Republic of the Philippines

Supreme Court
Baguio City
SECOND DIVISION
ROSIE QUIDET,
Petitioner,

G.R. No. 170289

Present:

- versus -

CARPIO, J., Chairperson,

BRION,
DEL CASTILLO,
PEREZ, and
MENDOZA, JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:
Respondent.
April 8, 2010
x------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
Conspiracy must be proved as clearly and convincingly as the commission of the
offense itself for it is a facile device by which an accused may be ensnared and kept
within the penal fold. In case of reasonable doubt as to its existence, the balance tips in
favor of the milder form of criminal liability as what is at stake is the accuseds liberty. We
apply these principles in this case.
This Petition for Review on Certiorari seeks to reverse and set aside the Court of
Appeals (CA) July 22, 2005 Decision[1] in CA-G.R. CR No. 23351 which affirmed with

modifications the March 11, 1999 Decision[2] of the Regional Trial Court (RTC) of
Cagayan de Oro City, Branch 20 in Criminal Case Nos. 92-079 and 92-080.
Factual Antecedents
On January 13, 1992, petitioner Rosie Quidet (petitioner), Feliciano Taban, Jr.
(Taban), and Aurelio Tubo (Tubo) were charged with homicide in Criminal Case No. 92079 for the death of Jimmy Tagarda (Jimmy) allegedly committed as follows:
That on or about the 19th day of October 1991 at 8:00 oclock in the
evening, more or less, at Barangay Looc, Salay, Misamis Oriental, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused
Feliciano Taban, Jr., Rosie Quidet and Aurelio Tubo, with intent to kill,
conspiring, confederating, x x x and [sic] helping one another, taking
advantage of the darkness of the night, in order to facilitate the commission of
the offense with the use of sharp pointed x x x instruments which the accused
conveniently provided themselves did then and there, willfully, unlawfully and
feloniously attack, assault, stab one Jimmy Tagarda thus the victim sustained
several wounds in different parts of his body and as a consequence of which
the victim died immediately thereafter.
CONTRARY TO and in violation of Article 249 of the Revised Penal
Code.

[3]

On even date, the aforesaid accused were charged with frustrated homicide in Criminal
Case No. 92-080 for the stab wounds sustained by Jimmys cousin, Andrew Tagarda
(Andrew), arising from the same incident, viz:
That on or about the 19th day of October 1991 at 8:00 oclock in the
evening, more or less, at Barangay Looc, Salay, Misamis Oriental, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill, and with the use of sharp pointed x x x instrument, and x x x
conspiring, confederating and helping one another, and taking advantage of the
night [in] order to facilitate the commission of the offense, did then and there,
willfully, unlawfully and feloniously attack, assault, and stab one Andrew
Tagarda thereby hitting his left chest and nose, the accused having performed
all the acts of execution which would produce the crime of Homicide as a

consequence except for reason or cause independent of the will of the accused
that is, the stab was deflected by the victim.
CONTRARY TO and in violation of Article 249 in relation to Article 6
of the Revised Penal Code.[4]

Upon arraignment, all the accused entered a plea of not guilty in Criminal Case
No. 92-080 (frustrated homicide). Meanwhile, in Criminal Case No. 92-079 (homicide),
Taban entered a voluntary plea of guilt while petitioner and Tubo maintained their
innocence. Accordingly, on June 24, 1992, the trial court rendered a partial
judgment[5] sentencing Taban to imprisonment of six (6) years and one (1) day of prision
mayor, as minimum, to twelve (12) years, two (2) months and one (1) day of reclusion
temporal, as maximum, and ordering him to pay the heirs of Jimmy P50,000.00 as civil
indemnity.[6] Thereafter, joint trial ensued.
Version of the Prosecution
On October 19, 1991, at around 8:00 oclock in the evening, Jimmy, Andrew, Edwin
Balani[7] (Balani), and Rolando Mabayo (Mabayo) visited a friend in Sitio Punta, Looc,
Salay, Misamis Oriental. Along the way, they saw Taban, together with petitioner and
Tubo, come out of the house of one Tomas Osep (Osep). Taban suddenly stabbed
Andrew on the chest with a knife.Andrew retaliated by boxing Taban. Jimmy tried to
pacify Andrew and Taban but the latter stabbed him in the abdomen. Taban then
immediately fled.
Meanwhile, after Jimmy fell down, Tubo threw a drinking glass at Andrews face while
petitioner boxed Andrews jaw. Tubo stabbed Jimmy who was then lying face down on
the ground twice on the back with an ice pick after which he fled. Petitioner then boxed
Jimmys mouth. At this juncture, Balani rushed to Jimmys aid and boxed petitioner who
retaliated
by
punching
Balani.Thereafter, petitioner left the scene. Mabayo was unable to help Jimmy or
Andrew because he was shocked by the incident.
After the incident, Jimmy was brought to the clinic of Dr. Precioso Tacandang (Dr.
Tacandang). Jimmy was then in critical condition, thus, Dr. Tacandang advised the

relatives of Jimmy to bring him to the Northern Mindanao Regional Training

Hospital. Upon arrival at the aforesaid hospital, Jimmy was declared dead by the
attending physician, Dr. Cedric Dael (Dr. Dael).Jimmy sustained a vital or mortal stab
wound at the epigastric area four centimeters below the cyphoid process and another stab
wound on the left lumbar. Andrew, who sustained minor injuries, was treated by Dr.
Dael.
Version of the Defense
On the night of the stabbing incident, Taban, Tubo and petitioner were drinking liquor in
the house of Osep. Taban left the group to urinate on a nearby coconut tree. Outside
Oseps house, he was suddenly boxed by Andrew and kicked by Jimmy causing him to
fall near a fishing boat. There Taban found a fishing knife with which he stabbed Jimmy
and Andrew in order to defend himself. After which, he fled for fear for his
life. Meanwhile, petitioner went out to look for Taban. As he was stepping out of Oseps
house, he was boxed by Balani. Petitioner fought back.Andrew tried to help Balani but
petitioner was able to evade Andrews attacks. Instead, petitioner was able to box
Andrew. Petitioner then called out to Tubo to come out and run. When Tubo stepped out
of the house, neither Taban nor petitioner was present but he saw a person being lifted by
several people. Upon seeing this, Tubo, likewise, fled for fear for his life.
Ruling of the Regional Trial Court
On May 16, 1995, the RTC rendered a judgment finding petitioner and Tubo
guilty of homicide[8] and all three accused (petitioner, Tubo and Taban) guilty of
frustrated homicide, viz:
1)

In Criminal Case No. 92-079, accused Rosie Quidet and Aurelio Tubo
are hereby sentenced, there being no mitigating or aggravating
circumstances present, to the penalty of EIGHT (8) YEARS AND ONE
(1) DAY OF PRISION MAYOR with its medium period as minimum
under the Indeterminate Sentence Law to FOURTEEN (14) YEARS,
EIGHT (8) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL in its medium period [as maximum] under the same law.

2)

In Criminal Case No. 92-080 for Frustrated Homicide, there being no

mitigating or aggravating circumstances present, this court hereby
sentences all the accused [Feliciano Taban, Jr., Rosie Quidet and Aurelio

Tubo] in this case to an Indeterminate Sentence [Law] of FOUR (4)

YEARS OF PRISION CORRECCIONAL in its medium period as the
minimum under the Indeterminate Sentence Law to TEN (10) YEARS OF
PRISION MAYOR in its medium period as the maximum under the same
law. With costs.
3)

To pay jointly and severally the heirs of Jimmy Tagarda in the sum
of P50,000.00 for Criminal Case No. 92-079;

4)

And likewise to pay solidarily the heirs of the victim Andrew Tagarda
the sum of P10,000.00 for committing the crime of Frustrated Homicide.[9]

The period of preventive imprisonment during which the accused were

detained pending the trial of these cases shall be credited in full in favor of all
the accused.
SO ORDERED.[10]

The trial court found that the stabbing of Jimmy and Andrew was previously planned by
the accused. The active participation of all three accused proved conspiracy in the
commission of the crimes. Furthermore, the positive identification of the accused by the
prosecution witnesses cannot be offset by the defense of plain denial.
From this judgment, only petitioner appealed to the CA.
Ruling of the Court of Appeals
On July 22, 2005, the CA promulgated the assailed Decision, affirming with
modifications, the judgment of the RTC, viz:
WHEREFORE, the instant appeal is hereby DISMISSED for lack of merit.
The assailed decision is hereby AFFIRMED with the following
modifications: (a) That in Criminal Case No. 92-080 the crime is only
Attempted Homicide; and (b) the civil indemnity in the amount of ten
thousand (P10,000.00) pesos which was awarded to the heirs of Andrew
Tagarda be deleted as the same has not been fully substantiated. No costs.
SO ORDERED.[11]

In upholding the conviction of the accused for homicide, the CA held that conspiracy was
duly established as shown by the concerted acts of the accused in inflicting mortal
wounds on Jimmy. Hence, all of the accused are guilty of homicide for the death of
Jimmy.
The CA, however, disagreed with the trial courts finding that the accused are liable for
frustrated homicide with respect to the injuries sustained by Andrew. According to the
CA, the accused failed to inflict mortal wounds on Andrew because the latter successfully
deflected the attack. Andrew suffered only minor injuries which could have healed within
five to seven days even without medical treatment. The crime committed, therefore, is
merely attempted homicide.
The CA also deleted the award of civil indemnity to the heirs of Andrew because the
same was not fully substantiated.
Issue
Whether the Decision of the CA finding petitioner to have acted in conspiracy
with the other accused (Taban and Tubo) in the commission of the offenses charged is in
accordance with law and/or jurisprudence.[12]
Petitioners Arguments
Petitioner claims that the evidence merely established that: (1) Taban went out of
Oseps store while petitioner and Tubo remained inside; (2) a commotion took place
between Taban and Andrew; (3) after this altercation, petitioner and Tubo stepped out of
Oseps store; and (4) petitioners participation in the incident is limited to boxing Andrew
after the latter had already been stabbed by Taban, and boxing Jimmys mouth after the
latter had been stabbed by Taban and Tubo in succession.
Petitioner insists that it cannot be said that he had the same criminal purpose and
design as Taban and Tubo. His participation was not necessary to the completion of the
criminal acts because by the time he boxed Andrew and Jimmy, the stabbing had already
taken place. The evidence further established that the stabbing incident was purely

accidental and that the accused had no grudge against the victims. Also, petitioner was
unarmed negating his intent to kill.
Petitioner also cites People v. Vistido[13] where it was ruled that conspiracy was not
established under facts similar to the present case. In Vistido, the accused was merely
convicted of slight physical injuries.
Respondents Arguments
Respondent contends that conspiracy was duly established. Petitioner was not
merely present during the commission of the crime but he aided Taban and Tubo by
inflicting blows on Andrew and Jimmy after the latter were stabbed. The simultaneous
movement of the accused towards the victims and their successive escape from the crime
scene clearly evince conspiracy. Respondent also stresses that the factual findings of the
trial court should be accorded respect for it is in a better position to evaluate testimonial
evidence.
Our Ruling
The petition is partly meritorious.
The existence of conspiracy was not proved
beyond reasonable doubt. Thus, petitioner is
criminally liable only for his individual acts.
Conspiracy exists when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it.[14] The essence of conspiracy is the
unity of action and purpose.[15] Its elements, like the physical acts constituting the crime
itself, must be proved beyond reasonable doubt. When there is conspiracy, the act of one
is the act of all.
Conspiracy can be inferred from and established by the acts of the accused
themselves when said acts point to a joint purpose and design, concerted action and
community of interests.[16] However, in determining whether conspiracy exists, it is not
sufficient that the attack be joint and simultaneous for simultaneousness does not of itself

demonstrate the concurrence of will or unity of action and purpose which are the bases of
the responsibility of the assailants.[17] What is determinative is proof establishing that the
accused were animated by one and the same purpose.[18]
As a general rule, factual findings of the trial court, which is in a better position to
evaluate the testimonial evidence, are accorded respect by this Court. But where the trial
court overlooked, misunderstood or misapplied some facts or circumstances of weight
and substance which can affect the result of the case, this Court is duty-bound to correct
this palpable error for the right to liberty, which stands second only to life in the hierarchy
of constitutional rights, cannot be lightly taken away. In the instant case, we find that the
prosecution failed to prove beyond reasonable doubt that petitioner conspired with Taban
and Tubo in committing the crimes of homicide and attempted homicide.
Both the trial court and the CA ruled that the evidence duly established
conspiracy. In particular, the CA noted:
[T]his Court HOLDS that there was conspiracy. x x x
With respect to Criminal Case No. 92-080 (for frustrated homicide), it
was revealed that after Andrews chest was stabbed by Taban, Tubo also threw
a drinking glass at Andrews face while [petitioner] boxed Andrews jaws.
From the foregoing facts, it can be inferred that all the accused acted in
solidum in trying to inflict injuries to Andrew. Had it been otherwise, Tubo
and [petitioner] would have just left the scene of the crime.
With respect to Criminal Case No. 92-079 (for homicide), it was
revealed that after Andrew was stabbed by Taban using a double-bladed knife,
Taban subsequently stabbed Jimmy before fleeing from the crime scene.
Moments later, while Andrew was recovering from fist and glass blows from
[petitioner] and Tubo, Tubo [straddled] Jimmy and stabbed him twice with an
icepick before [he] left. [Petitioner], on the other hand, delivered a fist blow to
Jimmys mouth notwithstanding the fact that Jimmy was already stabbed by
Taban and Tubo.
From the foregoing facts, it can be inferred that all the accused in
Criminal Case No. 92-079 confederated and mutually helped each other to
insure the killing of Jimmy Tagarda. Hence, conspiracy was present in the
cases at bar.[19]

