FIRST DIVISION

[G.R. No. 5240. November 19, 1909.]

THE UNITED STATES, plaintiff-appellee, vs. LINO
EGUIA LIM BUANCO (alias LIM BUANCO) and LUCIANO DE LOS
REYES, defendants-appellants.

O'Brien & De Witt for appellant Lim Buanco.

Felipe Buencamino for appellant Luciano de los Reyes.
Solicitor-General Harvey for appellee.
SYLLABUS

1. TWO DEFENDANTS CHARGED IN ONE INFORMATION; SEPARATE TRIALS;

SINGLE JUDGMENT. — When two defendants are charged jointly in one information and
separate trials are demanded, the constitutional right thereto is preserved if the cases are
tried separately, and the conclusions of facts and law reached in each case solely upon the
separate and distinct records made therein, although the trial court embodies its findings and
conclusions in one sentence. It must, however, clearly appear that the sentence as to each
defendant is based upon the evidence submitted upon the separate trial of his case.
2. JUDGMENT; STATEMENT IN FINDINGS THAT DEFENDANT FAILED TO
TESTIFY IN HIS OWN BEHALF. — A statement in the findings of the trial court that the
defendant did not testify in his own behalf is not a violation of the constitutional right of the
defendant, if it clearly appears that his neglect or refusal to testify was in no manner used
against him.
3. ID.; ID. — If the findings of fact and conclusions of law are based solely on the
evidence actually introduced, a mere statement by way of recital preliminary to the actual
findings that the defendant did not testify in his own behalf is not a violation of the statutory
provision that "his neglect or refusal to be a witness shall in no manner prejudice or be used
against him."
4. SUFFICIENCY OF INFORMATION CHARGING "ESTAFA." — The information
examined and found to contain the allegations essential to the crime of estafa.
5. CHECK BY DRAWER WITH NO FUNDS ON DEPOSIT; "ESTAFA;" PRINCIPALS
IN CRIME. — Where a customer of a bank draws a check thereon when he has no funds to
his credit, and through a previous understanding with a clerk in the bank, the check is by said
clerk marked as entitled to payment, and is paid by the bank in reliance on said certification,
the drawer of the check and the clerk are guilty as principals of the crime of estafa.
6. ID.; ID.; NEGLIGENCE OF BANK OFFICIALS AS DEFENSE. — Under such
circumstances the fact that the officials of the bank may be guilty of negligence, or acting in
violation of the laws of the bank in paying the check, is not available as a defense on behalf
of either the clerk or the fraudulent drawer of the check.
7. SUFFICIENCY OF INFORMATION; CONSPIRACY; "ESTAFA." — The crime of
conspiracy as known to the common law does not exist under the system embodied in the
Spanish Penal Code, which defines certain specific acts as conspiracies, and provides that a
conspiracy to commit a crime is punishable only in the cases in which the law specifically
makes them so. The information in this case charges the defendants with the crime of estafa,
and does not attempt to charge them with the crime of conspiracy.
DECISION
ELLIOTT, J p:

The defendants, Lino Eguia Lim Buanco, (alias Lim Buanco) and Luciano de los
Reyes, were charged jointly with the crime of estafa. Demurrers to the information were
interposed and overruled. Separate trials were then demanded by the defendants and
granted. Both defendants were found guilty as charged, and each was sentenced to two years
and ten months of presidio correccional in the public carcel of Bilibid, in the city of Manila; to
jointly and separately indemnity the Banco Español-Filipino in the sum of P2,273, Philippine
currency, and in the event of insolvency, to suffer subsidiary imprisonment for the time and in
the manner and place prescribed by law.

The information charged:

"That on or about the 6th day of October, 1906, in the city of Manila,
Philippine Islands, the said Lino Eguia Lim Buanco (alias Lim Buanco) and
Luciano de los Reyes, conspiring and confederating together, did then and there,
willfully, unlawfully and feloniously, and with intent of gain, defraud El Banco
Español-Filipino, a corporation then and there duly organized, existing and doing
a general banking business in the city of Manila, Philippine Islands, of and in the
sum of two thousand (P2,000) pesos, Philippine currency, by then and there
pretending and representing that the said Lino
Eguia Lim Buanco (alias Lim Buanco) did then and there possess property and
credit which the said Lino Eguia Lim Buanco (alias Lim Buanco) did not possess
and the use of other similar deceit, in this, to wit: That on or about the said 6th
day of October, 1906, the said Lino Eguia Lim Buanco (alias Lim Buanco) then
and there prepared, drew, executed, signed, presented, and caused to be
presented for payment to the said El Banco Español-Filipino his personal check
upon the said El Banco Español-Filipino, then and there doing a general banking
business in the city of Manila, Philippine Islands, as aforesaid, for the sum of two
thousand (P2,000) pesos, Philippine currency, a true copy of which check,
together will all the indorsements and notations thereon, made both before and
after the same was paid by the said El Banco Español-Filipino, is hereto
attached, marked 'Exhibit A,' and made a part hereof, and the said Lino
Eguia Lim Buanco (alias Lim Buanco) and Luciano de los Reyes, each well
knowing that the said Lino Eguia Lim Buanco (alias Lim Buanco) did not then
and there have any funds to his credit in said bank, and conniving, conspiring
and concerting together to defraud said bank as aforesaid, did then and there
falsely and fraudulently state and represent to said bank and its agents, and
particularly to Lino Eguia, one of the agents and the cashier of said bank; that
the said Lino Eguia Lim Buanco (alias Lim Buanco) then and there had sufficient
funds deposited to his credit in said bank to meet and pay said check and that
the said Lino Eguia Lim Buanco (alias Lim Buanco) was then and there a
creditor of said bank in an amount more than equal to said check and that the
said bank was obligated to pay and should then and there pay to the said Lino
Eguia Lim Buanco (alias Lim Buanco) the amount of said check; that the said
Luciano de los Reyes was then and there a clerk in the banking institution of 'El
Banco Español-Filipino' and as such was in charge of the book containing the
entry and record of the account of the said Lino
Eguia Lim Buanco (alias Lim Buanco) with said 'El Banco Español-Filipino' and
the said Luciano de los Reyes, cooperating, as aforesaid, with the said Lino
Eguia Lim Buanco (alias Lim Buanco) to defraud the said 'El Banco Español-
Filipino.' at the request and in cooperation with the said Lino
Eguia Lim Buanco (alias Lim Buanco), did then and there falsely state and
cause it to appear upon the books of the said bank and in the account of the said
 Lino Eguia Lim Buanco (alias Lim Buanco) that the said Lino Eguia Lim Buanco,
(alias Lim Buanco) had to his credit in said bank more than enough to pay the
said check of two thousand (P2,000) pesos, and was then and there a creditor
of said bank in more than the amount of said check, and did further then and
there, falsely and fraudulently in combination with the said Lino
Eguia Lim Buanco (alias Lim Buanco), as aforesaid place upon the back of said
check over his signature the word 'corriente,' thereby stating and causing it to
appear and be understood by the said 'El Banco Español-Filipino' and its agents,
and particularly the said Lino Eguia, agent and cashier of said bank, that the said
Lino Eguia Lim Buanco (alias Lim Buanco) had then and there deposited to his
credit in said bank funds more than sufficient to pay the amount of said check
and that the said 'El Banco Español-Filipino' was obligated then and there to pay
and should pay to the said Lino Eguia Lim Buanco (alias Lim Buanco), the
amount of said check; that relying on the false and fraudulent representations,
as aforesaid, of the said Lino Eguia Lim Buanco (alias Lim Buanco), and
Luciano de los Reyes the said 'El Banco Español-Filipino' was induced to pay
and did pay to the said Lino Eguia Lim Buanco (alias Lim Buanco) and his order
the said sum of two thousand (P2,000) pesos, Philippine currency, which said
sum the said Lino Eguia Lim Buanco (alias Lim Buanco), and the said Luciano
de los Reyes then and there converted to their own use, to the damage and
prejudice of the said 'El Banco Español-Filipino' in the said sum of two thousand
(P2,000) pesos, Philippine currency, equivalent to and of the value of ten
thousand pesetas, Philippine currency.
"All contrary to law."
The evidence shows conclusively that for at least three and a half years prior to the
6th day of October, 1906, Luciano de los Reyes was employed in the Banco Español-Filipino,
and there served and acted as bookkeeper and check registry clerk. During that time he was
in charge of certain current account-books of the bank, and it was his duty to inspect certain
checks presented to the bank for payment, including those drawn by Lim Buanco; to examine
the account of the maker of said checks, and determine whether or not the drawer of the check
had a sufficient balance to his credit to justify the payment of the check. In the performance
of these duties, Reyes was required to indorse upon each check, if it was entitled to payment,
the words "Corriente. P.O. Luciano de los Reyes." After the check was marked in this manner
it was passed to the cashier of the bank, who in reliance upon the indorsement, paid or ordered
the same to be paid.
During the period referred to the defendant Lim Buanco had an account with the bank,
and drew large sums of money therefrom by means of checks signed by him, and inspected
and indorsed as above by Reyes.
During this time a conspiracy existed between the defendants Lim Buanco and Reyes
for the withdrawal of funds from the bank by Lim Buanco, regardless of whether he had any
funds in the bank to his credit, and in furtherance of this conspiracy the entries in the account
of Lim Buanco on the books of the bank were fraudulently and illegally manipulated by Reyes
in such a manner as to make the books show an apparent credit balance, when in
fact Lim Buanco was owing the bank a large amount of money.

On the 6th day of October, 1906, Lim Buanco drew a check on the Banco Español-
Filipino for the sum of P2,000, and this check was through the agency of another bank in
which it was deposited by Lim Buanco, presented in due course of business to and paid by
the Banco Español-Filipino. Before the check was thus paid, Reyes, acting in his capacity as
an employee of the bank, indorsed thereon the words "Corriente. P. O. Luciano de los Reyes,"
although at the time when this indorsement was made Lim Buanco had no actual credit
balance in the bank, and no permission had been given him by any officer or officers in
authority of said bank to overdraw his account. In this manner the defendants Lim Buanco and
Reyes, in furtherance of the conspiracy to cheat, deceive, and defraud the bank, secured the
payment of the check, although they both knew at the time that the defendant Lim Buanco had
no credit balance in said bank, but was in fact indebted to the bank in the sum of more than
300,000 pesos, which had previously been withdrawn from the bank by means of similar
checks drawn by Lim Buanco and fraudulently indorsed as correct by Reyes.
The amount of money thus fraudulently obtained from the bank by means of the check
as aforesaid, with interest thereon at the rat of 6 per cent per annum from the date of the
check to the date of the decision in the court below, to wit, January 16, 1909, amounted to the
sum of P2,273, Philippine currency, equivalent to 11,365 pesetas, which the court determined
to be the damage occasioned to and suffered by the bank by reason of the aforesaid
fraudulent conduct of the defendants, acting together in furtherance of said conspiracy. No
part of the said sum has been returned or paid back to the Banco Español-Filipino
by Lim Buanco, or by Reyes, or by any person acting for on in his or their behalf. The trial
court also found that Lim Buanco and Reyes each had voluntarily admitted the crime as
charged against him.
Separate trials were granted to the defendants, but the court, after both were
convicted, embodied its findings of facts and conclusions in one decision, and one joint
sentence was pronounced upon the defendants. Thereafter each defendant separately moved
for a new trial, which was denied, and an appeal was taken to this court, where, as in the court
below, they appear by separate attorneys. Although separate briefs are filed, the various
assignments of errors raise essentially the same questions.
1. It appears that he court in fact granted the motion of the defendants for separate
trials, and that Lim Buanco was tried on January 7 and 12, 1909. This trial was followed
immediately by that of Reyes, and on January 16, after both trials were completed, the court
announced its findings of facts and conclusions in each case in one decision, and imposed
one sentence which included both defendants. The practice of entering one sentence against
several defendants thus jointly charged and separately tried is not that which prevails in the
United States, but it was approved by this court in United States vs. Fernandez (9 Phil. Rep.,
269), and in the recent case of United States vs. Raymundo, No. 4947. 1
It appears clearly that the sentence as to each defendant was based upon the
evidence submitted upon the separate trial of his case. Every right intended to be protected,
and every purpose sought to be effected by the privilege of a separate trial were effectually
preserved. No rights which accrue to a defendant after the decision and sentence can be
prejudicially affected by the fact that another defendant is included in that sentence. The right
of each to move for a new trial, and to appeal and have his appeal considered upon the record
made in his case is preserved unimpaired, and in its entirely. The practice is convenient, and
saves much time and labor, and as it can in no way prejudice the rights of a defendant, there
is no reason why it should not be approved.
2. In the statement preliminary to the findings, and by way of recital, the trial court
stated that neither of the defendants testified as a witness in his own behalf. The defendants
contend that this was a violation of their constitutional right. In proceedings under the jury
system it is generally provided by statute that the court must not in the presence of the jury
refer to the fact that the defendant has availed himself of the right to decline to be a witness,
but much of the importance of the matter disappears when the case is tried by a court without
a jury. The judge is necessarily in possession of the fact that the defendant has a right to
testify or not, as he may be advised, and this statutory prohibition is upon the court drawing
any inference of guilt from the fact that the defendant elects not to testify. Under the Code of
Criminal Procedure, a defendant has the right to appear and defend in person or by counsel,
and if he offers himself as a witness he may be cross-examined as any other witness, but "his
neglect or refusal to be a witness shall in no manner prejudice or be used against him." The
question under this statute is not whether the court referred to the fact that the defendant did
not testify, but whether his failure to testify was used to his prejudice. The reference here is in
the preliminary statements and it is very clear from the entire proceedings and the sentence
that this circumstance was not considered as an evidential fact, and that it in no manner
affected the conclusion reached by the court upon the question of the guilt of the defendants
or either of them.
3. It is urged that the complaint does not allege facts sufficient to constitute the crime
of estafa, because it does not allege specifically that Lim Buanco did not at the time when the
check was drawn have funds to his credit in the bank sufficient to pay the check. The position
is without merit, because the complaint does in fact allege that the check was drawn
by Lim Buanco, and "that the said Lino Eguia Lim Buanco (alias Lim Buanco), and Luciano
de los Reyes, each well knowing that the said Lim Buanco did not then and there have any
funds to his credit in said bank, and conniving, conspiring and concerting together to defraud
the bank, etc." Under the liberal rule of construction prescribed by General Orders, No. 58,
and frequently approved by this court, this, when read in connection with the rest of the
complaint, must be construed as a sufficient allegation that both Lim Buanco and Reyes when
the check was drawn knew that Lim Buanco did not have sufficient money in the bank to pay
the same. (see U.S. vs. Cajayon, 2 Phil. Rep., 570.)
It is also claimed that the court erred in finding the defendants guilty of the crime
of estafa, because the evidence fails to prove the essential elements necessary to constitute
this offense. This claim rests upon the assertion that the evidence shows that the money must
have been obtained with the consent of the bank; that Lim Buanco never presented the check
to the bank, or made any representations to the bank nor any person that he had sufficient
money in the bank to pay the check; that he merely used the check in his commercial
transactions with the Chartered Bank, of India, Australia, and China, and had it credited to his
account in that bank, with the understanding that it would be presented to the Banco Español-
Filipino, and if paid, the credit should stand; otherwise it should be canceled. It is true
that Lim Buanco drew the check and deposited it to his own credit in the Chartered Bank of
India, Australia, and China, by which it was presented for payment to the Banco Español-
Filipino, upon which it was drawn. The Chartered Bank of India, Australia, and China was not
defrauded, because the check was in fact paid. The implied representation to the Chartered
Bank that the check would be paid in the ordinary course of business was made good, and
therefore the Chartered Bank suffered no loss, but the argument based on this fact loses sight
of the real offense which was committed against the Banco Español-Filipino. That bank never
intended to allow Lim Buanco to overdraw his account, although it did intend to pay the check;
that is, it intended to perform the physical act of paying the check, but that act was induced
by the combined fraudulent act of Lim Buanco and Reyes. Through the fraudulent
machinations and devices of these two defendants, the Banco Español-Filipino was induced
to part with its money. In order to obtain this result, Lim Buanco drew the check, and Reyes,
acting and operating in connection with him, falsified the records of the bank, and thus
accomplished their fraudulent purpose. The allegation in the information, and the statement
in the findings of the trial court, that the defendants conspired and confederated together to
defraud the bank, and that in furtherance of the conspiracy the defendants did defraud the
bank, means no more than that they operated together, and so operating succeeded in
defrauding the bank.
Counsel for the defendant Reyes contends that the court committed an error in holding
that the evidence shows that Reyes is guilty as principal of the crime of estafa. Upon this
record we are satisfied that both the defendants are equally guilty. Each performed the part
which was necessary to enable them to accomplish the criminal purpose they had in view.
Article 535 of the Penal Code says that:
"The following shall incur the penalties of he preceding articles:
 "1. He who shall defraud others by using a fictitious name, by assuming
fictitious power, influence, or attributes, or by pretending to possess imaginary
property, credit, commission, enterprises, or business, or by using any other
similar deceit that is not one of those mentioned in the following cases."
Lim Buanco certainly by implication represented to the bank that he possessed a
credit to which he was not entitled, and with the assistance of Reyes he gave that claim the
color of truth, and thus deceived the bank. The fact that Reyes falsified the accounts-current
of Lim Buanco, making him appear as a creditor when as a matter of fact he was a debtor of
the bank, together with the fact that he acted in collusion with Lim Buanco, made him guilty of
a deceit under the province of the paragraph above quoted. We can not see that this
conclusion is in the least affected by the fact that under the by-laws of the bank it may have
been the duty of the directors of the bank to ascertain the correctness of the entries made by
Reyes before the payment of the check. The fraudulent conduct of Reyes can not be deprived
of its criminal character by the fact that other officers, directors, or employees of the bank may
have been careless in the performance of their duties. Whatever may have been the strict
duty of the other officers of the bank, the fact remains that Reyes was guilty of fraudulently
manipulating the records of the bank, and he can not escape the legal consequences thereof
by showing that if others had properly performed their duties he would not have been able to
have accomplished anything by his fraudulent acts. We are referred to a judgment of the
supreme court of Spain of March 22, 1871, to the effect that one who misstates the boundaries
of land upon which he places a mortgage to secure the payment of a loan of money, is not
guilty of the crime of estafa, because such misstatement did not amount to a false
representation that he owned any property, credits, or business which he did not have. We
can not see that this decision is at all applicable to the present case. Here the bank was
deceived by the affirmative act of Reyes, acting in conjunction with Lim Buanco. In the case
referred to the boundaries of the land were well known, and the creditor had the right to
ascertain for himself the superficial area of the property before he accepted the same as
security. Had the party by some fraudulent suggestion or device misrepresented the area of
the land, and prevented the person to whom he was giving the mortgage from making any
examination for himself, it is probable that a different conclusion would have been reached.

It is impossible to accept the contention that this was merely a case of overdraft on the
part of Lim Buanco, and that the bank intentionally and in the ordinary course of business
permitted the overdraft. All the facts are inconsistent with such a claim, and the evidence fails
to justify the conclusion that the bank or its proper authorities ever intended to
permit Lim Buanco to overdraw his account. It is somewhat difficult to understand why these
irregularities, which extended over many months, were not previously discovered, but the
failure earlier to discover the fraud does not deprive the acts of the defendants of criminality.
The defendants contend that the crime charged in the information is conspiracy, and
not estafa. As we read the complaint and consider the evidence, the conspiracy referred to
therein means no more than an agreement or understanding between the parties that they
should work together to accomplish a fraudulent purpose. The crime of conspiracy as known
to the common law does not exist under the system embodied in the Penal Code. Under the
common law, a combination of two or more persons to do an unlawful act by lawful means, or
a lawful act by unlawful means, to the prejudice of an individual or the public, is a distinct
offense. The Penal Code defines certain acts as conspiracies and makes them punishable,
and the statutes of the Philippine Islands have created certain crimes which are denominated
conspiracies. Article 4 of the Penal Code says that there is a conspiracy when two or more
persons act together for the commission of a crime, and decide to commit it, but it also
provides that a conspiracy or proposition to commit a crime is punishable only in the cases in
which the law specifically makes them so. A penalty for such conspiracies is provided in but
a few instances. Article 137 provides that conspiracies to commit any of the crimes mentioned
 in the three preceding articles, which relate to the crime of treason, shall be punishable with
the penalty of presidio mayor. Article 157 imposes the penalty of reclusion perpetua to death
upon any person who shall kill the king, and article 158 provides that a conspiracy to commit
such a crime shall be punished with reclusion temporal. Article 164 provides that a conspiracy
to kill the immediate successor to the crown, or the regent of the kingdom, shall be punished
with the penalty of prision mayor in its medium and maximum degrees. Article 235 provides
that conspiracies to commit the crime of rebellion shall be punished with the penalty of prision
correccional in its medium and maximum degrees, and article 240 provides that a conspiracy
to commit the crime of sedition shall be punished with the penalty of arresto mayor or prision
correccional in its minimum degree. These are the only conspiracies which are made
punishable by the Penal Code. (See 3 Alcubilla, 281.) Sections 4, 7 and 8 of Act No. 292, and
section 1 of Act No. 1692, declare that certain specified acts shall constitute criminal
conspiracies, and provide for their punishment, but the legislature has not yet deemed it
advisable to adopt the general common law of conspiracy. It thus appears that when two or
more persons act together for the commission of a crime, and proceed to commit the crime
of estafa, the act is not a criminal conspiracy under the Penal Code, because no penalty has
been provided therefor nor is it within the provisions of Acts Nos. 292 or 1692. No crime of
conspiracy is attempted to be charged against the defendants by this information. They are
charged with the crime of estafa, committed in the manner described in the information, and
upon the evidence they were properly convicted of that crime.
The judgment and sentence of the trial court should be and are therefore affirmed with
the costs of this instance against the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.
||| (U.S. v. Buanco, G.R. No. 5240, [November 19, 1909], 14 PHIL 472-484)

SECOND DIVISION

[G.R. No. 11034. December 12, 1916.]

THE UNITED STATES, plaintiff-appellee, vs. PONCIANO REMIGIO ET
AL., defendants-appellants.

Southworth & Goyena for appellants.

Attorney-General Avanceña for appellee.
SYLLABUS

1. CRIMINAL LAW; TRIAL; SEPARATE TRIAL OF CODEFENDANTS. — Where two

or more defendants are charged jointly with a felony a severance must be granted if applied
for, without condition or limitation.
2. ID.; APPEAL AND ERROR; RECEPTION OF EVIDENCE. — It is reversible error
to introduce into one criminal case the testimony of a witness or witnesses as evidence in
another criminal case over the objection of the defendant in the latter, although such
defendant was present in court when the witness or witnesses testified.
DECISION

