FIRST DIVISION

appears a telephone number in defendants own handwriting,

the number of which he can also be contacted.

[G.R. No. 142396. February 11, 2003]

KHOSROW MINUCHER, petitioner, vs. HON. COURT OF
APPEALS and ARTHUR SCALZO, respondents.
DECISION

It was also during this first meeting that plaintiff expressed his
desire to obtain a US Visa for his wife and the wife of a
countryman named Abbas Torabian. The defendant told him
that he [could] help plaintiff for a fee of $2,000.00 per visa.
Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant
promised to see plaintiff again.

VITUG, J.:
Sometime in May 1986, an Information for violation of
Section 4 of Republic Act No. 6425, otherwise also known as
the Dangerous Drugs Act of 1972, was filed against petitioner
Khosrow Minucher and one Abbas Torabian with the Regional
Trial Court, Branch 151, of Pasig City. The criminal charge
followed a buy-bust operation conducted by the Philippine
police narcotic agents in the house of Minucher, an Iranian
national, where a quantity of heroin, a prohibited drug, was
said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who would,
in due time, become one of the principal witnesses for the
prosecution. On 08 January 1988, Presiding Judge Eutropio
Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 8845691 before the Regional Trial Court (RTC), Branch 19, of
Manila for damages on account of what he claimed to have
been trumped-up charges of drug trafficking made by Arthur
Scalzo. The Manila RTC detailed what it had found to be the
facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian
national. He came to the Philippines to study in the University
of the Philippines in 1974. In 1976, under the regime of the
Shah of Iran, he was appointed Labor Attach for the Iranian
Embassies in Tokyo, Japan and Manila, Philippines. When the
Shah of Iran was deposed by Ayatollah Khomeini, plaintiff
became a refugee of the United Nations and continued to stay
in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.
He came to know the defendant on May 13, 1986, when the
latter was brought to his house and introduced to him by a
certain Jose Iigo, an informer of the Intelligence Unit of the
military. Jose Iigo, on the other hand, was met by plaintiff at
the office of Atty. Crisanto Saruca, a lawyer for several
Iranians whom plaintiff assisted as head of the anti-Khomeini
movement in the Philippines.
During his first meeting with the defendant on May 13, 1986,
upon the introduction of Jose Iigo, the defendant expressed
his interest in buying caviar. As a matter of fact, he bought
two kilos of caviar from plaintiff and paid P10,000.00 for
it. Selling caviar, aside from that of Persian carpets, pistachio
nuts and other Iranian products was his business after the
Khomeini government cut his pension of over $3,000.00 per
month. During their introduction in that meeting, the
defendant gave the plaintiff his calling card, which showed
that he is working at the US Embassy in the Philippines, as a
special agent of the Drug Enforcement Administration,
Department of Justice, of the United States, and gave his
address as US Embassy, Manila. At the back of the card

On May 19, 1986, the defendant called the plaintiff and

invited the latter for dinner at Mario's Restaurant at
Makati. He wanted to buy 200 grams of caviar. Plaintiff
brought the merchandize but for the reason that the
defendant was not yet there, he requested the restaurant
people to x x x place the same in the refrigerator. Defendant,
however, came and plaintiff gave him the caviar for which he
was paid. Then their conversation was again focused on
politics and business.
On May 26, 1986, defendant visited plaintiff again at the
latter's residence for 18 years at Kapitolyo, Pasig. The
defendant wanted to buy a pair of carpets which plaintiff
valued at $27,900.00. After some haggling, they agreed at
$24,000.00. For the reason that defendant did not yet have
the money, they agreed that defendant would come back the
next day. The following day, at 1:00 p.m., he came back with
his $24,000.00, which he gave to the plaintiff, and the latter,
in turn, gave him the pair of carpets.
At about 3:00 in the afternoon of May 27, 1986, the defendant
came back again to plaintiff's house and directly proceeded to
the latter's bedroom, where the latter and his countryman,
Abbas Torabian, were playing chess.Plaintiff opened his safe in
the bedroom and obtained $2,000.00 from it, gave it to the
defendant for the latter's fee in obtaining a visa for plaintiff's
wife. The defendant told him that he would be leaving the
Philippines very soon and requested him to come out of the
house for a while so that he can introduce him to his cousin
waiting in a cab. Without much ado, and without putting on
his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To
his complete surprise, an American jumped out of the cab
with a drawn high-powered gun. He was in the company of
about 30 to 40 Filipino soldiers with 6 Americans, all
armed. He was handcuffed and after about 20 minutes in the
street, he was brought inside the house by the defendant. He
was made to sit down while in handcuffs while the defendant
was inside his bedroom.The defendant came out of the
bedroom and out from defendant's attach case, he took
something and placed it on the table in front of the
plaintiff. They also took plaintiff's wife who was at that time at
the boutique near his house and likewise arrested Torabian,
who was playing chess with him in the bedroom and both
were handcuffed together. Plaintiff was not told why he was
being handcuffed and why the privacy of his house, especially
his bedroom was invaded by defendant. He was not allowed
to use the telephone. In fact, his telephone was
unplugged. He asked for any warrant, but the defendant told
him to `shut up. He was nevertheless told that he would be
able to call for his lawyer who can defend him.

The plaintiff took note of the fact that when the defendant
invited him to come out to meet his cousin, his safe was
opened where he kept the $24,000.00 the defendant paid for
the carpets and another $8,000.00 which he also placed in the
safe together with a bracelet worth $15,000.00 and a pair of
earrings worth $10,000.00. He also discovered missing upon
his release his 8 pieces hand-made Persian carpets, valued at
$65,000.00, a painting he bought for P30,000.00 together
with his TV and betamax sets. He claimed that when he was
handcuffed, the defendant took his keys from his wallet. There
was, therefore, nothing left in his house.
That his arrest as a heroin trafficker x x x had been well
publicized throughout the world, in various newspapers,
particularly in Australia, America, Central Asia and in the
Philippines. He was identified in the papers as an international
drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on
television, not only in the Philippines, but also in America and
in Germany. His friends in said places informed him that they
saw him on TV with said news.
After the arrest made on plaintiff and Torabian, they were
brought to Camp Crame handcuffed together, where they
were detained for three days without food and water." [1]
During the trial, the law firm of Luna, Sison and Manas,
filed a special appearance for Scalzo and moved for extension
of time to file an answer pending a supposed advice from the
United States Department of State and Department of Justice
on the defenses to be raised. The trial court granted the
motion. On 27 October 1988, Scalzo filed another special
appearance to quash the summons on the ground that he, not
being a resident of the Philippines and the action being
one in personam, was beyond the processes of the court. The
motion was denied by the court, in its order of 13 December
1988, holding that the filing by Scalzo of a motion for
extension of time to file an answer to the complaint was a
voluntary appearance equivalent to service of summons
which could likewise be construed a waiver of the requirement
of formal notice. Scalzo filed a motion for reconsideration of
the court order, contending that a motion for an extension of
time to file an answer was not a voluntary appearance
equivalent to service of summons since it did not seek an
affirmative relief. Scalzo argued that in cases involving the
United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable
due to the need (1) for both the Department of State and the
Department of Justice to agree on the defenses to be raised
and (2) to refer the case to a Philippine lawyer who would be
expected to first review the case. The court a quo denied the
motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of
Appeals, there docketed CA-G.R. No. 17023, assailing the
denial. In a decision, dated 06 October 1989, the appellate
court denied the petition and affirmed the ruling of the trial
court. Scalzo then elevated the incident in a petition for
review on certiorari, docketed G.R. No. 91173, to this
Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court
added, Scalzo had failed to show that the appellate court was
in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09

February 1990, was issued (a) declaring Scalzo in default for
his failure to file a responsive pleading (answer) and (b)
setting the case for the reception of evidence. On 12 March
1990, Scalzo filed a motion to set aside the order of default
and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and
raised the affirmative defenses (a) of Minuchers failure to
state a cause of action in his complaint and (b) that Scalzo
had acted in the discharge of his official duties as being
merely an agent of the Drug Enforcement Administration of
the United States Department of Justice. Scalzo interposed a
counterclaim of P100,000.00 to answer for attorneys' fees and
expenses of litigation.
Then, on 14 June 1990, after almost two years since the
institution of the civil case, Scalzo filed a motion to dismiss
the complaint on the ground that, being a special agent of the
United States Drug Enforcement Administration, he was
entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated
29 May 1990, addressed to the Department of Foreign Affairs
of the Philippines and a Certification, dated 11 June 1990, of
Vice Consul Donna Woodward, certifying that the note is a
true and faithful copy of its original. In an order of 25 June
1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with
injunction with this Court, docketed G.R. No. 94257 and
entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.,"
asking that the complaint in Civil Case No. 88-45691 be
ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Courts
resolution of 07 August 1990. On 31 October 1990, the Court
of Appeals promulgated its decision sustaining the diplomatic
immunity of Scalzo and ordering the dismissal of the
complaint against him. Minucher filed a petition for review
with this Court, docketed G.R. No. 97765 and entitled
"Khosrow Minucher vs. the Honorable Court of Appeals, et. al.
(cited in 214 SCRA 242), appealing the judgment of the Court
of Appeals. In a decision, dated 24 September 1992, penned
by Justice (now Chief Justice) Hilario Davide, Jr., this Court
reversed the decision of the appellate court and remanded
the case to the lower court for trial. The remand was ordered
on the theses (a) that the Court of Appeals erred in granting
the motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity
of Diplomatic Note No. 414 and (b) that the complaint
contained sufficient allegations to the effect that Scalzo
committed the imputed acts in his personal capacity and
outside the scope of his official duties and, absent any
evidence to the contrary, the issue on Scalzos diplomatic
immunity could not be taken up.
The Manila RTC thus continued with its hearings on the
case. On 17 November 1995, the trial court reached a
decision; it adjudged:
WHEREFORE, and in view of all the foregoing considerations,
judgment is hereby rendered for the plaintiff, who successfully
established his claim by sufficient evidence, against the
defendant in the manner following:

"`Adjudging defendant liable to plaintiff in actual and

compensatory damages of P520,000.00; moral damages in
the sum of P10 million; exemplary damages in the sum of
P100,000.00; attorney's fees in the sum of P200,000.00 plus
costs.

ascertained the target, (he then) would inform the Philippine

narcotic agents (to) make the actual arrest." Scalzo has
submitted to the trial court a number of documents -

`The Clerk of the Regional Trial Court, Manila, is ordered to

take note of the lien of the Court on this judgment to answer
for the unpaid docket fees considering that the plaintiff in this
case instituted this action as a pauper litigant." [2]

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward

dated 11 June 1990;

While the trial court gave credence to the claim of Scalzo

and the evidence presented by him that he was a diplomatic
agent entitled to immunity as such, it ruled that he,
nevertheless, should be held accountable for the acts
complained of committed outside his official duties. On
appeal, the Court of Appeals reversed the decision of the trial
court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term
of duty and thereby immune from the criminal and civil
jurisdiction of the Receiving State pursuant to the terms of the
Vienna Convention.
Hence, this recourse by Minucher. The instant petition for
review raises a two-fold issue: (1) whether or not the doctrine
of conclusiveness of judgment, following the decision
rendered by this Court in G.R. No. 97765, should have
precluded the Court of Appeals from resolving the appeal to it
in an entirely different manner, and (2) whether or not Arthur
Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its
kindred rule of res judicata, would require 1) the finality of the
prior judgment, 2) a valid jurisdiction over the subject matter
and the parties on the part of the court that renders it, 3) a
judgment on the merits, and 4) an identity of the parties,
subject matter and causes of action.[3] Even while one of the
issues submitted in G.R. No. 97765 - "whether or not public
respondent Court of Appeals erred in ruling that private
respondent Scalzo is a diplomat immune from civil suit
conformably with the Vienna Convention on Diplomatic
Relations" - is also a pivotal question raised in the instant
petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has
made this observation "It may be mentioned in this regard that private respondent
himself, in his Pre-trial Brief filed on 13 June 1990,
unequivocally states that he would present documentary
evidence consisting of DEA records on his investigation and
surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to
present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving
claim in the belated motion to dismiss cannot be relied upon
for a reasonable, intelligent and fair resolution of the issue of
diplomatic immunity."[4]
Scalzo contends that the Vienna Convention on
Diplomatic Relations, to which the Philippines is a signatory,
grants him absolute immunity from suit, describing his
functions as an agent of the United States Drugs Enforcement
Agency as conducting surveillance operations on suspected
drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November
1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal
Adviser, Department of Foreign Affairs, dated 27 June 1990
forwarding Embassy Note No. 414 to the Clerk of Court of RTC
Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st
Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of
the Protocol, Department of Foreign Affairs, through Asst. Sec.
Emmanuel Fernandez, addressed to the Chief Justice of this
Court.[5]
The documents, according to Scalzo, would show that:
(1) the United States Embassy accordingly advised the
Executive Department of the Philippine Government that
Scalzo was a member of the diplomatic staff of the United
States diplomatic mission from his arrival in the Philippines on
14 October 1985 until his departure on 10 August 1988; (2)
that the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with
respect to the case pursuant to the provisions of the Vienna
Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign
Affairs to take appropriate action to inform the trial court of
Scalzos diplomatic immunity. The other documentary exhibits
were presented to indicate that: (1) the Philippine government
itself, through its Executive Department, recognizing and
respecting the diplomatic status of Scalzo, formally advised
the Judicial Department of his diplomatic status and his
entitlement to all diplomatic privileges and immunities under
the Vienna Convention; and (2) the Department of Foreign
Affairs itself authenticated Diplomatic Note No. 414. Scalzo
additionally presented Exhibits "9" to "13" consisting of his
reports of investigation on the surveillance and subsequent
arrest of Minucher, the certification of the Drug Enforcement
Administration of the United States Department of Justice that
Scalzo was a special agent assigned to the Philippines at all
times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel [6] to
show (a) that the United States Embassy, affirmed by its Vice
Consul, acknowledged Scalzo to be a member of the
diplomatic staff of the United States diplomatic mission from
his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May 1986, with the
cooperation of the Philippine law enforcement officials and in
the exercise of his functions as member of the mission, he
investigated Minucher for alleged trafficking in a prohibited

drug, and (c) that the Philippine Department of Foreign Affairs

itself recognized that Scalzo during his tour of duty in the
Philippines (14 October 1985 up to 10 August 1988) was listed
as being an Assistant Attach of the United States diplomatic
mission and accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12, Scalzo
described the functions of the overseas office of the United
States Drugs Enforcement Agency, i.e., (1) to provide criminal
investigative expertise and assistance to foreign law
enforcement agencies on narcotic and drug control programs
upon the request of the host country, 2) to establish and
maintain liaison with the host country and counterpart foreign
law enforcement officials, and 3) to conduct complex criminal
investigations involving international criminal conspiracies
which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a
codification of centuries-old customary law and, by the time of
its ratification on 18 April 1961, its rules of law had long
become stable.Among the city states of ancient Greece,
among the peoples of the Mediterranean before the
establishment of the Roman Empire, and among the states of
India, the person of the herald in time of war and the person
of the diplomatic envoy in time of peace were universally held
sacrosanct.[7] By the end of the 16th century, when the
earliest treatises on diplomatic law were published, the
inviolability of ambassadors was firmly established as a rule of
customary international law.[8] Traditionally, the exercise of
diplomatic intercourse among states was undertaken by the
head of state himself, as being the preeminent embodiment of
the state he represented, and the foreign secretary, the
official usually entrusted with the external affairs of the
state. Where a state would wish to have a more prominent
diplomatic presence in the receiving state, it would then send
to the latter a diplomatic mission. Conformably with the
Vienna Convention, the functions of the diplomatic mission
involve, by and large, the representation of the interests of
the sending state and promoting friendly relations with the
receiving state.[9]
The Convention lists the classes of heads of diplomatic
missions to include (a) ambassadors or nuncios accredited to
the
heads
of
state,[10] (b)
envoys,[11] ministers
or internunciosaccredited to the heads of states; and
(c) charges d' affairs[12] accredited to the ministers of foreign
affairs.[13] Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the
technical and service staff. Only the heads of missions, as well
as members of the diplomatic staff, excluding the members of
the administrative, technical and service staff of the mission,
are accorded diplomatic rank. Even while the Vienna
Convention on Diplomatic Relations provides for immunity to
the members of diplomatic missions, it does so, nevertheless,
with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the
Convention, are vested with blanket diplomatic immunity from
civil and criminal suits. The Convention defines "diplomatic
agents" as the heads of missions or members of the
diplomatic staff, thus impliedly withholding the same
privileges from all others. It might bear stressing that even
consuls, who represent their respective states in concerns of
commerce and navigation and perform certain administrative
and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of
oaths, do not ordinarily enjoy the traditional diplomatic
immunities and privileges accorded diplomats, mainly for the

reason that they are not charged with the duty of representing
their states in political matters. Indeed, the main yardstick
in ascertaining whether a person is a diplomat entitled
to immunity is the determination of whether or not he
performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13, that
he was an Assistant Attach of the United States diplomatic
mission and was accredited as such by the Philippine
Government. An attach belongs to a category of officers in the
diplomatic establishment who may be in charge of its cultural,
press, administrative or financial affairs. There could also be a
class of attaches belonging to certain ministries or
departments of the government, other than the foreign
ministry or department, who are detailed by their respective
ministries or departments with the embassies such as the
military, naval, air, commercial, agricultural, labor, science,
and customs attaches, or the like. Attaches assist a chief of
mission in his duties and are administratively under him, but
their main function is to observe, analyze and interpret trends
and developments in their respective fields in the host
country and submit reports to their own ministries or
departments in the home government.[14] These officials are
not generally regarded as members of the diplomatic mission,
nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo
presented Diplomatic Notes Nos. 414, 757 and 791, all
issued post litem motam, respectively, on 29 May 1990, 25
October 1991 and 17 November 1992. The presentation did
nothing much to alleviate the Court's initial reservations in
G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public
respondent gravely abused its discretion in dismissing Civil
Case No. 88-45691 on the basis of an erroneous assumption
that simply because of the diplomatic note, the private
respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person.
xxxxxxxxx
And now, to the core issue - the alleged diplomatic immunity
of the private respondent. Setting aside for the moment the
issue of authenticity raised by the petitioner and the doubts
that surround such claim, in view of the fact that it took
private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12
September 1988 a Special Appearance and Motion asking for
a first extension of time to file the Answer because the
Departments of State and Justice of the United States of
America were studying the case for the purpose of
determining his defenses, before he could secure the
Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic,
the complaint for damages filed by petitioner cannot be
peremptorily dismissed.
xxxxxxxxx
"There is of course the claim of private respondent that the
acts imputed to him were done in his official capacity. Nothing
supports this self-serving claim other than the so-called
Diplomatic Note. x x x. The public respondent then should

have sustained the trial court's denial of the motion to

dismiss. Verily, it should have been the most proper and
appropriate recourse. It should not have been overwhelmed
by the self-serving Diplomatic Note whose belated issuance is
even suspect and whose authenticity has not yet been
proved. The undue haste with which respondent Court yielded
to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No.
08, dated 08 November 1992, issued by the Office of Protocol
of the Department of Foreign Affairs and signed by Emmanuel
C. Fernandez, Assistant Secretary, certifying that "the records
of the Department (would) show that Mr. Arthur W. Scalzo, Jr.,
during his term of office in the Philippines (from 14 October
1985 up to 10 August 1988) was listed as an Assistant Attach
of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the
Philippines." No certified true copy of such "records," the
supposed bases for the belated issuance, was presented in
evidence.
Concededly, vesting a person with diplomatic immunity
is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino, [15] the
Court has recognized that, in such matters, the hands of the
courts
are
virtually
tied. Amidst
apprehensions
of
indiscriminate and incautious grant of immunity, designed to
gain exemption from the jurisdiction of courts, it should
behoove
the Philippine government,
specifically
its
Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post
litem motamissuances. It might be recalled that the privilege
is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather,
an immunity from the exercise of territorial jurisdiction. [16] The
government of the United States itself, which Scalzo claims to
be acting for, has formulated its standards for recognition of a
diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses
an acknowledged diplomatic title and performs duties
of
diplomatic
nature.[17] Supplementary
criteria
for
accreditation are the possession of a valid diplomatic passport
or, from States which do not issue such passports, a
diplomatic note formally representing the intention to assign
the person to diplomatic duties, the holding of a nonimmigrant visa, being over twenty-one years of age, and
performing diplomatic functions on an essentially full-time
basis.[18] Diplomatic missions are requested to provide the
most accurate and descriptive job title to that which currently
applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate
functional category.[19]
But while the diplomatic immunity of Scalzo might thus
remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected
drug activities within the country on the dates pertinent to
this case. If it should be ascertained that Arthur Scalzo was
acting well within his assigned functions when he committed
the acts alleged in the complaint, the present controversy
could then be resolved under the related doctrine of State
Immunity from Suit.

The precept that a State cannot be sued in the

courts of a foreign state is a long-standing rule of
customary international law then closely identified with the
personal immunity of a foreign sovereign from suit [20] and,
with the emergence of democratic states, made to attach not
just to the person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign capacity.
[21]
If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the
state itself. The proscription is not accorded for the benefit of
an individual but for the State, in whose service he is, under
the maxim - par in parem, non habet imperium - that all
states are sovereign equals and cannot assert jurisdiction
over one another.[22] The implication, in broad terms, is that if
the judgment against an official would require the state itself
to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally
impleaded.[23]
In United States of America vs. Guinto,[24] involving
officers of the United States Air Force and special officers of
the Air Force Office of Special Investigators charged with the
duty of preventing the distribution, possession and use of
prohibited drugs, this Court has ruled "While the doctrine (of state immunity) appears to prohibit
only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for
acts allegedly performed by them in the discharge of their
duties. x x x. It cannot for a moment be imagined that they
were acting in their private or unofficial capacity when they
apprehended and later testified against the complainant. It
follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to
be sued. x x x As they have acted on behalf of the
government, and within the scope of their authority, it is that
government, and not the petitioners personally, [who were]
responsible for their acts." [25]
This
immunity
principle,
however,
has
its
limitations. Thus, Shauf vs. Court of Appeals[26] elaborates:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of the plaintiff. As was clearly set forth
by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al., vs. Aligaen, et al. (33 SCRA
368): `Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit. In
the same tenor, it has been said that an action at law or suit
in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights
of the plaintiff, under an unconstitutional act or under an

assumption of authority which he does not have, is not a suit

against the State within the constitutional provision that the
State may not be sued without its consent. The rationale for
this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
xxxxxxxxx

WHEREFORE, on the foregoing premises, the petition is

DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and
Azcuna, JJ., concur

(T)he doctrine of immunity from suit will not apply and may
not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority
and jurisdiction.[27]
A foreign agent, operating within a territory, can be
cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the
sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two
sovereigns. Guinto and Shauf both
involve
officers
and
personnel of the United States, stationed within Philippine
territory, under the RP-US Military Bases Agreement. While
evidence is wanting to show any similar agreement between
the governments of the Philippines and of the United States
(for the latter to send its agents and to conduct surveillance
and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine
government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the
two countries, certifications from officials of both the
Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the
Philippine Narcotics Command in the buy-bust operation
conducted at the residence of Minucher at the behest of
Scalzo, may be inadequate to support the "diplomatic status"
of the latter but they give enough indication that the
Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of agent
Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance
on suspected drug suppliers and, after having ascertained the
target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-buyer during
the buy-bust operation, and then becoming a principal witness
in the criminal case against Minucher, Scalzo hardly can be
said to have acted beyond the scope of his official function or
duties.
All told, this Court is constrained to rule that respondent
Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to
conduct activities in the country to help contain the problem
on the drug traffic, is entitled to the defense of state immunity
from suit.

Republic
SUPREME
Manila

of

the

EN BANC
G.R. No. 76607 February 26, 1990

Philippines
COURT

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE

AND
YVONNE
REEVES, petitioners,
vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch
LVII, Regional Trial Court, Angeles City, ROBERTO T.
VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C.
DEL PILAR, respondents.
G.R. No. 79470 February 26, 1990
UNITED STATES OF AMERICA, ANTHONY LAMACHIA,
T/SGT. USAF, WILFREDO BELSA, PETER ORASCION AND
ROSE
CARTALLA, petitioners,
vs.
HON. RODOLFO D. RODRIGO, as Presiding Judge of
Branch 7, Regional Trial Court (BAGUIO CITY), La
Trinidad, Benguet and FABIAN GENOVE, respondents.
G.R. No. 80018 February 26, 1990
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D.
DYE
and
STEVEN
F.
BOSTICK, petitioners,
vs.
HON. JOSEFINA D. CEBALLOS, As Presiding Judge,
Regional Trial Court, Branch 66, Capas, Tarlac, and LUIS
BAUTISTA, respondents.
G.R. No. 80258 February 26, 1990
UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL
P. C. CARNS, AIC ERNEST E. RIVENBURGH, AIC ROBIN
BLEVINS, SGT. NOEL A. GONZALES, SGT. THOMAS
MITCHELL,
SGT.
WAYNE
L.
BENJAMIN,
ET
AL.,petitioners,
vs.
HON. CONCEPCION S. ALARCON VERGARA, as Presiding
Judge, Branch 62 REGIONAL TRIAL COURT, Angeles City,
and RICKY SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE
RIVERA, EDWIN MARIANO, AKA JESSIE DOLORES
SANGALANG, ET AL., respondents.
Luna, Sison & Manas Law Office for petitioners.

respondents Roberto T. Valencia, Emerenciana C. Tanglao, and

Pablo C. del Pilar. Valencia had been a concessionaire inside
Clark for 34 years; del Pilar for 12 years; and Tanglao for 50
years.
The bidding was won by Ramon Dizon, over the objection of
the private respondents, who claimed that he had made a bid
for four facilities, including the Civil Engineering Area, which
was not included in the invitation to bid.
The private respondents complained to the Philippine Area
Exchange (PHAX). The latter, through its representatives,
petitioners Yvonne Reeves and Frederic M. Smouse explained
that the Civil Engineering concession had not been awarded
to Dizon as a result of the February 24, 1986 solicitation.
Dizon was already operating this concession, then known as
the NCO club concession, and the expiration of the contract
had been extended from June 30, 1986 to August 31, 1986.
They further explained that the solicitation of the CE
barbershop would be available only by the end of June and the
private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in
the court below to compel PHAX and the individual petitioners
to cancel the award to defendant Dizon, to conduct a
rebidding for the barbershop concessions and to allow the
private respondents by a writ of preliminary injunction to
continue operating the concessions pending litigation. 1
Upon the filing of the complaint, the respondent court issued
an ex parte order directing the individual petitioners to
maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and
opposition to the petition for preliminary injunction on the
ground that the action was in effect a suit against the United
States of America, which had not waived its non-suability. The
individual defendants, as official employees of the U.S. Air
Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the
application for a writ of preliminary injunction.
On October 10, 1988, the trial court denied the petitioners'
motion to dismiss, holding in part as follows:

CRUZ, J.:
These cases have been consolidated because they all involve
the doctrine of state immunity. The United States of America
was not impleaded in the complaints below but has moved to
dismiss on the ground that they are in effect suits against it to
which it has not consented. It is now contesting the denial of
its motions by the respondent judges.
In G.R. No. 76607, the private respondents are suing several
officers of the U.S. Air Force stationed in Clark Air Base in
connection with the bidding conducted by them for contracts
for barber services in the said base.
On February 24, 1986, the Western Pacific Contracting Office,
Okinawa Area Exchange, U.S. Air Force, solicited bids for such
contracts through its contracting officer, James F. Shaw.
Among those who submitted their bids were private

From the pleadings thus far presented to

this Court by the parties, the Court's
attention is called by the relationship
between the plaintiffs as well as the
defendants, including the US Government,
in that prior to the bidding or solicitation in
question, there was a binding contract
between the plaintiffs as well as the
defendants, including the US Government.
By virtue of said contract of concession it is
the Court's understanding that neither the
US Government nor the herein principal
defendants would become the employer/s of
the plaintiffs but that the latter are the
employers themselves of the barbers, etc.
with the employer, the plaintiffs herein,
remitting the stipulated percentage of
commissions
to
the
Philippine
Area

Exchange. The same circumstance would

become in effect when the Philippine Area
Exchange opened for bidding or solicitation
the questioned barber shop concessions. To
this extent, therefore, indeed a commercial
transaction has been entered, and for
purposes of the said solicitation, would
necessarily be entered between the
plaintiffs as well as the defendants.
The Court, further, is of the view that Article
XVIII of the RP-US Bases Agreement does
not cover such kind of services falling under
the concessionaireship, such as a barber
shop concession. 2
On December 11, 1986, following the filing of the herein
petition
for certiorari and
prohibition
with
preliminary
injunction, we issued a temporary restraining order against
further proceedings in the court below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for
damages against petitioners Anthony Lamachia, Wilfredo
Belsa, Rose Cartalla and Peter Orascion for his dismissal as
cook in the U.S. Air Force Recreation Center at the John Hay
Air Station in Baguio City. It had been ascertained after
investigation, from the testimony of Belsa Cartalla and
Orascion, that Genove had poured urine into the soup stock
used in cooking the vegetables served to the club customers.
Lamachia, as club manager, suspended him and thereafter
referred the case to a board of arbitrators conformably to the
collective bargaining agreement between the Center and its
employees. The board unanimously found him guilty and
recommended his dismissal. This was effected on March 5,
1986, by Col. David C. Kimball, Commander of the 3rd Combat
Support Group, PACAF Clark Air Force Base. Genove's reaction
was to file Ms complaint in the Regional Trial Court of Baguio
City against the individual petitioners. 4
On March 13, 1987, the defendants, joined by the United
States of America, moved to dismiss the complaint, alleging
that Lamachia, as an officer of the U.S. Air Force stationed at
John Hay Air Station, was immune from suit for the acts done
by him in his official capacity. They argued that the suit was in
effect against the United States, which had not given its
consent to be sued.
This motion was denied by the respondent judge on June 4,
1987, in an order which read in part:
It is the understanding of the Court, based
on the allegations of the complaint which
have been hypothetically admitted by
defendants upon the filing of their motion to
dismiss that although defendants acted
initially in their official capacities, their
going beyond what their functions called for
brought them out of the protective mantle
of whatever immunities they may have had
in the beginning. Thus, the allegation that
the acts complained of were illegal, done.
with extreme bad faith and with preconceived sinister plan to harass and finally
dismiss the plaintiff, gains significance. 5

The petitioners then came to this Court seeking certiorari and

prohibition with preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a
barracks boy in Camp O' Donnell, an extension of Clark Air
Base, was arrested following a buy-bust operation conducted
by the individual petitioners herein, namely, Tomi J. King,
Darrel D. Dye and Stephen F. Bostick, officers of the U.S. Air
Force and special agents of the Air Force Office of Special
Investigators (AFOSI). On the basis of the sworn statements
made by them, an information for violation of R.A. 6425,
otherwise known as the Dangerous Drugs Act, was filed
against Bautista in the Regional Trial Court of Tarlac. The
above-named officers testified against him at his trial. As a
result of the filing of the charge, Bautista was dismissed from
his employment. He then filed a complaint for damages
against the individual petitioners herein claiming that it was
because of their acts that he was removed. 6
During the period for filing of the answer, Mariano Y. Navarro a
special counsel assigned to the International Law Division,
Office of the Staff Judge Advocate of Clark Air Base, entered a
special appearance for the defendants and moved for an
extension within which to file an "answer and/or other
pleadings." His reason was that the Attorney General of the
United States had not yet designated counsel to represent the
defendants, who were being sued for their official acts. Within
the extended period, the defendants, without the assistance
of counsel or authority from the U.S. Department of Justice,
filed their answer. They alleged therein as affirmative
defenses that they had only done their duty in the
enforcement of the laws of the Philippines inside the American
bases pursuant to the RP-US Military Bases Agreement.
On May 7, 1987, the law firm of Luna, Sison and Manas,
having been retained to represent the defendants, filed with
leave of court a motion to withdraw the answer and dismiss
the complaint. The ground invoked was that the defendants
were acting in their official capacity when they did the acts
complained of and that the complaint against them was in
effect a suit against the United States without its consent.
The motion was denied by the respondent judge in his order
dated September 11, 1987, which held that the claimed
immunity under the Military Bases Agreement covered only
criminal and not civil cases. Moreover, the defendants had
come under the jurisdiction of the court when they submitted
their answer. 7
Following the filing of the herein petition for certiorari and
prohibition with preliminary injunction, we issued on October
14, 1987, a temporary restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the
private respondents against the herein petitioners (except the
United States of America), for injuries allegedly sustained by
the plaintiffs as a result of the acts of the defendants. 9 There
is a conflict of factual allegations here. According to the
plaintiffs, the defendants beat them up, handcuffed them and
unleashed dogs on them which bit them in several parts of
their bodies and caused extensive injuries to them. The
defendants deny this and claim the plaintiffs were arrested for
theft and were bitten by the dogs because they were
struggling and resisting arrest, The defendants stress that the

dogs were called off and the plaintiffs were immediately taken
to the medical center for treatment of their wounds.
In a motion to dismiss the complaint, the United States of
America and the individually named defendants argued that
the suit was in effect a suit against the United States, which
had not given its consent to be sued. The defendants were
also immune from suit under the RP-US Bases Treaty for acts
done by them in the performance of their official functions.
The motion to dismiss was denied by the trial court in its order
dated August 10, 1987, reading in part as follows:
The defendants certainly cannot correctly
argue that they are immune from suit. The
allegations, of the complaint which is sought
to be dismissed, had to be hypothetically
admitted
and
whatever
ground
the
defendants may have, had to be ventilated
during the trial of the case on the merits.
The complaint alleged criminal acts against
the individually-named defendants and from
the nature of said acts it could not be said
that they are Acts of State, for which
immunity should be invoked. If the Filipinos
themselves are duty bound to respect, obey
and submit themselves to the laws of the
country, with more reason, the members of
the United States Armed Forces who are
being treated as guests of this country
should respect, obey and submit themselves
to its laws. 10
and so was the motion for reconsideration. The defendants
submitted their answer as required but subsequently filed
their petition for certiorari and prohibition with preliminary
injunction with this Court. We issued a temporary restraining
order on October 27, 1987. 11
II
The rule that a state may not be sued without its consent,
now expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of
our land under Article II, Section 2. This latter provision merely
reiterates a policy earlier embodied in the 1935 and 1973
Constitutions and also intended to manifest our resolve to
abide by the rules of the international community.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the
doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations.
Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with
other states.
As applied to the local state, the doctrine of state immunity is
based on the justification given by Justice Holmes that "there
can be no legal right against the authority which makes the
law on which the right depends." 12 There are other practical

reasons for the enforcement of the doctrine. In the case of the

foreign state sought to be impleaded in the local jurisdiction,
the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case,
"unduly vex the peace of nations." 13
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against
the state itself although it has not been formally
impleaded. 14 In such a situation, the state may move to
dismiss the complaint on the ground that it has been filed
without its consent.
The doctrine is sometimes derisively called "the royal
prerogative of dishonesty" because of the privilege it grants
the state to defeat any legitimate claim against it by simply
invoking its non-suability. That is hardly fair, at least in
democratic societies, for the state is not an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the
doctrine is not absolute and does not say the state may not
be sued under any circumstance. On the contrary, the rule
says that the state may not be sued without its consent,
which clearly imports that it may be sued if it consents.
The consent of the state to be sued may be manifested
expressly or impliedly. Express consent may be embodied in a
general law or a special law. Consent is implied when the
state enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is
found in Act No. 3083, under which the Philippine government
"consents and submits to be sued upon any moneyed claim
involving liability arising from contract, express or implied,
which could serve as a basis of civil action between private
parties." In Merritt v. Government of the Philippine Islands, 15 a
special law was passed to enable a person to sue the
government for an alleged tort. When the government enters
into a contract, it is deemed to have descended to the level of
the other contracting party and divested of its sovereign
immunity from suit with its implied consent. 16 Waiver is also
implied when the government files a complaint, thus opening
itself to a counterclaim. 17
The above rules are subject to qualification. Express consent
is effected only by the will of the legislature through the
medium of a duly enacted statute. 18 We have held that not all
contracts entered into by the government will operate as a
waiver of its non-suability; distinction must be made between
its sovereign and proprietary acts. 19 As for the filing of a
complaint by the government, suability will result only where
the government is claiming affirmative relief from the
defendant. 20
In the case of the United States of America, the customary
rule of international law on state immunity is expressed with
more specificity in the RP-US Bases Treaty. Article III thereof
provides as follows:

It is mutually agreed that the United States

shall have the rights, power and authority
within the bases which are necessary for the
establishment, use, operation and defense
thereof or appropriate for the control thereof
and all the rights, power and authority
within the limits of the territorial waters and
air space adjacent to, or in the vicinity of,
the bases which are necessary to provide
access to them or appropriate for their
control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with
several other decisions, to support their position that they are
not suable in the cases below, the United States not having
waived its sovereign immunity from suit. It is emphasized that
in Baer, the Court held:
The invocation of the doctrine of immunity
from suit of a foreign state without its
consent is appropriate. More specifically,
insofar as alien armed forces is concerned,
the starting point is Raquiza v. Bradford, a
1945 decision. In dismissing a habeas
corpus petition for the release of petitioners
confined by American army authorities,
Justice Hilado speaking for the Court,
cited Coleman v. Tennessee, where it was
explicitly declared: 'It is well settled that a
foreign army, permitted to march through a
friendly country or to be stationed in it, by
permission of its government or sovereign,
is exempt from the civil and criminal
jurisdiction of the place.' Two years later, in
Tubb and Tedrow v. Griess, this Court relied
on the ruling in Raquiza v. Bradford and
cited in support thereof excerpts from the
works of the following authoritative writers:
Vattel,
Wheaton,
Hall,
Lawrence,
Oppenheim, Westlake, Hyde, and McNair
and Lauterpacht. Accuracy demands the
clarification that after the conclusion of the
Philippine-American
Military
Bases
Agreement, the treaty provisions should
control on such matter, the assumption
being that there was a manifestation of the
submission to jurisdiction on the part of the
foreign power whenever appropriate. More
to the point is Syquia v. Almeda Lopez,
where plaintiffs as lessors sued the
Commanding General of the United States
Army in the Philippines, seeking the
restoration to them of the apartment
buildings they owned leased to the United
States armed forces stationed in the Manila
area. A motion to dismiss on the ground of
non-suability was filed and upheld by
respondent Judge. The matter was taken to
this Court in a mandamus proceeding. It
failed. It was the ruling that respondent
Judge acted correctly considering that the 4
action must be considered as one against
the U.S. Government. The opinion of Justice
Montemayor continued: 'It is clear that the
courts of the Philippines including the
Municipal Court of Manila have no

jurisdiction over the present case for

unlawful detainer. The question of lack of
jurisdiction was raised and interposed at the
very beginning of the action. The U.S.
Government has not given its consent to the
filing of this suit which is essentially against
her, though not in name. Moreover, this is
not only a case of a citizen filing a suit
against his own Government without the
latter's consent but it is of a citizen firing an
action against a foreign government without
said government's consent, which renders
more obvious the lack of jurisdiction of the
courts of his country. The principles of law
behind this rule are so elementary and of
such general acceptance that we deem it
unnecessary to cite authorities in support
thereof
then
came Marvel
Building
Corporation v. Philippine War Damage
Commission, where respondent, a United
States Agency established to compensate
damages suffered by the Philippines during
World War II was held as falling within the
above doctrine as the suit against it would
eventually be a charge against or financial
liability of the United States Government
because ... , the Commission has no funds of
its own for the purpose of paying money
judgments.' The Syquia ruling was again
explicitly relied upon in Marquez Lim v.
Nelson, involving a complaint for the
recovery of a motor launch, plus damages,
the special defense interposed being 'that
the vessel belonged to the United States
Government, that the defendants merely
acted as agents of said Government, and
that the United States Government is
therefore the real party in interest.' So it
was
in Philippine Alien
Property
Administration v. Castelo, where it was held
that a suit against Alien Property Custodian
and the Attorney General of the United
States involving vested property under the
Trading with the Enemy Act is in substance a
suit against the United States. To the same
effect is Parreno v. McGranery, as the
following excerpt from the opinion of justice
Tuazon clearly shows: 'It is a widely
accepted principle of international law,
which is made a part of the law of the land
(Article II, Section 3 of the Constitution), that
a foreign state may not be brought to suit
before the courts of another state or its own
courts without its consent.' Finally, there
is Johnson v. Turner, an appeal by the
defendant, then Commanding General,
Philippine Command (Air Force, with office
at Clark Field) from a decision ordering the
return to plaintiff of the confiscated military
payment certificates known as scrip money.
In reversing the lower court decision, this
Tribunal, through Justice Montemayor, relied
on Syquia v. Almeda Lopez, explaining why
it could not be sustained.