We disagree. To determine if petitioner conspired with Taban and Tubo, the focus
of the inquiry should necessarily be the overt acts of petitioner before, during and after
the stabbing incident. From this viewpoint, we find several facts of substance which
militate against the finding that petitioner conspired with Taban and Tubo.
First, there is no evidence that petitioner, Taban or Tubo had any grudge or enmity
against Jimmy or Andrew. The prosecution eyewitnesses (Andrew and Balani) as well as
the three accused were one in testifying that there was no misunderstanding between the
two groups prior to the stabbing incident. During the testimony of prosecution witness
Balani, the trial court itself grappled with the issue of motive:
COURT: (to the witness)
Q- [W]hen you saw Feliciano Taban and Tubo stabbing Jimmy Tagarda, you
mean to tell this court that they were enemies?
A- No sir.
xxxx
Q- Now, was there any information that you received that the reason why the
accused Taban and Tubo stabbed Jimmy Tagarda and Andrew Tagarda
was x x x of some previous misunderstanding?
A- No, I did not know.
Q- Until now, you cannot tell this court the reason why the stabbing took place
except the fact that the group of the accused were having [a] drinking
session and your group also had a [prior] drinking session somewhere?
A- Yes, sir.[20]

Second, the stabbing incident appears to have arisen from a purely accidental
encounter between Tabans and Andrews groups with both having had a drinking
session. On direct examination, prosecution witness Andrew testified that Taban, Tubo
and petitioner successively went out of Oseps house to engage their group. This version
of the events made it appear that the three accused laid in wait to carry out the
crimes. However, on cross-examination, Andrew contradicted himself when he stated
that it was only Taban who their group initially saw with a knife outside Oseps house and

who suddenly stabbed Andrew. After he was stabbed, Andrew stated that he retaliated by
boxing Taban and it was only then when he (Andrew) saw Tubo and petitioner come out
of Oseps house.[21] The records of the preliminary investigation of this case confirm this
latter version of the events when Andrew stated that it was only after the commotion
between him and Taban that Tubo and petitioner stepped out of Oseps store to help Taban
defend himself in the ensuing fight.[22] Significantly, when the defense on crossexamination confronted Andrew with this inconsistency between his statements on direct
examination and the preliminary investigation, Andrew answered that at the time of the
incident it was only Taban that he saw.[23] The same observation can be made on the
testimony of the prosecutions second eyewitness, Balani. While on direct examination
Balani claimed that the three accused successively came out of Oseps house, on crossexamination, he modified his stance by stating that it was only Taban who initially
accosted their group and that petitioner and Tubo were inside Oseps house prior to the
commotion.[24] This material inconsistency in the testimonies of the prosecutions
eyewitnesses belies the prosecutions theory that the three accused had a pre-conceived
plan to kill Jimmy and Andrew.
Third, unlike Taban and Tubo, petitioner was unarmed during the incident, thus, negating
his intent to kill the victims. By the prosecution witnesses account, petitioners
participation was limited to boxing Andrew and Jimmy after Taban and Tubo had stabbed
the victims. His acts were neither necessary nor indispensable to the commission of the
crimes as they were done after the stabbing. Thus, petitioners act of boxing the victims
can be interpreted as a mere show of sympathy to or camaraderie with his two coaccused.
Taken together, the evidence of the prosecution does not meet the test of moral certainty
in order to establish that petitioner conspired with Taban and Tubo to commit the crimes
of homicide and attempted homicide. We agree with petitioner that this case is similar
to People v. Vistido[25] and the ruling there applies with equal force here. In Vistido, we
held thus
There is no question that "a person may be convicted for the criminal act of
another where, between them, there has been conspiracy or unity of purpose
and intention in the commission of the crime charged." It is, likewise, settled
that "to establish conspiracy, it is not necessary to prove previous agreement to
commit a crime, if there is proof that the malefactors have acted in consort and

in pursuance of the same objective." Nevertheless, "the evidence to prove the

same must be positive and convincing. As a facile device by which an accused
may be ensnared and kept within the penal fold, conspiracy requires
conclusive proof if we are to maintain in full strength the substance of the
time-honored principle in criminal law requiring proof beyond reasonable
doubt before conviction."
In the case at bar, the evidence for the prosecution does not comply
with this basic requirement. To begin with, there is no evidence that appellant
and his co-accused had any enmity or grudge against the deceased. On the
contrary, the cousin of the deceased, Reynaldo Pagtakhan, testified that prior to
the stabbing incident, they did not have any quarrel with them. In the absence
of strong motives on their part to kill the deceased, it can not safely be
concluded that they conspired to commit the crime involved herein.
Neither could it be assumed that when the appellant and his co-accused
were together drinking wine, at the time and place of the incident, they were
there purposely to wait for and to kill the deceased. For, they could not have
surmised beforehand that between 3:00 and 4:00 o'clock in the morning of
November 1, 1969, the deceased and his cousin after coming home from their
work at the cemetery would go to the Marzan Restaurant, and thereafter,
would take a taxi for home, and then, alight at M. Francisco Street. The
meeting between the appellant's group and the deceased appears to be purely
accidental which negates the existence of conspiracy between the appellant
and his co-accused.
Besides, the appellant was unarmed; only his two companions (Pepito
Montao and one John Doe) were armed with daggers. If he (appellant) had
really conspired with his co-accused to kill the deceased, he could have
provided himself with a weapon. But he did not. Again, this fact belies the
prosecution's theory that the appellant had entered into a conspiracy with his
co-accused to kill the deceased.
Moreover, although the appellant and his co-accused acted with some
degree of simultaneity in attacking the deceased, nevertheless, the same is
insufficient to prove conspiracy. The rule is well-settled that "simultaneousness
does not of itself demonstrate the concurrence of will nor the unity of action
and purpose which are the basis of the responsibility of two or more
individuals." To establish common responsibility it is not sufficient that the
attack be joint and simultaneous; it is necessary that the assailants be animated
by one and the same purpose. In the case at bar, the appellant Raymundo
Vistido and the accused Pepito Montao, did not act pursuant to the same

objective. Thus, the purpose of the latter was to kill as shown by the fact that
he inflicted a mortal wound below the abdomen of the deceased which caused
his death. On the other hand, the act of the appellant in giving the deceased
one fist blow after the latter was stabbed by the accused Pepito Montao an act
which is certainly unnecessary and not indispensable for the consummation of
the criminal assault does not indicate a purpose to kill the deceased, but merely
to "show off" or express his sympathy or feeling of camaraderie with the
accused Pepito Montao. Thus, in People vs. Portugueza, this Court held that:
Although the appellants are relatives and had acted with some degree of
simultaneity in attacking their victim, nevertheless, this fact alone does not prove
conspiracy. (People vs. Caayao, 48 Off. Gaz. 637). On the contrary, from the nature and
gravity of the wounds inflicted on the deceased, it can be said that the appellant and the
other defendant did not act pursuant to the same objective. Florentino Gapole's purpose
was to kill the deceased, as shown by the fact that he inflicted a mortal wound which
almost severed the left arm. The injury inflicted by the appellant, merely scratching the
subcutaneous tissues, does not indicate a purpose to kill the victim. It is not enough that
appellant had participated in the assault made by his co-defendant in order to consider
him a co-principal in the crime charged. He must have also made the criminal resolution
of his co-accused his own. x x x.

and, in People vs. Vicente, this Court likewise held:

In regard to appellant Ernesto Escorpizo, there seems to be no dispute that he
stabbed Soriano several times with a small knife only after the latter had fallen to the
ground seriously wounded, if not already dead. There is no showing that this accused had
knowledge of the criminal intent of Jose Vicente against the deceased. In all likelihood,
Escorpizo's act in stabbing the fallen Soriano with a small knife was not in furtherance of
Vicente's aim, which is to kill, but merely to 'show off' or express his sympathy or feeling
of camaraderie with Vicente. x x x.

By and large, the evidence for the prosecution failed to show the
existence of conspiracy which, according to the settled rule, must be shown to
exist as clearly and convincingly as the crime itself. In the absence of
conspiracy, the liability of the defendants is separate and individual, each is
liable for his own acts, the damage caused thereby, and the consequences
thereof. While the evidence shows that the appellant boxed the deceased, it is,
however, silent as to the extent of the injuries, in which case, the appellant
should be held liable only for slight physical injuries.[26]

We reach the same conclusion here. For failure of the prosecution to prove conspiracy
beyond reasonable doubt, petitioners liability is separate and individual. Considering that
it was duly established that petitioner boxed Jimmy and Andrew and absent proof of the
extent of the injuries sustained by the latter from these acts, petitioner should only be
made liable for two counts of slight physical injuries. In addition, he should

pay P5,000.00 as moral damages to the heirs of Jimmy and another P5,000.00 as moral
damages to Andrew.[27] Actual damages arising from said acts cannot, however, be
awarded for failure to prove the same.
Anent the penalty imposed on Taban and Tubo, in Criminal Case No. 92-080, the
CA correctly modified the same. The crime committed was attempted homicide and not
frustrated homicide because the stab wounds that Andrew sustained were not lifethreatening.[28] Although Taban and Tubo did not appeal their conviction, this part of the
appellate courts judgment is favorable to them, thus, they are entitled to a reduction of
their prison terms.[29] The rule is that an appeal taken by one or more of several accused
shall not affect those who did not appeal except insofar as the judgment of the appellate
court is favorable and applicable to the latter.[30]
Anent the award of damages for which Taban and Tubo should be made solidarily
liable, in Criminal Case No. 92-079, the trial court properly awarded civil indemnity in
the amount ofP50,000.00 to the heirs of Jimmy. Civil indemnity is automatically granted
to the heirs of the deceased victim without need of further evidence other than the fact of
the commission of the crime.[31] In addition, the trial court should have awarded moral
damages in the sum of P50,000.00 in consonance with current jurisprudence.[32] As to
actual damages, the prosecution was able to prove burial-related expenses with
supporting receipt[33] only to the extent of P5,000.00. In People v. Villanueva,[34] we held
that when actual damages proven by receipts during the trial amount to less
than P25,000.00, the award of temperate damages for P25,000.00 is justified in lieu of
actual damages for a lesser amount. We explained that it was anomalous and unfair that
the heirs of the victim who tried but succeeded in proving actual damages amounting to
less than P25,000.00 would be in a worse situation than those who might have presented
no receipts at all but would be entitled to P25,000.00 temperate damages.[35] Accordingly,
an award of P25,000.00 as temperate damages in lieu of actual damages is proper under
the premises. As to loss of earning capacity, the same cannot be awarded due to lack of
proof other than the self-serving testimony of Jimmys mother. In Criminal Case No. 92080, the CA correctly ruled that Andrew is not entitled to an award of actual damages for
failure to substantiate the same. However, he is entitled to moral damages in the amount
of P30,000.00 for the pain, trauma and suffering arising from the stabbing incident. [36] It
may be noted that the afore-discussed higher indemnities are not favorable to Taban and
Tubo who did not appeal, but in line with our ruling in People v. Pacaa,[37] they shall be
held solidarily liable therefor since these amounts are not in the form of a penalty.[38]

Finally, the records indicate that the three accused were placed under preventive
imprisonment prior to and during the trial of this case. This can be surmised from the
motion to grant bail filed by petitioner which was subsequently granted [39] by the trial
court. It is not clear, however, for how long and under what conditions they were put in
preventive imprisonment. The trial court should, thus, determine the length and
conditions of the preventive imprisonment so this may be credited, if proper, in favor of
the accused as provided in Article 29[40] of the Revised Penal Code.
WHEREFORE, the petition is PARTIALLY GRANTED. The July 22, 2005
Decision of the Court of Appeals in CA-G.R. CR No. 23351 is AFFIRMED with the
followingMODIFICATIONS:
1) In Criminal Case No. 92-079, Rosie Quidet is found guilty beyond reasonable doubt
of slight physical injuries and is meted the sentence of fifteen (15) days of arresto
menor. He is ordered to pay the heirs of Jimmy Tagarda P5,0000.00 as moral
damages. Feliciano Taban, Jr. and Aurelio Tubo are ordered to solidarily pay the heirs
of Jimmy Tagarda P50,0000 as civil indemnity, P50,000.00 as moral damages
and P25,000.00 as temperate damages.
2) In Criminal Case No. 92-080, Feliciano Taban, Jr. and Aurelio Tubo are found guilty
beyond reasonable doubt of attempted homicide and are meted the sentence of four
(4) months ofarresto mayor in its medium period as minimum to four (4) years
of prision correccional in its medium period as maximum. They are ordered to
solidarily pay Andrew Tagarda P30,000.00 as moral damages. Rosie Quidet is found
guilty beyond reasonable doubt of slight physical injuries and is meted the sentence of
fifteen (15) days of arresto menor. He is ordered to pay Andrew Tagrda P5,000.00 as
moral damages
3) The period of preventive imprisonment of Feliciano Taban, Jr., Aurelio Tubo and
Rosie Quidet shall be credited in their favor in accordance with Article 29 of the
Revised Penal Code.
4) The bail bond of Rosie Quidet is cancelled.
SO ORDERED.