TRENT, J p:
 The defendants, Ponciano Remigio, Jose Gomez Arce, Antonio Dizon, and Martin
Sancianco, each being sentenced to ten years and one day of prision mayor, to pay a fine of
1,250 pesetas, to jointly and severally indemnify the offended party in the sum of P10,000,
and to the payment of the costs of the cause for the crime of estafa by means of the
falsification of a commercial document, appealed.
After overruling the demurrers, the entry of pleas of "not guilty," and the granting of
separate trials by the court, the following proceedings were had; the Honorable Charles S.
Lobingier presiding:
The case against Jose de Leon, who was charged in the same complaint, but who has
since died, was first called for trial and Southworth said:
"I wish to have it appear that in this case now on trial I only represent Sr.
De Leon."
Private counsel for the prosecution then offered in evidence a certain document, and
Southworth said: "Objected to as to the defendants Remigio, Arce, and Dizon on the ground
that these men have never announced themselves as ready for trial. We are now trying the
case of the United States vs. De Leon.
"The court: 'Objection is overruled on the ground that these defendants
are present in court and answered when the case was called and announced
that they were represented by counsel who makes the objection. Proceed.'"
The prosecution called its first witness, Augusto Tuason, and on being asked this
question:
"Now, referring to the employment of Ponciano Remigio, Arce, and Dizon
as subagents, by whom they are employed, by you or by Jose Leon?"
Southworth objected, saying,
"I ask the court to understand that counsel for De Leon objects to all
testimony against Remigio, Dizon, and Arce on the ground that those three men
are not on trial, and on the ground that no conspiracy has been established to
authorize the introduction of this testimony as against the defendant De Leon.
The court: 'Objection overruled.'"
Similar objections were made during the examination of this witness and like rulings
were entered, to which counsel noted their exceptions. On the termination of the examination
of the witness the court said:
"'We will now suspend the case against De Leon and take up the
separate case of the United States against Ponciano Remigio.' Gibbs, private
counsel for the prosecution: 'I offer the testimony of this witness, Augusto
Tuason, now on the stand, against the defendant, Ponciano Remigio." The court:
'Mr. Southworth, have you any cross-examination on behalf of the
defendant, Remigio?" Southworth: 'We are not ready for trial; we announced that
to the court.' The court: 'For what reason?' Southworth: 'On the ground that he
has made an application for a severance, and on the ground that he is going to
make application to have his case tried in such a way that the evidence which is
not competent as to him shall not go to the court; on the ground that he will make
an application, if his honor, who is now presiding, hears the case of the United
States against De Leon through; that the defendant, Remigio, will make an
application to have his case heard by another judge who has not heard the
incompetent testimony against him.' The court: 'You may make the application
now. I am now ready to hear the case of Remigio, and any application you may
wish to make you may make now.' Southworth: 'I will state that the application is
premature now as his honor has not heard all the evidence in the other case.'
The court: 'I prefer to take up each case by itself, and I am now ready to hear the
case of the United States against Ponciano Remigio. Is that the only reason you
have to offer?" Southworth: 'For the further reason that the case of the United
States against De Leon is now pending and on trial before the court and one
witness has been introduced and examined and quite a bit of documentary
evidence has been introduced. The defendant (Remigio) is not ready to go to
trial because his attorney is engaged in court in the trial of the case of the United
States vs. Jose de Leon at this time.' The court: 'The trial of Jose de Leon having
been temporarily suspended, the objections of counsel for the
defendant Remigio are not well taken, and there being no sufficient reasons
shown why said defendant is not ready for trial, we will proceed with the trial of
the case of the United States against Ponciano Remigio.' Southworth: 'To which
defendant objects on the ground that it deprives him of the rights and privileges
of his application for a separate trial, which has heretofore (been) presented by
the defendant and granted by the court.' The court: 'The separate trial of
Ponciano Remigio will now proceed.'
Gibbs: 'Have you any cross-examination, Mr. Southworth?"
"Southworth: 'No evidence having been introduced in the case
against Remigio, there is nothing for the counsel for Remigio to cross-examine.'
"The court: 'There being no cross-examination, we will now suspend the
trial against Ponciano Remigio and take up the separate case of the United
States against Jose Gomez Arce.'
"Gibbs: 'I now offer in evidence the testimony of the witness, Augusto
Tuason, now on the stand, against the defendant, Jose Gomez Arce. (To
Southworth) Do you wish to cross-examine the witness?'
"Southworth: 'To which the defendant Arce objects on the ground that
this testimony is sought to be introduced as a whole and not be separate
questions and answers. The testimony is sought to be introduced against the
defendant Arce which was taken in the case against De Leon when the
defendant Arce had announced that he was not ready for the trial and was not
represented by counsel in that case. The announcement was made to his honor
on the bench.'
"The court: 'The defendant Arce being now present, and having been
present throughout the hearing of the testimony now offered, and having stated
in open court that he was represented by the same counsel who conducted the
cross-examination of said witness, the objection is overruled. The said counsel
is given an opportunity to cross-examine said witness.'
"Southworth: 'To which defendant Arce objects.'
"Gibbs: 'Do you decline to cross-examine the witness?'
"Southworth: 'No evidence having been introduced in the case against
Jose Gomez Arce, there is nothing to cross-examine.'
"The court: 'There being no cross-examination of the witness offered by
the prosecution in the separate trial of the United States vs. Jose Gomez Arce,
we will now suspend said trial and proceed with the separate trial of the case of
The United States vs. Antonio Dizon.'
"Gibbs: 'I offer the testimony of this witness, Augusto Tuason, now on the
stand, in the case of the United States against Antonio Dizon. (To Judge
Southworth) Do you wish to cross-examine?"
 "Southworth: 'The same objection, with the further objection that no issue
has ever been joined between the United States and Antonio Dizon; that there is
a demurrer now pending to the complaint which has never been passed upon
and the case has never been set for trial.'
"The court: 'Ruling to the last objection is reversed pending its
determination. We will suspend the trial of Antonio Dizon and take up the
separate trial of Martin Sancianco.'
"Gibbs: 'I offer in evidence the testimony of the witness Augusto Tuason,
now on the stand, against the defendant Martin Sancianco.'
"Paredes: 'Objected to as his case has not been called for trial.'
"The court: 'Counsel is mistaken in his statement that said case has not
been called for trial. It was announced for trial at the beginning of the morning
session, when the accused was present with his counsel. Objection is therefore
overruled and said counsel is given opportunity to cross-examine the witness
whose testimony has been offered by the prosecution and which witness is now
on the stand.'
"Gibbs to Paredes: 'Do you wish to cross-examine?"
"Paredes: 'There being no evidence against the defendant Sancianco,
counsel for Martin Sancianco waives the right to cross-examine the witness for
the present. I except the ruling of the court.'"
The case of the United States against Jose de Leon was then resumed and the second
witness for the prosecution, Lucas Guevara, was called to the stand, and during the
examination of this witness objections were made to the testimony which tended to incriminate
the other defendants, but the objections were overruled.
"Southworth: 'I wish to announce to the court that the defendant Dizon
asked for time to prepare for his case.'
"The court: 'How much time do you require?"
"Southworth: 'Notice overruling the demurrer was served upon the
defendant just fifteen minutes ago, and this is Saturday afternoon. His counsel
is engaged in the trial of another case and he asks until Thursday in which to
prepare for his trial.'
"The court: 'Mr. Dizon will be given the two days allowed by General
Orders No. 58 to prepare for trial. His counsel is hereby notified to be ready at
the end of that period.'
"Southworth: 'Exception.'"
Sixto Roxas, the third witness for the prosecution, was introduced and after the
termination of the examination the court adjourned until January 12, and upon reconvening,
Gibbs said:
"'I offer the evidence of the witness (Roxas) now on the stand against the
defendant Remigio.'
"Southworth: 'I object to this testimony on the same ground as given to
the other defendants.'
"The court: 'Same ruling.'"
The case against Jose Gomez Arce was then called and the same offer made by
Gibbs, to which the same objections were entered.
"The court: (To Southworth) 'Have you any cross-examination?"
 "Southworth: 'The defendant has not prepared his case for trial and is not
prepared now to cross-examine the witness.'
"The court: 'There being no cross-examination, we will suspend the trial
as to the defendant Jose Gomez Arce and take up the case against Martin
Sancianco, now present.'"
The same procedure was gone through with as to the offering of Roxas' testimony and
objection by counsel. On resuming the case against Remigio, the testimony of another
witness taken in the case of Jose de Leon was offered by Gibbs.
"Southworth: 'To which counsel objects on the ground that he has not
prepared the case of Remigio for trial and has not had an opportunity to consult
the witness and for other reasons given in former objections.'
"The court: 'The objection is overruled.'"
On resuming the case against Arce and on Gibbs offering in evidence the testimony
of another witness taken in the case against De Leon, Southworth objected, saying:
"As stated by counsel in the present case, he does not represent Arce in
this trial that is taking place now; but when the case of Arce is regularly called for
trial he may or may not appear as counsel for the defense."
The case against Remigio was resumed and a like offer was made by Gibbs, to which
Southworth objected, saying:
"'I object for the foregoing reasons and on the further ground that the case
against De Leon, just having been suspended just one minute ago, I have not
had an opportunity to consult with the defendant and determine what cross-
examination shall be conducted in the case of Remigio.'
"The court: 'The court states that if application is made for a consultation
with the defendant Remigio, it will be granted.'
"Southworth: 'I will state that having been in four trials in the last fifteen
minutes, that I would like to have about thirty minutes to consult the witnesses in
the Remigio case.'"
After this question was disposed of the trial of the case against Arce was again
resumed, and the same procedure had.
"The court: 'We will now take up the case against Antonio Dizon, who
pleaded not guilty on Saturday last.'
"Southworth: 'The defendant Dizon objects to coming to trial at this time.'
"The court: 'On what ground?'
"Southworth: 'On the ground that he has not been allowed the time
allowed under the law to prepare his trial, and also on the ground that he has not
been allowed the time asked for in the preparation of his case: that his counsel
has been unable to prepare his case on account of the fact that he has been
engaged in the trial of these other cases.'"
The court ordered the trial to proceed.
"Southworth: 'The defendant (Dizon) now requests that he be granted a
separate trial as provided for in G. O. 58.'
"The Court: 'The request is granted. Proceed with the separate trial of
Antonio Dizon.'
 "Southworth: 'Having been engaged in the trial of Ponciano Remigio up
to a half a minute ago, the counsel asks for five minutes in order to get himself
together to prepare himself for this trial.'
"The Court: 'Counsel for the defendant having announced himself to be
now well and in good condition, and there being no apparent reason for further
preparation, we will proceed with the trial of the United States vs. Antonio Dizon.'"
The trials of the cases proceeded in the same manner until all the evidence was
presented, at the close of which Judge Lobingier ordered the stenographer to transcribe the
notes and furnish the private prosecutor with a transcription, who was to file his brief within
ten days thereafter, giving counsel for the defense a like period within which to file their
argument on behalf of the defendants. Before the stenographer had completed the
transcription Judge Lobingier was appointed United States Federal Judge in Shanghai and
left the Philippine Islands before deciding the cases. Another judge of the city, in pursuance
to a mandate of the Supreme Court, examined the record and entered the judgment appealed
from.
Counsel for the defendants contend that the procedure above set forth shows that the
defendants were, in fact, denied separate trials in violation of section 33 of General Orders
No. 58. We find it unnecessary to considers at this time any of the other assignments of error,
as we are clearly of the opinion that the contention of counsel upon the question of separate
trials is well founded.
Section 33 of General Orders No. 58 reads:
"When two or more defendants are jointly charged with a felony, any one
of the defendants demanding it must be tried separately."
The language of this section is positive and unequivocal. It confers a substantive right,
which was, in the opinion of the legislative body, necessary to provide against the hazard of
one defendant being prejudiced or injured in his defense by evidence of the guilt of his
codefendants in court. The guilt of a defendant cannot be said to have been legally
ascertained; nor can a judgment awarding punishment be rightly imposed, unless the
proceedings and trial have been conducted substantially according to the forms prescribed by
law. Such formulas have been sanctioned by long experience as approved methods to protect
the innocent, and assure reasonable certainty that a conviction was right and true. The plea
of not guilty having been entered, the trial must proceed in the following order: (1) The
prosecution must offer evidence in support of the charge or charges; (2) the defendant or his
counsel may offer evidence in support of the defense: (3) the parties may then offer rebutting
testimony and, by permission of the court, new and additional evidence upon the main issues;
and (4) the arguments. (Sec. 31, General Orders No. 58.)
"In all criminal prosecutions the defendant shall be entitled: . . . (5) To be
confronted at the trial by and to cross-examine the witnesses against him. Where
the testimony of a witness for the prosecution has previously been taken down
by question and answer in the presence of the accused or his counsel, the
defense having had an opportunity to cross-examine the witness, the deposition
of the latter may be read, upon satisfactory proof to the court that he is dead or
insane, or cannot with due diligence be found in the Islands." (Sec. 15, General
Orders No. 58.)
Section 5 of the Act of Congress of July 1, 1902, provides:
"That in all criminal prosecutions the accused shall enjoy the right . . . to
meet the witnesses face to face, . . ." and the same privilege is granted in the Act
of Congress, approved August 29, 1916.
"To be confronted at the trial by and to cross-examine the witnesses
against him" means at his own trial and not at the trial of another. The only
 exception to this rule of substantive law is where a deposition has been taken in
the manner set forth in paragraph 5 of section 15 of General Orders No. 58,
combined with satisfactory proof that the witness is dead or insane or cannot,
with due diligence, be found in the Philippine Islands. To introduce the testimony
of a witness taken in one criminal case into another criminal case over the
objection of the defendant in the latter is a direct violation of the above quoted
provisions of General Orders No. 58, although such defendant may have been
present in court when the witness testified.
The rule as to the scope of a severance is stated in 12 Cyc., 505, as follows:
"A statute giving a right to a severance is imperative. The court must grant
the severance without condition or limitation, and a refusal to do so is reversible
error."
Applying these principles to the instant case it is quite clear that the rights of the
defendants have been prejudiced by the procedure adopted and followed by the court. The
judgment appealed from is therefore set aside and a new trial ordered, with costs. So ordered.
Torres and Araullo, JJ., concur.
Moreland, J., concurs in the result.
Separate Opinions

CARSON, J., concurring:

I concur, on the ground that the judge who pronounced the judgment of conviction and
imposed the penalty did not preside at the trial of the appellants, and no finding as to the facts
or as to the credibility of the witnesses was made by the judge who presided at the trial and
saw and heard the witnesses testify.
||| (U.S. v. Remigio, G.R. No. 11034, [December 12, 1916], 35 PHIL 719-728)

N BANC

[G.R. No. L-19069. October 29, 1968.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. AMADEO PERALTA ET AL., defendants. ANDRES FACTORA,
LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA, FLORENCIO
LUNA and GERVASIO LARITA, defendants-review.

Assistant Solicitor General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee.
J.R. Nuguid for defendants-review.
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ALIBI; MERE DENIAL CANNOT PREVAIL OVER

POSITIVE IDENTIFICATION OF ACCUSED BY PROSECUTION WITNESSES. — The
defense of alibi is generally weak since it is easy to concoct. For this reason, courts view it
with no small amount of caution and accept it only when proved by positive, clear and
satisfactory evidence. In the case at bar, if Parumog and Larita were really confined in me
police trustee brigade for investigation on the day of the incident, there should have been a
record of the alleged investigation. But none was presented. The rule is settled that the
defense of alibi is worthless in the face of positive identification by prosecution witnesses
pointing to the accused as particeps criminis. Moreover, the defense of alibi is an issue of fact
the resolution of which depends almost entirely on the credibility of witnesses who seek to
establish it. In this respect the relative weight which the trial judge accords to the testimony of
the witnesses must, unless patently inconsistent with the evidence on record, be accepted. In
the case at bar, the trial court, in dismissing the case of Parumog, Larita and Luna, said that
"their mere denial cannot prevail over the positive testimony of the witnesses who saw them
participate directly in the execution of the conspiracy to kill Barbosa, Carriego and Santos
Cruz."
2. CRIMINAL LAW; CONSPIRACY; DOCTRINE. — A conspiracy exists when two or
more persons come to an agreement concerning the commission of a felony and decide to
commit it. Generally, conspiracy is not a crime except when the law specifically provides for a
penalty therefore as in treason, rebellion and sedition. The crime of conspiracy known to the
common law is not an indictable offense in the Philippines. An agreement to commit a crime
is a reprehensible act from the viewpoint of morality, but as long as the conspirators do not
perform overt acts in furtherance of their malevolent design, the sovereignty of the State is
not outraged and the tranquillity of the public remains undisturbed. However, when in resolute
execution of a common scheme, a felony is committed by two or more malefactors, the
existence of conspiracy assumes pivotal importance in the determination of liability of the
perpetrators.
3. ID.; ID.; EXPRESS OR IMPLIED CONSPIRACY WHEN PROVED MAKES THE
CONSPIRATORS LIABLE AS CO-PRINCIPAL. — Once an express or implied conspiracy is
proved, all of the conspirators are liable as co- principals regardless of the extent and
character of their respective active participation in the commission of the crime or crimes
perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is
the act of all. When two or more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or collectively, each individual
whose evil will actively contribute to the wrong-doing is in law responsible for the whole, the
same as though performed by himself alone. Although it is axiomatic that no one is liable for
acts other than his own. "when two-or more persons agree or conspire to commit a crime,
each is responsible for al the acts of the others, done in furtherance of the agreement or
conspiracy." The moment it is established that the malefactors conspired and confederated in
the commission of the felony proved, collective liability of the accused conspirators attaches
by reason of the conspiracy, and the court shall not speculate nor even investigate as to the
actual degree of participation of each of the perpetrators present at the scene of the crime.
As to any conspirator who was remote from the situs of aggression, he could be drawn within
the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over
the rest of the conspirators the latter were moved or impelled to carry out the conspiracy. In
fine, the convergence of the wills of the conspirators in the scheming and execution of the
crime amply justifies the imputation to all of them the act of any one of them. It is in this light
that conspiracy is generally viewed not as a separate indictable offense, but a rule for
collectivising criminal liability.
4. ID.; ID.; PRESENCE THEREOF IN MALVERSATION. — The crime of malversation
is generally committed by an accountable public officer who misappropriates public funds or
public property under his trust. However, in the classic case of People vs. Ponte this Court
unequivocally held that a janitor and five municipal policemen, all of whom were not
accountable public officers, who conspired and aided a municipal treasurer in the
malversation of public funds under the latter's custody, were principally liable with the said
municipal treasurer for the crime of malversation. By reason of conspiracy, the felonious act
of the accountable public officer was imputable to his co-conspirators, although the latter were
not similarly situated with the former in relation to the object of the crime committed.
Furthermore, "the private party does not act independently from the public officer: rather, he
knows that the funds of which he wishes to get possession are in the latter's charge, and
instead of trying to abstract them by circumventing the others' vigilance he resorts to
corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means
of accomplishing a deed which by having a public officer as its moral instrument assumes the
character of a social crime." In an earlier case a non-accountable officer of the Philippine
Constabulary who conspired with his superior, a military supply officer, in the malversation of
public funds was adjudged guilty of as co-principal in the crime of malversation, although it
was not alleged, and in fact it clearly appeared, that the funds misappropriated were not in his
custody but were under the trust of his superior, as accountable public officer.
5.ID.; ID.; PRESENCE THEREOF IN RAPE. — In rape, a conspirator is guilty not only
of the sexual assault he personally commits but also of the separate and distinct crimes of
rape perpetrated by his conspirators. He may have had carnal knowledge of the offended
woman only once but his liability includes that pertaining to all the rapes committed in
furtherance of the conspiracy.
6. ID.; ID.; PRESENCE THEREOF IN ROBBERY IN BAND. — With respect to robbery
in band, the law presumes the attendance of conspiracy so much so that "any member of a
band who is present at the commission of a robbery by the band, shall be punished as principal
of any of the assaults committed by the band, unless it be shown that he attempted to prevent
the sine. In this instance, conspiracy need not be proved, as long as the existence of a band
is clearly established. Nevertheless, the liability of a member of the band for the assaults
committed by his group is likewise anchored on the rule that the act of one is the act of all.
7. ID.; ID.; PROOF OF CONSPIRACY. — While conspiracy to commit a crime must
be established by positive evidence, direct proof is not essential to show conspiracy. Since by
its nature, conspiracy is planned in utmost secrecy, it can seldom be proved by direct
evidence. Consequently, competent and convincing circumstantial evidence will suffice to
establish conspiracy. Conspiracy presupposes the existence of a preconceived plan or
agreement. However, to establish conspiracy, "it is not essential that there be proof as to
previous agreement to commit a crime, it being sufficient that the malefactors shall have acted
in concert pursuant to the sine objective. Hence, conspiracy is proved if there is convincing
evidence to sustain a finding that the malefactors committed an offense in furtherance of a
common objective pursued in concert.
8. ID.; ID.; LIABILITY OF CONSPIRATORS. — A time-honored rule in the corpus of
our jurisprudence is that once conspiracy is proved, all of the conspirators who acted in
furtherance of the common design are liable as co-principals. This rule of collective criminal
liability emanates from the snaring nature of conspiracy. The concerted action of the
conspirators in consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise they must be held solidarily
liable. To hold an accused guilty as co-principal by reason of conspiracy, it must be
established that he performed 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 ascendency over
the rest of the conspirators as to move them to executing the conspiracy. The difference
between an accused who is a principal under any of the three categories enumerated in Art.
17 of the Revised Penal Code and a co-conspirator who is also a principal is that while the
former's criminal liability is limited to his own acts, as a general rule, the latter's responsibility
includes the acts of his fellow conspirators.
9. ID.; ID.; IMPOSITION OF MULTIPLE PENALTIES WHERE CONSPIRATORS
COMMIT MORE THAN ONE OFFENSE. — Since in conspiracy, the act of one is the act of
all, then, perforce, each of the conspirators is liable for all of the crimes committed in
furtherance of the conspiracy. Consequently, if the conspirators commit three separate and
distinct crimes of murder in effecting their common design and purpose, each of them is guilty
of three murders and shall suffer the corresponding penalty for each offense.
 10. ID.; ID.; LEGALITY AND PRACTICALITY OF IMPOSING MULTIPLE DEATH
PENALTIES UPON CONSPIRATORS. — There appears to be no legal reason why
conspirators may not be sentenced to multiple death penalties corresponding to the nature
and number of crimes they commit in furtherance of a conspiracy. Since it is the settled rule
that once conspiracy is established, the act of one conspirator is attributable to all, then each
conspirator must be held liable for each of the felonious acts committed as a result of the
conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by
law.
11. ID.; ID.; ID.; EXCEPTIONS TO THE IMPOSITION OF MULTIPLE PENALTIES. —
The two conceptual exceptions are the complex crime under Article 48 of the Revised Penal
Code and the special complex crimes (like robbery with homicide). Anent in ordinary complex
crime falling under article 48, regardless of the multiplicity of offenses committed, there is only
one imposable penalty — the penalty for the most serious offense applied in its maximum
period. Similarly, in special complex crimes, there is but a single penalty prescribed by law
notwithstanding the number of separate felonies committed.
12. ID.; ID.; EVIDENT PREMEDITATION IS NOT ALWAYS INHERENT AND
PRESENT IN EVERY CONSPIRACY. — Evident premeditation is not inherent in conspiracy
as the absence of the former does not necessarily negate the existence of the latter. Unlike
in evident premeditation where a sufficient period of the must elapse to afford full opportunity
for meditation and reflection for the perpetrator to deliberate on the consequences of his
intended deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly,
to commit the felony and forthwith decide to commit it.
13. ID.; PENALTY; IMPOSITION OF A PENALTY DISTINGUISHED FROM THE
SERVICE OF A SENTENCE. — The imposition of a penalty and the service of a sentence
are two distinct, though related, concepts. The imposition of the proper penalty or penalties is
determined by the nature, gravity and number of offenses charged and proved, whereas
service of sentence is determined by the severity and character of the penalty or penalties
imposed. In the imposition of the proper penalty or penalties, the court does not concern itself
with the possibility or practicality of the service of the sentence, since actual service is a
contingency subject to varied factors like successful escape of the convict, grant of executive
elemency or natural death of the prisoner. All that go into the imposition of the proper penalty
or penalties, are the nature, gravity and number of the offenses charged and proved and the
corresponding penalties prescribed by law.
DECISION

PER CURIAM, p:

In the decision in criminal case 7705 of the Court of First Instance of Rizal, subject of
the present automatic review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel
Parumog, Gervasio Larita and Florencio Luna (six among the twenty-two
defendants 1 charged therein with multiple murder) were pronounced guilty, and all sentenced
to death, to indemnify jointly and severally the heirs of each of the victims, namely, Jose
Carriego, Eugenio Barbosa and Santos Cruz, in the sum of P6,000, and each to pay his
corresponding share of the costs.
The information recites.
"That on or about the 16th day of February, 1958, in the municipality of
Muntinlupa, province of Rizal, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, who are convicts confined in the
 New Bilibid Prisons by virtue of final judgments, conspiring, confederating and
mutually helping and aiding one another, with evident premeditation and
treachery, all armed with deadly weapons, did, then and there, willfully,
unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos Cruz,
also convicts confined in the sine institution, by hitting, stabbing and striking them
with ice picks, clubs and other improvised weapons, pointed and/or sharpened,
thereby inflicting upon the victims multiple serious injuries which directly caused
their deaths;
"That the aggravating circumstance of quasi-recidivism is present in the
commission of the crime in that the crime was committed after the accused have
been convicted by final judgments and while they are serving the said judgments
in the New Bilibid Prisons.
"Contrary to law with the following aggravating circumstances:
"1. That the crime was committed with insult to public authorities;
"2. That the crime was committed by a band;
"3. That the crime was committed by armed men or persons who insure
or afforded impunity;
"4. That use of superior strength or means was employed to weaken the
defense;
"5. That as a means of the commission of the crime doors and windows
have been broken;
"6. That means was employed which add ignominy to the natural effects
of the act;
"7. That the crime was committed where public authorities were engaged
in the discharge of their duties."
Upon motion of the provincial fiscal before trial, the lower court dismissed the charge
against one of the accused 2 for lack of evidence. After the prosecution had rested its case,
the charges against six of the accused 3 were dismissed for failure of the prosecution to
establish a prima facie case against them. One of the defendants died 4 during the pendency
of the case. After trial, the court a quo acquitted eight 5 of the remaining defendants.
As early as in 1956, a great number of inmates confined in the national penitentiary at
Muntinglupa arrayed themselves into two warring gangs, the "Sigue-Sigue" and the "OXO,"
the former composed predominantly of Tagalog inmates, the latter comprised mainly of
prisoners from the Visayas and Mindanao. Since then the prison compound has been rocked
time and time again by bloody riots resulting in the death of many of their members and
suspected sympathizers. In an effort to avert violent clashes between the contending groups,
prison officials segregated known members of the "Sigue-Sigue" from those of the "OXO."
Building 1 housed "Sigue-Sigue" members, while a majority of the prisoners confined in Bldg.
4 belonged to the "OXO." Even in Bldg. 4, which is composed of four brigades, namely, 4-A
and 4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas and Mindanao, from
whom the "OXO" drew most of its members, were confined in 4-A.
It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary
were preparing to attend Sunday mass, that a fight between two rival members of the "Sigue-
Sigue" and "OXO" gangs occurred in the plaza where the prisoners were assembled, causing
a big commotion. The fight was, however, quelled, and those involved were led away for
investigation, while the rest of the prisoners were ordered to return to their respective quarters.
Hardly had conditions returned to normal when a riot broke out in Bldg. 1, a known lair of the
"Sigue-Sigue." The inmates thereof tried to invade Bldg. 4, where many members and
sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the
invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg.
4, as the inmates of brigade 4-A destroyed the lock of their door and then rampaged from one
brigade to another. The invading prisoners from 4-A, mostly "OXO" members and
sympathizers, clubbed and stabbed to death Jose Carriego, an inmate of 4-B. Afterwards,
they forcibly opened the door of 4-C, and killed two more inmates, namely, Eugenio Barbosa
and Santos Cruz.
The three victims sustained injuries which swiftly resulted in their death — before they
could be brought to the hospital.
Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm. in depth;
(b) contusion and hematoma of the back of the neck, about 2 inches in diameter; and (c) —
five punctured wounds in the chest, penetrating the lungs. Cause of death: internal
hemorrhage from multiple fatal wounds in the chest.
Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1
cm. in depth; (b) two penetrating wounds in the abdomen, puncturing the intestines; (c)
lacerated wounds on the right oxilla, 3 cm. in length and 2 cm. in depth; and (d) several bruises
at the right and left lower extremities. Cause of death: shock, secondary to internal
hemorrhage in the abdomen.
Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull;
(c) wound on the upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two
of which were penetrating; (e) hematoma on the right hand; and (f) three punctured wounds
on the left hand. Cause of death: fractured skull.
Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while
he was taking his breakfast with Jose Carriego, who was at the time the representative of the
prisoners confined in 4-B to the inmate carcel, he "suddenly heard commotion" near the door
of their brigade; that his fellow prisoners started shouting "pinapasok na tayo," as the invading
inmates from brigade 4-A stampeded into 4-B; that he and Carriego took hold of their clubs
and stood at the end of the passageway; that he saw Carriego surrender his club to Andres
Factora, an "OXO" member from 4-A; that as Carriego started to walk away, Factora clubbed
Carriego on the nape causing the latter to fall; that Factora turned up the face of his fallen
victim and struck him again in the face; that while Carriego was in this prostrate position,
Amadeo Peralta and Leonardo Dosal, companions of Factora, repeatedly stabbed him.
The testimony of Pineda was corroborated in all its material points by Juanito Marayoc
and Avelino Sauza, both inmates of 4-B. These two prosecution witnesses identified
Factora, Peralta and Dosal as the assailants of Carriego.
From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According
to Oscar Fontillas, an inmate of 4-C, he saw the prisoners from 4-A rushing toward their
brigade; that among the invading inmates who forced open the door of 4-C, with help from the
inside provided by Visayan prisoners confined in 4-C, were Factora, Dosal, Angel Parumog,
Gervasio Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita and
Fernandez kill Barbosa, while the rest of their companions instructed the Visayans to leave
their cell and ordered the "Manila boys" (Tagalogs) to remain. Antonio Pabarlan, another
inmate of 4-C, declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio Luna,
Parumog and Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not only
corroborated the testimony of Fontillas and Pabarlan but as well added grim details. He
declared that while Barbosa was trying to hide under a cot, he was beaten and stabbed to
death by Dosal, Parumog, Factora and Fernandez, with Luna, Larita, Pedro Cogol and Eilel
Tuyaga standing guard, armed with clubs and sharp instruments, in readiness to repel any
intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C, declared that he
saw Parumog, Peralta, Factora and Larita assault and kill Barbosa.
The same witnesses for the prosecution testified that after killing Barbosa, the invading
"OXO" members and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like
Carriego and Barbosa. Halili testified that he saw Peralta, Larita, Cogol and Tugaya take
Santos Cruz to 4-A from 4-C; that Santos Cruz knelt down and pleaded for his life, saying,
"Maawa kayo sa akin. Marami akong anak;" that Luna and Peralta were unmoved as they
stabbed Santos Cruz to death. Pabarlan declared that after the death of Barbosa, Santos
Cruz was brought to 4-A by the invading inmates but Cruz was able to slip back to his cell
only to be recaptured by Factora, Dosal and Luna and brought to near the fire escape where
he was clubbed and stabbed to death by Parumog, Dosal, Factora and Peralta. Fontillas and
Espino corroborated the declarations of Halili and Pabarlan with respect to the killing of Santos
Cruz, and both mentioned Larita as one of the assailants of Cruz.
The trial judge summarized the evidence for the prosecution, thus:
". . . . it clearly appears that the three killings in question were an offshoot
of the rivalry between the two organizations. All those who were killed, namely,
Barbosa, Carriego and Santos Cruz, were Tagalogs and well known as members
if not sympathizers of the Sigue Sigue, while the accused so charged with their
killing were mostly members if not sympathizers of the Oxo organization. These
three killings were sparked by the commotion that happened in the plaza
between 8:00 and 9:00 in the morning, while the prisoners were preparing to go
to mass . . . It was evident that the clash that occurred in the plaza produced a
chain reaction among the members and followers of the two organizations. The
inmates of Building No. 1, known lair of the Sigue Sigues, bolted the door of their
cells and tried to invade Building No. 4 where a big number of the Oxo members
and their sympathizers were confined, but, however, were forced to retreat by
the timely arrival of the guards who sent them back to their building. When the
members of the Oxo in Building No. 4 learned about this, they went on a rampage
looking for members of the Sigue Sigue or their sympathizers who were confined
with them in the same building. As the evidence of the prosecution shows, the
accused who were confined in Brigade 4-A of Building No. 4 led the attack. They
destroyed the lock of their dormitories and with the help of their companions
succeeded in bolting the door of the different brigades, and once they succeeded
in bolting the doors of the different brigades, they went inside and tried to
segregate the Tagalogs from their group; that as soon as they discovered their
enemies they clubbed and stabbed them to death . . ."
Admitting that he was one among several who killed Jose
Carriego, Peralta nevertheless claims self-defense. He testified that on the morning of the riot
he was attacked by Carriego and Juan Estrella near the door of 4-A while he was returning to
his brigade from the chapel with some companions; that Carriego clubbed him on the head;
that he was able to parry the second blow of Carriego and then succeeded in squeezing
Carriego's head with his hands; that forthwith he whipped out an improvised ice pick and
stabbed Carriego several times; that when he (Peralta) was already dizzy due to the head
wound he sustained from the clubbing, Carriego managed to slip away; that he then became
unconscious, and when he regained consciousness he found himself on a tarima, with his
head bandaged.
Peralta's declarations do not inspire belief. The impressive array of prosecution
witnesses who saw him actively participate in the killing of the three victims pointed to him as
the aggressor, not the aggrieved. Pineda, Marayoc and Sauza positively identified him as one
of the assailants of Carriego. Contrary to the pretensions of Peralta, Carriego, an alleged
"Sigue-Sigue" member would not have attacked him, knowing fully well that Building No. 4
was an "OXO" lair where the "Sigue-Sigue" members were outnumbered. Anent the killing of
Barbosa and Santos Cruz, Peralta failed to offer any explicit defense to rebut the inculpatory
declarations of prosecution witnesses Pabarlan and Espino who saw him participate in the
killing of Barbosa and those of Halili, Fontillas and Espino who identified him as one of the
murderers of Santos Cruz.
For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-
defense in exculpation. He declared that Santos Cruz, Jose Carriego, Juanito Espino, Carlos
Espino and Oscar Fontillas invaded 4-A where he was confined; that a free-for-all forthwith
ensued; that he then heard Santos Cruz call Carlos Espino, and advise the latter to go away
as "I will be the one to kill that person (Dosal);" that with a sharp instrument, Cruz hit him on
the head and then on the nose; that as Cruz was about to hit him again, he got hold of his ice
pick and stabbed Cruz repeatedly until the latter fell.
Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and
Espino who saw him participate in the killing of Santos Cruz. If it is true that Dosal killed Santos
Cruz in self- defense when the latter together with his companions supposedly invaded
Dosal's brigade (4-A), why is it that the body of Santos Cruz was found at the fire escape near
the pasillo between 4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A which is located
in the upper floor? Moreover, Dosal failed to explain why he was seen in 4-C, which he does
not deny, since he was an inmate of 4A where he was allegedly attacked. With respect to the
murder of Carriego and Barbosa with which Dosal was also charged, he did not offer any
evidence in his behalf. Hence, the testimonies of Pineda, Marayoc and Sauza identifying him
as one of the killers of Carriego, and those of Pabarlan, Halili and Espino implicating him in
the death of Santos Cruz, stand unrebutted.
Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion
of his co-accused who threatened to kill him if he disobeyed their order; that he did not hit
Barbosa anymore because the latter was already dead; that it was his co-accused who
actually killed the three victims. Again, the declarations of the prosecution witnesses, which
were accorded full credence by the trial court, exposes the guilt of Factora beyond reasonable
doubt. In fact, according to Pineda, whose testimony was corroborated by Marayoc, it was
Factora who started the mass assault by clubbing Carriego treacherously. Fontillas, Halili,
Pabarlan and Espino pointed to Factora as one of the killers of Barbosa, while at least three
prosecution witnesses, namely, Pabarlan, Fontillas and Espino, saw Factora participate in the
slaying of Santos Cruz. The active participation of Factora in the killing, which is a clear index
of voluntariness, thus negates his claim of compulsion and fear allegedly engendered by his
co-accused.
Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory
device of alibi. Parumog testified that he did not participate in the killing of the three inmates
because he stayed during that entire hapless day in the office of the trustees for investigation
after the flight in the plaza; that he was implicated in the killing by the prosecution witnesses
because of his refusal to accede to their request to testify against his co-accused; that he is
not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he did not know about the
killing until he was informed that three inmates had died; that on the day in question he was
brought to the police trustee brigade for investigation after the incident in the plaza; that he
was escorted back to his brigade only in the afternoon. Luna likewise disclaims any knowledge
of the killing and asserts that for the entire duration of the riot he remained in his cell (brigade
4-A).
The alibis of Parumog, Larita and Luna merit no credence when set against the
positive testimonies of prosecution witnesses identifying them as participants in the killing of
Barbosa and Santos Cruz. Pabarlan, Espino and Fontillas declared that Larita was one of the
killers of Barbosa; Espino and Fontillas declared that they saw Larita kill Santos Cruz;
Pabarlan, and Halili and Espino testified that they saw Parumog participate in the murder of
Barbosa; Espino, Fontillas and Pabarlan stated that Parumog took part in the killing of Santos
Cruz. Pabarlan and Halili declared that Luna participated in the fatal assault on Barbosa and
Santos Cruz.
The alibis of the accused are thus sufficiently overcome by strong evidence to the
contrary. The defense of alibi is generally weak since it is easy to concoct. For this reason,
courts view it with no small amount of caution and accept it only when proved by positive,
clear and satisfactory evidence 6 In the case at bar, if Parumog and Larita were really confined
in the police trustee brigade for investigation on the day of the incident, there should have
been a record of the alleged investigation. But none was presented. The testimony of Luna
that throughout the riot he stayed in his cell is quite unnatural. He claims that he did not even
help his cell-mates barricade their brigade with tarimas in order to delay if not prevent the
entry of the invading inmates. According to him, he "just waited in one corner."
The rule is settled that the defense of alibi is worthless in the face of positive
identification by prosecution witnesses pointing to the accused as particeps
criminis. 7 Moreover, the defense of alibi is an issue of fact the resolution of which depends
almost entirely on the credibility of witnesses who seek to establish it. In this respect the
relative weight which the trial judge accords to the testimony of the witnesses must, unless
patently inconsistent with the evidence on record, be accepted. 8 In the case at bar, the trial
court, in dismissing the alibis of Parumog, Larita and Luna, said that "their mere denial cannot
prevail over the positive testimony of the witnesses who saw them participate directly in the
execution of the conspiracy to kill Barbosa, Carriego and Santos Cruz."
The killing of Carriego constitutes the offense of murder because of the presence of
treachery as a qualifying circumstance. Carriego was clubbed by Factora from behind, and as
he lay prostrate and defenseless, Peralta and Dosal stabbed him repeatedly on the chest.
The blow on the nape and the penetrating chest wounds were all fatal, according to Dr.
Bartolome Miraflor. Abuse of superior strength qualified the killing of Barbosa and Santos Cruz
to the category of murder. The victims, who were attacked individually, were completely
overwhelmed by their assailants' superiority in number and weapons and had absolutely no
chance at all to repel or elude the attack. All the attackers were armed with clubs or sharp
instruments while the victims were unarmed, as so found by the trial court. In fact, Halili
testified that Barbosa was clubbed and stabbed to death while he was trying to hide under a
cot, and Santos Cruz was killed while he was on his knees pleading for his life.
The essential issue that next confronts us is whether conspiracy attended the
commission of the murders. The resolution of this issue is of marked importance because
upon it depends the quantity and quality of penalties that must be imposed upon each of the
appellants.
For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with
particular emphasis on the facets relating to its nature, the quantum of proof required, the
scope and extent of the criminal liability of the conspirators, and the penalties imposable by
mandate of applicable law.
Doctrine. A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. 9 Generally, conspiracy is not
a crime except when the law specifically provides a penalty therefor as in
treason, 10 rebellion 11 and sedition. 12 The crime of conspiracy known to the common law
is not an indictable offense in the Philippines. 3 An agreement to commit a crime is a
reprehensible act from the viewpoint of morality, but as long as the conspirators do not perform
overt acts in furtherance of their malevolent design, the sovereignty of the State is not
outraged and the tranquillity of the public remains undisturbed. However, when in resolute
execution of a common scheme, a felony is committed by two or more malefactors, the
existence of a conspiracy assumes pivotal importance in the determination of the liability of
the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in
U.S. vs. Infante and Barreto 14 opined that
"While it is true that the penalties cannot be imposed for the mere act of
conspiring to commit a crime unless the statute specifically prescribes a penalty
therefor, nevertheless the existence of a conspiracy to commit a crime is in many
cases a fact of vital importance, when considered together with the other
evidence of record, in establishing the existence of the consummated crime and
its commission by me conspirators."
Once an express or implied conspiracy is proved, all of the conspirators are liable as
co-principals regardless of the extent and character of their respective active participation in
the commission of the crime or crimes perpetrated in furtherance of the conspiracy because
in contemplation of law the act of one is the act of one is the all. 15 The foregoing rule is
anchored on the sound principle that "when two or more persons unite to accomplish a
criminal object, whether through the physical volition of one, or all, proceeding severally or
collectively, each individual whose evil will actively contributes to the wrong-doing is in law
responsible for the whole, the same as though performed by himself alone." 16 Although it is
axiomatic that no one is liable for acts other than his own, "when two or more persons agree
or conspire to commit a crime, each is responsible for all the acts of the others, done in
furtherance of the agreement or conspiracy." 17 The imposition of collective liability upon the
conspirators is clearly explained in one case 18 where this Court held that.
". . . it is impossible to graduate the separate liability of each (conspirator)
without taking into consideration the close and inseparable relation of each of
them with the criminal act, for the commission of which they all acted by common
agreement . . . The crime must therefore in view of the solidarity of the act and
intent which existed between the . . . accused, be regarded as the act of the band
or party created by them, and they are all equally responsible . . ."
Verily, the moment it is established that the malefactors conspired and confederated
in the commission of the felony proved, collective liability of the accused conspirators attaches
by reason of the conspiracy, and the court shall not speculate nor even investigate as to the
actual degree of participation of each of the perpetrators present at the scene of the crime. Of
course, as to any conspirator who was remote from the situs of aggression, he could be drawn
within the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy
over the rest of the conspirators the latter were moved or impelled to carry out the conspiracy.
In fine, the convergence of the wills of the conspirators in the scheming and execution
of the crime amply justifies the imputation to all of them the act of any one of them. It is in this
light that conspiracy is generally viewed not as a separate indictable offense, but a rule for
collectivizing criminal liability.
The ensnaring nature of conspiracy is projected in bold relief in the cases of
malversation and rape committed in furtherance of a common design.
The crime of malversation is generally committed by an accountable public officer who
misappropriates public funds or public property under his trust." 19 However, in the classic
case of People vs. Ponte 20 this Court unequivocally held that a janitor and five municipal
policemen, all of whom were not accountable public officers, who conspired and aided a
municipal treasurer in the malversation of public funds under the latter's custody, were
principally liable with the said municipal treasurer for the crime of malversation. By reason of
conspiracy, the felonious act of the accountable public officer was imputable to his co-
conspirators, although the latter were not similarly situated with the former in relation to the
object of the crime committed. Furthermore, in the words of Groizard, "the private party does
not act independently from the public officer: rather, he knows that the funds which he wishes
to get possession are in the latter's charge, and instead of trying to abstract them by
circumventing the other's vigilance he resorts to corruption, and in the officer's unfaithfulness
seeks and finds the most reprehensible means of accomplishing a deed which by having a
public officer as its moral instrument assumes the character of a social crime." 21 In an earlier
case 22 a non-accountable officer of the Philippine Constabulary who conspired with his
superior, a military supply officer, in the malversation of public funds was adjudged guilty as
co-principal in the crime of malversation, although it was not alleged, and in fact it clearly
appeared, that the funds misappropriated were not in his custody but were under the trust of
his superior, an accountable public officer.
In rape, a conspirator is guilty not only of the sexual assault he personally commits but
also of the separate and distinct crimes of rape perpetrated by his co-conspirators. He may
have had carnal knowledge of the offended woman only once but his liability includes that
pertaining to all the rapes committed in furtherance of the conspiracy. Thus,
in People vs. Villa, 23 this Court held that.
". . . from the acts performed by the defendants from the time they arrived
at Consolacion's house to the consummation of the offense of rape on her person
by each and everyone of them, it clearly appears that they conspired together to
rape their victim, and therefore each one is responsible not only for the rape
committed personally by him, but also that committed by the others, because each
sexual intercourse had, through force, by each one of the defendants with the
offended party was consummated separately and independently from that had by
the others, for which each and everyone is also responsible because of the
conspiracy."
The rule enunciated in People vs. Villa was reiterated in People vs. Quitain 24 where
the appellant Teofilo Anchita was convicted of forcible abduction with double rape for having
conspired and cooperated in the sexual assault of the aggrieved woman, although he himself
did not actually rape the victim. This Court observed:
"We have no doubt all in all that Teofilo Anchita took part in the sexual
assault . . . the accused inserted his fingers in the woman's organ, and widened
it. Whether he acted out of lewdness or to help his brother-in-law consummate
the act, is immaterial: it was both maybe. Yet, surely, by his conduct, this prisoner
conspired and cooperated, and is guilty."
With respect to robbery in band, the law presumes the attendance of conspiracy so
much so that "any member of a band who is present at the commission of a robbery by the
band, shall be punished as principal of any of the assaults committed by the band, unless it
be shown that he attempted to prevent the same." 25 In this instance, conspiracy need not be
proved, as long as the existence of a band is clearly established. Nevertheless, the liability of
a member of the band for the assaults committed by his group is likewise anchored on the
rule that the act of one is the act of all.
Proof of conspiracy. While conspiracy to commit a crime must be established by
positive evidence, 26 direct proof is not essential to show conspiracy. 27 Since by its nature,
conspiracy is planned in utmost secrecy, it can seldom be proved by direct
evidence. 28 Consequently, competent and convincing circumstantial evidence will suffice to
establish conspiracy. According to People vs. Cabrera, 29 "conspiracies are generally proved
by a number of indefinite acts, conditions, and circumstances which vary according to the
purposes to be accomplished. If it be proved that the defendants pursued by their acts the
same object, one performing one part and another part of the same, so as to complete it, with
a view to the attainment of the same object, one will be justified in the conclusion that they
were engaged in a conspiracy to effect the object." Or as elucidated
in People vs. Carbonel, 30 the presence of the concurrence of minds which is involved in
conspiracy may be inferred from "proofs of facts and circumstances which, taken together,
apparently indicate that they are merely parts of some complete whole. If it is proved 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 to concert means
is proved . . ." In two recent cases, 31 this Court ruled that where the acts of the accused,
collectively and individually, clearly demonstrate the existence of a common design toward
the accomplishment of the same unlawful purpose, conspiracy is evident.
Conspiracy presupposes the existence of a preconceived plan or agreement;
however, to establish conspiracy, "it is not essential that there be proof as to previous
agreement to commit a crime, it being sufficient that the malefactors shall have acted in
concert pursuant to the same objective." 32 Hence, conspiracy is proved if there is convincing
evidence to sustain a finding that the malefactors committed an offense in furtherance of a
common objective pursued in concert.
Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that
once conspiracy is proved, all of the conspirators who acted in furtherance of the common
design are liable as co-principals. 33 This rule of collective criminal liability emanates from the
ensnaring nature of conspiracy. The concerted action of the conspirators in consummating
their common purpose is a patent display of their evil partnership, and for the consequences
of such criminal enterprise they must be held solidarily liable.
However, in order to hold an accused guilty as co-principal by reason of conspiracy, it
must be established that he performed 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 conspirators as to move them to executing the conspiracy.
The difference between an accused who is a principal under any of the three categories
enumerated in Art. 17 of the Revised Penal Code and a co-conspirator who is also a principal
is that while the former's criminal ability is limited to his own acts, as a general rule, the latter's
responsibility includes the acts of his fellow conspirators.
In People vs. Izon, et al., 34 this Court acquitted appellant Francisco Robles, Jr., who
was convicted by the trial court of robbery with homicide as a conspirator, on the ground that
although he may have been present when the conspiracy to rob was proposed and made,
"Robles uttered not a word either of approval or disapproval. There are authorities to the effect
that mere presence at the discussion of a conspiracy, even approval of it, without any active
participation in the same, is not enough for purposes of conviction." In a more recent
case, 35 this Court, in exonerating one of the appellants, said:
"There is ample and positive evidence on record that appellant Jose
Guico was absent not only from the second meeting but likewise from the robbery
itself. To be sure, not even the decision under appeal determined otherwise.
Consequently, even if Guico's participation in the first meeting sufficiently
involved him with the conspiracy (as he was the one who explained the location
of the house to be robbed in relation to the surrounding streets and the points
thereof through which entrance and exit should be effected), such participation
and involvement, however, would be inadequate to render him criminally liable
as a conspirator. Conspiracy alone, without the execution of its purpose, is not a
crime punishable by law, except in special instances (Article 8, Revised Penal
Code) which, however, do not include robbery."
Imposition of multiple penalties where conspirators commit more than one offense.
Since in conspiracy, the act of one is the act of all, then, perforce, each of the conspirators is
liable for all of the crimes committed in furtherance of the conspiracy. Consequently, if the
conspirators commit three separate and distinct crimes of murder in effecting their common
design and purpose, each of them is guilty of three murders and shall suffer the corresponding
penalty for each offense. Thus in People vs. Masin, 36 this Court held:
". . . it being alleged in the information that three crimes were committed
not simultaneously indeed but successively, in as much as there was, at least,
solution of continuity between each other, the accused (seven in all) should be
held responsible for said crimes. This court holds that the crimes are murder . . .
. In view of all these circumstances and of the frequently reiterated doctrine that
once conspiracy is proven each and every one of the conspirators must answer
for the acts of the others, provided said acts are the result of the common plan
or purpose . . . it would seem evident that the penalty that should be imposed
upon each of the appellants for each of their crimes should be the same, and this
is the death penalty . . ." (emphasis supplied).
In the aforesaid case, however, the projected imposition of three death penalties upon
each of the conspirators for the three murders committed was not carried out due to the lack
of the then requisite unanimity in the imposition of the capital penalty.
In another case, 37 this Court, after finding that conspiracy attended the commission
of eleven murders, said through Mr. Justice Tuason:
"Some members of this Court opine that the proper penalty is death,
under the circumstances of the case, but they fall short of the required number
for the imposition of this punishment. The sentence consequently is reclusion
perpetua; but each appellant is guilty of as many crimes of murder as there were
deaths (eleven) and should be sentenced to life imprisonment for each crime,
although this may be a useless formality for in no case can imprisonment exceed
forty years." (Emphasis supplied.)
In People vs. Masani, 38 the decision of the trial court imposing only one life
imprisonment for each of the accused was modified by this Court on appeal on the ground
that "inasmuch as their (the conspirators') combined attack resulted in the killing of three
persons, they should be sentenced to suffer said penalty (reclusion perpetua) for each of the
three victims (crimes)." (Emphasis supplied.)
It is significant to note that in the abovementioned cases, this Court consistently
stressed that once conspiracy is ascertained, the culpability of the conspirators is not only
solidary (all co-principals) but also multiple in relation to the number of felonies committed in
furtherance of the conspiracy. It can also be said that had there been a unanimous Court in
the Masim and Macaso cases, multiple death penalties would have been imposed upon all
the conspirators.
Legality and practically of imposing multiple death penalties upon conspirators. An
accused who was charged with three distinct crimes of murder in a single information was
sentenced to two death penalties for two murders, 39 and another accused to thirteen (13)
separate death penalties for the 13 killings he perpetrated. 40 Therefore there appears to be
no legal reason why conspirators may not be sentenced to multiple death penalties
corresponding to the nature and number of crimes they commit in furtherance of a conspiracy.
Since it is the settled rule that once conspiracy is established, the act of one conspirator is
attributable to all, then each conspirator must be held liable for each of the felonious acts
committed as a result of the conspiracy, regardless of the nature and severity of the
appropriate penalties prescribed by law.
The rule on the imposition of multiple penalties where the accused is found guilty of
two or more separate and distinct crimes charged in one information, the accused not having
interposed any objection to the multiplicity of the charges, was enunciated in the leading case
of U.S. vs. Balaba, 41 thus: Upon conviction of two or more offenses charged in the complaint
or information, the prescribed penalties for each and all of such offenses may be imposed, to
be executed in conformity with the provisions of article 87 of the Penal Code [now article 70
of the Revised Penal Code]. In other words, all the penalties corresponding to the several
violations of law should be imposed. Conviction for multiple felonies demands the imposition
of multiple penalties.
The two conceptual exceptions to the foregoing rule are the complex crime under
article 48 of the Revised Penal Code and the special complex crime (like robbery with
homicide). Anent an ordinary complex crime falling under article 48, regardless of the
multiplicity of offenses committed, there is only one imposable penalty — the penalty for the
most serious offense applied in its maximum period. Similarly, in special complex crimes,
there is but a single penalty prescribed by law notwithstanding the number of separate felonies
committed. For instance, in the special complex crime of robbery with homicide the imposable
penalty is reclusion perpetua to death 42 irrespective of the number of homicides perpetrated
by reason or on occasion of the robbery.
In Balaba, the information charged the accused with triple murder. The accused went
to trial without objection to said information which charged him with more than one offense.
The trial court found the accused guilty of two murders and one homicide but it imposed only
one death penalty. In its review en conculta, this Court modified the judgment by imposing
separate penalties for each of the three offenses committed. The Court, thru Mr. Justice
Carson (with Mr. Justice Malcolm dissenting with respect to the imposition of two death
penalties), held:
"The trial judge was erroneously of the opinion that the prescribed
penalties for the offenses of which the accused was convicted should be
imposed in accord with the provisions of article 89 of the Penal Code. That article
is only applicable to cases wherein a single act constitutes two or more crimes,
or when one offense is a necessary means for committing the other. (U.S. vs.
Ferrer, 1 Phil. Rep., 56)
"It becomes our duty, therefore, to determine what penalty or penalties
should have been imposed upon the accused upon conviction of the accused of
three separate felonies charged in the information.
"There can be no reasonable doubt as to the guilt of the convict of two
separate crimes of asesinato (murder) marked with the generic aggravating
circumstances mentioned in the decision of the trial judge . . . It follows that the
death penalty must and should be imposed for each of these offenses. . . .
"Unless the accused should be acquitted hereafter on appeal of one or
both the asesinatos with which he is charged in the information, it would seem
to be a useless formality to impose separate penalties for each of the offenses
of which he was convicted, in view of the nature of the principal penalty; but
having in mind the possibility that the Chief Executive may deem it proper to
grant a pardon for one or more of the offenses without taking action on the others;
and having in mind also the express provisions of the above cited article 87 of
the Penal Code, we deem it proper to modify the judgment entered in the court
below by substituting for the penalty imposed by the trial judge under the
provisions of article 89 of the Code, the death penalty prescribed to law for each
of the two separate asesinatos of which he stands convicted and the penalty of
14 years 8 months and 1 day of reclusion temporal (for the separate crime of
homicide) . . . these separate penalties to be executed in accord with the
provisions of article 87 of the Penal Code." (Emphasis supplied.)
The doctrine in Balaba was reiterated in U.S. vs. Jamad 43 where a unanimous Court,
speaking again thru Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in
view of the Balaba ruling), opined:
 "For all the offenses of which the accused were convicted in the court
below, the trial judge imposed the death penalty, that is to say the penalty
prescribed for the most serious crime committed, in its maximum degree, and for
this purpose made use of the provisions of article 89 of the Penal Code [now
article 48 of the Revised Penal Code]. But as indicated in the case of the United
States vs. Balaba, recently decided wherein the controlling facts were
substantially similar to those in the case at bar, 'all of the penalties corresponding
to the several violations of law' should have been imposed under the express
provisions of article 87 [now engrafted in article 70 of the Revised Penal Code]
and under the ruling in that case, the trial court erred in applying the provisions
of article 89 of the code.
"We conclude that the judgment entered in the court below should be
reversed, . . . and that the following separate penalties should be imposed upon
him [the accused Jamad], to be executed in accordance with article 87 of the
Penal Code: (1) The penalty of death for the parricide of his wife Aring; (2) the
penalty of life imprisonment for the murder of Labonete; (3) the penalty of life
imprisonment for the murder of Torres; (4) the penalty of 12 years and one day
of cadena temporal for the frustrated murder of Taclind. . . . "
The doctrine in Balaba was reechoed in People vs. Guzman, 44 which applied the
pertinent provisions of the Revised Penal Code, where this Court, after finding the accused
liable as co-principals because they acted in conspiracy, proceeded to stress that where an
"information charges the defendants with the commission of several crimes of murder and
frustrated murder, as they failed to object to the multiplicity of the charges made in the
information, they can be found guilty thereof and sentenced accordingly for as many crimes
the information charges them provided that they are duly established and proved by the
evidence on record." (Emphasis supplied.)
The legal and statutory justification advanced by the majority in Balaba for imposing
all the penalties (two deaths and one life imprisonment) corresponding to the offense charged
and proved was article 87 of the old Penal Code which provided:
"When a person is found guilty of two or more felonies or misdemeanors,
all the penalties corresponding to the several violations of law shall be imposed,
the same to be simultaneously served, if possible, according to the nature and
effects of such penalties."
in relation to article 88 of the old Code which read:
"When all or any of the penalties corresponding to the several violations
of the law can not be simultaneously executed, the following rules shall be
observed with regard thereto:
"1.In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly as may
be possible, should a pardon have been granted as to the penalty or penalties
first imposed, or should they have been served out."
The essence and language, with some alterations in form and in the words used by
reason of style, of the abovecited provisions have been preserved in article 70 of the Revised
Penal Code which is the product of the merger of articles 87 and 88 of the old Penal Code.
Article 70 provides:
"When the culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit; otherwise, the
following rules shall be observed:
 "In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly as may
be possible, should a pardon have been granted as to the penalty or penalties
first imposed, or should they have been served out."
Although article 70 does not specifically command, as the former article 87 clearly did,
that "all the penalties corresponding to the several violations of law shall be imposed," it is
unmistakable, however, that article 70 presupposes that courts have the power to impose
multiple penalties, which multiple penal sanctions should be served either simultaneously or
successively. This presumption of the existence of judicial power to impose all the penalties
corresponding to the number and nature of the offenses charged and proved is manifest in
the opening sentence of article 70: "When the culprit has to served two or more penalties, he
shall serve them simultaneously if the nature of the penalties will so permit . . . " (Italics
supplied) Obviously, the two or more penalties which the culprit has to serve are those legally
imposed by the proper court. Another reference to the said judicial prerogative is found in the
second paragraph of article 70 which provides that "in the imposition of the penalties, the
order of their respective severity shall be followed . . ." Even without the authority provided by
article 70, courts can still impose as many penalties as there are separate and distinct
offenses committed, since for every individual crime committed, a corresponding penalty is
prescribed by law. Each single crime is an outrage against the State for which the latter, thru
the courts of justice, has the power to impose the appropriate penal sanctions.
With respect to the imposition of multiple death penalties, there is no statutory
prohibition or jurisprudential injunction against it. On the contrary, article 70 of the Revised
Penal Code presumes that courts have the power to mete out multiple penalties without
distinction as to the nature and severity of the penalties. Moreover, our jurisprudence supports
the imposition of multiple death penalties as initially advocated in Balaba and thunderously
reechoed in Salazar where the accused was sentenced on appeal to thirteen (13) death
penalties. Significantly, the Court in Balaba imposed upon the single accused mixed multiple
penalties of two deaths and one life imprisonment.
The imposition of multiple death penalties is decried by some as a useless formality,
an exercise in futility. It is contended, undeniably enough, that a death convict, like all mortals,
has only one life to forfeit. And because of this physiological and biological attribute of man, it
is reasoned that the imposition of multiple death penalties is impractical and futile because
after the service of one capital penalty, the execution of the rest of the death penalties will
naturally be rendered impossible. The foregoing opposition to the multiple imposition of death
penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple
capital penalties; (2) it fails to distinguish between imposition of penalty and service of
sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously;
and (4) it overlooks the practical merits of imposing multiple death penalties.
The imposition of a penalty and the service of a sentence are two distinct, though
related, concepts. The imposition of the proper penalty or penalties is determined by the
nature, gravity and number of offenses charged and proved, whereas service of sentence is
determined by the severity and character of the penalty or penalties imposed. In the imposition
of the proper penalty or penalties, the court does not concern itself with the possibility or
practicality of the service of the sentence, since actual service is a contingency subject to
varied factors like successful escape of the convict, grant of executive clemency or natural
death of the prisoner. All that go into the imposition of the proper penalty or penalties, to
reiterate, are the nature, gravity and number of the offenses charged and proved and the
corresponding penalties prescribed by law.
Multiple death penalties are not impossible to serve because they will have to be
executed simultaneously. A cursory reading of article 70 will show that there are only two
modes of serving two or more (multiple) penalties: simultaneously or successively. The first
rule is that two or more penalties shall be served simultaneously if the nature of the penalties
will so permit. In the case of multiple capital penalties, the nature of said penal sanctions does
not only permit but actually necessitates simultaneous service.
The imposition of multiple death penalties, far from being a useless formality, has
practical importance. The sentencing of an accused to several capital penalties is an indelible
badge of his extreme criminal perversity, which may not be accurately projected by the
imposition of only one death sentence irrespective of the number of capital felonies for which
he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the
possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence,
the imposition of multiple death penalties could effectively serve as a deterrent to an
improvident grant of pardon or commutation. Faced with the utter delinquency of such a
convict, the proper penitentiary authorities would exercise judicious restraint in recommending
clemency or leniency in his behalf.

