court finds the accused Oscar Oliva alias Ka Ambot and
Noli Salcedo alias Ka Nelly GUILTY of the crime of murder established by
proof beyond reasonable doubt and hereby sentences said accused both
Oscar Oliva and Noli Salcedo the penalty of RECLUSION PERPETUA and to
pay jointly and solidarily the amount of P50,000.00 to the heirs of the late

Jacinto Magbojos, Jr. without subsidiary imprisonment in case of insolvency

and to pay the costs.
WHEREFORE, the Court finds no sufficient evidence to warrant the conviction
beyond reasonable doubt against accused Joel [C]inco and hereby renders a
judgment of ACQUITTAL in favor of accused JOEL CINCO. His immediate
release is hereby ordered unless he is legally detained for another distinct
crime.
SO ORDERED.[4]
The prosecution evidence, upon which the finding of guilt beyond reasonable doubt was
based, is summarized by the trial court as follows:

In the early morning of May 26, 1986, Jacinto Magbojos Jr. left their house
to count coconuts at his fathers coconut land uphill. At about 8:00 oclock
that same morning, Joel Cinco, Michell Ibaya both out-of-school youth came
to the house of the latter. After being informed by one of the Magbojos
children that Jacinto went uphill for an errand, Joel Cinco and his companions
immediately left. At about 10:30 oclock that morning, Jacinto Magbojos Jr.
arrived home. At about that time, Mrs. Magbojos was cooking. Suddenly, four
persons arrived and entered the house. A few minutes later, her husband
Jacinto was hogtied by tying his hands at his back and Mr. Magbojos was told
by the group to go out. The group with Jacinto Magbojos Jr. passed through
the kitchen door while Mrs. Magbojos and the children passed the other door
to the apple tree downstairs. The group took Jacinto Magbojos Jr. away and
they walked towards the western direction.
Earlier that day, Arturo Inopia, a farmer and also a resident of barangay
Mapia, Masbate, had visitors in his house at about 8:30 or 9:00 oclock in the
morning, namely: Ka Ambot, who turned to be Oscar Oliva, Ka Nelly who
was later identified as Noli Salcedo, Ka Jinky and Jun Pangilinan who were
all in green (fatigue) uniforms and armed, and Bogoy Manlapaz and Joel
Cinco - the latter two being unarmed and without uniforms. Arturo Inopia
asked why they were in his house, and Ka Ambot replied that they have a
mission to get Jacinto Magbojos Jr. After hearing the report of Jun de los
Reyes, the group of Ka Ambot left for the barangay center of Mapia,
Masbate but only after Ka Ambot gave a stern warning to Arturo Inopia not to
report to the police authorities, otherwise, he (Inopia) will be killed. Later, at

about noon of that same day, May 26, 1986, he was informed by his brotherin-law, Julito Soler, that they got Dagoy Magbojos.
Elpidio Labajata, likewise a farmer, a resident of and a neighbor to Jacinto
Magbojos Jr., that same morning of May 26, 1986, also went to the mountain
to collect the corn he loaned to Jose Balatucan. In going to Balatucans
house, he passed by the residence of Arturo Inopia where he saw several
persons, four of whom were in fatigue uniforms and carrying firearms. In the
group were Jun Pan[g]ilinan, Joel Cinco, Oscar Oliva and Noli
Salcedo. When he returned home that same day, he met six (6) persons, two
of whom were Jacinto Magbojos Jr. and Julio (Bagoy) Seachon. He noticed
that Jacinto Magbojos Jr. was hogtied by coralon ropes and appeared very
weak and with abrasions on both sides of his face and can hardly talk. He
recalled that at that time, Jacinto Magbojos Jr. was wearing white shorts with
green linings and a red T-shirt. He was investigated by Oscar Oliva and he
was asked where he resides and whether he knew Jacinto Magbojos
Jr. When he answered affirmatively, he was also hogtied by Oscar
Oliva. However, he pleaded for his life and fortunately, he was released but
with the condition that he will leave Mapia, Masbate.
Sometime in early 1989, Renato Magbojos, a policeman assigned to INP,
Dimasalang, Masbate and an elder brother of Jacinto Magbojos Jr., met
Levelito Tubieron, a resident of barangay Cancahurao, Baleno, Masbate, on
board the MV Misamis Occidental. Levelito Tubieron was bound for Manila
and told Renato that he knew the place where his brother Jacinto Jr. was
buried. Tubieron further told Renato Magbojos that he was present when
Jacinto Jr. was buried because he was the one who was asked by the group
of Oscar Oliva to accompany them to the burial site in the land owned by
Jeremias Bello at sitio Cabuluan, Barangay Cancahurao, Baleno, Masbate.
On March 1, 1989, the remains of Jacinto Magbojos Jr. were exhumed from a
shallow graveyard, a dry sand beside the hill at sitio Cabuluan. The digging
itself of the grave was done by Levelito Tubieron, assisted by Tito Bello, PTA
president, and witnessed by no less than Elena Bello, the acting barangay
captain of Cancahurao, police officers led by Sgt. Gener Magbojos and Pat.
Virgilio Cabuhat and some barangay residents. Recovered from the
graveyard were human bones, a T-shirt, a pair of short pants, coralon rope, a
brief and black rubber band. On the witness stand, these personal belongings
were identified to be those worn by the victim Jacinto Magbojos Jr. on that
fatal day of May 26, 1986 by no less than his (ex) wife, Erlinda