G.R. No. 99379 April 22, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO JORGE Y RAMIREZ, accused-appellant.
The Solicitor General for plaintiff-appellee.
Nestor M. Hermida for accused-appellant.

BELLOSILLO, J.:
EDUARDO JORGE Y RAMIREZ appeals from the decision of the Court a quo finding him guilty of
murder and sentencing him to reclusion perpetua. 1
On 15 June 1989, an amended information was filed charging Eduardo Jorge, Romeo Lajera and
Remedios Bernales with murder for the killing of Francisco Palma with the aggravating
circumstances of treachery and evident premeditation. However, only Jorge was tried by the court a
quo because Lajera and Bernales managed to remain at large, although Bernales was eventually
arrested in August 1991 to face separate trial. 2
The case of the government is woven mainly around the testimony of Patricio Ocenar, a barangay
tanod of Barangay Doa Imelda, Quezon City. Ocenar narrates that on 26 June 1990, at around
nine-thirty in the evening, he was at the barangay hall. Then a person informed him that Francisco
Palma was being molested by three men. 3 Taking with him his "knife-stick," 4 Ocenar proceeded to Paui
Street pointed to by the informer. There, at a distance of some ten arms length, 5 Ocenar saw Eduardo
Jorge and Romeo Lajera holding the hands of Palma and a woman 6stabbing him on the left chest with a
long instrument. Ocenar could not tell exactly what kind of weapon was used. He shouted at them and all
three ran away leaving Palma behind to chase
his aggressors but he collapsed immediately on Baloy Street. 7 According to
Dr. Renato Bautista who examined the victim, the stab wound on his left chest was the cause of his
death. 8
Corazon Palma, widow of the victim, was also presented to testify for the prosecution. But the trial
court correctly discounted her testimony
. . . because as per Patricio Ocenar she came to know of the incident only from him.
Besides, according to Mrs. Palma, when someone came (sic) to her house to call her
attention as regards her husband, the caller said "Cory, Cory, your husband
is stabbed dead and he is in Baloy." Hence, her testimony that she saw her husband
being mauled and then stabbed does not appear credible. Her testimony also reads

like that of Mr. Ocenar which, considering her interest in this case, renders doubtful
her narration on the identity of her husband's killers.
As the court a quo observed, "her testimony that she saw her husband being mauled and then
stabbed does not appear credible." It was obviously perjured. We can only commiserate with the
widow and say to her, it was good effort in aid of the prosecution but it was not good enough to
pervert the facts and convince the court that she was telling the truth.
On the part of appellant Jorge, he denies any participation in the crime. He claims he was sleeping
in his house at the time of the killing and was only awakened when policemen, led by the widow,
forced him out of his house despite his protestations and profession of innocence, and brought to the
police station. But, as earlier mentioned, the trial court convicted him of murder with abuse of
superior strength.
Jorge now imputes eight errors to the trial court the salient points of which are: (a) in finding the
prosecution evidence sufficient to establish his guilt; (b) in giving full faith to the testimony of Patricio
Ocenar; (c) in finding him guilty of murder as principal without sufficient proof of conspiracy among
him and his co-accused; and, (d) in qualifying the killing to murder with abuse of superior strength
when such circumstance is not alleged in the Information.
Indeed, under the facts of the case, we cannot assert with moral certainty that the accused is guilty
of the crime charged. The evidence for the prosecution does not meet the quantum of proof required
to overcome the constitutional presumption of innocence of the accused. We are not saying here
that appellant is innocent but that his guilt has not been proved beyond reasonable doubt; hence, he
should be acquitted.
In order to convict appellant as a principal by direct participation in the case before us, it is
necessary that conspiracy among him and his co-accused be proved. No conspiracy here was
established. Conspiracy; like any other ingredient of the offense, must be proved as sufficient as the
crime itself through clear and convincing evidence, not only by mere conjectures. 9 Proof beyond
reasonable doubt is required to establish the presence of criminal conspiracy. 10 In fact, the appealed
decision does not mention, much less discuss, conspiracy.
Unity of purpose and unity in the execution of the unlawful objective are essential to establish the
existence of conspiracy. 11 In this case, no unity of purpose was shown. The only involvement of
appellant was his holding of the hand of Palma when he was stabbed by Bernales on the left chest. There
was no other evidence to show unity of design. The simultaneousness of the act of stabbing the victim by
Bernales with the holding of the hand of the same victim by appellant does not of itself demonstrate
concurrence of wills or unity of purpose and action. 12 For, it is possible that the appellant had no
knowledge of the common design, if there was any, nor of the intended assault until the victim was
actually stabbed. The thrust could have been made at the spur of the moment, totally unexpected by
appellant. The mere holding of the victim's hand does not necessarily prove intention to kill. If the tragedy
was a chance stabbing, there can be no conspiracy to speak of. 13 Perhaps it would have been different if
the victim was stabbed more than once and appellant still held on to the hand of the victim. That would
have indicated intent to kill and a community of purpose and design. But the evidence does not show that
appellant knew that Bernales had a knife; that she intended to use it to stab the victim; and, even if she
had such intention and appellant knew it, that he held the victim's hand to insure the effectiveness and
fatality of Bernales' attack.
While the holding of the hand of the victim could demonstrate unity of purpose, yet, it could also
mean a desire on the part of appellant to avoid a physical encounter between Palma and Bernales, a
woman, who was not known to appellant to be armed with a knife. The distance of some ten arms
length from the startling occurrence could have blurred the vision of Ocenar, the only eyewitness for

the prosecution, who could no longer identify the weapon used except to say it was a long
instrument. This also casts doubt on some of his factual accounts. The rule is well settled that if the
facts apparently inculpatory may equally be explained consistent with one's innocence, the evidence
does not fulfill the test of moral certainty to support a conviction. 14
Although Ocenar appears credible in his version, his testimony unfortunately does not establish the
existence of conspiracy. It is elementary that, in the absence of conspiracy, each of the accused is
responsible only for the consequences of his own acts. 15 All that appellant did was to hold the hand of
Palma, which is not a crime.
Neither can the appellant be considered a principal by indispensable cooperation, nor an accomplice
in the crime of murder. To be a principal by indispensable cooperation, one must participate in the
criminal resolution, a conspiracy or unity in criminal purpose and cooperation in the commission of
the offense by performing another act without which it would not have been accomplished. 16 In order
that a person may be considered an accomplice, the following requisites must concur: (a) community of
design, i.e., knowing that criminal design of the principal by direct participation, he concurs with the latter
in his purpose; (b) he cooperates in the execution of the offense by previous or simultaneous acts; and,
(c) there must be a relation between the acts done by the principal and those attributed to the person
charged as accomplice.
The cooperation that the law punishes is the assistance knowingly or intentionally rendered, which
cannot exist without previous cognizance of the criminal act intended to be executed. 17 It is therefore
required in order to be liable either as a principal by indispensable cooperation, or as an accomplice, that
the accused must unite with the criminal design of the principal by direct participation. There is indeed
nothing on record to show that appellant knew that Bernales was going to stab Palma, thus creating a
doubt as to appellant's criminal intent.
The appellant asserts that it was error for the trial court to consider "abuse of superior strength" as
qualifying the killing to murder when such circumstance is not alleged in the Information. The
accused is correct, although it could have been considered nonetheless as a generic aggravating
circumstance even if not so alleged. 18However, this is no longer significant considering the conclusion
herein reached.
The defense of the accused is alibi, which is the weakest of defenses. But the case against him must
still fail since the evidence of the prosecution is even weaker; for, as it has been repeated often
enough, the conviction of the accused must not rest on the weakness of the defense but on the
strength of the prosecution. 19
WHEREFORE, the decision appealed from is REVERSED and accused-appellant EDUARDO
JORGE Y RAMIREZ is ACQUITTED of the crime charged. Accordingly, it appearing that he is
detained, his immediate release from custody is ordered unless he is held for another cause.
SO ORDERED.
Cruz, Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.

#Footnotes

1 Penned by Judge Jaime N. Salazar, Regional Trial Court, Br. 103, Quezon City.

2 Appellant's Brief, p. 2.
3 TSN, 18 January 1989, pp. 3-4.
4 Presumably a "night stick."
5 TSN, 18 January 1989, p. 10.
6 Later identified as Remedios Bernales, also known as "Ache."
7 TSN, 18 January 1989, pp. 5, 8-10, 15.
8 TSN, 25 August 1989, p. 4.
9 People v. Marquez, No. L-31403, 14 December 1981, 110 SCRA 91.
10 People v. Saavedra, No. L-48738, 18 May 1987, 149 SCRA 610.
11 Orodio v. Court of Appeals, No. L-57519, 13 September 1988, 165 SCRA 316.
12 US v. Magcomot, 13 Phil. 386 (1909).
13 People v. Agapinay, G.R. No. 77776, 27 June 1990, 186 SCRA 812.
14 People v. Pacana, 47 Phil. 48 (1924).
15 Araneta v. Court of Appeals, G.R. No. L-43527, 3 July 1990, 187 SCRA 123.
16 Padilla, Criminal Law Book I, 1974 Ed., p. 517.
17 Id., p. 527.
18 People v. Garcia, G.R. No. L-30449, 31 October 1979.
19 People v. Cruz, G.R. No. 87884, 4 November 1992, 215 SCRA 339.

The Lawphil Project - Arellano Law Foundation

G.R. Nos. 90191-96

January 28, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANACLETO FURUGGANAN, alias "BOY," accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

REGALADO, J.:
The developmental annals of our criminal justice system provide certain basic rules of governance in
determining the fate of one caught in the toils of the law. Elementary as these tenets may now
appear to be, yet they are not infrequently overlooked or ignored. We are forced to repeat them for
purposes of this case.
At bottom is the presumption of innocence, juris tantum to be sure but constituting the take-off point
for criminal actions. Doctrinally, this presumption yields only to the requisite quantum of evidence of
guilt beyond reasonable doubt. Any doubt shall be considered in favor of the accused. The
prosecution has the inexorable burden of producing the mandated degree of proof. The guilt of the
accused shall be gauged by the strength of the evidence for the People and not by the weakness of
that for the defense.
This case presents an opportune situation to review said precepts which hold life and liberty
sacrosanct. On the accused here has been imposed five (5) sentences of reclusion perpetua for as
many crimes of murder and an indeterminate sentence for one (1) case of frustrated murder. Even
with the application of Article 70 of the Revised Penal Code, he faces the unnerving and bleak
prospect of at least forty (40) years in gaol. Hence, the need for a most scrupulous and discerning
review of this case, for along with the possibility of depriving an innocent man of his freedom is the
contrapuntal theme of denying justice to six (6) hapless victims of the said heinous crimes.
In six (6) different informations, herein accused-appellant, together with Danilo Balao alias "Ebot,"
Eleazer Payongan, Diomedes Palattao, Martin Furugganan and Basilio Gomer, Jr. were charged
before the Regional Trial Court of Cagayan, Branch VIII, in five (5) cases of murder and one (1)
case of frustrated murder, for allegedly conspiring and shooting to death Leopoldo Magara, Celso
Urtiz, Lucio Magara, Alejandro Magara and Romeo Cordova and wounding Joseph Ferrer on the
night of December 9,1986.
1

Subsequently, on motion of Prosecuting Fiscal Rafael L. Pacis and supported by an affidavit of

retraction of victim Joseph Ferrer, the charges against accused Danilo Balao alias "Ebot" in all the
aforesaid cases were dismissed.
3