Granting, however, that the Chief Executive, in the exercise of his constitutional power
to pardon (one of the presidential prerogatives which is almost absolute) deems it proper to
commute the multiple death penalties to multiple life imprisonments, then the practical effect
is that the convict has to serve the maximum of forty (40) years of multiple life sentences. If
only one death penalty is imposed, and then is commuted to life imprisonments, the convict
will have to serve a maximum of only thirty years corresponding to a single life sentence.
Reverting now to the case at bar, it is our considered view that the trial court correctly
ruled that conspiracy attended the commission of the murders. We quote with approval the
following incisive observations of the court a quo in this respect:
"Although, there is no direct evidence of conspiracy, the Court can safely
say that there are several circumstances to show that the crime committed by
the accused was planned. The following circumstances show beyond any doubt
the acts of conspiracy: First, all those who were killed, Barbosa, Santos Cruz and
Carriego, were Tagalogs. Although there were many Tagalogs like them
confined in Building 4, these three were singled out and killed thereby showing
what their killing has been planned. Second, the accused were all armed with
improvised weapons showing that they really prepared for the occasion. Third,
the accused accomplished the killing with team work precision going from one
brigade to another and attacking the same men whom they have previously
marked for liquidation and lastly, almost the same people took part in the killing
of Carriego, Barboso and Santos Cruz."
It is also important to note that all the accused were inmates of brigade 4-A; that all
were from either the Visayas or Mindanao except Peralta who is from Masbate and Parumog
who hails from Nueva Ecija; that all were either "OXO" members or sympathizers; and that all
the victims were members of the "Sigue-Sigue" gang.
The evidence on record proves beyond peradventure that the accused acted in concert
from the moment they bolted their common brigade, up until the time they killed their last
victim, Santos Cruz. While it is true that Parumog, Larita and Luna did not participate in the
actual killing of Carriego, nonetheless, as co-conspirators they are equally guilty and
collectively liable for in conspiracy the act of one is the act of all. It is not indispensable that a
co-conspirator should take a direct part in every act and should know the part which the others
have to perform. Conspiracy is the common design to commit a felony; it is not participation
in all the details of the execution of the crime. All those who in one way or another help and
cooperate in the consummation of a felony previously planned are co-principals. 45 Hence,
all of the six accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz — each
is guilty of three separate and distinct crimes of murder.
 We cannot agree, however, with the trial court that evident premeditation was also
present. The facts on record and the established jurisprudence on the matter do not support
the conclusion of the court a quo that evident premeditation "is always present and inherent
in every conspiracy. " Evident premeditation is not inherent in conspiracy as the absence of
the former does not necessarily negate the existence of the latter. 46 Unlike in evident
premeditation where a sufficient period of time must elapse to afford full opportunity for
meditation and reflection for the perpetrator to deliberate on the consequences of his intended
deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly, to commit
the felony and forthwith decide to commit it. 47 This view finds added support
in People vs. Custodio, 48 wherein this Court stated:
"Under normal conditions, where the act of conspiracy is directly
established, with proof of the attendant deliberation and selection of the method,
time and means of executing the crime, the existence of evident premeditation
can be taken for granted. In the case before us, however, no such evidence
exists; the conspiracy is merely inferred from the acts of the accused in the
perpetration of the crime. There is no proof how and when the plan to kill Melanio
Balancio was hatched, or what time elapsed before it was carried out; we are,
therefore, unable to determine if the appellants enjoyed sufficient time between
its inception and its fulfillment dispassionately to consider and accept the
consequences.' (cf. People vs. Bangug, 52 Phil. 91). In other words, there is no
showing of the opportunity for reflection and the persistence in the criminal intent
that characterize the aggravating circumstance of evident premeditation
(People vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp. to
No. 12] 166; People vs. Lesada, 70 Phil. 525.)"
Not a single extenuating circumstance could be appreciated in favor of any of the six
accused, as they did neither allege nor prove any.
In view of the attendance of the special aggravating circumstance of quasi-recidivism,
as all of the six accused at the time of the commission of the offenses were serving
sentences 49 in the New Bilibid Prison at Muntinlupa, by virtue of convictions by final
judgments, the penalty for each offense must be imposed in its maximum period, which is the
mandate of the first paragraph of article 160 of the Revised Penal Code. Viada observes, in
apposition, that the severe penalty imposed on a quasi-recidivist is justified because of his
perversity and incorrigibility. 50
ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta,
Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are
each pronounced guilty of three separate and distinct crimes of murder, and are each
sentence to three death penalties; all of them shall, jointly and severally, indemnify the heirs
of each of the three deceased victims in the sum of P12,000; 51 each will pay one-sixth of the
costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro, Angeles,
Fernando and Capistrano, JJ., concur.
Zaldivar, J., is on official leave.

||| (People v. Peralta, G.R. No. L-19069, [October 29, 1968], 134 PHIL 703-735)

EN BANC

[G.R. No. L-35700. October 15, 1973.]

 THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. JOSE GERONIMO and ROMEO GERONIMO, defendants-
appellants.

Solicitor General Felix Q. Antonio, Assistant Solicitor General

Dominador L. Quiroz and Solicitor Rosalio A. de Leon for plaintiff-appellee.
Eleuterio F . Martinez (Counsel de Oficio) for defendants-appellants.
DECISION

ESGUERRA, J p:

This appeal was originally taken by the defendants-appellants to the Court of Appeals,
but as the penalty imposed by the trial court 1 is reclusion perpetua, the Court of Appeals by
its resolution 2 of June 20, 1972, elevated the case to this Court for decision.
The amended information for Murder filed against the three (3) accused,
Enrico Geronimo, Romeo Geronimo and Jose Geronimo, included two other persons,
namely, Isidro Geronimo and Eleodoro Carlos, but these two accused have not been
apprehended. Enrico Geronimo Pleaded guilty to the charge but Romeo Geronimo and
Jose Geronimo went to trial upon their plea of not guilty.
Romeo Geronimo and Jose Geronimo are brothers while Enrico Geronimo is their
uncle for being a first cousin of their father. The deceased, Fermin Magbanua, is a first cousin
of Romeo and Jose and also a nephew of Enrico.
On April 6, 1966, at about 12:30 p.m. in Sitio Ilaya Ilaya, Poblacion Norte, Sigma,
Capiz, accused appellants Enrico Geronimo, Romeo Geronimo and Jose Geronimo, and the
deceased, Fermin Magbanua, arrived from the market place of Sigma, Capiz, already drunk
and stopped at the store of one Fesertas Bacalangco to buy ten liters of tuba. After drinking.
Fermin Magbanua and the accused started to go home, but after having gone several meters
away from the store of Fesertas Bacalangco, Fermin Magbanua was hit on the face by a sling
shot wielded by one Eleodoro Carlos. Fermin fell to the ground and Romeo Geronimo ran to
where he had fallen and held him, while Jose Geronimo went around and hit Fermin on the
head with a stone, rendering him unconscious. While Fermin was held unconscious by
Romeo, Enrico Geronimo took Fermin's bolo from his waist and hacked the latter on the right
ankle joint and Jose also boloed his left ankle joint, almost severing it. Fermin Magbanua died
as a result of his wounds.
Enrico Geronimo, Romeo Geronimo and Jose Geronimo were charged before the
Court of First Instance of Capiz with murder committed allegedly as follows:
That on or about the 6th day of April, 1966, in the Municipality of Sigma, Province
of Capiz, Philippines, and within the jurisdiction of this Honorable Court, the said
accused in company with Isidro Geronimo and Eleodoro Carlos, who are still at
large, all armed with boloes, sling-shot and stones, conspiring, confederating and
helping each other, with superior strength and with evident premeditation and
treachery, did then and there wilfully, unlawfully and feloniously attack, assault,
stone and stab one Fermin Magbanua with the said weapons, thereby inflicting
upon the latter the following wounds as reported in the medical certificate, 3 to
wit:
1. Incised wound at the right ankle joint, posterior aspect about 3-1/2 inches long;
 2. Incised wound 4.5 inches long just below and almost around the left ankle joint
completely severing the tendon of achilles;
3. Multiple small (about one cm. long each) wounds in the hand region, upper lip
and distal end of the left forearm;
4. Multiple small laceration with hematoma on the scalp;
5. Hemorrhage, massive secondary to the above lesions.
which caused his death; that due to the death of said Fermin Magbanua
and the consequent loss of his earning capacity (the deceased having no
permanent physical disability at the time his death), his heirs have suffered
damages in the amount of P6,000.00 in consonance with the provisions of
Article 3306 of the New Civil Code.
Contrary to law. (pp. 51-52, rec.)
Before his death Magbanua executed an ante-mortem declaration naming the
accused as his assailants, and which reads as follows:
"Question Who is your name?
Answer Fermin Magbanua.
Q What happened to you?
AI was boloed by Enrico Geronimo, Jose Geronimo and
Romeo Geronimo.
Q What was the cause?
A Because we have grudges before.
Q What do you feel of your wounds?
A I might die of my wounds because I am feeling bad.
Q Will you sign to the truthfulness of your statement?
A I will just thumbmarked it.
(Mkd.) FERMIN MAGBANUA
WITNESSES TO THUMBMARK:
1. (Sgd.) RAMON S. ISIDERIO
2. (Sgd.) AMANDO PONSARAN
(pp. 164-166, rec.)"
Upon arraignment Enrico Geronimo, assisted by Counsel, pleaded guilty to the
charge 4 but in so doing he manifested that he alone inflicted the injuries of the deceased. He
was accordingly sentenced to serve an indeterminate penalty of six (6) years of prision
correccional, as minimum, to twelve (12) years of prision mayor, as maximum; to indemnify
the heirs of the victim in the sum of twelve thousand pesos (P12,000.00) without subsidiary
imprisonment in case of insolvency, to the accessories of the law, and to pay the costs. He
was credited with one-half (1/2) of his preventive imprisonment.
The case for the prosecution rests mainly on the testimony of Bonifacio Bacalangco
and Teresita Delfin and on the ante-mortem declaration of the deceased. The respective
testimonies of Bonifacio Bacalangco and Teresita Delfin are substantially as follows:
Bonifacio Bacalangco: On April 6, 1966, while he was looking out of the window of the
second floor of the house of Manuel Bacalangco, he saw the accused, Enrico Geronimo,
Jose Geronimo, Romeo Geronimo, Isidro Geronimo, Eleodoro Carlos, and the victim, Fermin
Magbanua, coming out of a store four meters away from the house of Manuel; that all of a
sudden Isidro Geronimo and Eleodoro Carlos hit Fermin successively by their sling-shots
between his eyes and forehead; that Romeo at once embrached Fermin, and Jose, with a
stone in his hand, approached Fermin and hit him twice on the right. side of his head rendering
the latter unconscious; that Enrico approached Fermin, drew the latter's bolo from his waist
and hacked Fermin on his right ankle joint; that Jose followed in hacking Fermin this time on
the latter's left ankle joint which was almost severed; that after all this had happened, with
Romeo still embracing Fermin, a peace officer arrived and brought the victim to the hospital.
Teresita Delfin: She corroborated Bonifacio Bacalangco's version with the only
difference that according to Teresita, Enrico hacked Fermin on the left ankle joint while Jose
did it on the right ankle joint.
The defense gave a different version of the incident. Enrico who pleaded guilty
maintains that it was he alone and nobody else who was responsible for the wounds inflicted
on the deceased as described in the medical certificate Exhibit "A". On the other hand, Romeo
and Jose categorically denied direct and active participation in the infliction of the injuries and
branded as utterly untrue the prosecution witnesses' testimony that they helped facilitate the
hacking by immobilizing the victim. Their versions are as follows:
Enrico Geronimo: At about 11:30 a.m. of April 6, 1966 while he was on his way home,
he saw Fermin Magbanua inside the store of Felix de Juan drinking tuba; that upon seeing
him, Fermin called him and offered a drink; that after drinking the tuba, Fermin told him to pick
up a quarrel with one Pedro Bacalangco; that when he refused, Fermin got mad and hit him
with his fist; that after being hit by Fermin, he got hold of a stone and threw it at Fermin who
was then running away; that he hit Fermin on the head and the latter fell face downward; that
it was at that moment when he hacked Fermin on the right and left ankle joints; that he also
hit Fermin on the left arm; that Romeo embraced him to pacify him while Jose tried to help
Fermin by bringing the latter to the hospital; that he at once reported the incident to the
municipal building and surrendered to the authorities.
Romeo Geronimo: He stated that on said occasion Fermin offered Enrico a drink inside
the tuba store; that after drinking the glassful of tuba, he heard Fermin induce Enrico to fight
Pedro Bacalangco; that when Enrico refused, Fermin boxed the former; that Enrico got hold
of a piece of stone and threw it at Fermin who ran away but was hit on the head and fell face
downward; that Enrico unsheathed Fermin's bolo and hacked Fermin on the right and left
ankle joints; that Enrico also hacked Fermin on the left and right arms; that he carried Fermin
in his arms and brought him to the hospital; that he has nothing to do directly or indirectly with
the killing of Fermin; and that he has never been to school.
Jose Geronimo: He corroborated the testimony of Romeo and maintained that it was
he who pacified and stopped Enrico from further inflicting injuries on Fermin.
Consolacion Banjao and Enrico de la Cruz: Their testimonies corroborated those of
Romeo and Jose.
The Court of First Instance of Capiz after hearing convicted the accused and
sentenced them as follows:
"Wherefore, this Court finds the accused Romeo Geronimo and
Jose Geronimo guilty beyond reasonable doubt of the crime of murder and this
Court hereby sentences each of said accused, Jose Geronimo and
Romeo Geronimo, to the penalty of RECLUSION PERPETUA and to indemnify
the heirs of Fermin Magbanua in the sum of P12,000.00 pursuant to the ruling of
our Honorable Supreme Court in the recent case of People vs. Pantoja, without
subsidiary imprisonment in case of insolvency and to pay the cost. The weapon
used in the commission of the offense is ordered confiscated.
 Said Jose Geronimo and Romeo Geronimo are credited with One-half (1/2) of their
preventive imprisonment."
Hence, this appeal by Romeo Geronimo and Jose Geronimo who claim that the lower
court erred:
(1) In convicting both appellants by holding that they conspired with
Enrico Geronimo in killing the deceased;
(2) In convicting both appellants upon testimonies which are unbelievable and
unworthy of credence;
(3) In convicting appellant Romeo Geronimo inspite of the evidence of the prosecution
showing that he did not participate in the fight;
(4) In convicting both appellants of murder and not of homicide; and
(5) In not crediting both appellants with the mitigating circumstance of "lack of intent
to commit so grave a wrong as that committed" and as to appellant Romeo Geronimo, with
the alternative mitigating circumstance of "lack of instruction"
I. DISCUSSION
The issue raised by the first assignment of error is whether or not the trial court erred
in holding that Jose and Romeo Geronimo conspired with Enrico Geronimo in killing the
deceased. Both accused maintain that the element of conspiracy was never proven and
nowhere in the evidence of the prosecution is it shown that there was an agreement relating
to the commission of the offense; that the aggression was instantaneous and all of a sudden,
which circumstance precludes the idea of a preconceived design to attack the deceased; that
prosecution witness Bonifacio Bacalangco even exculpated Romeo Geronimo when he
testified as follows:
"Q. You said that you know the cause of the death of Fermin Magbanua.
Do you know who boloed him?
A. Jose and Enrico, sir.
Q. Are these the only persons you mentioned, Enrico and Jose Geronimo,
who boloed Fermin Magbanua?
Atty. Martinez: Objection, very leading Your Honor.
Court: Witness may answer.
A. These are the only persons, sir. (t.s.n. hearing of March 13, 1968)."
This shows, he argues, the utter absence of conspiracy on the part of appellants
Romeo and Jose as the evidence clearly shows that Romeo did not participate in the killing
of Fermin Magbanua.
Upon the other hand, the prosecution claims that Romeo and Jose conspired with their
uncle Enrico to kill the victim; that their acts were concerted and cooperative; that Romeo's
act of holding Fermin immobilized the latter, thus allowing Jose to hit Fermin's head with a
stone, rendering him unconscious; that these acts of Romeo and Jose enabled Enrico to hack
with ease the prostrate Fermin; and that conspiracy is sufficiently established by
circumstances evincing unity of purpose.
It has been laid down as a rule that when the defendants by their acts aimed at the
same object, one performing one part and another performing another part so as to complete
it, with a view to the attainment of the same object, and their acts, though apparently
independent were in fact concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments, the court will be justified in
concluding that said defendants were engaged in a conspiracy (People vs. Cabrera, 43 Phil.
64, 66; People vs. Carbonell, 48 Phil. 868). When conspiracy has been proven, all
conspirators are liable as co-principals for the wrongful act and its consequences (U. S. vs.
Bundal, 3 Phil. 89; People vs. Villamora, 47 O.G. 6180).
We do not agree with the Solicitor General that there was conspiracy among the
accused. It should be noted that all the accused and the victim were drinking together in a
tuba store on the day of the incident. No other evidence was presented by the prosecution to
show conspiracy which according to the settled rule, must be proved as clearly and as
convincingly as the commission of the crime itself. It must be real and not presumptive. 5 In
the absence of clear proof that the killing was in fact envisaged by them, and there being no
satisfactory showing that the killing was done in furtherance of the conspiracy, they cannot be
held responsible therefor (People vs. Basisten, 47 Phil. 493; People vs. Cerdenia, 51 Phil.
393; People vs. Carillo, 85 Phil. 611; People vs. Daligdig, 89 Phil. 598). 6
In People vs. Portugueza 7 We ruled that:
"Although the defendants are relatives and had acted with some
degree of simultaneity in attacking their victim, nevertheless, this fact alone
does not prove conspiracy (People vs. Cayao, 48 O. G. 637).
-II-
The issue raised by the second assigned error is whether or not both appellants were
convicted upon testimonies which they brand as unbelievable and unworthy of credence.
Appellants claim that the testimonies of the alleged eye witnesses who saw the happening
should not have be accepted as true since their testimonies tend to show that they were
influenced by other persons into signing their affidavits the contents of which they merely
related during the hearing. The testimony of witness Bonifacio Bacalangco on cross
examination is as follows:
"Q. When did you know that you are going to testify in this case?
A. They sent me a notice.
Q. Who sent you the notice?
A. The Chief of Police of Sigma.
Q. Who asked you to make this affidavit?
A. They are the ones, sir.
Q. Who?
A. They are the ones sir, Chief of Police and the Mayor.
Q. Why, was the Mayor there present when this incident took place?
A. No, sir.
Q. How many times that the Mayor asked you when you signed this
affidavit?.
Fiscal Delfin: No basis Your Honor.
Atty. Martinez: I am on cross examination Your Honor. He said that the
Chief of Police and the Mayor asked him so I have to widen on my
cross examination.
Court: Witness may answer.
 A. Once, sir.
Atty. Martinez: Where did the Mayor ask you to sign this affidavit?
A. I was sent through somebody in this Office.
Q. Where were you when that somebody met you for the purpose of asking
you to go to the Office of the Mayor?
A. I was at home.
Q. Was the affidavit already finished when you were asked by the Mayor
to sign it?
A. Not yet, sir.
Q. What took place when you arrived at the Office of the Mayor?
A. They were making the affidavit.
Q. Who were the companions of the Mayor when they were making the
affidavit?
A. The Chief of Police, sir.
Q. No more?
A. No more.
Q. So, after the affidavit was finished they asked you to sign this, do I get
you right?
A. Yes, sir. (t.s.n., March 13, 1968)"
The testimony of another prosecution witness Teresita Delfin, is as follows:
"Q. My question to you is this, when you saw that affidavit for the first time,
it was already finished and it came from Jose Ordanoso, do I get
you right? That is only answerable with yes or no.
A. When the complaint was made, we were called and we were
investigated and that was the time when the said affidavit was
made.
Q. Therefore, when you saw that affidavit for the first time, it was already
typewritten by Jose Ordanoso, do I get you right?"
A. Yes, sir. (t.s.n., March 20, 1968)"
Appellants maintain that it can be seen from the above quoted testimonies of the
prosecution witnesses that their testifying was not voluntary and that their affidavits were
already prepared before they were asked questions about the case.
It should be noted that the dying declaration of the deceased points to Romeo and
Jose, together with Enrico, as I assailants who had grudges against him. The statement the
deceased was taken at the municipal building while he was in a serious condition. A man at
the threshold of death would not accused his first cousins, who supposedly even helped him
as his would-be killers if the accusation does not sit with the truth. The medical certificate
attesting to the injuries suffered by the victim supports prosecution's theory. Wound No. 4,
more specially substantiates the reported participation of appellant Jose. Prosecution
witnesses Bonifacio Bacalangco and Teresita Delfin narrated in detail the participation of
Romeo and these witnesses have no proven motive to testify falsely in court.
 Where the issue is one of credibility of witnesses, the appellate court will generally not
disturb the findings of the trial court, considering that the latter is in a better position to decide
the question for having heard the witnesses themselves and observed their deportment and
manner of testifying during the trial, unless it has plainly overlooked certain facts of substance
and value that, if considered, might affect the result of the case. 8 In People vs.
Tatlonghari, 9 this Court said:
"The issue in the case being hinged on the credibility of witnesses,
the ruling of the court below must be sushined. For, in the absence of proof
that there has been misappreciation of evidence, and there is no such proof
in this case — the conclusion of the trial judge, who had the opportunity of
observing the demeanor and conduct of the witnesses while testifying,
deserves the respect of the reviewing tribunal."
The second assigned error is, therefore, without merit, no sufficient reason having
been adduced why the trial court's findings and conclusion on the credibility of the witnesses
for the prosecution should be discarded. Besides, the prosecution witnesses have no reason
to impute so grave a wrong to the accused, if really they did not commit it.
-III-
The issue raised by the third assigned error is whether or not the trial court erred in
convicting appellant Romeo Geronimo inspite of his alleged non-participation in the
aggression again, the deceased. The defense argues that according to the testimony of
prosecution witness Bonifacio Bacalangco, Romeo Geronimo had no part in the fight; that it
was Romeo who brought the victim to the hospital, and that the testimony of the other
prosecution witness, Policeman Jose Ordanoso, also shows that he merely prevented the
deceased from falling by holding the latter.
Although the Solicitor General does not argue on the third assigned error, the
contention of the defense cannot be sustained. Actual participation in a fight or combat is not
the only gauge to one's criminal responsibility. Appellant Romeo's holding or embracing of the
victim, Fermin Magbanua, when appellant Jose Geronimo hit the latter with a stone on the
head; the hacking of the deceased on the right posterior ankle joint by Romeo's uncle,
Enrico Geronimo, and the hacking also of Fermin's left posterior ankle joint by
Jose Geronimo while Romeo was holding or embracing the victim, indicate that Romeo was
very much involved in the fight.
As earlier shown, the details of the commission of the offense do not satisfactorily
support the finding of conspiracy, let alone the uncontradicted fact that all the accused and
the victim met only casually. Whatever responsibility was incurred by Romeo Geronimo must
be predicated on his act of holding the victim. While this act was undoubtedly one of help and
cooperation, it is not indispensable for the commission of the offense as the hacking could
have been committed just the same without his holding the victim. Romeo's cooperation not
being essential to the commission of the crime but merely to facilitate the same, he thereby
cooperated in the commission thereof and hence his liability is that of an accomplice (Article
18, Revised Penal Code). In People vs. Tatlonghari, 10 this Court held:
. . . "although . . ., participation on the part of an accomplice in the criminal design
of the principal is not essential to the same extent as such participation is
necessary on the part of one charged as co-principal, nevertheless, it is evident
that, as against an accomplice, a court will sometimes draw the inference of guilty
participation in the criminal design from acts of concern in the consummation of
the criminal act and from the form and manner in which assistance is rendered,
where it would not draw the same inference for the purpose of holding the same
accused in the character of principal. This is because, in case of doubt, the courts
naturally lean to the milder form of responsibility."
-IV-
The issue raised by the fourth assigned error is whether the crime committed is murder
or homicide. Appellants contend that if at all they are liable, they should not be convicted of
murder because no circumstance was proven to qualify the offense as such. What actually
took place, according to them, was an instantaneous and sudden outburst of temper that led
to the killing.
On the other hand, the Solicitor General maintains that the killing was characterized
by treachery since the deceased was already helpless, in fact unconscious, when he was
boloed by Enrico and Jose Geronimo, and that Romeo's act of holding the victim contributed
to the latter's helpless condition.
The appellants' contention is without merit. The record and the medical
certificate 11 show that the serious wounds inflicted upon the deceased were all at the back
part of the body, indicating that the assailants were behind the deceased when they hacked
the latter. Prosecution witnesses Bonifacio Bacalangco and Teresita Delfin, both declared that
after the deceased was held or embraced by Romeo, Jose with a stone on hand hit the
deceased on the head, followed by Enrico's hacking on the right posterior ankle joint. In the
situation pictured by these witnesses, there can hardly be any doubt as to the helpless
condition of the victim when he received the injuries which caused his death. Treachery
attended the killing where the nature and location of the wounds indicate that the victim was
attacked from behind. 12 For murder results from the presence of qualificative circumstances
based upon the manner in which the crime was committed and not upon the state of mind of
the accused. 13 In People vs. Labis 14 this Court held:
"His defense of justified killing unsustainable, appellant Labis must suffer the
consequences for his unlawful act. The killing of the decedent was qualified by
treachery. It has been clearly established that Charito Fabria was being held
firmly by appellant Cabiles, thereby preventing the former from moving or making
any defense when Labis struck him from behind with a bolo. There was hardly,
is any, risk at all for Labis; the deceased was defenseless. Appellant Labis is
liable for murder." 15
-V-
The last issue raised by the fifth assigned error is whether both appellants should be
credited with the mitigating circumstance of lack of intent to commit so grave a wrong as that
committed (Art. 13, No. 3, Revised Penal Code) and, as to appellant Romeo Geronimo alone,
with the alternative mitigating circumstance of lack of instruction (Art. 15, Revised Penal
Code). Appellants maintain that if at all they are liable, both of them should be credited with
the mitigating circumstance of lack of intent to commit so grave a wrong as that committed. It
will be seen from the Medical Certificate 16 that the serious wounds of the deceased were
wound No. 1 — incised wound at the right ankle joint posterior, about 3-1/2 inches long; and
wound No. 2 — incised wound 4.5 inches long just below and almost around the left ankle
joint completely serving the tendon of achilles. All these are at the back part of the body, which
shows that the intention, according to the defense, was not to kill or else the blows should
have been aimed against the vital parts of the body.
The mitigating circumstance of lack of intent to commit so grave a wrong as that
committed should have been appreciated by the trial court, but not for both but only for
appellant Jose Geronimo who alone inflicted injury without intent to cause the death of the
victim when appellant Romeo Geronimo war holding him.
Regarding the alternative circumstance of lack of education, while the evidence shows
that appellant Romeo is unschooled, this circumstance alone is not sufficient. Illiteracy alone
will not constitute such circumstance. 17 It must be accompanied by lack of sufficient
 intelligence and knowledge of the full significance of one's act. As held by this Court
in People vs. Sari:
"Appellant was proved, beyond reasonable doubt, to have committed the crime
of murder qualified by either treachery or abuse of superior strength since his
victim was an unarmed defenseless woman, whom he ruthlessly attacked with a
bolo on different parts of the body. Appellant claims to be entitled to the benefit
of the mitigating circumstance of lack of instruction. We have repeatedly held,
however, that it is for the trial court rather than the appellate court to find and
consider the circumstance of lack of instruction and similar circumstance in favor
of the accused; for it is not illiteracy alone, but the lack of sufficient intelligence
and knowledge of the full significance of one's acts, which only the trial court can
appreciate, that constitute this mitigating circumstance (People v. Ripas, et
al., L-6246, March 26, 1956; also U.S. v. Estorio, 35 Phil. 410: People v. Joseph,
52 Phil. 206; People vs. Bangug, 52 Phil. 87; People v. Sedenio, L-6372, April
29, 1954)." 18
Appellant's acts were committed with treachery which qualifies the offense as murder
punishable, under Article 248 of the Revised Penal Code, with reclusion temporal in its
maximum period to death. As appellant Jose Geronimo lacked the intent to commit so grave
a wrong as that committed, this mitigating circumstance may be appreciated in his favor.
Accordingly, the penalty should be imposed upon him in its minimum period, or reclusion
temporal, maximum. Applying the indeterminate sentence law, a penalty ranging from prision
mayor, maximum, to reclusion temporal, medium, shall be imposed.
As regards appellant Romeo Geronimo who is liable as an accomplice, a penalty one
degree lower than that prescribed for a principal should be imposed. Accordingly, an
indeterminate penalty ranging from the maximum of prision correccional, as minimum, to the
medium of prision mayor, as maximum should be imposed on him.
WHEREFORE, the appealed decision is hereby modified by sentencing appellant
Jose Geronimo to an indeterminate penalty of from ten (10) years and one (1) day of prision
mayor as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum. Appellant Romeo Geronimo as accomplice is sentenced to serve
from four (4) years, two (2) months and one (1) day prision correccional, as minimum, to eight
(8) years and one (1) day to prision mayor, as maximum.
In other respects the judgment appealed from is affirmed, with costs against
appellants.
SO ORDERED.
||| (People v. Geronimo, G.R. No. L-35700, [October 15, 1973], 153 PHIL 1-18)

SECOND DIVISION

[G.R. No. 79811. March 19, 1990.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PIO CANTUBA & PEDRITO
LALAGUNA, defendants-appellants.

The Office of the Solicitor General for plaintiff-appellee.

Ernesto P. Pangalangan for defendants-appellants.
SYLLABUS
1. CRIMINAL LAW; CONSPIRACY; DECREE OF ACTUAL PARTICIPATION IN THE
COMMISSION OF THE CRIME, IMMATERIAL. — It is the contention of accused-appellant that
even if he (Cantuba) did approach the victim with a gun in his hand, it was never established that
the fatal shot came from his gun. The contention is untenable. First, the factual points marshalled
by the appellants do not engender reasonable doubt as to his (Cantuba) culpability. Second, even
assuming that he (Cantuba) never fired his gun, he would still be principally liable as a co-
conspirator in the killing of Atty. Celera under the principle that the act of a conspirator is the act
of all co-conspirators. The degree of actual participation in the commission of the crime is
immaterial in a conspiracy.
2. ID.; ID.; ESTABLISHED IN CASE AT BAR. — Accused-appellant further calls the attention of
this court to the fact that Pat. Torrecampo did not mention him (Pedrito Lalaguna) as among his
companions when the former directed the killing. This court finds this fact not exculpatory. It does
not in any way contradict the testimonies of Margie Rotor and Romulo Tama that appellant
Lalaguna was at the scene of the crime and tried to run down the victim. Appellant Lalaguna's
identity and participation had been sufficiently established, and his motives become
inconsequential (People v. Soriano, 134 SCRA 542). The trial court correctly convicted appellant
Lalaguna as a co-conspirator as the circumstances of his participation indubitably showed unity
of purpose and unity in the execution of the unlawful acts as can be gleaned from the fact that,
Lalaguna knew of the plot to assassinate Atty. Celera as he too had been ordered to scout for a
man who could do the job (TSN, Sept. 3, 1985, pp. 355-356). He also knew exactly the place
where the killing was to take place and also the date and approximate time of the assault. At the
very least, therefore, he had to know about the Torrecampo plot and decided to join its
execution. From the legal viewpoint, conspiracy exists if, at the time of the commission of the
offense, the accused had the same purpose and were united in its execution. (People v. Caday,
28 SCRA 388; People v. Sy, 113 SCRA 207).
3. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; NOT AFFECTED BY MINOR
INCONSISTENCIES. — With regard to the alleged conflicting testimonies of the two principal
witnesses, Margie Rotor and Pat. Torrecampo, as to who really fired upon Atty. Celera, the Court
is convinced that the testimony of Margie Rotor is more credible than that of Torrecampo because
when witness Margie Rotor heard the gunfire, it was after she saw Pio Cantuba holding a gun
while walking towards them. This court finds that the only competent persons to identify the person
who fired the gun are the witnesses present at the scene of the crime. Witness Margie Rotor who
was standing right beside the victim is more believable than Torrecampo who was standing across
the street. When contradictory statements refer only to minor details, this does not destroy their
credibility. Their inconsistency in minor details is proof that they were not rehearsed.
4. ID.; ID.; ID.; FINDINGS OF TRIAL COURT THEREOF; NOT TO BE DISTURBED ON APPEAL;
EXCEPTION; CASE AT BAR. — With respect to the sworn statement of Ricardo Baco claiming
that it was Totong Labuyo who shot Atty. Celera remain hearsay evidence and, therefore,
inadmissible since Baco was never presented to allow the prosecution to cross-examine him.
Moreover, it was physically impossible for Baco to see who actually fired the gun because Baco
went the opposite direction and encircled Rotor and the victim from behind. His eyes were fixed
on the victim and not on the gunwielder who was at a distance from the victim. It is a well settled
rule that when the main thrust of the appeal is that of the credibility of the witnesses for the
prosecution is assailed, and appellant failed to demonstrate why this court should depart from the
cardinal principle that the findings of the trial court on the matter of credibility should not be
disturbed on appeal due to its superior advantage in observing the conduct and demeanor of the
witnesses while testifying unless some fact or circumstance may have been overlooked that may
affect the result of the case.
5. ID.; ID.; ID.; STRENGTHENED BY SLIGHT VARIATION IN THE TESTIMONY OF THE TWO
WITNESSES; CASE AT BAR. — We do not agree with the appellant's claim that his participation
in Atty. Celera's murder is tenuous because the records show otherwise. Both prosecution
witnesses Margie Rotor and Romulo Tama testify to one motorbike or 'tricycle' that
was speeding at precisely the same time, i.e., immediately after Atty. Celera had fallen to the
ground as a result of the gunshot and stab wounds. Accused-appellant Lalaguna points out that
Margie Rotor did not testify against him. This statement is misleading. Margie Rotor testified
against the rider of the speeding 'tricycle' as a participant in the ambush because he was bent on
running over the fallen Atty. Celera. The only element missing in her testimony is the identity of
the rider because of the glare of the vehicle's lights. This, however, was supplied by Romulo Tama
who recognized the rider to be Pedrito Lalaguna, whom he had known even before the incident.
Their testimonies as to the motorbike aspect of the incident corroborate each other. They both
distinctly remember the noticeable speed of the vehicle and that it happened after Atty. Celera
had fallen to the ground. By reason of their relative vantage points, this court finds each witness
naturally recalling details which the other would not have noticed. This is indicative of credible
and unadulterated testimony. Slight variations in the testimony of two witnesses strengthen their
credibility (People v. Villamil, 135 SCRA 610).
6. ID.; ID.; ALIBI; CANNOT PREVAIL WHERE IT WAS NOT SHOWN THAT IT WAS
IMPOSSIBLE FOR THE ACCUSED TO HAVE BEEN AT THE SCENE OF THE CRIME. — The
state has satisfactorily discharged its burden of proving the guilt of the appellants beyond
reasonable doubt. Appellants' discussion of their third assignment of error seems to imply that the
decision was premised on the weakness of the arguments and evidence for the defense.
However, an unprejudiced reading of the decision and the points already discussed will readily
show otherwise. Be it noted that the questioned judgment tried very well to rebut the defense of
alibi of Pio Cantuba and Pedrito Lalaguna. Appellants' defense of alibi is jurisprudentially weak
(People v. Onquillano, 149 SCRA 442; People v. Acelajado, 148 SCRA 142). As they were not
able to demonstrate by convincing evidence that it was physically impossible for them to have
been at the scene of the crime at the time it was committed. Moreover, the defense of alibi is
generally accepted with caution, because under certain circumstances might exonerate the
accused on the ground of impossibility of participation, or at the very least, raise a reasonable
doubt. In the case at bar, both appellants claimed that on the night and time of the incident they
were not at the vicinity of the Sunrise Disco Pub where the alleged crime was committed, as they
were then in the house of Asst. Provincial Treasurer Manlapaz playing 'pusoy'. But considering
the admitted fact that the distance between the house of Asst. Provincial Treasurer Manlapaz
where the accused claimed to be, is only 300 meters away from the Sunrise Disco Pub, where
the crime was perpetrated, there is no physical impossibility for both accused to be at the scene
of the crime. Accordingly, such defense merits no serious consideration. Moreover, both accused
were positively identified by prosecution witnesses Margie Rotor, Rodolfo Torrecampo and
Romulo Tama. Accused Pio Cantuba, as the person who fired the gun and Pedrito Lalaguna, as
the rider of the speeding motorbike or 'tricycle' who was bent on running over the fallen body of
Atty. Celera.
DECISION

PARAS, J p:

The accused-appellants Pio Cantuba and Pedrito Lalaguna together with co-accused Gualberto
Versales (alias Berting), Satur Gerbuela, Ricardo Baco, Rogelio Penales (alias Pugo), Romeo
Totong Labuyo and Mayor Moises Espinosa were charged with the crime of Murder under Art.
248 of the Revised Penal Code in an amended information which reads as follows:
"That on or about December 23, 1981 in the municipality of Masbate, province
of Masbate, Philippines, and within the jurisdiction of the Honorable Court, the
said accused, confederating with each other, did then and there willfully,
unlawfully and feloniously, with evident premeditation and with night-time as a
 means to better facilitate the commission of the crime, attack, assault and use
personal violence upon one ATTY. ADOLFO CELERA, by then and there
shooting him at several parts of his body, thereby inflicting upon the latter, mortal
wounds which are the direct and immediate cause of his death thereafter. cdphil
"Contrary to law." (p. 124, Rollo).
The accused Cantuba, Lalaguna, Versales, Gerbuela, Baco and Mayor Moises Espinosa pleaded
not guilty upon arraignment. Penales and Labuyo remained at large and were not arraigned.
The defense, in a motion for an order requiring the Prosecuting Fiscal or Fiscals in this case to
conduct another investigation and thereafter to include in the Amended Information all persons,
who appear responsible therefor, moved for the inclusion of one Pat. Torrecampo, a confessed
participant in the alleged crime, as one of the accused. Although the motion was granted by the
court, the issue was eventually rendered moot and academic when the trial was completed
without the Prosecuting Fiscals having complied with the court's order.

On April 27, 1987, the trial court rendered a decision, the dispositive portion of which states:
"WHEREFORE, premises considered, we find accused PIO CANTUBA and
PEDRITO LALAGUNA, guilty beyond reasonable doubt of the crime of Murder,
and hereby sentences each of them to suffer the penalty of RECLUSION
PERPETUA, to indemnify jointly and solidarily the heirs of Atty. Celera in the sum
of One Hundred Thousand (P100,000.00) Pesos, and to pay the costs. prcd
"Accused GUALBERTO VERSALES, SATUR GERBUELA and MAYOR
MOISES R. ESPINOSA, are hereby ACQUITTED, for insufficiency of evidence
to establish guilt beyond reasonable doubt, with the consequent cancellation of
their bailbonds.
"The case against accused RICARDO BACO who is already dead is
DISMISSED.
"The case against ROMEO alias TOTONG LABUYO and ROGELIO PENALES
alias PUGO who, up to the present are at large, is hereby placed in the
ARCHIVES.
"SO ORDERED." (pp. 66-67, Rollo).
The trial court gave credence to the testimonies of the prosecution witnesses Margie Rotor,
Romulo Tama and Pat. Rodolfo Torrecampo and on the basis of their testimonies the facts as
hereunder narrated are reconstructed by the Solicitor General, as follows:
"On December 21, 1981, Patrolman Rodolfo Torrecampo, then under
suspension but working as the bodyguard of Mayor Moises Espinosa, went to
Dagusungan, Milagros, Masbate to fetch one Romeo 'Totong' Labuyo, the
'encargado' of Mayor Espinosa's ranch, and to Pulang-Bato, Masbate, Masbate
to fetch Pio Cantuba, the mayor's 'sidekick' in his cockpit (TSN, Sept. 3, 1985,
pp. 335, 337; TSN, September 2, 1985, p. 297).
"On December 23, 1981, all three went to the provincial jail to secure the release
of Ricardo Baco, a detention prisoner (TSN, Sept. 3, 1985, pp. 338, 342).
Together with Baco, they proceeded to the house of Saturnino Gerbuela, a
provincial guard, but the latter was not at home (Id., p. 343). They left Baco
behind to wait for Gerbuela with instructions that they both should proceed to
Sunrise Disco Pub at 6:00 p.m. (Id.). Torrecampo, Labuyo and Cantuba went to
the Bel-Air Theater to kill time staying there for about two hours before
proceeding to the Sunrise Disco Pub (Id., pp. 344, TSN, November 7, 1985, p.
446). Ricardo Baco was already at the Sunrise Disco Pub when they arrived
(TSN, September 3, 1985, p. 345).
"Torrecampo told the group to wait outside while he checked inside the pub to
see if Atty. Adolfo Celera was inside (Id., p. 345). As the pub was dark, he could
not confirm Atty. Celera's presence (Id., p. 346). Coming out of the pub,
Torrecampo explained to Cantuba, Labuyo and Baco how they would kill Atty.
Celera. He handed to Labuyo a .45 cal. pistol and to Baco a knife (machete) (Id.,
pp. 346-347). Torrecampo described the features of the victim to Baco (Id., p.
346) and instructed Cantuba, who knew Atty. Celera, to signal Baco and Labuyo
as soon as he sees their victim approaching (TSN, November 7,1985, p.
446). LLphil
"Atty. Adolfo Celera was a practicing lawyer and had run for public office (Id., p.
450). He had been the lawyer for the complainant in a rape case brought against
Mayor Espinosa, formerly Governor of Masbate (TSN, January 23, 1985, p. 75,
TSN, October 21, 1987, pp. 34), who at the time of Atty. Celera's death had filed
a case against the latter for moral damages (TSN, September 2, 1985, p. 294).
After the trial of the damage suit began, Atty. Celera confided to his wife that
Mayor Espinosa had warned him that should he lose the suit a 'miracle' would
happen (TSN, October 21, 1985, pp. 4, 5). Subsequently, Atty. Jolly Fernandez
(later Assemblyman), who collaborated with Atty. Celera in the rape case against
Mayor Espinosa, was 'bombed' as he left the court on December 2, 1981 (Id.,
pp. 6, 7).
"On the evening of December 23, 1981, Atty. Celera, together with Margie Rotor
and Ave Refil, attended the Christmas party of the Bureau of Land Transportation
(BLT). They left the place after staying for one hour and took a tricycle to Pil-Tel,
a local long distance telephone company. Atty. Celera went inside Pil-Tel while
his companions waited outside. Margie Rotor noticed that there were also three
other people standing outside Pil-Tel (Id., p. 59) one of them she recognized as
Pio Cantuba a long time acquaintance (Id., p. 60). After 5 minutes, Atty. Celera
came out of Pil-Tel and then headed for the Sunrise Disco Pub (TSN, January
23, 1985, pp. 56, 58, 61) just across the street from Pil-Tel. (Id., p. 58, 59; TSN,
June 10, 1985, p. 135). Ave Refil was called by somebody and Atty. Celera and
Margie Rotor went inside the Pub and ordered a bottle of White Castle and before
they had consumed its contents Atty. Celera told her that he will go home already
(Id., p. 62).
Margie Rotor accompanied Atty. Celera to the gate of the pub where they stood
facing the street waiting for a tricycle, with Margie Rotor standing at the right side
of Atty. Celera (TSN, January 23, 1985, p. 63). The gate was lighted by a long
flourescent lamp. Near them, by the side of the Carandang Optical, Margie Rotor
noticed a man standing by a blue Yamaha Motorbike with a butterfly sticker (Id.,
p. 71). She also noticed that Pio Cantuba and his two companions were still
standing near the wall of Pil-Tel (Id., p. 63; TSN, January 24, 1985, p. 133). Then
the three dispersed. Pio Cantuba walked towards UCPB which was to her left
and then Cantuba returned and headed towards where she and Atty. Celera
were standing (Id., p. 64). One of Cantuba's companions who was wearing a
white t-shirt and maong pants, whom Margie Rotor recognized in the courtroom
and turned out to be Ricardo Baco, circled behind them (Id., p. 64). LLphil
"As Cantuba slowly approached them, Margie Rotor saw that Cantuba was
holding a gun (Id., p. 65). Then she heard a gunfire (TSN, September 3, 1985,
p. 348) and Atty. Celera staggered. Then Ricardo Baco rushed from behind and
 stabbed Atty. Celera twice on the left chest (Id., p. 349; TSN, January 23, 1985,
p. 66). Atty. Celera fell to the ground, groaning (Id., p. 67).
"As Cantuba and Baco were fleeing, Margie Rotor saw a 'tricycle' speeding
towards the fallen victim (Id., p. 68) but Margie Rotor was able to pull his body
out of its path (Id., p. 69). The glaring lights of the vehicle made it difficult for her
to make out and identify the rider (Id., p. 68). However, 17 year old Romulo
Tama, a bystander who had also seen the blue Yamaha motorbike with a
butterfly sticker near Carandang Optical, saw the rider, whom he recognized as
Pedrito Lalaguna, start the engine and speed away right after Atty. Celera fell to
the ground mortally wounded (TSN, June 10, 1985, pp. 131, 132).
"Margie Rotor, Patrolman Igloso and Nino, a waiter at Sunrise Disco Pub, took
Atty. Celera to the Masbate Provincial Hospital in a tricycle (TSN, June 23, 1985,
pp. 69, 70). Atty. Celera sustained a gunshot in the left lumbar area, or at the left
back just above the waistline, with no exit wound, and two stab wounds on the
left side of his body, one over the 'epig. area' and the other between the 6th and
7th ribs between sternal and mid-clavicular lines or just below the nipple (TSN,
July 30, 1985, p. 259; September 2, 1985, pp. 291-292). Adolfo Juancho Celera,
Jr., eldest son of the deceased, also rushed to the hospital and saw the doctor
remove a .45 cal. slug from his father's right torso (TSN September 2, 1985, p.
288). Atty. Celera died in the hospital. cdll
Technical Sgt. Randolf Arizala, together with Col. Cesar Veloso immediately
investigated the reported shooting of Atty. Celera (TSN, November 26, 1984, p.
13). Arizala saw the slug that was extracted from the deceased (Id., pp. 14, 15).
As a result of an on-the-spot investigation, Sgt. Arizala traced the blue Yamaha
motorcycle to Ernesto Lampago and found the vehicle at the latter's address in
Masbate, Masbate (Id., pp. 16, 18). While the rear tire was deflated, Sgt. Arizala
observed that the engine was still warm (Id., p. 17). Lampago explained that the
motorcycle was owned by Godofredo Versales whose wife mortgaged the same
to Lampago (Id., p. 17). Sgt. Arizala impounded the vehicle (Id., p. 18).
"That same evening, at around nine o'clock in the evening, Romeo Gerona, went
out of his sister's house to buy cigarettes (TSN, July 30, 1985, pp. 266, 267). On
the way, a tricycle with four persons on board passed him and then stopped in
front of the house of Mayor Espinosa (Id., p. 267). He recognized two of them —
Pugo Penales and Pio Cantuba (Id., pp. 267, 268)." (pp. 4-9, Appellee's Brief; p.
124, Rollo).
Now Appellants Pio Cantuba and Pedrito Lalaguna filed the instant appeal assigning the following
errors:
I
The Lower Court erred in finding that accused, Pio Cantuba, fired the fatal shot
that snuffed the life of deceased Adolfo Celera, despite overwhelming evidence
to the contrary.
II
The Lower Court erred in convicting accused, Pedrito Lalaguna, despite the fact
that the only evidence against him considered solely of having been seen driving
a motorbike away from the scene of the crime.
III
 The Lower Court erred in disregarding the constitutional right of the accused to
be presumed innocent until proven guilty beyond reasonable doubt. (p. 3,
Appellee's Brief).
It is the contention of accused-appellant that even if he (Cantuba) did approach the victim with a
gun in his hand, it was never established that the fatal shot came from his gun.
The contention is untenable. First, the factual points marshalled by the appellants do not engender
reasonable doubt as to his (Cantuba) culpability. Second, even assuming that he (Cantuba) never
fired his gun, he would still be principally liable as a co-conspirator in the killing of Atty. Celera
under the principle that the act of a conspirator is the act of all co-conspirators. The degree of
actual participation in the commission of the crime is immaterial in a conspiracy. cdll
With regard to the alleged conflicting testimonies of the two principal witnesses, Margie Rotor and
Pat. Torrecampo, as to who really fired upon Atty. Celera, the Court is convinced that the
testimony of Margie Rotor is more credible than that of Torrecampo because when witness Margie
Rotor heard the gunfire, it was after she saw Pio Cantuba holding a gun while walking towards
them. This court finds that the only competent persons to identify the person who fired the gun
are the witnesses present at the scene of the crime. Witness Margie Rotor who was standing right
beside the victim is more believable than Torrecampo who was standing across the street. When
contradictory statements refer only to minor details, this does not destroy their credibility. Their
inconsistency in minor details is proof that they were not rehearsed.