It bears stressing at this point that the above observations do

not confer on the United States of America a blanket immunity
for all acts done by it or its agents in the Philippines. Neither
may the other petitioners claim that they are also insulated
from suit in this country merely because they have acted as
agents of the United States in the discharge of their official
functions.
There is no question that the United States of America, like
any other state, will be deemed to have impliedly waived its
non-suability if it has entered into a contract in its proprietary
or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may
be implied. This was our ruling in United States of America v.
Ruiz, 22 where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic
Bay. As this was a clearly governmental function, we held that
the contract did not operate to divest the United States of its
sovereign immunity from suit. In the words of Justice Vicente
Abad Santos:
The traditional rule of immunity exempts a
State from being sued in the courts of
another State without its consent or waiver.
This rule is a necessary consequence of the
principles of independence and equality of
States. However, the rules of International
Law are not petrified; they are constantly
developing and evolving. And because the
activities of states have multiplied, it has
been necessary to distinguish them
between sovereign and governmental acts
(jure imperii) and private, commercial and
proprietary acts (jure gestionis). The result
is that State immunity now extends only to
acts jure imperii The restrictive application
of State immunity is now the rule in the
United States, the United kingdom and other
states in Western Europe.
xxx xxx xxx
The restrictive application of State immunity
is proper only when the proceedings arise
out of commercial transactions of the
foreign sovereign, its commercial activities
or economic affairs. Stated differently, a
State may be said to have descended to the
level of an individual and can thus be
deemed to have tacitly given its consent to
be sued only when it enters into business
contracts. It does not apply where the
contract relates to the exercise of its
sovereign functions. In this case the projects
are an integral part of the naval base which
is devoted to the defense of both the United
States and the Philippines, indisputably a
function of the government of the highest
order; they are not utilized for nor dedicated
to commercial or business purposes.
The other petitioners in the cases before us all aver they have
acted in the discharge of their official functions as officers or
agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily

dismissed on their mere assertion that their acts are

imputable to the United States of America, which has not
given its consent to be sued. In fact, the defendants are
sought to be held answerable for personal torts in which the
United States itself is not involved. If found liable, they and
they alone must satisfy the judgment.
In Festejo v. Fernando, 23 a bureau director, acting without any
authority whatsoever, appropriated private land and
converted it into public irrigation ditches. Sued for the value
of the lots invalidly taken by him, he moved to dismiss the
complaint on the ground that the suit was in effect against the
Philippine government, which had not given its consent to be
sued. This Court sustained the denial of the motion and held
that the doctrine of state immunity was not applicable. The
director was being sued in his private capacity for a personal
tort.
With these considerations in mind, we now proceed to resolve
the cases at hand.
III
It is clear from a study of the records of G.R. No. 80018 that
the individually-named petitioners therein were acting in the
exercise of their official functions when they conducted the
buy-bust operation against the complainant and thereafter
testified against him at his trial. The said petitioners were in
fact connected with the Air Force Office of Special
Investigators and were charged precisely with the function of
preventing the distribution, possession and use of prohibited
drugs and prosecuting those guilty of such acts. It cannot for a
moment be imagined that they were acting in their private or
unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their
duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not
given its consent to be sued. As we observed in Sanders v.
Veridiano: 24
Given the official character of the abovedescribed letters, we have to conclude that
the petitioners were, legally speaking, being
sued as officers of the United States
government. As they have acted on behalf
of that government, and within the scope of
their authority, it is that government, and
not the petitioners personally, that is
responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code
which holds the government liable if it acts through a special
agent. The argument, it would seem, is premised on the
ground that since the officers are designated "special agents,"
the United States government should be liable for their torts.
There seems to be a failure to distinguish between suability
and liability and a misconception that the two terms are
synonymous. Suability depends on the consent of the state to
be sued, liability on the applicable law and the established
facts. The circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can
never be held liable if it does not first consent to be sued.
Liability is not conceded by the mere fact that the state has

allowed itself to be sued. When the state does waive its

sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The
government may be held liable under this rule only if it first
allows itself to be sued through any of the accepted forms of
consent.
Moreover, the agent performing his regular functions is not a
special agent even if he is so denominated, as in the case at
bar. No less important, the said provision appears to regulate
only the relations of the local state with its inhabitants and,
hence, applies only to the Philippine government and not to
foreign governments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed
by the special counsel of the Office of the Sheriff Judge
Advocate of Clark Air Base was a submission by the United
States government to its jurisdiction. As we noted in Republic
v. Purisima, 25 express waiver of immunity cannot be made by
a mere counsel of the government but must be effected
through a duly-enacted statute. Neither does such answer
come under the implied forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in
G.R. No. 80018 were acting in the discharge of their official
functions, we hesitate to make the same conclusion in G.R.
No. 80258. The contradictory factual allegations in this case
deserve in our view a closer study of what actually happened
to the plaintiffs. The record is too meager to indicate if the
defendants were really discharging their official duties or had
actually exceeded their authority when the incident in
question occurred. Lacking this information, this Court cannot
directly decide this case. The needed inquiry must first be
made by the lower court so it may assess and resolve the
conflicting claims of the parties on the basis of the evidence
that has yet to be presented at the trial. Only after it shall
have determined in what capacity the petitioners were acting
at the time of the incident in question will this Court
determine, if still necessary, if the doctrine of state immunity
is applicable.
In G.R. No. 79470, private respondent Genove was employed
as a cook in the Main Club located at the U.S. Air Force
Recreation Center, also known as the Open Mess Complex, at
John Hay Air Station. As manager of this complex, petitioner
Lamachia is responsible for eleven diversified activities
generating an annual income of $2 million. Under his
executive management are three service restaurants, a
cafeteria, a bakery, a Class VI store, a coffee and pantry shop,
a main cashier cage, an administrative office, and a
decentralized warehouse which maintains a stock level of
$200,000.00 per month in resale items. He supervises 167
employees, one of whom was Genove, with whom the United
States government has concluded a collective bargaining
agreement.
From these circumstances, the Court can assume that the
restaurant services offered at the John Hay Air Station partake
of the nature of a business enterprise undertaken by the
United States government in its proprietary capacity. Such
services are not extended to the American servicemen for free
as a perquisite of membership in the Armed Forces of the
United States. Neither does it appear that they are exclusively

offered to these servicemen; on the contrary, it is well known

that they are available to the general public as well, including
the tourists in Baguio City, many of whom make it a point to
visit John Hay for this reason. All persons availing themselves
of this facility pay for the privilege like all other customers as
in ordinary restaurants. Although the prices are concededly
reasonable and relatively low, such services are undoubtedly
operated for profit, as a commercial and not a governmental
activity.
The consequence of this finding is that the petitioners cannot
invoke the doctrine of state immunity to justify the dismissal
of the damage suit against them by Genove. Such defense will
not prosper even if it be established that they were acting as
agents of the United States when they investigated and later
dismissed Genove. For that matter, not even the United States
government itself can claim such immunity. The reason is that
by entering into the employment contract with Genove in the
discharge of its proprietary functions, it impliedly divested
itself of its sovereign immunity from suit.
But these considerations notwithstanding, we hold that the
complaint against the petitioners in the court below must still
be dismissed. While suable, the petitioners are nevertheless
not liable. It is obvious that the claim for damages cannot be
allowed on the strength of the evidence before us, which we
have carefully examined.
The dismissal of the private respondent was decided upon
only after a thorough investigation where it was established
beyond doubt that he had polluted the soup stock with urine.
The investigation, in fact, did not stop there. Despite the
definitive finding of Genove's guilt, the case was still referred
to the board of arbitrators provided for in the collective
bargaining agreement. This board unanimously affirmed the
findings of the investigators and recommended Genove's
dismissal. There was nothing arbitrary about the proceedings.
The petitioners acted quite properly in terminating the private
respondent's employment for his unbelievably nauseating act.
It is surprising that he should still have the temerity to file his
complaint for damages after committing his utterly disgusting
offense.
Concerning G.R. No. 76607, we also find that the barbershops
subject of the concessions granted by the United States
government are commercial enterprises operated by private
person's. They are not agencies of the United States Armed
Forces nor are their facilities demandable as a matter of right
by the American servicemen. These establishments provide
for the grooming needs of their customers and offer not only
the basic haircut and shave (as required in most military
organizations) but such other amenities as shampoo,
massage, manicure and other similar indulgences. And all for
a fee. Interestingly, one of the concessionaires, private
respondent Valencia, was even sent abroad to improve his
tonsorial business, presumably for the benefit of his
customers. No less significantly, if not more so, all the
barbershop concessionaires are under the terms of their
contracts, required to remit to the United States government
fixed commissions in consideration of the exclusive
concessions granted to them in their respective areas.
This being the case, the petitioners cannot plead any
immunity from the complaint filed by the private respondents
in the court below. The contracts in question being decidedly

commercial, the conclusion reached in the United States of

America v. Ruiz case cannot be applied here.
The Court would have directly resolved the claims against the
defendants as we have done in G.R. No. 79470, except for the
paucity of the record in the case at hand. The evidence of the
alleged irregularity in the grant of the barbershop concessions
is not before us. This means that, as in G.R. No. 80258, the
respondent court will have to receive that evidence first, so it
can later determine on the basis thereof if the plaintiffs are
entitled to the relief they seek. Accordingly, this case must
also be remanded to the court below for further proceedings.
IV
There are a number of other cases now pending before us
which also involve the question of the immunity of the United
States from the jurisdiction of the Philippines. This is cause for
regret, indeed, as they mar the traditional friendship between
two countries long allied in the cause of democracy. It is
hoped that the so-called "irritants" in their relations will be
resolved in a spirit of mutual accommodation and respect,
without the inconvenience and asperity of litigation and
always with justice to both parties.
WHEREFORE, after considering all the above premises, the
Court hereby renders judgment as follows:
1. In G.R. No. 76607, the petition is
DISMISSED and the respondent judge is
directed to proceed with the hearing and
decision of Civil Case No. 4772. The
temporary
restraining
order
dated
December 11, 1986, is LIFTED.
2. In G.R. No. 79470, the petition is
GRANTED and Civil Case No. 829-R(298) is
DISMISSED.
3. In G.R. No. 80018, the petition is
GRANTED and Civil Case No. 115-C-87 is
DISMISSED. The temporary restraining order
dated
October
14,
1987,
is
made
permanent.
4. In G.R. No. 80258, the petition is
DISMISSED and the respondent court is
directed to proceed with the hearing and
decision of Civil Case No. 4996. The
temporary restraining order dated October
27, 1987, is LIFTED.
All without any pronouncement as to costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, GrioAquino, Medialdea and Regalado, JJ., concur.

Appellants, versus Don Detwiler and Anthony Persi,

Defendants-Appellants,"1 dismissing petitioners complaint for
damages filed before the Regional Trial Court, Branch LVI,
Angeles City, in Civil Case No. 2783 thereof, and its
subsequent resolution denying petitioners motion for the
reconsideration of its aforesaid decision.
As found by respondent court,2 Clark Air Base is one of the
bases established and maintained by the United States by
authority of the agreement between the Philippines and the
United States concerning military bases which entered into
force on March 26, 1947.
The Third Combat Support Group, a unit of Clark Air Base,
maintains a Central Civilian Personnel Office (CCPO) charged
with the responsibility for civilian personnel management and
administration. It is through its civilian personnel officer that
the base commander is responsible for direction and
administration of civilian personnel program, including
advising management and operating officials on civilian
personnel matters. Acting for the commander, the civilian
personnel officer is the administrative official in charge of the
activities of the CCPO, and the commander relies on him to
carry out all aspects of the civilian personnel program. The
CCPO personnel program encompasses placement and
staffing, position management and classification.
The Third Combat Support Group also maintains an Education
Branch, Personnel Division, which provides an education
program for military personnel, U.S. civilian employees, and
adult dependents, assigned or attached to Clark Air Base. Its
head, the education director, is responsible directly to the
base director of personnel for administering the education
services program for Clark Air Base. In this capacity, and
within broad agency policies, is delegated to him the full
responsibility and authority for the technical, administrative
and management functions of the program. As part of his
duties, the education director provides complete academic
and vocational guidance for military dependents, including
counseling, testing and test interpretation. During the time
material to the complaint, private respondent Don Detwiler
was civilian personnel officer, while private respondent
Anthony Persi was education director.3

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 90314

November 27, 1990

LOIDA Q. SHAUF and JACOB SHAUF, Petitioners,

vs.
HON. COURT OF APPEALS, DON E. DETWILER and
ANTHONY PERSI, Respondents.
REGALADO, J.:
In this petition for review on certiorari, petitioners would have
us reverse and set aside the decision rendered by respondent
Court of Appeals on August 22, 1989, in CA-G.R. CV No.
17932, entitled "Loida Shauf and Jacob Shauf, Plaintiffs-

Petitioner Loida Q. Shauf, a Filipino by origin and married to an

American who is a member of the United States Air Force,
applied for the vacant position of Guidance Counselor,
GS17109, in the Base Education Office at Clark Air Base, for
which she is eminently qualified. As found by the trial court,
she received a Master of Arts degree from the University of
Sto. Tomas, Manila, in 1971 and has completed 34 semester
hours in psychology-guidance and 25 quarter hours in human
behavioral science; she has also completed all course work in
human behavior and counseling psychology for a doctoral
degree; she is a civil service eligible; and, more importantly,
she had functioned as a Guidance Counselor at the Clark Air
Base at the GS 1710-9 level for approximately four years at
the time she applied for the same position in 1976.4
By reason of her non-selection to the position, petitioner Loida
Q. Shauf filed an equal employment opportunity complaint
against private respondents, for alleged discrimination against
the former by reason of her nationality and sex. The
controversy was investigated by one Rudolph Duncan, an
appeals and grievance examiner assigned to the Office of

Civilian Personnel Operations, Appellate Division, San Antonio,

Texas, U.S.A. and what follows are taken from his findings
embodied in a report duly submitted by him to the Equal
Opportunity Officer on February 22, 1977.5
On or about October 1976, the position of Guidance
Counselor, GS 1710-9, became vacant in the Base Education
Office, Clark Air Base. A standard Form 52 was submitted to
the Civilian Personnel Office to fill said position. The Civilian
Personnel Division took immediate steps to fill the position by
advertisement in the Clark Air Base Daily Bulletin #205 dated
October 21, 1976. As a result of the advertisement, one
application was received by the Civilian Personnel Office and
two applications were retrieved from the applicants supply file
in the Civilian Personnel Office. These applications were that
of Mrs. Jean Hollenshead, an employee of the DOD Schools at
Clark Air Base, Mrs. Lydia B. Gaillard, an unemployed
dependent, and Mrs. Loida Q. Shauf. All three applications
were reviewed and their experiences were considered
qualifying for the advertised position.
On November 11, 1976, the application of Loida Q. Shauf was
referred to Mr. Anthony Persi, with the applications of Mrs.
Jean Hollenshead and Mrs. Lydia Gaillard, to be considered for
the position of Guidance Counselor, GS 1710-9, Mr. Persi, after
review of the applications, stated that upon screening the
applications he concluded that two applicants had what he
considered minimum qualifications for the position. The two
applicants were Mrs. Hollenshead and Mrs. Gaillard. In the
case of Loida Q. Shauf, Mr. Persi felt that her application was
quite complete except for a reply to an inquiry form attached
to the application. This inquiry form stated that the National
Personnel Records Center, St. Louis, Missouri, was unable to
find an official personnel folder for Loida Q. Shauf. Mr. Persi
said that as a result of the National Personnel Records Center,
GSA, not being able to find any records on Loida Q. Shauf, this
raised some questions in his mind as to the validity of her
work experience. As a result of his reservations on Loida Q.
Shaufs work experience and his conclusions that the two
other applications listed minimum qualifications, Mr. Persi
decided to solicit additional names for consideration.
Subsequently in his correspondence dated November 12,
1976, Mr. Persi returned the three applications to the Civilian
Personnel Office without a selection decision. Mr. Persi also
requested in his correspondence that the Civilian Personnel
Office initiate immediate inquiry to the Central Oversea
Rotation and Recruiting Office (CORRO) for the submission of
a list of highly qualified candidates. He further stated in his
correspondence that the three applicants who had indicated
an interest would be considered with the CORRO input for
selection.
As a result of Mr. Persis request, an AF Form 1188 "Oversea
Civilian Personnel Request" was submitted to CORRO on
November 12, 1976. This request in fact asked for one
Guidance Counselor, GS 1710-9. The form listed the fact that
local candidates are available. However, instead of getting a
list of candidates for consideration, Mr. Persi was informed by
CORRO, through the Civilian Personnel Office in their
December 15, 1976 message that a Mr. Edward B. Isakson
from Loring AFB, Maine, was selected for the position. Mr.
Persi stated, when informed of CORROs selection, that he had
heard of Mr. Isakson and, from what he had heard, Mr. Isakson
was highly qualified for the position; therefore, he wished to

have the selection stand. This statement was denied by Mr.

Persi. Mr. Isakson was placed on the rolls at Clark Air Base on
January 24, 1977.6
Said examiner, however, also stated in his findings that, by
reason of petitioner Loida Q. Shaufs credentials which he
recited therein, she is and was at the time of the
vacancy,7 highly qualified for the position of Guidance
Counselor, GS 1710-9. In connection with said complaint, a
Notice of Proposed Disposition of Discrimination Complaint,
dated May 16, 1977,8 was served upon petitioner Loida Q.
Shauf stating that because the individual selected did not
meet the criteria of the qualification requirements, it was
recommended "that an overhire GS 1710-9 Assistant
Education Advisor position be established for a 180 day
period. x x x. The position should be advertised for local
procurement on a best qualified basis with the stipulation that
if a vacancy occurs in a permanent GS 1710-9 position the
selectee would automatically be selected to fill the vacancy. If
a position is not vacated in the 180 day period the temporary
overhire would be released but would be selected to fill a
future vacancy if the selectee is available."
During that time, private respondents already knew that a
permanent GS 1710-9 position would shortly be vacant, that
is, the position of Mrs. Mary Abalateo whose appointment was
to expire on August 6, 1977 and this was exactly what private
respondent Detwiler had in mind when he denied on June 27,
1977 Mrs. Abalateos request for extension of March 31, 1977.
However, private respondents deny that Col. Charles J. Corey
represented to petitioner Loida Q. Shauf that she would be
appointed to the overhire position and to a permanent GS
1710-9 position as soon as it became vacant, which allegedly
prompted the latter to accept the proposed disposition.
Contrary to her expectations, petitioner Loida Q. Shauf was
never appointed to the position occupied by Mrs. Abalateo
whose appointment was extended indefinitely by private
respondent Detwiler.9
Feeling aggrieved by what she considered a shabby treatment
accorded her, petitioner Loida Q. Shauf wrote the U.S. Civil
Service Commission questioning the qualifications of Edward
Isakson. Thereafter, said commission sent a communication
addressed to private respondent Detwiler, 10 finding Edward
Isakson not qualified to the position of Guidance Counselor,
GS 1710-9, and requesting that action be taken to remove
him from the position and that efforts be made to place him in
a position for which he qualifies. Petitioner Loida Q. Shauf
avers that said recommendation was ignored by private
respondent Detwiler and that Isakson continued to occupy
said position of guidance counselor.
Petitioner Loida Q. Shauf likewise wrote the Base Commander
of Clark Air Base requesting a hearing on her complaint for
discrimination. Consequently, a hearing was held on March
29, 1978 before the U.S. Department of Air Force in Clark Air
Base.11
Before the Department of Air Force could render a decision,
petitioner Loida Q. Shauf filed a complaint for damages, dated
April 27, 1978, against private respondents Don Detwiler and
Anthony Persi before the Regional Trial Court, Branch LVI at
Angeles City, docketed as Civil Case No. 2783, for the alleged
discriminatory acts of herein private respondents in

maliciously denying her application for the GS 1710-9

position.

"c. Selection or Referral of Eligible Applicants From the 50

States:

Private respondents, as defendants in Civil Case No. 2783,

filed a motion to dismiss on the ground that as officers of the
United States Armed Forces performing official functions in
accordance with the powers vested in them under the
Philippine-American Military Bases Agreement, they are
immune from suit. The motion to dismiss was denied by the
trial court. A motion for reconsideration was likewise denied.

(1)CORRO makes selection, except as provided in (3)

below, for oversea positions of Grades GS-11 and
below (and wage grade equivalents) for which it has
received an AF Form 1188, and for higher grade
positions if requested by the oversea activity." 12

Consequently, private respondents filed an Answer reiterating

the issue of jurisdiction and alleging, inter alia, that defendant
Persis request to Central Oversea Rotation and Recruiting
Office (CORRO) was not for appointment of a person to the
position of Guidance Counselor, GS 1710-9, but for referrals
whom defendant Persi would consider together with local
candidates for the position; that the extension of the
employment of Mrs. Abalato was in accordance with
applicable regulation and was not related to plaintiff Loida Q.
Shaufs discrimination complaint; that the decision was a joint
decision of management and CCPO reached at a meeting on
June 29, 1977 and based on a letter of the deputy director of
civilian personnel, Headquarters Pacific Air Forces, dated June
15, 1977; and that the ruling was made known to and
amplified by the director and the deputy director of civilian
personnel in letters to petitioner Loida Q. Shauf dated August
30, 1977 and September 19, 1977.
The parties submitted a Partial Stipulation of Facts in the
court a quo providing, in part, as follows:
a) In October 1976, the position of guidance
counselor, GS-1710-9, at Clark Air Base was vacant;
b) Plaintiff Loida Q, Shauf, a qualified dependent
locally available, was among those who applied for
said vacant position of guidance counselor, GS-17109;
c) Plaintiff Loida Q. Shauf at the time she filed her
aforesaid application was qualified for the position of
guidance counselor, GS-1710-9;
d) Civilian Personnel Office accomplished and
forwarded to CORRO an AF Form 1188 covering the
position of guidance counselor, GS-1710-9, applied
for by plaintiff Loida Q. Shauf;
e) U.S. Department of Defense Instructions (DODI)
No. 1400.23 under Policy and Procedures provides
that"Where qualified dependents of military or civilian personnel
of the Department of Defense are locally available for
appointment to positions in foreign areas which are
designated for U.S. citizen occupancy and for which
recruitment outside the current work force is appropriate,
appointment to the position will be limited to such dependents
unless precluded by treaties or other agreements which
provide for preferential treatment for local nationals."
And Air Force Regulation 40-301 dated 12 May 1976 in par. 2 c
(1) thereof provides that-

Likewise, a Supplement to Partial Stipulation of Facts was filed

by the parties on October 6, 1978, which reads:
1. Under date of 30 September 1978, plaintiff Loida Q. Shauf
through her counsel, Quasha Asperilla Ancheta Valmonte Pea
& Marcos, lodged an appeal before the Civil Service
Commission, Appeals Review Board, from the decision of the
Secretary of the Air Force dated 1 September 1978 affirming
the EEO Complaints Examiners Findings and Recommended
Decision in the Discrimination Complaint of Mrs. Loida Q.
Shauf, No. SF 071380181 dated 3 July 1978, x x x;
2. The aforesaid appeal has not been decided up to now by
the Civil Service Commission, Appeals Review Board; and
3. Plaintiff Loida Q. Shauf has not instituted any action before
any federal district court of the United States impugning the
validity of the decision of the Secretary of the Air Force dated
1 September 1978 affirming the EEO Complaints Examiners
Findings and Recommended Decision in the Discrimination
Complaint of Mrs. Loida Q. Shauf, No. SF 071380181 dated 3
July 1978.13
Thereafter, on March 8, 1988, the trial court rendered
judgment in favor of herein petitioner Loida Q. Shauf, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering the
defendants jointly and severally to pay the plaintiffs:
1) The amount $39,662.49 as actual damages or its
equivalent in Philippine pesos in October 1976 as
reported by the Central Bank of the Philippines or
any authorized agency of the Government;
2) The amount of P100,000.00
exemplary damages;

as

moral

and

3) Twenty (20%) percent of $39,662.49 or

equivalent in Philippine Pesos in October 1976
reported by the Central Bank of the Philippines
any authorized agency of the Government,
attorneys gees, and;

its
as
or
as

4) Cost(s) of suit.
SO ORDERED.14
Both parties appealed from the aforecited decision to
respondent Court of Appeals.
In their appeal, plaintiffs-appellants (herein petitioners) raised
the following assignment of errors:

1. Lower court gravely erred in holding that the

actual and exemplary damages and attorneys fees
may be paid in Philippine Pesos based on the
exchange rate prevailing during October 1976 as
determined by the Central Bank;
2. Lower court gravely erred in limiting the amount of
moral and exemplary damages recoverable by
plaintiff to P100,000.0015
On
the
other
hand,
defendants-appellants
respondents herein) argued that:

(private

1. The trial court erred in not dismissing the

complaint on the ground that defendants-appellants,
as officers/officials of the United States Armed
Forces, are immune from suit for acts done or
statements made by them in the performance of
their official governmental functions in accordance
with the powers possessed by them under the
Philippine-American Military Bases Agreement of
1947, as amended;
2. The trial court erred in not dismissing the
complaint for a) non-exhaustion of administrative
remedies; and b) lack of jurisdiction of the trial court
over the subject matter of the case in view of the
exclusive jurisdiction of an appropriate U.S. District
Court over an appeal from an agency decision on a
complaint of discrimination under the U.S. Federal
Law on Equality of opportunity for civilian employees;
3. The trial court erred in holding that plaintiffappellant Loida Q. Shauf was refused appointment as
guidance counselor by the defendants-appellants on
account of her six (female), color (brown), and
national origin (Filipino by birth) and that the trial
court erred in awarding damages to plaintiffsappellants.16
As stated at the outset, respondent Court of Appeals reversed
the decision of the trial court, dismissed herein
petitionerscomplaint
and
denied
their
motion
for
reconsideration. Hence this petition, on the basis of he
following grounds:
The respondent Honorable Court of Appeals has decided a
question of substance not in accord with law and/or with
applicable decisions of this Honorable Court. Respondent
court committed grave error in dismissing plaintiffsappellants complaint and(a) in holding that private respondents are immune
from suit for discriminatory acts performed without
or in excess of, their authority as officers of the U.S.
Armed Forces;
(b) for applying the doctrine of state immunity from
suit when it is clear that the suit is not against the
U.S. Government or its Armed Forces; and
(c) for failing to recognize the fact that the instant
action is a pure and simple case for damages based
on the discriminatory and malicious acts committed

by private respondents in their individual capacity

who by force of circumstance and accident are
officers of the U.S. Armed Forces, against petitioner
Loida Shauf solely on account of the latters sex
(female), color (brown), and national origin
(Filipino).17
Petitioners aver that private respondents are being sued in
their private capacity for discriminatory acts performed
beyond their authority, hence the instant action is not a suit
against the United States Government which would require its
consent.
Private respondents, on the other hand, claim that in filing the
case, petitioners sought a judicial review by a Philippine court
of the official actuations of respondents as officials of a
military unit of the U.S. Air Force stationed at Clark Air Base.
The acts complained of were done by respondents while
administering the civil service laws of the United States. The
acts sued upon being a governmental activity of respondents,
the complaint is barred by the immunity of the United States,
as a foreign sovereign, from suit without its consent and by
the immunity of the officials of the United States armed forces
for acts committed in the performance of their official
functions pursuant to the grant to the United States armed
forces of rights, power and authority within the bases under
the Military Bases Agreement. It is further contended that the
rule allowing suits against public officers and employees for
unauthorized acts, torts and criminal acts is a rule of domestic
law, not of international law. It applies to cases involving the
relations between private suitors and their government or
state, not the relations between one government and another
from which springs the doctrine of immunity of a foreign
sovereign.
I. The rule that a state may not be sued without its consent,
now expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of
our land under Article II, Section 2. This latter provision merely
reiterates a policy earlier embodied in the 1935 and 1973
Constitutions and also intended to manifest our resolve to
abide by the rules of the international community. 18
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against
the state itself although it has been formally impleaded. 19 It
must be noted, however, that the rule is not also allencompassing as to be applicable under all circumstances.
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As we clearly set forth by
Justice
Zaldivar
in Director
of
the
Bureau
of
Telecommunications,
et
al.
Vs.
Aligaen,
etc.,
et
al.:20 "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by

such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit. In
the same tenor, it has been said that an action at law or suit
in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights
of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the
State may not be sued without its consent." 21 The rationale for
this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.22
In the case of Baer, etc. vs. Tizon, etc., et al., 23 it was ruled
that:
There should be no misinterpretation of the scope of the
decision reached by this Court. Petitioner, as the Commander
of the United States Naval Base in Olongapo, does not
possess diplomatic immunity. He may therefore be proceeded
against in his personal capacity, or when the action taken by
him cannot be imputed to the government which he
represents.
Also, in animos, et al. Vs. Philippine Veterans Affairs Office, et
al.,24 we held that:
"x x x it is equally well-settled that where a litigation may
have adverse consequences on the public treasury, whether
in the disbursements of funds or loss of property, the public
official proceeded against not being liable in his personal
capacity, then the doctrine of non-suability may appropriately
be invoked. It has no application, however, where the suit
against such a functionary had to be instituted because of his
failure to comply with the duty imposed by statute
appropriating public funds for the benefit of plaintiff or
petitioner. x x x.
The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and may
not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen. The cloak
of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with
malice and in bad faith, or beyond the scope of his authority
or jurisdiction.25
The agents and officials of the United States armed forces
stationed in Clark Air Base are no exception to this rule. In the
case of United States of America, et al. Vs. Guinto, etc., et al.,
ante,26 we declared:
It bears stressing at this point that the above observation do
not confer on the United States of America blanket immunity
for all acts done by it or its agents in the Philippines. Neither
may the other petitioners claim that they are also insulated
from suit in this country merely because they have acted as
agents of the United States in the discharge of their official
functions.

II. The court below, in finding that private respondents are

guilty of discriminating against petitioner Loida Q. Shauf on
account of her sex, color and origin, categorically emphasized
that:
There is ample evidence to sustain plaintiffs complaint that
plaintiff Loida Q. Shauf was refused appointment as Guidance
Counselor by the defendants on account of her sex, color and
origin.
She is a female, brown in color and a Filipino by origin,
although married to an American who is a member of the
United States Air Force. She is qualified for the vacant position
of Guidance Counselor in the office of the education director
at Clark Air Base. She received a Master of Arts Degree from
the University of Santo Tomas, Manila, in 1971 and has
completed 34 semester hours in psychology-guidance and 25
quarter hours in human behavioral science. She has also
completed all course work in human behavior and counseling
psychology for a doctoral degree. She is a civil service
eligible. More important, she had functioned as a Guidance
Counselor at the Clark Air Base at the GS-1710-9 level for
approximately four years at the time she applied for the same
position in 1976.
In filling the vacant position of Guidance Counselor, defendant
Persi did not even consider the application of plaintiff Loida Q.
Shauf, but referred the vacancy to CORRO which appointed
Edward B. Isakson who was not eligible to the position.
In defending his act, defendant Persi gave as his excuse that
there was a question in his mind regarding validity of plaintiff
Loida Q. Shaufs work experience because of lack of record.
But his assertion is belied by the fact that plaintiff Loida Q.
Shauf had previously been employed as Guidance Counselor
at the Clark Air Base in 1971 and this would have come out if
defendant Persi had taken the trouble of interviewing her. Nor
can defendant free himself from any blame for the nonappointment of plaintiff Loida Q. Shauf by claiming that it was
CORRO that appointed Edward B. Isakson. This would not
have happened if defendant Persi adhered to the regulation
that limits the appointment to the position of Guidance
Counselor, GS-1710-9 to qualified dependents of military
personnel of the Department of Defense who are locally
available like the plaintiff Loida Q. Shauf. He should not have
referred the matter to CORRO. Furthermore, defendant Persi
should have protested the appointment of Edward B. Isakson
who was ineligible for the position. He, however, remained
silent because he was satisfied with the appointment.
Likewise, the acts of the defendant Detwiler in rejecting the
appointment of plaintiff Loida Q. Shauf were undoubtedly
discriminatory.
Plaintiff Loida Q. Shauf twice applied for the position of
Guidance Counselor sometime in 1975 and in October 1978.
Although she was qualified for the postision, her appointment
was rejected ny the defendant Detwiler. The two who were
appointed, a certain Petrucci and Edward B. Isakson, were
ordered removed by the U.S. Civil Service Commission.
Instead of replacing Petrucci with the plaintiff Loida Q. Shauf,
the defendant Detwiler had the position vacated by Petrucci
abolished. And in the case of Edward Isakson, the defendant
Detwiler ignored the order of the U.S. Civil Service

Commission to have him removed according to the testimony

of plaintiff Loida Q. Shauf.
In connection with her complaint against the defendants,
plaintiff Loida Q. Shauf was presented a Notice of Proposed
Disposition of her Discrimination Complaint by Col. Charles J.
Corey, Vice Commander, Third Combat Support Group, Clark
Air Base, which would entitle her to a temporary appointment
as Guidance Counselor with the implied assurance that she
would be appointed in a permanent capacity in the event of a
vacancy.
At the time of the issuance of said Notice, defendants knew
that there would be a vacancy in a permanent position as
Guidance Counselor occupied by Mrs. Mary Abalateo and it
was understood between Col. Corey and plaintiff Loida Q.
Shauf that this position would be reserved for her. Knowing
this arrangement, defendant Detwiler rejected the request for
extension of services of Mrs. Mary Abalateo. However, after
plaintiff Loida Q. Shauf consented to the terms of the Notice of
Proposed Disposition of her Discrimination Complaint,
defendant Detwiler extended the services of Mrs. Mary
Abalateo indefinitely. This act barred plaintiff Loida Q. Shauf
from applying for the position of Mrs. Mary Abalateo.
To rebut the evidence of the plaintiffs, defendant cited the
findings and conclusions of Mr. Rudolph Duncan, who was
appointed to investigate plaintiff Loida Q. Shaufs complaint
for discrimination and Col. Charles J. Corey, Vice Commander,
Third Combat Support Group that defendants were not guilty
of Discrimination.
It is pointed out, however, that Mr. Rudolph Duncan found
plaintiff loida Q. Shauf to be highly qualified for the position of
Guidance Counselor at the GS-1710-9 level and that
management should have hired a local applicant. While Col.
Corey characterized the act of defendant Persi as sloppy and
recommend that he be reprimanded. In any event their
findings and conclusions are not binding with this Court.
To blunt the accusation of discrimination against them,
defendants maintained that the extension of the appointment
of Mrs. Mary Abalateo was a joint decision of management
and Central Civilian Personnel Office, Clark Air Base.
Nonetheless, having earlier rejected by himself the request for
extension of the services of Mrs. Mary Abalateo, defendant
Detwiler should not have concurred to such an extension as
the reversal of his stand gave added substance to the charge
of discrimination against him.
To further disprove the charge that the defendants
discriminated against plaintiff Loida Q. Shauf for her nonappointment as Guidance Counselor on account of her being a
Filipino and a female, counsel for the defendants cited the
following: (1) that Mrs. Mary Abalateo whose appointment was
extended by the defendant Detwiler is likewise a female and a
Filipino by origin; (2) that there are Filipinos employed in the
office of the defendant Persi; and (3) that there were two
other women who applied in 1976 with the plaintiff Loida Q.
Shauf for the position of Guidance Counselor.
The contention of the defendants based on the allegations
enumerated in Nos. 1 and 2 of the preceding paragraph is
without merit as there is no evidence to show that Mrs. Mary

Abalateo and the Filipinos in the office of the defendant Persi

were appointed by the defendants. Moreover, faced with a
choice between plaintiff Loida Q. Shauf or Mrs. Mary Abalateo,
it was to be expected that defendant Detwiler chose to retain
Mrs. Mary Abalateo as Guidance Counselor in retaliation for
the complaint of discrimination filed against him by plaintiff
Loida Q. Shauf. Finally, as to the contention based on the
allegation in No. 3 of the preceding paragraph that there were
two other women applicants in 1976 with plaintiff Loida Q.
Shauf, the record reveals that they had minimum
qualifications unlike plaintiff Loida Q. Shauf who was highly
qualified.27
Elementary is the rule that the conclusions and findings of
fact of the trial court are entitled to great weight on appeal
and should not be disturbed unless for strong and cogent
reasons.28 Absent any substancial proof, therefore, that the
trial courts decision was grounded entirely on speculations,
surmises or conjectures, the same must be accorded full
consideration and respect. This should be so because the trial
court is, after all, in a much better position to observe and
correctly appreciate the respective parties evidence as they
were presented.29
In the case at bar, there is nothing in the record which
suggests any arbitrary, irregular or abusive conduct or motive
on the part of the trial judge in ruling that private respondents
committed acts of discrimination for which they should be
held personally liable. His conclusion on the matter is
sufficiently borne out by the evidence on record. We are thus
constrained to uphold his findings of fact.
Respondent Court of Appeals, in its questioned decision,
states that private respondents did, in fact, discriminate
against petitioner Loida Q. Shauf. However, it deemed such
acts insufficient to prevent an application of the doctrine of
state immunity, contrary to the findings made by the trial
court. It reasons out that "the parties invoked are all American
citizens (although plaintiff is a Filipina by origin) and the
appointment of personnel inside the base is clearly a
sovereign act of the United States. This is an internal affair in
which we cannot interfere without having to touch some
delicate constitutional issues."30 In other words, it believes
that the alleged discriminatory acts are not so grave in
character as would justify the award of damages.
In view of the apparent discrepancy between the findings of
fact of respondent Court of Appeals and the trial court, we are
tasked to review the evidence in order to arrive at the correct
findings based on the record. A consideration of the evidence
presented supports our view that the court a quo was correct
in holding herein private respondents personally liable and in
ordering the indemnification of petitioner Loida Q. Shauf. The
records are clear that even prior to the filing of the complaint
in this case, there were various reports and communications
issued on the matter which, while they make no categorical
statement of the private respondents liability, nevertheless
admit of facts from which the intent of private respondents to
discriminate against Loida Q. Shauf is easily discernible.
Witness the following pertinent excerpts from the documents
extant in the folder of Plaintiffs Exhibits:
1. Notice of Proposed Disposition of Discrimination Complaint,
dated May 16, 1977 (Exhibit "G").