Herein appellant, together with Martin Furugganan and Diomedes Palattao, on the other hand, were
arraigned and pleaded not guilty to the crime charged; while accused Eleazer Payongan and Basilio
Gomer, Jr. had heretofore and have up to now remained at large. The aforesaid criminal cases were
jointly tried. After the prosecution rested its case, however, the court a quo granted the demurrer to
evidence filed by accused Martin Furugganan and Diomedes Palattao and consequently acquitted
them of all the charges against them.
4

Thus, trial proceeded only against appellant who was thereafter found guilty as charged and was
sentenced to suffer the penalty of reclusion perpetua in each of the five (5) cases for murder, and an
indeterminate sentence of ten (10) years of prision mayor, as minimum, to fourteen (14) years, ten
(10) months and ten (10) days ofreclusion temporal, as maximum, for the frustrated murder. Further,
appellant was ordered to indemnify the heirs of the five (5) victims in the murder cases in the sum of
P30,000.00 for each victim and one-fifth (1/5) of the costs in each of the six (6) cases.
5

The genesis of said cases, as verified from the transcribed notes of the proceedings and
summarized by the Solicitor General in his brief, inclusive of the arguments of appellant, are as
follows:
On December 9, 1986, Joseph Ferrer, Celso Urbiz (sic, Urtiz), Leopoldo Magara, Alejandro
Magara, Lucio Magara, and Romeo Cordova decided to go to the ricefield of Froilan
Clemente situated at Sitanga, Dodan, Aparri, Cagayan. They arrived at the place of Froilan
Clemente at around one o'clock in the afternoon. Upon arrival, they cast their fishing line.
After a while, they rested in a nipa hut (pp. 3-4, TSN, June 10, 1988). They fell asleep and
while in a deep slumber, the prosecution witness Joseph Ferrer heard a firing of a gun (Id.)
After the shooting stopped, somebody climbed up the hut and he saw Eleazer Payongan,
Basilio Gomer and accused-appellant, Boy Furugganan (p. 6, TSN, Id.) Joseph Ferrer
pretended that he was already dead by placing his right arm over his forehead (p. 8,
TSN, Id.)
Joseph Ferrer, while pretending to be dead, observed that the three malefactors, namely,
Eleazer Payongan, Basilio Gomer and accused-appellant were making sure that their victims
were already dead. Eleazer Payongan lighted a lamp and knocked the head of Joseph
Ferrer to confirm that he was indeed dead. Joseph Ferrer saw Basilio Gomer holding a small
gun and Eleazer Payongan an armalite (pp. 6-7, TSN, Sept. 28, 1988).
Eleazer Payongan further searched the hut. After satisfying themselves that they had
accomplished what they had intended, Eleazer Payongan, Basilio Gomer and accusedappellant left the scene of the crime.
After the assailants had left, Joseph Ferrer, the lone survivor, went home despite the fact that
he sustained wounds in his leg leaving behind all his companions who were then all dead (p.
15, TSN, Id.). He was subsequently brought to the hospital by his brother and cousin (pp. 1011, TSN, Sept. 28, 1988).
Accused-appellant, on the witness stand, corroborated the testimony of Joseph Ferrer on
material points. He testified that as of November 26, 1986, he was a member of the Civil
Home Defense Force (CHDF).
On December 9, 1986, at around sunset, Martin Furugganan, also a member of the CHDF,
and Barangay Captain Eleazer Payongan, Basilio Gomer, Jr. and Diomedes Palattao, also a
member of the CHDF, dropped by the house of accused-appellant. They invited him to the
place of Eleazer Payongan for a drink (pp. 8-9, TSN, March 16, 1989).

Eleazer Payongan was armed with a rifle and was carrying two bottles of gin placed in plastic
bag while Basilio Gomer was armed with a garand rifle (p. 13, Id.).
From the house of accused-appellant, they went directly to the hut of Eleazer Payongan.
While thereat, Eleazer Payongan checked his fish trap and was able to get some fish for
their "pulutan" (p. 14, Id.). After a while, accused-appellant and his companions drank the
gin. Thereafter, accused-appellant sought permission to go home, but Eleazer Payongan
prevented him from doing so by telling him that they were going somewhere else (Id.).
Accused-appellant asked Eleazer Payongan where they were going and Eleazer Payongan
replied that accused-appellant, "not be worry (sic) as he (Payongan) would be responsible
for what will happen". Because of the assurance, accused-appellant followed him (p.
16, Id.).
1wphi1

From the hut of Eleazer Payongan, they hiked to the hut of Froilan Clemente. Upon arrival at
the hut of Froilan Clemente, Basilio Gomer and Eleazer Payongan went to the door of the
hut and started firing their guns (p. 18, Id.). The shooting lasted for about three (3) minutes
and while Payongan and Gomer were firing their guns, accused-appellant, together with
Furugganan and Palattao, allegedly stayed at the back. After the shooting Eleazer Payongan
told accused-appellant to follow him and when he refused, Payongan allegedly aimed his
gun to (sic) appellant. Payongan told the accused-appellant to come up to see if those inside
the hut were already dead. He was accordingly threatened by Payongan by saying that he
will shoot him (accused-appellant) if he will not go up to (sic) the hut. When accusedappellant went up the hut, Eleazer Payongan and Basilio Gomer followed him. When they
were already upstairs, Eleazer Payongan saw a lamp and lighted it (pp. 19-20, Id.).
According to accused-appellant, Basilio Gomer and Eleazer Payongan would shot (sic) any
occupant who was still moving (p. 20, Id.).
Eleazer Payongan told Basilio Gomer that all the occupants of the hut were already dead.
Accused-appellant went down immediately after which Basilio Gomer and Eleazer Payongan
extinguished the kerosene lamp and went down. Subsequently, they left the hut. From where
the incident took place, accused-appellant went home and told his wife what had happened
and because they were afraid, they slept in the house of his in-laws (pp. 6-7, May 24,
1989).
6

As explained by the court a quo in its decision, the lone survivor, Joseph Ferrer, testified in the
preliminary examination conducted by the Municipal Trial Court of Aparri, Cagayan, Branch II, on
January 12, 1987 in its Criminal Cases Nos. II-7239, 7242 and 7243, that he and his companions
were fired upon in the hut by appellant and his companions; and he repeated this testimony
implicating appellant in the preliminary examination conducted on January 13, 1987 by Branch I of
the same court in its Criminal Case No. A-7247. The trial court moreover noted that Ferrer made the
same identification of appellant as one of the assailants in his purportedante mortem statement
taken on December 10, 1986 in the Aparri District Hospital and also in his extrajudicial statement
given in the course of an investigation conducted by Pat. Porfirio G. Divina on December 17, 1986 in
the same hospital.
7

To exculpate himself from liability, appellant in his brief substantially reiterates his version of the
incident as hereinbefore narrated and alleges that he was threatened by Eleazer Payongan to go up
the hut or else he himself would be shot. Overwhelmed by said threat, appellant claims he had no
other recourse but to follow as directed. Further, he would like this Court to focus its attention on the
testimony of prosecution witness Joseph Ferrer himself that appellant was unarmed when he went
up the hut, as in fact his firearm was surrendered days before the shooting incident. Anent the

allegation of conspiracy, the defense contends that there is not even a hint of the existence of a
preconceived plan or agreement to commit the crimes charged, appellant having been invited only
by his co-accused to a drinking session.
8

Appellant admits that he was a member of the Civil Home Defense Force but that on December 3,
1986 he returned to the local constabulary headquarters the Garand rifle theretofore issued to him.
He submitted as proof thereof, as his Exhibits 1 and 2, respectively, the receipt for the rifle signed by
Sgt. Antonio M. Domingo and a certification to that effect of Capt. James Andres B. Melad, both of
said constabulary unit.
Hence, assailing his conviction by the court below, appellant comes to us with the following
assignment of errors:
I. The court a quo gravely erred in giving weight and credence to the theory of the
prosecution and in disregarding that of the defense.
II. The court a quo gravely erred in finding that there exists conspiracy in the case at bar.
III. The court a quo gravely erred in convicting accused-appellant of the crimes charged
despite the prosecution's failure to prove his guilt beyond reasonable doubt.
9

We find merit in the arguments and submissions of appellant in the petition at bar.
As earlier noted, the rule is firmly entrenched that a judgment of conviction must be predicated on
the strength of the evidence for the prosecution and not on the weakness of the evidence for the
defense. Accusation can never be made synonymous with guilt. It is incumbent on the prosecution to
demonstrate that culpability lies and the freedom of the accused can be forfeited only if the requisite
quantum of proof necessary for conviction is in existence.
10

In the present case, we find the evidence for the prosecution leaving much to be desired vis-avis the moral certitude exacted by law to prove the guilt of the appellant. Pathetically, said evidence
which consisted primarily of the testimony of the lone survivor, Joseph Ferrer, is replete with
irreconcilable inconsistencies which are neither trifling nor unimportant as to be of little
consequence.
Thus, while the trial court noted that Ferrer on the two occasions when he was under preliminary
examination testified that he saw appellant and his companions fire upon the hut where he and his
friends were resting, he twice categorically declared in open court that they were all fast asleep
when he heard a sudden burst of gunshots. One can only wonder how Ferrer could have
witnessed the firing from outside when he was, as he stated, in deep slumber. This disposes of
Ferrer's statement in his so-called ante mortem statement and his extrajudicial statement before
Pat. Porfirio G. Divina that herein appellant was one of those who shot him and his companions on
that occasion.
11

12

13

More telling is Ferrer's prevarications in his aforesaid purported ante mortem statement and
extrajudicial statement where he positively stated that appellant was armed with an armalite. This
was obviously intended to support his story that appellant also fired fatal shots in that incident.
During the trial, however, he diametrically contradicted himself and declared not only once but twice,
on direct examination and cross-examination, that appellant was definitely
unarmed. Parenthetically, his alleged ante mortem statement clearly cannot qualify as such, not
having been made under the consciousness of an impending death, the injuries he sustained which
14

were all in the lower extremities not being fatal. Even considered as such, its credibility and weight
are subject to the same rules as any other testimonial evidence and, as we have already seen,
said witness has himself established the falsity of his pertinent declarations therein.
15

16

On direct examination, Ferrer further testified that he saw appellant, Eleazer Payongan and Basilio
Gomer, Jr. come up the hut and verify whether or not their victims were dead. In fact, he identified
appellant in open court and declared that Payongan and Gomer were not present. Upon
continuation of the examination on a different date, however, he stated that it was appellant,
Payongan and one Diomedes Palattao who went up the hut to make the verification. This is not just
a minor or insignificant error since, in the very nature of this case, identification of the supposed
malefactors is essential. But more important, on the basis of the foregoing discussions, is the
indisputably vital conclusion that Joseph Ferrer is not the reliable and honest witness on whose
uncorroborated testimony the fate of appellant can justly be adjudged by this Court.
17

18

While appellant admitted that he was with the other accused and was at the scene of the crime on
the fateful night of the incident, he nevertheless rebuts the imputation of guilt against him by
maintaining that he had no inkling of the murderous design of his co-accused he having been
invited only for a drink and that he went up the hut only because he was threatened at gunpoint to
do so or else he himself would be shot. We have carefully scrutinized and weighed appellant's
testimony both during his direct examination and cross-examination and find that he had declared
the same facts and maintained the same theory with forthrightness and consistency under rigid
inquisition.
19

Of course, it may be a possibility that at the outset appellant and his companions had no
preconceived murderous plan and it was only during the drinking session or at any time between
such session and the actual massacre that they agreed to commit the crime. Any amount of reliance
on such probability, however, would be purely speculative and a departure not only from the
established facts but also the settled doctrinal rule that surmises and conjectures have no place in a
judicial inquiry and are specially anathema in a criminal prosecution. Thus, although similarly
circumstanced as appellant before and during the commission of the crimes, the other original
accused Danilo Balao, Martin Furugganan and Diomedes Palattao were cleared of any complicity in
or liability for the multiple killings. This cannot but constitute an evident repudiation of the conspiracy
theory insofar as appellant and the others who merely accompanied Gomer and Payongan are
concerned.
Furthermore, albeit no formal agreement is necessary to prove conspiracy and the same may be
inferred from the circumstances attending the commission of the crime, yet conspiracy must be
established by the same quantum of evidence as any other ingredient of the offense. Such evidence
must show intentional participation in the transaction with a view to the furtherance of the common
design or purpose. The same degree of proof necessary to establish the crime is required to
establish a finding of criminal conspiracy, that is, proof beyond reasonable doubt. It cannot be
established by conjectures but by positive and conclusive evidence. Since conspiracy must be
proved beyond peradventure of a doubt, it follows that it cannot be appreciated where the facts can
be consistent with the non-participation of the accused in the fancied cabal.
20