With respect to the sworn statement of Ricardo Baco claiming that it was Totong Labuyo who shot
Atty. Celera remain hearsay evidence and, therefore, inadmissible since Baco was never
presented to allow the prosecution to cross-examine him. Moreover, it was physically impossible
for Baco to see who actually fired the gun because Baco went the opposite direction and encircled
Rotor and the victim from behind. His eyes were fixed on the victim and not on the gunwielder
who was at a distance from the victim.
It is a well settled rule that when the main thrust of the appeal is that of the credibility of the
witnesses for the prosecution is assailed, and appellant failed to demonstrate why this court
should depart from the cardinal principle that the findings of the trial court on the matter of
credibility should not be disturbed on appeal due to its superior advantage in observing the
conduct and demeanor of the witnesses while testifying unless some fact or circumstance may
have been overlooked that may affect the result of the case.
Anent the second assignment of error, it is the contention of the accused-appellant Pedrito
Lalaguna that the lower court erred in convicting him despite the fact that the only evidence
against him consisted solely of having been seen driving a motorbike away from the scene of the
crime.
We do not agree with the appellant's claim that his participation in Atty. Celera's murder is tenuous
because the records show otherwise. Both prosecution witnesses Margie Rotor and Romulo
Tama testify to one motorbike or 'tricycle' that was speeding at precisely the same time, i.e.,
immediately after Atty. Celera had fallen to the ground as a result of the gunshot and stab
wounds. LexLib
Accused-appellant Lalaguna points out that Margie Rotor did not testify against him. This
statement is misleading. Margie Rotor testified against the rider of the speeding 'tricycle' as a
participant in the ambush because he was bent on running over the fallen Atty. Celera. The only
element missing in her testimony is the identity of the rider because of the glare of the vehicle's
lights. This, however, was supplied by Romulo Tama who recognized the rider to be Pedrito
Lalaguna, whom he had known even before the incident. Their testimonies as to the motorbike
aspect of the incident corroborate each other. They both distinctly remember the noticeable speed
of the vehicle and that it happened after Atty. Celera had fallen to the ground. By reason of their
relative vantage points, this court finds each witness naturally recalling details which the other
would not have noticed. This is indicative of credible and unadulterated testimony. Slight
variations in the testimony of two witnesses strengthen their credibility (People v. Villamil, 135
SCRA 610).
Accused-appellant further calls the attention of this court to the fact that Pat. Torrecampo did not
mention him (Pedrito Lalaguna) as among his companions when the former directed the killing.
This court finds this fact not exculpatory.
It does not in any way contradict the testimonies of Margie Rotor and Romulo Tama that appellant
Lalaguna was at the scene of the crime and tried to run down the victim. Appellant Lalaguna's
identity and participation had been sufficiently established, and his motives become
inconsequential (People v. Soriano, 134 SCRA 542).
The trial court correctly convicted appellant Lalaguna as a co-conspirator as the circumstances
of his participation indubitably showed unity of purpose and unity in the execution of the unlawful
acts as can be gleaned from the fact that, Lalaguna knew of the plot to assassinate Atty. Celera
as he too had been ordered to scout for a man who could do the job (TSN, Sept. 3, 1985, pp.
355-356). He also knew exactly the place where the killing was to take place and also the date
and approximate time of the assault. At the very least, therefore, he had to know about the
Torrecampo plot and decided to join its execution. From the legal viewpoint, conspiracy exists if,
at the time of the commission of the offense, the accused had the same purpose and were united
in its execution. (People v. Caday, 28 SCRA 388; People v. Sy, 113 SCRA 207). cdphil
Appellant Lalaguna insists that the act of driving a motorbike is an equivocal act. This would be
correct only if the testimony of Romulo Tama were considered in isolation from the testimony of
Margie Rotor, Pat. Torrecampo and Sgt. Rodolfo Arizala which clearly indicate that Lalaguna
drove the vehicle to run down the victim and that he shared in the criminal intent to do away with
Atty. Celera. Therefore, the criminal culpability of appellant Pedrito Lalaguna had been clearly
established.
Relative to the last assigned error, the state has satisfactorily discharged its burden of proving
the guilt of the appellants beyond reasonable doubt. Appellants' discussion of their third
assignment of error seems to imply that the decision was premised on the weakness of the
arguments and evidence for the defense. However, an unprejudiced reading of the decision and
the points already discussed will readily show otherwise.
Be it noted that the questioned judgment tried very well to rebut the defense of alibi of Pio Cantuba
and Pedrito Lalaguna. Appellants' defense of alibi is jurisprudentially weak (People v. Onquillano,
149 SCRA 442; People v. Acelajado, 148 SCRA 142). As they were not able to demonstrate by
convincing evidence that it was physically impossible for them to have been at the scene of the
crime at the time it was committed. Moreover, the defense of alibi is generally accepted with
caution, because under certain circumstances might exonerate the accused on the ground of
impossibility of participation, or at the very least, raise a reasonable doubt. In the case at bar, both
appellants claimed that on the night and time of the incident they were not at the vicinity of the
Sunrise Disco Pub where the alleged crime was committed, as they were then in the house of
Asst. Provincial Treasurer Manlapaz playing 'pusoy'. But considering the admitted fact that the
distance between the house of Asst. Provincial Treasurer Manlapaz where the accused claimed
to be, is only 300 meters away from the Sunrise Disco Pub, where the crime was perpetrated,
there is no physical impossibility for both accused to be at the scene of the crime. Accordingly,
such defense merits no serious consideration. Moreover, both accused were positively identified
by prosecution witnesses Margie Rotor, Rodolfo Torrecampo and Romulo Tama. Accused Pio
Cantuba, as the person who fired the gun and Pedrito Lalaguna, as the rider of the speeding
motorbike or 'tricycle' who was bent on running over the fallen body of Atty. Celera. llcd
WHEREFORE, the decision of the trial court is hereby AFFIRMED, with costs against the
appellants.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

||| (People v. Cantuba, G.R. No. 79811, [March 19, 1990], 262 PHIL 310-322)

FIRST DIVISION

[G.R. No. 90641. February 27, 1990.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO HERNANDEZ,
VIVENCIO REMO, accused. ROMEO HERNANDEZ, accused-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.
SYLLABUS

1. CRIMINAL LAW; CONSPIRACY; HOW COLLECTIBLE RESPONSIBILITY AMONG

ACCUSED ESTABLISHED; ACT OF ONE DEEMED TO BE ACT OF ALL. — The appellate court
and the trial court found the appellant guilty as a co-conspirator in the murder of Arturo Ilagan
qualified by abuse of superior strength. For a collective responsibility among the accused to be
established, it is sufficient that at the time of the aggression, all of them acted in concert, each
doing his part to fulfill their common design to kill their victim. Although only one of them may have
actually stabbed Ilagan, the act of that one is deemed to be the act of all (People vs. Napoleon
Montealegre, 161 SCRA 700; People vs. Dominador Roca, 162 SCRA 696).
2. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; EMPLOYMENT OF MEANS WHICH
ASSURED EXECUTION OF THE CRIME. — The crime committed by the accused was murder
with treachery by taking advantage of superior strength with the aid of armed men or by employing
means to weaken the defense. Three men, armed with a knife, crept up in the dark against a
defenseless and unsuspecting victim who was answering a call of nature. When two of Ilagan's
attackers pinioned his arms so that their companion could stab him repeatedly and with impunity,
they thereby employed means which assured the execution of the crime without risk to
themselves arising from the defense that their victim might make.
DECISION

GRIÑO-AQUINO, J p:

Another birthday party, another drinking spree, ended tragically for one of the guests, for, as
commonly happens in a revelry among ignorant and semi-illiterate folks, the spirit of the "demon
rum" filled the vacuum in their cranium where their brains should have been.
On November 6, 1981, a number of persons, mostly tricycle drivers, had been invited to the
birthday celebration of Sergeant Leonardo Hernandez in Barangay Galamay-Amo in San Jose,
Batangas. A group of them were already engaged in a drinking spree when at around 6:30 in the
evening, they were joined by another group of five tricycle drivers, including Arturo Ilagan. After a
short while, Ilagan went out of the house to answer a call of nature. While he was thus occupied,
a group of three men, one of whom was armed with a bladed weapon, suddenly encircled him,
and pinned him closely ("dikit-dikit") to the center. Two men held his hands, while a third stabbed
him repeatedly in different parts of his body. They left him prostrate and moaning in pain, with
blood oozing from his twelve (12) stab wounds. He was rushed to a hospital but he expired at
4:00 of the next day. The cause of death was diagnosed as "hypogelemic shock" due to multiple
stab wounds on the waist, abdomen and extremities.
The stabbing incident was immediately reported to the police of San Jose, Batangas, by Leonardo
Hernandez who identified the three assailants as Romeo Hernandez, Vivencio Remo and
Victorino Remo, all tricycle drivers who has attended his birthday party. On November 10, 1981,
one Abelardo Joyag executed a statement before the police, naming the same persons as the
murderers of Arturo Ilagan. cdrep
An information for murder was filed on September 20, 1982 by the Third Assistant Provincial
Fiscal of Batangas City against them, but only Romeo Hernandez and Vivencio Remo were
arrested and arraigned.
"The undersigned Third Assistant Provincial Fiscal accuses Romeo Hernandez,
Vivencio Remo and Victorino Remo of the crime of Murder, defined and
penalized under the provisions of Article 248 of the Revised Penal Code,
committed as follows:
"That on or about the 6th day of November, 1981, at about 6:30 o'clock in the
evening, in Barangay Galamay Amo, Municipality of San Jose, Province of
Batangas, Philippines and within the Jurisdiction of this Honorable Court, the
above-named accused, armed with bladed weapons, conspiring and
confederating together, acting in common accord and mutually helping each
other, with abuse of superior strength, did then and there wilfully, unlawfully and
feloniously attack, assault and stab with said weapons one Arturo Ilagan y
Gonzales, thereby inflicting upon the latter multiple wounds on the different parts
of his body which directly caused his death.
"Contrary to law." (p. 6, Rollo.)
Romeo Hernandez and Vivencio Remo pleaded not guilty, Victorino Remo remains at-large.
During the early stages of the trial, Vivencio Remo died. The case against him was dismissed on
July 9, 1985. The trial proceeded against the remaining accused, Romeo Hernandez.
The prosecution presented six (6) witnesses, including Joyag, who testified that at about 6:30
o'clock in the evening of November 6, 1981, in the company of Gregorio Perez, Artemio Austria,
Leonardo Mapalad and Arturo Ilagan, he arrived at the house of Leonardo Hernandez in Barangay
Galamay-Amo, San Jose, Batangas, as an invited guest; that he saw Vivencio Remo, Victorino
Remo ("whom he had not met before"), and Romeo Hernandez in the sala drinking "liliw" (a native
wine). Vivencio Remo introduced him (Joyag) to his companions. After a while Arturo Ilagan left
the group and went out of the house, telling Joyag that he was going to answer the call of nature.
Vivencio and Victorino Remo, accompanied by Romeo Hernandez, followed Arturo. Feeling the
urge to relieve himself also, Joyag left the sala to urinate outside. Before he could do so, he saw
at a distance of some eight (8) meters away, Victorino, Vivencio and Romeo encircle Arturo. It
was beginning to get dark ("takip-silim") but he had an unobstructed view of the trio as they
ganged up against Arturo. He saw two of the group hold Arturo's hands, and, although he failed
to actually see the weapon, he saw Victorino's hand moving from different directions, stabbing
the victim's breast and other parts of his body. He also saw Arturo's head move in different
directions, in an effort to evade the knife thrusts. Joyag rushed inside Leonardo's house shouting
for his companions to come out because Arturo was being attacked. Upon reaching the place,
they found Arturo lying on his back, moaning and bleeding. His assailants were nowhere in sight.
With the aid of Gregorio Perez and Leonardo Mapalad, Joyag rushed Arturo to the hospital.
Joyag's testimony was corroborated by other prosecution witnesses.
However, notwithstanding his previous identification of Ilagan's assailants to the police, Leonardo
Hernandez underwent a change of heart. He and his wife testified in favor of their neighbor and
second cousin, Romeo Hernandez. They alleged that they had requested Romeo Hernandez to
buy cigarettes from the store of Leonora Pintor, which is 600 meters away from their house (where
the birthday was held), and that Romeo was still doing his errand when the stabbing incident
occurred. They allegedly saw Romeo Hernandez again the following day, even though he was
prevented by his parents from leaving their house because of the incident.
When the accused Romeo Hernandez himself took the witness stand, he affirmed that he was in
Leonora Pintor's store buying cigarettes during the stabbing of Ilagan.
After the trial, the court found Romeo Hernandez guilty of murder "as principal by indispensable
cooperation with conspiracy, . . . with the qualifying circumstance of abuse of superior strength"
(p. 20, RTC Decision) without any attendant modifying circumstance. It sentenced him to suffer
an indeterminate penalty of imprisonment ranging from FOURTEEN (14) YEARS, TEN (10)
MONTHS and TWENTY-ONE (21) DAYS, as minimum, to SEVENTEEN (17) YEARS and FOUR
(4) MONTHS of reclusion temporal, as maximum, to indemnify the heirs of the deceased,
particularly Lourdes Gonzales, in the sum of THIRTY THOUSAND (P30,000), to pay actual and
moral damages to the said heir in the total sum of TWENTY-FIVE THOUSAND PESOS (P25,000),
without subsidiary imprisonment in case of insolvency, and to pay the costs. The court, credited
him in the service of his sentence with one-half (1/2) of the period of his preventive imprisonment,
pursuant to Article 29 of the Revised Penal Code, as amended.
The accused appealed to the Court of Appeals alleging that the trial court erred:
1. in giving full weight and credence to the testimony of Abelardo Joyag, and
2. in finding him guilty by indispensable cooperation of the crime charged.
The appellate court, after a thorough examination of the evidence, gave full credit to the testimony
of the eye-witness, Abelardo Joyag, because by the appellant's admission, he met Joyag only on
the day that he testified in court, and he knew of no reason why Joyag would testify falsely against
him. Moreover, against Joyag's positive and unequivocal identification of the accused, the latter's
alibi could not but crumble like a house of sand.
The court also rejected the testimonies of the Hernandez spouses not only because they evidently
were merely covering up for their cousin, but also because, immediately after the stabbing
incident, before extraneous considerations had set in to cause his change of heart, Leonardo
himself reported the crime to the San Jose police and named the three accused as Ilagan's
assailants. llcd
While appellant capitalized Joyag's four-day delay in giving his statement to the police, the Court
of Appeals correctly observed that it was not enough to discredit him for he came forward of his
own free will as soon as he had recovered from his shock over the death of his friend.
The appellate court and the trial court found the appellant guilty as a co-conspirator in the murder
of Arturo Ilagan qualified by abuse of superior strength. For a collective responsibility among the
accused to be established, it is sufficient that at the time of the aggression, all of them acted in
concert, each doing his part to fulfill their common design to kill their victim. Although only one of
them may have actually stabbed Ilagan, the act of that one is deemed to be the act of all (People
vs. Napoleon Montealegre, 161 SCRA 700; People vs. Dominador Roca, 162 SCRA 696). The
Court of Appeals correctly determined that —
 ". . . In the absence of any attendant modifying circumstance, the penalty
imposable upon the appellant is reclusion perpetua, in accordance with the ruling
in People vs. Munoz, G.R. Nos. L-38968-70, February 9, 1989, which only the
Supreme Court can impose [Subparagraph (d), paragraph (2), Section 5, Article
VIII, of the 1987 Constitution]. There it was held `that Article III, Section 19(1)
does not change the periods of the penalty prescribed by Article 248 of the
Revised Penal Code except only insofar as it prohibits the imposition of the death
penalty and reduces it to reclusion perpetua. The range of the medium and
minimum penalties remains unchanged . . . there being no generic aggravating
or mitigating circumstance attending the commission of the offenses, the
applicable sentence is the medium period of the penalty prescribed by Article
248 of the Revised Penal code which, conformably to the new doctrine here
adopted and announced, is still reclusion perpetua . . .' As it is beyond this
Court's competence to enter judgment in such a situation it is mandated to certify
the case and elevate the entire record thereof to this Supreme Court for review
(Section 34, Republic Act No. 296, as amended; paragraph 3, Section 13, Rule
124, Revised Rules of Court, as amended)." (p. 44, Rollo.) prcd
The crime committed by the accused was murder with treachery by taking advantage of superior
strength with the aid of armed men or by employing means to weaken the defense. Three men,
armed with a knife, crept up in the dark against a defenseless and unsuspecting victim who was
answering a call of nature. When two of Ilagan's attackers pinioned his arms so that their
companion could stab him repeatedly and with impunity, they thereby employed means which
assured the execution of the crime without risk to themselves arising from the defense that their
victim might make.
The penalty for murder is reclusion temporal in its maximum period to death (Art. 248, Revised
Penal Code)
In view of the absence of aggravating and mitigating circumstances to modify the criminal liability
of the accused, the medium period (reclusion perpetua) of the penalty prescribed by law is
imposable on the accused.
WHEREFORE, the decision of the Court of Appeals finding the accused, Romeo Hernandez,
guilty beyond reasonable doubt of murder is affirmed. The accused is hereby sentenced to suffer
the penalty of reclusion perpetua with the accessories of the law and to indemnify the legal heir
of the deceased, his surviving spouse Lourdes Gonzales, in the sum of Thirty Thousand Pesos
(P30,000), to pay to the said heir actual and moral damages in the total sum of Twenty-five
Thousand Pesos (P25,000), without subsidiary imprisonment in case of insolvency, and the
costs. LibLex
SO ORDERED.
Narvasa, Cruz, Gancayo and Medialdea, JJ., concur.
||| (People v. Hernandez, G.R. No. 90641, [February 27, 1990], 261 PHIL 946-952)

EN BANC

[G.R. No. L-31568. November 29, 1973.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMUALDO
DORICO, FERNANDO DORICO, and DIONISIO BALLONICO, defendants-
appellants.
 Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector
C . Fule and Solicitor Vicente A. Torres for plaintiff-appellee.
Leonardo Galing for defendants-appellants.
DECISION

ESGUERRA, J p:

Appeal from the decision of the Court of First Instance of Samar, Branch IV, convicting
accused Romualdo Dorico, Dionisio Ballonico and Fernando Dorico of the crime of murder
and sentencing them as follows:
WHEREFORE, The Court finds the accused, Romualdo Dorico,
Dionisio Ballonico and Fernando Dorico, guilty beyond reasonable doubt
of the crime of Murder qualified with treachery and with the presence of the
aggravating circumstance of superior strength which is not offset by any
mitigating circumstance, and hereby sentences each and every accused,
Romualdo Dorico, Dionisio Ballonico and Fernando Dorico, to the supreme
penalty of DEATH; to indemnify the heirs of the deceased in the amount of
P12,000.00; to pay moral damages in the amount of P6,000.00; and to pay
the costs of the proceedings. 1
Accused Romualdo Dorico and Fernando Dorico are brothers, while accused Dionisio
Ballonico is their first cousin. All the accused and the deceased, Gervacio Dapulag, were
residents of barrio Makiwalo, Mondragon, Northern Samar. There are two conflicting versions
of what happened on the fatal day October 12, 1964, when Gervacio Dapulag was stabbed
to death.
According to the prosecution, thru the testimony of Rosa Dapulag, an eyewitness and
daughter of Gervacio Dapulag, on October 12, 1964 at about 5 o'clock in the afternoon, while
her father was walking towards the store of Estropio Dorico on his way to the farm, she saw
accused Romualdo Dorico and Dionisio Ballonico come out of said store and accosted her
father; that without much ado, Romualdo immediately stabbed her father, hitting him at the
upper left arm, with the wound exiting at the inner part thereof and penetrating the left armpit;
that when her father turned his back to find out who stabbed him, he was again stabbed this
time by Dionisio Ballonico, hitting him on the left side of his back with the wound exiting on
the abdomen; that when her father tried to run away from the two assailants, he was met by
accused Fernando Dorico coming from the nearby store of Castro Dorico, another brother of
the accused, and who hit him with his fist which made her father drop to the ground; that
Romualdo again approached her father and hacked him on the knee; that with her father lying
helpless on the ground, the three accused started challenging everybody; that she saw all that
happened because she was only about 30 meters behind her father on her way also to the
farm to help him graze their carabaos; that she immediately hired a jeep to take her father to
the hospital but it was too late and, instead, brought his remains back home; that the reasons
why the Doricos and Dionisio Ballonico wanted to kill her father was because he insisted on
the filing of a criminal complaint against Romualdo Dorico for the killing of one Patrocinio
Megenio, a nephew of her mother and who grew up with them in their home; and that because
of the death of said Patrocinio Megenio on August 15, 1964, criminal Case No. C-1511 was
filed against Romualdo Dorico with the Court of First Instance of Samar.
It was not only Rosa Dapulag who actually saw what happened on October 12, 1964,
but also Alberto Uy another eyewitness who testified as follows: that on the date and at the
time of the incident he was inside the store of Estropio Dorico trying to buy some cigarettes;
that inside said store were Honorio Dorico (father of Romualdo and Fernando and uncle of
Dionisio Ballonico), Romualdo Dorico, Dionisio Ballonico and Julio Cerenado, drinking liquor
called "Mallorca"; that he heard Honorio tell the group that it was Gervacio Dapulag who
instigated the filing of the criminal charge against Romualdo for the killing of Patrocinio
Megenio, at the same time pointing for the killing of Patrocinio Megenio, at the same time
pointing to Gervacio who was then approaching the store of Estropio; that Romualdo and
Dionisio went out of the store and accosted Gervacio; that at this point up to the point where
Fernando Dorico boxed Gervacio, Alberto Uy corroborated the testimony of Rosa Dapulag
with the only difference that it was Dionisio who first stabbed Gervacio then followed by
Romualdo; that the weapons used by both assailant were bolos called "Depang'; that at the
time of the incident be saw Rosa Dapulag; and that after witnessing what happened he
became scared and ran to the house of his uncle, Ceferino Vicario.
The autopsy report 2 indicating the number of wounds received by the deceased was
also presented and reads as follows:
"1. One clean cut incised stab wound on the left mid-lateral arm 4-3/4
cms. (2 inches) long, penetrating and to exit at the inner left arm 1-1/4 inches
long and to hit again the upper lateral thorax below the left armpit. Stab wound
measures one inch 3-1/2 inches deep.
"2. Presence of one clean cut incised stab wound on the right dorso-
lateral upper aspect of the thorax, measures 1-1/2 inches long by 1-1/4 inches
deep.
"3. Presence of a clean cut incised stab wound on the left dorsolateral
aspect of the abdomen 2 inches long, penetrating to hit the left ventral aspect of
the abdomen two inches above the umbilicus, measures 1-1/4 inches long.
"4. Presence of a clean cut incised stab wound on the left knee measures
1-1/2 cms. long by 1 cm. deep.
"5. Presence of one contusion on the right pinna (ear).
Conclusion
Nature of Injuries: That there are two kinds of wounds namely, open
and closed wounds. That there are four stab wounds two of which are
penetrating (Thru and thru) and fatal in nature as they hit important organs
(aortic arch and small intestines). That the wounds were caused by sharp
edged pointed and bladed instrument. Other wounds contributed as
bleeders.
Cause of Death: Shock from severe hemorrhage due to multiple
stab wounds."
There were two more eyewitnesses, namely, Fernando Dones and Purita Becario.
They were supposed to testify also but for unknown reason said witnesses left for Manila
before trial without giving any forwarding addresses.
Upon the other hand, accused Fernando Dorico put up the defense alibi, while the
other brother, Romualdo Dorico, advanced the theory of self-defense. Their cousin, Dionisio
Ballonico, put up the defense of non-participation in the commission of the crime. Their
versions are as follows:
Romualdo Dorico: That on October 12, 1964, he was in the store of his brother
Estropio; that in said store were his cousin, Dionisio Ballonico, the latter's wife, Elisa, with a
son, Estropio and the latter's wife, Flor de Guia; that while their group were talking, Gervacio
Dapulag arrived and called him; that when he went out of the store, Gervacio asked him why
he slashed his carabaos and he answered that why should he (Romualdo) slash his
(Gervacio's) as he has carabaos of his own; that with his answer, Gervacio flared up and
immediately unsheathed his bolo and slashed him, but he was able to parry the blow; that
Gervacio again delivered the second blow but he was able to dock; that after this they
grappled with each other for the possession of the bolo of Gervacio; that he succeeded in
wresting possession of the bolo; that Gervacio attempted to wrest back the bolo and this time
he stabbed him on the left side of the body; that he again stabbed Gervacio for the second
time on the body; that his third stabbing blow hit Gervacio on the knee; that Gervacio
staggered and fell to the ground; that after the incident he went to Mayor Olimpio de Guia and
informed him of what had happened and at the same time surrendered; that Alberto Uy and
Rosa Dapulag were not present during the stabbing incident; that his brother Fernando Dorico
was not either present; that the reason why Alberto Uy testified against all the accused was
in consideration of the dropping of the arson case filed by Rosa Dapulag against Alberto.
Mayor Olimpio de Guia: That on October 12, 1964, at about 5:00 p.m., Romualdo
Dorico surrendered to him for stabbing Gervacio Dapulag.
Fernando Dorico: That in the morning of October 12, 1964, he was in his farm and
returned to his house at about 3:00 in the afternoon; that after resting for a while he went to
the beach to buy some fish; that at the beach he met Agripino Calupo who was also looking
for some fish to buy; that he and Agripino, having failed to buy some fish returned together to
the poblacion of the barrio; that on their way home they met some people talking about the
killing of Gervacio Dapulag by Romualdo Dorico; that he went home right away after hearing
the news for fear that the relatives of Gervacio might retaliate as he is the brother of Romualdo,
and that his inclusion in the complaint was due to his being a brother of Romualdo.
Agripino Calupo: That it is true he met Fernando Dorico at the beach on the date and
at the time of the incident and, therefore, Fernando could not have been present at the scene
of the crime.
Juan Cabalitan and Estropio Dorico: They more or less corroborated the testimony of
Romualdo. Estropio also added that he did not see Alberto Uy in his store buying some
cigarettes at the time of the incident.
Dionisio Ballonico: That his wife, his son and himself were in the store of Estropio
Dorico in the afternoon of October 12, 1964; that he saw Gervacio Dapulag walking towards
the store of Estropio and upon nearing said store, Gervacio called for Romualdo; that at this
point up to the point wherein Romualdo hacked Gervacio on the knee, he corroborated the
testimony of Romualdo Dorico; that he did not participate in the killing of Gervacio Dapulag;
that Rosa Dapulag was not present when the incident happened; that he was implicated in
this case only because he is a first degree cousin of the Doricos.

On October 13, 1964, accused Romualdo Dorico, Fernando Dorico and Dionisio
Ballonico were charged with the crime of murder in a criminal complaint which reads as
follows:
"That on or about 5:30 in the afternoon of October 12, 1964 in the barrio
of Makiwalo, Mondragon, Province of Samar, Philippines and within the
(preliminary) jurisdiction of this Honorable Court, the above-named accused
conspiring and confederating together and mutually helping one another with
deliberate intent and with intent to kill, with evident premeditation, conspiracy,
treachery, did then and there, willfully, unlawfully and criminally assault and
attacked and stabbed to death one GERVACIO DAPULAG as a result of ,which
the latter received mortal wounds in his different parts of his body resulted in his
death." (page 1, Vol. I, folder of exhibits).
After due hearing of the case, the trial court found all the accused, Romualdo Dorico,
Fernando Dorico and Dionisio Ballonico, guilty beyond reasonable doubt of the crime of
murder as charged and sentenced as previously indicated. Hence this automatic review of the
death penalty.
Five (5) errors of the trial court are assigned by the appellants, to wit:
"1. The lower court gravely erred in not giving credence and evidentiary
weight to accused-appellant Fernando Dorico's defense of alibi and it erred in
not holding that the prosecution witnesses' testimonies are unreliable and
unworthy of belief;
"2. The lower court seriously erred in not giving weight to the strong and
convincing evidence on record showing that Romualdo Dorico acted in self-
defense;
"3. The lower court erred in not holding that accused-appellant Dionisio
Ballonico has not participated in any manner in killing the victim, Gervacio
Dapulag;
"4. The lower court erred in finding that conspiracy existed among the
three accused-appellants in the commission of the crime charged in this case;
and
"5. The lower court erred in convicting the accused-appellants herein of
the crime charged."
The first assigned error deals with the credibility of accused Fernando Dorico whose
defense of alibi was not given credence by the trial court, which is also claimed to have erred
in not holding that the prosecution witnesses' testimonies are all unreliable and unworthy of
belief. Fernando Dorico argues that during the trial he clearly established his whereabouts at
the time and date of the incident by the testimony of Agripino Calupo whom he met at the
beach and with whom he returned to the barrio; that on their way home they saw a group of
people talking about the quarrel between Gervacio Dapulag and Romualdo Dorico and they
heard that the former was killed by the latter; that all these were corroborated by Agripino,
showing that the (Fernando) was not at the scene of the crime when the incident happened.
Fernando further argues that the only ground on which the trial court found him guilty
is his alleged positive identification by Alberto Uy and Rosa Dapulag. But he claimed that their
testimonies are unworthy of belief. For if Uy was actually present when the incident happened
and saw everything that transpired, there is no reason why he did not report it to the
authorities. His name does not even appear in the information as one of the witnesses and
this is indicative of his absence from the scene of the crime.
As regards Rosa Dapulag, Fernando further argues that if, as she claims, she informed
the authorities about the death of her father the following morning and that she witnessed the
commission of the crime, yet it is strange why no statement was taken from her by the police
authorities about the incident; and that Rosa Dapulag, an alleged eyewitness like Alberto Uy,
did not figure in the list of witnesses in the criminal complaint filed on October 13, 1964.
Fernando concludes that the evidence for the prosecution leaves much to be desired and it
exhibits a gap between doubtful evidence and proof beyond reasonable doubt.
The prosecution, on the other hand, reiterates the findings of the court a quo when it
disposed of Fernando's alibi by relying on a long line of decisions of this Court holding that
the defense of alibi is the weakest that can be conveniently put up by the accused because
of the ease and facility with which it can be concocted and, to be believed, it must be supported
by strong and convincing evidence, otherwise the same shall be discredited if there is direct
and positive evidence establishing the identity of the accused. In the case at bar, the
prosecution continues, accused Fernando Dorico was positively identified by Alberto Uy and
Rosa Dapulag.
 As to the credibility of Alberto Uy and Rosa Dapulag, the prosecution justifies their not
having given any sworn statement to the investigating officer because there were enough
witnesses to testify for the People at the preliminary investigation, namely, Francisco Dones
and Purita Vicario, who executed affidavits (Exhs. "F" and "G", respectively). But for one
reason or another, neither Francisco Dones nor Purita Vicario could be presented by the
prosecution at the trial. Whether they were bought off or frightened away is not clear in the
record. Had the prosecution foreseen this eventuality, it could have taken steps to take down
the sworn statements of Alberto Uy and Rosa Dapulag and included them in the list of
witnesses in the information. At any rate, there is no law, rule or decision requiring that only
persons who have previously given sworn statements and have been listed down as
witnesses may be allowed to testify in the trial of a criminal case.
The arguments of accused-appellant Fernando Dorico do not deserve serious
consideration. The rule is well settled, to the point of being trite, that the defense of alibi must
be received with utmost caution 3 for it is one of the weakest defenses that can be resorted
to by an accused, especially if there is direct testimony of an eyewitness duly corroborated by
that of another. 4 It is worthless in the face of positive identification by the prosecution
witnesses pointing to the accused as participants in the crime. 5 Besides, Agripino Megenio,
a witness for accused Fernando Dorico, testified to wit:
Q. You said you saw the dead body of Gervacio Dapulag on the street,
how far is that place where you saw that dead body to the seashore
where you and Fernando Dorico were looking for fish?
A. About 300 meters away.
Q. So that if you run from the seashore to the place where Gervacio
Dapulag fell, in could take you only in less than 3 minutes?
A. If one is a fast runner.
Q. And we are very certain that you saw Fernando Dorico at 4:30 in the
afternoon when you were dismissed from work?
A. I am sure because we met.
Q. You cannot be mistaken of the time of 4:30 in the afternoon?
A. Why should I be mistaken when I could approximate the position of the
sun when it was already down.
Q. You cannot he mistaken of 5:30 in the afternoon?
A. When I said 5:30 in the afternoon it was only my approximation, I do not
actually have a timepiece. (t.s.n., pages 48-49, Vol. 3, emphasis
supplied)
His testimony proves that the 300 meters distance between the place where the accused
Fernando Dorico claimed to be and where the crime was committed is such that it does not
rule out the possibility of this accused being at the place of the crime when the killing took
place. It is not enough to prove that defendant was somewhere else when the crime was
committed, but must likewise demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time it was committed. 6
With regards to the issue that the names of Alberto Uy and Rosa Dapulag do not
appear on the criminal complaint or information as witnesses for the prosecution, the last
paragraph of Section 1, Rule 116 of the Rules of Court, specifically provides that the
prosecution may call at the trial witnesses other than those named in the complaint or
information. 7
II
The second assigned error to be resolved is whether or not the lower court erred in
not giving weight to the alleged strong and convincing evidence on record showing that
Romualdo Dorico acted in self defense. The elements of self defense are: 1) Unlawful
aggression, 2) reasonable necessity of the means employed to prevent or repel, and 3) lack
of sufficient provocation on the part of the person defending himself. In order that the plea of
self defense can prosper, the above mentioned elements must be satisfactorily established.
In the instant case, Romualdo Dorico claims that it has been clearly established that during
the incident Gervacio Dapulag, the victim, first unsheathed his bolo and slashed him, and that
he was able to move backward and on the second blow he ducked and parried Gervacio's
hand. Under the circumstances he claims that there was unlawful aggression on the part of
Gervacio which endangered his life. After he had parried the second blow, he maintains that
they grappled for the possession of the bolo and he succeeded in wresting it from Gervacio,
and when the latter attempted to wrest back the weapon he then stabbed the deceased. He
concludes that the means employed were reasonable to prevent or repel the aggression: that
he was justified in striking the deceased in view of the imminent danger or peril to his life, and
that to stab Gervacio was the only reasonable means to repel his unlawful attack. As to lack
of sufficient provocation, he asserts that the deceased had given cause for the aggression
because of his unjust attack. As it was not he who incited the fight, Romualdo maintains that
all the elements of self defense were duly satisfied.
Romualdo claims that the trial court, in rejecting the theory of self defense, based its
finding on the following grounds: 1) that Romualdo threw the bolo after stabbing to death the
victim; and 2) that he did not sustain even a small scratch in the course of their struggle. He
argues that the fact that he threw the bolo and did not surrender the same does not necessarily
make his claim of self defense untenable. He points out that immediately after the incident,
he was under stress without knowing what is best to do under the circumstances; that he
could not have acted with all the coolness of a person under normal condition, and that being
a layman, he is unaware of the probative value in evidence of surrendering the weapon used
in the assault.
And lastly, Romualdo contends that the second ground why the trial court did not give
weight to his claim of self defense is because he did not even sustain a scratch in the course
of the struggle with the deceased. However, he claims it is not necessary that the person
defending himself must sustain an injury in order to act in self defense, and that the trial court
demanded too much from accused-appellant which would entirely away from him his right to
self-defense.
If Romualdo Dorico really stabbed the victim twice in the body when the victim is
claimed to have lunged at him to grab the bolo, the latter would have been hit in front. But the
stab wound that went through the left arm and hit the chest below the left armpit (No. 1 in Exh.
"B") and the wound that went through the back to the front of the body (No. 3 in Exh. "B") were
both inflicted from behind. It is noteworthy that these wounds are not slashing or hacking
wounds caused by the cutting edge of a bladed weapon but deep stab wounds which are
caused by a straight forward thrust with the point of a sharp-bladed weapon to produce a
penetrating wound. The nature and location of the wounds just described show them to have
been inflicted from the back or from the side of the victim, for the forward thrust must have
been made when the back or side of the victim was directly in front of the knife-wielder.
Another circumstance that casts doubt on the allegation of self defense is the act of
accused Romualdo after stabbing the victim of throwing away the weapon used in the
commission of the crime. This is not the behavior of one who killed another in self
defense. 8 An accused invoking self defense, or for that matter defense of a relative, must
prove his case clearly and convincingly, otherwise conviction would follow from his admission
that he killed the victim. 9 For courts of justice have adhered to the rule that for the plea of self
defense to prosper, a defendant must rely on the strength of his own evidence, not on the
weakness of that for the prosecution. 10
III
The third assigned error to be resolved is whether or not accused-appellant Dionisio
Ballonico participated in any manner in the killing of the victim, Gervacio Dapulag. Accused-
appellant Dionisio Ballonico maintains that his presence at the scene of the crime was purely
incidental — being there only as a by stander. While he admits that he had seen the quarrel
between Romualdo Dorico and Gervacio Dapulag, there is no convincing evidence that he
participated in the fight between the two, and that there is no compelling reason or strong
motive for him to join the fight. He claims that he was only implicated in this case because of
his being a first cousin of the Doricos. And having nothing to do with the case, his inclusion
as a party defendant came as a great surprise and he immediately complained or protested
to the Mayor, Judge and Chief of Police. He resisted his unfounded inclusion by taking positive
steps and he argues that his conduct indicates his innocence.
Appellant Dionisio Ballonico's defense is plain denial. Not that he denies having been
present at the scene of the crime, but what he denies is his having had any participation in
the quarrel between Romualdo Dorico and Gervacio Dapulag as testified to by the two
eyewitnesses, Alberto Uy and Rosa Dapulag, that he (Dionisio) was one of those who stabbed
the deceased. This is a simple case of credibility of witnesses — and the lower court chose
to give credence to the testimonies of Alberto Uy and Rosa Dapulag and not to Ballonico's
denial. That the lower court had better opportunity to assay the credibility of witnesses than
the appellate court is a principle so well-known that it hardly requires citation of authorities.
As to Dionisio's claim that he was included as party defendant because of his being a
first cousin to the Doricos, it should be noted that Estropio Dorico, a brother of accused
Romualdo and Fernando, who was also at the scene of the crime, was not implicated and
charged in this case. Nor was Castor Dorico, from whose house accused Fernando Dorico
emerged in order to block the way of the victim, charged in this case. If out of the many first
cousins the Doricos had in barrio Makiwalo, only Dionisio Ballonico was charged, it was
because he actually participated in the commission of the crime.
Dionisio Ballonico contends that as it was not established that he had a motive in
committing the offense imputed to him, his liability has not been established. This contention
is without merit. It is true that no motive has been shown why he would kill Gervacio Dapulag,
but this Court has repeatedly held that motive is pertinent only when there is doubt as to the
identity of the culprit. Since Dionisio Ballonico was positively identified by credible witnesses
as one of the assailants of the victim, proof of motive is not essential for conviction. 11 There
was no reason shown why the witnesses for the prosecution would foist a crime on Dionisio
Ballonico if he did not really commit it. Neither does the record indicate any justification for
rejecting the finding of the lower court that the testimonies of Alberto Uy and Rosa Dapulag
are incredible. Upon the evidence, accused Ballonico's bare denial of participation is not
enough to overcome the positive evidence showing beyond reasonable doubt his participation
in the commission of the crime.
IV
The fourth assigned error is whether or not the lower court erred in finding that
conspiracy existed among the three accused-appellants. Conspiracy, according to the
defense, was found by the trial court to exist on the ground that accused Romualdo and
Fernando Dorico are brothers and Dionisio Ballonico is their first cousin. Hence they have a
similar or identical grudge and entertained like feelings of resentment against the victim. It is
not correct to assume that the three accused-appellants have similar a complaint against the
deceased based on his filing of the complaint for the killing of one Patrocinio Megenio, the
only logical person would be Romualdo Dorico who is the lone accused in that case.
 It is fundamental that in order for conspiracy to exist there must be unity of purpose
and unity in the execution of the unlawful objective. Here, appellants did not act with a unity
of purpose. This is shown by the evidence for the prosecution when Alberto Uy testified that
moments before the killing, he heard Honorio Dorico, father of Romualdo and Fernando
Dorico and uncle of Dionisio Ballonico, say: "children, you kill that demon Gervacio Dapulag
because he is the one putting you down in the case wherein Patrocinio Megenio was killed",
after which appellants allegedly assaulted the deceased. If this is true, the words given by
Honorio Dorico to his children were meant as a command, thus indicating that there was no
previous concert of criminal design among the perpetrators. So that even assuming that
appellants have joined together in the killing, such circumstance alone does not satisfy the
requirement of a conspiracy because the rule is that neither joint nor simultaneous action is
per se sufficient proof of conspiracy. It must be shown to exist as clearly and convincingly as
the commission of the offense itself. (People v. Geronimo, G.R. No. L-35700, October 15,
1973). Obedience to a command does not necessarily show concert of design, for at any rate
it is the acts of the conspirators that show their common design. In this case, the facts adduced
show that the appellants intended by their separate acts to bring about the death of the victim.
The contention of the appellants that there was no conspiracy deserves serious
consideration. The record is clear that before the stabbing incident took place accused
Romualdo Dorico and Dionisio Ballonico, together with the former's father Honorio Dorico,
were inside the store of Estropio Dorico, another son of Honorio, drinking liquor. It was Honorio
Dorico who first saw the victim Gervacio Dapulag pass by the said store on his way to the
farm. The finding of the lower court as to how the aggression was committed is as follows:
that Alberto Uy and Rosa Dapulag saw accused Romualdo Dorico and Dionisio Ballonico stab
the victim Gervacio Dapulag and when the latter ran to escape he was met by appellant
Fernando Dorico who boxed him on the ear. This does not show conspiracy. The meeting of
the victim by the accused was purely casual. No other evidence was presented by the
prosecution to show conspiracy, which, according to the settled rule, must be proved as clearly
and as convincingly as the commission of the crime itself.
In People v. Portugueza, 12 this Court ruled that:
"Although the defendants are relatives and had acted with some degree
of simultaneity in attacking their victim, nevertheless, this fact alone does not
prove conspiracy."
Apparently, the murderous assaults were made by appellants Romualdo Dorico and
Dionisio Ballonico who inflicted the wounds which killed the victim. They should be guilty of
murder characterized by alevosia, while appellant Fernando Dorico who merely boxed the
victim on the ears should be held guilty only of lesiones leves or slight physical injuries.
Although accused Romualdo Dorico contends that he surrendered immediately to the
authorities after the incident, the trial court observed that the police blotter, Exhibits "X" and
"X-1", shows that he was arrested and that he did not surrender. In the absence of aggravating
or mitigating circumstances, the penalty of reclusion perpetua should be imposed on
appellants Romualdo Dorico and Dionisio Ballonico.
V
Discussion of the fifth and last assigned error becomes unnecessary in view of the
conclusion We have reached.
WHEREFORE, the decision appealed from should be modified and another one
entered holding accused Romualdo Dorico and Dionisio Ballonico guilty beyond reasonable
doubt of the crime of murder. Accordingly, they are sentenced to suffer the penalty of reclusion
perpetua and to indemnify jointly and severally the heirs of the victim, Gervacio Dapulag, in
the sum of P12,000.00.
 Accused Fernando Dorico is sentenced to suffer fifteen (15) days of arresto
menor. 13 Considering the period of preventive imprisonment he has
undergone, 14 Fernando Dorico is hereby ordered released immediately from custody.
Costs against appellants.
Makalintal, C .J ., Zaldivar, Castro, Fernando, Teehankee, Makasiar, Fernandez,
Muñoz Palma and Aquino, JJ ., concur.
Barredo, J ., in the result.
Antonio, J ., did not take part.

||| (People v. Dorico, G.R. No. L-31568, [November 29, 1973], 153 PHIL 458-477)

[G.R. No. L-11177. October 30, 1958.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CIRILO MONROY alias CIRILO

SARTE and CELERINO, IDICA, alias MARCELINO, Defendants-Appellants.

Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for Appellee.

Servillano de la Cruz for Appellant.

SYLLABUS

1. CRIMINAL LAW; CONSPIRACY, HOW DETERMINED AND WHEN IT ARISES;

PREMEDITATION COMPARED. — Conspiracy may be inferred from the acts of the accused
themselves when such acts point to a joint purpose and design (see People v. Upao-Moro; G. R.
No. L-6771, May 28, 1957, and cases cited therein.) Unlike in evident premeditation, where a
sufficient period of time must elapse to afford full opportunity for meditation and reflection and for
the perpetrator to deliberate on the consequences of his intended deed (U.S. v. Gil. 13 Phil. 330),
conspiracy arises on the very instant the plotters agree, expressly or impliedly, to commit the
felony and forthwith decide to pursue it. Once this assent is established, each and everyone of
the conspirators is made criminally liable for the crime, committed by anyone of them. (People v.
Abrina Et. Al., 102 Phil., 695).

DECISION

REYES, J.B.L., J.:

Cirilo Monroy (alias Cirilo Sarte) and Celerino Idica (alias Marcelino Idica) were charged and
convicted in the Court of First Instance of Ilocos Sur of the crime of murder defined and penalized
under Article 248 of the Revised Penal Code. Each was sentenced to suffer the penalty
of reclusion perpetua, with the accessory penalties prescribed by law; to indemnify the heirs of
the deceased Elpidio Agdeppa in the amount of P6,000; and to pay the costs. Against this
judgment, both appealed to this Court. Later, however, we granted permission for Celerino Idica’s
appeal to be withdrawn (Resolution of September 19, 1958). Accordingly, the judgment of the
lower court, as to him, was entered on the 23rd of the same month for execution.
We believe that the records of this case establish that on the night of October 10, 1954, Cirilo
Monroy, Celerino Idica and Guillermo Lacuesta, all residents of barrio Jordan, Sinait, Ilocos Sur,
went to barrio Nagbalawartian of the same municipality at the store-residence of one Eladio
Fiesta, for Idica wanted to make payment for an article he previously bought on credit from Fiesta.
Upon arriving at the place, the trio met, aside from some immediate members of Fiesta’s family,
other persons, among whom were their barrio-mates Jose Sarte and the deceased Elpidio
Agdeppa. They stayed there for about two hours, spending the time talking and drinking "basi" (a
native drink). It was about 11:00 o’clock that evening when they, this time together with the
deceased Agdeppa and Jose Sarte, started for home.

On their return journey, they passed through the usual trail by the bank of a small river. Nearing
the house of one Maria Duran, Elpidio Agdeppa suggested to Cirilo Monroy, Celerino Idica and
Guillermo Lacuesta (Jose Sarte was walking a little ahead of them) that they abduct the daughter
of Maria Duran. The trio, apparently, did not agree to this proposition for some reasons known
only to them. Their refusal must have infuriated Agdeppa for he was alleged to have said, "If you
do not agree, beware", and then proceeded on his way, turning his back to the others.

About two minutes later, the assault against the deceased began. On what transpired during these
two minutes preceding the attack, Guillermo Lacuesta (a co-accused himself who was discharged
to become a state witness) declared that Celerino Idica clandestinely proposed to the other two
(Monroy and Lacuesta) that they injure Agdeppa. To this scheme, Cirilo Monroy readily agreed,
while Lacuesta refused to accede. Their position at this precise moment was stated to be thus:
Jose Sarte, as usual, was walking ahead, closely followed some distance behind by Agdeppa.
Celerino Idica, who was obliquely behind Agdeppa’s right, then picked up a fist-sized stone and
hurled it at the deceased, hitting him on his right cheek. Agdeppa was seen to have instinctively
covered his face with both hands upon receiving the blow. While in that position, Idica and Monroy
continued pelting him with stones until Agdeppa collapsed and fell to the ground face downward.
Seeing this, Idica approached the fallen Agdeppa, snatched from his waist a sharp-pointed bolo,
and with it stabbed the deceased several times, while Monroy kept hitting him with stones.
Believing that their victim was already dead, the duo dragged his body to the edge of the river,
helped by Lacuesta. Celerino Idica then went to the house of Maria Duran, took a bucket of water
and with it, tried to wash away the blood stains on the scene of the crime. Thereafter, they left.

While the foul play was in progress, Jose Sarte was so overcome with fear that he fled from the
group upon seeing the deceased collapse.

The violent death of Elpidio Agdeppa on the night of October 10, 1954 is not questioned. The
necropsy report, confirmed by the testimony of doctor Avelino, leaves no doubt that Agdeppa died
as the result of a homicidal attack. With the corpus delicti thus independently established, the
voluntary confessions of appellant Monroy and his companion Idica (who withdrew his appeal)
fully support the conviction, specially because they confirm the testimony of eyewitnesses
Guillermo Lacuesta and Jose Sarte (People v. Quianzon, 62 Phil. 162; People v. Bantagan, 54
Phil. 834). The confessions themselves, Exhibits D and E, recite as follows:jgc:chanrobles.com.ph

"When we were on the way near the house of Maria Duran, Marcelino Idica struck Elpidio
Agdeppa with a stone on the right side of his face, then as Elpidio was falling to the ground, I
struck him also with a stone twice on the head. Then Marcelino Idica grabbed the bolo of Elpidio
Agdeppa and stabbed Elpidio several times on the back, after which, I also stabbed Elpidio on
the back once. Casimiro (Lacuesta) also struck Elpidio Agdeppa on the head several times with
stone." (Sworn declaration of Cirilo Monroy, Exhibit "D")

"When we passed thru the Sinait river I picked up two (2) fist-size stones and on the way I threw
one to the right jaw of the late Elpidio Agdeppa and when he stumbled I again threw the other
stone to the back upper part of his head. Thereafter, I took hold of the bolo of the late Elpidio
Agdeppa placed on his hip and strucked his back twice. After that Cirilo Sarte threw another stone
on the head of Elpidio Agdeppa and stabbed him also. Guillermo Lacuesta also threw stone on
the head of Elpidio Agdeppa." (Sworn declaration of Celerino Idica, Exhibit "E")

It is but to be expected that the defense should assail the voluntariness of these confessions,
although they were signed and sworn to before the Justice of the Peace of Sinait on the day
following the incident, i.e. on October 11, 1954. It is contended that the confessions were made
because of fear of maltreatment by the Chief of Police. This claim, however, is unacceptable. No
evidence was presented to show what excited this purported fear, the defense relying solely on
the naked statements of both accused that they were afraid. On the other hand, the disinterested
testimony of the Justice of the Peace, Adelaida C. Salom, belies any irregularity in the manner
they were made. She categorically declared that before the affiants signed their names, she
apprised them of their constitutional rights and warned them of the fatal consequences of their
admissions; and that she read the contents of the affidavits to them, translating it from English to
their native dialect (Ilocano). The affiants, she continued, even told her that "they were just telling
the whole truth and nothing but the truth." This testimony, coupled with the substantial uniformity
of both declarations as to the details in the commission of the crime, which only the accused knew
and could relate in the way it was given, more than convinces us of their veracity. (Cf. People v.
Andallo and Cardona, G. R. No. L-9173, May 29, 1957).

The defense assails the lower court’s finding of conspiracy between the two accused, arguing
that the interval between the idea of injuring the deceased and the time the act was committed
was too brief (two minutes more or less) for them to have come into conspiracy; and that the
absence of evident premeditation, as found by the trial court, substantiates this view.

This Court has repeatedly decided that conspiracy may be inferred from the acts of the accused
themselves when such acts point to a joint purpose and design (see People v. Upao-Moro, G. R.
No. L-6771, May 28, 1957, and cases cited therein). Unlike in evident premeditation, where a
sufficient period of time must elapse to afford full opportunity for meditation and reflection and for
the perpetrator to deliberate on the consequences of his intended deed (U.S. v. Gil, 13 Phil. 530),
conspiracy arises on the very instant the plotters agree, expressly or impliedly, to commit the
felony and forthwith decide to pursue it. Once this assent is established, each and everyone of
the conspirators is made criminally liable for the crime committed by anyone of them (People v.
Abrina, Et Al., 102 Phil., 695). Here, the accord between the accused is evidenced by their
concerted assault upon their victim, rendering each assailant liable for the entire consequences
of the unlawful act.

At any rate, it appears that appellant himself inflicted some of the head injuries, by pelting stones
on the victim before and during the stabbing, and since any one of the lesions (excepting that
inflicted by Idica on the right side of the face) could have caused the death of Elpidio Agdeppa,
according to the Municipal Health Officer, Dr. Jose B. Avelino, Monroy himself can be deemed
guilty as principal by direct participation. Appellant’s own confession is to the effect that he struck
the deceased with stones twice on the head, and that he stabbed him once at the back (see
pertinent portions of Exhibit "B" ; and also Exhibit "E", supra). The gravity of such actions bars
him from invoking the mitigating circumstance of not having intended to commit so grave a wrong
as that committed.

The existence of treachery is attested by the suddenness of the attack that caught the deceased
Agdeppa (who was walking ahead of the aggressors) completely unaware, deprived of any
chance to ward off the assault. Guillermo Lacuesta and Jose Sarte testified that when Idica stoned
Elpidio Agdeppa for the first time, the latter faced forward, while the hurler was a few paces behind
and to the right of Agdeppa. The location of the injury on the face, as shown by the medical
certificate (Exhibit "C") and as graphically illustrated in Exhibit "C-1", clearly indicates that the
assailants were diagonally behind the victim when the attack began.
We find no error in the penalty imposed by the lower court. The victim’s mere utterance "if you do
not agree, beware", without further proof that he was bent upon translating his vague threats into
immediate action, cannot be considered as sufficient provocation or threat immediately preceding
the act. "Sufficient" provocation or threat has been held to be one which is adequate to excite a
person to commit the wrong charged, and which must, accordingly, be proportionate to its gravity
(see People v. Nabora, 73 Phil. 434).

Wherefore, the appealed judgment should be, and hereby is affirmed. One-half of the costs shall
be borne by appellant Monroy. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and
Endencia, JJ., concur.

EN BANC

[G.R. No. 2430. March 9, 1906.]

THE UNITED STATES, plaintiff-appellee, vs. JUAN
LEANDRO VILLARINO AND EULALIO PEÑA, defendants-appellants.

Claudio Gabriel and Francisco Rodriguez, for appellants.

Solicitor-General Araneta, for appellee.
SYLLABUS

1. CONSPIRACY; COMPETENCY OF EVIDENCE. — The discovery of a document

purporting to be a commission appointing one charged with "conspiracy" as an officer of the
armed forces which it is alleged the conspirators were organizing, is not competent evidence
against him where it is not shown that he received or accepted such commission.
DECISION

CARSON, J p:

Juan L. Villarino and Eulalio Peña, the appellants in this case, were convicted of the
crime of conspiracy, as defined and penalized in section 4 of Act No. 292 of the Philippine
Commission, and sentenced the first to five years' imprisonment with hard labor and $4,000
fine, and second to four years' imprisonment with hard labor and $3,000 fine, respectively,
and both to suffer the subsidiary imprisonment prescribe in the Penal Code in case of failure
to pay fines imposed in criminal proceedings, and to the payment of their proportionate share
of the costs.
The evidence introduced at the trial, including the confession of Juan L. Villarino, and
various papers and documents proven to have emanated from him, corroborated by the
testimony of several witnesses, fully sustains the findings of guilt as to him, we find no
prejudicial error in the proceedings leading up to the imposition of sentence. The court erred,
however, in imposing subsidiary imprisonment in case of failure to pay the fine, there being
no provision for such imprisonment in the act of the Commission defining and penalizing the
crime of which he was convicted.
 We do not think the evidence of record is sufficient to sustain a finding of guilt as to
his co-accused, Eulalio Peña. There is no evidence whatever connecting with him with the
conspiracy in which it is alleged he took part, except only an alleged confession which he is
said to have signed in one of the police stations of the city of Manila. In view of the
circumstances under which this alleged confession is said to have been made, and in view,
furthermore, of the form and manner in which it is drawn up, we are not prepared to approve
a finding of guilt based solely thereon, uncorroborated by any testimony connecting the
accused with the crime which he is alleged to have committed. A document was introduced
at the trial purporting to be a commission appointing the said Eulalio Peña brigandier-general
of the armed forces which it is alleged the conspirators were organizing, but there is no
evidence whatever to show that Peña ever received or accepted such appointment, or in fact
knew of its existence. The prosecution attempted to connect him with this document by
introducing evidence to show that one Ladislao Luna, near whose house the said document
was discovered, and who himself was charged with being a member of the conspiracy, had
stated that this commission, together with certain other papers and documents, had been
entrusted to him by Peña for safe-keeping. This evidence, however, was entirely inadmissible,
as heresay, Luna himself not having been put on the stand.
The judgment and sentence of the trial court, in so far as it relates to Juan
Leandro Villarino, is hereby affirmed, except in so far as it attempts to impose upon him
subsidiary imprisonment, as to which said judgment and sentence is reversed, and the
judgment and sentence in so far as it applies to the said Eulalio Peña is reversed, and the
said Eulalio Peña is hereby acquitted, and will be set at liberty forthwith.
The said Juan Leandro Villarino will pay his proportionate share of the costs of this
appeal, those of Eulalio Peña being declared de oficio in both instances. So ordered.
Arellano, C.J., Torres, Mapa, Johnson and Willard, JJ., concur.

||| (U.S. v. Villarino, G.R. No. 2430, [March 9, 1906], 5 PHIL 697-699)

EN BANC

[G.R. No. 1282. September 10, 1903.]