B. Mr. Anthony Persi was totally inept in the recruitment

practices employed in attempting on fill the GS 1710-9
Assistant Education applicable DOD regulations. In addition,
he failed to conduct an interview of qualified personnel in the
local environment and when the qualifications of the
complainant (sic) were questioned by Mr. Persi he did not
request a review by the CCPO nor request an interview with
the complainant (sic). Mr. Persi failed to follow Department of
Defense Instructions Number 1400.23, under Policy and
Procedures which states-"Where qualified dependents of
military or civilian personnel of the Department of Defense
are locally available for appointment to positions in foreign
areas which are designated for US citizen occupancy and for
which recruitment outside the current work force is
appropriate, appointment to the positions will be limited to
such dependents unless precluded by treaties or other
agreements which provide for preferential treatment for local
nationals." Attachment to Air Force Supplement to FFM
213.2106 (b) (6) lists the positions of Guidance Counsellor, GS
1710-9, as positions to be filled by locally available
dependents. An added point is the lack of qualifications of the
individual selected for the GS 1710-9 positions as outlined
under X-118 Civil Service Handbook. x x x31
2. Letter of the Director of the U.S. Civil Service Commission,
San Francisco Region, dated October 27, 1977, addressed to
Mr. Don Detwiler, concerning Mr. Edward B. Isakson whose file
was reviewed by the Commission (Exhibit "K").
The position of Guidance Counsellor is one for which the
Commission has established a mandatory education
requirement that may not be waived. An individual may not
be assigned to such a position without meeting the minimum
qualification requirements. The requirements, as given in
Handbook X-118, are completion of all academic requirements
for a bachelors degree from an accredited college or
university and successful completion of a teacher education
program under an "approved program" or successful
completion of required kinds of courses.
On review of his record, we find that Mr. Isakson has a
bachelors degree but he does not show completion of a
teacher education program. To qualify for Guidance Counselor
on the basis of coursework and semester hour credit, he
would need to have 24 semester hours in Education and 12
semester hours in a combination of Psychology and Guidance
subjects directly related to education. We do not find that he
meets these requirements.
xxx
We can appreciate the fact that Mr. Isakson may be working
toward meeting the Guidance Counselor requirements.
Nonetheless, he does not appear to meet them at this time.
We must, therefore, request that action be taken to remove
him from the position and that efforts be made to place him in
a position for which he qualifies.32
3. Letter of the Staff Judge Advocate of the Department of the
Airforce addressed to Mr. Detwiler, dated January 25, 1977
(Exhibit "L").
1. The attached memo from Captain John Vento of
this office is forwarded for your review and any

action you deem appropriate. I concur with his

conclusion that there is no evidence of sex or ethnic
bias in this matter. I also concur, however, that there
were certain irregularities in the handling of this
selection.
xxx
3. Considering the above, it is most unfortunate that
the filing of this latest Guidance Counselor vacancy
was not handled wholly in accordance with
prescribed policies and regulations. This is not to
suggest that Mrs. Shauf should necessarily have
been hired. But, she and other qualified candidates
should have been given the consideration to which
they were entitled. (At no time now or in the past
have Mrs. Shaufs qualifications ever been
questioned.) Had that happened and management
chose to select some qualified candidate other than
Mrs. Shauf, there would be no basis for her
complaint.
4. It is my understanding that Mrs. Shauf has filed a
formal EEO complaint. While I am convinced that
there was no discrimination in this case, my
experience with EEO complaints teaches me that, if
Civil Service Commission finds that nonselection
resulted from any kind of management malpractice,
it is prone to brand it as a "discriminatory practice."
This usually results in a remedial order which can
often be distasteful to management. x x x.33
The initial burden is on the plaintiff to establish a prima
facie case or discrimination. Once the discriminatory act is
proven, the burden shifts to the defendant to articulate some
legitimate, undiscriminatory reason for the plaintiffs
rejection.34 Any such justification is wanting in the case at bar,
despite the prima facie case for petitioner Loida Q. Shauf.
Private respondents defense is based purely on outright
denials which are insufficient to discharge theonus
probandi imposed upon them. They equally rely on the
assertion that they are immune from suit by reason of their
official functions. As correctly pointed out by petitioners in
their Memorandum, the mere invocation by private
respondents of the official character of their duties cannot
shield them from liability especially when the same were
clearly done beyond the scope of their authority, again citing
the Guinto, case, supra:
The other petitioners in the case before us all aver they have
acted in the discharge of their official functions as officers or
agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily
dismissed on their mere assertion that their acts are
imputable to the United States of America, which has not
given its consent to be sued. In fact, the defendants are
sought to be held answerable for personal torts in which the
United States itself is not involved. If found liable, they and
they alone must satisfy the judgment.
III. Article XIII, Section 3, of the 1987 Constitution provides
that the State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
This is a carry-over from Article II, Section 9, of the 1973

Constitution ensuring equal work opportunities regardless of

sex, race, or creed.
Under the Constitution of the United States, the assurance of
equality in employment and work opportunities regardless of
sex, race, or creed is also given by the equal protection clause
of the Bill of Rights. The 14th Amendment, in declaring that
no state shall deprive a person of his life, liberty, or property
without due process of law or deny to any person within its
jurisdiction the equal protection of the laws, undoubtedly
intended not only that there should be no arbitrary spoliation
of property, but that equal protection and security should be
given to all under like circumstances in the enjoyment of their
personal and civil rights, and that all persons should be
equally entitled to pursue their happiness ands acquire and
enjoy property. It extends its protection to all persons without
regard to race, color, or class. It means equality of opportunity
to all in like circumstances.35
The words "life, liberty, and property" as used in constitutions
are representative terms and are intended to cover every
right to which a member of the body politic in entitled under
the law. These terms include the right of self-defense, freedom
of speech, religious and political freedom, exemption from
arbitrary arrests, the right to freely buy and sell as others
may, the right to labor, to contract, to terminate contracts, to
acquire property, and the right to all our liberties, personal,
civil and political-in short, all that makes life worth living.36
There is no doubt that private respondents Persi and Detwiler,
in committing the acts complained of have, in effect, violated
the basic constitutional right of petitioner Loida Q. Shauf to
earn a living which is very much an integral aspect of the right
to life. For this, they should be held accountable.
While we recognize petitioner Loida Q. Shaufs entitlement to
an award of moral damages, we however find no justification
for the award of actual or compensatory damages, based on
her supposedly unearned income from March, 1975 up to
April, 1978 in the total amount of $39,662.49, as erroneously
granted by the trial court.
Evidence that the plaintiff could have bettered her position
had it not been for the defendants wrongful act cannot serve
as basis for an award of damages, because it is highly
speculative.37 Petitioner Loida Q. Shaufs claim is merely
premised on the possibility that had she been employed, she
would have earned said amount. But, the undeniable fact
remains that she was never so employed. Petitioner never
acquired any vested right to the salaries pertaining to the
position of GS 1710-9 to which she was never appointed.
Damages which are merely possible are speculative. 38 In
determining actual damages, the court cannot rely on
speculation, conjecture or guesswork. Without the actual proof
of
loss,
the
award
of
actual
damages
is
erroneous.39 Consequently, the award of actual damages
made by the trial court should be deleted. Attorneys fees,
however, may be granted and we believe that an award
thereof in the sum of P20,000.00 is reasonable under the
circumstances.1wphi1
IV. Finally, private respondents postulate that petitioner Loida
Q. Shauf failed to avail herself of her remedy under the United
States federal legislation on equality of opportunity for civilian
employees, which is allegedly exclusive of any other remedy

under American law, let alone remedies before a foreign court

and under a foreign law such as the Civil Code of the
Philippines.
In a letter of the Department of the Air Force in Washington,
D.C., dated September 1, 1978 and addressed to petitioner
Loida Q. Shauf,40 the appeal rights of the latter from the Air
Force decision were enumerated as follows:
-You may appeal to the Civil Service Commission
within 15 calendar days of receipt of the decision.
Your appeal should be addressed to the Civil Service
Commission, Appeals Review Board, 1990 E Street,
N.Q., Washington, D.C. 20415. The appeal and any
representation in support thereof must be submitted
in duplicate.
-In lieu of an appeal to the Commission you may file
a civil action in an appropriate U.S. District Court
within 30 days of receipt of the decision.
-If you elect to appeal to the Commissions Appeals
Review Board, you may file a civil action in a U.S.
District Court within 30 days of receipt of the
Commissions final decision.
-A civil action may also be filed anytime after 180
days of the date of initial appeal to the Commission,
if a final decision has not been rendered.
As earlier noted, in a Supplement to Partial Stipulation of Facts
filed by the parties on October 6, 1978, it was manifested to
the trial court that an appeal was lodged by counsel for
petitioners on September 30, 1978 before the Civil Service
Commission. Appeals Review Board from the decision of the
Secretary of the Air Force in the discrimination case filed by
petitioner Loida Q. Shauf, No. SF 071380181. Said appeal has
not been decided up to now.
Furthermore, it is basic that remedial statutes are to be
construed liberally. The term "may," as used in adjective rules,
is only permissive and not mandatory, and we see no reason
why the so-called rules on the above procedural options
communicated to said petitioner should depart from this
fundamental . petitioner Loida Q. Shauf is not limited to these
remedies, but is entitled as a matter of plain and simple
justice to choose that remedy, not otherwise proscribed,
which will best advance and protect her interests. There is,
thus, nothing to enjoin her from seeking redress in Philippine
courts which should not be ousted of jurisdiction on the
dubious and inconclusive representations of private
respondents on that score.
WHEREFORE, the challenged decision and resolution of
respondent Court of Appeals in CA-G.R. CV No. 17932 are
hereby ANNULLED and SET ASIDE. Private respondents are
hereby ORDERED, jointly and severally, to pay petitioners the
sum of P100,000.00 as moral damages, P20,000.00 as and for
attorneys fees, and the costs of suit.
SO ORDERED.

Melencio-Herrera (Chairman), Paras, Padilla and Sarmiento,

jj.,
concur.
Decision and resolution annulled and set aside

EN BANC
[G.R. No. 142773. January 28, 2003]
PEOPLE
OF
THE
PHILIPPINES, plaintiffappellee, vs. MARLON DELIM, LEON DELIM,
MANUEL DELIM alias BONG (At Large), ROBERT
DELIM
(At
Large),
and
RONALD
DELIM alias BONG, accused-appellants.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision,
[1]
dated January 14, 2000, of the Regional Trial Court, Branch
46, Urdaneta City, finding accused-appellants Marlon Delim,
Leon Delim and Ronald Delim guilty beyond reasonable doubt
of the crime of murder and sentencing them to suffer the
supreme penalty of death. The court also ordered accusedappellants to pay, jointly and severally, the heirs of the victim
the sums of P75,000.00 as moral damages and P25,000.00 as
exemplary damages.
Accused-appellants Marlon, Ronald and Leon, together
with Manuel alias Bong and Robert, all surnamed Delim, were
indicted for murder under an Information dated May 4, 1999
which reads:
That on or about January 23, 1999, in the evening at Brgy.
Bila, Sison, Pangasinan, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with short
firearms barged-in and entered the house of Modesto Delim
and once inside with intent to kill, treachery, evident
premedidation (sic), conspiring with one another, did then and
there, wilfully, unlawfully and feloniously grab, hold, hogtie,
gag with a piece of cloth, brought out and abduct Modesto
Delim, accused Leon Delim and Manuel Delim stayed in the
house guarded and prevented the wife and son of Modesto
Delim from helping the latter, thereafter with abuse of
superior strength stabbed and killed said Modesto Delim, to
the damage and prejudice of his heirs.
CONTRARY to Article 248 of the Revised Penal Code, as
amended by Republic Act No. 7659.[2]
Only accused-appellants Marlon (Bongbong), Leon and
Ronald, all surnamed Delim, were apprehended. Accused
Robert and Manuel remain at-large.
At their arraignment, Marlon, Ronald and Leon, with the
assistance of their counsel, pleaded not guilty to the charge.
At the trial, the prosecution established the following
relevant facts[3]
Marlon, Manuel and Robert Delim are brothers. They are
the uncles of Leon Delim and Ronald Delim. Modesto Manalo
Bantas, the victim, was an Igorot and a carpenter. He took the
surname Delim after he was adopted by the father of Marlon,
Manuel and Robert. However, Modestos wife, Rita, an
illiterate, and their 16-year old son, Randy, continued using
Manalo Bantas as their surname. Modesto, Rita and Randy
considered Marlon, Robert, Ronald, Manuel and Leon as their

relatives. Manuel and Leon were the neighbors of

Modesto. Marlon, Robert and Ronald used to visit Modesto and
his family. Modesto and his family and the Delim kins resided
in Barangay Bila, Sison, Pangasinan.
On January 23, 1999, at around 6:30 in the evening,
Modesto, Rita and Randy were preparing to have their supper
in their home. Joining them were Modesto and Ritas two
young grandchildren, aged 5 and 7 years old. They were
about to eat their dinner when Marlon, Robert and Ronald
suddenly barged into the house and closed the door. Each of
the three intruders was armed with a short handgun. Marlon
poked his gun at Modesto while Robert and Ronald
simultaneously grabbed and hog-tied the victim. A piece of
cloth was placed in the mouth of Modesto. [4]Marlon, Robert
and Ronald herded Modesto out of the house on their way
towards the direction of Paldit, Sison, Pangasinan. Rita and
Randy were warned by the intruders not to leave the
house.Leon and Manuel, who were also armed with short
handguns, stayed put by the door to the house of Modesto
and ordered Rita and Randy to stay where they were. Leon
and Manuel left the house of Modesto only at around 7:00
a.m. the following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to
the house of his uncle, Darwin Nio, at Sitio Labayog, informed
the latter of the incident the night before and sought his help
for the retrieval of Modesto. Randy was advised to report the
matter to the police authorities. However, Randy opted to first
look for his father. He and his other relatives scoured the
vicinity to locate Modesto to no avail. They proceeded to
Paldit, Sison, Pangasinan, around 200 meters away from
Modestos house, to locate Modesto but failed to find him
there. On January 25, 1999, Randy and his relatives returned
to the housing project in Paldit, Sison, Pangasinan to locate
Modesto but again failed to find him there. On January 26,
1999, Randy reported the incident to the police authorities.
At around 3:00 in the afternoon of January 27, 1999,
Randy, in the company of his relatives, Nida Pucal, Pepito
Pucal, Bernard Osias and Daniel Delim, returned to the
housing project in Paldit, Sison, Pangasinan and this time they
found Modesto under thick bushes in a grassy area. He was
already dead. The cadaver was bloated and in the state of
decomposition. It exuded a bad odor. Tiny white worms
swarmed over and feasted on the cadaver. Randy and his
relatives immediately rushed to the police station to report
the incident and to seek assistance.
When informed of the discovery of Modestos cadaver,
the local chief of police and SPO2 Jovencio Fajarito and other
policemen rushed to the scene and saw the cadaver under the
thick bushes. Pictures were taken of the cadaver.[5] Rita and
Randy divulged to the police investigators the names and
addresses of Marlon, Ronald, Robert, Leon and Manuel, whom
they claimed were responsible for the death of Modesto. Rita
and Randy were at a loss why the five malefactors seized
Modesto and killed him. Rita and Randy gave their respective
sworn statements to the police investigators. [6] Police
authorities proceeded to arrest Marlon, Ronald, Robert,
Manuel and Leon but failed to find them in their respective
houses. The police officers scoured the mountainous parts of
Barangays Immalog and Labayog to no avail.
The cadaver was autopsied by Dr. Maria Fe L. De
Guzman who prepared her autopsy report, which reads:
SIGNIFICANT EXTERNAL FINDINGS:
- Body - both upper extremities are flexed
- both lower extremities are flexed
- (+) body decomposition
- (+) worms coming out from injuries
- 10 x 10 ml. GSW, pre-auricular area, right
- 20 x 20 ml. GSW, mandibular areas, right
- 10 x 10 ml. GSW, maxillary area, right
- 10 x 10 ml. GSW, below middle nose, directed upward (POE)
- 30 x 40 ml. GSW, mid parieto occipital area (POEx)
- 2 x 1 cms. lacerated wound, right cheek
- 1 x 1 cm. stabbed wound, axillary area, left
- 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
- 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
- 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm

- #3; 1 x 1 cm. in line with each other, stabbed wound, medial

aspect, M/3rd, left forearm
- 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
10 x 6 cms. Inflamed scrotum
penis inflamed
SIGNIFICANT INTERNAL FINDINGS:
- no significant internal findings
CAUSE OF DEATH:
GUN SHOT WOUND, HEAD.[7]
The stab wounds sustained by Modesto on his left arm
and forearm were defensive wounds. The police investigators
were able to confirm that Marlon, Ronald, Robert, Leon and
Manuel had no licenses for their firearms.[8]
Records of the PNP Criminal Investigation and Detection
Group in Baguio City show that Marlon had pending cases for
robbery in the Regional Trial Court of Baguio City in Criminal
Case No. 16193-R, and for robbery in band in Criminal Cases
Nos. 9801 and 9802 pending with the Regional Trial Court in
Urdaneta, Pangasinan.[9]
To exculpate themselves, Marlon, Ronald and Leon
interposed denial and alibi.[10]
Ronald claimed that on January 23, 1999, he, his wife
and children, his mother, his brothers and sisters were in their
house at Asan Norte, Sison, Pangasinan about two kilometers
away from Modestos house.
He denied having been in the house of Modesto on
January 23, 1999 and of abducting and killing him. He
theorized that Rita and Randy falsely implicated him upon the
coaching of Melchor Javier who allegedly had a quarrel with
him concerning politics.
Leon for his part averred that on January 23, 1999, he
was in the house of his sister, Hermelita Estabillo at No. 55-B,
Salet, Laoag City, Ilocos Norte where he had been living since
1997 after leaving Asan Norte, Sison, Pangasinan. Since then,
he had been working for Sally Asuncion at a hollow-block
factory in that city where he was a stay-in worker.
Sally Asuncion corroborated Leons alibi. She testified
that Leon Delim never went home to his hometown in
Pangasinan during his employment. His sister, Hermelita
Estabillo, likewise averred that on January 23, 1999, his
brother was at her house to give her his laundry. She claimed
that the distance between Laoag City and Bila, Sison,
Pangasinan can be traversed in six hours by bus. Leon
presented a Barangay Certificate to prove that he was a
resident of Laoag City from January 1998 up to February 1999.
[11]

Marlon asserted that he was on vacation in Dumaguete

City from December 26, 1998 up to January 29, 1999. During
his stay there, he lived with his sister, Francisca Delim. Upon
his return to Manila on January 29, 1999, he immediately
proceeded to Baguio to visit his cousin. Marlon denied setting
foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete
City.
The trial court rendered judgment finding accusedappellants guilty of murder. The dispositive portion of the trial
courts decision reads:
WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable
doubt is hereby rendered against Ronald Delim, Marlon Delim
and Leon Delim (for) the commission of Aggravated Murder,
an offense defined and penalized under Article 248 of the
Revised Penal Code, as amended by R.A. 7659 and the Court
sentences Marlon Delim, Ronald Delim and Leon Delim to
suffer the penalty of DEATH, to be implemented in the manner
as provided for by law; the Court likewise orders the accused,
jointly and solidarily, to indemnify the heirs of Modesto Delim
the sum of P75,000.00 as moral damages, plus the amount of
P25,000.00 as exemplary damages.
The Branch Clerk of Court is hereby ordered to transmit the
entire records of this case to the Honorable Supreme Court,
and to prepare the mittimus fifteen (15) days from date of
promulgation.
The Jail Warden, Bureau of Jail Management and Penology,
Urdaneta District Jail, Urdaneta City is hereby ordered to
transmit the persons of Marlon, Ronald and Leon, all
surnamed Delim to the New Bilibid Prisons, Muntinlupa City,
fifteen days from receipt of this decision.
SO ORDERED.[12]

The trial court appreciated treachery as a qualifying

circumstance and of taking advantage of superior strength,
nighttime and use of unlicensed firearms as separate of
aggravating circumstances in the commission of the
crime. Marlon, Ronald and Leon, in their appeal brief, assail
the decision alleging that:
I
THE COURT A QUO GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT
OF THE CRIME OF MURDER.
II
THE COURT A QUO GRAVELY ERRED IN FINDING THAT
CONSPIRACY EXISTED IN THE CASE AT BAR.
III
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT
AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI.
[13]

Before resolving the merits of the case at bar, we first

resolve the matter of whether the crime charged in the
Information is murder or kidnapping. During the deliberation,
some distinguished members of the Court opined that under
the Information, Marlon, Ronald and Leon are charged with
kidnapping under Article 267 of the Revised Penal Code and
not with murder in its aggravated form in light of the
allegation therein that the accused willfully, unlawfully and
feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged), with a
piece of cloth, brought out and abduct(ed) Modesto Delim
(while) Leon Delim and Manuel Delim stayed in the house
(and) guarded and prevented the wife and son of Modesto
Delim from helping the latter. They submit that the foregoing
allegation constitutes the act of deprivation of liberty of the
victim, the gravamen in the crime of kidnapping. They
contend that the fact that the Information went further to
charge accused with the killing of the victim should be of no
moment, the real nature of the criminal charge being
determined not from the caption or the preamble of the
Information nor from the specification of the law alleged to
have been violated these being conclusions of law but by the
actual recital of facts in the complaint or information. They
further submit that since the prosecution failed to prove
motive on the part of Marlon, Ronald and Leon to kill Modesto,
they are not criminally liable for the death of the victim but
only for kidnapping the victim.
It bears stressing that in determining what crime is
charged in an information, the material inculpatory facts
recited therein describing the crime charged in relation to the
penal law violated are controlling. Where the specific
intent of the malefactor is determinative of the crime
charged such specific intent must be alleged in the
information and proved by the prosecution. A decade
ago, this Court held in People v. Isabelo Puno, et al.,[14] that for
kidnapping to exist, there must be indubitable proof that the
actual specific intent of the malefactor is to deprive the
offended party of his liberty and not where such restraint of
his freedom of action is merely an incident in the commission
of another offense primarily intended by the malefactor. This
Court further held:
x x x. Hence, as early as United States vs. Ancheta, and
consistently reiterated thereafter, it has been held that the
detention and/or forcible taking away of the victims by the
accused, even for an appreciable period of time but for the
primary and ultimate purpose of killing them, holds the
offenders liable for taking their lives or such other offenses
they committed in relation thereto, but the incidental
deprivation of the victims liberty does not constitute
kidnapping or serious illegal detention.[15]
If the primary and ultimate purpose of the accused is to
kill the victim, the incidental deprivation of the victims liberty
does not constitute the felony of kidnapping but is merely a
preparatory act to the killing, and hence, is merged into, or
absorbed by, the killing of the victim.[16] The crime committed
would either be homicide or murder.
What is primordial then is the specific intent of
the malefactors as disclosed in the information or
criminal complaint that is determinative of what crime
the accused is charged with--that of murder or
kidnapping.

Philippine and American penal laws have a common

thread on the concept of specific intent as an essential
element of specific intent crimes. Specific intent is used to
describe a state of mind which exists where circumstances
indicate that an offender actively desired certain criminal
consequences or objectively desired a specific result to follow
his act or failure to act.[17] Specific intent involves a state of
the mind. It is the particular purpose or specific intention in
doing the prohibited act. Specific intent must be alleged in the
Information and proved by the state in a prosecution for a
crime requiring specific intent. [18] Kidnapping and murder are
specific intent crimes.
Specific intent may be proved by direct evidence or by
circumstantial evidence. It may be inferred from the
circumstances of the actions of the accused as established by
the evidence on record.[19]
Specific intent is not synonymous with motive. Motive
generally is referred to as the reason which prompts the
accused to engage in a particular criminal activity. Motive is
not an essential element of a crime and hence the prosecution
need not prove the same. As a general rule, proof of motive
for the commission of the offense charged does not show guilt
and absence of proof of such motive does not establish the
innocence of accused for the crime charged such as murder.
[20]
The history of crimes shows that murders are generally
committed from motives comparatively trivial.[21] Crime is
rarely rational. In murder, the specific intent is to kill the
victim. In kidnapping, the specific intent is to deprive the
victim of his/her liberty. If there is no motive for the crime, the
accused cannot be convicted for kidnapping. [22] In kidnapping
for ransom, the motive is ransom. Where accused kills the
victim to avenge the death of a loved one, the motive is
revenge.
In this case, it is evident on the face of the Information
that the specific intent of the malefactors in barging into the
house of Modesto was to kill him and that he was seized
precisely to kill him with the attendant modifying
circumstances. The act of the malefactors of abducting
Modesto was merely incidental to their primary purpose of
killing him. Moreover, there is no specific allegation in
the information that the primary intent of the
malefactors was to deprive Modesto of his freedom or
liberty and that killing him was merely incidental to
kidnapping.[23] Irrefragably then, the crime charged in the
Information is Murder under Article 248 of the Revised Penal
Code and not Kidnapping under Article 268 thereof.
The threshold issue that now comes to fore is whether or
not the prosecution mustered the requisite quantum of
evidence to prove that Marlon, Ronald and Leon are guilty of
murder.
In criminal prosecutions, the prosecution is burdened to
prove the guilt of the accused beyond cavil of doubt. The
prosecution must rely on the strength of its own evidence and
not on the weakness of the evidence of the accused. The
proof against the accused must survive the test of reason; the
strongest suspicion must not be permitted to sway judgment.
[24]

In the case at bar, the prosecution was burdened to

prove the corpus delicti which consists of two things: first, the
criminal act and second, defendants agency in the
commission
of
the
act.[25]Wharton
says
that corpus
delicti includes two things: first, the objective; second, the
subjective element of crimes.[26] In homicide (by dolo) and in
murder cases, the prosecution is burdened to prove: (a) the
death of the party alleged to be dead; (b) that the death was
produced by the criminal act of some other than the deceased
and was not the result of accident, natural cause or suicide;
and (c) that defendant committed the criminal act or was in
some way criminally responsible for the act which produced
the death.[27] To prove the felony of homicide or murder, there
must be incontrovertible evidence, direct or circumstantial,
that the victim was deliberately killed (with malice); in other
words, that there was intent to kill. Such evidence may
consist inter alia in the use of weapons by the malefactors,
the nature, location and number of wounds sustained by the
victim and the words uttered by the malefactors before, at the
time or immediately after the killing of the victim. If the victim

dies because of a deliberate act of the malefactor, intent to

kill is conclusively presumed.
The
prosecution
is
burdened
to
prove corpus
delicti beyond reasonable doubt either by direct evidence or
by circumstantial or presumptive evidence. [28]
In the case at bar, the prosecution adduced the requisite
quantum of proof of corpus delicti. Modesto sustained five (5)
gunshot wounds. He also sustained seven (7) stab wounds,
[29]
defensive in nature. The use by the malefactors of deadly
weapons, more specifically handguns and knives, in the killing
of the victim as well as the nature, number and location of the
wounds sustained by said victim are evidence of the intent by
the malefactors to kill the victim with all the consequences
flowing therefrom.[30] As the State Supreme Court of Wisconsin
held in Cupps v. State:[31]
This rule, that every person is presumed to contemplate the
ordinary and natural consequences of his own acts, is applied
even in capital cases. Because men generally act deliberately
and by the determination of their own will, and not from the
impulse of blind passion, the law presumes that every man
always thus acts, until the contrary appears. Therefore, when
one man is found to have killed another, if the circumstances
of the homicide do not of themselves show that it was not
intended, but was accidental, it is presumed that the death of
the deceased was designed by the slayer; and the burden of
proof is on him to show that it was otherwise.
The prosecution did not present direct evidence to prove
the authors of the killing of Modesto. It relied on
circumstantial evidence to discharge its burden of proving the
guilt of accused-appellants of murder. Circumstantial evidence
consists of proof of collateral facts and circumstances from
which the existence of the main fact may be inferred
according to reason and common experience.[32] What was
once a rule of account respectability is now entombed in
Section 4, Rule 133 of the Revised Rules of Evidence which
states that circumstantial evidence, sometimes referred to as
indirect or presumptive evidence, is sufficient as anchor for a
judgment of conviction if the following requisites concur:
x x x if (a) there is more than one circumstance; (b) the facts
from which the inferences are derived have been established;
and (c) the combination of all the circumstances is such as to
warrant a finding of guilt beyond reasonable doubt.[33]
The prosecution is burdened to prove the essential
events which constitute a compact mass of circumstantial
evidence, and the proof of each being confirmed by the proof
of the other, and all without exception leading by mutual
support to but one conclusion: the guilt of accused for the
offense charged.[34] For circumstantial evidence to be
sufficient to support a conviction, all the circumstances must
be consistent with each other, consistent with the hypothesis
that accused is guilty and at the same time inconsistent with
the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt. [35] If the prosecution
adduced the requisite circumstantial evidence to prove the
guilt of accused beyond reasonable doubt, the burden of
evidence shifts to the accused to controvert the evidence of
the prosecution.
In the present case, the prosecution mustered the
requisite quantum of circumstantial evidence to prove that
accused-appellants, in confabulation with their co-accused,
conspired to kill and did kill Modesto:
1. Randy Bantas testified that Marlon and Ronald barged
into the house of Modesto, each armed with a
handgun. Marlon poked his gun on Modesto while Ronald hogtied Modesto. They then seized Modesto and herded him out
of his house:
FISCAL TOMBOC: What were you doing then at that
time in your house?
A We were eating, sir.
Q You said we, who were your companions eating
then at that time?
A My father, my mother and the two children and
myself, sir.
Q While taking your supper that time, do you recall
if there was anything unusual that happened
at that time?

A When we were about to start to eat three armed

men entered our house.
Q Do you know these three armed men who
entered your house?
A Yes, sir.
Q Who are they, name them one by one?
A Marlon Delim, Robert Delim and Ronald Delim.
Q Are these three persons inside the courtroom
now?
A Two of them, sir.
Q Who are these two who are inside the courtroom?
A Marlon and Ronald, sir.
Q Will you please stand up and point to them?
A (Witness is pointing to a person seated on the
bench inside the courtroom, who, when his
name
was
asked
answered
Marlon
Delim. Likewise, witness is pointing unto a
person seated on the bench inside the
courtroom, who, when his name was asked he
answered Ronald Delim).
Q You said that these two armed persons entered
your house, what kind of arm were they
carrying at that time?
A Short handgun, sir.
Q When these three armed persons whom you
have mentioned, armed with short firearms,
what did they do then when they entered your
house?
A They took my father, sir.
Q Who took your father?
A Marlon Delim, Robert Delim and Ronald Delim, sir.
Q When these three persons took your father, what
did you do then?
A None, sir.
COURT: How did they get your father?
A They poked a gun and brought him outside the
house, sir.
FISCAL TOMBOC: Who poked a gun?
A Marlon Delim, sir.
Q Again, Mr. Witness, will you point to the person
who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of
the accused).
Q After bringing your father out from your house,
what transpired next?
A Manuel Delim and Leon Delim said, Stay in your
house, and guarded us.
COURT: You said your father was taken out, who?
A Marlon, Robert and Ronald, sir.
FISCAL TOMBOC: Where did these three persons
bring your father?
A I do not know where they brought my father, sir.
COURT: Was your father taken inside your house or
outside?
A Inside our house, sir.
Q You said that Marlon poked a gun at your father,
is that correct?
A Yes, sir.
Q What did Ronald and Robert do while Marlon was
poking his gun to your father?
A Ronald and Robert were the ones who pulled my
father out, sir.[36]
Randys account of the incident was corroborated by his
mother, Rita, who testified:
PROSECUTION TOMBOC: You said during the last
hearing that on January 23, 1999 at around
6:30 in the evening while preparing for your
supper three (3) armed men entered inside
your house, who were these three (3) men
who entered your house?
A I know, Marlon, Bongbong and Robert, sir.
ATTY. FLORENDO: We just make of record that the
witness is taking her time to answer, Your
Honor.
PROSECUTOR TOMBOC: You said that Marlon Delim,
Robert Delim and Bongbong entered your

house, are these three (3) persons who

entered your house in Court now?
A They are here except the other one, sir.
Q Will you please step down and point to the
persons who entered your house?
A Witness is pointing to Marlon Delim, Robert Delim
is not in Court and Bongbong is Ronald Delim.
Q After these three (3) armed men entered your
house, what happened then?
A My husband was brought out, sir.
Q What is the name of your husband?
A Modesto Delim, sir.[37]
2. Randy said that when Marlon and Ronald barged into
their house, Leon, armed with a handgun, acted as a lookout
when he stood guard by the door of the house of Modesto and
remained thereat until 7:00 a.m. of the next day:
FISCAL TOMBOC: When your father was pulled out
from your house by these three persons, what
did you and your mother do while these three
persons were taking out of your house?
A We did not do anything because Manuel and Leon
Delim guarded us.
COURT: Where, in your house?
A Yes, sir.
FISCAL TOMBOC: From that very time that your
father was pulled out by these three persons
Marlon, Robert and Ronal (sic), where were
Leon and Manuel then?
A They were at the door, sir.
COURT: Why do you know that they were guarding
you?
A Because they were at the door, sir.
FISCAL TOMBOC: What was their appearance that
time when these two persons were guarding
you, these Leon and Manuel?
A They were armed, sir.
Q What do you mean by armed?
A They have gun, sir.
Q What kind of firearm?
A Short firearm, sir.
Q By the way, where are these Leon and Manuel
now, if you know?
A Leon is here, sir.
Q About Manuel?
A None, sir.
Q Will you please stand up and point at Leon, Mr.
Witness?
A (Witness pointed to a person seated on the bench
inside the courtroom, who when his name was
asked, answered, Leon Delim).[38]
3. Rita and Randy were ordered by Leon not to leave the
house as Ronald and Marlon left the house with Modesto in
tow. Rita and Randy were detained in their house up to 7:00
a.m. of January 24, 1999 to prevent them from seeking help
from their relatives and police authorities.
4. Randy likewise testified that on January 27, 1999, at
about 3:00 p.m., the cadaver of Modesto was found under the
thick bushes in a grassy area in the housing project located
about 200 meters away from the house of Modesto. The
cadaver exuded bad odor and was already in the state of
decomposition:
Q So what did you do then on January 27, where
did you look for your father?
A The same place and at 3:00 oclock P.M., we were
able to find my father.
COURT: Where?
A At the housing project at Paldit, Sison,
Pangasinan, sir.
FISCAL TOMBOC: Do you have companions at that
time when you were able to look for your
father on January 27, 1999 at 3:00 oclock
P.M.?
A Yes, sir.
Q Who?
A My Aunt, sir.
Q What is the name of your Aunt?
A Nida Pucal, sir.