In the case at bar, the fact that appellant was with the other accused when the crime was committed
is not sufficient proof of the existence of conspiracy. Mere companionship does not establish
conspiracy. Neither can conspiracy be inferred from the mere fact that they had been drinking
together prior to the shooting. It strains credulity to assume that, on these antecedents alone,
appellant readily enlisted in a murderous clique without any proven motive on his part and against
victims whose relations with him, antagonistic or otherwise, have not even been shown.
21

22

No conspiracy can moreover be deduced where there is absolutely no showing that appellant
performed any overt act of shooting although he was with the persons who fired the guns. Indeed,
the only incriminating evidence against appellant is that he was at the scene of the crime, but the
reason for his presence was itself sufficiently explained by him as heretofore stated and the same
has not been successfully refuted. Significantly, appellant, by his act of going up the hut, cannot also
be said to have lent in any way even a whit of material or moral aid in the actual commission of the
crimes charged as, by then, said crimes had already been consummated.
We take judicial cognizance at this juncture of the fact on record that the prosecution filed a motion
below for appellant's discharge to make him a state witness. The trial court denied the motion on
the ground that appellant appears to be the most guilty without, however, any creditable explanation
for so holding, beyond a cavalier advertence to the existence of the aforesaid discredited
extrajudicial statements of prosecution witness Joseph Ferrer.
24

25

Finally, it should be observed that flight as an indication of guilt cannot likewise be appreciated
from the fact that appellant left together with his co-accused after the shooting incident or from the
circumstance that he and his family moved to the residence of his in-laws on the following day. As
explained by him, he feared for the safety and security of his family against the threat made by his
co-accused that he himself would be killed should he tell anybody about the murders. This threat
may well be the same reason for appellant's failure to promptly report the incident to the proper
authorities, not to mention the natural reticence of people to get involved in or be dragged into a
criminal investigation. In any event, there is no showing that he intentionally made his presence
scarce in his community as in fact he was arrested in the community's marketplace.
26

27

28

All told, we hold that the evidence against appellant Anacleto Furugganan is not sufficient to
establish his participation or culpability in the alleged criminal conspiracy. Indeed, even if it is
supposed that appellant's defense is not completely worthy of credence, the hard and indelible truth
remains that the evidence for the prosecution is much less so, with all its flaws and improbabilities.
Certainly, to stress the obvious, any doubt as to the guilt of the accused should be resolved in favor
of the presumption of his innocence. For, to paraphrase adictum of ancient respectability which this
Court has adopted with approval and consistency, it is better to let the guilty go scot-free than to
convict an innocent person.
29

Considering that in an adversarial criminal contest, the forces and powers of the state are
marshalled against an accused who is often handicapped in many ways in the preparation and
presentation of his defense, the protective rules recited at the outset of this opinion must be given
full sway in our adjudication of this case in order to make equal that which is basically unequal. We
have done so and we are convinced that a verdict of acquittal rests secure in the hands of justice
and easy on the conscience of the Court.
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and the accusedappellant is hereby ACQUITTED on the ground of reasonable doubt, with costs de oficio.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

Criminal Cases Nos. VIII-499, VIII-500, VIII-501, VIII-510, VIII-538 and VIII-539; Rollo, 2031.
1

Presided over by Judge Felipe R. Tumacder.

Original Record, Criminal Case No. VIII-510, 40.

Original Record, Criminal Case No. VIII-539, 18-21.

Rollo, 59.

Brief for the Appellee, 4-9.

Rollo, 56.

Brief for the Accused-Appellant, 12-14.

Ibid., 10-11.

People vs. Nazareno, 80 SCRA 484 (1977); People vs. Go Bio, Jr., 142 SCRA 238 (1986);
People vs. Rojo, 175 SCRA 119.
10

11

TSN, June 10, 1988, 5-6.

12

Original Record, Criminal Case No. VIII-501, 9-10.

13

Ibid., Criminal Case No. VIII-500, 6-7.

14

TSN, September 28, 1988, 7, 13.

15

People vs. Lanza, 94 SCRA 613 (1979);Sec. 37, Rule 130, Rules of Court.

16

People vs. Aniel, et al., 96 SCRA 199 (1980); People vs. Ola, 152 SCRA 1 (1987).

17

TSN, June 10, 1988, 6.

18

TSN, September 28, 1988, 5.

19

TSN, March 16, 1989, 2-25; May 24, 1989, 2-21.

20

People vs. Drilon, et al., 123 SCRA 72 (1983); People vs. Martinez, 127 SCRA 260 (1984).

21

People vs. Sosing, 111 SCRA 368 (1982).

22

People vs. Realon, et al., 99 SCRA 422 (1980).

23

People vs. Benavidez, et al., 127 SCRA 188 (1984).

24

Original Record, Criminal Case No. VIII-499, 92-93.

25

Ibid., Id., 115-117.

26

See U.S. vs. Alegado, 25 Phil. 510 (1913).

27

People vs. Estocada, et al., 75 SCRA 295 (1977); People vs. Realon, et al., supra.

28

TSN, March 16, 1989, 185-186.

29

People vs. Sadie, 149 SCRA 240 (1987).

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G. R. No. L-57519 September 13, 1988
DELFIN ORODIO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Benigno P. Pulmano for petitioner.
The Solicitor General for respondents.

SARMIENTO, J.:
The petitioner, Delfin Orodio, together with the brothers Angel Obedoza and Manuel Obedoza, were
convicted of the crime of murder by the then Court of First Instance of La Union (Branch I), based on
the Information 1 quoted hereunder:
That on or about the 18th day of June, 1975, in the Municipality of Santol, Province
of La Union, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with a firearm, conspiring and
confederating with each other and mutually helping one another, without justifiable
cause, and with deliberate intent to kill, did then and there, upon having stood in
ambush, willfully, unlawfully and feloniously, by means of treachery and with evident
premeditation, attack, shot and hit by means of a firearm MARCELINO TURALBA,
inflicting upon him gunshot wounds in several parts of his body, perforating several
internal organs and tissues which directly caused hemorrhage, shock, secondary to
wounds at the heart and lungs resulting to the death of said victim soon thereafter to
the prejudice and damage of his heirs.
CONTRARY to Article 248 of the Revised Penal Code as amended.
Unsatisfied with the Judgment of the trial court, 2 all the accused elevated their case to the Court of
Appeals. However, during the pendency of their appeal, Manuel and Angel Obedoza withdrew it, thereby
leaving only the appeal of the petitioner to take its due course.
Except for a modification of the penalty, the respondent Court of Appeals affirmed the convinction of
the petitioner. Now before us is the appeal, by way of a petition for review on certiorari, of the
assailed decision, the dispositive portion of which reads as follows:

In view of all the foregoing, we found the guilt of the appellant of the crime charged
proven beyond reasonable doubt. We also agree with the Solicitor General that,
there being no modifying circumstances present in the commission of the crime, the
imposable penalty should be "reclusion perpetua" which is the medium period of the
penalty imposed for murder (Art. 248, R.P.C.). The appellant should also be entitled
to four-fifths of his preventive detention, there being no proof that he had agreed to
abide by the same disciplinary rules imposed upon convicted prisoners.
WHEREFORE, with the modification above indicated, the decision appealed from is
hereby affirmed. With costs against the appellant.
SO ORDERED. 3
The pertinent facts supported by the evidence are summarized as follows:
At about six o'clock in the morning of June 18,1975, at Corooy, Santol, La Union, Marceliano Turalba
was on his way to the fields carrying a plow on his shoulder, followed by his daughter, Florie, and his
wife, Herminigilda. (Florie would take a bath by the well. Herminigilda was under instruction of her
husband to follow him always wherever he would go because someone was threatening his life. 4)
While they were walking along a trail, Herminigilda saw Angel Obedoza, about ten meters away, pointing
a long firearm at her husband, which prompted her to shout "Angel is going to shoot you." 5 But it was all
for naught as the shot was fired nonetheless hitting her husband who instantly slumped to the
ground. 6 As Florie turned her head toward the sound of gunshot, she saw Angel Obedoza holding a long
firearm in the company of his older brother, Manuel, and Delfin Orodio. 7 The presence of Angel's two
companions was also noticed by Herminigilda. 8 Then, the three (Manuel, Angel, and Delfin) fled in
different directions. 9 Moments later, after severely wounded Marceliano was carried back to his home, he
died. 10 In the autopsy examination conducted by Dr. Ubungen right inside the house of the victim, six
rounded pellets were extracted from his body. 11 apparently coming from a shotgun cartridge.
The petitioner now argues that:
1. The Court of Appeals erred in convicting him based solely on the alleged existence
of conspiracy among the accused cused Obedoza brothers and him, simply because
of his passive presence at or near the scene of the crime as well as the alleged
moral support provided and moral ascendancy exerted by him over the gun wielder
into committing the crime.
2. The Court of Appeals erred in not appreciating in his favor the mitigating
circumstance of voluntary surrender, assuming the correctness of its decision.

12

The respondent Court of Appeals passed sub-silencio on the first submission of the petitioner that
the conspiracy found by the trial court is not supported by proof and law, but only by presumptions or
conjectures. 13 Obviously, the respondent court has adopted the theory of implied conspiracy upheld by
the trial court, otherwise the decision of the respondent court would not have any factual or legal basis as
to the petitioner, there being no proof of his participation in the shooting aside from his presence near the
scene of the crime and running away therefrom, disputed to be sure, but findings nonetheless.
On the other hand, the trial court dealt with the issue of conspiracy head on, declaring its existence
by and among the Obedoza brothers and the petitioner. Be that as it may, in convicting the three of
them, the trial court correctly re-stated the prevailing doctrine that active or direct participation in the
actual commission of the crime is not necessary to convict an accused as a co-conspirator.
Citing People vs. Cortez, 14 the trial court declared, likewise accurately, that it is enough that the accused

performs an overt act in furtherance of the conspiracy either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-conspirators by being present at the
scene of the crime, or by exerting moral ascendancy over the rest of the co-conspirators as to move them
to executing the conspiracy. Consequently, the trial court said that while only Angel fired at the victim with
a shotgun, resulting to his death, the hard fact of the matter remains that Manuel and the petitioner were
actually present and controlled the commission of the crime. Manuel and the petitioner were three (3)
meters apart from each other and only about ten (10) meters away from Angel when the latter fired at
Marceliano. The presence of Manuel and the petitioner at the scene of the crime with Angel, the gunman,
was not explained, impugned, or disputed by the defense except by their denial of the charge together
with their defense of alibi, which the trial court rejected. It held that there is no good and valid reason why
Manuel and the petitioner were present with Angel at the scene of the crime on that very early morning of
June 18, 1975, except, the judge surmised, to lend moral support to their youngest co-conspirator who,
we reiterate, alone did the shooting. Conspiracy is substantiated, according to the trial court, by the fact
that Manuel has that commanding power of moral ascendancy over his four years his junior. On the other
hand, as viewed by the trial court, Delfin appears to be not only a father to his co-accused Angel in point
of age, being about 40 years old at the time of the incident, who could have easily asserted his moral
ascendancy over the 22-year old Angel, but also possessed of the dominating and dangerous power over
his co-conspirator for, it is claimed, the petitioner is a professional cold-blooded killer previously thrice
convicted of homicide. Prescinding from these dubious findings and non-sequitur conclusions, the trial
court ruled that conspiracy was proven beyond reasonable doubt and all the three accused were
convicted of murder.