Gonzaga. After they were examined by Dr. Emilio Quemi, the remains of the
late Jacinto Magbojos Jr. were buried at the Masbate New Cemetery.[5]
Appellant Oliva claimed that he had no participation in the commission of the crime. In
summary, he testified that:

[He] has been in Manila since last week of December 1985. He boarded the
ship from Masbate in the company of one Natividad Querbo, a resident of
Nabangig, Palanas, Masbate, and went with her to Valenzuela, Bulacan. He
stayed with Natividad Querbo in the house of the younger brother of the latter
at Kinalagan, Valenzuela, Bulacan. After the EDSA revolution, he came home
to Masbate and stayed in the third district as NPA commanding officer. Earlier,
in 1982 or 1983, Oscar Oliva has been a territorial commander. In 1988, he
was promoted and handled the so called REFO RECOM V organization
tasked to unite Masbateos in the labor front, with the restaurant of Q-Mart,
Makati and Manila as their centers of activities. This lasted for one (1) month.
Later, Oscar Oliva was summoned by one Sotero Llamas to report to
Bicol. He was reprimanded sometime in June 1986. In July 30, 1988, he
surrendered to Lt. Colonel Pansepane of the 2nd Infantry Brigade, Philippine
Army at Matacon, Polangui, Albay and thereafter stayed at Mahayahay,
Talusan, Zamboanga del Sur where his wife has an elder sister. From there,
they went to Manila, then Navotas. Oscar came back to Masbate to follow up
his application papers for amnesty. During that period, he was granted by the
Philippine Constabulary a safe conduct pass for one (1) month. While
transacting with the local office of the Department of Social Welfare and
Development, he was invited by the commanding officer of the PC-INP
command through Lt. Poses. He reported to the PC camp and it was there
where he was informed that a case has been filed against him. He was not,
however, showed a copy of the warrant for his arrest. Oscar Oliva admitted
on the witness stand that when he was promoted to the position of Intelligence
Officer, his entire jurisdiction is the entire Masbate territory. It was during the
ceasefire agreed by and between the government and the CPP-NPA
insurgents that he was able to reach barangay Mapia and to conduct
pulong-pulong. He likewise stated in open court that Levelito Tubieron is in
the list of shoot-to-kill order, while Arturo Inopia is allegedly a member of the
(dreaded) group called Walang Patawad, having pretended as an NPA
member for business extortion.[6]

Appellant Salcedo also maintained his innocence. He gave his own version of the story as
follows:

On May 26, 1986, he was in Metro Manila working as a furniture polisher in

the shop owned by a certain Captain Condor. He left Masbate for Manila
sometime in 1985, and returned to Masbate in 1987 to visit his parents, after
which he again went to Manila. In 1988, he came home to Masbate, and
engaged himself in farming at Lagta, Baleno. He said he had no knowledge
of the incident involving Jacinto Magbojos Jr. and he does not know him, nor
does he know Oscar Oliva neither Joel Cinco. He was apprehended on
August 5, 1988 at the house of his cousin Arturo Sulat, neighbor of Ben Albao,
likewise a cousin, at barangay Kinamaligan, Masbate, Masbate. On that day
he was arrested, Noli Salcedo was on his way to Baleno. When he was
already on board the police vehicle, he jumped out and attempted to escape
from his captors. Unfortunately, he fell outbalanced and the police officers
fired several shots at him and he was hit at the right foot and on the left
thigh. He was brought to the Masbate Provincial Hospital where he was
treated for about three (3) months. He stated that he has not gone to
barangay Mapia which is about five (5) kilometers away from Lagta, Baleno,
and would take approximately five hours walking.[7]
On the basis of the evidence presented by the prosecution, the court found Oliva and
Salcedo guilty beyond reasonable doubt of murder, not kidnapping with murder. However, Joel
Cinco was acquitted. Hence, insisting on their innocence, Oliva and Salcedo instantly appealed.
[8]

In his brief, Oliva raises the following errors allegedly committed by the trial court:
[I]

THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR

IN TRYING THE ACCUSED-APPELLANT OSCAR OLIVA OF THE CRIME OF
KIDNAPPING WITH MURDER AND CONVICTING HIM OF MURDER,
CONSIDERING ITS FULL KNOWLEDGE OF THE PROSECUTION AS WELL
AS DEFENSE EVIDENCE THAT SAID OSCAR OLIVA IS A MEMBER OF
THE COMMUNIST PARTY OF THE PHILIPPINES AND A COMMANDER OF
THE NEW PEOPLES ARMY. GRANTING WITHOUT ADMITTING THAT HE
CAN LAWFULLY BE PRESUMED AS THE KILLER OF THE
VICTIM. ALTHOUGH THE SAME IS NOT ALLOWED BY THE
CONSTITUTION AND THE RULES OF COURT AND JURISPRUDENCE,

AND ABOVE ALL, NOT WARRANTED BY EVIDENCE, IF AT ALL HE

SHOULD BE PROSECUTED FOR A CRIME, HE MAY BE SO PROSECUTED
FOR THE CRIME OF REBELLION WHICH ABSORBS THE CRIME OF
KIDNAPPING OR MURDER, HENCE, THE DECISION APPEALED FROM
SHOULD BE SET ASIDE.
[II]

THAT GRANTING WITHOUT ADMITTING THAT THE ACCUSED-APPELLANT OSCAR

OLIVA COULD BE SEPARATELY PROSECUTED FOR THE CRIME OF KIDNAPPING
WITH MURDER WHICH CRIMES ARE ABSORBED BY THE CRIME OF REBELLION
AND COMMITTED IN FURTHERANCE THEREOF, THE HONORABLE LOWER
COURT COMMITTED A REVERSIBLE ERROR IN CONVICTING HIM OF THE CRIME
OF MURDER BASED MERELY ON ALLEGED CIRCUMSTANTIAL EVIDENCE, AND
WHICH, MISERABLY, DOES NOT PROVE BEYOND REASONABLE DOUBT THAT HE
WAS THE ONE WHO KILLED THE VICTIM, SINCE THE ALLEGED WITNESS TO THE
KILLING AND/OR BURIAL OF THE VICTIM IN THE ALLEGED PERSON OF LEVILITO
TUBIERON WAS NEVER PRESENTED BY THE PROSECUTION TO TESTIFY IN
COURT IN ORDER TO CONFIRM THE HEARSAY TESTIMONY OF PAT. RENATO
MAGBOJOS.[9]
For his part, Salcedo imputes only one error on the trial court, as follows:
THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT NOLI SALCEDO
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. [10]
The issue for resolution is whether or not the trial court erred in giving credence to the
prosecution evidence and convicting appellants for the crime of murder, then sentencing them
to reclusion perpetua.
First, Oliva asserts that he should have been charged with rebellion instead of kidnapping
with murder considering that he is a member of the Communist Party of the Philippines and a
Commander of the New Peoples Army. He claims that the killing was committed in furtherance
of rebellion, hence, it should be absorbed in rebellion.
Olivas contention that he should have been charged with and tried for rebellion lacks factual
and legal basis, hence, bereft of merit. True, one can be convicted only of rebellion where the
murders, robberies and kidnapping were committed as a means to or furtherance of rebellion.
Corollarily, offenses which were not committed in furtherance of the rebellion, but for personal
reasons or other motives, are to be punished separately even if committed simultaneously with
the rebellious acts.[11] In the instant case, there was no evidence at all to show that the killing of
Jacinto Magbojos Jr. was in connection with or in furtherance of their rebellious act. Besides, it
was not indubitably proved that Oliva was indeed a member of the New Peoples Army.

Second, Oliva contends that there are no sufficient circumstances to prove beyond
reasonable doubt that he took part in the commission of the crime. He claims that it was not
conclusively established that he is Ka Ambot.[12]
For his part, Salcedo contends the trial court erred in ruling that he was one of the
perpetrators of the crime.[13]
The foregoing contentions are related and so we shall discuss these together.
True, there is no direct evidence as to who actually killed the victim. Nevertheless, direct
evidence of the commission of the crime is not the only matrix whereby the trial court may draw
its conclusions and findings of guilt. It is settled that conviction may be based on circumstantial
evidence provided that the following requisites must concur: (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.
Circumstantial evidence is of a nature identically the same with direct evidence. It is equally
direct evidence of minor facts of such a nature that the mind is led intuitively or by a conscious
process of reasoning to the conviction that from them some other fact may be inferred. No
greater degree of certainty is required when the evidence is circumstantial than when it is
direct. In either case, what is required is that there be proof beyond reasonable doubt that the
crime was committed and that the accused committed the crime.[14]
As noted by the trial court and the Solicitor General, the evidence is replete with details to
prove the fact of death of the victim and to sustain the guilt of appellants. These are:
(1) Arturo Inopia declared that at about 8:30 A.M. on May 26, 1986, Ka Ambot, Ka Nelly,
Ka Jinky, Jun Panguilinan, who were all armed, Bogoy Manlapaz and Joel Cinco dropped by at
his house in Mapina, Masbate and told him that they have a mission to get Jacinto Magbojos Jr..
He later identified Oliva and Salcedo as the same persons whom he knew as Ka Ambot and Ka
Nelly respectively.[15]
(2) Erlinda Gonzaga, the victims wife, testified that at about 10:30 A.M. on that day, four
persons with long firearms entered their house, hogtied her husband, and forcibly took away the
latter. She also stated that at that time her husband was wearing white short pants with green
lining and red Adidas t-shirt.[16]
(3) Elpidio Labajata testified that while he was on his way to the mountain in the morning of
the same day, he saw Oliva, Salcedo, Jun Panguilinan, Joel Cinco and two others in the house of
Inopia. He also said that four of them had long guns. He also declared that when he returned
home in the afternoon, he met the victim and Julio Seachon in the custody of Oliva, Salcedo and
two other persons. He noticed that the victim was hogtied by coralon rope and appeared very
weak and with abrasions on both sides of his face. He recalled that the victim was wearing red tshirt and white short pants with green lining.[17]

(4) The victim was never seen alive again.