Q Who else?
A Pepito Pucal, Bernard Osias and Daniel Delim, sir.
COURT: When you found your father, what was his
condition?
A He was dead, sir.
COURT: Go ahead.
FISCAL TOMBOC: You said that he was already
dead, what was his appearance then when
you saw him dead?
A He has bad odor, sir, in the state of decompsition
(sic).[39]
The testimony of Randy was corroborated by Dr. de
Guzman who testified that the cadaver of Modesto was in a
state of decomposition, with tiny white worms crawling from
his wounds, and that his penis and scrotum were
inflamed. The victim sustained five gunshot wounds and
defensive wounds on the left arm and forearm:
PROS. TOMBOC:
Q Will you please tell the Honorable Court your
findings, Doctora?
WITNESS:
A First finding: Upon seeing the cadaver, this is the
position of the body, both upper extremities
are flexed and both lower extremities are
flexed (Nakakukot).
Q How many days had already elapsed when you
autopsied the cadaver of the victim, Doctora?
A Four (4) days upon the recovery of the body, sir.
Q And what was your findings Doctora?
A The body was already under the state of
decomposition, sir, with foul odor and there
were so many worms coming out from the
injuries, there were tiny white worms, sir.
Q What else did you observe Doctora?
A Upon seeing the cadaver I asked the relative to
refer it to the NBI sir. Actually the victim was
an igorot (sic) and they have tradition that
they will bury immediately. Whether they like
it or not I should do it, sir.
Q What else Doctora?
A And the penis was inflammed (sic), the scrotum
was also inflammed (sic), sir.
And for the head injuries there was 10 x 10
ml. GSW pre-auricular area, right; there was
also 20 ml x 20 ml. GSW, mandibular area,
right; I cannot also determine the exit.
Q So there were two (2) gunshot wounds (GSW)
Doctora?
A Yes sir.
And there was also 10 x 10 ml. GSW, maxillary
area, right; there was also 10 x 10 ml. GSW,
below middle nose, directed upward (POE);
and there was also 30 x 40 ml. GSW, mid
parieto-occipital area (POEx).
Q How many all in all are the gunshot wound?
A Five (5) sir.
And also there was 2 x 1 cms. Lacerated wound,
right cheek; 1 x 1 cm. stabbed wound, axillary
area, left; 1 x 1 cm. stabbed wound, lateral
aspect M/3rd, left arm; 1 x 1 cm. stabbed
wound lateral aspect D/3rd, left arm; 1 x 1
cm. stabbed wound, medial aspect M/3rd, left
arm; 1 x 1 cm. stabbed wound, medial aspect
D/3rd, left arm; and #3; 1 x 1 cm. in line with
each other, stabbed wound, medial aspect,
M/3rd, left forearm.
Q How many stabbed wound are there Doctora?
A There were seven (7) stabbed wounds, sir.
Q Those stabbed wounds were defensive wounds,
Doctora?
A Yes sir.[40]
The state of decomposition of the cadaver, with tiny
white worms swarming and feasting on it and the distention of
his scrotum and penis are evidence that the cadaver was in
the stage of putrefaction and that the victim had been dead
for a period ranging from three to six days. [41] Admittedly,

there are variant factors determinative of the exact death of

the victim. An equally persuasive authority states:
Chronological Sequence of Putrefactive Changes Occurring in
Tropical Region:
Time Since Death Condition of the Body
48 hours Ova of flies seen.
Trunk
bloated. Face
discolored
and
swollen. Blisters
present.
Moving maggots seen.
72 hours Whole body grossly swollen and
disfigured. Hair
and
nails loose.
Tissues
soft
and
discolored.[42]
The lapse of two or three to four days from the seizure of
the victim in the evening of January 23, 1999 to the discovery
of his cadaver which was already in the state of putrefaction
in the afternoon of January 27, 1999, about 200 meters away
from his house, is consistent with and confirmatory of the
contention of the prosecution that the victim was killed
precisely by the very malefactors who seized him on January
23, 1999.
5. When police authorities went to the residences of all
the malefactors, the latter had flown the coop and were
nowhere to be found:
COURT: In connection with this case, you
investigated the wife and son of Modesto
Delim?
A Yes, sir.
Q In the course of the investigation did you come to
know who were the suspects?
A Yes, sir, she elaborated that the suspects were
their neighbors, Marlon Delim and his
brothers, sir.
Q What are the names of the brothers?
A Manuel Delim, Leon Delim I cannot remember the
others, sir.
Q By reason of that information were you able to
apprehend any of them for investigation?
A No, sir.
Q Why?
A Because when we were dispatched by the Chief
of Police no Delim brothers could be found,
they all left the place, sir.
Q In what place did you look for the brothers
Delim?
A Within the vicinity, sir.
Q In what place?
A Brgy. Bila and the place where the crime was
committed in Brgy. Bila and the place where
the cadaver was found in Paldit, sir.
Q Where did you look for the Delim brothers?
A Nearby barangays, Immalog, sir.
Q Wherelse (sic)?
A Labayog, Sison, sir.
Q Wherelse?
A In mountainous part of Immalog, part of Tuba
Benguet, sir.
Q What was the result?
A Negative result, sir.[43]
6. Leon was the neighbor of Modesto and Rita while
Marlon and Ronald used to go to the house of Modesto and
Rita:
COURT: These Leon and Manuel Delim are they
known to you prior to that day, January 23,
1999?
A Yes, sir, I know them.
Q Why do you know Manuel and Leon prior to
January 23, 1999?
A They are my neighbors, sir.
Q How about Marlon, Robert and Bongbong do you
know them before January 23, 1999?
A I know them, sir.
Q Why do you know them?

A They used to go to our house, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel
and Leon are all Delims and your husbands
name is Modesto Delim are they related with
each other?
A Yes, sir.[44]
The sudden disappearance of Marlon, Ronald and Leon
from their houses in Barangay Bila, Sison is strong
circumstantial evidence of their guilt for the death of
Modesto. Although flight after the commission of an offense
does not create a legal presumption of guilt, nevertheless, the
same is admissible in evidence against them and if not
satisfactorily explained in a manner consistent with their
innocence, will tend to show that they, in fact, killed Modesto.
[45]

It is true that the prosecution failed to prove motive on

the part of the malefactors to abduct and kill Modesto. Indeed,
Randy and Rita testified that they were not aware of any
misunderstanding or grudge between Modesto on the one
hand and Marlon, Ronald and Leon and their co-accused on
the other before the incident, or any motivation on the part of
the three malefactors to cause harm to Modesto. Nonetheless,
it cannot thereby be concluded that a person or persons other
than Marlon, Ronald and Leon were criminally responsible for
the death of the victim. It is a matter of judicial notice that
nowadays persons have killed or committed serious crimes for
no reason at all.[46] In this case, the inscrutable facts are that
Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hogtied,
put a piece of cloth in his mouth and after Ronald and Marlon
had left the house with Modesto in tow, Rita heard three
gunshots or so and the cadaver of Modesto was found
concealed under the bushes and already in a state of
putrefaction in the afternoon of January 27, 1999. Modesto
sustained several gunshot wounds and died because of a
gunshot wound on the head. The criminal acts and the
connection of Marlon, Ronald and Leon with said acts having
been proved by the prosecution beyond reasonable doubt, the
act itself furnishes the evidence, that to its perpetration there
was some causes or influences moving the mind. [47] The
remarkable tapestry intricately woven by the prosecution
should not be trashed simply because the malefactors had no
motive to kill Modesto.
Ranged against the evidence of the prosecution, the
burden of evidence shifted on Marlon, Ronald and Leon to
rebut the same and explain what happened to the victim after
taking him from his house in the evening of January 23,
1999. They may have freed the victim shortly after taking
him, or the victim may have been able to escape and that
thereafter a person or some other persons may have killed
him. However, Marlon, Ronald and Leon failed to give any
explanation. Instead, they merely denied having seized and
killed the victim and interposed alibi as their defense.
Leon is equally guilty for the death of Modesto because
the evidence on record shows that he conspired with accusedappellants Marlon and Ronald and accused Robert and Manuel
in killing the victim.
There is conspiracy when two or more persons agree to
commit a felony and decide to commit it. [48] Conspiracy must
be proven with the same quantum of evidence as the felony
itself, more specifically by proof beyond reasonable
doubt. Conspiracy is not presumed. It may be proved by direct
evidence or by circumstantial evidence. Conspiracy is
deducible from the acts of the malefactors before, during and
after the commission of the crime which are indicative of a
joint purpose, concerted action and concurrence of sentiment.
[49]
To establish conspiracy, it is not essential that there be
proof as to the existence of a previous agreement to commit a
crime.[50] It is sufficient if, at the time of the commission of the
crime, the accused had the same purpose and were united in
its execution. If conspiracy is established, the act of one is
deemed the act of all. It matters not who among the accused
actually shot and killed the victim.[51] This is based on the
theory of a joint or mutual agency ad hoc for the prosecution
of the common plan:
x x x The acts and declarations of an agent, within the scope
of his authority, are considered and treated as the acts and

declarations of his principal. What is so done by an agent, is

done by the principal through him, as his mere instrument.
Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam
Navigation Co., 11 G. & J. 28, 33 (1839). If the conspiracy be
proved to have existed, or rather if evidence be given to the
jury of its existence, the acts of one in furtherance of the
common design are the acts of all; and whatever one does in
furtherance of the common design, he does as the agent of
the co-conspirators. R. v. OConnell, 5 St.Tr. (N.S.) 1, 710.[52]
In the eyes of the law, conspirators are one man, they
breathe one breath, they speak one voice, they wield one arm
and the law says that the acts, words and declaration of each,
while in the pursuit of the common design, are the acts, words
and declarations of all.[53]
In the case at bar, Marlon, Ronald and Leon arrived
together in the house of Modesto, each armed with a
handgun. Marlon and Ronald barged into said house while
Leon stood guard by the door thereof. After Marlon and Ronald
had left with Modesto in tow, Leon stood by the door and
warned Randy and Rita not to leave the house. Leon stood
guard by the door of the house until 7:00 a.m. of January 24,
1999 when he left the house. The overt acts of all the
malefactors were so synchronized and executed with precision
evincing a preconceived plan or design of all the malefactors
to achieve a common purpose, namely the killing of
Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were (a) to act as a lookout; (b) to
ensure that Rita and Randy remain in their house to prevent
them from seeking assistance from police authorities and their
relatives before their mission to kill Modesto shall have been
a fait accompli as well as the escape of Marlon and Ronald.
[54]
Patently, Leon, a lookout for the group, is guilty of the
killing of Modesto.[55] Leon may not have been at the situs
criminis when Modesto was killed by Marlon and Ronald
nevertheless he is a principal by direct participation. [56] If part
of a crime has been committed in one place and part in
another, each person concerned in the commission of either
part is liable as principal. No matter how wide may be the
separation of the conspirators, if they are all engaged in a
common plan for the execution of a felony and all take their
part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct
connection between the actor and the crime. [57]
Ronald, Marlon and Leon, however, assail the
testimonies of Randy and Rita alleging that the same were
marred by inconsistencies:
1. Randy initially stated that he did not know where
the
assailants
brought
his
father. Later
however, Randy claimed that the malefactors
proceeded to the direction of Paldit, Sison,
Pangasinan;
2. Rita on the other hand identified Leon, Marlon
and Ronald as those who barged into their
house. She later changed her testimony and
declared that it was Robert, together with
Marlon and Ronald who barged into the house;
3. Rita likewise testified that two men stood outside
the house guarding them. Later, she testified
that after the three men brought out the victim,
the two other accused entered the house and
guarded them there;
4. Rita claimed that she went out to look for her
husband the next day, or on January 25, 1999,
and she was accompanied by her son
Randy. However, Randy testified that he was
alone when he looked for his father from
January 24 to 26, 1999.[58]
We do not agree with Marlon, Ronald and Leon. Case law
has it that the findings of facts of the trial court, its calibration
of the collective testimonies of witnesses and its assessment
of the probative weight thereof and its conclusions culled from
its findings are accorded by the appellate court great respect,
if not conclusive effect, because of its unique advantage of
observing at close range the demeanor, deportment and
conduct of the witnesses as they give their testimonies before
the court. In the present case, the trial court gave credence
and full probative weight to the testimonies of the witnesses

of the prosecution. Moreover, there is no evidence on record

that Randy and Rita were moved by any improper or ill motive
in testifying against the malefactors and the other accused;
hence, their testimonies must be given full credit and
probative weight.[59] The inconsistencies in the testimonies of
Rita and Randy do not render them incredible or their
testimonies barren of probative weight. It must be borne in
mind that human memory is not as unerring as a photograph
and a persons sense of observation is impaired by many
factors including the shocking effect of a crime. A truth-telling
witness is not always expected to give an error-free testimony
considering the lapse of time and the treachery of human
memory. What is primordial is that the mass of testimony jibes
on material points, the slight clashing of statements dilute
neither the witnesses credibility nor the veracity of his
testimony.[60] Variations on the testimony of witnesses on the
same side with respect to minor, collateral or incidental
matters do not impair the weight of their united testimony to
the prominent facts.[61] Inconsistencies on minor and trivial
matters only serve to strengthen rather than weaken the
credibility of witnesses for they erase the suspicion of
rehearsed testimony.[62]
Moreover, the testimony of a witness should be
construed in its entirety and not in truncated terms and the
true meaning of answers to isolated questions propounded to
a witness is to be ascertained by due consideration of all the
questions propounded to the witness and his answers thereto.
[63]

Randys testimony that he did know where the

malefactors brought his father is not inconsistent with his
testimony that Ronald and Marlon brought his father towards
the direction of Paldit, Sison, Pangasinan. Randy may not have
known the destination of accused-appellants but he saw the
direction to which they went. While it may be true that when
asked to identify the three who barged into their house, Rita
pointed to Leon as one of them, however, Rita had been
consistent throughout her testimony that those who barged
into their house were Ronald and Marlon. Leons counsel never
cross-examined Rita and impeached her testimony on her
identification of Leon as one of those who barged into their
house to give her an opportunity to explain her perceived
inconsistency conformably with Rule 132, Section 13 of the
Revised Rules of Evidence which reads:
Before a witness can be impeached by evidence that he has
made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the
circumstances of the times and places and the persons
present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness
before any question is put to him concerning them. [64]
Hence, the presentation of the inconsistent statements
made by Rita is insufficient for the desired impeachment of
[65]
her. As to whether Rita and Randy were together in looking
for Modesto or Leon merely stood guard by the door of the
house or entered the house are inconsequential. The fact is
that Leon stood guard throughout the night to prevent Rita
and Randy from seeking assistance for the seizure and killing
of Modesto.
This Court is convinced, as the trial court was, that the
respective testimonies of Randy and Rita bear the earmarks of
truth and sincerity. Despite intense and grueling crossexamination, they responded with consistency upon material
details that could only come from a firsthand knowledge of
the shocking events which unfolded before their eyes. The
Court thus finds no cogent reason to disregard the findings of
the trial court regarding their credibility.
Marlon, Ronald and Leon contend that the trial court
committed a reversible error in not giving credence and
probative weight to their evidence to prove their defense of
alibi. They aver that their collective evidence to prove their
defense is strong.
We do not agree. Case law has it that the defense of alibi
is one of the weakest of defenses in criminal prosecution
because the same is easy to concoct between relatives,
friends and even those not related to the offender. [66] It is hard
for the prosecution to disprove. For alibi to merit approbation

by the trial court and this Court, Marlon, Ronald and Leon are
burdened to prove with clear and convincing evidence that
they were in a place other than the situs criminis at the time
of the commission of the crime; that it was physically
impossible for them to have committed the said crime.
[67]
They failed to discharge their burden. Moreover, Rita and
Randy positively and spontaneously identified Marlon, Ronald
and Leon as the culprits. The house of Ronald, where he
claimed he was when the crime was committed, was only two
kilometers away from the house of Modesto and can be
negotiated by a tricycle. Leon failed to adduce any
documentary evidence to prove his employment by Sally
Asuncion. The barefaced fact that he was a resident of Laoag
City does not constitute proof that he was in Laoag City on the
day of the commission of the crime.With respect to Marlon, he
failed to adduce evidence aside from his self-serving
testimony that he resided in, left Dumaguete City and arrived
in Manila on January 29, 1999.
The trial court convicted Marlon, Ronald and Leon of
murder with the qualifying circumstance of treachery in the
killing of Modesto. The trial court likewise appreciated
nighttime and abuse of superior strength and the use of
unlicensed
firearms
as
separate
aggravating
circumstances. The Office of the Solicitor General contends
that indeed treachery was attendant in the killing of
Modesto. Hence, Marlon, Ronald and Leon are guilty of murder
defined in and penalized by Article 248 of the Revised Penal
Code.
The Court however finds that Marlon, Ronald and Leon
are guilty only of homicide defined in and penalized by Article
248 of the Revised Penal Code.
Qualifying circumstances such as treachery and abuse of
superior strength must be alleged and proved clearly and
conclusively as the crime itself. Mere conjectures, suppositions
or presumptions are utterly insufficient and cannot produce
the effect of qualifying the crime. [68] As this Court held: No
matter how truthful these suppositions or presumptions may
seem, they must not and cannot produce the effect of
aggravating the condition of defendant. [69] Article 14,
paragraph 16 of the Revised Penal Code provides that there is
treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in
the execution thereof which tend directly and especially to
insure its execution, without risk to himself arising from the
defense which the offended party might make. For treachery
to be appreciated as a qualifying circumstance, the
prosecution is burdened to prove the following elements: (a)
the employment of means of execution which gives the
person attacked no opportunity to defend himself or retaliate;
(b) the means of execution is deliberately or consciously
adopted.[70] Although the victim may have been defenseless at
the time he was seized but there is no evidence as to the
particulars of how he was assaulted and killed, treachery
cannot be appreciated against the accused. [71] In this case, the
victim was defenseless when seized by Marlon and
Ronald. However, the prosecution failed to present any
witness or conclusive evidence that Modesto was defenseless
immediately before and when he was attacked and killed. It
cannot be presumed that although he was defenseless when
he was seized the victim was in the same situation when he
was attacked, shot and stabbed by the malefactors. To take
advantage of superior strength means to purposely use force
that is out of proportion to the means of defense available to
the person attacked.[72] What is primordial, this Court held
in People v. Rogelio Francisco[73] is that the assailants
deliberately took advantage of their combined
strength in order to consummate the crime. It is
necessary to show that the malefactors cooperated in such a
way as to secure advantage from their superiority in strength.
[74]
In this case, the prosecution failed to adduce evidence that
Marlon and Ronald deliberately took advantage of their
numerical superiority when Modesto was killed. The barefaced
facts that the malefactors outnumbered Modesto and were
armed while Modesto was not does not constitute proof that
the three took advantage of their numerical superioty and
their handguns when Modesto was shot and stabbed.[75]

In sum then, we believe that Marlon, Ronald and Leon

are guilty only of Homicide defined in and penalized by Article
249 of the Revised Penal Code with reclusion temporal in its
full period.
Although the special aggravating circumstance of the
use of unlicensed firearms was proven during the trial, there is
no allegation in the Information that Marlon, Ronald and Leon
had no license to possess the firearm. Lack of license to
possess a firearm is an essential element of the crime of
violation of PD1866 as amended by Republic Act No. 8294, or
as a special aggravating circumstance in the felony of
homicide or murder.[76] Neither can dwelling, although proven,
aggravate the crime because said circumstance was not
alleged in the Information as required by Rule 110, Section 8
of the Revised Rules of Court.[77] Although this rule took effect
on December 1, 2000, after the commission of the offense in
this case, nonetheless it had been given retroactive effect
considering that the rule is favorable to the accused.[78]
There being no modifying circumstances in the
commission of homicide, Marlon, Ronald and Leon should be
meted an indeterminate penalty, the minimum of which shall
be taken from the entirety of prision mayor, ranging from 6
years and one day to 12 years and the maximum period of
which shall be taken from the medium period of reclusion
temporal, ranging from 14 years, 8 months and one day to 17
years and 4 months.
Consequently, the award for damages in favor of the
heirs of the victim should be modified. The sum of P75,000.00
awarded as moral damages should be reduced to P50,000.00
in accordance with prevailing jurisprudence. [79] The amount
of P25,000.00 as exemplary damages is in order.[80] In
addition, civil indemnity in the amount of P50,000.00 should
be awarded without need of proof, likewise in consonance
with prevailing jurisprudence.[81]
IN LIGHT OF ALL THE FOREGOING, the decision of the
trial court is AFFIRMED with MODIFICATION. Accusedappellants Marlon Delim, Ronald Delim and Leon Delim are
hereby found guilty beyond reasonable doubt of the felony of
Homicide defined in and penalized by Article 249 of the
Revised Penal Code. There being no modifying circumstances
in the commission of the crime, each of accused-appellants is
hereby meted an indeterminate penalty of from ten (10) years
and one (1) day of prision mayor in its maximum period as
minimum to fourteen (14) years, eight (8) months and one (1)
day of reclusion temporal in its medium period as
maximum. Accused-appellants are hereby ordered to pay,
jointly and severally, to the heirs of the victim the amount
of P50,000.00 by way of civil indemnity, the amount
of P50,000.00 by way of moral damages and the amount
of P25,000.00 by way of exemplary damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban,
Quisumbing, Carpio, Austria-Martinez, Corona, CarpioMorales, and Azcuna, JJ., concur.
Vitug, J., see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., joins the
dissent of J. Vitug

Criminal Case No. 4811

SECOND DIVISION
[G.R. No. 125909. June 23, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. HERMOGENES FLORA AND EDWIN FLORA, accusedappellants.
DECISION
QUISUMBING, J.:
Accused-appellants seek the reversal of the decision [1] dated
November 7, 1995, of the Regional Trial Court, Branch 26,
Santa Cruz, Laguna, in Criminal Case Nos. SC-4810, 4811 and
4812, finding them guilty beyond reasonable doubt of the
crimes of double murder and attempted murder, and
sentencing them to reclusion perpetua, payment of
P50,000.00 for indemnity, P14,000.00 for burial expenses and
P619,800.00 for loss of earning capacity in Crim. Case SC4810 for the death of Emerita Roma; reclusion perpetua,
payment of P50,000.00 as indemnity, P14,000.00 for burial
expenses and P470,232.00 for loss of earning capacity for the
death of Ireneo Gallarte in Crim. Case SC-4811; and
imprisonment from 2 years, 4 months and 1 day of prision
correccional as minimum to 10 years of prision mayor and
payment of P15,000.00 to Flor Espinas for injuries sustained in
Crim. Case SC-4812.
On February 26, 1993, Prosecution Attorney Joselito D.R.
Obejas filed three separate informations charging appellants
as follows:
Criminal Case No. 4810
"That on or about January 10, 1993, at
around 1:30 oclock in the morning thereof,
in Sitio Silab, Barangay Longos, municipality
of Kalayaan, province of Laguna, and within
the jurisdiction of this Honorable Court,
accused Hermogenes Flora @ Bodoy,
conspiring and confederating with accused
Edwin Flora @ Boboy, and mutually helping
one another, while conveniently armed then
with a caliber .38 handgun, with intent to
kill, by means of treachery and with evident
premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault
and shoot with the said firearm one EMERITA
ROMA y DELOS REYES, thereby inflicting
upon the latter gunshot wounds on her
chest which caused her immediate death, to
the damage and prejudice of her surviving
heirs.
That in the commission of the crime, the
aggravating circumstances of treachery and
evident premeditation are present." [2]

"That on or about January 10, 1993, at

around 1:30 oclock in the morning thereof,
in Sitio Silab, Barangay Longos, municipality
of Kalayaan, province of Laguna, and within
the jurisdiction of this Honorable Court,
accused HERMOGENES FLORA @ Bodoy,
conspiring and confederating with accused
Erwin [Edwin] Flora @ Boboy, and mutually
helping one another, while conveniently
armed then with a caliber .38 handgun, with
intent to kill, by means of treachery and
with evident premeditation, did then and
there willfully, unlawfully and feloniously
attack, assault and shoot with the said
firearm one IRENEO GALLARTE y VALERA,
thereby inflicting upon the latter gunshot
wounds on his chest which caused his
immediate death, to the damage and
prejudice of his surviving heirs.
That in the commission of the crime, the
aggravating circumstances of treachery and
evident premeditation are present." [3]
Criminal Case No. 4812
"That on or about January 10, 1993, at
around 1:30 oclock in the morning thereof,
in Sitio Silab, Barangay Longos, municipality
of Kalayaan, province of Laguna, and within
the jurisdiction of this Honorable Court,
accused Hermogenes Flora @ Bodoy,
conspiring and confederating with accused
Erwin [Edwin] Flora @ Boboy, and mutually
helping one another, while conveniently
armed then with a caliber .38 handgun, with
intent to kill, by means of treachery and
with evident premeditation, did then and
there willfully, unlawfully and feloniously
attack, assault and shoot with the said
firearm one FLOR ESPINAS y ROMA, hitting
the latter on her shoulder, and inflicting
upon her injuries which, ordinarily, would
have caused her death, thus, accused
performed all the acts of execution which
could have produced the crime of Murder as
a consequence but which, nevertheless did
not produce it by reason of a cause
independent of their will, that is, by the
timely and able medical attendance given
the said Flor Espinas y Roma, which
prevented her death, to her damage and
prejudice."[4]
During arraignment, both appellants pleaded not guilty. Trial
thereafter ensued. Resolving jointly Criminal Cases Nos. SC4810, SC-4811 and SC-4812, the trial court convicted both
appellants for the murder of Emerita Roma and Ireneo
Gallarte, and the attempted murder of Flor Espinas. The
dispositive portion of the decision reads:
"WHEREFORE, in the light of the foregoing,
this Court finds as follows:

In CRIMINAL CASE NO. SC-4810, for the

death of Emerita Roma, the Court finds both
accused Hermogenes Flora and Edwin Flora
guilty beyond reasonable doubt of the crime
of Murder qualified by treachery and
sentences each of them to suffer the
penalty of reclusion perpetua, with all the
accessory penalties of the law, and to
indemnify the heirs of the victim the sums
of (a) P50,000.00 as death indemnity; (b)
P14,000.00 as expenses for wake and burial;
and (c) P619,800 for lost (sic) of earning
capacity,
without
any
subsidiary
imprisonment in case of insolvency and to
pay the costs.
In CRIMINAL CASE NO. SC-4811, for the
death of Ireneo Gallarte, the Court finds
both accused Hermogenes Flora and Edwin
Flora guilty beyond reasonable doubt of the
crime of Murder, qualified by treachery and
with the aggravating circumstance of
evident premeditation and sentences each
of them to suffer the penalty of reclusion
perpetua, with all the accessory penalties of
the law, and to indemnify the heirs of the
victim the sums of (a) P50,000.00 as death
indemnity; (b) P14,000.00 as expenses for
wake and burial; and (c) P470,232.00 for
lost (sic) of earning capacity, without any
subsidiary
imprisonment
in
case
of
insolvency and to pay the costs.
In CRIMINAL CASE NO. SC-4812, for the
injuries sustained by Flor Espinas, the Court
finds both accused Hermogenes Flora and
Edwin Flora guilty beyond reasonable doubt
of the crime of Attempted Murder and
sentences each of them to suffer an
indeterminate penalty of imprisonment from
two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to
ten (10) years of prision mayor, as
maximum, and to pay P15,000.00 to Flor
Espinas as indemnity for her injuries and to
pay the costs.
SO ORDERED."[5]
The facts of the case, borne out by the records, are as follows:
Days
before
the
incident,
appellant
Hermogenes
Flora alias "Bodoy," had a violent altercation with a certain
Oscar Villanueva. Oscars uncle, Ireneo Gallarte, pacified the
two.
On the evening of January 9, 1993, a dance party was held to
celebrate the birthday of Jeng-jeng Malubago in Sitio Silab,
Barangay Longos, Kalayaan, Laguna. Appellant Hermogenes
Flora, allegedly a suitor of Jeng-jeng Malubago, attended the
party
with
his
brother
and
co-appellant
Edwin
Flora, alias "Boboy". Also in attendance were Rosalie Roma,
then a high school student; her mother, Emerita Roma, and
her aunt, Flor Espinas. Ireneo Gallarte, a neighbor of the
Romas, was there too.

The dancing went on past midnight but at about 1:30,

violence erupted. On signal by Edwin Flora, Hermogenes Flora
fired his .38 caliber revolver twice. The first shot grazed the
right shoulder of Flor Espinas, then hit Emerita Roma, below
her shoulder. The second shot hit Ireneo Gallarte who slumped
onto the floor. Rosalie, was shocked and could only utter,
"si Bodoy, si Bodoy", referring to Hermogenes Flora. Edwin
Flora approached her and, poking a knife at her neck,
threatened to kill her before he and his brother, Hermogenes,
fled the scene.
The victims of the gunfire were transported to the Rural
Health Unit in Longos, Kalayaan, Laguna, where Emerita and
Ireneo died.[6]
Early that same morning of January 10, 1993, the police
arrested Edwin Flora at his rented house in Barangay
Bagumbayan, Paete, Laguna. Hermogenes Flora, after
learning of the arrest of his brother, proceeded first to the
house of his aunt, Erlinda Pangan, in Pangil, Laguna but later
that day, he fled to his hometown in Pipian, San Fernando,
Camarines Sur.
The autopsy conducted by the medico-legal officer, Dr.
Ricardo R. Yambot, Jr., revealed the following fatal wounds
sustained by the deceased:
EMERITA ROMA
"a) Gunshot of entrance at
the posterior chest wall
near the angle of the
axillary region measuring
1 cm. in diameter with
clean cut inverted edges
involving deep muscles,
and subcutaneous tissues
and travel through both
lobes
of
the
lungs,
including the great blood
vessels.
About 400 cc of clotted
blood was extracted from
the cadaver. The bullet
caliver 38 was extracted
from the lungs.
The cause of her death
was
attributed
to
Hypovolemic
shock
secondary
to
massive
blood loss secondary to
gunshot wound of the
posterior chest wall."[7]
IRENEO GALLARTE
"Gunshot
wound
of
entrance at the left arm,
measuring
1
cm.
in
diameter with clean cut
inverted edges involving
the
deep
muscles,

subcutaneous
tissues
traveling
through
the
anterior chest wall hitting
both lobes of the lungs
and each great blood
vessels
obtaining
the
bullet fragments.

him instead to the Municipal building of

Paete and thereafter transferred and
detained him to (sic) the Municipal building
of Kalayaan.
He recalled that on January 9, 1993, after
coming from the cockpit at about 3:00 p.m.
he and his accused brother passed by the
house of Julito Malubago. His brother
Hermogenes was courting the daughter of
Julito Malubago. At about 6:00 p.m. he went
home but his brother stayed behind since
there would be a dance party that night."[10]

About 500 cc. of clotted

blood was obtained from
the cadaver."
His cause of death was
attributed to Hypovelemic
shock
secondary
to
massive
blood
loss
secondary
to
gunshot
wound of the left arm."[8]

Version of Hermogenes Flora:

"Hermogenes Flora, 21 years old, testified
that he did not kill Ireneo Gallarte and
Emerita Roma and shot Flor Espina on
January 10, 1993 at about 1:30 in the
morning of Silab, Longos Kalayaan Laguna.

Flor Espinas submitted herself to a medical examination by Dr.

Dennis Coronado. Her medical certificate [9] disclosed that she
sustained a gunshot wound, point of entry, 2 x 1 cm. right
supra scapular area mid scapular line (+) contusion collar;
and another gunshot wound with point of exit 1 x 1 cm. right
deltoid area.
Three criminal charges were filed against the Flora brothers,
Hermogenes and Edwin, before Branch 26 of the Regional Trial
Court of Sta. Cruz, Laguna. During the trial, the prosecution
presented two eyewitnesses, namely, (1) Rosalie Roma,
daughter of one of the victims, Emerita Roma, and (2) Flor
Espinas, the injured victim. Rosalie narrated the treacherous
and injurious attack by Hermogenes Flora against the victims.
Flor detailed how she was shot by him.
Felipe Roma, the husband of Emerita, testified that his wife
was forty-nine (49) years old at the time of her death and was
a paper mache maker, earning an average of one thousand
(P1,000.00) pesos a week. He claimed that his family incurred
fourteen thousand (P14,000.00) pesos as expenses for her
wake and burial.
Ireneo Gallartes widow, Matiniana, testified that her husband
was fifty-two (52) years old, a carpenter and a substitute
farmer earning one hundred (P100.00) to two hundred
(P200.00) pesos a day. Her family spent fourteen thousand
(P14,000.00) pesos for his wake and burial.
The defense presented appellants Hermogenes and Edwin
Flora, and Imelda Madera, the common-law wife of Edwin.
Appellants interposed alibi as their defense, summarized as
follows:
Version of Edwin Flora:
"Edwin Flora, 28 years old, testified that
accused Hermogenes Flora is his brother. On
January 10, 1993, around 1:30 in the
morning, he was at Barangay Bagumbayan,
Paete, Laguna in the house of Johnny
Balticanto, sleeping with his wife. Policemen
came at said house looking for his brother
Hermogenes. Replying to them that his
brother was not living there, policemen took

On said date, he was very much aslept (sic)

in the house of his sister Shirley at Sitio
Bagumbayan, Longos, Kalayaan. From the
time he slept at about 8:00 in the evening to
the time he woke up at 6:00 in the morning,
he had not gone out of her sisters house. He
knew the victims even before the incident
and he had no severe relation with them.
xxx
He also testified that in the morning of
January 10, 1993, Imelda Madera came to
their house and told him that his brother
Edwin was picked-up by the policemen the
night before. Taken aback, his sister told him
to stay in the house while she would go to
the municipal hall to see their brother
Edwin. Thereafter, his aunt and sister
agreed that he should go to Bicol to inform
their parents of what happened to Edwin." [11]
Madera corroborated the testimony of her husband.[12]
As earlier stated, the trial court convicted accused-appellants
of the crime of double murder and attempted murder.
Appellants now raise this sole assigned error:
"THE TRIAL COURT ERRED IN CONVICTING
THE TWO ACCUSED-APPELLANTS DESPITE
THE FAILURE OF THE PROSECUTION TO
MORALLY ASCERTAIN THEIR IDENTITIES AND
GUILT FOR THE CRIMES CHARGED."
At the outset, it may be noted that the trial court found both
appellants have been positively identified. However, they
challenge the courts finding that they failed to prove their
alibi because they did not establish that it was physically
impossible for them to be present at the crime scene.
According to the trial court, by Hermogenes own admission,
the house of his sister Shirley, where appellants were
allegedly sleeping, was only one (1) kilometer away from Sitio

Silab, where the offenses allegedly took place. The sole issue
here, in our view, concerns only the plausibility of the
appellants alibi and the credibility of the witnesses who
identified them as the perpetrators of the crimes charged.
For the defense of alibi to prosper, it is imperative that the
accused establish two elements: (1) he was not at the locus
delicti at the time the offense was committed, and (2) it was
physically impossible for him to be at the scene at the time of
its commission.[13] The defense of alibi and the usual
corroboration thereof are disfavored in law since both could
be very easily contrived.[14] In the present case, appellants
alibi is patently self-serving. Although Edwins testimony was
corroborated by his common-law wife, it is ineffectual against
the positive testimonies of eyewitnesses and surviving victims
who contradicted his alibi. Moreover, an alibi becomes less
plausible as a defense when it is invoked and sought to be
crafted mainly by the accused himself and his immediate
relative or relatives.[15] Appellants defense of alibi should have
been corroborated by a disinterested but credible witness.
[16]
Said uncorroborated alibi crumbles in the face of positive
identification made by eyewitnesses.[17]
In their bid for acquittal, appellants contend that they were
not categorically and clearly identified by the witnesses of the
prosecution. They claim that the testimonies of the said
witnesses were not entitled to credence. They assail the
credibility of two eyewitnesses, namely Rosalie Roma and Flor
Espinas, because of the alleged inconsistencies in their
testimonies. For instance, according to appellants, Rosalie
Roma testified she was in the dance hall when the gunshots
were heard, and that she was dancing in the middle of the
dance hall when Hermogenes shot Emerita Roma, Ireneo
Gallarte and Flor Espinas,
"Q....Where were you when Hermogenes
Roma shot these Ireneo Gallarte, Emerita
Roma and Flor Espinas?
A....I was dancing, sir. (Emphasis ours.)
Q....And how far were you from Hermogenes
Flora when he shot these persons while you
were dancing?
A....Two armslength from me only, sir." [18]
However, to a similar question, later in her testimony, she
replied,
"Q....And where were these Emerita Roma,
Your mother, Ireneo Gallarte and Flor
Espinas when Hermogenes Flora shot at
them?
A....They were beside each other.
Q....And how far were you from these 3
persons?
A....Because they were standing beside the
fence and I was only seated near them,
sir."[19] (Emphasis ours.)

On this issue, we do not find any inconsistency that impairs

her credibility or renders her entire testimony worthless.
Nothing here erodes the effectiveness of the prosecution
evidence. What counts is the witnesses admitted proximity to
the appellants. Was she close enough to see clearly what the
assailant was doing? If so, is there room for doubt concerning
the accuracy of her identification of appellant as one of the
malefactors?
Appellants argue that since the attention of witness Flor
Espinas was focused on the dance floor, it was improbable for
her to have seen the assailant commit the crimes. On crossexamination, said witness testified that while it was true she
was watching the people on the dance floor, nonetheless, she
also looked around (gumagala) and occasionally looked
behind her and she saw both appellants who were known to
her.[20] Contrary to appellants contention that Flor did not have
a sufficient view to identify the assailants, the trial court
concluded that Flor was in a position to say who were in the
party and to observe what was going on. On this point, we
concur with the trial court.
Well-settled is the rule that findings of the trial court on the
credibility of witnesses deserve respect, for it had the
opportunity to observe first-hand the deportment of witnesses
during trial.[21]Furthermore, minor inconsistencies do not affect
the credibility of witnesses, as they may even tend to
strengthen
rather
than
weaken
their
credibility.
[22]
Inconsistencies in the testimony of prosecution witnesses
with respect to minor details and collateral matters do not
affect either the substance of their declaration, their veracity,
or the weight of their testimony.[23] Such minor flaws may even
enhance the worth of a testimony, for they guard against
memorized falsities.
Appellants assert that Flor Espinas and Rosalie Roma were
biased because they are relatives of the victim Emerita Roma.
However, unless there is a showing of improper motive on the
part of the witnesses for testifying against the accused, the
fact that they are related to the victim does not render their
clear and positive testimony less worthy of credit. On the
contrary, their natural interest in securing the conviction of
the guilty would deter them from implicating other persons
other than the culprits, for otherwise, the latter would thereby
gain immunity.[24]
Here, appellants did not present any proof of improper motive
on the part of the eyewitnesses in pointing to the Flora
brothers as the perpetrators of the crime. There is no history
of animosity between them. Emerita Roma and Flor Espinas
were merely innocent bystanders when hit by gunfire. Where
eyewitnesses had no grudge against the accused, their
testimony is credible.[25] In the absence of ulterior motive,
mere relationship of witnesses to the victim does not discredit
their testimony.[26]
Coming now to the criminal responsibility of appellants. In the
present case, when Hermogenes Flora first fired his gun at
Ireneo, but missed, and hit Emerita Roma and Flor Espinas
instead, he became liable for Emeritas death and Flors
injuries. Hermogenes cannot escape culpability on the basis
of aberratio ictus principle. Criminal liability is incurred by any
person committing a felony, although the wrongful act be
different from that which he intended.[27]

We find that the death of Emerita and of Ireneo were attended

by treachery. In order for treachery to exist, two conditions
must concur namely: (1) the employment of means, methods
or manner of execution which would ensure the offenders
safety from any defense or retaliatory act on the part of the
offended party; and (2) such means, method or manner of
execution was deliberately or consciously chosen by the
offender.[28] When Hermogenes Flora suddenly shot Emerita
and Ireneo, both were helpless to defend themselves. Their
deaths were murders, not simply homicides since the acts
were qualified by treachery. Thus, we are compelled to
conclude that appellant Hermogenes Flora is guilty beyond
reasonable doubt of double murder for the deaths of Emerita
Roma and Ireneo Gallarte, and guilty of attempted murder of
Flor Espinas.
Is the other appellant, Edwin Flora, equally guilty as his
brother, Hermogenes? For the murder of Ireneo Gallarte, was
there conspiracy between appellants? For conspiracy to exist,
it is not required that there be an agreement for an
appreciable period prior to the occurrence. It is sufficient that
at the time of the commission of the offense, the accused and
co-accused had the same purpose and were united in
execution.[29] Even if an accused did not fire a single shot but
his conduct indicated cooperation with his co-accused, as
when
his
armed
presence
unquestionably
gave
encouragement and a sense of security to the latter, his
liability is that of a co-conspirator.[30] To hold an accused guilty
as a co-conspirator by reason of conspiracy, it must be shown
that he had performed an overt act in pursuance or
furtherance of the conspiracy.[31] Edwins participation as the
co-conspirator of Hermogenes was correctly appreciated by
the trial court, viz.:

conspirators only the actual perpetrators are liable. In People

v. De la Cerna, 21 SCRA 569, 570 (1967), we held:
"x x x And the rule has always been that coconspirators are liable only for acts done
pursuant to the conspiracy. For other acts
done outside the contemplation of the coconspirators or which are not the necessary
and logical consequence of the intended
crime, only the actual perpetrators are
liable. Here, only Serapio killed (sic) Casiano
Cabizares. The latter was not even going to
the aid of his father Rafael but was fleeing
away when shot."
To conclude, appellant Edwin Flora is guilty beyond reasonable
doubt only of the murder of Ireneo Gallarte. He has no liability
for the death of Emerita Roma nor for the injuries of Flor
Espinas caused by his co-accused Hermogenes Flora.
WHEREFORE, the decision of the trial court is hereby
MODIFIED as follows:
(1)....Appellants Hermogenes Flora and
Edwin Flora are found GUILTY beyond
reasonable doubt of the MURDER of Ireneo
Gallarte and sentenced to each suffer the
penalty ofreclusion perpetua and to pay
jointly and severally the heirs of Ireneo
Gallarte in the sum of P50,000.00 as death
indemnity;
P14,000.00
compensatory
damages for the wake and burial; and
P470,232.00 representing loss of income
without any subsidiary imprisonment in case
of insolvency.