We disagree.
As above adverted to, in affirming the Judgment of the trial court, the respondent court did not
squarely pass upon the issue of conspiracy. The only circumstances that seem to have persuaded
the respondent court in affirming that a conspiracy existed are the fact of petitioner's presence at or
near the scene where the late Marceliano Turalba was shot by Angel Obedoza and the fact of
simultaneous flight of the petitioner and the Obedoza brothers from the scene of the crime. Nowhere
in the respondent court's decision do we find mention of any other act of the petitioner that may be
construed as an overt act in the furtherance of a conspiracy. Absent such an evidentiary basis, we
can not accept the finding of implied conspiracy. The conclusion of the trial court is based on
subjective considerations, not to positive and convincing evidence.
A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. 15 It is fundamental for conspiracy to exist that there must be unity of
purpose and unity in the execution of the unlawful objective. 16
Direct proof is not essential to establish conspiracy. 17 Since by its nature, conspiracy is planned in
utmost secrecy it can rarely be proved by direct evidence. 18 Consequently, the presence of the
concurrence of minds which is involved in conspiracy, may be inferred from proof of facts and
circumstances which, taken together apparently indicate that they are merely parts of some complete
whole. If it is prove that two or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is
proved. 19 That would be termed an implied conspiracy.
Nevertheless, mere knowledge, acquiescence, or approval of the act, without cooperation or
agreement to cooperate, is not enough to constitute one a party to a conspiracy, but that there must
be intentional participation in the transaction with a view to the furtherance of the common design
and purpose. 20 Conspiracy must be established, not by conjectures, but by positive and conclusive
evidence. 21 In fact, the same degree of proof necessary to establish the crime is required to support a
finding of the presence of a criminal conspiracy, which is, proof beyond reasonable doubt. 22

In the case at bar, even if the finding as regards the presence of the petitioner at or near the scene
where the late Marceliano Turalba was shot by Angel were accurate, the petitioner contends that
mere passive presence at the scene of the crime does not of itself constitute sufficient basis for
concluding that he was in conspiracy with Angel Obedoza who was the actual perpetrator of the
crime.
We find meritorious the submission of the petitioner. The presence of the petitioner at the scene
when the crime was perpetrated is not by itself indicative of the existence of conspiracy between him
and Angel or with Manuel, or, for that matter, by and among the three of them. The petitioner must
be shown to have had guilty participation in the criminal design entertained by the slayer, Angel. 23 In
a long line of decisions, this Court has held that mere presence at the scene of the crime, without more,
does not imply conspiracy. 24
The evidence for the prosecution does not reveal any proof aside from his mere passive presence at
the scene of the crime, upon which to base the trial court's conclusion that the petitioner provided
moral support to and exerted moral ascendancy over his so-called co-conspirators as to move them
to execute the putative conspiracy.
The trial court's finding, affirmed by the respondent court, that the petitioner exerted moral
ascendancy over the gun-wielder, Angel Obedoza, based on the fact that the former could have
been a father, in point of age, of the latter, and even adding the fact that the petitioner is a convicted
killer and a recidivist, is purely speculative and devoid of any legal basis. It is true that the petitioner
is a recidivist. He candidly admitted, in the course of his testimony, that he had just been convicted
of triple homicide and had already began to serve his sentence. 25 It would indeed be proper for us to
appreciate recidivism as a generic aggravating circumstance should there be a conviction in this case.
But, from our view of the evidence, it has not been convincingly established that the petitioner cooperated
in the commission of the offense, either morally, through advice, encouragement, or agreement, or
materially, through external acts indicating a manifest intent of supplying aid in the perpetration of the
crime in an efficacious way. 26 The petitioner did not take any active part in the perpetration of the offense
nor was he heard to have uttered anything. Such being the case, his mere passive and mute presence at
the scene of the crime does not make him either a co-principal or accomplice in the commission of the
offense, 27 no matter how criminal his mind might be, or, no matter how many convictions of murder he
might have.
Furthermore, as correctly stated by the petitioner, the trial court's declaration in its Judgment that
moral ascendancy was exerted by the petitioner over the gun-wielder, Angel Obedoza, is founded on
a wrong premise, that is, the existence of a conspiracy where the petitioner is a coconspirator. 28 Conspiracy presupposes the presence of a preconceived plan or agreement. In order to
establish such a plan or agreement, it is not enough that the persons supposedly engaged or connected
with the same be present when the crime was perpetrated. There must be established a logical
relationship between the commission of the crime and the supposed conspirators, evidencing a clear and
more intimate connection between and among the latter, such as by their overt acts committed in
pursuance of a common design. 29
The fact that the petitioner fled from the scene after the shooting does not suffice to prove the
conspiracy there being no evidence to convince us that his running away from the scene had been
interwoven with a pre-conceived plan or agreement to kill the victim. Fear of implication in the crime
could have been a plausible reason for the petitioner's act of fleeing.
At the risk of being repetitious, there is a total absence of evidence to show any previous plan or
agreement between the Obedoza brothers and the petitioner to kill the victim. Equally wanting is
proof that the acts of the petitioner stemmed from a prior plan or design to kill the victim. Criminal

conspiracy must be established by positive evidence, and conviction must be founded on facts, not
on mere inferences and presumptions. 30
By and large, the evidence on record fails to satisfy the requirement of moral certainty needed to
hold the petitioner guilty of the charge as a co-conspirator. For it is only by proof beyond reasonable
doubt, which requires moral certainty-a certainty that convinces and satisfies the reason and
conscience of those who are to act upon it may the presumption of innocence be overcome. 31
WHEREFORE, the decision appealed from is hereby REVERSED and the petitioner, Delfin Orodio y
Valdez, is ACQUITTED for lack of proof beyond reasonable doubt. No costs.
SO ORDERED.
Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the absence of adequate evidence to establish moral ascendancy by petitioner over the
gun-wielder.
Regalado, J., took no part.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the absence of adequate evidence to establish moral ascendancy by petitioner over the
gun-wielder.
Regalado, J., took no part.
Footnotes
1 Original Record, 36.
2 Rendered by Judge Angel A. Daquigan, Rollo, p. 41-67.
3 Busran Mama D., J.; Villasor, Guillermo P. and Melo, Jose A.R., JJ.

4 T.s.n., session of May 19, 1976, 3-4; T.s.n., session of March 16, 1976, 5-7.
5 Id., session of May 19, 1976, 5, 7.
6 Id., T.s.n., session of March 16, 1976, 8.
7 T.s.n., session of March 16, 1976, 8.
8 T.s.n., session of May 19, 1976, 8.
9 Id.; T.s.n., session of March 16, 1976, 12.
10 Id., 14; Id., 9.
11 T.s.n., session of August 12, 1976, 5-9.
12 Petition for Review, 5; Rollo, 23.
13 Brief For Accused-Appellant Delfin Orodio in the Court of Appeals, CA Rollo,
58(20).
14 L-31106, May 31, 1974.
15 Art. 8, Revised Penal Code; People vs. Rojas, et al., Nos. L-46960-62, January 8,
1987.
16 People vs. Bautista, et al., No. L-31900, August 6, 1979.
17 People vs. Saavedra, No. L-48738, May 18,1987; Vizconde vs. Intermediate
Appellate Court, No. 74231, April 10, 1987; People vs. Tala, No. 69153-54, January
30, 1986; People vs. Ebora, et al., No. 31013, February 10, 1986; People vs.
Villanueva, No. L-32274, April 2, 1984; People vs. Pueblas, No. L-32859, February
24, 1984; People vs. Villason, No, L-38208, July 30, 1982.
18 People vs. Peralta, et al., L-19069, October 29, 1968.
19 People vs. Peralta, supra, citing People vs. Carbonel, 48 Phil. 868 (1926).
20 People vs. Izon, et al., 104 Phil. 690 (1958).
21 People vs. Palon, No. L-33271, February 20, 1984; People vs. Martinez, No. L33907, January 31, 1984.
22 People vs. Saavedra, supra; People vs. Viray, No. 72892, January 7, 1987;
Moniza, Jr. vs. People, No. 72719, September 18,1986; People vs. Palon, supra;
People vs. Benavidez, No.
L-59985, January 20, 1984; People vs. Drilon, Jr., No. L-33431, June 28, 1983;
People vs. Sosing, No. L-42791, January 30,1982; People vs. Custodia, No. L30463, October 30, 1972.

23 People vs. Pimentel, et al., No. L-47915, January 7, 1987; People vs.
Drilon, supra.
24 People vs. Saavedra, supra; People vs. Pimentel, supra; People vs. Sabilano, No.
L- 32866-7, September 21, 1984; People vs. Madera, No. L-35133, May 31, 1974;
People vs. Wong, No.
L-22130-32, April 25, 1968; People vs. Tividad, No. L-21469, June 30, 1967; People
vs. Izon, supra; People vs. Ibaez, 77 Phil. 664 (1946).
25 T.s.n., session of March 10, 1977, 3-4.
26 People vs. Custodia supra.
27 Id.
28 Petition for Review, 12; Rollo, 30.
29 People vs. Custodia supra.
30 People vs. Marquez, No. L-31403, December 14, 1981.
31 People vs. Go Bio, Jr., No. 68575, June 6, 1986; People vs. Custodia, supra.

Homicide
In a criminal case before the Court of Appeals, the accused, whom I represent, filed a motion for
reconsideration of the judgment of the said court convicting them for the felony of homicide. The accused,
in their pending motion for reconsideration, raised the following issues: lack of criminal intent, criminal
negligence, lack of proof beyond reasonable doubt, credibility of witnesses, and conspiracy. May I share
with the visitors of this blog the substance of the said motion for legal research purposes. Thus:

x x x.
INTRODUCTION
This pleading respectfully seeks the kind reconsideration of the DECISION, dated ____, of this Honorable
Court, which affirmed with modifications the appealed Decision, dated ___, of the Regional Trial Court,
Branch ___, of Xxx City.
MATERIAL DATES
The undersigned counsel for the appellants received via registered mail a certified true copy of the
abovementioned Decision of this Honorable Court on ___, Monday. The 15th day of the undersigned
counsel to file this motion for reconsideration expires on _____, Tuesday. This motion which was
originally intended to be filed on _____, Monday, would instead be filed on September 8, 2009, Tuesday,
because ____ was recently declared as a special non-working holiday nationwide (date of burial of the
executive minister of the Iglesia Ni Cristo Church).
ERRORS
With all due respect to this Honorable Court, the appellants humbly submit that it ERRED:
1. In giving full faith and credence to the questionable testimonies of all the prosecution eyewitnesses;
2. In not crediting as reasonable doubts in favor of the appellants all the various inconsistencies in the
testimonies of all the prosecution witnesses;
3. In not ruling that the prosecution had failed to destroy the presumption of innocence and the equipoise
doctrine which the Constitution grants in favor of the appellants, in the light of all the reasonable doubts
raise and argued by the appellants in their appeal brief.
4. In applying the existence of conspiracy between the two appellants;
5. In holding that the appellants are liable for damages arising from the death of the deceased ___.
6. In applying Article 4 of the Revised Penal Code; and
7. Assuming arguendo that the appellants are liable, in not applying instead Article 365 of the Penal Code
on reckless imprudence resulting in the death of the deceased, which provision imposes a much lower
penalty, as proved by the evidence on record.

DISCUSSION
Being closely related to each other, the abovementioned assigned errors will be discussed jointly.
Offhand, it must be noted that the appellants have no criminal cases other than the instant case. (See:
Memorandum [Return of Warrant/Order of Arrest], dated ____, of the Warrant and Subpoena Section,
thru P/Insp. Edgar C. Ariate, Record, p. 92. See also Arrest Report, dated ___, issued by the same
Section, Record, pp. 94). They are not notorious criminals. They are peace-loving and respected
individuals of their barangay for decades, maintaining a happy and united family and a lawful livelihood
store.
The first prosecution witness Xxx Xxx (a brother of the deceased Xxx Xxx) admitted on cross examination
that he had no personal knowledge of the incident. His information about the incident came from his
brother Xxx Xxx (who reported the matter to him after the incident) and from Xxx Xxx and her husband
(whom he interviewed 4 hours after the incident, i.e., at 3:00 AM of March 1, 2006). [Decision, p. 3; TSN,
1 August 2006, p. 7-53].
It will be noted that the second prosecution witness Dr. Rolando Victoria (medico-legal officer), who
conducted the autopsy on March 6, 2006, stated that he had no factual basis and direct personal
knowledge for the conclusion that the death was due to mauling, for it was only conveyed to him,
although he was sure that the actual cause of death was traumatic head injuries. He did not conduct a
blood alcohol test on the blood of the deceased because the victim was already dead. (Decision, p. 3;
TSN, 22 August 2006, pp. 11-74). There is nothing in his testimony that would rule out the possibility that
the traumatic injury of the deceased could have been caused by an accidental fall or that would absolutely
limit such injury within the realm of homicidal intentions.
The third prosecution witness x x x (a brother of the deceased) testified that it was already 11:00 PM of
February 28, 2006 (i.e., 15 to 30 minutes after the incident had happened and 1 hour after he heard the
shouting in front of his gate) that he went to the scene of the incident with his brother in law, xxx. He
stated that the deceased was drunk at the time of the incident. The deceased had undergone alcohol
rehabilitation. (Decision, p. 4, TSN, 19 September 2006, pp. 4-42).
The fourth prosecution witness xxx (a brother-in-law of prosecution witness Xxx) testified that from 10:00
PM to 11:00 PM he was at home (i.e., 15 to 30 minutes after the incident happened). At 11:00 PM of the
said date, his mother-in-law informed him of the incident. His house was located 30 meters away from the
scene of the incident. He went alone to the scene of the incident (contrary to the statement of Xxx that
they were together in going to the scene of the incident); that he just saw Xxx already at the scene of the
incident, (Decision, p. 5; TSN, 31 October 2006, pp. 6-42). Just like Xxx, he testified that he allegedly saw
the entire event, which was incredible.
The two prosecution witnesses Xxx and xxx testified that they allegedly saw the two appellants
simultaneously assaulting the deceased. The record however shows that this was contrary to the
statement of another so-called prosecution eyewitness in the person of xxx who clearly stated that she
saw only the appellant Xxx Xxx [not Xxx Xxx] doing the said act).
Xxx Xxx, who was the fifth prosecution witness, testified that she was sleeping at 11:00 PM of February
28, 2006 (15 to 30 minutes after the incident) when she heard a commotion outside her house, which was
located 15 meters away from the house of the appellants. She stated that she allegedly saw appellant
Xxx Xxx assaulting the deceased while his father appellant Xxx Xxx was watching. She saw the incident
after it had happened and while she was sleeping.
It must be noted that on cross examination, Xxx Xxx testified that the incident happened at 11:30 PM
(thus moving the actual time of the incident by 45 minutes to 1 hour). She stated that the appellant Xxx
Xxx was allegedly assaulting the deceased continuously from 15 to 30 minutes. She clearly stated that
prosecution eyewitness Xxx Xxx and other neighbors were present only after the incident, i.e., the

deceased was already being brought to the hospital. She clearly stated that the appellant Xxx Xxx had
nothing to do with the death of the deceased. She stated that she was the one who informed xxx and xxx
Xxx about the incident after it had happened (not during and while it was happening). (Decision, pp. 5-6;
TSN, 8 February 2007, pp. 5-36).
It is respectfully submitted that this Honorable Court erred in not giving credence to the substance of the
sworn statement, dated March 30, 2006, of the appellant Xxx Xxx (Exh. 1; Record, pp. 306-297-303)
which he had affirmed in open court. Its following allegations were no rebutted by the prosecution, thus:
X x x.
1. Lumabas na din ako ng aming tindahan at inaya ko ang aking ama na pumasok na ng bahay at hayaan
na lamang si xxx na umuwing mag-isa. Ngunit dahil sa pagpupumiglas ni xxx ay nakawala siya sa hawak
ng aking ama. At dahil sa kalasingan niya at pasuray na pagkawala, nawalan siya ng balanse at napatid
siya sa kanyang tsinelas kaya ito ay natumba una ang ulo sa semento;
2. Mabilis lamang at walang nakakita sa pangyayari dahil tulog na ng mga kapitbahay kaya ang sinasabi
ni Xxx Xxx sa kanyang Salaysay na ibinigay sa pagtatanong ni PO3 Xxx noong ika-1 ng Marso 2006 na
nakita niya na itinulak ko sa mukha at pinagsusuntok ko diumano si xxx ay walang katotohanan at udyok
o utos lamang ng pamilyang Xxx. Paano ko ito gagawin gayong malaki ang katawan ni xxx kaysa sa akin
at hindi ako maglalakas loob na gawin ito dahil kilala ang pamilyang Xxx sa aming lugar na
maimpluwensiya at maaring balikan ako ng mga ito. Kung anuman ang pinangako ng pamilyang Xxx kay
Xxx sa kanyang pagbigay ng Salaysay laban sa akin ay sila na lamang ang nakakaalam;
3. Dahil nga sa tulog na ang mga tao nang mga oras na yon gaya ng inamin nina Xxx at xxx sa kanilang
mga Sinumpaang Salaysay na may petsa na ika-2 ng Marso 2006 nagpapatunay lamang na wala sila sa
lugar ng pinangyarihan at hindi maaring maabutan pa nila ito;
4. Makikita sa mga Salaysay ni Xxx at Sinumpaang Salaysay na may petsang ika- 2 ng Marso 2006 nina
Xxx at xxx na magkaiba. X x x. Sinabi ni Xxx na ako lamang ang diumanoy sumuntok kay xxx habang
ang aking ama ay nakamasid lamang samantala ng sabi nina xxx at xxx ay kaming dalawa ng aking ama
ang nanuntok. X x x.
5. Sinabi din ni Xxx na dinala na si xxx sa ospital bago niya pinuntahan ang bahay ni xxx na kapatid ni
xxx upang ipaalam ang
nangyari. Kung sa ganon ay hindi na dapat nasaksihan pa nina xxx at xxx ang diumanoy panununtok ko
ng aking ama kay xxx gayong nasa ospital na ito bago ipaalam sa kanila ang nangyari;
6. Sa madaling salita, nadatnan na lamang nina xxx at xxx si xxx sa ospital kaya hindi maaring sila pa
ang tumawag sa barangay para dalhin si xxx sa ospital at hindi rin maari na nakita nila kami ng aking ama
sa aktong diumano ng pagsusuntok namin kay xxx;
7. Ibig sabihin ay kung nakarating man sila sa lugar ng pinangyarihan ay nakalipas na ang pagkatumba at
pagkabagok ng ulo ni xxx sa semento at imposibleng nasaksihan pa nila ang pangyayari kaya
kasinungalingan at gawa-gawa lamang ang diumanong Salaysay nila na pinagtulungan namin ng tatay ko
si xxx . Ang katotohanan ay sa ospital na lamang nilang dalawa at Xxx naabutan si xxx . Ito rin ay inamin
ni Xxx sa kanyang Salaysay na ginawa sa pagtatanong ni PO3 xxx noong ika- 2 ng Marso 2006 nang
sinabi niya na nagtungo siya sa ospital bago nagbalik sa pinangyarihan, parte ng kanyang Salaysay ay sa
ospital ang sumusunod:
Malaman ko lang x x x na itong si xxx ay kanilang dinala sa xxxx District Hospital x x x kayat agad akong
nagtungo sa ospital x x x Matapos kong malaman ang kundisyong ng aking kapatid x x x ay nagbalik ako
doon sa pinangyarihan x x x ( Sagot 08 sa kanyang Salaysay)

It is humbly submitted that this Honorable Court gravely erred in not giving credence to the honest,
forthright, simple and straightforward testimony of the appellant Xxx Xxx, thus exposing the appellants to
serious penalties that they do not deserved and which are not supported by the evidence on record.
Affirming his earlier extrajudicial sworn statement, the appellant Xxx Xxx testified that at around 10:00PM
on 28 February 2006 he and other relatives were watching television at home (their store was located
outside their home with a distance of 9 meters). The deceased Xxx Xxx, already drunk from other places,
arrived and asked for a bottle of beer. His wife refused to give him another round of beer because he was
too drunk. The deceased even molested his wife by touching her waistline. His father and co-appellant
Xxx Xxx offered to bring the deceased to his house by placing his hand on the shoulder of the deceased
to assist him to walk safely (as the deceased was pasuray-suray). He accompanied his father (in
bringing the deceased to his house) so that his father would have a companion on his way back home
(since it was very late at that time). His father Xxx Xxx lost his hold on the victim, because the deceased
was struggling against his fathers helpful gesture to bring him home. The deceased slipped, his head
hitting the pavement. The incident happened near the house of Aling Vangie, not that of Xxx Xxx. [The
former defense counsel neglected to present xxx to the witness stand]. It was xxx, not Xxx Xxx, who
shouted for the help of the Barangay. Some people from a nearby house came out to wake up the
deceased. [The former defense counsel neglected to present the said people to the witness stand,
despite the gravity of the offense charged against the appellants). The deceased was a friend of his father
for many years and a neighbor of their family, living on the same street (___St.). The appellants had no
reason at all to kill or harm the deceased. He and his father did not escape. At 12:30 AM of March 1, 2006
(midnight) his father was invited by the local police and detained at the police station (without a warrant
of arrest). The appellants have no notorious criminal records and pending criminal cases, other than the
instant case. (Decision, pp. 6-7; TSN, 5 July 2007, pp. 11-72).
It will be noted that the second defense witness Dr. _____ (Emergency Room doctor, Xxx General
Hospital) testified that at around 10:30 PM of February 28, 2006 (which is closer to 10:45 PM by 15
minutes vis--vis the time alleged by the appellant Xxx [10:45 PM], and not 11:00 PM as alleged by Xxx
and Xxx Xxx; and not 11:30 PM as alleged by Xxx), he attended to the deceased. He clarified on cross
examination that he attended to the deceased at around 10:40 PM of the said date (which is still much
earlier than the time alleged by Xxx, xxx, and Xxx). (Decision, p. 7; TSN, 31 July 2007, p. 17).
The appellants wish to stress the following points in this motion:
1. Xxx stated that she saw Xxx assaulting the deceased at about 11:30 PM of 28 February 2006. The
incident happened at 10:45 PM. The emergency room doctor, Dr. ___, who had no reason to lie as an
independent witness, testified that he attended to the victim between 10:30 PM to 10:40 PM, or 1 hour
prior to the time alleged by Xxx and 15 to 30 minutes prior to the time alleged by Xxx and xxx.
2. Xxx Xxx did not state that she saw Xxx Xxx and xxx during the actual occurrence of the incident (which
she alleged took place at 11:30 PM). Xxx Xxx and Xxx Xxx alleged that the incident happened at 11:00
PM (or 30minutes before the time alleged by Xxx Xxx [11:30 PM]).
3. Xxx Xxx (brother of the deceased) and his brother in law Xxx Xxx perjured themselves when they
testified that they actually saw the entire incident (i.e., Xxx Xxx and Xxx Xxx assaulting the deceased).
Xxx Xxx testified that she informed them about the incident only after it had already happened. Therefore,
they did not witness the incident.
4. Xxx Xxx and Xxx Xxx perjured themselves when they testified that Xxx and Xxx Xxx assaulted the
deceased to death. Xxx Xxx, who informed them about the incident after it had ended, testified that what
she allegedly saw was that only Xxx Xxx was assaulting the deceased and that Xxx was doing nothing.
5. The fact that the deceased and the appellant Xxx Xxx were long-time friends for many years and
neighbors living on the same street is uncontested by the prosecution. There was no motive of hate, envy,
ego, and the like that could have impelled the appellants to kill the deceased.

6. The fact that the deceased was in his mid-life and that he was drunk (and habitually drunk), which is an
uncontested fact in the Record, notwithstanding the absence of a formal blood alcohol test report, and the
fact that the deceased was brought to the hospital only by a tricycle after his head had hit the pavement
contributed to his unexpected demise which accelerated his death).
The grossly reckless and extremely prejudicial errors committed by the former counsel for the accused
before the court a quo (originally, Atty. Xxx Xxx and a certain Atty. Xxx; then later, Atty. Xxx Xxx)
consisted of the following procedurally and substantively harmful acts which had radically jeopardized the
life and liberty of the appellants and by extension the happiness and peace of mind of their families, to wit:
1. The former defense counsel Atty. Xxx Xxx did not present (a) the appellant Xxx Xxx, (b) the members
of the families of the appellants who had personal knowledge of the incident, e.g., their wives, and (b)
their neighbors who had likewise witnessed the incident. (See Order, dated ___, Record, p. 256; and
Order, dated __).
2. During the pretrial on ___, the former defense counsel (Atty. Xxx Xxx and Atty. Xxx) manifested that
they would present 6 defense witness, namely: the 2 appellants, their respective wives (Xxx and Xxx),
and 2 additional witnesses whose identities would be disclosed by them during the trial. (Order, 22 June
2006; Record, pp. 101-102).
This was not done by the former defense counsel, despite the extremely prejudicial effects the case
would wreak on the appellants and on their lives and liberty upon conviction.
The former defense counsel did not explain to the trial court and to the appellants why they neglected to
perform their foregoing open-court commitment to present the aforementioned corroborating witnesses.
The trial court did not inquire with the former defense counsel why this was not done. It did not exert any
helpful efforts to protect the procedural and substantive due- process rights of the uneducated appellants,
despite the gravity of the offense charged against them and the seriousness of the ill effects and
consequences of their convictions.
3. During the preliminary conference before the Branch Clerk of Court, the former defense counsel, Atty.
Xxx Xxx manifested that she would present 4 defense witnesses (Report of the Preliminary Conference
by the Branch Clerk of Court, dated ___, Record, pp. 97-98). The aforecited observation is hereby
reiterated in this section for the same reason as stated above.
4. During the trial, the former defense counsel, Atty. Xxx Xxx, presented only 2 defense witness, namely,
the appellant Xxx Xxx and Dr. ___ (Emergency Room doctor). She did not present the other appellant Xxx
Xxx, his wife Dolores Xxx, his daughter-in-law Xxx (wife of appellant Xxx Xxx), and others in the
neighborhood.
5. The former defense counsel did not present character evidence to prove the reputation of the Xxx
Family and the appellants in their area, i.e., character witnesses, NBI Clearance, Police Clearance,
Barangay Clearance, Parish Priests Certification, Civic Organizations Endorsements, and the like. This
case involves a crime of moral turpitude and character evidence is crucial to prove the credibility of the
appellants and the falsity of the testimonies of the so-called eyewitnesses.
6. The former defense counsel did not move for the submission of an exhaustive Memorandum to assist
the trial court to see and interpret the evidence as they are -- and in line with the constitutional
presumption of evidence and the equipoise rule.
The appellants respectfully reiterate hereinbelow the relevant jurisprudence in aid of their plea for
acquittal, as argued in their appeal brief.
Where there appears in the record some fact or circumstance of weight and influence which has been
overlooked or the significance of which has been overlooked or the significance of which has been

misinterpreted or unless some conclusion established from the facts is inconsistent with the trial courts
findings or there is some inherent weakness in the evidence upon which the conclusion is based, the
appellate court must review and correct the same. Such is the case in this appeal. (CARMEN
YTURRALDE, et. Al. vs. MARIANO VAGILIDAD, et. al., G.R. No. L-20571, May 30, 1969).
Where the inculpatory circumstances are capable of two or more explanations, one of which is consistent
with the innocence of the accused and the other with his guilt, then the evidence does not meet the test of
moral certainty, and that necessarily, a judgment of acquittal must issue. This is the time-honored
equipoise doctrine. Verily, the Supreme Court has repeatedly held that where the circumstances shown to
exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence while
the other or others may be compatible with the finding of guilt, the Court must acquit the accused: for the
evidence does not then fulfill the test of moral certainty and is insufficient to support a judgment of
conviction. Indeed, a corollary to the constitutional presumption of innocence is the rule that the
circumstances of the case must exclude all and each and every hypothesis consistent with appellants
innocence. (PEOPLE OF THE PHILIPPINES vs. JOEL ELLOREG DE LOS SANTOS, et. al., G.R. No.
126998. September 14, 1999).
Although the identification of an accused by an eyewitness is a vital piece of evidence and most decisive
of the success or failure of the case for the prosecution, eyewitness identification has been described by
authors as being inherently suspect, and, not infrequently, inaccurate. The identification made by Xxx Xxx,
Xxx Xxx and Xxx Xxx in the instant case is not only suspicious and inaccurate but totally perjurious.
Although, in murder and homicide cases, motive is not an element of the offense, it becomes material
when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has
been committed or whether the accused has committed it. [People vs. Faustino, G.R. No. 129220, 06
September 2000; People v. Astorga, 283 SCRA 420, 433 (1997), citing People v. Sta. Agata, 244 SCRA
677, 684 (1995); People v. Cayetano, 223 SCRA 770 (1993); People v. Magpayao, 226 SCRA 13, 27
(1993)].
The overriding consideration is not whether a court has doubts on the innocence of the accused (because
innocence is constitutionally presumed), but whether it entertains such doubts on his guilt. [People vs.
Pagauia, 267 SCRA 17]. If a human life must be taken to pay a debt to society, let not a wrong man, ever,
be made to account for it. The trek to Justice is not a game of chance or skill but a quest for truth, the only
path by which the righteous end can be reached. (People vs. Faustino, G.R. No. 129220, 06 September
2000).
Only by proof beyond reasonable doubt, which requires moral certainty, may the presumption of
innocence be overcome (People vs. Custodio, 47 SCRA 289 [ 1972]). Moral certainty has been defined as
a certainty that convinces and satisfies the reason and conscience of those who are to act upon it.
(People vs. Lavarias, 23 SCRA 1301 [1967]). Absent the moral certainty that accused-appellant caused
the death of the victim, acquittal perforce follows. Proof beyond reasonable doubt is needed to overcome
the presumption of Innocence (People vs. Reyes, 60 SCRA 126 [1974]). Accused-appellants guilt must
be proved beyond reasonable doubt (People vs. Maliwanag, 58 SCRA 323 [ 1974]) otherwise, the Court
would be left without any other recourse but to rule for acquittal. Courts should be guided by the principle
that it would be better to set free ten men who might be probably guilty of the crime charged than to
convict one innocent man for a crime he did not commit. (En Banc, Melo, People v. Tagudar [G.R. No.
130588. June 8, 2000]).
It is submitted that conspiracy has not been established by the prosecution. Conspiracy must be
established, not by conjectures, but by positive and conclusive evidence. Conspiracy transcends mere
companionship and mere presence at the scene of the crime does not in itself amount to conspiracy.
Even knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party
to a conspiracy, absent any active participation in the commission of the crime with a view to the
furtherance of the common design and purpose. (LADONGA VS. PEOPLE, GR 141066, February 17,
2005).
Conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept

that imputes culpability under specific circumstances; as such, it must be established as clearly as any
element of the crime. Evidence to prove it must be positive and convincing, considering that it is a
convenient and simplistic device by which the accused may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction
must always be founded on the strength of the prosecutions evidence. (Id.).
It must be noted further that the rule is firmly entrenched that a judgment of conviction must be predicated
on the strength of the evidence for the prosecution and not on the weakness of the evidence for the
defense. The proof against him must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The conscience must be satisfied that on the defense could be laid the
responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a
crime. What is required then is moral certainty. It is the role of the prosecution to prove the guilt of the
appellant beyond reasonable doubt in order to overcome the constitutional presumption of innocence. In
sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt
of the crime charged. In criminal cases, moral certainty -- not mere possibility -- determines the guilt or the
innocence of the accused. Even when the evidence for the defense is weak, the accused must be
acquitted when the prosecution has not proven guilt with the requisite quantum of proof required in all
criminal cases. (Id.).
(See also: TEVES, et al. vs. THE SANDIGANBAYAN, GR 154182 EN BANC, December 17, 2004, which
held that conspiracy must be established separately from the crime itself and must meet the same degree
of proof, i.e., proof beyond reasonable doubt, and that the evidence must reasonably be strong enough to
show community of criminal design).
Finally, as held in Vda. De Enriquez vs. Atty. Manuel San Jose, A.C. No. 3569, February 23, 2007, the
Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted
to him, and his negligence in connection therewith shall render him liable. A lawyer engaged to represent
a client in a case bears the responsibility of protecting the latters interest with utmost diligence. It is the
duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to
protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is
qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate
attention to his legal work.
Indeed, when a lawyer takes a clients cause, he covenants that he will exercise due diligence in
protecting the latters rights. Failure to exercise that degree of vigilance and attention expected of a good
father of a family makes the lawyer unworthy of the trust reposed in him by his client and makes him
answerable not just to his client but also to the legal profession, the courts and society. Until the lawyers
withdrawal is properly done, the lawyer is expected to do his or her best for the interest of the client. The
appellants submit that in this case, their former defense lawyers fell short of the diligence required of a
lawyer entrusted with a case. (Id.).
The appellants humbly reiterate the argument in their appeal brief to the effect that, as held in the case of
DOMINGO DEGUZMAN, vs. SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, G.R. No.
103276, April 11, 1996, new trial may be allowed on the ground of negligence or incompetency of
counsel. When what is at stake is the life and liberty of a party (not just pesos and centavos) and when
such party is about to lose his liberty because his former lawyers pursued a carelessly contrived
procedural strategy of insisting on what has already become an imprudent remedy, the Court may
suspend the Rules in the interest of justice and allow a new trial.
Paraphrasing the foregoing Supreme Court decision, the appellants present dilemma is certainly not
something reducible to pesos and centavos. No less than their liberty is at stake here. And they are just
about to lose it simply because their former lawyers pursued a careless procedural strategy. Under the
circumstances, higher interests of justice and equity demand that the appellants should not be penalized
for the costly mistakes of their previous lawyers. To cling to the general rule in this case is only to
condone rather than rectify a serious injustice to appellants whose only fault was to repose their faith and
entrust their innocence to their previous lawyers. (Id.).

The rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice.
Their strict and rigid application, which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be avoided. Even the Rules of Court envision this liberality. The
power of the appellate court to remand this case to the trial court in order to allow the appellants to
present additional evidence is in line with the compassionate power of this appellate court to dispense
justice and not to bind and chain the hand that dispenses it. That is precisely why courts in rendering real
justice have always been, as they in fact ought to be, conscientiously guided by the norm that when on
the balance, technicalities take a backseat against substantive rights, and not the other way around. Truly
then, technicalities, in the appropriate language of Justice Makalintal, "should give way to the realities of
the situation". And the grim reality petitioner will surely face, if we do not compassionately bend
backwards and flex technicalities in this instance, is the disgrace and misery of incarceration for a crime
which he might not have committed after all. More so, considering that appellants clean record as citizens
remained unscathed until their prosecution in the instant case. Indeed, "while guilt shall not escape,
innocence should not suffer". (Id.).
Finally, the appellants humbly thank this Honorable Court for crediting them with the validated conclusion
that they indeed had no intent to kill the deceased. However, the appellants humbly submit that the Court
erred in applying to them Article 4 of the Revised Penal Code, which provides that criminal liability is
incurred by any person committing a felony (delito) although the wrongful act done be different from that
which he intended. Under the said provision, anyone who inflicts injuries voluntarily and with intent is
liable for all the consequences of his criminal act, such as death that supervenes as a consequence of the
injuries.
The appellants beg to disagree with this conclusion of the Court that they committed a minor crime
(mauling the deceased) which resulted in a major crime (homicide).
They submit that they are not liable for the demise of the deceased for such was caused by an accident
caused by his own drunkenness or by force majeure.
At the most, assuming that they are indeed liable for anything, arguendo, the most that could perhaps be
applied to them is Article 365 of the Penal Code which speaks of reckless imprudence resulting in
homicide and which carries a very much lower penalty.
Article 3 of the Revised Penal Code classifies felonies according to the means by which they are
committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are
distinguished from each other by the existence or absence of malicious intent of the offender. In
intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is
performed with deliberate intent (with malice). The offender, in performing the act or in incurring the
omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the
offender is not malicious. The injury caused by the offender to another person is unintentional, it being
simply the incident of another act performed without malice. As stated in Art. 3, the wrongful act results
from imprudence, negligence, lack of foresight or lack of skill. (ROLLIE CALIMUTAN vs. PEOPLE OF
THE PHILIPPINES, GR No. 152133, February 9, 2006; citing People vs. Sara, 55 Phil. 939).
In the case at bar, the Court should not, in good conscience, attribute to appellants any malicious intent to
injure, much less to kill, the deceased. In the absence of such intent, the Court should not sustain the
conviction of appellants for the intentional crime of homicide, as rendered by the trial court. At the most,
the appellants may be held liable for the felony of reckless imprudence resulting in homicide under Article
365 of the Revised Penal Code.
Under Article 365 of the Revised Penal Code, reckless imprudence consists in voluntarily, but without
malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform such act, taking into consideration his
employment or occupation, degree of intelligence, physical condition and other circumstances regarding
persons, time and place. (Id.).

The facts in aforecited case of ROLLIE CALIMUTAN vs. PEOPLE OF THE PHILIPPINES, GR No.
152133, February 9, 2006 are apropos:
It should be remembered that the meeting of the victim Cantre and witness Saano, on the one hand, and
petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties
were on their way to different destinations. The victim Cantre and witness Saano were on their way
home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were
walking from the market to Crossing Capsay. While the evidence on record suggests that a running
grudge existed between the victim Cantre and Bulalacao, it did not establish that there was likewise an
existing animosity between the victim Cantre and petitioner Calimutan.
In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was
the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and
companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift
and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court
dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into
account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of
five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and
stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner
Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter
when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon
to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the
victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly
probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the
position of the victim
Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner
Calimutan, the latter also desisted from any other act of violence against the victim Cantre.
The above-described incident could not have taken more than just a few minutes. It was a very brief
scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate
course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court
of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was
evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre
on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the
notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as
quickly as possible.
The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the
specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court
was petitioner Calimutans intention to drive away the attacker who was, at that point, the victim Cantre,
and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than
the victim Cantre. [35]
Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the
victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a
stone the size of a mans fist could inflict substantial injury on someone. He also miscalculated his own
strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force
as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters.
Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the
proximate cause of the latters death, despite being done with reckless imprudence rather than with
malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains
the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of
P50,000.00 as civil indemnity for his death and another P50,000.00 as moral damages.

X x x. (underscoring supplied).
RELIEF
WHEREFORE, in the interest of justice, it is respectfully prayed that the Decision, dated ___, of this
Honorable Court be RECONSIDERED and that the appealed Decision, dated ___, of the Trial Court be
annulled and set aside and that a new one be promulgated dismissing the instant case; or, in the
alternative, that the case be remanded to the trial court to enable the appellants, thru their new counsel,
to present additional witnesses and evidence in support of their defenses which their former counsel had
neglected to present.
FURTHER, the appellants respectfully pray for such and other reliefs as may be deemed just and
equitable in the premises.
Xxx, xxx.