(5) The red shirt and white short pants together with the skeleton recovered from the shallow
grave in Baleno, Masbate are the same clothing worn by the victim on the day he was
abducted. The victims brother also identified the bracelet recovered from the grave as one
belonging to the victim.[18] Also recovered was the rope used to hogtie the victim.
(6) Dr. Emilio Quemi, a government physician, issued a certificate of death attesting to the
death of Jacinto Magbojos Jr.[19]
Concededly, there were no eyewitnesses who testified regarding the actual killing of the
victim. Nonetheless, the abovecited circumstances taken together constitute in our view one
unbroken chain leading to the fair and reasonable conclusion that appellants, to the exclusion of
others, are responsible for the victims death.
Appellants claim that their identities were not positively established are belied by the
testimonies of witnesses. Inopia had seen Ka Ambot, Ka Nelly, Ka Jinky and Jun Panguilinan
three times prior to the incident. He used to give them food and he also attended the pulongpulong conducted by Ka Ambot. In fact, even Oliva admits that he knows Inopia as one of the
members of the group called Walang Patawad.[20] Certainly, Inopia knows Ka Ambot and Ka
Nelly although earlier he did not know their real names. For his part, Labajata had seen Ka
Ambot and Ka Nelly on several occasions before the incident. He saw them again in the morning
on the day of the incident at the house of Inopia. In the afternoon, he met them again and this
time, the victim was in their custody. He was also investigated and then hogtied though later
released by Ka Ambot after pleading for his life.[21] For sure, Labajata had gained familiarity with
Ka Ambot and Ka Nelly, hence, recognition was facilitated.
Appellants also insist that the prosecution should have presented in court Levelito Tubieron
who was allegedly the one tasked by the perpetrators to bury the body of the victim. In our view,
this failure is not fatal to the case of the prosecution. The prosecution has discretion to determine
whom it should present as its witness. Note that what Tubieron told Patrolman Renato Magbojos,
the victims brother, is the location where the victim was buried. Note further that the victims
remains were later dug up and recovered in said place. The fact of death and the identity of the
victim were established by other duly proved circumstances.
Now, with regard to appellants alibi. Oliva would like us to believe that he was in Metro
Manila when the crime was committed. He said that he went there sometime in 1985 and
returned to Masbate after the EDSA revolution.[22] Likewise, Salcedo claimed that from 1985 to
1987 he was in Metro Manila, working as a furniture polisher. He declared that he had no
knowledge of the incident until he was apprehended.[23]
In order that alibi will prevail, the defense must establish by positive, clear and
satisfactory proof that it was physically impossible for the accused to have been at the scene of

the crime at the time of its commission, and not merely that the accused were somewhere else.
[24]
This, appellants failed to show. As regards Oliva, his admission that he went back to Masbate
after the EDSA revolution would not rule out his presence in the scene of the crime during its
commission. Note that the EDSA revolution took place in the last week of February 1986.
Hence, it was not impossible for him to be in the crime scene on May 26, 1986. With regard to
Salcedo, aside from his own declaration that he was in Metro Manila at the time of the incident,
no other evidence was presented to support his alibi. Besides, Oliva and Salcedo were positively
identified as among the perpetrators of the crime. Accordingly, their alibis must fail.
However, we cannot agree with the finding of the trial court that the killing was qualified by
treachery. To appreciate treachery, two conditions must be present, to wit: (1) the employment of
means of execution that give the person attacked no opportunity to defend himself or to retaliate;
and (2) the means of execution were deliberately or consciously adopted. [25] The settled rule is
that treachery cannot be presumed but must be proved by clear and convincing evidence or as
conclusively as the killing itself.[26] In the case at bar, although the fact of death and the identity
of the victim and the identity of the perpetrators were established, there is no proof at all on how
the killing was done. Thus, absent any particulars as to the manner in which the aggression
commenced or how the act which resulted in the death of the victim unfolded, treachery cannot
be appreciated.[27] Similarly, the circumstances of evident premeditation and use of superior
strength alleged in the information cannot be appreciated as there is no evidence on record
sufficient to prove the same.
To conclude, since no qualifying circumstance was proved in this case, the crime committed
is only homicide, not murder. Under Article 249 of the Revised Penal Code, the applicable
penalty for homicide is only reclusion temporal. As there were neither aggravating nor
mitigating circumstances found by the trial court or shown after a review of the records, the
penalty in this case shall be fixed in its medium period of reclusion temporal, which ranges from
a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further
applying the Indeterminate Sentence Law, the imposable penalty shall be within the range
of prision mayor as a minimum to reclusion temporal in its medium period as the maximum. The
range of prision mayor is from 6 years and 1 day to 12 years. The span of reclusion
temporal, medium, is from 14 years, 8 months and 1 day to 17 years and 4 months.
WHEREFORE, the assailed DECISION of the Regional Trial Court of Masbate, Masbate,
Branch 48, in Criminal Case No. 5132, is hereby MODIFIED. Appellants Oscar Oliva and Noli
Salcedo are hereby found GUILTY of HOMICIDE and sentenced to suffer a prison term of 10
years of the medium period of prision mayor, as minimum, to 15 years and 10 months and 1 day
of the medium period ofreclusion temporal, as maximum, with accessory penalties provided by
law, to indemnify the heirs of the deceased Jacinto Magbojos Jr. in the amount of P50,000.00.
and to pay the costs.
SO ORDERED.

12. People vs. Lovedioro

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. 28The 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. 38Moreover, 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.

13. People vs. Hernandez

G.R. No. L-23916

October 14, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
DOMINGO HERNANDEZ, defendant-appellant.
Cirilo B. Santos for appellant.
Acting Attorney-General Reyes for appllees

OSTRAND, J.:
The defendant is accused of the crime of rape, the information alleging "that on or about the 26th
day of February, 1925, in the City of Manila, Philippine Islands, the said accused wilfully, unlawfully,
and feloniously, by means of force and by intimidating one Conrada Jocson with killing her with a
knife which said accused held in his hand should she not accede to his wish, did then and there lie
with and have carnal knowledge of said Conrada Jocson, a girl under 12 years of age. That in the
commission of the crime the following aggravating circumstances existed to wit: (1) The accused is
the husband of the grandmother of said Conrada Jocson and (2) the crime was committed with
grave abuse of confidence, inasmuch as the offended and the accused living in the same house."
The defendant is a man 70 years of age and the offended party is a child of 9 years, the
granddaughter of the defendant's wife. There can be no question as to the defendant's guilt. The
evidence shows that he and the offended party were living in the same house and that taking
advantage of the absence of the other inhabitants of the house, he had intercourse with the child by
force and violence. He admits that he did so, but maintains that he was intoxicated at the time and
did not know what he was doing. The testimony of the witnesses for the prosecution is, however, to
the effect that he did not show any signs of intoxication at the time of the commission of the crime or
immediately afterwards.
The court below found the defendant guilty of frustrated rape and sentenced him to suffer ten years
and one day of prision mayor. In holding that the crime was frustrated, the court seems to have been
of the opinion that there can be no consummated rape without a complete penetration of the hymen.
This view is not accordance with the weight of authority; in fact, it is contrary to practically all modern
authorities. In State vs. Johnson (91 Mo., 439), the court held that "finding the hymen intact is not
always proof that no rape has been committed, nor virginity; for the case are not rare where the
hymen had to be removed after impregnation and in order to permit delivery."
In the same case, the court further said:

Any penetration whether reaching to the hymen or not is sufficient to constitute the crime; for
as Lord Meadowbank said in case in Scotland. "Scientific and anatomical distinctions as to
where the vagina commences are worthless in a case of rape; it is enough if the woman's
body is entered; and it is not necessary to show to what extent penetration of the parts has
taken place; whether it has gone past the hymen, into what is anatomically called the hymen,
or even so far as to touch the hymen." (Stewart on Legal Medicine, p. 137.)
1awph!l.net

In People vs. Rivers (147 Mich., 643), the court says:

The law may now indeed be considered as settled that while the rupturing of the hymen is
not indispensable to a conviction, there must be proof of some degree of entrance of the
male organ "within the labia of Pudendum."
In the following cases it has been held that entry of the labia or lips of the female organ, merely,
without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction of the
consummated crime of rape. (Kennyvs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817
[1903]. See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890]; [Tex.]
Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891]; [Wis.] Brauer vs.State, 25 Wis., 413
[1870].)
In the present case the physician who examined the offended party immediately after the
commission of the crime found the labia and the opening of the vagina inflamed together with an
abundance of semen, though the hymen was intact. It also appears from the evidence that the
defendant lay on top of the child for over fifteen minutes and continued his efforts of penetration
during that period; the child testifies that the defendant succeeded in a partial penetration and that
she felt intense pain. In these circumstances, the crime must be regarded as consummated.
The judgment appealed from is therefore modified by finding the defendant guilty of the
consummated crime of rape and, in view of the aggravating circumstances mentioned in the
information, the penalty imposed upon the defendant is hereby increased to seventeen years, four
months and one day of reclusion temporal, with the accessory penalties prescribed by law. In all
other respects the judgment is affirmed with the costs against the appellant. So ordered.

14. People vs. Dasig

G.R. No. 100231. April 28, 1993.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODRIGO DASIG @ KA RUBIN DAKU @ ARMAND; EDWIN NUEZ Y TABANAS @ MABI; ALVIN

DOE @ AL @ KA ALVIN; ROGER DOE @ KA JAMES @ KA PEPE; TUDING ANDRINO @ KA ERMI

@ KA ROEL @ KA GRINGO MONTAYRE; RUBEN DOE @ KA RUBEN @ KA JOJI @ INO
ECHAVEZ; ANASTACIO BANGKAL @ KA JUNIOR; AND CARLITO MAGASIN @ BOBBY, accused,
RODRIGO DASIG, accused-appellant.
The Solicitor General for plaintiff-appellee.
Kinaadman and Archival for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CONFESSION, AS A RULE, ADMISSIBLE; EXCEPTION; NOT
APPLICABLE IN CASE AT BAR. The settled jurisprudence on the matter is that a confession is
admissible until the accused successfully proves that it was given as a result of violence,
intimidation, threat or promise of reward or leniency. Appellant relies on the much abused claim that
his extra-judicial confession was legally defective and hence, should not have been admitted and
considered by the trial judge. This accusation is whimsical and obviously a mere refuge for
appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the
police authorities and the reputation of the lawyer who stood by him during the investigation.
Indubitably established and now a matter of record is the fact that appellant was assisted by Atty.
Parawan who even signed the former's sworn declarations. It is likewise a matter of record that
before appellant made his extra-judicial confession, he was first asked if he was amenable to the
services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of force
and intimidation has not been substantiated by evidence other than his self-serving testimony. as
has been pointed out, such allegation is another naive effort of appellant to back track from his prior
voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with
regularity and legality.
2. CRIMINAL LAW; REBELLION; ABSORBS THE CRIME OF DIRECT ASSAULT WHEN DONE IN
FURTHERANCE THEREOF. The crime of rebellion consists of may acts. It is a vast movement of
men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though
crimes in themselves are deemed absorbed in one single crime of rebellion. 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 the rebellion. It cannot be made a basis of a
separate charge.
3. ID.; ID.; NOT COVERED BY INDETERMINATE SENTENCE LAW (R.A. 4203). The
Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203),
contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes
the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes,
maintains, or heads a rebellion.
DECISION
NOCON, J p:
Appellant, Rodrigo Dasig is now before Us to plead the reversal of his conviction by the Regional
Trial Court, Branch 28, Mandaue City finding him guilty of Murder with Direct Assault.

He was charged together with Edwin Nuez and 6 others who are still at large, in an information
which reads:
"That on or about the 4th day of August, 1987, in the city of Mandaue, of this Honorable Court, the
aforenamed accused, conspiring and confederating together and helping one another, with intent to
kill, treachery, evident premeditation, abuse of superior strength and use of motor vehicle, all armed
with unlicensed firearms, did then and there wilfully, unlawfully and feloniously attack, assault and
shoot one Redempto Manatad, a police officer on traffic duty, at his vital portion which caused his
death soon thereafter, knowing beforehand that the victim was a policeman who was then in the
performance of his official duties."
Upon arraignment, appellant and Edwin Nues entered a plea of "not guilty." However, after the
prosecution had presented its first witness, accused Nues changed his plea of "not guilty" to
"guilty." Hence, the lower court held in abeyance the promulgation of a judgment against said
accused until the prosecution had finished presenting its evidence. While trial was still ongoing,
Nuez died on March 10, 1989, thereby extinguishing his criminal liability.
The facts surrounding this case show that in the afternoon of August 4, 1987, Pfc. Redempto
Manatad, Pfc. Ninah Tizon and Pfc. Rene Catamora were tasked by their commanding officer to
assist in canning the traffic at M.N. Briones and Bonifacio Streets in Mandaue City. Pfc. Tizon
controlled the traffic lighting facility; Pfc. Manatad manned the traffic; while Pfc. Catamora acted as
back-up and posted himself at Norkis Trading building.
At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8) persons, one of whom he
identified as Edwin Nuez, acting suspiciously. He noticed one of them giving instructions to two of
the men to approach Pfc. Manatad. He followed the two, but sensing that they were being followed,
they immediately proceeded to the middle of the road and engaged Pfc. Catamora to a gun battle. At
that instant, Pfc. Catamora heard a series of shots from the other group and thereafter saw Pfc.
Manatad sprawled on the ground. Being out-numbered and to save his own life, Pat. Catamora
sought refuge at the nearby BIR Office from where he saw two (2) persons take Pfc. Manatad's gun
and again fired at him to make sure that he is dead while the rest of the group including Nues acted
as back up. Thereafter, the Nues group commandeered a vehicle and fled from the scene of the
shooting. Pfc. Rene Catamora testified that he can identify accused-appellant Nues because of a
mole at the bridge of his nose near the left eye which he noticed when the accused passed 2 or 3
meters in front of him together with his companions.
On August 16, 1987, two teams of police officers were tasked to conduct surveillance on a
suspected safehouse of members of the sparrow unit located in Peace Valley, Cebu City. Upon
reaching the place, the group saw Rodrigo Dasig and Edwin Nues trying to escape. The team of
Capt. Antonio Gorre captured Nues and confiscated a .45 caliber revolver with 3 magazines and
ammunitions, while the group of Sgt. Ronald Arnejo pursued Dasig, who threw a grenade at his
pursuers, but was shot on his left upper arm and subsequently apprehended. A .38 caliber revolver
with 17 live ammunitions were confiscated from him.
Thereafter, Dasig was brought to the hospital for treatment, while Nues was turned over to the
Metrodiscom for investigation. Meanwhile, Dasig was interrogated by M/Sgt. Ariston Ira of the PC
Criminal Investigation Service on August 19, 1987 at his hospital bed at the Lapulapu Army Hospital
in Cebu City. Assisting Dasig during the interrogation was Atty. Fortunato Parawan of the Creer Law
Office, who was requested by the military to represent appellant who did not have a lawyer. Before

the start of the interrogation, Atty. Parawan asked appellant whether he was willing to avail of his
services, to which appellant agreed. M/Sgt. Ira then appraised Dasig of his constitutional rights. The
interrogation was conducted in Cebuano upon appellant's request.
Dasig confessed that he and the group of Edwin Nues killed Pfc. Manatad. He likewise admitted
that he and Nues were members of the sparrow unit and the their aliases were "Armand" and
"Mabi," respectively. The extra-judicial confession of appellant marked as Exhibit "J" 2 was signed by
him on every page thereof with the first page containing a certification likewise signed by him, which
states: "I hereby certify that the herein statement is free and voluntary, and that I am assisted by my
counsel in the course of this investigation" followed by the signed conformity of Atty. Parawan. The
extra-judicial confession was subscribed and sworn to before Cebu City Asst. Fiscal Salvador
Solima.
In the present appeal, Dasig contends that the procedure by which his extra-judicial confession was
taken was legally defective, and contrary to his Constitutional rights. He further contends that
assuming he conspired in the killing of Pfc. Manatad, he should be convicted at most of simple
rebellion and not murder with direct assault.
Appellant also claims that the custodial interrogation was done while he was still very sick and
consequently, he could not have fully appreciated the wisdom of admitting such a serious offense.
That even with the presence of counsel, his extra-judicial confession is inadmissible in evidence as
said counsel did not actively assist him and advise him of his rights. In effect, his presence was
merely to give a semblance of legality to the proceedings and not to protect appellant against
possible abuses of the investigator. Dasig, likewise questions the sincerity of Atty. Parawan in
protecting his rights considering that the latter is a known anti-Communist advocate and that the law
firm to which he belongs has represented high ranking officers of the Armed Forces of the
Philippines.
We find the argument specious. Fiscal Salvador Solima in his certification, Exhibit "J-7-B," stated
that he had personally examined the affiant and that he is convinced that the latter's statement was
free and voluntary and that the affiant signed the same in his presence and swore under oath as to
the veracity of everything therein. Atty. Fortunato L. Parawan also testified that he assisted the affiant
from the start of the investigation up to its termination. Atty. Parawan testified thus:
"Q Who introduced Rodrigo Dasig to you?
A I inquired from the personnel of the hospital the whereabout of Rodrigo Dasig and I introduced
myself as a lawyer. So they informed me the room of Rodrigo Dasig. At that time I introduced myself
as a lawyer who came to assist the person of Rodrigo Dasig. Once we had a confrontation with
Rodrigo Dasig, I asked him whether he was willing to get me as his lawyer in that investigation. Then
he told me yes.
Q Did he tell you whether he as a counsel of his own choice?
A No.
xxx xxx xxx

Q In other words he accepted your services as counsel in connection with that investigation which
was about to be made?
A Yes.
Q Who are the persons present at that time?
A There were guards outside and inside. There was a man from the CIS in the person of Sgt. Ira,
myself and Dasig.
Q What happened after that?
A The CIS started the investigation.
Q You mean this Ariston Ira?
A Yes.
Q Before Ariston Ira conducted the investigation was Dasig informed of his constitutional rights to
remain silent, to counsel and if he chooses to testify or say something, that statement of his will be
used against or in his favor in the court of justice?
A Yes. He was willing to get me as counsel in that investigation.
Q After he was informed of his constitutional rights what transpired next?
A The investigation started.
Q Were you present at the very start of that investigation?
A Yes. I was present from the start until it was finished.
Q Was that reduced to writing?
A Yes.
xxx xxx xxx
Q You said you were present during the entire investigation. Were the answers of the accused,
Rodrigo Dasig, to the questions propounded by the investigator voluntary?
A Yes, they voluntary.
Q After the investigation was finished what transpired next?
A After the investigation, I think that was already past 3:00 or 4:00, we proceeded to the office of the
City Fiscal at F. Ramos St., Cebu City and then we proceeded to the Office of Fiscal Solema (sic)
and then it was subscribed there before Fiscal Solema (sic).

Q Were you present during the proceeding?

A I was also present."
We do not find any reason to doubt the factual findings and conclusions of the trial court that the
extra-judicial confession of the appellant was voluntarily made. Said the trial court:
"The prosecution's evidence clearly shows that herein accused during his investigation was properly
informed and appraised of his constitutional right to remain silent and to have a competent and
independent counsel preferably of his own choice but since at that time he did not signify his
intention to retain a lawyer of his own choice, so he was provided with a lawyer in the person of Atty.
Fortunato Parawan of the Creer Law Office who was available at that time, to assist him during the
custodial investigation conducted by T/Sgt. Ariston L. Ira at his hospital bed at Camp Lapulapu Army
Station Hospital, Cebu City where he was confined after being hit on his upper left arm and in fact,
Atty. Parawan only consented to assist herein accused after the latter has answered in the
affirmative to his question as to whether he would be amenable to be assisted by him as his counsel
of his own choice.
"The prosecution's evidence further show that Atty. Fortunato Parawan after consenting to be his
counsel was with him when his extra-judicial confession or sworn statement was subscribed and
sworn to by him before Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office who,
before accused has actually affixed his signature on each and every pages of his extra-judicial
confession, has informed him (accused) of his constitutional rights and has explained the contents of
his extra-judicial confession.
"Moreover, per certification made by Assistant City Fiscal Salvador O. Solima of the Cebu City
Fiscal's Office, clearly shows that accused in executing the same has done so voluntarily and after
having understood the contents thereof which is in the visayan language, a language known to him,
found on the last page thereof now marked as Exhibit "J-7-B."
"Furthermore, this sworn statement of accused Dasig is collaborated by the sworn statement of his
co-accused Edwin Nues dated August 18, 1987 which is sworn and subscribed to before City Fiscal
Jopelinito Pareja of the city Fiscal's Office of Cebu City."
The settled jurisprudence on the matter is that a confession is admissible until the accused
successfully proves that it was given as a result of violence, intimidation, threat or promise of reward
or leniency. 5 The case of People of the Philippines v. Parojinog is four square to the case at bar. In
Parojinog this court had this to say:
"Anent his claim that Atty. Fuentes was not his choice, Section 12 (1) of Article III of the 1987
Constitution provides:
'Sec. 12(1). Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel he must provided
with one. These rights cannot be waived except in writing and in the presence of counsel.'
"It is very clear from the aforequoted provision that a person under investigation for the commission
of an offense may choose his own counsel but if he cannot afford the services of counsel, he must

be provided with one. While the initial choice of the lawyer in the latter case is naturally lodged in the
police investigators, the accused really has the final choice as he may reject the counsel chosen for
him and ask for another one. In the instant case, the records show that no objection was voiced by
the accused throughout the entire proceedings of the investigation and afterwards when he
subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus, he apparently acquiesced to
the choice of the investigators. He complained for the first time that Atty. Fuentes was not his choice
only during trial. Thus it was too late."
Appellant relies on the much abused claim that his extra-judicial confession was legally defective
and hence, should not have been admitted and considered by the trial judge. This accusation is
whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal
liability, he now questions the integrity of the police authorities and the reputation of the lawyer who
stood by him during the investigation. Indubitably established and now a matter of record is the fact
that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is
likewise a matter of record that before appellant made his extra-judicial confession, he was first
asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively.
Finally, the alleged use of fore and intimidation has not been substantiated by evidence other than
his self-serving testimony. As has been pointed out, such allegation is another naive effort of
appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extrajudicial confession was done with regularity and legality.
Nevertheless, there is merit in appellant's argument that granting he is guilty, what he committed was
a political crime of simple rebellion, and hence he should not be convicted of murder with direct
assault.
The Solicitor General agrees with the accused-appellant on this point as manifested in the People's
brief, which We quote:
"However, as correctly pointed by appellant, the lower court erroneously convicted him of Murder
with Assault Upon a Person in Authority, instead of Rebellion.
"Rebellion is committed by taking up arms against the government, among other means. (Article
135, Revised Penal Code). In this case, appellant not only confessed voluntarily his membership
with the sparrow unit but also his participation and that of his group in the killing of Pfc. Manatad
while manning the traffic in Mandaue City in the afternoon of August 4, 1987. It is of judicial notice
that the 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.
Consequently, appellant is liable for the crime of rebellion, not murder with direct assault upon a
person in authority."
The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of
intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are
deemed absorbed in one single crime of rebellion. 9 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 the rebellion. It cannot be made a basis of a separate charge.
Moreover, in the case of People v. Mangallan 10 We held that where the accused who was charged
with murder admitted his membership with the NPA and the killing of a suspected PC informer, the

crime committed is not murder but rebellion punishable under Articles 134 and 135 of the Revised
Penal Code.
As to the proper imposable penalty, the Indeterminate Sentence Law is not applicable to persons
convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article
135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding
P20,000.00 to any person who promotes, maintains, or heads a rebellion. However, in the case at
bar, there is no evidence to prove that appellant Dasig headed the crime committed. As a matter of
fact he was not specifically pinpointed by Pfc. Catamora as the person giving instructions to the
group which attacked Pfc. Manatad.
Appellant merely participated in committing the act, or just executed the command of an unknown
leader. Hence, he should be made to suffer the penalty of imprisonment of eight (8) years of prision
mayor. For the resulting death, appellant is likewise ordered to pay the heirs of Pfc. Manatad FIFTY
THOUSAND PESOS (P50,000.00) as civil indemnity.
Premises considered, We uphold the findings of the trial court that the extra-judicial confession was
legally obtained. However, appellant being a confessed member of the sparrow unit, the liquidation
squad of the New People's Army whose objective is to overthrow the duly constituted government,
the crime committed is simple rebellion and not murder with direct assault.
WHEREFORE, accused Rogelio Dasig is found guilty of participating in an act of rebellion beyond
reasonable doubt and is hereby sentenced to suffer the penalty of imprisonment of eight (8) years of
prision mayor, and to pay the heirs of Pfc. Redempto Manatad, P50,000.00 as civil indemnity.
SO ORDERED.

15. People vs. Cabrera

16. People vs. Umali

17. People vs. Nabong
18. Gelig vs. People
19. Rivera vs. People

20. People vs. Ablos