"Edwin Flora demonstrated not mere

passive presence at the scene of the crime.
He stayed beside his brother Hermogenes,
right behind the victims while the dance
party drifted late into the night till the early
hours of the morning the following day. All
the while, he and his brother gazed
ominously at Ireneo Gallarte, like hawks
waiting for their prey. And then Edwins flick
of that lighted cigarette to the ground
signaled
Hermogenes
to
commence
shooting at the hapless victims. If ever
Edwin appeared acquiescent during the
carnage, it was because no similar weapon
was available for him. And he fled from the
crime scene together with his brother but
not after violently neutralizing any obstacle
on their way. While getting away, Edwin
grabbed Rosalie Roma and poked a knife at
her neck when the latter hysterically
shouted "si Bodoy, Si Bodoy," in allusion to
Hermogenes Flora, whom she saw as the
gunwielder. All told, Edwin, by his conduct,
demonstrated unity of purpose and design
with his brother Hermogenes in committing
the crimes charged. He is thus liable as coconspirator."[32]
However, we cannot find Edwin Flora similarly responsible for
the death of Emerita Roma and the injury of Flor Espinas. The
evidence only shows conspiracy to kill Ireneo Gallarte and no
one else. For acts done outside the contemplation of the

(2)....Hermogenes Flora is found GUILTY

beyond reasonable doubt of the MURDER of
Emerita Roma and the ATTEMPTED MURDER
of Flor Espinas. For the MURDER of EMERITA
ROMA, Hermogenes Flora is sentenced to
suffer the penalty of reclusion perpetua, to
indemnify the heirs of Emerita Roma in the
sum of P50,000.00 as death indemnity,
P14,000.00 as expenses for wake and burial,
and P619,800.00 for loss of earning
capacity,
without
any
subsidiary
imprisonment in case of insolvency. For the
ATTEMPTED MURDER of Flor Espinas,
Hermogenes Flora is sentenced to suffer the
penalty of imprisonment from two (2) years,
four (4) months and one (1) day of prision
correccional as minimum to ten (10) years
of prision mayor, as maximum, and to pay
P15,000.00 to Flor Espinas as indemnity for
her injuries.
(3)....Appellant Edwin Flora is ACQUITTED of
the murder of Emerita Roma and the
attempted murder of Flor Espinas.
Costs against appellants.
SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr.,

JJ., concur

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 39519 November 21, 1991
PEOPLE OF THE PHILIPPINES, petitioner-appellee
vs.
DANIEL PINTO, JR. and NARCISO BUENAFLOR,
JR., defendants-appellants.
The Solicitor General for petitioner-appellee.

severally; and to pay the

costs;
(c) MURDER in CCC-X-298Legazpi City, and hereby
sentences each of them to
suffer imprisonment for
the rest of their lives
(Reclusion Perpetua); to
indemnify the heirs of
Richard Tiongson in the
amount
of
Twenty-five
Thousand
(P25,000.00)
Pesos,
jointly
and
severally; and to pay the
costs;

K.V. Faylona & Associates for defendants-appellants.

FERNAN, C.J.:p
As an aftermath of the mission of the Legazpi City Police
Department to serve on Christmas day in 1970 a search
warrant on Francisco Bello who was allegedly training a
private army, patrolmen Daniel Pinto, Jr. and Narciso
Buenaflor, Jr. were found guilty beyond reasonable doubt by
the then Circuit Criminal Court in said city, of killing not only
Bello but also 9-year-old Richard Tiongson and Rosalio Andes
and seriously wounding Maria Theresa Tiongson. The
dispositive portion of the decision of June 13, 1974. 1 reads:
WHEREFORE, the Court finds the accused
Narciso Buenaflor, Jr. and Daniel Pinto, Jr.
GUILTY beyond reasonable doubt of crime
of:
(a) MURDER in CCC-X-288Albay,
and
hereby
sentences each of them to
suffer imprisonment for
the rest of their lives
(Reclusion Perpetua); to
indemnify the heir of
Rosalie Andes in the
amount
of
Twenty-five
Thousand
(P25,000.00)
Pesos,
jointly
and
severally; and to pay the
costs;
(b) MURDER in CCC-X-289Albay,
and
hereby
sentences each of them to
suffer imprisonment for
the rest of their lives
(Reclusion Perpetua); to
indemnify the heirs of
Francisco Bello in the
amount
of
Twenty-five
Thousand
(P25,000.00)
Pesos,
jointly
and

(d) FRUSTRATED MURDER

in CCC-X-299 Legazpi City,
and
hereby
sentences
each
of
them
to
imprisonment of from Six
(6) Years and One (1) Day
of
Prision
Mayor
as
Minimum, to Twelve (12)
Years and One (1) Day
of Reclusion Temporal as
Maximum; to indemnify
the victim, Maria Theresa
Tiongson, in the amount of
Eight
Thousand
(P8,000.00) Pesos, jointly
and severally; and to pay
the costs.
In addition to the foregoing the accused are
sentenced
to
suffer
perpetual
disqualification from public office.
According to the prosecution, on December 25, 1970, the
Legazpi City Police secured from the City Court of Legazpi a
warrant for the search of the house and premises of Francisco
Bello in Mariawa, Legazpi City on the ground that the police
had probable cause to believe that Bello illegally possessed a
garand rifle, a thompson submachinegun and two automatic
pistols. 2 The police had earlier undertaken a surveillance of
Bello on the basis of information it had received that he was
conducting an "obstacle course" or training men for combat
since October, 1970. 3
Upon receipt of the search warrant, the Chief of Police, Dr.
Solomon Adornado, 4 called his officers to a "confidential
conference" at the residence of Mayor Gregorio Imperial.
Present at the said conference were the mayor, his secretary,
and the officers of the patrol division, secret service and the
administration of the city police. The Chief of Police was
assisted by Major Alfredo Molo, head of the intelligence
division of the city police, in briefing the group on how to
serve the search warrant and to arrest Bello as the latter had
been identified as the one who shot Salustiano Botin the night
before. At the time of the briefing, no warrant of arrest had
yet been issued against Bello. 5
The policemen were divided into three teams and around five
members of the Philippine Constabulary (PC) who were also

present were assigned to the different teams. 6 Team 3 was

placed under the charge of Sgt. Salvador de la Paz with a
policeman named Luna and appellants Buenaflor and Pinto as
members. Wilfredo Romero was the PC member assigned to
the team. 7 Except for Romero and Pinto who were each
armed with a carbine, the policemen of Team 3 each carried
a .38 caliber pistol. 8
Loaded in four vehicles, the three teams proceeded from the
residence of the Mayor to barrio Homapon arriving there at
around seven o'clock in the evening. The four vehicles met at
the junction of Homapon and the road to Mariawa. They had
decided to ride on the way to Mariawa when one of the jeeps
bogged down because of the muddy road. Hence, the three
teams had to walk in single file on the right side of the road
with the teams had to walk in single file on the right side of
the road with the teams maintaining a distance o around ten
meters between them. 9
Suddenly, Romero noticed the members of his team running.
He ran with them and then he heard someone shout, "Pondo!"
(stop). The shout was followed by a shot and then a burst of
gunfire. The team had by then deployed to the right side of
the road. When Romero checked the men by shouting the
agreed password of "bayawas" for which the person
challenged answered "santol", 10 he found that Buenaflor was
5 meters in front of him "at the bank of the road", Pinto was
two meters to the right of Buenaflor, Sgt. de la Paz was two
meters to his (Romero's) right, Luna who was holding a
walkie-talkie was to his left and another policeman was in
front of Luna. 11 When Romero heard the gunburst, he saw
"flashes of fire" "just in front" of him or from the place where
Buenaflor was. 12
The area where the team deployed was lower in elevation
than the road but Romero heard the rumbling of a jeep going
towards the direction of Homapon when he heard the burst of
gunfire and saw the flashes of fire from the direction of
Buenaflor. 13
On the jeep which passed by the deployed policemen were Fr.
Felix Cappellan, Mrs. Zenaida Stilianopolous Tiongson, her six
children and the driver. They had just come from a lechonada
party in the hacienda in Mariawa of Mrs. Purificacion Napal
Anduiza, the mother of Francisco Bello. Fr. Capellan had
celebrated mass to commemorate the death anniversary of
Mrs. Anduiza's father. When Fr. Capellan decided to go back to
his parish, the Anduiza's offered their jeep for his
transportation. 14 Seated on the front seat of the "McArthur
type" jeep which had only a canvass top but no cover on the
sides and back, 15 were the driver, Mrs. Tiongson with a child
on her lap and Fr. Capellan. 16 Richard Tiongson was seated
on the steel seat behind the driver while his sister Maria
Theresa was beside him. 17 The three other children were
also seated at the back.
After crossing the creek on their way to Homapon and as the
driver "changed to high gear with a dual", 18 Mrs. Tiongson
saw blinking lights some 300 yards ahead. 19 Fearing that
there might be "people with bad intentions" or hold-uppers, Fr.
Capellan told the driver to go faster. 20 Then Fr. Capellan
heard one shot and after a few seconds and around 50 meters
ahead, there was rapid firing with some of the bullets hitting
the jeep. 21 According to Mrs. Tiongson, the widow of Col.
Angel Tiongson of the PC, the rapid firing sounded

"automatic". 22 The firing came from the left rear side of the
jeep. 23
Before they were fired upon, Maria Theresa saw a man lying
flat on his stomach while holding a gun on the left side of the
road just ahead of the jeep. 24 Through the light of the jeep,
Maria Theresa noticed that the man was wearing a jacket and
a hat and he was on the shoulder of the road. 25 After passing
the man, the rapid firing ensued. Richard said "ugh" and fell
on the floor of the jeep. Maria Theresa was about to hold
Richard when she felt herself hit at the buttocks. Then they all
screamed. 26
The jeep continued its fast uphill climb until it reached a level
area and almost fell into a ditch were it not for a clump of
banana plants. The jeep came to a full stop. Fr. Capellan saw
three men with flashlights but he could not distinguish their
faces as it was dark and their flashlights were focused on the
ground. 27 Mrs. Tiongson saw a PC jeep and some cars and,
believing that one of the cars was that of the Mayor, she
called Tia Citang, the mother of the mayor, at the same time
identifying herself.28 She must have managed to take Richard
from the jeep and was cuddling him on the ground near the
left rear end of the jeep when she requested Fr. Capellan to
administer extreme unction on Richard. As Fr. Capellan had no
holy oil, he gave the boy absolution. 29
Even after Mrs. Tiongson had identified herself as the widow
of Col. Tiongson to the men around, nobody listened to her
appeal for help. When she approached Chief of Police
Adornado, she hit him and asked him why they shot her and
her companions. The Chief of Police replied that the shooting
was no longer his fault because Mrs. Tiongson and her
companions did not stop when told to do so. She requested
the Chief of Police for a car in which to take Richard to the
hospital or for a driver and even for a walkie-talkie so she
could talk to Mayor Imperial but the Chief of Police did not
heed her pleas. 30 (TSN, February 9, 1972, pp. 17-22).
A few minutes later, a jeep driven by Fernando Anduiza
arrived. Mrs. Tiongson and her children boarded the jeep. At
the intersection of the road to Legazpi City proper and the
road to Mariawa, the area was brightly lighted and armed men
ordered them to put their hands up. They were told to alight
from the jeep to be searched but Mrs. Tiongson begged the
lieutenant manning the area to let them pass so they could
bring her two children to the hospital. 31
Richard and Maria Theresa were brought to the Sacred Heart
Clinic in Legazpi City. Thirteen-year-old Maria Theresa was
treated for a gunshot wound at the "right upper quadrant of
the right buttocks." 32 Her pelvis and abdomen were x-rayed.
One of the x-ray plates 33 revealed an oval spot indicating a
foreign body in Maria Theresa's pelvis. The attending
physician decided not to extract the foreign body as Maria
Theresa was not a "very good surgical risk".34 The hospital
charged P282.90 for Theresa's hospitalization. 35 She was
later brought by an army plane to the PC Station Hospital in
Camp Crame, Quezon City for further treatment and
hospitalization 36 but the foreign body was never removed
from her pelvic area.
Richard sustained a gunshot wound at the back about the
level of the 5th lumbar vertebrae. The bullet travelled
obliquely to the left kidney, the lesser sac, the liver and the

right auricle.37 Richard was operated at the hospital but he

died at 8:45 the following morning due to massive
hemorrhage caused by the gunshot wound. 38 When he was
autopsied, a lead slug was found embedded in his
heart.39 His mother paid P862.35 40 for his hospitalization
and was charged P200 by the church. Mayor Imperial paid
P500 to Funeraria Oro for Richard's burial.41
Meanwhile, according to Chief of Police Adornado, after the
shooting incident involving the Tiongsons, the police pursued
their mission to serve the search warrant on Bello. When they
reached Bello's residence in Mariawa, they were met by a
"volley of fire." Suddenly, the house was lighted and a certain
Escober met him. Although Bello and his parents, Mr. and Mrs.
Anduiza, were not around, the police searched the area and
found a Japanese Springfield rifle, ammunition of a garand
rifle, ammunition of a carbine, live ammunition for a .38
caliber
pistol
and
380
bullets
for
an
automatic
pistol. 42 Thereafter, the Chief of Police declared the search
terminated and the entire searching party left for
headquarters. 43 The following day, he issued Special Order
No. 24 which states:

December 26, 1970

To All Concerned:
The following men mentioned below are
hereby assigned at Homapon until their
mission is accomplished, effective as of
today, December 26, 1970:
1 Sgt. Salvador de la Paz, In-charge
2. Pfc. Carlos Barbin, member
3. Pat. Eduardo Arcinue, member
4. Pat. Juan Luna, member
5. Pat. Daniel Pinto, member
6. Pat. Celedonio Abordo, member
7. Pat. Narciso Buenaflor, member
Report progress of mission any time of day
through the radio system. For strict
compliance.
(Sgd.)

The mission was to keep peace and order in the specified

place and to determine the whereabouts of Bello.45 It was not
necessary to specify the mission in the order itself because
the Chief of Police "had a close understanding with the squad
that went to Homapon". 46For a "convenient tactical
deployment," Sgt. De la Paz further divided Team 3 into three
groups with patrolmen Buenaflor and Pinto composing Group
II.47
At noontime of December 26, 1970, Francisco Bello, more
popularly known as Paquito, arrived at the residence of
Inocencia Malbas in sitio Ando, Talahib, Daraga, Albay. He was
with Inocencia's brother, Francisco Andes, Francisco's son
Ananias, and Leoncio Mostoles. Rosalio, another son of
Francisco, also arrived with the group. 48Bello requested
Inocencia and her husband that he and his group be allowed
to spend the night in Inocencia's house. 49
Inocencia woke up at around 5:00 o'clock in the morning of
December 27, 1970. At the sala, on her way from her room to
the kitchen, she saw Bello sleeping alone. From the kitchen,
Inocencia went to the balcony through the sala. On her way
back to the kitchen, she noticed that Bello, who was wearing a
red shirt and an underwear, had awakened. Bello opened the
window, spat out and went to the balcony. He reentered the
sala and saying that it was cold, Bello put on his clothes and
pants. He also wore his jacket. He went back to the balcony
and asked for water. Inocencia's husband gave Bello a glass of
water. After gurgling, Bello placed the glass on the window sill
and ask Inocencia's husband for a cup of coffee.50
Inocencia's husband was about to offer Bello a cup of coffee
when she heard a successive burst of gunfire. Bello, who was
the balcony facing the copra kiln ("agonan") with his back
towards the pili tree, gradually fell to the floor with his hands
above his head. Then there was another burst of gunfire. From
the kitchen, Inocencia rushed to the door from where she saw
a man holding a long firearm, whom she later identified as
Pinto, near the pili tree which was around eight meters from
where Bello was, and another man, also holding a gun,
crouching near the stairs. 51
Inocencia, with her two-year-old child in her arms, 52 was
about to rush to Bello when her husband pulled her. Just then
a man, whom Inocencia identified as Buenaflor, came up the
house, pointed a gun at Inocencia and her husband and told
them to lay flat on the floor. The man asked them where the
gun was. Inocencia told him that there was no gun in the
house but then, when she looked around, she saw a long
firearm with its muzzle pointed upward leaning against the
wall near the door around two meters from where Bello laid
flat on his back. Bello himself had a gun but it was in its
holster tucked on his waist. 53 It was Buenaflor who took both
the long firearm and the gun in Bello's holster.54

When Francisco Andes went up the house, he told Inocencia

that Rosalio was dead. 55 Inocencia went near the pili tree
knelt down and asked the man with
SOLOMONwhere Rosalio's
B. body was,
ADORNADO
a long firearm why he killed Rosalio. The man answered that
Chief of Police
Rosalio fought back. However, Inocencia did not notice any
weapon near Rosalio's body. 56
Copy furnished: The Honorable City Mayor,
The Patrol Command, LCPD, the OIC and
Bello's hands and feet were tied together and a bamboo pole
file .44
was inserted between them so that two men, one of them
being Francisco Andes, could carry the cadaver. 57 Bello died

because of "shock secondary to massive hemorrhage due to

multiple gunshot wounds". 58 A former pilot and 28 years old
at the time of his death, Bello sustained a gunshot wound at
the left temple, an inch above the highest point of the pinna
of the left ear. The bullet which entered his head through the
squamous temporal bone travelled towards the occipital
region down to the floor of the left middle cranial fosa until it
reached the base of the tongue.
Bello had three gunshot wounds on his chest. One bullet
entered the superior part of the right scapular area about the
level of the third thoracic vertebrae. The bullet travelled to
the right inna in a slightly upward direction making its exit at
the lateral part of the right supraclavicular fossa above the
clavicle. The second gunshot wound was at the left side
interscapular area. The bullet travelled upwards and to the
right fracturing the 7th rib, entered the lower lobe of the left
lung, punctured the pulmonary conus, went through the
junction of the right auricular appendage and the right auricle,
the anteromedial side of the pericardium, grazed the medial
surface of the middle lobe of the right lung and exited at the
right side of the chest. The third gunshot wound was below
the right nipple. The bullet went to the chest cavity, the lower
lobe of the right lung, the dome of the diaphragm, the right
lobe of the liver, the 8th thoracic vertebrae and exited at the
left of the midline at the inferior interscapular area. 59

that the shooting occurred because the Tiongsons' jeep "was

going towards" them.69
According to Pinto, when they reached Mariawa, it was he who
fired one shot in the air. 70 After the search had been
conducted in Bello's premises, Team 3 was instrued by a
"superior officer" "to remain and maintain peace and order in
(the) vicinity including Mariawa".71 While he and Buenaflor
were patrolling the area, at around midnight, they "chanced
upon a house" wherein Bello and his group were staying. They
captured four of Bello's bodyguards and tied them to a pili
tree with the torn shirt of one of the captives.72
At daybreak, Pinto saw Bello smoking at the porch. Buenaflor,
who was behind him, called Bello. Then a single shot coming
from the house rang out. It was answered by a burst of fire
which Pinto "presumed" came from Buenaflor. By reflex
action, Pinto transferred from the pili tree to a nearby coconut
tree. But before he reached the coconut tree, he saw a man
with a bolo in his hand running towards him. As the man was
menacingly near him, Pinto shot him. 73

While Bellos corpse was being autopsied, a slug fell from his
jacket. A bullet jacket and lead fragments were found at the
base of his skull and a slug was extracted from the floor of his
mouth. 60

After a lull in the firing, he went up the house to look for

Bello's other companions. He saw the body of Bello on the
porch and "near" it was a garand which he took. He also got
Bello's short firearm "from a holster." He turned over both the
garand and the short firearm to Buenaflor. One of the
captured persons kicked Bello's body saying that if not for
Bello, his son would not have been killed. Thereafter, the two
dead persons were carried by the captured bodyguards to
Mariawa. 74

Rosalio Andes, 23 years old, also died of shock due to multiple

gunshot wounds. A bullet entered his right temporal area,
macerated the brain, fractured both parietal bones and exited
at the left parietal bone. Another bullet entered the left
scapular area below the level of the 6th rib, travelled to the
dome of the left diaphragm, the left lobe of the liver, the
pancreas, the small intestines, and the perineum below the
ramus of the right pubis. The slug was found at the
gluteoperineal junction about 2 inches below the tip of the
coccys and 2 1/2 inches above the gluteal line. A third bullet
entered the left knee and exited at the medial side of the
leg. 61

In Mariawa, Pinto contacted (through the radio) police outpost

No. 5 in Banquerohan and two jeeps arrived. When they
reached the junction in Homapon, Major Molo, who was with
Fiscal Benito Se, told Pinto to go back with him to Talahib.
Although Pinto warned Major Molo that it would be dangerous
to go back because one of Bello's men had escaped, they
nevertheless proceeded to Talahib. With three other
policemen, they arrived there between eight and nine in the
morning where they were instructed to "look for evidence
specifically . . . for a thompson." He found in the porch two
shells and the others found a hat and a flashlight. Thereafter,
they returned to Mariawa and later, to Legazpi City proper. 75

The slugs and parts of bullets which were extracted from the
bodies of the victims were turned over to the National Bureau
of Investigation (NBI) on December 29, 1970 by Fiscal Aquilino
Bonto for safekeeping purposes. 62 The empty shells and
slugs which both the PC and the Legazpi City police found in
Talahib were also turned over to the NBI 63 in the same
manner that the four empty carbine shells 64 found by the PC
near the coconut tree a meter from the shoulder of the road to
Mariawa were also turned over to the NBI. 65Also submitted
to the NBI for ballistic examination were twelve Smith &
Wesson caliber .38 revolvers, two Smith & Wesson "paltik"
caliber .22, four Tell caliber revolvers, one Bosque automatic
pistol caliber .380, four carbine Inland rifles caliber .30, three
US Springfield rifles caliber.30, one Thompson submachine
gun caliber .45 and one Colt automatic pistol caliber.45. 66

On cross-examination, Pinto stated that he did not know that

they found Bello in an area which was beyond the jurisdiction
of Legazpi City. He admitted that while they were instructed
patrol the area, they were also told to effect the arrest of Bello
even
if
no
complaint
had
been
lodged
against
him. 76 According to Pinto, of the fifteen bullets in the
magazine of his carbine, only two remained. He fired "most"
of the thirteen shots during the "Bello incident". 77

Defendants Pinto and Buenaflor both denied having fired at

the jeep bearing the Tiongson family.67 Pinto, who admitted
carrying a caliber .30 carbine during the incident, 68 testified

Pinto shot the man later identified as Rosalio Andes when he

was at a distance of around three meters. Rosalio was "face to
face" with him when Pinto shot him. As Rosalio did not fall
from the first shot, Pinto continued shooting him. 78 When he
went up the porch he saw the garand "lying on the floor" but
the gun tucked on Bello's waist was still in its holster. 79
On the Tiongson incident, Pinto asserted that he did not fire
his
carbine. 80 When he saw the headlight of the Tiongsons' jeep,

he also saw a flashlight being waved. A little later, he heard a

shout ordering the jeep to stop. Then he heard one shot and
immediately after, the volley of fire as the jeep was going
towards his direction. As it passed by him, he heard the jeep's
passengers shriek. 81
For his part, Buenaflor declared that during the mission to
serve the search warrant on Bello, he carried the ".38 caliber
revolver Tel." (sic) which had been issued to him by the
Legazpi City Police Department. He did not fire his gun at the
Tiongsons and, "as a matter of fact," he surrendered his
firearm for ballistic examination. 82 In the afternoon of
December 26, however, Major Molo issued him a Thompson
submachinegun. 83
While patrolling Homapon, he and Pinto "chanced upon" some
persons who told them that they could guide them to where
Bello was. At the place which they later found to be Talahib,
they went near a pili tree from where they saw a house
"below." Then he saw a man who turned out to be Mostoles.
Buenaflor apprehended Mostoles because the latter was
Bello's bodyguard and he had a .22 caliber firearm with him.
He came by another man with a bolo, named "Banteque" and
apprehended him also. Then, from behind the pili tree, Pinto
appeared with yet another man. They waited for a while until
another man, who turned out to be Francisco Andes, came
within four meters of him. Buenaflor pointed his
submachinegun at him so Andes approached him. Buenaflor
confiscated Andes' .22 caliber firearm. 84
From the group, Buenaflor learned that Bello provided them
with firearms and that Bello himself had a pistol tucked in his
holster as well as a garand. He and Pinto then tied the men to
the pili tree. Later, he saw a person in the balcony of the
house below and Buenaflor shouted twice: "Paquito, magsurrender ka!" Then Buenaflor heard a "a shot coming from
the direction of the balcony followed by successive shots." He
sought cover behind the pili tree and, while in a crouching
position, fired his submachinegun towards the balcony. Pinto
was then behind him. As Pinto shifted his position while firing
his carbine, Buenaflor went down to the "elevated portion
going down to the nipa shack" until he was near the coconut
tree. There he found a person lying with his face down. He
later found out that the person was the son of Francisco
Andes. 85
After the firing had stopped, Pinto told him that Bello was
dead. Pinto then went up the house. Buenaflor went back to
the pili tree, untied the four persons they had captured, and
told them to do something so they could carry the bodies of
Bello and (Rosalio) Andes. 86
Like Pinto, on cross-examination, Buenaflor also asserted that
he did not fire his gun at the jeep carrying the
Tiongsons. 87 While admitting that the person who led them
to Bello had told them that the latter was in Talahib, Buenaflor
did not know that Talahib was a barrio of Daraga, Albay and
not of Legazpi City.88 He reiterated that he shouted at Bello
urging him to surrender 89 but he was not able to fire a
warning shot or identify himself as a member of the police
force "because after the second shot there was already a
burst of gunfire".90
Buenaflor affirmed that the first shot emanating from the
balcony of the house in Talalib which was around fifteen

meters from the pili tree, came from a "high caliber

firearm". 91 After they had found out that Bello was dead,
Pinto went up the house. Later, Pinto gave him Bello's 380
automatic pistol and garand. 92 Although he looked at those
firearms, he did not determine whether they had been
fired. 93 He noticed, however, that the magazine of the
garand was "intact". 94 Aside from Bello's firearms, Buenaflor
and Pinto confiscated two .22 caliber revolvers and two bolos
found on Bello's bodyguards. 95
Buenaflor stated that his Thompson submachinegun had two
clips with each clip containing 30 bullets. When he gave back
the firearm to Major Molo, only four bullets were left of the
one clip he had used. 96 He remembered having squeezed
twice the trigger of his Thompson submachinegun or
automatic rifle in Talahib.97 His service revolver was still with
him then. 98
As a result of this series of events, four separate informations
were filed against Pinto and Buenaflor. The information
charging Pinto and Buenaflor for the murder of Andes which
was filed on July 26, 1971 reads:
That on or about the 27th day of December,
1970, in sitio Ando, Barrio Talahib, Daraga,
Albay and within the jurisdiction of this
Honorable Court the accused, conspiring
and confederating together and mutually
helping one another, without any justifiable
cause or motive, with intent to kill, did, then
and
there,
willfully,
unlawfully
and
feloniously, with treachery and evident
premeditation,
accused
Pat.
Narciso
Buenaflor, Jr. and Pat. Daniel Pinto, Jr., and
by means of a Cal. 45 Thompson SubMachine Gun, SN-213436 and a US Carbin
Inland, Cal. 30, SN-5099407, owned
respectively by said accused, shoot one
Rosalio Andes, inflicting upon him gunshot
wounds as described in the attached
Autopsy Report marked as Annex "A" and
being made an integral part of this
Information, thereby causing upon said
Rosalio Andes serious and mortal wounds
which led to his instantaneous death.
Contrary to law.
The information charging Pinto and Buenaflor with having
murdered Bello contains basically the same allegations as the
above and it was filed on the same date. On August 24, 1971
two other informations were filed against Pinto and Buenaflor:
one for the murder of Richard Tiongson and another for the
frustrated murder of Maria Theresa Tiongson. On arraignment,
Pinto and Buenaflor both pleaded not guilty to all the charges.
After trial, the trial court rendered the aforementioned
judgment of conviction. For the killing of Bello and Andes, the
trial court appreciated evident premeditation as a qualifying
circilmstance and treachery, nighttime and use of public
position as aggravating circumstances. For the incident
involving the Tiongson children, it considered the crimes as
qualified by treachery and aggravated by the use of public
position.

Pinto and Buenaflor instituted the instant appeal praying for

exoneration mainly on the basis of their claim that the killings
were perpetrated in the course of the performance of their
official duties as peace officers in obedience to the lawful
order of their superiors.
In order that the justifying circumstance of fulfillment of a
duty under Article 11 of the Revised Penal Code may be
successfully invoked, the defense has to prove that these two
requisites are present: (a) the offender acted in the
performance of a duty and (b) the injury or offense committed
be the necessary consequence of the due performance or
lawful exercise of such duty. In the absence of the second
requisite, the justification becomes an incomplete one thereby
converting it into a mitigating circumstance under Articles 13
and 69 of the same Code. 99
Admittedly, the appellants and the rest of the police force
involved, originally set out to perform a legal duty: the service
of a search warrant on Bello. In the process, however,
appellants abused their authority resulting in unauthorized
and unlawful moves and consequences. Armed with only a
search warrant and the oral order to apprehend Bello, they
went beyond the ambit of their mission and deprived Bello
and two other persons of their lives.
While the defense presented proofs that Bello had a string of
record in the police blotter for misdeeds ranging from taking
the harvest of their hacienda without the permission of his
parents to assaulting his stepfather, and that he was
"dangerous while under the influence of liquor", 100 there
was no proof that he had been convicted of any offense or
that he was a dangerous fugitive from justice which would
warrant a "shoot to-kill" order from police authorities. Proof of
bad moral character of the victim only establishes a
probability that he committed a crime but it certainly cannot
be the reason for annihilating him nor may it prevail over facts
proven showing that the same victim had been cold-bloodedly
killed. 101 As such, the suspicion that Bello was maintaining a
private army was not a sufficient justification for his being
rubbed out without due process of law.
The police theory that Bello authored the shooting of one
Salustiano Botin on Christmas eve is neither a justification for
his arrest without a warrant. It should be observed that while
the police had obtained a search warrant for illegal possession
of firearms against Bello even on Christmas day which was
supposed to be a holiday, no such effort was made in securing
warrant of arrest for Bello's alleged frustrated killing of Botin.
The improbability of the defense evidence through the
testimony of Botin himself that Bello had shot him in the
evening of December 24, 1970 is bolstered by the same
testimony showing that while he was shot by Bello in the
presence of the police force who were converging at the
junction of Homapon and Mariawa, the same law enforcers
were unable to arrest Bello. Besides the fact that no other
eyewitness corroborated Botin's testimony even in the face of
his own admission that Bello had no reason to shoot him, no
complaint was ever lodged against Bello for the alleged
shooting. 102
On the other hand, the prosecution, through eyewitness
Rogelio Escober, tried to establish that during said shooting
incident the police were looking for Bello at the store of a
certain Serrano. 103 Unable to find Bello, the police,

specifically Pinto, mauled Escober while asking him to testify

against Bello for allegedly shooting Botin. 104 The police had
focused their vehicles' headlights near the bodega of exMayor Los Baos in their effort to flush out Bello who,
unknown to the police, had earlier left the vicinity. It was when
the police fired at the said bodega that Botin must have been
accidentally shot. 105 This story was uncorroborated but if
true, would show the police's dangerous propensity for using
otherwise official operations in an unlawful manner.
A propensity for rash judgment was likewise amply shown at
the incident involving the Tiongson children. Since the jeep
coming towards them was owned by the Anduizas, the
appellants acted obviously in the belief that Bello was its
passenger and posthaste they fired upon it even without any
inquiry as to the identity of its passengers. 106Granting that
the police indeed fired a warning shot, sound discretion and
restraint dictated that, there being no responding shots from
its passengers after the alleged warning shot and considering
the condition of the road which was not only muddy but uphill,
instead of directing aimless gunburst at the jeep, the most
that they could have done was to render the jeep immobile by
shooting its tires. That way, they could have verified the
identity of the passengers. As it were, they riddled the jeep
with bullets injuring in the process innocent passengers who
were completely unaware of what they were up against.
Appellants' stark denial of firing their guns upon the Tiongson
family falls flat in the face of various circumstantial evidence
which point to their culpability. There is the unflinching
testimony of Sgt. Romero that he saw "flashes of fire" from
the direction of Buenaflor as the jeep bearing the Tiongsons
passed by. Said testimony was corroborated by that of Rafael
Jacob, the PC member of team 2, that while no one in his
team fired his gun, the "sporadic firing" came from team 3
after the first of fire which occurred while the jeep was
"abreast of team 2". 107Even defense witness Mariano Rico, a
policeman who led team 1, was "sure" that he heard gunshots
at the moment when "the jeep had just passed team 2". 108
Then there are the four empty .30 caliber carbine shells which
were found near the coconut tree where, according to
Romero, Pinto was deployed. While he himself carried a
carbine, Romero did not fire it and his testimony was never
contradicted. The four empty shells were compared with the
test shells which were fired from the US carbine, caliber .30
Inland Division, SN-5099407, which, according to the
aforequoted information charging appellant with having killed
Andes, was used by Pinto, they were found to have
"significant similar individual characteristics". 109
While it is true that the ballistic report reveals that the lead
bullet taken from the body of Richard was fired from a Smith &
Wesson type firearm 110 and Buenaflor was proven to be
carrying a .38 caliber Tell revolver, the findings of expert
witnesses or, in this case, the ballistic report pointing to
another kind of caliber .38 weapon as the source of Richard's
wound only serves as a guide for the courts after considering
all the facts of the case.111 The undisputed fact is that
Buenaflor was specifically pointed by Romero as the one who
fired his firearm as the Anduiza jeep bearing the Tiongsons
passed by. Inasmuch as no evidence that Romero would
prevaricate to pin responsibility on Buenaflor was ever
presented, there is, therefore, no reason to discredit his
testimony. 112

In addition to all these, Buenaflor's motive for wanting to do

away with Bello has been established. Such motive provided a
circumstantial evidence leading to the inference that indeed
he fired his gun. 113 According to the unrebutted testimony
of Rogelio Escober, an overseer of the Napal hacienda and
constant companion of Bello, on November 1, 1970, Buenaflor
and another policeman named Santos Urbana, Jr. borrowed
Bello's jeep on the pretext that they needed it to transfer
Moscoso, the suspect in the Perez killing, to the Albay Police
Headquarters. When it was returned, the jeep had
bloodstains. Bello and Escober later learned from a PC officer
that the jeep had been used in dumping in Guinobatan the
body of Moscoso. Confronted by the PC officer, Bello admitted
that the jeep was borrowed by Buenaflor and Urbina and
agreed to execute a sworn statement on the matter.
Consequently, the PC authorities notified Mayor Imperial of
the solution of the Moscoso killing.
Three days later, Escober and Bello met Urbina who warned
Bello, "Kit, if you want to give your statement, just say that I
borrowed your jeep for thirty minutes. This is a brotherly
advice because something might happen to you." Bello
retorted that he would do what was right and that was to tell
the truth. Urbina said that it was up to Bello but he repeated
that he was giving Bello a brotherly warning that something
might happen to him 114 (TSN, August 23, 1973, pp. 4-20).
These facts were of course denied by Buenaflor. However, as
between the positive declaration of a prosecution witness and
the negative denial of the accused, the former deserves more
credence. 115
All these pieces of circumstantial evidence point to no other
inference than that Pinto and Buenaflor fired their guns in
defiance of their superior officer's order only "to find the
whereabouts" of Bello 116 and to desist from using their
weapons
"without
clearance
from
the
Chief
of
Police". 117 Since there is more than one circumstance and
the facts from which the inferences are derived are proven,
the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt. 118
The fact that the victims were different from the ones the
appellants intended to injure cannot save them from
conviction. Aberratio ictus or mistake in the identity of the
victim carries the same gravity as when the accused zeroes in
on his intended victim. The main reason behind this
conclusion is the fact that the accused had acted with such a
disregard for the life of the victim(s) without checking
carefully the latter's identity as to place himself on the same
legal plane as one who kills another willfully, unlawfully and
feloniously. 119 Neither may the fact that the accused made
a mistake in killing one man instead of another be considered
a mitigating circumstance. 120
It is not even necessary to pinpoint who between Pinto and
Buenaflor actually caused the death of Richard or the
wounding of Maria Theresa in the presence of proof beyond
reasonable doubt that they acted in conspiracy with each
other. 121 Prior agreement between the appellants to lull
their intended victim is not essential to prove conspiracy as
the same may be inferred from their own acts showing joint
purpose and design. 122 In this case, such unity of purpose
and design is shown by the fact that only the two of them
fired their guns when the Anduiza jeep with the Tiongsons
passed by. This they did in defiance of the order of their

superior not to shoot unless ordered to do so. Conspiracy

having been proved, the guilt or culpability is imposable on
both appellants in equal degrees. 123
The same conspiracy was evident in the killing of Bello and
Andes. The appellants' concerted action was shown by the
manner by which they killed the two. In this incident,
however, they
invoke
self-defense as
a justifying
circumstance. Evidence at hand, however, do not favor their
claim.
Under Article 11 (1) of the Rules of Court, an accused must
prove the presence of all the following elements of said
exempting circumstance: (a) unlawful aggression, (b)
reasonable necessity of the means employed to prevent or
repel it, and (c) lack of sufficient provocation on the part of
the person defending himself. 124 The presence of unlawful
aggression is a condition sine qua non. There can be no selfdefense,
complete
or
incomplete,
unless
the victim has committed an unlawful aggression on the
person defending himself. 125
In this case, Buenaflor insists that he fired at Bello because,
after calling out to him to surrender, his shout was answered
by a gunshot. Pinto corroborates his story but the principal
prosecution eyewitness in this incident, Inocencia Malbas,
swears that she heard no such shout to surrender nor a
gunshot from Bello's direction before Bello was fired upon by
the appellants. Physical evidence as well as the testimonies of
Buenaflor himself and Pinto show that Inocencia, and not the
appellants, was telling the truth.
Rafael Seora, the NBI agent who went to Talahib and the
road to Mariawa to investigate as well as to take pictures,
found no bullet marks at the crime scene which would pertain
to a .22 caliber "paltik" firearm which Bello's men allegedly
used. 126 As no other "paltik" firearms were recovered from
the crime scene other than the two which Buenaflor
confiscated from Mostoles and Francisco Andes, the possibility
of said firearms or one of its kind having been used by Bello's
men against the appellant particularly the one who escaped is
nil.
Buenaflor claimed that the shot after his call to Bello belonged
to a high-powered gun 127 obviously referring to the firearms
recovered from Bello himself. According to Buenaflor however,
when he found the rifle, its magazine was "intact" and he did
not manipulate the rifle to know how many of its bullets had
been used. 128 Moreover, if Bello indeed fired a gun, it must
be the firearm in his holster and not the garand which was
found a couple of meters from where Bello had fallen. That
Bello did not fire any of his two firearms is buttressed by
Pinto's own testimony that Bello was smoking with his back
towards them when he was shot at and that at that moment,
he did not see Bello holding a gun. 129 We cannot help,
therefore, but conclude that the defense claim that
Buenaflor's call to Bello was answered by a gunshot is but a
figment of their imagination designed for their own
exoneration.
Appellants' claim of unlawful aggression on the part of Bello or
his men would have been clarified had any of Bello's men
whom they had captured been presented in court. These men,
Leoncio Mostoles, Francisco Andes, Domingo Bantique and
Ananias Andes had executed statements before the Legazpi