THE UNITED STATES, complainant-appellant, vs. SIMEON FIGUERAS ET
AL., defendants-appellants.

Pedro Concepcion for appellants.

Solicitor-General Araneta for appellee.
SYLLABUS

1. CRIMINAL LAW, CONSPIRACY; EVIDENCE. — Proof that the defendants met

together and made complaints showing a discontent with the Government on account of real
or fancied evils is not sufficient to sustain a conviction for the crime of conspiracy to overthrow
the Government.
DECISION

MAPA, J p:
 The judgment of the Court of First Instance from which the defendants appealed finds
them guilty of the crime of conspiracy under section 1 of Act No. 292, and imposes upon them
the penalty of two years' imprisonment and a fine of $2,000, and four years' imprisonment and
a fine of $5,000, respectively. The merits of the case did not justify this conviction; therefore
the judgment must be reversed.

Of the three witnesses presented on behalf of the prosecution, namely, Paulino Legaspi,
Laureano Martinez, and Petronilo Portugal, we must disregard the testimony of the latter, as it
proves absolutely nothing against the defendants. He testifies that he was invited by Paulino
Legaspi to rebel against the Government, and that he was given to understand by Legaspi that
there were many persons who intended to conspire, but the witness did not know whether the
accused were implicated in this conspiracy.
Paulino Legaspi testifies that various persons, some forty more or less in number, were conspiring
to overthrow the constituted Government, and states that he knows that the defendants were
engaged in this conspiracy because he heard them say so in their conversations. Called upon to
repeat the words which he heard them say, he stated the following: "What a life this is, so full of
misery, constantly increasing. When will our wretchedness end? When will the authorities remedy
it? What shall we do?" He does not state that he heard anything beyond this, and it appears that
he relies solely upon these words, used by the defendants, as a basis for his assertion that they
were conspiring. This being so, his assertion appears clearly to be the result of an arbitrary and
gratuitous conclusion, because, although these words reveal discontent on account of the evils,
real or fictitious, to which they-refer, they are not alone sufficient to prove the existence of a
conspiracy to rebel, much less with the aid of force, against the constituted Government. The
reason which the witness gives us for his belief is not, therefore, convincing, and consequently
we consider that his evidence must be rejected as to this part of his testimony.
As to other matters this witness testifies solely from hearsay. "They say" (these are his own words)
"that these" (the accused) "are the principal conspirators." "According to my information," he adds
further on, "this agreement has existed" (referring to the agreement to rebel against the
Government, which in the opinion of the witness constitutes the conspiracy), "not only between
these two but also between them and others." Again, when answering a question put to him in
general terms, as to whether his testimony was the result of his own knowledge, he stated that
he knew these things only by hearsay and that he was unable to state from whom he received his
information. Other than the testimony referred to, this witness testifies to no concrete fact relative
to the conspiracy herein prosecuted, and does not even know if the accused have formed any
determination evidencing their intention to conspire, nor does he know if they have collected
contributions or attempted to obtain possession of arms for the purposes of the conspiracy.
The testimony of Laureano Martinez would doubtless be more important than that of the preceding
witnesses were it not highly improbable from several points of view. In the first place, it is
improbable that the defendants should select the house of this witness, Martinez, for the purpose
of meeting together to conspire, to read and comment upon correspondence relating to the
conspiracy, and to consider the matter of contributions and arms collected for the purposes
thereof, as this witness testifies, doing all this in his presence, without the slightest caution or
care, when it appears from the testimony of the witness himself that not only was he not a party
to the conspiracy but that he had not even been requested to join it. From this it follows necessarily
that the conspirators could not know whether they could count upon his consent and adhesion or
not, and it is incredible that the defendants should discuss so grave and delicate a matter with
such an absolute disregard of the most rudimentary precautions — precautions which the most
ordinary prudence would counsel in such cases — as would appear to be the case from the
testimony of the witness Martinez. This would be equivalent to supposing that the defendants and
their companions were entirely devoid of the instinct of self-preservation. In the second place, and
from another point of view, it is also improbable that Martinez, who had no interest in the
conspiracy, he being, according to his own testimony, an entire outsider, would have permitted
such criminal meetings to be held in his house, thus exposing himself to disagreeable
consequences.
The letter which this witness states he abstracted from the pocket of the defendant Bermudes,
and which has been attached to the record as evidence for the prosecution, might perhaps have
some value as evidence if it were shown: (1) That the words and phrases used in the letter have
a conventional meaning; and if so, then the ordinary meaning of the words and phrases employed;
(2) the authenticity of this letter. Nothing in this connection has been proven, nor was any attempt
made to introduce such evidence at the trial and in the absence of such important data the value
of this letter as evidence must depend exclusively upon the testimony of Laureano Martinez,
whose credibility, as we have already stated, appears exceedingly doubtful. The terms of the letter
itself are such that, given their natural and ordinary meaning, they do not even remotely show the
existence of any conspiracy.
Furthermore, it is at least strange that Martinez, although he succeeded in getting possession of
the letter on the night of Monday, March 9, did not deliver it to the governor of the province until
the night of Wednesday, the 11th, if, as he testifies, his sole purpose in stealing it was to discover
and denounce the conspiracy. There is nothing in the case, supposing that such was his purpose,
to satisfactorily explain such a delay, and it is even more strange that it should not have occurred
to the witness to read the letter. He had it in his possession for a considerable length of time, and
it would have been natural for him to be interested in reading it, either for the purpose of assuring
himself that it was the same letter he proposed to purloin and not some other, or else for the
purpose of determining, by acquainting himself with its contents, of which he had no knowledge,
whether or not it was sufficient to support the very grave charge which he proposed to lodge with
the Government authorities of the province. Above all, the fact that the other witness for the
prosecution, Paulino Legaspi, who, according to the testimony of Martinez, is the one who
delivered this letter to the defendant Bermudes, not only fails to say a single word about it but
testifies in such a way that it may reasonably be inferred from his testimony as a whole that he
was wholly ignorant of the existence of the letter, his statements thus being an implicit denial of
the assertions of Martinez in this regard.
The representative of the Government in this instance attempts to explain what he terms the
vacillation of the witnesses for the prosecution by the fear which, in his opinion, they naturally
would have of incriminating themselves or of being held to some responsibility. This argument
rests upon the assumption that these witnesses have had direct relations with the defendants with
respect to the facts concerning which they testified, and that it may even be inferred that they
were involved in the conspiracy. We can not admit this assumption, particularly in view of the fact
that the witnesses themselves declare that they had not even been spoken to about taking part
in the conspiracy. Apart from this, no matter how much stress may be laid upon the fear to which
the Solicitor-General refers, we can not see how the words of the witnesses can be interpreted to
mean something entirely opposed to their natural and proper meaning. The law does not require
a witness to incriminate himself, but it does impose upon him the obligation of being truthful in his
testimony. Upon no other assumption than that of the witness's veracity can his testimony be
considered at all.
The prosecution has endeavored to prove that on the night preceding the day on which the
information in this case was filed the witness Martinez was pursued by the defendants,
accompanied by some other persons, in order that they might revenge themselves upon him for
having denounced them to the governor of the province. The merits of the case do not appear to
us to conclusively establish this fact; but even if it were true, it would not necessarily establish the
guilt of the defendants. They might feel resentment and a desire for revenge against the informer,
even though they were completely innocent of the offense charged; it may even be said that the
more false and defamatory the charge laid against them, the more natural and the more profound
would be their resentment.
In view of the insufficiency of the evidence for the prosecution it is unnecessary to consider the
weight to be attributed to the testimony of the witnesses for the defense, which, however, tends
to demonstrate the innocence of the defendants. Their guilt not having been established by the
evidence, they are entitled to an acquittal.

We therefore reverse the judgment appealed and acquit the defendants, with the costs of both
instances de oficio.
Arellano, C .J ., Torres, Cooper, Willard and McDonough, JJ ., concur.

||| (U.S. v. Figueras, G.R. No. 1282, [September 10, 1903], 2 PHIL 491-495)

EN BANC

[G.R. No. 153559. June 8, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO COMADRE,
GEORGE COMADRE and DANILO LOZANO, appellants.

DECISION

PER CURIAM p:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with
Murder with Multiple Frustrated Murder in an information which reads:
That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao,
Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one
another, with intent to kill and by means of treachery and evident premeditation,
availing of nighttime to afford impunity, and with the use of an explosive, did there
and then willfully, unlawfully and feloniously lob a hand grenade that landed and
eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly
shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate,
and causing Jerry Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat,
Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their
bodies, per the medical certificates; thus, to the latter victims, the accused
commenced all the acts of execution that would have produced the crime of
Multiple Murder as consequences thereof but nevertheless did not produce them
by reason of the timely and able medical and surgical interventions of physicians,
to the damage and prejudice of the deceased’s heirs and the other victims.
CONTRARY TO LAW. 1
On arraignment, appellants pleaded “not guilty”. 2 Trial on the merits then ensued.
As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert
Agbanlog, Jimmy Wabe, Gerry Bullanday, 3 Rey Camat and Lorenzo Eugenio were having a
drinking spree on the terrace of the house of Robert’s father, Barangay Councilman Jaime
Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on
the banister of the terrace listening to the conversation of the companions of his son. 4
 As the drinking session went on, Robert and the others noticed appellants Antonio
Comadre, George Comadre and Danilo Lozano walking. The three stopped in front of the house.
While his companions looked on, Antonio suddenly lobbed an object which fell on the roof of the
terrace. Appellants immediately fled by scaling the fence of a nearby school. 5
The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of
the house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio
were hit by shrapnel and slumped unconscious on the floor. 6 They were all rushed to the San
Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog
died before reaching the hospital. 7 TaDSHC
Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the
cadaver of Robert Agbanlog, certified that the wounds sustained by the victim were consistent
with the injuries inflicted by a grenade explosion and that the direct cause of death was
hypovolemic shock due to hand grenade explosion. 8 The surviving victims, Jimmy Wabe, Rey
Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries. 9
SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene
of the crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments
were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City,
where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an MK2
hand grenade. 10
Denying the charges against him, appellant Antonio Comadre claimed that on the night of
August 6, 1995, he was with his wife and children watching television in the house of his father,
Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that he
was surprised when three policemen from the Lupao Municipal Police Station went to his house
the following morning of August 7, 1995 and asked him to go with them to the police station, where
he has been detained since. 11
Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre
and the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing
incident, claiming that he was at home when it happened. He stated that he is a friend of Rey
Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant also
claimed to be in good terms with the Agbanlogs so he has no reason to cause them any grief. 12
Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he
was at home with his ten year-old son on the night of August 6, 1995. He added that he did not
see Antonio and George Comadre that night and has not seen them for quite sometime, either
before or after the incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe. 13
Antonio’s father, Patricio, and his wife, Lolita, corroborated his claim that he was at home
watching television with them during the night in question. 14 Josie Comadre, George’s wife,
testified that her husband could not have been among those who threw a hand grenade at the
house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside their
house after working all day in the farm. 15
After trial, the court a quo gave credence to the prosecution’s evidence and convicted
appellants of the complex crime of Murder with Multiple Attempted Murder, 16 the dispositive
portion of which states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano
GUILTY beyond reasonable doubt of the complex crime of Murder with
Multiple Attempted Murder and sentencing them to suffer the imposable
penalty of death;
 2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly
and severally the heirs of Robert Agbanlog P50,000.00 as
indemnification for his death, P35,000.00 as compensatory damages and
P20,000.00 as moral damages;
3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to
pay jointly and severally Jimmy Wabe, Rey Camat, Gerry Bullanday and
Jaime Agbanlog P30,000.00 as indemnity for their attempted murder.
Costs against the accused.
SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as
amended. Appellants contend that the trial court erred: (1) when it did not correctly and judiciously
interpret and appreciate the evidence and thus, the miscarriage of justice was obviously
omnipresent; (2) when it imposed on the accused-appellants the supreme penalty of death
despite the evident lack of the quantum of evidence to convict them of the crime charged beyond
reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the
accused-appellants of the crime charged. 17
Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey
Camat, Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and
Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein they
did not categorically state who the culprit was but merely named Antonio Comadre as a suspect.
Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits because he
saw the latter's ten year-old son bring something in the nearby store before the explosion
occurred.
On August 27, 1995, or twenty days later, they went to the police station to give a more
detailed account of the incident, this time identifying Antonio Comadre as the perpetrator together
with George Comadre and Danilo Lozano.
A closer scrutiny of the records shows that no contradiction actually exists, as all sworn
statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and
Danilo Lozano. Moreover, it appears that the first statement was executed a day after the incident,
when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the injuries they
sustained. Coherence could not thus be expected in view of their condition. It is therefore not
surprising for the witnesses to come up with a more exhaustive account of the incident after they
have regained their equanimity. The lapse of twenty days between the two statements is
immaterial because said period even helped them recall some facts which they may have initially
overlooked.
Witnesses cannot be expected to remember all the details of the harrowing event which
unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do not
damage the essential integrity of the evidence in its material whole, nor should they reflect
adversely on the witness’ credibility as they erase suspicion that the same was
perjured. 18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than
destroy the credibility of a witness to a crime, especially so when, as in the instant case, the crime
is shocking to the conscience and numbing to the senses. 19
Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio
and Gerry Bullanday had any motive to testify falsely against appellants. Absent evidence
showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that
no such improper motive exists, and their testimony is thus worthy of full faith and credit.
The trial court is likewise correct in disregarding appellants’ defense of alibi and denial.
For the defense of alibi to prosper, the accused must prove not only that he was at some other
place at the time of the commission of the crime but also that it was physically impossible for him
to be at the locus delicti or within its immediate vicinity. 20

Apart from testifying with respect to the distance of their houses from that of Jaime
Agbanlog's residence, appellants were unable to give any explanation and neither were they able
to show that it was physically impossible for them to be at the scene of the crime. Hence, the
positive identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey
Camat and Gerry Bullanday prevails over their defense of alibi and denial. 21
It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy
Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio
Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the
house and the moon was bright. 22
Appellants’ argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional
Trial Court of San Jose City, Branch 38 erred in rendering the decision because he was not the
judge who heard and tried the case is not well taken.
It is not unusual for a judge who did not try a case to decide it on the basis of the record
for the trial judge might have died, resigned, retired, transferred, and so forth. 23 As far back as
the case of Co Tao v. Court of Appeals 24 we have held: “The fact that the judge who heard the
evidence is not the one who rendered the judgment and that for that reason the latter did not have
the opportunity to observe the demeanor of the witnesses during the trial but merely relied on the
records of the case does not render the judgment erroneous.” This rule had been followed for
quite a long time, and there is no reason to go against the principle now. 25
However, the trial court’s finding of conspiracy will have to be reassessed. The undisputed
facts show that when Antonio Comadre was in the act of throwing the hand grenade, George
Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement
or performed any act to assist him. The trial court held that the mere presence of George Comadre
and Danilo Lozano provided encouragement and a sense of security to Antonio Comadre, thus
proving the existence of conspiracy.
We disagree.
Similar to the physical act constituting the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of
actual cooperation rather than mere cognizance or approval of an illegal act is required. 26
A conspiracy must be established by positive and conclusive evidence. It must be shown
to exist as clearly and convincingly as the commission of the crime itself. Mere presence of a
person at the scene of the crime does not make him a conspirator for conspiracy transcends
companionship. 27
The evidence shows that George Comadre and Danilo Lozano did not have any
participation in the commission of the crime and must therefore be set free. Their mere presence
at the scene of the crime as well as their close relationship with Antonio are insufficient to establish
conspiracy considering that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an act of giving moral
assistance to his criminal act. The ratiocination of the trial court that “their presence provided
encouragement and sense of security to Antonio,” is devoid of any factual basis. Such finding is
not supported by the evidence on record and cannot therefore be a valid basis of a finding of
conspiracy.
 Time and again we have been 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. 28 There being no conspiracy, only Antonio Comadre must answer for
the crime.
Coming now to Antonio’s liability, we find that the trial court correctly ruled that treachery
attended the commission of the crime. For treachery to be appreciated two conditions must
concur: (1) the means, method and form of execution employed gave the person attacked no
opportunity to defend himself or retaliate; and (2) such means, methods and form of execution
was deliberately and consciously adopted by the accused. Its essence lies in the adoption of ways
to minimize or neutralize any resistance, which may be put up by the offended party.
Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting
victims were having a drinking spree. The suddenness of the attack coupled with the
instantaneous combustion and the tremendous impact of the explosion did not afford the victims
sufficient time to scamper for safety, much less defend themselves; thus insuring the execution
of the crime without risk of reprisal or resistance on their part. Treachery therefore attended the
commission of the crime.
It is significant to note that aside from treachery, the information also alleges the “use of
an explosive” 29 as an aggravating circumstance. Since both attendant circumstances can qualify
the killing to murder under Article 248 of the Revised Penal Code, 30 we should determine which
of the two circumstances will qualify the killing in this case.
When the killing is perpetrated with treachery and by means of explosives, the latter shall
be considered as a qualifying circumstance. Not only does jurisprudence 31 support this view but
also, since the use of explosives is the principal mode of attack, reason dictates that this attendant
circumstance should qualify the offense instead of treachery which will then be relegated merely
as a generic aggravating circumstance. 32
Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294 33 which also
considers the use of explosives as an aggravating circumstance, there is a need to make the
necessary clarification insofar as the legal implications of the said amendatory law vis-à-vis the
qualifying circumstance of “by means of explosion” under Article 248 of the Revised Penal Code
are concerned. Corollary thereto is the issue of which law should be applied in the instant case.
R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under
the old illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years
of the Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal
possession of firearms and explosives, but to lower their penalties in order to rationalize them into
more acceptable and realistic levels. 34
This legislative intent is conspicuously reflected in the reduction of the corresponding
penalties for illegal possession of firearms, or ammunitions and other related crimes under the
amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of
explosives are also lowered. Specifically, when the illegally possessed explosives are used to
commit any of the crimes under the Revised Penal Code, which result in the death of a person,
the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an
aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now
reads:
Section 2. Section 3 of Presidential Decree No. 1866, as amended, is
hereby further amended to read as follows:
Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Explosives. The penalty of prision mayor in its maximum period
to reclusion temporal and a fine of not less than Fifty thousand pesos
 (P50,000.00) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s),
rifle grenade(s), and other explosives, including but not limited to “pillbox,”
“molotov cocktail bombs,” “fire bombs,” or other incendiary devices capable of
producing destructive effect on contiguous objects or causing injury or death to
any person.
When a person commits any of the crimes defined in the Revised Penal
Code or special law with the use of the aforementioned explosives, detonation
agents or incendiary devises, which results in the death of any person or
persons, the use of such explosives, detonation agents or incendiary devices
shall be considered as an aggravating circumstance. (shall be punished with the
penalty of death is DELETED.)
xxx xxx xxx
With the removal of death as a penalty and the insertion of the term “. . . as an aggravating
circumstance,” the unmistakable import is to downgrade the penalty for illegal possession of
explosives and consider its use merely as an aggravating circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of
firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as aggravating
circumstance, instead of a separate offense, illegal possession of firearms and explosives when
such possession is used to commit other crimes under the Revised Penal Code.
It must be made clear, however, that RA No. 8294 did not amend the definition of murder
under Article 248, but merely made the use of explosives an aggravating circumstance when
resorted to in committing “any of the crimes defined in the Revised Penal Code.” The legislative
purpose is to do away with the use of explosives as a separate crime and to make such use
merely an aggravating circumstance in the commission of any crime already defined in the
Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one
of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the
aggravating circumstance of “explosion” in paragraph 12, “evident premeditation” in paragraph
13, or “treachery” in paragraph 16 of Article 14, the new aggravating circumstance added by RA
No. 8294 does not change the definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made
applicable in this case. Before the use of unlawfully possessed explosives can be properly
appreciated as an aggravating circumstance, it must be adequately established that the
possession was illegal or unlawful, i.e., the accused is without the corresponding authority or
permit to possess. This follows the same requisites in the prosecution of crimes involving illegal
possession of firearm 35 which is a kindred or related offense under P.D. 1866, as amended. This
proof does not obtain in the present case. Not only was it not alleged in the information, but no
evidence was adduced by the prosecution to show that the possession by appellant of the
explosive was unlawful. TIDHCc

It is worthy to note that the above requirement of illegality is borne out by the provisions
of the law itself, in conjunction with the pertinent tenets of legal hermeneutics.
A reading of the title 36 of R.A. No. 8294 will show that the qualifier “illegal/unlawful . . .
possession” is followed by “of firearms, ammunition, or explosives or instruments. . .” Although
the term ammunition is separated from “explosives” by the disjunctive word “or”, it does not mean
that “explosives” are no longer included in the items which can be illegally/unlawfully possessed.
In this context, the disjunctive word “or” is not used to separate but to signify a succession or to
conjoin the enumerated items together. 37 Moreover, Section 2 of R.A. 8294, 38 subtitled:
“Section. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives”,
clearly refers to the unlawful manufacture, sale, or possession of explosives.
What the law emphasizes is the act’s lack of authority. Thus, when the second paragraph
of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of “the use of the
aforementioned explosives, etc.” as an aggravating circumstance in the commission of crimes, it
refers to those explosives, etc. “unlawfully” manufactured, assembled, dealt in, acquired,
disposed or possessed mentioned in the first paragraph of the same section. What is per
se aggravating is the use of unlawfully “manufactured. . . or possessed” explosives. The mere
use of explosives is not.
The information in this case does not allege that appellant Antonio Comadre had
unlawfully possessed or that he had no authority to possess the grenade that he used in the killing
and attempted killings. Even if it were alleged, its presence was not proven by the prosecution
beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires
the averment of aggravating circumstances for their application. 39
The inapplicability of R.A. 8294 having been made manifest, the crime committed is
Murder committed “by means of explosion” in accordance with Article 248(3) of the Revised Penal
Code. The same, having been alleged in the Information, may be properly considered as appellant
was sufficiently informed of the nature of the accusation against him. 40
The trial court found appellant guilty of the complex crime of murder with multiple
attempted murder under Article 48 of the Revised Penal Code, which provides:
Art. 48. Penalty for complex crimes. — When a single act constitutes two
or more grave or less grave felonies, or when an offense is a necessary means
of committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code, which follows
the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of
the crimes committed. The rationale being, that the accused who commits two crimes with single
criminal impulse demonstrates lesser perversity than when the crimes are committed by different
acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively constitute a
cluster of several separate and distinct offenses, yet these component criminal offenses should
be considered only as a single crime in law on which a single penalty is imposed because the
offender was impelled by a “single criminal impulse” which shows his lesser degree of
perversity. 41
Under the aforecited article, when a single act constitutes two or more grave or less grave
felonies the penalty for the most serious crime shall be imposed, the same to be applied in its
maximum period irrespective of the presence of modifying circumstances, including the generic
aggravating circumstance of treachery in this case. 42 Applying the aforesaid provision of law,
the maximum penalty for the most serious crime (murder) is death. The trial court, therefore,
correctly imposed the death penalty.
Three justices of the Court, however, continue to maintain the unconstitutionality of R.A.
7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the
majority to the effect that the law is constitutional and that the death penalty can be lawfully
imposed in the case at bar.
Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity
in the amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral
damages. Pursuant to existing jurisprudence 43 the award of civil indemnity is proper. However,
the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering
that the prosecution was able to substantiate only the amount of P18,000.00 as funeral
expenses. 44
The award of moral damages is appropriate there being evidence to show emotional
suffering on the part of the heirs of the deceased, but the same must be increased to P50,000.00
in accordance with prevailing judicial policy. 45
With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry
Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this
award inappropriate because they were not able to present a single receipt to substantiate their
claims. Nonetheless, since it appears that they are entitled to actual damages although the
amount thereof cannot be determined, they should be awarded temperate damages of
P25,000.00 each. 46
WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial
Court of San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as
appellant Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted
Murder and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim
the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as
actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe,
Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they
sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence
to establish conspiracy, and they are hereby ordered immediately RELEASED from confinement
unless they are lawfully held in custody for another cause. Costs de oficio.
In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised
Penal Code, upon finality of this Decision, let the records of this case be forwarded to the Office
of the President for possible exercise of pardoning power. aEACcS
SO ORDERED.
||| (People v. Comadre, G.R. No. 153559, [June 8, 2004])

EN BANC

[G.R. No. 1740. March 27, 1905. ]

THE UNITED STATES, Plaintiff-Appellee, v. JULIO GLORIA, Defendant-Appellant.

Olbes & Artacho, for Appellant.

Solicitor-General Araneta, for Appellee.

SYLLABUS

1. CRIMINAL LAW; ATTEMPT. — An offer of a bribe where such offer is declined is an "attempt"
to commit the crime of bribery under the provisions of article 3 of the Penal Code.

DECISION

CARSON, J. :
Julio Gloria, the defendant in this case, was charged in the Court of First Instance of Pangasinan
with an "attempt" to commit the crime of bribery.

It appears that the said Gloria was an unsuccessful candidate for election as president of the town
of Bayambang, at the municipal elections held on the 1st of December, 1903; that on account of
alleged irregularities he filed a protest with the provincial board of said province against the
confirmation of the election of the successful candidate; that after the filing of said protest and
while the same was being considered by the provincial board, the said Julio Gloria approached
the treasurer of said province, a member of said board, and offered and promised to give him the
sum of 200 pesos if he would "lend his aid and support to the said protest."cralaw virtua1aw library

There was no dispute as to the facts, which were admitted at the trial, and the only question raised
by the appellant is whether the said offer is or is not an offense defined and penalized in the Penal
Code. It is urged that the said offer was a mere proposal to commit a crime, and that under the
provisions of article 4 such proposals can only be punished in cases where specific authority
therefor is to be found in the Penal Code, and that there is nothing in said code which penalizes
a proposal to commit the crime of bribery.

We think, however, that in the case in question the proposal was in fact an "attempt" as defined
in article 3 of said code, wherein it is said that "there is an attempt when the guilty person makes
a beginning in the commission of a crime by direct, overt acts and does not perform all of the acts
of execution which constitute the crime, by reason of some cause of action other than his own
voluntary desistance;" the accused, having made an offer of money for the purpose of bribery,
can not be said to have made a mere proposition, as the offer of money is an overt act in a crime
of this nature, and its refusal on the part of the official whom it was proposed to bribe alone
prevented the consummation of the crime.

The sentence appealed from should be confirmed. So ordered.

Arellano, C.J., Torres, Mapa and Johnson, JJ., concur.