City police to the effect that they heard Buenaflor's call for
Bello to surrender and that Bello fired his gun at the
appellants. However, all four of them later executed
statements before the NBI retracting said earlier statements
in view of the fact that the police had threatened them to
make the statements favorable to the appellants. 130
As regards the unlawful aggression of Rosalio Andes against
Pinto, we find that if we are to believe Pinto, we have to stamp
full credibility on his statement alone. Even Buenaflor
admitted that he did not see Rosalio Andes attack
Pinto. 131 Inocencia swore that she did not see any weapon
near the fallen Rosalio. Indeed, if the aggression did occur,
Pinto would not have lost time in presenting in court the bolo
which Andes threatened to use on him. But granting that
Rosalio had a bolo, Pinto was not justified in inflicting the
wounds sustained by Rosalio because a mere threatening
attitude of the victim will not constitute unlawful
aggression. 132 Moreover, Pinto's testimony that Rosalio
menacingly approached him with a bolo after Buenaflor had
released a sunburst directed at the house where Bello was, is
contrary to human behavior if not totally ridiculous. On the
contrary, by his own admission, Pinto continued firing until he
saw Rosalio fell.
An accused who admits inflicting fatal injury on his victim and
invokes self-defense must rely on the strength of his own
evidence and not only on the weakness of that of the
prosecution for, even if weak, the prosecution evidence gains
more credibility. 133 Unfortunately, in this case, inspire of the
fact that the prosecution had only one eyewitness to the
killing of Bello and Andes, the appellants had not presented
sufficiently strong evidence to shore up their claim of selfdefense.
We agree with the trial court that treachery attended the
commission of all four crimes in this case. The killing of
Richard Tiongson, Francisco Bello and Rosalio Andes as well as
the wounding of Maria Theresa Tiongson were all so sudden
that all of them were left defenseless. This is shown not only
by the testimonial evidence on the commission of the crimes
but also by the nature and location of the wounds of all the
victims. 134 The presence of treachery qualifies the killings to
murder and the wounding of Maria Theresa to frustrated
murder. Nighttime, however, may not be appreciated as there
is no proof that it was specifically sought in the commission of
the crime and therefore we deem it absorbed by treachery.
Evident premeditation has not been proven beyond
reasonable doubt in this case but we find that the appellants
indeed took advantage of their public position in perpetrating
the crime. Under Article 248 of the Revised Penal Code,
murder is punishable by reclusion temporal in its maximum
period to death. There being no mitigating circumstance to
temper the penalty and there being only the aggravating
circumstance of taking advantage of their public office under
Article 14 (1) of the said Code, the proper penalty is
death. 135 However, in view the constitutional abolition of the
death penalty, the penalty of reclusion perpetua shall be
imposed on the appellants for each of the three murders they
committed.
For the wounding of Maria Theresa, the penalty imposable,
applying Article 50 of the Revised Penal Code, isprision
mayor maximum to reclusion temporal medium. There being

no reason to further lower the penalty by one degree pursuant

to the provision of Article 250, and there being one
aggravating circumstance and no mitigating circumstance,
the penalty should be within the range of prision
mayor maximum to reclusion temporal medium. Applying the
Indeterminate Sentence Law, 136 the proper penalty for the
frustrated murder of Maria Theresa is six (6) years of prision
correccional maximum as minimum to ten (10) years and one
(1) day of prision mayor maximum as maximum. The
indemnity of eight thousand pesos imposed by the lower court
should be respected considering that while there is evidence
as to the actual amount she spent while confined at the
Sacred Heart Hospital in Legazpi City, there is no proof as to
the expenses she incurred after she was transferred to the
Camp Crame Hospital in Quezon City.
As in all cases wherein peace officers are accused, this case
creates a feeling of frustration in everyone. The crimes
committed here ought to have no place in this democratic and
civilized society. True it is that a police officer is sometimes
left in a quandary when faced with a situation where a
decisive but legal action is needed. But, as this Court said
in Calderon vs. People and Court of Appeals (96 Phil. 216, 225
[1954]), "(t)he judgment and discretion of public officers, in
the performance of their duties, must be exercised neither
capriciously nor oppressively, but within reasonable limits. In
the absence of a clear and legal provision to the contrary,
they must act in conformity with the dictates of a sound
discretion, and with the spirit and purpose of the law." Police
officers must always bear in mind that although they are
dealing with criminal elements against whom society must be
protected, these criminals are also human beings with human
rights. In the words of then Justice Moran in theOanis case
(Supra):
It is, however, suggested that a notorious
criminal "must be taken by storm" without
regard to his right to life which he has by
such notoriety already forfeited. We may
approve of this standard of official conduct
where the criminal offers resistance or does
something which places his captors in
danger of imminent attack. Otherwise, we
cannot see how, as in the present case, the
mere fact of notoriety can make the life of a
criminal a mere trifle in the hands of officers
of the law. Notoriety rightly supplies a basis
for redoubled official alertness an vigilance;
it never can justify precipitate action at the
cost of human life. Where, as here, the
precipitate action of the appellants has cost
an innocent life and there exist no
circumstances whatsoever warrant action of
such character in the mind of a reasonably
prudent
man,
condemnationnot
condonation should be the rule; otherwise
we would offer a premium to crime in the
shelter of official actuation.
WHEREFORE, the decision of the lower court is hereby
affirmed subject to the modifications that appellants shall
solidarily be liable for the amount of Fifty Thousand (P50,000)
for each of the three murders they committed and, for the
frustrated murder of Maria Theresa Tiongson, each of them
shall suffer the indeterminate penalty of from six (6) years
of prision correccional maximum as minimum to ten (10)

years and
maximum.

one

(1)

day

of prision

mayormaximum

as

Inasmuch as appellant Daniel Pinto, Jr. had been a police

officer for only five months 137 when the crimes were
committed, let a copy of this decision be furnished the Office
of the President for whatever action may be proper to temper
his penalty. 138
SO ORDERED.
Davide, Jr. and Romero, JJ., concur.
Gutierrez, Jr., J., I concur but agree with Justice Bidin.

prosecution,
the
accused,
ORLANDO
ACURAM, is hereby found guilty beyond
reasonable doubt, of the crime of MURDER,
qualified by treachery, and is meted the
penalty
of reclusion
perpetua and
to
indemnify the heirs of the deceased
ROLANDO MANABAT the jurisprudential sum
of fifty thousand (P50,000.00) pesos,
without subsidiary imprisonment in case of
insolvency and to pay the cost of the suit.
SO ORDERED."[4]

SECOND DIVISION
[G.R. No. 117954. April 27, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ORLANDO ACURAM, accused-appellant.
DECISION
QUISUMBING, J.:
On appeal is the decision rendered on August 24, 1994, by the
Regional Trial Court of Cagayan de Oro City, Branch 22, in
Criminal Case No. 91-1161, finding accused-appellant Orlando
Acuram guilty of murder. Supreme
On September 30, 1991, Assistant Provincial Prosecutor
Benber Apepe charged appellant with the crime of murder,
allegedly committed as follows: Sjcj
"On June 29, 1991, at about 7:00 o'clock in
the evening, at Poblacion, El Salvador,
Misamis Oriental, which is within the
jurisdiction of the Honorable Court, the
above-named accused, with intent to kill
and treachery did, then and there, wilfully,
unlawfully and feloniously and with the use
of his armalite rifle, shoot at one
Orlando[1] Manabat who was just standing on
the highway waiting for a ride towards
home, thus, hitting and wounding the latter
on the right leg or thigh, which caused his
death the following day.
CONTRARY TO and in violation of Article
248, paragraph 1, of the Revised Penal
Code.[2]
Upon arraignment appellant, assisted by counsel, entered a
plea of not guilty to the charge.[3] Thereafter, trial on the
merits ensued. Subsequently, the trial court rendered
judgment, disposing as follows: Scjj
"WHEREFORE, in the light of the foregoing
facts,
convincingly
proved
by
the

The records disclose that on June 29, 1991, at around seven

o'clock in the evening, Rolando Manabat, Oscar Manabat,
Bartolome Nabe, and Peterson Valendres, after the day's
work, proceeded to the market in El Salvador, Misamis
Oriental, to buy fish. Since no fish was available at that time,
they decided to head for home instead. They went to the
national highway, stood at the right side facing east towards
the direction of Cagayan de Oro City and waited for a ride
there. They flagged down an approaching passenger jeepney
which, however, swerved dangerously towards them. At this
juncture, Rolando Manabat shouted at the jeep "Pesteng
yawa-a kamo, Manligis man kamo " (You devils, why did you
try to run over us?). A passenger inside the jeepney shouted
back, "Noano man diay, isog mo?" (Why? Are you brave?).
Immediately thereafter, two gunshots rang out in the air,
accompanied by sparks coming from the front right side of the
jeepney. Then Rolando shouted, "Agay. I was shot." The
vehicle did not stop but instead speeded towards the direction
of Cagayan de Oro City. Wounded on the right knee, Rolando
was brought by his companions to the Cagayan de Oro
Medical Center. Later on, they were informed that Rolando
needed blood transfusion and so they transferred him at
around 11:25 P.M. to the Northern Mindanao Regional Hospital
in the same city. Jjsc
Upon arrival at the hospital, Rolando was examined by Dr.
Ismael Naypa, Jr. The doctor found the victim's blood pressure
to be just forty over zero (40/0) and the victim's right leg was
heavily bandaged. He decided to operate on the victim when
the latter's blood pressure stabilized. At about 5:00 A.M. the
following day, the victim underwent surgery. Unfortunately,
the victim died at around 11:00 A.M. Dr. Naypa later testified
that the cause of Rolando's death was "secondary to huddle
respiratory syndrome secondary to blood loss, secondary to
gunshot wounds", or briefly, massive loss of blood due to
gunshot wound. He stated that under normal circumstances,
the wound would not necessarily cause death but in this case
where the wound transected the major part of the leg, the
wound was fatal. He clarified that the victim sustained only
one gunshot wound which entered at the front portion of the
right knee and exited at the back of the right knee, causing
two wounds.[5]
The El Salvador police conducted investigation on the
incident. It was discovered that appellant Orlando Acuram, a
policeman assigned with the 421st PNP Company based at
San Martin, Villanueva, Misamis Oriental, was among the
passengers of the errant jeepney. He was seated at the front,
right side of the jeepney and was the only one among its
passengers who was carrying a firearm. Pending investigation,
he was restricted to the camp effective July 1, 1991, upon
orders of his commanding officer, Major Rodolfo De La Piedra.

[6]

Appellant was later surrendered by his commanding officer

to the custody of the court on the basis of the warrant of
arrest issued by MCTC Judge Evelyn Nery.[7] On motion by the
prosecution and without objection from the defense, the trial
court suspended appellant from the service and ordered his
detention at the provincial jail.[8]
During the trial, appellant admitted that he was on board the
mentioned jeepney and had a gun at that time but denied
firing it. He claimed that it was impossible for him to fire his
rifle during that time since he was sitting at the front seat of
the jeepney, sandwiched between the driver and the latter's
father-in-law. Moreover, he said that the rifle was locked and
wrapped by his jacket and its barrel was even pointed towards
the driver.[9]
The trial court found the version of the defense weak, selfserving and unreliable. On the basis of the evidence
presented by the prosecution, the court found appellant guilty
as charged. Insisting on his innocence, appellant readily filed
his notice of appeal.[10] In his brief, appellant raises the
following errors allegedly committed by the trial court: Edpmis
"I
THE TRIAL COURT GRAVELY ERRED IN
CONCLUDING THAT ACCUSED APPELLANT
TOOK FLIGHT OR ESCAPED AFTER THE
NIGHT OF THE INCIDENT OR IN FAILING TO
CONSIDER THE MITIGATING CIRCUMSTANCE
OF VOLUNTARY SURRENDER.
II
THE TRIAL COURT ERRED IN DECLARING
THAT THE KILLING WAS ATTENDED BY THE
QUALIFYING CIRCUMSTANCE OF TREACHERY,
GRANTING ARGUENDO THAT THE ACCUSED
APPELLANT IS GUILTY.
III
THE TRIAL COURT ERRED IN RULING THAT
ACCUSED-APPELLANT IS THE PERPETRATOR
OF THE CRIME CHARGED, DESPITE THE FACT
THAT ACCUSED WAS NOT PROPERLY AND
CONCLUSIVELY
IDENTIFIED,
AND
THE
ALLEGED WEAPON NOT POSITIVELY TESTED.

To begin with, while appellant denies that he fled and hid after
the shooting incident, we find that his behavior proves
otherwise. Appellant admits that he was at the scene of the
crime at the time the shooting happened. Considering that he
is a law enforcement officer, the unusual incident should have
at least elicited his curiosity and he should have inquired
about it. However, he chose to ignore the incident and go his
way.[12] That a policeman could display such indifference to a
crime committed in his presence is highly incredible. While it
was true that he reported for duty the day after the incident,
the following day, he was ordered by his commanding officer
restricted within the camp pending investigation of the case.
By this time, appellant must have learned that his
commanding officer had received a radio message and that
he was already a suspect. As the trial court noted, no superior
officer will hold back from any of his men involved, such a
grave charge. Despite these, appellant did not present himself
before the police in El Salvador, Misamis Oriental. Instead, he
was conveniently nowhere to be found. Misoedp
Thus, appellant's first contention that he is entitled to the
mitigating circumstance of voluntary surrender, in our view, is
quite untenable. The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up
and submit himself unconditionally to the authorities either
because he acknowledges his guilt or he wishes to save them
the trouble and expense necessarily incurred in his search and
capture.[13] In this case, it was appellant's commanding officer
who surrendered him to the custody of the court. Being
restrained by one's superiors to stay within the camp without
submitting to the investigating authorities concerned, is not
tantamount to voluntary surrender as contemplated by law.
The trial court is correct in not appreciating the mitigating
circumstance
of
voluntary
surrender
in
appellant's
favor. Misedp
On his second assignment of error, however, we find
convincing merit. Appellant asserts that the trial court erred in
concluding that the killing was qualified by treachery. On this
point, we agree. For treachery to be considered an
aggravating circumstance, there must be proof that the
accused consciously adopted a mode of attack to facilitate the
perpetration of the killing without risk to himself. [14] In this
case, the shooting was done at the spur of the moment. As
observed by the trial court, the victim had shouted damning
curses at the driver and the passengers of the jeepney. The
shooting was on instantaneous response to the cursing, as
appellant
correctly
claimed.[15] Treachery
cannot
be
appreciated where the accused shot the victim as a result of a
rash and impetuous impulse rather than from a deliberate act
of the will.[16]

IV
THAT THE TRIAL COURT GRAVELY ERRED IN
DISREGARDING EVIDENCE POINTING TO THE
INNOCENCE OF THE ACCUSED-APPELLANT,
THAT IS, THE EXISTENCE OF EFFICIENT
INTERVENING CAUSE, WHICH IS THE
PROXIMATE CAUSE OF THE DEATH OF THE
VICTIM."[11]
We shall take up in seriatim the challenges posed by appellant
to the credibility and sufficiency of the evidence for the
prosecution. We shall also consider the weight and credibility
of his defense.

Thirdly, appellant contends that the trial court erred in ruling

that he was the perpetrator of the crime. He claims he was
not conclusively identified and the alleged fatal weapon was
not positively tested. True, prosecution witnesses did not
positively identify appellant as the one who fired the gun at
the victim. Nevertheless, direct evidence of the commission of
the crime is not the only matrix where the trial court may
draw its conclusions and findings of guilt.[17] 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.[18] Circumstantial evidence could be

of similar weight and probative value as direct evidence. From

direct evidence of a minor fact or facts, by a chain of
circumstances the mind is led intuitively, or by a conscious
process of reasoning, towards a conviction that from said fact
or facts some other facts may be validly inferred. [19] 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.[20]
As noted by the trial court and the Solicitor General, the
evidence for the prosecution is replete with details, duly
proven by the prosecution and to some extent by admissions
of the defense, enough to sustain the guilt of appellant. These
are: (1) The appellant was a former member of the Philippine
Constabulary and, during the incident, was a member of the
Philippine National Police. He was skilled in handling firearms.
(2) The appellant was issued a firearm (armalite rifle) by his
command, which he was then carrying with him before, during
and after the incident. (3) At the particular date, time and
place of the incident, appellant was carrying his duly issued
armalite rifle inside the jeepney from where the gunfire came
from. (4) The appellant was sitting on the extreme front-rightside of the jeepney where the sparks of the gunbursts were
seen and heard by the witnesses. (5) There were no other
persons with a rifle inside the jeepney except the appellant.
(6) The empty shells of an armalite rifle were recovered at the
place where the fatal shooting occurred. (7) The appellant did
not go forward to the authorities to present himself until after
a warrant of arrest was issued and, in fact, until his actual
arrest.[21]
The aforecited circumstances taken together constitute an
unbroken chain leading to a reasonable conclusion that
appellant, to the exclusion of others, was responsible for the
victim's death. They constitute proof beyond reasonable
doubt that appellant was the perpetrator of the offense. It is
the height of desperation on appellant's part to insist that
there should be an eyewitness to the precise moment the shot
was fired considering the sudden and completely unexpected
shooting of the victim.[22] Here, circumstantial evidence
suffices. Edp
Appellant's insistence on his innocence in view of the absence
of paraffin and ballistic tests, in our view, is far from
convincing. Suffice it to state that even negative findings of
the paraffin test do not conclusively show that a person did
not fire a gun. The absence of nitrates could be explained if a
person discharged a firearm with gloves on, or if he
thoroughly washed his hands thereafter.[23]
Lastly, in his attempt to exculpate himself, appellant blames
the death of the victim on the lack of prompt and proper
medical attention given. He insists that the delay in giving
proper medical attendance to the victim constitutes an
efficient intervening cause which exempts him from criminal
responsibility. This assertion is disingenuous, to say the least.
Appellant never introduced proof to support his allegation that
the attending doctors in this case were negligent in treating
the victim. On the contrary, Dr. Ismael Naypa, Jr., testified that
the attending doctor at the Cagayan de Oro Medical Center
tried his best in treating the victim by applying bandage on
the injured leg to prevent hemorrhage. He added that the
victim was immediately given blood transfusion at the

Northern Mindanao Regional Hospital when the doctor found

out that the victim had a very low blood pressure. Thereafter,
the victim's blood pressure stabilized. Then, the doctor
operated the victim as the main blood vessel of the victim's
right leg was cut, thereby causing massive loss of blood. The
surgery was finished in three hours. Unfortunately, the victim
died hours later. We cannot hold the attending doctors liable
for the death of the victim. The perceived delay in giving
medical treatment to the victim does not break at all the
causal connection between the wrongful act of the appellant
and the injuries sustained by the victim. It does not constitute
efficient intervening cause. The proximate cause of the death
of the deceased is the shooting by the appellant. It is settled
that anyone inflicting injuries is responsible for all the
consequences of his criminal act such as death that
supervenes in consequence of the injuries. The fact that the
injured did not receive proper medical attendance would not
affect appellant's criminal responsibility. The rule is founded
on the practical policy of closing to the wrongdoer a
convenient avenue of escape from the just consequences of
his wrongful act. If the rule were otherwise, many criminals
could avoid just accounting for their acts by merely
establishing a doubt as to the immediate cause of death.[24]
To conclude, since the qualifying circumstance was not 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 is neither aggravating nor mitigating circumstance
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. Edpsc
WHEREFORE, the assailed DECISION of the Regional Trial
Court of Cagayan de Oro City, Branch 22, in Criminal Case No.
91-1161, is hereby MODIFIED. Appellant Orlando Acuram is
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 Rolando Manabat in the amount of P50,000.00,
without subsidiary imprisonment in case of insolvency, and to
pay the costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr.,
JJ., concur

judgment of the Regional Trial Court, Branch XIV, Oroquieta

City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge
Pangasian, Santos Tubio and Avelino Daligdig went to Salvador
Mandaya's house in Katugasan, Lopez Jaena, Misamis
Occidental and asked him to go with them to the house of
Bernardina Palangpangan. Thereafter, Mandaya and Intod,
Pangasian, Tubio and Daligdig had a meeting with Aniceto
Dumalagan. He told Mandaya that he wanted Palangpangan
to be killed because of a land dispute between them and that
Mandaya should accompany the four (4) men, otherwise, he
would also be killed.
At about 10:00 o'clock in the evening of the same day,
Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed
with firearms, arrived at Palangpangan's house in Katugasan,
Lopez Jaena, Misamis Occidental. At the instance of his
companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig
fired at said room. It turned out, however, that Palangpangan
was in another City and her home was then occupied by her
son-in-law and his family. No one was in the room when the
accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by
witnesses. One witness testified that before the five men left
the premises, they shouted: "We will kill you (the witness) and
especially Bernardina Palangpangan and we will come back if
(sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of
attempted murder. The court (RTC), as affirmed by the Court
of Appeals, holding that Petitioner was guilty of attempted
murder. Petitioner seeks from this Court a modification of the
judgment by holding him liable only for an impossible
crime, citing Article 4(2) of the Revised Penal Code which
provides:

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals 1 affirming in toto the

Art. 4(2). CRIMINAL RESPONSIBILITY.

Criminal Responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or on
account of the employment of inadequate or
ineffectual means.
Petitioner contends that, Palangpangan's absence
from her room on the night he and his companions
riddled it with bullets made the crime inherently
impossible.
On the other hand, Respondent People of the Philippines
argues that the crime was not impossible. Instead, the facts
were sufficient to constitute an attempt and to convict Intod
for attempted murder. Respondent alleged that there was
intent. Further, in its Comment to the Petition, respondent
pointed out that:

. . . The crime of murder was not

consummated, not because of the inherent
impossibility of its accomplishment (Art.
4(2), Revised Penal Code), but due to a
cause or accident other than petitioner's
and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did
not sleep at her house at that time. Had it
not been for this fact, the crime is possible,
not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal
Code. This seeks to remedy the void in the Old Penal Code
where:
. . . it was necessary that the execution of
the act has been commenced, that the
person conceiving the idea should have set
about
doing
the
deed,
employing
appropriate means in order that his intent
might become a reality, and finally, that the
result or end contemplated shall have been
physically possible. So long as these
conditions were not present, the law and the
courts did not hold him criminally liable. 5
This
legal
doctrine
left
social
interests
entirely
unprotected. 6 The Revised Penal Code, inspired by the
Positivist
School,
recognizes
in
the
offender
his
formidability, 7 and now penalizes an act which were it not
aimed at something quite impossible or carried out with
means which prove inadequate, would constitute a felony
against person or against property. 8 The rationale of Article
4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot
produce an offense against person or property because: (1)
the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a)
inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission
of the offense is inherently impossible of accomplishment is
the focus of this petition. To be impossible under this clause,
the act intended by the offender must be by its nature one
impossible of accomplishment. 11 There must be either
impossibility of accomplishing the intended act 12 in order to
qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if
completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those
circumstances where (1) the motive, desire
and expectation is to perform an act in
violation of the law; (2) there is intention to
perform the physical act; (3) there is a
performance of the intended physical act;
and (4) the consequence resulting from the
intended act does not amount to a crime. 14
The impossibility of killing a person already dead
category.

15

falls in this

On the other hand, factual impossibility occurs when

extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended
crime. 16 One example is the man who puts his hand in the
coat pocket of another with the intention to steal the latter's
wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the
place where he thought his victim would be, although in
reality, the victim was not present in said place and thus, the
petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this
one. In People vs. Lee Kong, 18 the accused, with intent to kill,
aimed and fired at the spot where he thought the police
officer would be. It turned out, however, that the latter was in
a different place. The accused failed to hit him and to achieve
his intent. The Court convicted the accused of an attempt to
kill. It held that:
The fact that the officer was not at the spot
where the attacking party imagined where
he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It
is well settled principle of criminal law in
this country that where the criminal result of
an attempt is not accomplished simply
because of an obstruction in the way of the
thing to be operated upon, and these facts
are unknown to the aggressor at the time,
the criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to
accomplish his intent to kill the victim because the latter did
not pass by the place where he was lying-in wait, the court
held him liable for attempted murder. The court explained
that:
It was no fault of Strokes that the crime was
not committed. . . . It only became
impossible by reason of the extraneous
circumstance that Lane did not go that way;
and further, that he was arrested and
prevented from committing the murder. This
rule of the law has application only where it
is inherently impossible to commit the
crime. It has no application to a case where
it becomes impossible for the crime to be
committed, either by outside interference or
because of miscalculation as to a supposed
opportunity to commit the crime which fails
to materialize; in short it has no application
to the case when the impossibility grows out
of extraneous acts not within the control of
the party.
In the case of Clark vs. State, 20 the court held defendant
liable for attempted robbery even if there was nothing to rob.
In disposing of the case, the court quoted Mr. Justice Bishop,
to wit:
It being an accepted truth that defendant
deserves punishment by reason of his
criminal intent, no one can seriously doubt

that the protection of the public requires the

punishment to be administered, equally
whether in the unseen depths of the pocket,
etc., what was supposed to exist was really
present or not. The community suffers from
the mere alarm of crime. Again: Where the
thing intended (attempted) as a crime and
what is done is a sort to create alarm, in
other words, excite apprehension that the
evil; intention will be carried out, the
incipient act which the law of attempt takes
cognizance of is in reason committed.
21

In State vs. Mitchell, defendant, with intent to kill, fired at

the window of victim's room thinking that the latter was
inside. However, at that moment, the victim was in another
part of the house. The court convicted the accused of
attempted murder.
The aforecited cases are the same cases which have been
relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However,
we cannot rely upon these decisions to resolve the issue at
hand. There is a difference between the Philippine and the
American laws regarding the concept and appreciation of
impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made the
punishable. Whereas, in the United States, the Code of Crimes
and Criminal Procedure is silent regarding this matter. What it
provided for were attempts of the crimes enumerated in the
said Code. Furthermore, in said jurisdiction, the impossibility
of committing the offense is merely a defense to an attempt
charge. In this regard, commentators and the cases generally
divide the impossibility defense into two categories: legal
versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court
held that:
. . . factual impossibility of the commission
of the crime is not a defense. If the crime
could have been committed had the
circumstances been as the defendant
believed them to be, it is no defense that in
reality the crime was impossible of
commission.
Legal impossibility, on the other hand, is a defense which can
be invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to
smuggle letters into and out of prison. The law governing the
matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to
send a letter without the latter's knowledge and consent and
the act was performed. However, unknown to him, the
transmittal was achieved with the warden's knowledge and
consent. The lower court held the accused liable for attempt
but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested by the
Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing
of this contention, the Court held that the federal statutes did
not contain such provision, and thus, following the principle of

legality, no person could be criminally liable for an act which

was not made criminal by law. Further, it said:
Congress has not yet enacted a law that
provides that intent plus act plus conduct
constitutes
the
offense
of
attempt
irrespective of legal impossibility until such
time as such legislative changes in the law
take place, this court will not fashion a new
non-statutory law of criminal attempt.
To restate, in the United States, where the offense sought to
be committed is factually impossible or accomplishment, the
offender cannot escape criminal liability. He can be convicted
of an attempt to commit the substantive crime where the
elements of attempt are satisfied. It appears, therefore, that
the act is penalized, not as an impossible crime, but as an
attempt to commit a crime. On the other hand, where the
offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime neither for an attempt
not for an impossible crime. The only reason for this is that in
American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a
crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction,
impossible crimes are recognized. The impossibility of
accomplishing the criminal intent is not merely a defense, but
an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal
Code makes no distinction between factual or physical
impossibility and legal impossibility. Ubi lex non distinguit nec
nos distinguere debemos.
The factual situation in the case at bar present a physical
impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the
Revised Penal Code, such is sufficient to make the act an
impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was
a supervening cause independent of the actor's will, will
render useless the provision in Article 4, which makes a
person criminally liable for an act "which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment . . ." In that case all
circumstances which prevented the consummation of the
offense will be treated as an accident independent of the
actor's will which is an element of attempted and frustrated
felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby
GRANTED, the decision of respondent Court of Appeals
holding Petitioner guilty of Attempted Murder is hereby
MODIFIED. We hereby hold Petitioner guilty of an impossible
crime as defined and penalized in Articles 4, paragraph 2, and
59 of the Revised Penal Code, respectively. Having in mind the
social danger and degree of criminality shown by Petitioner,
this Court sentences him to suffer the penalty of six (6)
months ofarresto mayor, together with the accessory
penalties provided by the law, and to pay the costs.
SO ORDERED.

Feliciano, Regalado and Nocon, JJ., concur.

Narvasa, C.J., is on leave.

FIRST DIVISION
[G.R. No. 116488. May 31, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. AARON FLORES @ RONITO, SULPECIO
SILPAO y ORTEGA @ SULPING and EDGAR
VILLERAN y MAGBANUA, accused-appellants.
DECISION
YNARES-SANTIAGO, J.:

Sgt. Wennie Tampioc, Detachment Commander of the

7th Infantry Brigade detailed at Barangay Tabu, Ilog, Negros
Occidental, and three (3) members of the local Citizen Armed
Force Geographical Unit (CAFGU) under his supervision,
namely, Aaron Flores alias Ronito, Sulpecio Silpao y
Ortega alias Sulping and Edgar Villeran y Magbanua, were
charged before the Regional Trial Court of Kabankalan, Negros
Occidental, Branch 61, with Kidnapping and Serious Illegal
Detention. The Information charged as follows:
That on or about the 29 th day of September, 1992, in the
Municipality of Ilog, Province of Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with high powered firearms
conspiring, confederating and helping one another, by means
of force, violence and intimidation, did then and there,
willfully, unlawfully and feloniously take, kidnap, detain and
keep under guard one SAMSON SAYAM y GEPANAO from Km
117, Hda. Shangrella (sic), Brgy. Tabu, of the above-named
municipality, and bring the latter to their detachment at Brgy.
Tabu, under restraint and against his will, without proper
authority thereof, thereby depriving said victim of his civil
liberty since then up to the present.
CONTRARY TO LAW.[1]
All the four accused pleaded Not Guilty when
arraigned. Trial ensued and, based on the testimonial
evidence presented, the trial court found the following
antecedent facts to be undisputed.
On the night of September 29, 1992, the victim, Samson
Sayam, was drinking beer at the store owned by Terry
Cabrillos
located
at
Barangay
Tabu,
Ilog,
Negros
Occidental. Sgt. Wennie Tampioc, Aaron Flores, Sulpecio
Silpao and Edgar Villeran were at the same store drinking
beer. Sayam joined the four accused at their table. Sometime
later, all the accused and the victim left the store and walked
towards
the
direction
of the
military
detachment
headquarters. After the accused left the store with Samson
Sayam, witnesses heard a single gunshot followed by rapid
firing coming from the direction of the detachment
headquarters.[2] That was the last time Samson Sayam was
seen, and despite diligent efforts of Sayams mother and
relatives, he has not been found.
It was the prosecutions contention that on that fateful
evening, all four accused hatched a conspiracy to kidnap the
victim and thereafter detain him at the detachment
headquarters. They allegedly succeeded in their plot and, the
prosecution avers, to this day the accused have not released
Samson Sayam. All the accused, however, vehemently denied
committing the acts charged.
The trial court held that the testimonial evidence failed
to prove beyond reasonable doubt the existence of a
conspiracy among the four accused. More specifically, the
prosecution failed to show an apparent common design by
and among the accused to kidnap and detain Samson Sayam
against his will. Thus, the trial court proceeded to determine
the individual liabilities of the four accused based on the
degree of their participation in the commission of the offense
charged.

The trial court gave credence to the prosecutions

evidence that Samson Sayam was seen being forcibly
dragged out of the store and pulled towards the direction of
the detachment headquarters by accused Aaron Flores,
Sulpecio Silpao and Edgar Villeran. Since Samson Sayam had
not been seen nor heard from since then, the trial court held
that the three accused were responsible for the formers
disappearance.
As regards Wennie Tampioc, the trial court found that he
left the store ahead of the three (3) co-accused and, thus, had
nothing to do with the disappearance of Samson
Sayam. Notably, none of the prosecution witnesses
specifically or categorically mentioned Tampioc as among
those who actively participated in bringing Samson Sayam by
force to their headquarters. Unlike his co-accused who are
natives of the place of the incident, Wennie Tampioc was
newly assigned as Detachment Commander and did not know
Samson Sayam, such that no ill-motive was attributed to him
by the trial court. Likewise, the testimonies of prosecution
witnesses Nelson Golez, on the one hand, and that of Carlos
Manlangit, on the other hand, conflict as to the kind of firearm
allegedly carried by Tampioc. While Golez stated that he was
armed with an Armalite rifle,[3]Manlangit testified that Tampioc
was armed with a short firearm.[4]
More importantly, the trial court found that the identity
of Sgt. Tampioc as one of the perpetrators of the crime was
doubtful, because notwithstanding the fact that Nelson Golez
knew Wennie Tampioc even before September 29, 1992, [5] the
original complaint filed before the Municipal Circuit Trial Court
of Ilog Candoni, dated October 21, 1992, which was based on
the affidavits of Golez and Carlito Manlingit, did not mention
Wennie Tampioc as one of the respondents. The said affidavits
merely mentioned an unidentified member of the 7 th IB,
Philippine Army, assigned at Brgy. Tabu, detachment. At the
time of the execution of the affidavits, the witnesses could
have known that Wennie Tampioc was a sergeant, and that he
was the commander of the detachment. Finally, the
straightforward and emphatic manner in which Wennie
Tampioc testified inspired belief in the trial courts mind.[6]
On December 8, 1993, the trial court rendered the
assailed judgment, the dispositive portion of which states:
WHEREFORE, premises considered, this Court finds the
accused Aaron Flores, Edgar Villeran and Sulpecio Silpao
GUILTY beyond reasonable doubt of the crime of kidnapping
and serious illegal detention as defined and penalized in
Article 267 of the Revised Penal Code and are each sentenced
to suffer the penalty of Reclusion Perpetua; and there being
no proof that Samson Sayam is dead, they are ordered to pay
him jointly and severally, or, in the alternative, his heirs the
sum of Fifty Thousand (P50,000.00) Pesos as damages,
without subsidiary imprisonment in case of insolvency and to
pay the costs of this suit.
The accused Wennie Tampioc is ACQUITTED on grounds of
reasonable doubt.
The bail bonds of the said accused are ordered cancelled and
the convicted accused ordered confined pending appeal if
they so file an appeal, in accordance with Administrative
Circular No. 2-92, dated January 20, 1992 of the Supreme
Court.

SO ORDERED.[7]
Two (2) separate appeals were brought before
us. Accused-appellant Sulpecio Silpao raised the following
errors:
I.

THE TRIAL COURT ERRED IN CONVICTING

ACCUSED-APPELLANT SULPECIO SILPAO OF THE
CRIME OF KIDNAPPING AND SERIOUS ILLEGAL
DETENTION, UNDER ARTICLE 267, REVISED
PENAL CODE.

II. THE TRIAL COURT ERRED IN HOLDING THE

ACCUSED-APPELLANT CAFGU SULPECIO SILPAO,
AS AMONG THOSE WHO FORCIBLY BROUGHT
SAMSON SAYAM TO THEIR HEADQUARTERS IN
THE EVENING OF 29 SEPTEMBER 1992 AND
RESPONSIBLE
FOR
SAMSON
SAYAMS
DISAPPEARANCE.
III. THE TRIAL COURT ERRED IN FINDING ACCUSEDAPPELLANT CAFGU SULPECIO SILPAO GUILTY
BEYOND REASONABLE DOUBT OF THE OFFENSE
CHARGED.
On the other hand, accused-appellants Aaron Flores and
Edgar Villeran interposed a joint appeal based on the sole
error that:
THE TRIAL COURT ERRED IN FINDING ACCUSEDAPPELLANTS AARON FLORES AND EDGAR VILLERAN
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
KIDNAPPING AND SERIOUS ILLEGAL DETENTION BASED
ON CIRCUMSTANTIAL AND INSUFFICIENT EVIDENCE.
After a thorough review of the facts and evidence
adduced before the trial court, we find that accusedappellants should be acquitted of the offense charged against
them.
The crime of Kidnapping and Serious Illegal Detention is
defined and penalized under Article 267 of the Revised Penal
Code, as amended by Republic Act No. 7659. The elements of
the offense are:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any
other manner deprives the latter of his liberty.
3. That the act of detention or kidnapping must
be illegal.
4. That in the commission of the offense, any of the
following circumstances are present:
(a) That the kidnapping or detention lasts for
more than 3 days;
(b) That it is
authority;

committed

simulating

public

(c) That any serious physical injuries are

inflicted upon the person kidnapped or
detained or threats to kill him are made; or
(d) That the person kidnapped is a minor,
female or public officer.[8]
Clearly, accused-appellants cannot be charged with or
convicted of the crime of Kidnapping and Serious Illegal
Detention, since the first element of the said crime is that the
offender must be a private individual. In the case at bar,
accused-appellants were members of the local CAFGU at the
time the alleged crime was committed.
The CAFGU was created pursuant to Executive Order No.
264 for the purpose of complementing the operations of the
regular force formations in a locality. [9] It was composed of
civilian volunteers who were tasked to maintain peace and
order in their localities, as well as to respond to threats to
national security. As such, they were provided with weapons,
and given the authority to detain or order detention of
individuals.[10]
The Solicitor General recognizes the error of charging
and convicting accused-appellants of Kidnapping and Serious
Illegal Detention for the reason that the appellants are not
private individuals, but public officers. As such, the Solicitor
General submits that, under the facts alleged, accusedappellants can only be liable for the crime of Arbitrary
Detention, defined and penalized in Article 124 of the Revised
Penal Code. The prosecution maintains that inasmuch as all
the other elements of Arbitrary Detention were alleged in the
criminal information filed against the accused-appellants, they
may still be convicted of said crime.
Arbitrary detention is committed by any public officer or
employee who, without legal grounds, detains a person.
[11]
Since it is settled that accused-appellants are public
officers, the question that remains to be resolved is whether
or not the evidence adduced before the trial court proved that
Samson Sayam was arbitrarily detained by accusedappellants.
As far back as the case of U.S. v. Cabanag,[12] it was held
that in the crime of illegal or arbitrary detention, it is essential
that there is actual confinement or restriction of the person of
the offended party. The deprivation of liberty must be proved,
[13]
just as the intent of the accused to deprive the victim of his
liberty must also be established by indubitable proof. [14]1 In the
more recent case of People v. Fajardo,[15] this Court reiterated
the
ruling
in U.S.
v.
Cabanag, i.e., there
must
be
uncontroverted proof of both intent to deprive the victim of
his liberty, as well as actual confinement or restriction.
Detention is defined as the actual confinement of a
person in an enclosure, or in any manner detaining and
depriving him of his liberty.[16] A careful review of the records
of the instant case shows no evidence sufficient to prove that
Samson Sayam was detained arbitrarily by accusedappellants. While the prosecution witnesses testified that
accused-appellants were seen walking with Samson Sayam
toward the direction of the detachment headquarters, there is
no shred of evidence that he was actually confined there or
anywhere else. The fact that Samson Sayam has not been

seen or heard from since he was last seen with accusedappellants does not prove that he was detained and deprived
of his liberty. The prosecution, however, argues that Samson
Sayam was deprived of his liberty when accused-appellants
forced him to go with them when they left the store of Jerry
Cabrillos and brought him to the detachment headquarters.
We assayed the testimonies of the prosecutions main
witnesses, namely, Carlito Manlangit and his son Jerry
Manlangit. Carlito Manlangits testimony was offered to prove
that Samson Sayam was forcibly taken from the store and that
the latter tried his best to free himself from his abductors. And
yet, all that Carlito testified to was that he saw Samson
Sayam crossing the street alone from the store of a certain
Moleng; that the four accused, who were armed, followed
Sayam and asked for his residence certificate; that the four
accused apprehended Samson Sayam and brought him to the
detachment headquarters; and that he went home after he
saw Samson Sayam talking to the accused. [17]
It is readily apparent that Carlito Manlangits testimony
failed to prove the stated purpose thereof, i.e., that Samson
Sayam was taken forcibly to the detachment headquarters. To
be sure, the witness did not state that Samson Sayam was
pulled, dragged, or coerced to go with accusedappellants. Neither did he say that Samson Sayam was taken
at gunpoint. There is also no relevant testimony to the effect
that Samson Sayam tried his best to free himself from the
clutches of accused-appellants. For if that were the truth, the
reactions of Carlito Manlangit do not conform to human
experience. If he really witnessed Samson Sayam being
apprehended, forcibly taken, and trying to free himself, it
cannot be logically explained why Carlito Manlangit just went
home,[18] instead of doing anything to help Samson Sayam. He
admitted that he did not immediately report the incident to
the authorities.[19] More telling is the absence of testimony to
the effect that Samson Sayam was being taken to the
detachment headquarters against his will, that he was
protesting his apprehension, or that he was asking for help,
considering that there were other people within hearing and
seeing distance. Most damaging is Carlito Manlangits
statement that he did not see Samson Sayam in the
detachment headquarters with any or all of the accused. [20] In
fine, Carlito Manlangits testimony failed to prove that Samson
Sayam was arbitrarily detained or deprived of his liberty.
Jerry Manlangit, son of Carlito, also testified for the
proseuction. According to him, he and Samson Sayam went to
Barangay Tabu to have a sack of palay milled on September
29, 1992. At around six in the evening, while on their way
home, they passed by the store of Terry Cabrillos to buy
kerosene. There, he saw the four accused drinking
beer. Samson Sayam told him to go home because he had to
show his residence certificate and barangay clearance to
accused-appellant
Aaron
Flores. Jerry
Manlangit
then
proceeded to his residence in Hacienda Shangrila, located
about half a kilometer away from the center of Barangay
Tabu. Later, he told his father that Samson Sayam stayed
behind and asked him to fetch Samson. He also testified that
he heard gunshots coming from the direction of the
detachment headquarters.[21]
The testimony of Jerry Manlangit does not prove any of
the elements of the crime of arbitrary detention. Neither does
it support nor corroborate the testimony of his father, Carlito,

for they dealt on a different set of facts. Jerry Manlangit did

not see any of accused-appellant apprehend or detain Samson
Sayam. He did not even see if accused-appellant Flores really
inspected the residence certificate and barangay clearance of
Samson Sayam. The rest of his testimony comprised of
hearsay evidence,[22] which has no probative value.[23] In
summary, Jerry Manlangits testimony failed to establish that
accused-appellants were guilty of arbitrary detention.
The prosecution also presented the testimony of Nelson
Golez, who identified the four accused as the persons with
Samson Sayam, drinking inside the store of Terry Cabrillos. He
also stated that following a heated argument, the accused
and Samson Sayam left the store and went towards the
direction of the detachment headquarters. He said that the
accused were holding and pulling Samson Sayam towards the
road. Ten minutes later, Nelson Golez heard a single gunshot
followed by rapid firing.[24]
On cross-examination, however, Nelson Golez did not
affirm his earlier statement that the accused and Samson
Sayam were engaged in a heated argument. Rather, he said
he did not hear them arguing as they were leaving the
store. Although Nelson Golez attested that Samson Sayam
was protesting while the accused were dragging him, he did
not do anything to help Samson Sayam, who happened to be
his cousin.[25]
Again, no conclusion of guilt can be inferred from Nelson
Golezs testimony. First of all, he was unsure of his assertion
that there was an argument. The mere fact that Samson
Sayam was being dragged towards the road does not
constitute arbitrary detention. There is no showing that
Samson Sayam was completely deprived of his liberty such
that he could not free himself from the grip of the accused, if
he was indeed being held against his will. The incident
transpired in a public place, where there were people milling
about, many of whom were his friends. It is puzzling that
Samson Sayam did not cry out for help. Nobody bothered to
report the incident, if indeed it happened, to the barangay
authorities. No one else came forward to corroborate the
testimony of Nelson Golez.
The testimony of Nelson Golez, by itself, lacks
credibility. He wavered on material points, even as the
prosecution failed to substantiate by direct or corroborative
evidence the bare testimony of Nelson Golez.
It is basic and elemental that in criminal prosecutions,
before the accused may be convicted of a crime, his guilt
must be proven beyond reasonable doubt. Although the
findings of fact made by trial courts are generally not
disturbed on appeal, if there are substantial facts which were
overlooked but which may alter the results of the case in favor
of the accused, such facts should be taken into account by the
appellate court.[26] And where it appears that the trial court
erred in the appreciation of the evidence on record or the lack
of it, the factual findings of the trial court may be reversed. [27]
After thoroughly reviewing the records of this case and
weighing the testimonial evidence on the scale of
creditworthiness and materiality, this Court finds the evidence
of the prosecution grossly insufficient to sustain a
conviction. Again, the fact of detention, whether illegal or
arbitrary, was not clearly established by credible

evidence. There was no showing that Samson Sayam was

locked up, restrained of his freedom, or prevented from
communicating with anyone. Likewise, there was no proof that
there was actual intent on the part of accused-appellants to
arbitrarily deprive Samson Sayam of his liberty. It is necessary
that there must be a purposeful or knowing action by
accused-appellants to restrain the victim by or with force,
because taking coupled with intent completes the crime of
illegal or arbitrary detention.[28]
The prosecution, however, maintains that the evidence,
even though circumstantial, sufficiently establishes the guilt
of
the
accused-appellants. It
cites
the
following
circumstances:
1. On September 29, 1992, at about 6:00 oclock in the
evening, accused-appellants, together with their companions
Sergeant Tampioc and fellow CAFGU Sulpecio Silpao, were
seen with Samson at the store of Terry Cabrillos. Accusedappellants were having a drinking spree. Later, they were
seen engaged in a heated argument.
2. Thereafter, Samson was forcibly brought out of the store by
accused-appellants by holding and pulling him towards the
road. From another angle, another prosecution witness saw
accused-appellants on the road arresting Samson.
3. Accused-appellants brought Samson towards the direction
of the detachment of Brgy. Tabu.
4. Ten (10) minutes later, a gunshot was heard coming from
the direction of the detachment followed by rapid firing.
5. After the incident, Samson was never seen again or heard
from.[29]
As
already
discussed,
the
above-enumerated
circumstances were not established by clear and convincing
evidence. And even if these acts were proven to be true, the
combination of all these circumstances would still not be able
to produce a conviction beyond reasonable doubt. To our
mind, the totality of these circumstantial evidence do not
constitute an unbroken chain pointing to the fair and
reasonable conclusion that the accused-appellants are guilty
of the crime charged.
For circumstantial evidence to be sufficient to support a
conviction, all the circumstances must be consistent with the
hypothesis that the accused-appellants are guilty, and
inconsistent with the possibility that they are innocent.
[30]
Thus:
Section
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.[31]
The rule is clear that there must be at least two proven
circumstances which in complete sequence leads to no other
logical conclusion than that of the guilt of the accused. [32] It is
admitted that Samson Sayam was seen drinking with
accused-appellants on that fateful night. However, the
circumstances that there was a heated argument among
them, and that the accused-appellants held and pulled
Samson Sayam to the road and brought him towards the
direction of the detachment headquarters was not sufficiently
proven by material or relevant testimony.
Moreover, the circumstance that gunshots were heard on
that night have no relevancy to the case. Even if it were, it
cannot be concluded that the gunshots came from the
direction of the detachment headquarters. The witnesses who
testified that they heard the gunshots were at least half a
kilometer away from the center of the barangay, while the
detachment headquarters itself was also some distance from
the barangay. At night, especially in the rural areas when all is
quiet, loud sounds such as gunshots reverberate and would
seem to come from every direction. An ordinary person a
kilometer away cannot, with certainty, point to the exact
location where the gunshots would be coming from. That
would otherwise be attributing expertise on such matters to
the prosecution witnesses.
That Samson Sayam was never seen or heard from again
cannot be the basis for the trial court to render judgment
convicting the accused-appellants. In fact, it has no bearing in
this case because it is not one of the elements of the crime of
arbitrary
detention. Consequently,
only
one
relevant
circumstance was proved, i.e., that accused-appellants were
the last persons seen with Samson Sayam. However, said
circumstance does not necessarily prove that they feloniously
abducted him, then arbitrarily detained him.[33]
Moreover, mere suspicion that the disappearance of
Samson Sayam was a result of accused-appellants alleged
criminal acts and intentions is insufficient to convict
them. Proof beyond reasonable doubt is the required quantum
of evidence.[34] An uncorroborated circumstantial evidence is
certainly not sufficient for conviction when the evidence itself
is in serious doubt.[35] The prosecution was not able to prove a
possible motive why accused-appellants would arbitrarily
detain Samson Sayam. In sum, there is no unbroken chain of
circumstances leading to the conclusion that accusedappellants are guilty. Since the pieces of circumstantial
evidence do not fulfill the test of moral certainty that is
sufficient to support a judgment or conviction, the Court must
acquit the accused.[36]
In the recent case of People v. Comesario,[37]3 we had
occasion to rule that:
Accused-appellants conviction by the trial court hinged on
circumstantial evidence. To validly invoke circumstantial
evidence, it must be shown that there is more than one
circumstance and the facts from which the inferences are
derived are proven. The combination of all the circumstances
is such as to produce a conviction beyond reasonable
doubt. The circumstances must constitute an unbroken chain

of events that can lead reasonably to the conclusion pointing

to the accused to the exclusion of all others as the author of
the crime. Logically, it is where the evidence is purely
circumstantial that there should be an even greater need than
usual to apply with vigor the rule that the prosecution cannot
depend on the weakness of the defense and that any
conviction must rest on nothing less than a moral certainty of
guilt of the accused. Like a tapestry made of strands which
create a pattern when interwoven, a judgment of conviction
based on circumstantial evidence can be upheld only if the
circumstances proved constitute an unbroken chain which
leads to one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty person.
Accused-appellants enjoy the presumption of innocence
until the contrary is proved. In the case at bar, the pieces of
testimonial evidence relied on by the prosecution and the trial
court to support a conviction have failed to overcome the
constitutional precept of the presumed innocence of accusedappellants. Among other grounds, not only is there a lot of
room for reasonable doubt in regard to their guilt, there is a
virtual dearth of convincing evidence to prove that a crime
had been committed.
There is no need even to assess the evidence of the
defense, for the prosecution bears the onus to distinctly and
indubitably prove that a crime had been committed by
accused-appellants.[38] It is incumbent upon the prosecution to
establish its case with that degree of proof which leads to no
other conclusion but conviction in an unprejudiced mind. The
evidence for the prosecution must stand or fall on its own
merits for it cannot be allowed to draw strength from the
weakness of the evidence for the defense. [39] Clearly, the
prosecution in this case has failed to prove the guilt of
accused-appellants beyond reasonable doubt. In similar cases,
this Court has often and consistently ruled that it is better to
acquit a guilty person than to convict an innocent one. [40]
WHEREFORE, the assailed decision is REVERSED and
SET ASIDE. Accused-appellants are ACQUITTED. Unless being
held or detained for some lawful reason, accused-appellants
are ORDERED RELEASED immediately. The Director of Prisons
is DIRECTED to inform this Court, within five (5) days from
notice, of the date and time when accused-appellants are
released pursuant to this Decision.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Puno, and Pardo, JJ., concur.
Kapunan, J., on leave.

THIRD DIVISION
[G.R. No. 88043. December 9, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ANTONIO PAREJA, JOSE TOLEDO and JOHN
DOE, accuseds,
JOSE TOLEDO, accused-appellant.
DECISION
PANGANIBAN, J.:
Senseless killing takes on an almost blas signification in
the instant case, where the accused tried but failed to asport
a TV set and betamax machine, and instead ended up killing a
defenseless person. Attempted robbery with homicide,
committed in the name of a few mundane material
goods. Unfortunately, this is no longer unusual or shocking
nowadays, as it seems that life has become cheap. And thats
precisely what is so painfully tragic for all of us.
Together with Antonio Pareja and one John Doe, herein
accused-appellant
Jose
Toledo
was
charged
before
the Regional Trial Court of Legazpi City, Branch 8, with the
crime of attempted robbery with homicide in an
information[1] which reads as follows:
That on or about the 22 nd day of November, 1986, in the City
of Legazpi, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, with intent of gain,
being then armed with a knife and by means of violence and
intimidation, did then and there willfully, unlawfully and
feloniously enter the house of HENEROSO (should be
Generoso) JACOB, by forcibly detaching the bamboo wall of
the kitchen and once inside, threatened the occupants thereof
and demanded for the video machine trade mark betacord,
however Sabina Jacob grabbed the cloth covering the face of
accused Antonio Pareja which caused the latter to scamper
away together with the two other accused and on the

occasion of said attempted robbery the accused Antonio

Pareja, with intent to kill, willfully, unlawfully and feloniously
stab (sic) said HENEROSO JACOB several times consequently
inflicting injuries which directly caused his death; thus said
accused commencing the commission of the crime of Robbery
directly by overt acts and was (sic) not able to perform all the
acts of execution which would have produced the felony by
reason of some cause or accident other than their own
spontaneous desistance. That there is present in the
commission of the offense the aggravating circumstances of
night time.
CONTRARY TO LAW.
At
his
arraignment
on June
23,
1987,
appellant Toledo pleaded not guilty to the charge.[2] His two
co-accused have remained at large.
The Facts
According to the Prosecution
The family of 54-year-old Generoso Jacob[3]resided in a
one-bedroom house in Pawa, Legazpi City. At around 2:00
oclock in the morning of November 22, 1986, Generoso was
asleep on a folding bed in the kitchen, three steps below the
living room where his wife Amada, and their children Shirley,
Alberto, Marlene and Sabina were sleeping.
A six-and-a-half feet high partition separated the living
room from the 2 x 3 meters bedroom which was lighted by a
50-watt bulb. Asleep in the bedroom. About four meters away
from the kitchen, were Generosos daughter Emelita, her
husband Romeo Ramirez, and their baby Marlon.
Kept in the said bedroom was a 14 Sanyo color TV which
had been brought from Saudi Arabia by Generosos son,
Rafael. In the living room was a betamax with three
components.
The family was roused from sleep by shouts of Gising
kayo, huwag sumigaw! three masked intruders had gained
entry into the house. Amada saw one of them asking Sabina
for the betamax.The same fellow tried to lift and carry off the
machine but it proved to be too heavy for him. Almost without
thought, Sabina snatched off his mask and recognized him to
be Antonio Pareja, who used to frequent their house and take
lunch at Emelitas store, as he was even one of Emelitas
gangmates.[4] The latter tried to stab Sabina but she evaded
the thrust and swiftly jumped out the window. [5]
Emelita was awakened by her fathers cries of tabangi
ako nindo (please help me). Instinctively, Emelita also
screamed for help from their neighbors, but one of the
robbers
poked
a
white-and-gold
colored
gun
at
her sentido (temple), and neither she nor her husband could
lift a finger. The gunwielders face was covered by a t-shirt,
except for his nose. Incidentally, Emelita recognized the Tshirt to be hers, which she had left hanging on the clothesline
outside the house. The man uttered. Huwag kayong sisigaw
kung ayaw ninyong mamatay, nasaan yung TV? When she
answered, diyan, the man tried to lift the television set. Failing
to do so, he called out, Ger, tulungan mo ako. But no one
responded to his call. While he was thus distracted, Emelita
grabbed at the T-shirt and un-masked him, thus recognizing
him to be herein appellant Toledo. She thus confirmed her
earlier suspicion about his identity based on his body build
and voice.[6] As the neighbors were starting to respond to her
cries for help, the trio fled empty-handed.
Hearing her husbands moans, Amada went to the
kitchen, where she saw Generoso lying in a pool of blood on
the cemented floor. She embraced him but he merely looked
at her, tried to open his mouth and expired. [7] He had bled
profusely from the wound on his chest.
Generoso was autopsied at the Funeraria Oro by Dr.
Cesar Chua of the Albay Provincial Hospital, who found that
the victim sustained a 2-cm. penetrating stab wound at the
level of the nipple, left parasternal line; a 2-cm. incised wound
at the pulmonary arterial trunk; another 1 cm. incised wound
at the outlet of the right ventricle, and hemoperitoneum. [8] Dr.
Chua opined that Generosos wounds could have been caused
by only one sharp pointed and long instrument.[9]
A police photographer took pictures of the damaged
bamboo portion of the kitchen used for drying dishes, [10] which
the robbers detached in order to gain entry into the house.
The Defenses Version

In his own defense, appellant interposed alibi. He swore

that in the evening of November 22, 1986, he attended the
wake of Nerry Armario in Bogtong, Legazpi City, and he
stayed there until past 3:00 oclock early morning of the
following day.[11] Santos Armario testified that his wife Nerry
died on November 22, 1986 and that at around 9:00
oclock that evening, appellant arrived at his house where he
stayed until early morning of November 23, 1986.[12] Armando
Armario and Eduardo Armario both testified that appellant
arrived for the wake more or less nine in the evening of the
same day.[13]
The defense also presented the victims daughter Sabina
as their witness. She swore that of the three robbers, she was
able to recognize only Antonio Pareja. She failed to see the
other two culprits because one was in the bedroom and the
other was in the kitchen while she was in the sala because
held at knifepoint by Antonio Pareja. She afirmed that pareja
indeed had two companions during that incident.
The Trial Courts Ruling
On March 6, 1989, the trial court[14] rendered its
Decision[15] holding that appellants denial and alibi could not
prevail over the positive identification by Emelita of appellant
himself and Antonio Pareja as the malefactors, adding that
there was no reason at all for Emelita to unjustly and falsely
finger appellant as one of the culprits. The court a quo opined
that, although it may have been true that appellant did attend
the wake in Bogtong, it was however not impossible for him to
have left the wake with two companions to commit the crime
in nearby Pawa. While pointing out that it was Antonio Pareja
who was responsible for inflicting the fatal injuries upon the
victim, the trial court ruled that appellant should like-wise be
held equally liable for the death. If thus disposed of the case
as follows:
WHEREFORE, the prosecution having proved the guilt of
accused beyond reasonable doubt Jose Toledo is hereby
convicted of the offense charged, and is sentenced
to reclusion perpetua, with all the accessory penalties
provided by law and to pay the costs. Accused Jose Toledo is
moreover ordered to indemnify the heirs of the late Heneroso
Jacob in the amount of P30,000.00.
Accused Jose Toledo, who has been under detention
since April 29, 1987, is given full credit for his preventive
imprisonment.
SO ORDERED.
Errors Assigned
In this appeal, appellant assigned the following errors:
The trial court erred in holding that there was a clear and
positive identification of Jose Toledo by the prosecution
witnesses as one of the authors of the crime.
The lower court erred in not acquitting the accusedappellant Jose Toledo on reasonable doubt.
Appellant contends that prosecution witness Amada
Jacob failed to place him at the scene of the crime on account
of her admission to the police that she could not identify the
two companions of Antonio Pareja. Neither could she have
seen appellant inside the bedroom where he was supposed to
have threatened Emelita, because of the partition between
the bedroom and the living room. Moreover, appellant
highlights that variance in the testimonies of Emelita and her
mother regarding the weapon used by appellant in
threatening the former, with Emelita swearing that it was a
knife and Amada affirming that it was a gun. Appellant also
claims that it was highly unlikely that Emelita would have the
courage to suddenly remove the mask from his face, on
account of the gun pointed at her head, and considering that
her husband could not even do anything under the
circumstances. Lastly, appellant emphasizes the fact that
Sabina, one of the victims daughters, failed to identify the
other assailants apart from Antonio Pareja.
The Courts Ruling
Positive identification
Very telling is the fact that appellant does not even
discuss Emelitas testimony establishing his presence at the
crime scene, notwithstanding that it was Emelita whom he
confronted and threatened and who pulled off his mask inside
the well-lighted bedroom. Appellant was no stranger to the
Jacob family; in fact, they were familiar with his build and his

voice, since he frequented their home when peddling fruit

juices and homemade chocolates in Pawa. [16] Considering
these circumstances, in the absence of proof that she had any
bias or ill-motive against appellant, Emelitas sole
identification of appellant as one of the three intruders in the
Jacob residence stands completely unscathed. Consequently,
such identification suffices to obtain conviction even in the
absence of corroboration.[17] Besides, it would be unnatural for
the relatives of the victim who seek justice to commit an
injustice by imputing the crime to innocent persons and not
those who were actually responsible therefor.[18]
As regards the variance in the testimonies of Emelita
and her mother Amada concerning the type of weapon used
by appellant in threatening the former, such alleged
inconsistency is insignificant as it refers only to a minor
detail. Rather than eroding the credibility of their testimonies,
such difference in fact constitutes a sign of veracity. [19] It is a
well-recognized fact that witnesses testifying about the same
nerve-wracking event can hardly be expected to be correct in
every detail nor consistent with other witnesses in every
aspect, considering the inevitability of differences in their
perception, recollection, viewpoint or impressions, as well as
in their physical, mental, emotional and psychological states
at the time of reception and recall of such impressions. After
all, to begin with, no to individuals are alike in term of powers
of observation and of recall. Total recall or perfect symmetry is
not required as long as witnesses concur on material points. [20]
We are also unpersuaded by appellants contention that it
would have been well nigh impossible for Emelita to have the
courage to snatch the mask off his face when she was being
held at gunpoint, and considering that her husband did not
even dare lift a finger. While it is true that people faced with
danger usually become passive and submissive, it is equally
true that there are some people who are emboldened in
sudden
or
impulsive
reaction
to
a
frightening
experience. Different persons have different reactions to
similar situations. Mans behavior and reactions can never be
stereotyped.[21] In the same vein, it is not improbable or
unusual for victims of or witnesses to crimes or startling
events to strive to recognize the culprits and observe the
manner of commission of the crime.[22]
Appellant also relies on the testimony of Sabina Jacob
that she could not identify the two associates of Antonio
Pareja. This contention cannot be taken seriously. A careful
reading of Sabinas testimony shows why she was able to
identify only Antonio Pareja -- she focused her full attention on
him as he was the one with her in the living room.
[23]
Moreover, her statement that she was not able to identify
the other two intruders -- one of whom was in the bedroom
and the other in the kitchen -- in no way implied that he (Jose
Toledo) was not among the three malefactors.
Alibi
As regards appellants alibi, the Court has time and again
ruled that alibi is the weakest of defenses because it is easy
to fabricate but difficult to prove. It cannot prevail over the
positive identification of the accused by witnesses. For the
defense to prosper, the requirements of time and place (or
distance) must be strictly met: It is not enough to prove that
the accused was somewhere else when the crime was
committed; he must also demonstrate by clear convincing
evidence that it was physically impossible for him to have
been at the scene of the crime during its commission. [24]
In the case before us, such physical impossibility had not
been proven, and in fact, quite the opposite was
shown. According to Fiscal Fidel Sarmiento, the distance
between Pawa and Bogtong, which are adjacent barangays,
could be negotiated in ten to twenty minutes by crossing the
river; and appellant admitted that in travelling between
Bogtong and Pawa to peddle his wares, he would usually cross
the river instead of passing through San Joaquin. [25] Even the
corroborative testimonies of appellants drinking partners at
the wake[26] are rendered valueless on account of the case of
going back and forth between the two barangays, as well as in
light of appellants positive identification by prosecution
witnesses as one of the interlopers in the Jacob abode.
Non-Flight?

Moreover, the mere fact that, according to his

companions at the wake, appellant did not flee the crime
scene, may not be deemed as indicative of his innocence.
[27]
There is no law ordictum holding that non-flight of an
accused is conclusive proof of innocence. [28]
Credibility of Witnesses
On the whole therefore, appellants guilt hinges on the
issue of credibility. This Court has repeatedly said that the
task of assigning values to declarations on the witness stand
is best and most competently performed by the trial judge
who, unlike appellate magistrate, can weigh such testimonies
in light of the declarants demeanor, conduct and attitude at
the trial and is thereby placed in a more competent position to
discriminate between the true and the false. The rule holds
firmly especially where, as in this case, the appellant failed to
show any fact of substance which the trial court might have
overlooked that, when considered, may affect the result of the
case.[29] No such fact obtains in this case.
It is beyond dispute that the trial court correctly found
appellant guilty beyond reasonable doubt of the crime of
attempted robbery with homicide as defined in Art. 297 of the
Revised Penal Code. Robbery was the intended purpose of the
intruders trespass into the residence of the Jacobs. Generoso
Jacobs killing was on the occasion of a robbery which,
however, was not consummated.
The failure to cart away the goods due to their weight
(something the culprits had not taken into account) may not
be considered as voluntary desistance from the commission of
the crime so as to remove the element of asportation from the
complex crime charged. Such failure to consummate the
robbery was not caused solely by their own volition and
inabilities. It was likewise brought about by factors such as
their unmasking and the arrival of neighbors who respondent
to Emelitas shouts for help. These circumstances forced them
to flee, leaving behind the objects.
Appellant is liable for attempted robbery with homicide
even if he was not himself the author of the killing of
Generoso Jacob, for lack of evidence showing that he
endeavored to prevent such slaying. Thus, the general rule
applies that whenever homicide is committed on the occasion
or as a consequence of robbery, all those who took part as
principals in the robbery shall be held guilty of the special
complex crime of robbery with homicide although they did not
actually take part in the homicide.[30] The same principle
applies even if the crime committed is attempted robbery with
homicide.[31] Pursuant to Art. 297 of the Revised Penal Code,
the crime charged and proven in this case carries the penalty
of reclusion perpetua in its maximum period toreclusion
perpetua unless the homicide committed shall deserve a
higher penalty. Said penalty is imposable in this case, there
being no ground to apply the exception mentioned in the
article.
The aggravating circumstance of nighttime alleged in
the Information was not conclusively proven. For nocturnity to
be considered as such circumstance, it must have been
particularly sought by the accuse or taken advantage of by
him to facilitate the commission of the crime or to ensure his
immunity from capture,[32] or otherwise to facilitate his
getaway.
Nonetheless, we find that the aggravating circumstance
of dwelling had been duly proven. Although dwelling (morada)
is considered as inherent in crimes which can only be
committed in the abode of the victim, such as trespass to
dwelling and robbery in an inhabited house, it has been held
as aggravating in robbery with homicide because the author
thereof could have accomplished the heinous deed of snuffing
out the victims life without having to violate his domicile.
[33]
Hence, in view of this aggravating circumstance, the
penalty imposable upon appellant shall be reclusion perpetua.
[34]
In conformity with prevailing jurisprudential law,
[35]
indemnity for the death of Generoso Jacob shall be
increased to P50,000.00.
WHEREFORE, the challenged Decision finding appellant
Jose Toledo guilty beyond reasonable doubt of the crime of
attempted robbery with homicide is hereby AFFIRMED, subject
to the modification that he shall indemnify the heirs of

Generoso Jacob in the sum of fifty thousand pesos

(P50,000.00).
Let a copy of this Decision be furnished the Philippine
National police and the National Bureau of Investigation which
are herewith instructed to effect with dispatch the arrest of
Antonio Pareja in order that he too may stand trial for the
crime charged and duly proven here.
SO OREDERED.
Narvasa, C.J. (Chairman), Davide, Jr., Melo and Francisco,
JJ., concur

and intent to kill, wilfully (sic), unlawfully, and feloniously

attacked and shot with said gun one Florencio S. Navarro
hitting his right hand and chest through and through, which
injuries would ordinarily cause the death of the said Florencio
S. Navarro, thus performing all the acts of execution which
should have produced the crime of murder as a consequence,
but nevertheless did not produce it by reason of causes
independent of his will, that is, by the timely and able medical
assistance rendered to the said Florencio S. Navarro that
prevented his death.
Contrary to law."[2]

FIRST DIVISION
[G.R. No. 133918. September 13, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. TIBOY ALBACIN, accused-appellant.
DECISION
PUNO, J.:
For the Navarro family of Lasang, Davao City, the usual
burst of firecrackers on New Year's Eve of 1993 was muted by
the resounding gunshots that snuffed out the life of Teresita
Navarro and wounded her husband, Florencio Navarro. The
accused, Tiboy Albacin, was the author of the dastardly acts.
On March 10, 1994, an information was filed charging
the accused Albacin with murder in Criminal Case No. 33,51294, viz:
"That on or about December 31, 1993, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, conspiring, confederating and
helping with (sic) one John Doe, armed with a gun, with
treachery and intent to kill, wilfully (sic), unlawfully and
feloniously shot Teresita G. Navarro, thereby inflicting upon
the latter gunshot wounds which caused her instantaneous
death.
Contrary to law."[1]
On the same day, another information was filed charging
the accused with frustrated murder in Criminal Case No. 33,
513-94, viz:
"That on or about December 31, 1993, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, conspiring, confederating and
helping with one John Doe, armed with a gun, with treachery

The records show that on December 31, 1993, at about

9:00 p.m., Teresita Navarro, together with her husband,
Florencio Navarro, and their two daughters were on their way
to church to attend the New Year's Eve mass. Coming from
their house, they passed through a two-meter wide muddy
path between ramie plants in Lasang Poblacion, Davao del
Norte.[3] The ramie plants were thickly planted and reached up
to the shoulders of a grown man.[4] Florencio walked about
twenty meters behind his daughters while Teresita was about
four meters behind him. Although it was a moonlit night,
Teresita held a torch to light her way. All of a sudden, Florencio
heard a gunshot from behind. He immediately looked back
and saw his wife lying on the ground. The torch she was
holding fell but continued to burn. With the light coming from
the moon and the torch, Florencio saw the accused Albacin
approaching him, coming from where his wife was. He
recognized Albacin because he personally knew him as his
neighbor for more than twenty years.[5] Then another man
wearing a big hat emerged from the ramie plants and
approached Florencio on his right side. At a distance of about
half a meter at the right front side of Florencio, Albacin
pointed a gun at Florencio's forehead. Albacin then fired his
gun twice, the first shot hitting Florencio on his right back
hand and the second shot grazing the middle portion of his
chest. The other man then fired at Florencio's right waist but
his pistol jammed.[6]
Florencio fled from the crime scene and caught up with
his daughters and told them that their mother had been shot
and was feared to be dead. Together, they headed to the
Lasang Police Substation.[7] When they got there, Florencio
told the police that he was shot twice, but did not reveal the
identity of his assailant because he was not in his right
mind. He asked for help for him to be brought to the hospital.
[8]
Florencio, along with one of his daughters, Carmela, were
brought to the Davao Medical Center. [9] His other daughter
went home. PO Paul Quilisado, the desk officer at the
substation, entered the report in the police blotter. Another
daughter of Florencio, Teresa Sabac, got wind of the shooting
incident and also arrived at the substation. From there, she
called up her younger brother who later arrived at the
substation and was interviewed by the policemen about the
name and age of Florencio. Teresa, along with a policeman
named Rufino Dayag, went to her father in the hospital.
[10]
Another policeman, PO2 Rodel Estrellan, called up the
Bunawan Police Station for assistance.[11] SPO1 San Nicolas
Palado received the call and entered in the blotter the
shooting of Florencio and Teresita Navarro. Palado then
informed their station commander about the incident and
immediately, the commander, Inspector Ano-os, two other
policemen and a CAFGU member from the Bunawan Police
Station went to the Lasang Substation, [12] and together with
PO2 Estrellan proceeded to the crime scene. [13] The police

team found the lifeless body of Teresita Navarro on a private

road, lying on her side with her face, neck, chest and clothes
burned. A lighted torch standing one meter from the feet of
the body clearly lighted it.[14] The body was then brought to
the house of Teresita's in-laws who lived nearby.[15] At about
10:00 p.m., the team of policemen returned to the Lasang
Substation and entered in the police blotter the identity of the
victims.[16] At 1:00 a.m., January 1, 1994, the team from
Bunawan Police Station returned there.[17]
Meanwhile, Florencio was treated by Dr. Alden Bagarra, a
resident surgeon at the Davao Medical Center. He sustained a
non-penetrating, grazing gunshot wound on the anterior chest
and a penetrating gunshot wound on the space between the
thumb and the index finger of his right hand. Both wounds
were not serious.[18] Dr. Bagarra testified that if the wound on
the right hand was left untreated, infection would probably set
in in 48 hours, and eventually cause general infection leading
to death. But he also testified that even a small cut if left
unattended could cause infection eventually leading to death
if left without medical attention.[19] In the medical certificate
that Dr. Bagarra prepared, he indicated that the probable
healing time of the wounds was fifteen days barring
complication.[20] From the location of the wounds, Dr. Bagarra
concluded that the assailant was probably on Florencio's side
at a distance of more than two feet. [21] At the hospital, the
police asked Florencio about the shooting incident. Again, he
did not tell the police who the assailant was because he was
still not in his right mind.[22] At about 10:00 the following
morning, Florencio was discharged from the hospital. He then
went to his father-in-law's house for the wake of his wife. [23]
During the wake, Florencio refused to reveal the identity
of the assailant and told Teresa that he would avenge the
death of Teresita. On January 2, 1994, however, he told Teresa
that the accused Albacin was the culprit. Teresa dissuaded her
father from taking revenge and prevailed upon him to file a
case instead. On January 3, 1994, Florencio, with Teresa, went
to the police station to report that it was the accused Albacin
who killed his wife and shot him twice. [24] His report was
entered by Inspector Ano-os in the police blotter. He executed
an affidavit narrating the shooting incident.[25] About a week
thereafter, before his wife was buried, Florencio also reported
to Barangay Captain Git Navarro that it was the accused
Albacin who shot him twice.[26] After his wife was buried,
Florencio revealed to his mother-in-law that Albacin shot his
wife.[27]
Florencio testified that prior to the shooting incident, the
family of the accused Albacin already held a grudge against
the Navarro family. The Albacins suspected that the accused's
brother was killed by the New People's Army (NPA) upon
instruction of the Navarro family because after the killing, the
NPA's headed towards the direction of the Navarro
residence. In one instance, the mother of the accused Albacin
had an altercation and exchanged hot words with the victim,
Teresita.[28]
Teresa corroborated Florencio's testimony. She testified
that the older brother of the accused was killed by the NPA in
October 1993. Teresa was able to read, however, a letter left
by the NPA near the body of the older Albacin which stated
the offenses committed by the accused against the NPA and
that he (the accused) could not be forgiven and should be
killed by the NPA. She was told by her mother that the family

of the accused suspected their family to have given

instructions to the NPA to kill the older Albacin. [29]
Dr. Danila Ledesma, Medico-Legal Officer of the Davao
City Health Office, also took the witness stand. He examined
the body of the victim, Teresita Navarro, at 7:00 a.m. of
January 1, 1994, but the victim's daughter refused to have the
body autopsied. His findings show that Teresita sustained a
gunshot wound at the left back portion of her head. This was
the bullet's point of entry. The point of exit was a star-shaped
wound in the upper eyelid portion. There were no other
abrasions or contusions on her body. The probable cause of
Teresita's death was the gunshot wound on her head. Dr.
Ledesma surmised that because of the location of the wounds
sustained by Teresita, the assailant was probably standing
behind her slightly on the left side. He also concluded that the
gun was fired within two feet from the victim.[30]
The accused Albacin had a different story to tell. He
testified that he was born in Lasang and resided there until he
became a cook of the 75th Infantry Batallion Charlie Company
from October 23, 1993 up to 1995, and resided in their camp
in Cacao, Panabo, Davao del Norte. During this whole period,
he never returned to their house in Lasang.
On December 31, 1993, he was at the camp. He woke up
at 5:00 a.m. and cooked breakfast until 8:00 a.m. At 10:00
a.m., he started preparing lunch. From 1:00 to 5:00 p.m., he
took a rest in the sleeping quarters. In the afternoon, he
started cooking dinner at 5:00 p.m. and finished at 8:00
p.m. He then cleaned the cooking utensils until 8:30
p.m. From 8:30 p.m. to 11:00 p.m., he joined six soldiers
drinking Tanduay at their post in the camp. He was the
"gunner" (the person pouring drink into the soldiers'
glasses). From 11:00 p.m. to 12:00 p.m., a certain Pfc. Oscar
Tongson and he started preparing food for the New Year
celebration. At 12:00 midnight, the soldiers partook of the
food. The accused Albacin again became the "gunner" from
12:30 a.m. to 2:00 a.m. of January 1, 1994. At 2:00 a.m., he
went to bed at the bunkhouse.[31]
The accused Albacin also testified that to get to Lasang
from Cacao, he has to take a jeep going to Panabo for one and
a half hours. From Panabo, he has to take another jeep going
to Lasang for ten minutes. The last trip of these jeeps is at
7:00 p.m. He also admitted that he knew the Navarro family
since he was seven years old. The Navarros lived ten minutes
away from his house, and would pass by his house on the way
to church in Lasang poblacion. He, however, denied having
any misunderstanding with them. [32] When asked about his
brother who was allegedly shot by the NPA's in October 1993,
he could recall the year when he was shot, but not the month
because according to him, that was a long time ago already.
[33]
On cross-examination, however, he testified that he was
killed on October 29, 1993.
Herman Bermoy, brother-in-law of William Albacin
(brother of the accused Albacin) testified that the accused left
Lasang and resided in the camp of the 75th infantry batallion
after William was killed on October 29, 1993. He did not come
back to Lasang until he was apprehended in the camp in
November 1995 in connection with the instant case. He
visited the accused in the camp for the first time in January
1995. Coming from his office in the Lasang market place, it
took him only fifteen minutes to get to the camp, and about

25 minutes to return to his office. The second time Bermoy

visited the accused was in February 1995. In both visits, he
informed the accused Albacin that a case was filed against
him for the death of Teresita Navarro and the wounding of
Florencio Navarro. The accused was surprised. Bermoy
advised the accused Albacin to surrender to the
authorities. Albacin
agreed
to
do
so
but
never
did. Inconsistent with his earlier testimony that the accused
was apprehended in the camp in Cacao, Bermoy stated that
the accused surrendered in Bunawan in November 1995.[34]
Pfc. Danilo Buchan, a soldier at the 75th infantry
batallion camp, also took the witness stand. He came to know
the accused Albacin when the latter became a cook in their
camp in Cacao, Panabo, Davao del Norte from July or August
1993 up to 1995.[35] On December 31, 1993, he saw the
accused Albacin and another civilian cook, Cesar Caseas, cook
breakfast. The soldiers had breakfast at 7:00 a.m. Again, he
saw the accused Albacin and Caseas preparing lunch. Later, at
4:00 p.m., Albacin and Caseas prepared supper. At 5:30 p.m.,
the soldiers took their dinner and finished in fifteen
minutes. Shortly after 5:45 p.m., a group of soldiers composed
of Morillo, Oscar Tongson, Joe Cales, Buchan, and another
soldier instructed Albacin to buy Tanduay "lapad" while
Caseas cleaned the kitchen. Albacin bought the liquor at a
store about fifteen to twenty meters away from the group's
post in the camp. At 7:00 p.m., the group had consumed their
drink and instructed Albacin to buy another bottle. Buchan's
group consumed a total of six "lapad" bottles that night. At
1:00 a.m. of January 1, 1994, the group finished drinking and
Albacin turned in to sleep while some of the other soldiers
took their post. The whole time they were drinking, accused
Albacin was beside Buchan acting as "gunner" of the
group. However, in his affidavit executed about two months
after the shooting of the Navarros, Buchan stated that his
group's drinking spree started at 3:00 p.m. of December 31,
1993 and ended at 10:00 that night. When confronted with his
affidavit on cross-examination, he stated that their drinking
spree ended at 10:00 p.m. Buchan also testified that Cacao is
fifteen to twenty kilometers away from Lasang.[36]
Oscar Tongson also took the witness stand. He met the
accused in 1990 at the Panabo market. Thereafter, upon
Tongson's recommendation, the accused Albacin became a
cook of the 75th Charlie Company in Cacao from May 1993 to
1995. On December 31, 1993, he saw Albacin cooking in the
camp. From 1:00 p.m. to 5:00 p.m., Albacin helped Tongson
prepare the food for the New Year celebration. From 5:00 p.m.
to 7:00 p.m., Albacin joined the group of Buchan, Murillo,
Dizon, Espaol and Tongson on a drinking spree of Tanduay
"lapad" near the camp's kitchen. He would shuttle back and
forth from the kitchen where he was preparing food to
Tongson's group.[37] From 7:00 p.m. to 10:00 p.m., the
accused, along with some soldiers, helped Tongson prepare
the food. From 10:00 p.m. to 11:00 p.m., they prepared the
food on the table. At 11:00 p.m., they gathered
themselves. Thereafter, at 12:00 midnight, Albacin served the
food and the soldiers ate.When they finished eating, Albacin
cleaned up the cooking utensils.[38]
On cross-examination, however, Tongson narrated that
on December 31, 1993, he saw the accused sitting at the post
of the camp. At 4:00 p.m., he saw the accused in the kitchen
of the camp. The latter was still in the kitchen at 5:00 p.m. A
group of soldiers including Albacin and he started drinking
Tanduay in the camp at 6:00 p.m. They consumed six Tanduay

"lapad" bottles until 10:00 p.m. Thereafter, they prepared

food from 10:00 p.m. to 12:00 midnight in the kitchen. At
12:00 midnight up to 1:00 a.m., they ate. Afterwards, they
resumed drinking Tanduay "lapad" until 2:00 a.m. of January
1, 1994. Tongson went to bed at 2:00 a.m. That morning, he
saw the accused cooking at 7:00 a.m.[39]
On rebuttal, Gilbert Navarro, Barangay Captain of
Lasang, took the witness stand. He testified that Lasang is the
last barangay of Davao City. Its boundary is Panabo. Between
Lasang and Cacao, a barangay in Panabo, there are two
barangays. From Lasang, Cacao can be reached via the
national highway. Alternatively, a barangay road where jeeps,
trucks, and motorcycles pass may be taken. The distance
between these two barangays via the barangay road is about
eight kilometers.[40]
Florencio Navarro was recalled on rebuttal. He testified
that when he would buy pigs, he would always traverse by
foot the distance between Lasang poblacion to the
75th infantry batallion camp in Cacao. Walking at a slow pace,
it would take him one hour to cover the distance of only six
kilometers because the camp is at the edge of Barangay
Katipunan which is only five kilometers away from
Lasang. Barangay Katipunan is adjacent to Barangay
Cacao. The distance of eight kilometers from Lasang to Cacao,
on the other hand, refers to the center of Cacao. He reiterated
that the accused Albacin shot both his wife and himself
(Florencio).[41]
The trial court sustained the prosecution's version of the
shooting incident and ruled, viz:
"WHEREFORE, finding the accused guilty beyond reasonable
doubt of the crime charged in the two informations, without
any modifying circumstances attendant:
In Criminal Case No. 33,512-94 for Murder, he is hereby
sentenced to Reclusion Perpetua, and to pay the cost; to
indemnify the offended party the sum of P50,000.00 as
compensatory damages for the death of Teresita Navarro and
P29,000.00 for actual damages for burial expenses.
In Criminal Case No. 33,513-94 for Frustrated Murder, he is
hereby sentenced to an indeterminate penalty of seven (7)
years, one (1) day of Prision Correccional Maximum to Prision
Mayor Medium as the minimum range to thirteen (13) years
and one (1) day of Prision Mayor Maximum to Reclusion
Temporal medium as the maximum range and to pay the
cost."[42]
Hence this appeal by the accused Albacin with the
following assignment of errors:
I.
THE COURT A QUO ERRED IN CONVICTING THE
ACCUSED, NOTWITHSTANDING THE FAILURE OF THE
PROSECUTION
TO
PROVE
HIS
GUILT
BEYOND
REASONABLE DOUBT.
II.

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE

IDENTIFICATION MADE BY FLORENCIO S. NAVARRO.
The appeal is partly meritorious in both cases of murder
and frustrated murder.
We first deal with Criminal Case No. 33,512-94 for
murder. The defense faults the trial court for taking Florencio
Navarro's word that the accused Albacin was the perpetrator
of the crime considering that it took him three days before he
revealed the assailant's identity. In the accused's Brief, he
punctures Florencio's testimony, viz:
. . . the identification made by Florencio was clearly an
afterthought on his part. . . It is altogether possible that
Florencio never really saw who his assailant was but because
of his desire to take revenge upon his assailant, he tried to
picture who he was in his mind.[43] (emphasis supplied)

approaching
you. Who
approached you?

The accused was the only person Florencio saw with his
fallen wife immediately after he heard a gunshot from where
his wife was. With the light coming from the moon and
Teresita's torch, Florencio was able to recognize the accused
Albacin who has been his neighbor for more than twenty
years. He testified as follows:
Q: While walking in that position, your daughter ahead of
you 20 meters and your wife 4 meters (sic), you said
you heard a gunshot?
A: Yes, sir, I heard a gunshot.
Q: What was your reaction when you heard that gunshot?
A: I looked at my (sic) back and saw my wife already fell
down.
Q: What else did you see aside from see (sic) your wife
already fell down?
A: What I saw was the same person (sic) and he
approached me.
Q: How many persons did you see aside from your wife?
A: Only one. Later on, there was another one who
approached me.
Q: You said a person, when you turned your back and saw
your wife fell down you saw a person was

that

person

who

A. I do not know, sir, he was wearing a hat.

Q: Earlier you pointed to the accused. What did the
accused do after your wife fell?
A: That is why after that, he approached me and
pointed a gun at me.
COURT:
Q: When you saw the accused you saw the accused
approaching you where did he come from?
A: From
[44]

We cannot subscribe to the accused's contention

anchored in the realm of possibilities. In a criminal
case, moral
certainty and
not
merely
possibilities
determines the guilt or innocence of the accused. The positive
identification made by Florencio lends such degree of
certainty enough for this Court to conclude that the accused
Albacin was responsible for the untimely demise of Teresita
Navarro. Upon hearing the gunshot which snuffed out the life
of his wife, Florencio immediately looked back and saw the
accused Albacin coming from his fallen wife and approaching
him. Albacin then pointed a gun to Florencio's head.

is

the place where

(emphasis supplied)

my

wife

fell

down.

Dr. Ledesma, the medico-legal expert who examined Teresita's

body, testified that Teresita probably died of the gunshot
wound she sustained on her head. He also concluded that she
was shot from within two feet. Albacin carried a gun with
which he shot Florencio. These circumstances lead us to no
other conclusion than that the accused Albacin fatally shot
Teresita. Direct evidence,i.e., an eyewitness account of the
commission of the crime, is not always necessary to identify
the accused as the perpetrator of the crime. A witness may
not have actually seen the very act of commission of a crime,
but he may nevertheless identify the accused as the assailant
as when the latter is the person or one of the persons last
seen with the victim immediately before and right after the
commission of the crime.[45] sustain the conviction of an
accused through circumstantial evidence, the rules on
evidence and jurisprudence require that: (1) there must be
more than one circumstance; (2) the inference must be based
on proven facts; and (3) the combination of all circumstances
produces a conviction beyond reasonable doubt of the guilt of
the accused.[46]
Contrary to accused Albacin's allegation, the three-day
delay in Florencio's identification of the accused Albacin as
the assailant does not erode his credibility. We have
previously ruled that delay in revealing the author of the
crime does not impair the credibility of witnesses, more so if
such delay is satisfactorily explained.[47] Florencio admitted
that initially, he was not able to reveal the identity of the
assailant because he was not in his right mind immediately
after the shooting incident. A few days after the dastardly act
was committed, he refused to reveal the identity of the
perpetrator of the crimes because he wanted to take revenge
against the accused Albacin. It was only upon insistence of his
daughter Teresa that he was prevailed upon to report to the
authorities the identity of the assailant and accordingly file a
case against him.
The accused Albacin has not succeeded in destroying
the credibility of Florencio. It is worth noting that the trial
court found Florencio's testimony "sincere, clear, convincing,
and straightforward."[48] Well-settled is the rule that a witness
who testifies in a categorical, straightforward, spontaneous
and frank manner and remains consistent is a credible
witness.[49] The trial court also ruled that the "(e)vidence is
completely wanting of any motive or reason for the

complainant Florencio Navarro to falsely testify against the

accused for crimes as heinous as that charged." Wellentrenched in our jurisprudence is the rule that where there is
no evidence that the principal witnesses of the prosecution
were actuated by ill-motive, their testimony is entitled to full
faith and credit.[50]
On the other hand, in a bid to exculpate himself, the
accused interposed the defense of denial and alibi. These
defenses prove futile when juxtaposed with Florencio's
positive identification of accused Albacin as Teresita's and his
assailant. Considered as inherently weak defenses, alibi and
denial must be buttressed by other convincing evidence of
non-culpability to merit credibility.[51] It all the more fails in
light of the positive identification made by a credible witness
who has no ill-motive to testify against the accused as in the
case at bar.[52]
Moreover, for the defense of alibi to prosper, it must be
proved that it was physically impossible for the accused to
have been at the scene of the crime at the approximate time
of its commission.[53] The accused has failed to adduce such
evidence. As borne out by the testimony of defense witness
Bermoy, the camp in Cacao where Albacin allegedly spent the
New Year's Eve was only about fifteen to twenty-five minutes
away from Lasang by jeep. The prosecution witnesses also
stated that the distance between Lasang and the camp is
about five to eight kilometers. Thus, even if the accused
Albacin was seen at the camp on New Year's Eve, it was not
physically impossible for him to have gone to Lasang at the
time the crimes were committed and gone back to the camp
in Cacao.
We disagree with the trial court's finding, however, that
treachery attended the killing of Teresita. Treachery exists
when the following facts are shown: (1) the employment of
means of execution that gives the person attacked no
opportunity to defend himself or to retaliate; and (2) the
deliberate and conscious adoption of the means of execution.
[54]
Moreover, this Court has previously held that where
treachery is alleged, the manner of attack must be
proven. Absent any particulars on the manner in which
the aggression commenced or how the act which
resulted in the victim's death unfolded, treachery
cannot be appreciated.[55] Florencio testified that Teresita
Navarro walked four meters behind him. Florencio did not
therefore witness the manner his wife was attacked by
accused Albacin. He looked back to his wife only after he
heard the fatal gunshot and saw Teresita already fallen. There
is a dearth of evidence whether Teresita had no opportunity to
defend herself or to retaliate, nor on whether the means of
execution
was
consciously
adopted
even
assuming arguendo that the attack was sudden.[56]
In light of the absence of any circumstance to qualify the
accused Albacin's killing of Teresita Navarro to murder, we
find
him
guilty
beyond
reasonable
doubt
of
homicide. Accordingly, the penalty imposed upon the accused
Albacin should be lowered to reclusion temporal in its medium
period,
there
being
no
aggravating
or mitigating
circumstance. Applying the Indeterminate Sentence Law, the
minimum term is anywhere within the range of prision mayor,
or from six (6) years and one (1) day to twelve (12) years, and
the maximum within the range of reclusion temporal in its
medium period, or from fourteen (14) years, eight (8) months

and one (1) day to seventeen (17) years and four (4) months.
[57]

We now come to the charge of frustrated murder in

Criminal Case No. 33,513-94. The trial court convicted
accused Albacin of frustrated murder upon the person of
Florencio Navarro based on Florencio's identification of Albacin
as his assailant and the testimony of Dr. Alden Bagarra,
resident surgeon of Davao Medical Center, who treated
Florencio's gunshot wounds. Florencio testified that after
hearing a gunshot from behind, he looked back. With the light
coming from the moon and Teresita's torch, he saw the
accused Albacin walking towards him. Albacin then pointed a
gun at Florencio's forehead and at a distance of about half a
meter from him, Albacin fired a penetrating shot into
Florencio's right hand and a grazing shot on his
chest. Florencio's testimony was corroborated by Dr. Bagarra
who testified that Florencio sustained a grazing, nonpenetrating gunshot wound on the chest and a penetrating
wound on the right hand, on the space between the index
finger and the thumb. Of the two, the latter is a more serious
wound which if left untreated, infection would probably set in
in 48 hours, and eventually cause general infection leading to
death.
Accused Albacin's use of a gun in assaulting Florencio on
the same occasion that he shot and killed Teresita shows his
intent to kill Florencio. In Araneta, Jr. v. Court of
Appeals[58] where the accused inflicted only a slight gunshot
wound on the victim, we ruled that, "(t)he use of a gun fired at
another certainly leads to no other conclusion than that there
is intent to kill." Nevertheless, we cannot sustain the trial
court's conviction of the accused Albacin of frustrated murder.
Dr. Bagarra's statements regarding the nature of the
wounds inflicted upon Florencio should be taken in the proper
context. Indeed, Dr. Bagarra declared that in comparison to
the gunshot wound sustained by Florencio on his chest, the
wound on his right hand was more serious. But he also
testified that both wounds on Florencio's chest and hand were
not serious.[59] While Dr. Bagarra testified that if the wound on
Florencio's right hand is left untreated, infection would
probably set in in 48 hours and eventually cause general
infection leading to death, he also stated that even a small
non-fatal cut if left unattended could cause infection
eventually leading to death if left without medical
attention. The possible infection eventually leading to death
cannot therefore be the basis for concluding that the gunshot
wound on Florencio's right hand was of such nature that it
would have been fatal were it not for timely medical
intervention.
The doctrinal rule is that where the wound inflicted on
the victim is not life threatening, the accused not having
performed all the acts of execution that would have brought
about death, the crime committed is only attempted murder.
[60]
In the instant case, however, there being no circumstance
to qualify the assault upon Florencio to attempted murder, the
crime committed with respect to Criminal Case No. 33,513-94
is attempted homicide. Art. 249 of the Revised Penal Code
provides the penalty of reclusion temporal for the crime of
homicide. Under Art. 51 of the Revised Penal Code, the
penalty for an attempted crime is two degrees lower than that
prescribed by law. Attempted homicide is thus punishable
by prision correccional. Applying the Indeterminate Sentence

Law, the minimum penalty to be meted out on the accused

Albacin should be anywhere within the range of one (1) month
and one (1) day to six (6) months of arresto mayor, and the
maximum should be within the range of six (6) months and
one
(1)
day
to
six
(6)
years
of prision
correccional. Considering that no aggravating or mitigating
circumstance attended the commission of the crime, the
accused Albacin shall be sentenced to an indeterminate
prison term of two (2) months and one (1) day of arresto
mayor as minimum, to two (2) years, four (4) months and one
(1) day of prision correccional medium as maximum.[61]
Anent the damages awarded for the death of Teresita
Navarro, we find that the award of P50,000.00 is in accord
with settled jurisprudence. The appellee cites People v.
Esteban Victor[62]in claiming that the award should be
raised to P75,000.00. This contention is without merit. As we
held in People v. Jose,[63] the Victor case increased the award
of indemnity in rape cases that are effectively qualified by any
of the circumstances which calls for the death penalty and has
no application to a prosecution for murder or, as in the instant
case, homicide.[64] The amount ofP29,000.00 cannot be
awarded as actual damages as only P10,130.00 finds support
from the evidence on record.
IN VIEW WHEREOF, the impugned decision is
MODIFIED. In Criminal Case No. 33,512-94, the accusedappellant is found guilty of Homicide and sentenced to an
indeterminate sentence of eight (8) years and one (1) day
of prision mayor medium as minimum, and fourteen (14)
years, eight (8) months and one (1) day of reclusion
temporal medium as maximum, and to payP50,000.00 for civil
indemnity and P10,000.00 for funeral and other related
expenses. In Criminal Case No. 33, 513-94, the accusedappellant is found guilty of Attempted Homicide and
sentenced to suffer imprisonment of arresto mayor in its
medium period or from two (2) months and one (1) day as
minimum, and two (2) years, four(4) months and one (1) day
of prision correccional as maximum, and to pay P130.00 for
medical expenses and to pay the costs.
SO ORDERED.
Davide,
JJ., concur.

Jr.,

C.J.,

(Chairman),

Ynares-Santiago, J., on leave

Kapunan, and Pardo,

EN BANC

[G.R. Nos. 141154-56. January 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. FERNANDO "Ando" COSTALES and FERNANDO
RAMIREZ (at-large), accused.
FERNANDO "Ando" COSTALES, accused-appellant.
DECISION
BELLOSILLO, J.:
Traditionally, religious fervor nourishes love, respect and
concern for one another among brethren; it was not so however in
the case of one whose adherence to his faith became the
harbinger of his tragic end, sending his wife hanging by the thread
of death, and worse, the crimes were perpetrated apparently by
their brethren professing to be "denizens of the temple."
Accused Fernando "Ando" Costales and Fernando Ramirez,
the latter being still at large, stood charged with the murder of
Miguel Marcelo and the frustrated murder of Crispina Marcelo. As
the perpetrators were found to be in unlawful possession of
firearms they were also charged with violation of PD 1866, as
amended by RA 8294.
Since accused Fernando Ramirez remained at large, only
accused Fernando "Ando" Costales was arraigned and tried.
For violation of Sec. 1, PD 1866, as amended (Crim. Case No.
T-2054), accused Fernando "Ando" Costales was found guilty and
sentenced[1] to an indeterminate penalty of six (6) months
of arresto mayor as minimum to six (6) years of prision
correccional as maximum, and to pay a fine of P30,000.
For the murder of Miguel Marcelo (Crim. Case No. T2057), accused Fernando "Ando" Costales was found guilty and
meted the ultimate penalty of death.
For the frustrated murder of Crispina Marcelo (Crim. Case
No. T-2056) he was found guilty only of attempted murder and
sentenced to an indeterminate penalty of six (6) years of prision
correccional as minimum to twelve (12) years of prision mayor as
maximum. Additionally, he was ordered "to pay the heirs of the
two (2) victims P250,000.00 in damages to be shared by and
among them in a manner that suits them best."
Sitio Raniag, Barangay Capas, was a placid but
forlorn barrio in Pangasinan where the spouses Miguel and Crispin
a Marcelo resided in a small one-room shanty with concrete
flooring and cogon roofing. Although their married daughters
Donabel, Jessie and Erlinda already had their own houses they
would spend the night with them every once in a while. And so it
was on the night of 27 November 1997.
Jessie Molina recalled that at around 11:30 o'clock in the
evening of 27 November 1997, she and her sisters Donabel and
Erlinda together with their parents Miguel and Crispina had taken
their own corners of their small house to prepare for the
night. Miguel laid in a folding bed beside the door while the others
occupied a bamboo bed with the exception of Jessie who for want
of available space settled instead on the concrete floor. Jessie and
Erlinda had just watched tv when two (2) persons suddenly barged
into their house passing through the door kept ajar by sacks of
palay and strangled her father Miguel. Jessie readily recognized
the two (2) intruders because the entire room was illuminated by
a nightlamp which the family kept burning overnight.
Jessie narrated that Fernando "Ando" Costales, one of the
assailants, poked a gun at the head of her father and shot him
once in cold blood. Thereafter the other assailant Fernando
Ramirez sprayed on their faces what she described as "something
hot and pungent," and with his firearm pumped a bullet on her
mother's chest.
Erlinda Marcelo was also awakened when the two (2)
accused suddenly entered their house and strangled their father
after which Fernando Costales shot him point blank
in
the
head.According to Erlinda, when tear gas was sprayed by Ramirez,
she ducked and almost simultaneously she heard a gunshot
towards the direction of her mother. When she opened her eyes,
she saw her mother Crispina clutching her breast, reeling from the
blow and collapsing on the floor in a heap. In her testimony
Crispina herself confirmed that Ramirez shot her once on the right
chest which caused her to bleed and lose consciousness.

Both Jessie and Erlinda affirmed that they were familiar with
the two (2) accused because, like the rest of the family, they were
members of the "Baro a Cristiano" also known as Lamplighter, of
which Fernando "Ando" Costales and Fernando Ramirez were the
high priests in their respective areas. According to Jessie, her
parents decided to quit the brotherhood because Ramirez warned
them not to sever their ties with the sect if they did not want any
harm to befall them. In fact, according to her, a month earlier
Ramirez even threatened her sister Erlinda with bodily harm.
Like her sister, Erlinda stated that their family distanced
themselves from the congregation when Ramirez threatened her
father. According to her, on 16 November 1997, Miguel tried to
fetch her from the house of Ramirez but Miguel relented only after
Ramirez threatened her with a bolo. Her father tried to get her
when he learned that Ramirez was molesting her every time his
wife was away. She however did not report this matter
immediately to the authorities because she feared for her life.
Dr. Alex E. Trinidad, Rural Health Physician of Umingan,
Pangasinan, after conducting an autopsy on the body of Miguel
Marcelo reported: (a) The gunshot wound penetrating the left lobe
of the liver of deceased Miguel Marcelo was fatal; (b) Considering
the trajectory of the gunshot wound, the assailant was probably
pointing slightly downward; (c) The cause of death of the
deceased was internal hemorrhage arising from the gunshot
wound; and, (d) Considering the wound of the victim, he could
have survived for a few minutes after he was shot.
To show that he could not have been a party to the crimes
charged, accused Fernando Costales gave a detailed account of
his activities by retracing his steps from late afternoon of 27
November 1997 until dawn of the following day. He narrated that
at 5:00 o'clock in the afternoon of 27 November he was irrigating
his land in Barangay Libeg, then proceeded to a nearby chapel to
pray. At past 7:00 o'clock in the evening, he went to see a certain
Isidro who was irrigating his own land with the use of his
(Fernando's) water pump. That being done he went back home.
A couple of hours later, in the company of his wife and
children, he returned to the mission house to attend another
religious service. At past 9:00 o'clock that same evening he
dropped by Isidro's farmland to verify if the latter had finished
irrigating. He went back home at around 11:00 o'clock to sleep
and was awakened by Isidro at about 11:45 o'clock only to inform
him that he (Isidro) was through. When Isidro left, Fernando went
back to sleep only to be roused again by Gregorio Baguio who also
wanted to borrow his water pump. With his sleep disrupted, he
decided around midnight to visit as he did the nearby mission
house to pray. Shortly after, he resumed his sleep but woke up
again at 4:00 o'clock in the morning to see if Baguio had already
finished watering his farm.
Defense witnesses Isidro Costales and Gregorio Baguio
corroborated the claim of Fernando Costales that he could not
have perpetrated the crimes as he was with them all the time
they were irrigating their farms. Likewise, Elvie Costales, wife of
accused Fernando Costales, presented an "attendance notebook,"
purportedly prepared by her, showing that her husband, who was
the chapter's religious leader, was worshipping in the Barangay
Libeg chapel from 4:45 to 4:47 o'clock and from 5:30 to 5:37
o'clock at daybreak,[2] from 7:22 to 8:00 o'clock after sunset, [3] and
from 12:10 to 12:15 o'clock midnight [4] of 27 November 1997,
although he would periodically leave the prayer meeting to check
if Isidro had already finished watering his farm so that Baguio
could also use the pump.
But the trial court viewed the alibi of the defense with
askance and assigned full credit to the declarations of the
prosecution witnesses.
In disbelieving the veracity of the "attendance notebook,"
the court a quo opined that Exh. "2" could have been more
impressive had it borne the confirming signatures or thumbmarks
of the"Baro a Cristiano" faithful, including their leader Fernando
Costales, or had Exhs. "2-B" and "2-C" been corroborated on the
witness stand by a less interested member, or had the church
secretary who allegedly kept record of attendance been some
member other that Mrs. Costales or the nearest of kin. [5]
The court below also virtually jettisoned the testimonies of
Isidro Costales and Gregorio Baguio when it said that "they had
every reason to come to the rescue of the accused Costales, their
admittedly common nephew." Further, it pointed out that the
accused and his witnesses issued contradictory and irreconcilable
statements when, on one hand Isidro testified that before
midnight of 27 November 1997 he went to the house of his
nephew Fernando Costales to inform him that the irrigation of his
farm was already through; on the other hand, Baguio claimed that
at around 11:00 o'clock that night he roused the accused who

thereafter went to operate the pump and stayed put beside it until
Baguio's farm was completely irrigated at 4:00 o'clock the next
morning.
The above statements, the court a quo observed, did not
jibe with those made by the accused that his uncle Isidro woke
him up at around 11:45 o'clock in the evening and told him that
the irrigation of his farm was finished, after which he returned to
bed and when he awakened at past 4:00 o'clock the following
morning, he met Baguio who told him that he too was through
irrigating.
In contrast, the trial court saw no dark motives behind the
respective testimonies of Crispina Marcelo and her two (2)
daughters. The Costaleses and the Marcelos used to be members
of the same religious sect and accused "Ando" Costales even
stood as a sponsor at the wedding of Jessie Marcelo, and again
when Crispina's brother got married. In short, the Marcelos could
not have mistaken "Ando" Costales and Fernando Ramirez for
other felons.
In this automatic review, accused Fernando Costales takes
exception to the findings of the trial court and thus seeks reversal
of his convictions on the ground that it erred: (a) in according
credence to the testimonies of the prosecution witnesses although
the same are perforated with material inconsistencies and bias;
(b) in not giving weight to the defense of alibi despite the
weakness of the prosecution evidence; (c) in convicting him of
violation of Sec. 1, PD 1866, as amended, since the same was
absorbed in the crime of murder; (d) in finding that the crime was
attended by conspiracy despite the fact that no aggravating
circumstance was established beyond reasonable doubt; and, (e)
in not appreciating the mitigating circumstance of voluntary
surrender in his favor.
The first and second assigned errors will be discussed jointly
since they are interrelated.
Accused-appellant argues that the seemingly flawless and
unwavering testimonies of the three (3) key prosecution witnesses
on the assault of the Marcelo household are obviously biased that
they invite suspicion and disbelief.
Concededly, the prosecution witnesses gave almost uniform
observations on how the malefactors carried out their detestable
crimes, i.e., the identity of the assailants, that Miguel was
strangled by both intruders and almost simultaneously shot on the
head, that one of them sprayed a chemical on the other
occupants of the house and after a split second fired at
Crispina. Such consistency and uniformity may be irregular at first
blush, but accused-appellant failed to take into account the
following factors which account for the "near flawless" statements
of the prosecution witnesses: (a) the one-room shanty was very
small with no substantial obstruction to impede the vision of the
occupants; (b) the room was lighted by a kerosene lamp sufficient
enough for the occupants to recognize accused-appellant and his
cohort, especially so since the assailants were prominent and
venerated leaders of their church; and, (c) at the time of the
incident the Marcelo spouses and their children were lying very
near each other because of the very limited space of their shanty
such that every perceived action could be seen, felt, or at least
sensed, by all of them.
Accused-appellant is seeing ghosts where there is
none. Contrary to his submission, it would be highly irregular
indeed if the prosecution witnesses failed to observe the events
that transpired on that fateful night of 27 November 1997 and
their statements did not dovetail, at least on material points,
despite very favorable conditions for a fairly accurate observation.
Neither should we ascribe importance, as the accusedappellant seems to suggest, to an apparent "inconsistency" by
witness Jessie Molina when she mentioned that the unwanted
intrusion occurred shortly after she turned off the television set,
contrary to her earlier claim that barangay Capas was without
electricity. Jessie Molina dispelled this obscurity when she clarified
that the television set was powered by Motolite battery which is in
fact a common practice in unenergized "barrios," as the trial court
would put it,[6] and Sitio Raniag, Barangay Capas did not still have
electricity at that time.
Clearly, the straightforward and consistent narration of facts,
as the trial court observed, by the three (3) prosecution witnesses,
especially Crispina Marcelo, a victim herself, immensely fortifies
the
conclusion
that
accused-appellant
is
guilty
as
charged. Moreover, no impure motive on their part has been
established by the defense to sully their truthfulness and erode
their credibility.
Accused-appellant cannot insist on his alibi, especially so
since he and his co-accused were positively identified by the
prosecution witnesses. More so when it is undisputed that the

proximity of their place to the scene of the crimes did not preclude
the possibility that they were in fact present at the time of their
commission.
On the third issue, accused-appellant decries the Decision of
the court a quo in qualifying the crimes of murder and attempted
murder with illegal possession of firearm and at the same time
convicting him for violation of PD 1866, as amended.
We agree. Although the prosecution duly established that
the crime of illegal possession of firearm under PD 1866 was
committed, RA 8294, which took effect 7 July 1997, amended the
decree and now considers the use of unlicensed firearm as a
special aggravating circumstance in murder and homicide, and
not as a separate offense.[7]
As it should be, possession and use of firearm without
license should aggravate the crimes of murder and frustrated
murder as herein charged but, fortunately for accused-appellant,
Secs. 8 and 9 of the Revised Rules on Criminal Procedure, which
took effect 1 December 2000, now require the qualifying as well
as aggravating circumstances to be expressly and specifically
alleged in the complaint or information, otherwise the same will
not be considered by the court even if proved during the
trial. Withal, in the absence of any allegation in the Information in
Crim. Case No. T-2057 that accused-appellant committed murder
with the use of unlicensed firearm, the same cannot be
appreciated in imposing the proper penalty.
Moving now to the modifying circumstances raised under the
fourth assigned error, accused-appellant points out that the trial
court grievously erred in appreciating unlicensed firearm, evident
premeditation and nighttime which were alleged in the
Informations in Crim. Case No. T-2056 for frustrated murder and
Crim. Case No. T-2057 for murder.
While we yield to the trial court's finding of treachery, we
take exception to its view that evident premeditation and
nighttime also aggravated the offenses. Without doubt, treachery
has been established by the prosecution evidence which showed
that accused-appellant Fernando Costales and his confederate
Fernando Ramirez swiftly and unexpectedly barged into the
Marcelo residence in the middle of the night, shot Miguel Marcelo
to death as well as his wife Crispina who almost lost her life, and
sprayed a substance which temporarily blinded the other
occupants of the house. The suddenness of the attack gave the
victims no opportunity whatsoever to resist or parry the assault
thereby ensuring the accomplishment of their dastardly deed
without risk to themselves. Since the attack on the victims was
synchronal, sudden and unexpected, treachery must be properly
appreciated.
We cannot however give our assent to the view that
nighttime
and
evident
premeditation
accompanied
the
commission of the crimes. The aggravating circumstance of
nighttime is absorbed by treachery, [8] while evident premeditation
cannot be appreciated in the absence of proof of the planning and
preparation to kill or when the plan was conceived. [9]
The convergence of the wills of the two (2) executioners
amply justifies the imputation that they acted in concert and in
unity in their unlawful objective when in the stillness of the night
they both crashed into the Marcelo residence, strangulated the
victim Miguel, then one of them shot him in the head while the
other sprayed tear gas on the other members of the family
obviously to disable them, and thereafter pumped a bullet at the
horrified Crispina. This series of actions betrays a concerted
design and concurrence of sentiments to cause mayhem and
murder. Accordingly, conspiracy was properly appreciated by the
trial court.
Neither can we sympathize with accused-appellant's
misplaced sentiment that he had been denied the mitigating
circumstance of voluntary surrender. As found by the trial court,
his alleged surrender was made too late, and in a place too distant
from the crime site as well as his place of residence. [10]
We observe that the trial court awarded P250,000.00 to the
heirs of the deceased on the justification that the same had been
stipulated upon by the parties. This is patently wrong. Award of
damages is dictated, not by the agreement of the parties;
worse, "in a manner that suits them best," [11] but by the mandate
of law and jurisprudence. Accordingly in conformity with
established law and jurisprudence, the award of P50,000.00 as
civil indmenity and another P50,000.00 as moral damages should
be awarded to the heirs of the victim.
Pursuant to Art. 248 of The Revised Penal Code as amended
by RA 7659, the penalty for murder is reclusion perpetua to
death. There being no modifying circumstances found in Crim.
Case No. T-2057, and applying par. 2 of Art. 63 of the Code, the
lesser penalty of reclusion perpetua shall be imposed.

In Crim. Case No. T-2056, accused-appellant was charged by

the trial court with frustrated murder but was convicted only for
attempted murder. In its Decision, the trial court explained that
the failure of the prosecution to present a medical certificate or
competent testimonial evidence showing that Crispina would have
died from her wound without medical intervention, justified the
accused's conviction for attempted murder only.
We call to mind People v. De La Cruz11 where this Court ruled
that the crime committed for the shooting of the victim was
attempted murder and not frustrated murder for the reason
that "his injuries, though no doubt serious, were not proved fatal
such that without timely medical intervention, they would have
caused his death." In fact, as early as People v. Zaragosa,[12] we
enunciated the doctrine that where there is nothing in the
evidence to show that the wound would be fatal if not medically
attended to, the character of the wound is doubtful; hence, the
doubt should be resolved in favor of the accused and the crime
committed by him may be declared as attempted, not frustrated
murder.
WHEREFORE, the
assailed Decision finding
accusedappellant Fernando "Ando" Costales guilty of murder and
attempted
murder
is
AFFIRMED
with
the
following

MODIFICATION: In Crim. Case No. T-2057, the crime of murder not

being considered to have been attended by any generic mitigating
or aggravating circumstances, accused-appellant Fernando "Ando"
Costales is sentenced to suffer only the penalty of reclusion
perpetua. In Crim. Case No. T-2056, the crime of attempted
murder not likewise considered to have been attended by any
generic mitigating or aggravating circumstances, accusedappellant Fernando "Ando" Costales is accordingly sentenced in
addition to his penalty imposed in Crim. Case No. T-2057 herein
before mentioned, to suffer an indeterminate prison term of two
(2) years and four (4) months of prision correccional medium as
minimum, to eight (8) years and six (6) months of prision
mayor minimum as maximum;
Accused-appellant Fernando "Ando" Costales is further
ordered to pay the heirs of the victim Miguel Marcelo P50,000.00
as death indemnity and another P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De
Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur