Crimlaw Cases - Set 3 Continuation

*Complex Crimes (Compound Complex Crime)

Court of First Instance of Manila, in an information reading as follows:

G.R. No. L-32144-45 July 30, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NAÑO MILFLORES y LAKSA, defendant-appellant. BARREDO, J.: Appeal from the decision rendered by the Court of First Instance of Manila (Branch XI) in its Criminal Cases Nos. 88173 and 88174 convicting and sentencing herein accused-appellant Naño Milflores y Laksa: to Four (4) Years, Two (2) Months of prision correccional, as minimum, to Eight (8) Years of prision mayor, as maximum, with the accessory penalties of the law for the crime of multiple attempted murder; and to reclusion perpetua and to pay the heirs of the victim in the sum of P12,000.00 without subsidiary imprisonment in case of insolvency, for the crime of murder. The incidents that gave rise to the filing of the abovementioned criminal cases against herein accusedappellant in the court a quo may be briefly narrated as follows: Early in the morning of November 27, 1967, about the hour of 7:45, an old man approached the house on 2233 Garrido Street, Sta. Ana, Manila, calling out the name of one of the occupants—Mrs. Javier. Heeding such call, Florencia Tactay Javier came out of the door and met the caller. The old man handed to her a paper bag containing some vegetables—pechay, upo and sigarillas—and then left the place. Mrs. Florencia Javier brought the bag into the house and proceeded to empty the same of its contents. As she did so, however, something inside the paper bag began emitting smoke and whistling sound, followed moments later by a deafening bomb explosion which caused death of one, and multiple injuries and wounds to seven (7) other occupants of the house. Investigations thereafter conducted by various police agencies led to the arrest of herein accused-appellant, Naño Milflores y Laksa. On December 6, 1967, he was charged with multiple frustrated murder (Criminal Case No. 88173) before the

That on or about the 27th of November, 1967 in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously with evident premeditation and treachery, with intent to kill, attack, assault and use personal violence upon Abelardo Mique Olivar, Romana Mique, Isabelo Lapitan, Benedicto Mique, Florencia Javier, Anaflor Javier, and Ariel Javier, by then and there delivering a bomb inside a bag containing vegetables at the address of the latter at 2233 Garrido, Sta. Ana, causing the same to explode when opened, thereby inflicting upon the seen persons mentioned above mortal wounds on the different parts of their bodies, thus performing all of the acts of execution which would have produced the crime of multiple murder as a consequence but which nevertheless did not produce it by reason of causes independent of the will of said accused, that is, the timely medical assistance rendered to said Abelardo Mique Olivar, Romana Mique, Isabelo Lapitan, Benedicto Mique, Florencia Javier, Anaflor Javier and Ariel Javier, which prevented their death. (Pp. 21-22, Record) In a separate information filed with the same court on even date, he was likewise charged for murder (Criminal Case No. 88174). The body of said separate information reads: That on or about the 27th of November, 1967 in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously with evident premeditation and treachery, with intent to kill, attack, assault and use personal violence upon Felicidad Mique, by then and there delivering a bomb inside a

bag containing vegetables at the address of the latte of 2233 Garrido, Sta. Ana, causing the same to explode when opened, thereby inflicting upon her mortal wounds on the different parts of her body, which were the direct and immediate cause of her death. Accused-appellant was arraigned on said two informations on December 14, 1967 and January 23, 1968, respectively, and entered pleas of "Not Guilty" to the charges. Later, he moved to quash the information for murder but the same was denied by the trial court. Thereafter, the two cases were tried jointly, at the conclusion of which the court a quo rendered the decision of conviction and the corresponding sentences first above mentioned. The factual findings of the court below, upon which it based its sentence of conviction, are not seriously disputed by herein appellant 1 . Indeed, the record which We have carefully reviewed reveals that said findings are supported by the evidence which His Honor summarized as follows: From the evidence of the prosecution it appears that Victoria Remolar Javier, a public school teacher, married Antonio Javier on April 28, 1964 at Guiniañgan, Quezon Province. This wedlock, however, is Antonio Javier's second since he was previously married to Florencia Tactay-Javier, then living and with whom he had children. Sometime after the marriage of Victoria to Antonio, she discovered this previously existing marriage to Florencia. Victoria continued her marital relations with Antonio. This anomalous situation — i.e., a 'Love triangle' or the double marriage of Antonio Javier — naturally resulted in animosity between the two wives. The first wife, Florencia Tactay, filed a charge of bigamy against her husband, Antonio Javier, in Baguio City, and an administrative charge against Victoria Remolar, Florencia, however, later

desisted when Victoria promised that she would cease to live with Antonio; and the administrative charge was dropped upon a finding that Victoria married Antonio without prior knowledge that he was previously married. Sometime in March, 1967, Victoria consulted with the accused, Naño Milflores — who advertised his services as a palmist and fortune teller at Magsaysay Avenue, Baguio City. Victoria wanted to know what her future would be and sought Milflores' help. She asked Milflores if she still had a chance to live again with Antonio. Milflores told her that she had a 100% chance to live with Antonio on condition that she pays him P375.00 as fee for the temple. He assured her that the result would be favorable and Antonio would voluntary come back to her. Milflores told her he would use his spiritual power in making Antonio come back to her voluntarily. Since March, 1967, Victoria consulted with Milflores at least once a month. She paid him P5.00 for the initial consultation. Sometime later, she paid him the P375.00. Milflores asked for and Victoria gave him the address of Antonio's other wife at 2233 Garrido, Sta. Ana, manila. Milflores told Victoria he will work in about 7 to 9 weeks, and, within that period he assured Victoria that Antonio will go back to her. Milflores in a couple of weeks. This time Milflores demanded another sum of P375.00 for things he needed in the temple. Victoria gave him the amount the following day. Then, again, Milflores asked Victoria the sums of P200.00 and P175.00, so that by June, 1967, Victoria had given Milflores the sum of P1,130.00 in all.

After June, 1967, Antonio Javier still did not return Victoria. Victoria then demanded of Milflores the return of her money. She saw Milflores at least two times in July and August and demanded the return of the sums she had paid him. Milflores told her to be patient as Antonio would, for sure, return to her. In September and the last week of October, 1967, Milflores got mad at Victoria because of the latter's insistence that he (Milflores) return her (Victoria's) money (Exh. A). Florencia Tactay really resided at 2233 Garrido, Sta. Ana, Manila. She and her family shared an apartment door with the Mique family — Romana, Felicidad, Isabelo Lapitan and Abelardo Mique. On November 27, 1967, somebody called at the 2233 Garrido apartment door where Florencia and the Miques resided for 'Mrs. Javier'. Florencia, who was carrying her child, peeped at the window and saw an old man. the man called for 'Mrs. Javier' twice. Florencia then went downstairs. The man gave her a big paper bag containing vegetables. Florencia inquired as to who sent the same, but the man did not answer. Instead, he hurriedly went away. As Florencia received the bag, she saw the address on it — i.e., 'Mrs. Javier; 2233 Makati'. The bag contained pechay, upo and sigarillas. She then brought the same inside the house and placed it on a chair in a room where Ana, Letty, Abe, Felicidad and Florencia's two children were. Florencia the proceeded to empty the bag of its contents. As she did so, she noticed that it emitted smoke and heard a whistling sound. Alarmed, she withdrew away from the bag. Felicidad Mique, however, went near the same and looked into the bag. Suddenly, a

deafening explosion ensued. The explosion caused a hole through the table and on the cement floor 7 inches wide by 4 inches deep. Fragments of utensils and furniture were thrown and scattered around and the splattered room was in complete disarray (Exhs. II & I). All of the persons then in that room, where the bomb exploded, sustained injuries and wounds as a result of the explosion. Felicidad Mique y Olivar, 21 years, student; Abelardo Mique y Olivar, 22 years married, goldsmith; Romana Mique y Olivar, 21 years, married, housewife; Isabelo Lapitan y Mique, 25 years, laborer; Benedicto Mique y Olivar, 15 years, student; Florencia Tactay-Javier, wife of Antonio Javier; Anaflor Javier, 2 years, and Ariel Javier 9 months, Florencia's children — were brought to the St. Anne's Hospital for emergency treatment. Florencia Javier (sic) 2 sustained 23 different, penetrating, explosive blast wounds from metallic objects and wire coil fragments in different parts of her body — i.e., on her face or both upper right and left extremities and both thighs. Her right anterior VIII rib was fractured and the right lobe or her liver, right diaphram and right lung, were pierced with metallic fragment. Two (2) coiled wire loop metals were embedded on her right forehead and another in the anterior aspect of her right arm. She suffered hemorrhage of about 700 cc of blood in her respiratory system, exanguination collapse from bleeding, vena cavae, in her cardiovascular system. She died within 15 minutes of arrival at the St. Anne's Hospital from profuse exanguinating hemorrhage, colapsing the vena cavae, and shock due to the 23 different penetrating blast wounds. The rest of the victims were forwarded to the Philippine General Hospital for

further treatment (Exhs. B, C, D, E & F). Meanwhile, Alexis Nazario, a student and Desiderio Juvida — who is known as 'Pops' in the vicinity — were conversing at the corner of Cagayan and Mabuhay Streets, a block from Garrido Street. They heard the explosion; they saw a person walking hurriedly from Garrido to Mabuhay. The person's face was painted black; he was wearing a checkered polo shirt with black pants and black shoes. Nazario — who was 8 to 10 meters only away when he saw the person walking at a fast gait towards them (Exh. 1) — pointed to the person, at the same time calling Juvida's attention to him, thinking that he was a thief. When the blast was heard, the person began to run. Juvida asked Nazario to chase the person, but he (Nazario) did not overtake him (the person) as he was running fast (mabilis). The person ran towards Tejeron Street, where he was able to make good his escape. The explosion, which rocked the neighborhood that early morning, brought many persons to the scene, mostly curious onlookers. The police chief, Gen. Ricardo Papa, also arrived at the scene of the explosion. He took immediate steps to investigate the incident. He made requests for homicide operatives. Sgt. B. Brown, Det. N. Bonifacio and Pat. Alejandro Yatco, MPD, responded. Alex Tumale y Palma, 31 years old, and a security guard of the United Equity Agency assigned to the RCPI, alleged that he was the intended victim of the bomb explosion. He implicated a certain Theodore Laudet (See Exhs. M & M-1), a striker of the RCPI, as the person whom he saw

carrying a paper bag with three other companions in front of his house before the explosion occurred. Tumale informed the police that Laudet resented his escorting the manager of the RCPI. Further investigation also revealed that Antonio Javier, husband of Florencio Tactay-Javier, had contracted another marriage with one Victoria Remolar with whom he has two children; that Victoria, who resides and teaches in Baguio City, occasionally comes to Manila to see Antonio Javier; that Florencia and Victoria had quarreled for the sole possession of Antonio and that charges and countercharges had been filed between them. The site of the explosion was also searched for evidence, which were then submitted to the Criminal Investigation Division, MPD (Exhs. U & V). On November 28, 1967, at 4:30 a.m., Theodore Laudet y Gabriola was investigated. He was brought before Florencia Javier, Isabelo Lapitan and Alex Tumale. The three failed to Identify him. Mrs. Javier and Lapitan averred that the suspect was older, stouter, and his face was painted black. Laudet, on the other hand, accounted for his whereabouts the day previous. Laudet was released. Laudet, who was subjected to a polygraph, cleared himself (Exh. J). On November 30, 1967, at or about 10:00 a.m., Sgt. P. Briones Det. Dionisia Nena Tuason and Pat. Alejandro Yatco left for Baguio to investigate Mrs. Victoria RemolarJavier, the second wife of Antonio Javier. They were referred to Pat. Pedro Remolar of the Baguio Police Department, Victoria's father, from whom they learned that Victoria had

left for an unknown destination. A background investigation of Victoria revealed that she took her BSEE degree at the Baguio Colleges, where she met Antonio Javier whom she later married in 1963. In 1965, Florencia filed an immorality charge against Victoria. Florencia later desisted, when Antonio promised to leave Victoria and live with her. The immortality charge was dropped, on the ground that Victoria married Antonio in good faith. Meantime, in Baguio, Victoria RemolarJavier, who was then teaching at the Ambuklao Elementary School, heard over her transistor radio, on November 29, 1967 — a Wednesday — that her name was being implicated in connection with the bomb explosion. She became apprehensive. She went home to her residence at Baguio City, to seek the advice of her parents. She was shown a newspaper account where her name was implicated, and advised to see their family lawyer, a certain Atty. de Guzman. Victoria decided to see the family lawyer. The next day — November 30, a Thursday — she was on her way to see him at about 7:00 A.M., but before she could leave the house, a phone call was received by Victoria. The person on the other side of the line Identified himself as Naño Milflores. Milflores told Victoria to go to his office at Magsaysay Avenue and bring with her P1,000.00 so that he could help her exricate herself from suspicion in connection with the bomb slaying incident. ten proceeded to the office of the accused with her sister, Gertrudis. When she arrived there, Milflores expressed his surprise why she was accompanied by her sister, saying, 'Why did you come with a companion?' I told you to come alone.' Victoria told

Milflores there was nothing to hide. Touching her head Milflores said, 'Loko loko ka ba? Ang hirap hirap ng kaso mo. Now you need money so that you will not be involved in this case anymore.' He asked Victoria and her sister to produce P1,000.00, because he knew somebody at the Manila Police Department who could help Victoria. Victoria's sister left to secure money while Victoria was left ion the office of the accused. Gertrudis, Victoria's sister, later returned with P200.00. When Milflores saw the amount he said, 'Bakit iyan lang" O, sigue, tama na.' The three then proceeded to the Dangwa Bus Station. Milflores secured two tickets without Victoria and her sister's knowledge. Milflores then hurriedly urged Victoria to board the bus for Manila, leaving Gertrudis behind. The two arrived at Angeles City and proceeded to the office of Milflores there, where Victoria passed the night. Early the next morning — December 1, Friday — at or about 4:00 A.M., Milflores and Victoria proceeded to Manila in his jeep. They arrived in Manila at or about 6:00 o'clock the same morning. In Manila she was introduced to one Atty. Ben Dimaunahan, who tried to gather the facts from Victoria about the bombkilling. Victoria had no information go give. In the afternoon, at or about 3:00 o'clock, Atty. Dimaunahan informed the Manila Police Department, thru Lt. A. Lim, that he had with him Victoria Remolar-Javier, the person sought in the bomb-slaying probe, and that they were going to the police headquarters with Milflores, a magician, illutionist, and a marriage counselor of 423 Angeles City, Pampanga, and one Oscar Alayon, their driver. Victoria was interviewed at the headquarters. She

was allowed to go home, but was advised to return for confrontation.

during the confrontation (Exh. 3, The Sunday Times, page 1).

After Victoria was interviewed, she noticed that Atty. Dimaunahan and Milflores were nowhere around. Since she was left alone and did not know anybody in Manila, she looked for them, until she saw Atty. Dimaunahan, who was about to leave. She requested him to look for the accused. During the interview, Victoria told Capt. Lim that aside from the P200.00 Milflores received from her sister in Baguio, he also received P210.00 from her in Angeles City; that Milflores told her these amounts will be given to the lawyer who will help her with respect to her involvement in the case. Victoria gave these amounts to Milflores in her desire to clear her name. Capt. Lim told her that she was swindled. From then on, Victoria began to suspect Milflores.

Alexis Nazario and Desiderio Juvida were recalled to the office. Both fingered Milflores as the person they saw running away from the house of Mrs. Javier. Their statements were reduced into writing.

After Victoria was interviewed, the suspicion of the investigating authorities focused on Milflores. On December 2 (Saturday) — after Victoria had been interrogated extensively — Florencia Tactay was invited to the Manila Police Department. Her husband, Antonio Javier, accompanied her to the said office. A police line-up was conducted. Florencia requested that the face of Milflores be painted black. Whereupon, she pointed to him as the very person who handed to her the paper bag containing the vegetables and the fatal bomb. Florencia also stated that the accused had the same tone of voice as the person who handed her the bag. The police line-up was conducted in the presence of police authorities and other persons, including newspaper reporters — i.e., Tony Alba of ABS, Channel 5; Alfredo Santiago of the Evening News; Fred Cruz of the Manila Times. Pictures were taken

The accused was investigated. He denied any criminal participation in the fatal explosion incident. He admitted he came to know Victoria RemolarJavier sometime in June 1967, when she came to his booth in Baguio City to seek his advice concerning her marital problems with Antonio Javier; that he had asked Victoria to pay him some amounts for his spiritual advice and that all in all he had received from her more or less P800.00. He stood pat on his claim of innocence and that he had merely given her spiritual advice as a minister of the Will of Christ Chapel. The statement of Victoria RemolarJavier was taken (Exh. A) on December 3, 1967 (Sunday). The investigation of Milflores proceeded. He continued to deny any participation in the incident. At 11:00 A.M., the police authorities searched his Willy's Mitsubishi jeep, with Plate No. 1678-67 Manila, which was parked in front of the headquarters. The following articles were found in the glove compartment: (1) one (1) piece of cotton, blackened with dye; (2) one (1) strip of cotton, wrapped in paper; (3) one (1) plastic bottle, pitcher type; (4) one (1) pallet of black dye powder; (5) a receipt from the Talayan Quezon Blvd., gas station for the purchase of one liter oil, dated November 25, 1967. A further search of the jeep yielded a small box containing: (1) one brown ladies' clutch bag; (2) one white ladies' plastic bag; (3) one forcep; (4) speculum; (5)

one plastic bag with 15 rounds of .22 cal. bullets, short; (6) 3 rounds of .22 cal. bullets, short; (7) one TVR issued by the TRAFCON in his name; (8) one piece of candle (9) one set of keys; (10) four envelopes addressed to him; (11) one crucifix; (12) one envelope containing 40 units of sweepstakes tickets for the December 17, 1967 draw. Confronted with these articles, Milflores denied the presence of these articles in his jeep and claimed the same must be that of his sons (Exh. K). At 12:00 o'clock, December 3 — a Sunday — 1967, Milflores was taken to the crime scene. Nazario and Juvida pointed to the front of House No. 2463 Cagayan Street as the place where they saw Milflores, whose appearance attracted them, because his face was painted black. Milflores was then placed under arrest and booked for murder and frustrated murder on 7 counts. Charges were preferred (sic) against him with the Fiscal's Office. (Pp. 3-8, Decision pp. 256-261, CFI Record.) To reiterate, the above summation of the evidence by the trial court is fully supported by the evidence on record. Just the same, counsel for appellant has made the following assignment of error in his brief: I. THAT THE LOWER COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS CRIMINAL CASE NO. 88174 ON GROUNDS OF DOUBLE JEOPARDY. II. THAT THE LOWER COURT ERRED IN CREDITING THE ALLEGED PREVIOUS MISDEEDS OF THE DEFENDANTAPPELLANT AS A BASIS FOR AN INFERENCE OF MOTIVE IN THE DELIVERY OF EXPLOSIVE THAT CAUSED THE DEATH OF FELICIDAD MIQUE AND THE INJURIES OF SEVEN OTHERS.

III. THAT THE LOWER COURT ERRED IN CONVICTING THE DEFENDANTAPPELLANT OF AN EVIDENCE THAT FAILED TO PROVE THE GUILT OF DEFENDANT-APPELLANT BEYOND REASONABLE DOUBT. It is the position of appellant, under the first assigned error, that after he had pleaded to the charge of multiple frustrated murder in Criminal Case No. 88173 on December 17, 1967, the trial court gravely erred in not hearkening to his plea of double jeopardy when he was subsequently arraigned on the separate charge of murder in Criminal Case NO. 88174 on January 23, 1968, considering that the charge in the separate information for murder is based on facts that are the very same facts alleged in the other information for multiple frustrated murder. Thus, appellant argues in his brief: A conscientious study of the allegations in both criminal cases (shows), that in the multiple frustrated murder case and the murder case, the elements of murder were alleged. The facts in both cases are synonymous insofar as the following are concerned: a) That offense charged in both cases were committed, in one single act, on November 27, 1967; b) That the accused delivered a bomb inside a bag containing vegetables, causing the same to explode and which single act of the accused (herein appellant) resulted in the: —1— injuries of seven persons (those named in Crim. Case No. 88173), and

—2— death to Felicidad Mique and independently treated in Crim. Case No. 88174.

xxx xxx xxx It is very evident that the single act of delivering a big bag containing a bomb caused the injuries of seven persons and the death of one, but the fact of death of one must not be the reason to make the same an object of a distinct and separate information. That matter of charging the accused, herein defendant-appellant, or murder in a separate information based on facts that are the very same facts obtaining in another case of frustrated murder, is a wanton violation of Section 2(h), Rule 117 of the Rules of Court, which provides: Sec. 2—Motion to Quash—Grounds— (h) That the defendant has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. in relation to Section 1, paragraph 20, Article III of the Constitution which likewise provides that: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. It is obvious that the information charging herein appellant with the crime of MURDER in Criminal Case No. 88174 placed him in jeopardy of punishment for the same offense

treated in Criminal Case No. 88173. Giving effect to the above-quoted provisions of our laws, our Supreme Court, in the case of Yap vs. Lutero, G.R. No. L-1266, promulgated on April 30, 1959, resolved as follows: If the two charges are based on one and the same act, conviction or acquittal under either the law or ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy or punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction or acquital in either case. (Pp. 6-8, Appellant's Brief; pp. 77-79, Record) Before tackling counsel's pose, one important point has to be made clear. And it is that the first information for frustrated murder, Criminal Case No. 88173, does not include among the victims or offense parties Felicidad Mique, the woman who died and is precisely named as the deceased in the murder case, Criminal Case No. 88174. In the sence, therefore, that appellant was ever in jeopardy in that first case, it is plain to see that such was

impossible or could not have happened. Counsel is thus off tangent in invoking double jeopardy. To be accurate, the legal error of the prosecution here consists of having filed two separate informations for a single offense. For there can be no doubt about the fact that since the injuries suffered by the offended parties in Criminal Case No. 88173 resulted from the same act allegedly of the accused that caused the death of Felicidad Mique, the victim in Criminal Case No. 88174, namely, the explosion of the bomb which according to the prosecution was handed by appellant to Florencia TactayJavier, the crime for which appellant could be made to answer is the virtually single complex offense of murder pursuant to Article 48 of the Revised Penal Code which provides: 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 for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. There is in law only one offense because there is only one penalty that can be imposed notwithstanding that the act may in fact involve a cluster of otherwise separate or distinct offenses. And so, the legal problem before Us is not really whether or not the filing of Criminal Case No. 88174 placed appellant under risk of double jeopardy. What has to be resolved here is the question of whether or not the error of the fiscal of filing two separate informations for the same offense, albeit with different offended parties in each of them, in reversible error, having in view the peculiar milieu of the cases. On this point, the Solicitor General submits that: We submit that Criminal Cases Nos. 88173 and 88174 were the results of appellant's single act (pp. i and 1, Informations, rec.), and should have been incorporated in one criminal

information in accordance with the provision of Article 48 of the REvised Penal Code, the same being a complex crime. The reason behind the legal doctrine of discouraging the splitting of cause of action in complex crimes was enunciated by this Honorable Supreme Court in the case of People vs. Cano, G.R. No. L-19660, May 24, 1966; when it ruled that: From the viewpoint both of trial and practice, it is doubtful whether the prosecution should split the action against the defendant ... . Such splitting of action would work unnecessary inconvenience to the administration of justice in general and to the accused in particular, for it would require the presentation of substantially the same evidence in different courts ... . Significantly, the cases at bar were filed at the same time and there was a joint hearing in both cases (pp. 1-2, t.s.n., Magalit, March 21, 1968). Definitely then, joint hearing conducted by the trial court in the cases at bar cured the technical defect of splitting the cause of action, for the inconvenience sought to be prevented was avoided. Moreover, the cases cited by the appellant in support for its defense of double jeopardy cannot be applied in this case (pp. 8, 9, Appellant's Brief). Firstly, because there was only one

injured party in the cited cases, while there were several injured parties in the case at bar; secondly, the filing of the information and the hearings on the former cases were made one after the other, while the information in the cases at bar were filed on the same date (pp. 1 and 1, Informations, rec.); Melo vs. People, 85 Phil. 769). (Emphasis Ours), (Pp. 4-5, Solicitor General's Brief) There is, to Our mind, some degree of plausibility in such posture of the People. Indeed, it is obvious that the technical error of the fiscal in filing two separate informations did not cause appellant any substantial prejudice at all. In effect, as the proceedings were actually conducted, it is as if appellant had been prosecuted and tried under a single information. It would be giving premium to technicality and sacrificing substantial justice to yield to counsel's contention. Besides, to do so would result in duplicating what had already been done, the full-dressed trial of the case, with both prosecution and defense presenting all their respective evidence. But the more untenable aspect of the position of appellant is that when he invoked the defense of double jeopardy, what could have been the first jeopardy had not yet been completed or even began. It is settled jurisprudence in this Court that the mere filing of two informations or complaints charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his consent. (Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs. Military Commission No. 21, No. L-46366, March 8, 1978; 3 Buscayno vs. Military Commissions Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19, 1981, 109 SCRA 273) Accordingly, We overrule appellant's first assignment of error. Under his second assignment of error, appellant submits that the lower court erred in giving full weight and credit

to the evidence presented by the prosecution to prove certain alleged previous misdeeds of his as basis for an inference of motive which must have induced him to commit the crimes imputed to him in these cases. He places reliance on Section 46 of Rule 130 of the Rules of Court which provides in part that unless in rebuttal, the prosecution cannot prove the bad moral character of the accused. More specifically, he bewails the finding of the court a quo from the testimony of Victoria Remolar to the effect that appellant, having extorted the sum of P1,130.00 from said Victoria with the promise that with his spiritual powers he would make her erstwhile husband Antonio Javier come back to her, failing in which Victoria had demanded from him the return of her money, appellant resorted to the nefarious scheme of delivering a bomb to said Antonio's other wife (Florencia TactayJavier) to do away with her. And on this particular point, on the other hand, counsel for the People counters that what was considered by the lower court in the determination of appellant's motive were evidence of series of events and acts indicating his specific intent, system, scheme and plan to commit the crimes for which he had been indicted, which kind of evidence is admissible under Section 48, Rule 130 of the Rules of Court. It would appear Idle, however, to discuss at length such opposing views of the parties. Suffice it to say that what happened between Victoria Remolar and appellant as related above, furnishes a well- founded clue to what could have been the reason for appellant's act of delivering the fatal bag of vegetables containing also a deadly bomb, to Florencia Tactay-Javier. But even this observation seems superfluous, for the determination of motive becomes relevant only where there is doubt as to whether or not an accused is the one who committed the crime charged. Withal, lack of motive does not preclude conviction of the offense when the crime and participation of the accused are definitely proved, as in these cases. (People vs. Lumantas, L-28355, July 17, 1969, 28 SCRA 764, 769, and cases therein cited; People vs. Dorico, L31568, Nov. 29, 1973, 54 SCRA 172, 186; People vs. Herila, L-32785, May 21, 1973, 51 SCRA 31, 38, and cases therein cited.) There is thus no merit in appellant's second assignment of error. Appellant's third and and last assignment of error is directed against the finding of his guilt by the trial court beyond reasonable doubt. He complains that the testimonies of the witnesses and the circumstantial

evidence against him were excessively overweighed while the evidence on his behalf was hardly paid credit by His Honor. Accordingly, We have taken pains to reread the transcript of the stenographic notes taken at the trial in order to find out by Ourselves where the trial court might have erred in the appreciation of all the oral and real evidence presented by both parties. Our conclusion after such review is that appellant's plaintiff has no merit. 1. As to what We might refer to as the prelude to the fatal events which constituted the graver offenses committed by appellant, he more or less, admits either expressly or impliedly in his testimony and in his brief his meetings and conversations with Victoria Remolar whom he made to believe he had spiritual powers to help her solve her triangular marriage affair involving her bona-fide marriage with Antonio Javier who, turned out to have been previously legally married to Florencia Tactay. He has not denied he received money from her several times in consideration of his promise that for sure soon enough Antonio would be Victoria's alone. As he in truth did not possess a bit of the spiritual means he pretended to have and was in fact deceiving Victoria to be able to fleece money from her, it is inescapable to believe that upon being finally cornered by Victoria, he concocted the diabolical Idea that he could make true his word to her by making Antonio a widower freed from the marriage with Florencia. In a word, he must have found no other way out of his problem with Victoria than to snap out the life of Florencia. 2. Appellant's contention that Florencia did not have sufficient basis for Identifying him as the man who delivered the bag with the fatal bomb to her that unhappy morning of November 27, 1967 is utterly untenable. Florencia had immediately described his general build and appearance to the investigators and readily Identified him in the police lineup in the presence of pressmen after he was made to paint his face black the same way he did that morning of the event in question. And although he did not answer her when she asked from where the bag came and did not hear his voice then, it should be recalled that when he knocked at the door and Florencia or Mrs. Javier looked out from the window upstairs, he said that he was looking for "Mrs. Javier". Thus, that Florencia could Identify him thru his voice cannot be surprising.

Florencia's testimony on this point reads: Q — At 7:45 o'clock in the morning, do you remember anything unusual that happened in your house at 2233 Garrido Street? A — Yes, sir. COURT: (to witness) Q — What was that? A — Somebody called me, 'Mrs. Javier! ASST. FISCAL: (to witness) Q — Upon hearing such call what did you do? A — I peeped out of the window. Q — And what did you see after peeping out of the window? A — I saw an old man. Q — And what happened? A — He called me twice, so I went downstairs. (t.s.n., Hearing of July 11, 1968, p. 2. Emphasis supplied.) And as to the fact that this witness first failed to Identify appellant as the person who handed to her the bag containing the bomb, the fact still remains that she later readily pointed to him after appellant's face was painted with black dye, let alone the circumstance that black dyeing materials were also found in the glove compartment of his jeep used by appellant in coming to the police headquarters. As to the Identification of appellant by prosecution witnesses Desiderio Juvida and Alexis Nazario, it is not accurate to say, as suggested by appellant, that said witnesses had only a passing glimpse of the person they saw running fast from the scene of the crime and could not have seen his face, much less recognized him. On this point, the following is revealing: COURT: (To witness [Desiderio Juvida] Q — You say that the man you saw that morning is painted? A — Yes, Your Honor. Q — On his face and on his hands? A— Yes, Your Honor. Q — How are you certain now that this man, the accused, was the man whom you saw that morning, because, as you said, he was painted black? A — I noticed his face when he passed by because he was only around two meters away from me..... xxx xxx xxx xxx xxx xxx Q — Will you please indicate on this diagram, Exhibit 1, where your position was, and where the accused came nearest to you at the point of 2 meters? A — This is the store. Q — Where were you? A — A I was at the comer of the store. .....

xxx xxx xxx xxx xxx xxx Q — And where was the accused when you saw him? A — He was here already in this place-corner of Cagayan and Mabuhay Streets. I was sitting at the comer indicated by a blue dot. Alexis, who was standing near me, facing Cagayan Street, told me that there was a man with painted face who might be a robber. Q — What did you do them? A — I stood up and then I looked at the man who was passing and it was then that [he] passed in front of me. Q — And then? A — And I suspected, because he was painted, that he might be a criminal or something like that. So I followed him with my face up to 15 meters. He was not running but he was rushing. When we heard an explosion, and he ran, I suspected he might be connected with the explosion, so I requested Alexis Nazario to run after him. (t.s.n., Hearing of June 4, 1968, pp. 11, 21-23.) (Words in brackets supplied) COURT: [To witness Alexis Nazario] xxx xxx xxx xxx xxx xxx Q — You said as soon as you heard the explosion you saw the accused walk at a fast clip. Will you indicate the route the accused took when you first saw him? (The witness indicates it with an arrow.) Q — You also said you heard an explosion. From what portion of this sketch did you hear the explosion come from? A — It came from Garrido Street the third house from the corner. ATTY. GENSON: Q — Was the explosion, from the place where you were standing, loud, or soft? A — It was loud. Q — How many explosions did you hear? A — Just one. COURT: Q — You also said that the accused was walking at a fast clip and after he passed you, he ran faster. Will you indicate the route the accused took from the place where you were? (Witness indicating.) ATTY. GENSON: Q — After you heard the explosion, where did you see the accused for the first time, in this sketch? A — Here, sir. ATTY. GENSON: Please mark it with X. WITNESS:

The first time we saw the accused he was walking in Cagayan Street, but when we heard the explosion he was in Mabuhay and running already. (t.s.n., Hearing of May 2, 1968, p. 9; Words in brackets supplied.) ATTY. CABANTING: [Cross-examining witness Alexis Nazario] Q — I suppose Milflores just passed on November 27 when you saw him that morning. Am I right? A — Yes, sir. Q — When you saw him, he was already running fast. Is that correct? A — When he passed us, he ran fast. Q — He was already far away, when you saw him, or noticed him running. Is that correct? A — It is quite far. COURT: Q — Will you indicate, more or less, how far? A — From this place to that place. COURT: Make a record that the witness indicates a distance of eight (8) to ten (1 0) meters. ATTY. CABANTING: Q — That was the first time you saw him in your lifetime. Is that correct? A — Yes, sir. Q — Q You saw him in a split second that morning before giving chase. Is that correct? A — Not only seconds. He was walking towards us, facing us. Q — He was not running, but walking? A — A He was walking at a fast clip. (t.s.n., Hearing of May 2, 1968, pp. 5-6; Words in brackets supplied.) From the above-quoted portions of the testimonies of witnesses Juvida and Nazario, it can be readily seen that they came face to face with appellant. They saw him walking at a fast clip from Cagayan Street to Mabuhay Street, and because they also noticed that his face was painted black, their suspicion was readily aroused that he must be a robber or something when he passed by them at a distance of only about two (2) meters. And so, after appellant had passed in front of them, when they heard the explosion and saw appellant start running, the old man Juvida instructed the younger Nazario to try to catch him, albeit in such attempt Nazario failed because appellant was able to make good his escape after Nazario lost sight of him amongst the many people passing by Tejeron Street. It cannot be said then that said witnesses had only a glimpse of appellant at the time. Then too, it is not at all out of the ordinary, as testified to by said

witnesses, that they saw appellant first merely walking at a fast clip after having delivered the fatal bomb to the intended victim, for the stubborn fact is, as explained by said witnesses, appellant started to run soon after the explosion of said bomb, apparently in an attempt to get away from the scene of the crime of which he was the author as fast as he could upon realization that the said bomb he planted had exploded. Surely, such behavior of appellant, as described by the two witnesses referred to, is not in conflict with the experience of common fife and the ordinary instincts and promptings of human nature as insisted by appellant. Our review of the evidence leads Us to no other conclusion that appellant has been definitely and indubitably Identified as the man who handed the bag with the fatal bomb to Florencia Tactay-Javier. As to appellant's lament about the finding of the trial court vis-a-vis the black dyeing materials found in his jeep, it is very safe to say that those materials constituted the strongest mute evidence of his having been indeed the black-painted man whom Florencia and the other two eye witnesses Juvida and Nazario saw that morning. Said materials, albeit circumstantial, pointed to him conclusively as the culprit. There were very credible oral evidence on top of the dyeing materials. The accurate summation by the lower court of the evidence in support of the case for the People reads as follows: Having been Identified; having thus been shown to have a motive for committing the offense; and having had in his possession blackening

materials the evidence thus conclusively point to him as the person guilty as charged in the information. It may not be a miss to close this discussion with the following words in People vs. Gonzaga, L-34418, May 26, 1977, 77 SCRA 140, 144-145, to dispose of his defense of alibi. It is easily understandable why the Identification of an accused as a participant in the commission of an offense by evidence that is worthy of credence and belief negates the claim of alibi. The falsity of an assertion that he was elsewhere and therefore could not have been guilty of the crime imputed to him becomes apparent. Where the proof of his presence then is clear and positive, such a defense in unavailing. In the language of Justice Laurel in People v. Caroz (68 Phil. 521 [1939]: 'Alibis cannot stand and prevail over clear and convincing affirmation of credible witnesses (Ibid., 526). Such a doctrine is of respectable lineage. It was first announced by Justice Torres in United States v. Roque(1 I Phil. 422), a 1908 decision, where the accused 'was recognized with rare unanimity by five eye witnesses to the sequestration as being one of the four armed individuals who in the early morning of the 23rd of June, 1904, abducted the deceased, ... ... (Ibid., 426). Since then,

as pointed out by Justice Trent in United States v. Lasada (18 Phil. 90 [1910], promulgated two years later, alibi cannot avail as against 'the positive and direct testimony' (lbid., 100) of the witnesses for the prosecution. ... ... Unquestionably, the crimes proven, as found above to have been committed by appellant in these cases, constitute the complex crime of murder with multiple frustrated murder, the same being the result of a single act that of delivering the bomb which actually exploded as he had intended causing the death and grave injuries already referred to earlier. The qualifying circumstance is use of explosive. Based on the facts proven, We also find that the commission of the offense was attended by evident premeditation, craft and dwelling. His guilt having been proven beyond reasonable doubt, We have no alternative than to find him guilty of said complex offense, with the aggravating circumstances just mentioned, and he deserves no less than the extreme penalty of death. IN VIEW OF ALL THE FOREGOING, the appellant Naño Milflores y Laksa is hereby found guilty beyond reasonable doubt of the complex offense of murder with frustrated murder with the aggravating circumstances of evident premeditation, craft and dwelling and he is hereby sentenced to death. It appearing from the records, however, that he is presently more than 70 years old, pursuant to Article 47 of the Revised Penal Code, We have no alternative but to affirm the penalty of reclusion perpetua imposed by the trial court, with an the concomitant accessories thereof. Costs against appellant.

*Complex Crimes (Compound Complex Crime) G.R. No. L-37801-05 October 23, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VEDASTO MORENO, RODRIGO BARICUATRO, ELPIDIO BARICUATRO. ROMEO BARICUATRO, ELY BARICUATRO, EMILIO GENERALAO, CARLOS PASLON, ROBERTO PASLON, RODULFO UMBAY SALVADOR PENA, VICTORIANO BARAGA AND CRESCENCIO F. NEMENZO, defendants-appellants. PER CURIAM:

eight years and one day of prision mayor and to pay solidarity an indemnity of P8,000 to Mrs. Cerna and P2,000 each to Candida Comahig, Jabido and De los Reyes (Criminal Cases Nos. CCCXI V-129 - 132). All the twelve defendants appealed. Crispin Baraga the thirteenth accused, is at large. Issue as to the Identity of the culprits.—There is iio question as to the corpus delicti or the commission, of the five offenses. The nagging question is the identity of the malefactors. The prosecution was not able to use a coconspirator as a State witness or to obtain an extrajudicial confession.

On the night of January 21, 1970, in an ambuscade perpetrated at Barrio Tutay, Pinamungajan Cebu, Mayor Samson Cerna, 51, of that town was mortally wounded. He died about two hours later. His companions, Lourdes Cerna, Candida Comahig, Francisco Jabido and Jose de los Reyes, were also wounded.

Sometime after the commencement of the trial, the prosecution used as a witness, Avelino Norteza, an alleged coconspirator who withdrew from the conspiracy but who was not indicted and who was not present when the ambuscade was consummated. His testimony as to the conspiracy was severely assailed by the defense and even by the Solicitor General.

As an aftermath of that tragic occurrence, an information for murder with atentado two informations for frustrated murder and two for attempted murder (five cases) were filed against thirteen persons with the Circuit Criminal Court at Cebu City.

Antecedents.—Certain undisputed circumstances preceding the ambuscade may shed light on the motivation for the assassination of Mayor Cerna and serve to explain why the appellants were implicated therein.

The lower court's judgment.—After trial, the lower court convicted (1) Vedasto Moreno, (2) Rodrigo Baricuatro, (3) Romeo Baricuatro, (4) Carlos Paslon and (5) Emilio Generalao of murder with direct assault upon a person in authority and sentenced each of them to death and to pay solidarity to the heirs of Mayor Cerna the sum of P50,000 as actual and moral damages,

In 1969, Vedasto Moreno, 26, a college graduate and a businessman, residing at Barrio Tutay, was the number one councilor of Pinamungajan affiliated with the Liberal Party. Rodrigo Baricuatro, 42, a Constabulary sergeant, was being groomed as the Liberal Party candidate for mayor of that town in the coming 1971 elections. He would be the opponent of mayor Cerna, a Nationalista. Moreno would be Baricuatro's running mate (1265-66 tsn November 16, 1971).

In the same case, (1) Crescencio F. Nemenzo (2) Elpidio Baricuatro, (3)Elf Baricuatro, (4) Salvador Pena (5) Victoriano Baraga, (6) Rodulfo Umbay and (7) Roberto Paslon were convicted as co-principals and were each sentenced the reclusion perpetua and to pay solidarity an indemnity of P50,000 (Criminal Case No. CCC-XIV-95). The same twelve accused were convicted of four frustrated murders. Each of them was sentenced to four indeterminate penalties of six years and one day to

A controversial incident occurred on election day, November 11, 1969, at Barrio Tutay. According to Moreno, on that day, he arrested Mamerto Lausa, a barrio captain, and Patrolman Filemon Diacamus because they were buying votes. He took from them the envelopes containing money and turned them over to the Constabulary authorities, as shown in the receipt, Exhibit 8-Moreno, signed by Sergeant Marcillano

The prosecution has a contrary version of the incident. According t the chief of police, on that day, Moreno, Generalao, Paslon and Romeo Baricuatro entered the house of Gabina Baron and, employing force and intimidation, took from Lausa, the sum of P800 and grabbed from Patrolman Diacamus his service revolver. (That firearm was allegedly turned over to Rodrigo Baricuatro. 154 tsn November 19, 1971. It was later recovered from Paslon.) Because of that incident, the chief of police filed on November 15, 1969 in the municipal court two almost Identical complaints, both sworn to before Mayor Cerna, charging Moreno, Romeo Baricuatro, Paslon and Generalao with robbery in band with intimidation for having taken the money and revolver (Criminal Cases Nos. 501-RP and 502RP). On December 12, 1969 two other complaints, which were also sworn to before Mayor Cerna, were filed in the municipal court by the chief of police. One complaint against the same four accused was for direct assault against an agent of a person in authority, namely, Patrolman Diacamus, on the occasion mentioned above, when he was disarmed (Criminal Case No. 505-RP). The fourth complaint against the same four accused was for qualified trespass to dwelling for having entered Gabina's dwelling. That complaint was also sworn to before Mayor Cerna (Criminal Case No. 506-RP). (Those four cases were remanded to the Court of First Instance on February 23, 1970.) Also on December 12, 1969, the chief of police filed in the municipal court a complaint (Criminal Case No. 507-RP), sworn to before Mayor Cerna, charging Rodrigo Baricuatro, his nephew, Romeo Baricuatro (1404 tsn, November 25, 1971), and Arturo Kyamko, who were armed with a Thompson submachine gun, carbine and .45 caliber pistol, with having committed grave threats also on election day, when they threatened to kill Lausa, the offended party in the robbery case. Rodrigo Baricuatro was alleged to have told Lausa: "Do you want to die, Merto Killing is what we want now. Who among you here is brave?" (The municipal court dismissed that case in its order of August 28, 1970 because of Lausa's failure to prosecute it.)

In the aforementioned four criminal cases Nos. 501, 502, 505 and 506, Mayor Cerna conducted the preliminary examination although there was no showing that the municipal judge could not perform that duty. The mayor issued warrant for the arrest of the four accused. Moreno was arrested and imprisoned on January 16, 1970. He posted bait paying P1,000 as premiums on four bail bonds. His release was ordered by the municipal judge onJanuary 20, 1970 E 4 and 6 to 6C-Moreno)

that Elpidio Baricuatro saw the mayor's truck leaving for Cebu City and that Moreno, Rodrigo Baricuatro and Romeo Baricuatro were also in Cebu City on that fateful day, January 21, 1970. Moreno and Rodrigo went to Pinamungajan an in the afternoon of that day. The return of Mayor Cerna to Pinamungajan in the evening of that date was known beforehand because on t day the mayor's housemaid, in answer to a policemen 's in quiry d that the mayor would return to Pinamungajan at night time.)

On the other hand, it should be noted (according to the evidence for the defense) that Sergeant Rodrigo N. Baricuatro of the department of constabulary science and tactics of the University of the Visayas at Cebu City was given by his Commandant a pass authorizing him to be absent for seventy two hours, or from seven o'clock in the morning of January 21 to twelve o'clock midnight of January 23, 1970, for the ostensible purpose of attending to his family's needs in Sitio Manga, Pinamungajan (Exh. 9 Rod Bar.).

Mayor Cerna conferred with the governor. He received a treasury warrant for P5,721 as national aid for the maintenance and improvement of municipal roads and bridges E M).

Thus, shortly before the ambuscade, considerable tension had developed between Moreno, Rodrigo Baricuatro and their followers, on one hand, and Mayor Cerna, on the other. It may be assumed that the arrest of Moreno and the impending arrest of Rodrigo Baricuatro, Romeo Baricuatro, Paslon and Generalao inflamed their smoldering resentment against Mayor Cerna. Mrs. Cerna testified that the mayor was ambushed "because Vedasto Moreno got angry with the mayor because he was confined in jail and this Rodrigo Baricuatro is jealous of the mayor because of his ambition to become a mayor of Pinamungajan an and as long as the mayor x x x is still alive he cannot become a mayor of our town" (155 tsn November 19, 1971). The ambuscade.—On January 19, 1970, Governor Osmundo Rama in a telegram to Mayor Cerna requested him to come for a conference in connection with the release of funds for his town, The detail in that place of Constabulary soldiers, and the agenda to be taken up in the forthcoming conference of municipal mayors. (See pp. 39-43, Record of Criminal Case No. 10-T.) In compliance with that request, Mayor Cerna, u his cargo truck arid accompanied by his wife, Lourdes Cerna, went to Cebu City in the morning of January 21, 1970. (Note

According to Mrs. Cerna, the detail of Constabulary soldiers in Pinamungajan was necessary in order to apprehend a band headed by Generalao, that was wanted in connection with the death of Juanita Gabonada, and because there were rumors that Mayor Cerna's political enemies were intending to liquidate him Late in the afternoon of that day, January 21, Mayor Cerna boarded his truck and proceeded to Barrio Tabunok, Talisay to pick up his cargo. At about six o'clock, the truck started on its trip to Pinamungajan via Carcar, Seated in the front seat were Jabido on the extreme left and then the driver, De los Reyes, Candida Comahig and Mrs. Cerna. Mayor Cerna 'was on the extreme right. Anacleto Barrientos and two helpers were in the back of the truck. At about eight o'clock on that moonlit night, the truck reached the five-meter-wide curve about seven meters from the end of the wooden bridge in an isolated place at Barrio Tutay, which is about three to four kilometers away from the poblacion of Pinamungajan (See sketch Exh. G, photographs, Exh H, etc. and Exh. 1- Moreno.) After the truck had passed the bridge, its headlights revealed that a big log, about three to four arms' length, a foot wide and six inches thick, the ends of which were connected to the sides of the road by two other pieces of wood, had been placed across the highway as a roadblock about three meters from the curve (66 ton November 15, 1971; 308 tsn September 3, 1970).

Pieces of lumber piled as high as the waistline of a person or less than a meter high and about seven meters long were stacked on the right side of the road below a cliff shaded by a ballets tree. The truck's headlights were focused on the right end of the roadblock and the pile of . The truck stopped opposite the pile of lumber and was about two arms' length from it (164 tsn November 19, 1971). One end of the roadblock rested on the pile of lumber. Moreno's house was about l00 to 150 meters away from the bridge. Stationed behind the pile lumber, which served as a barricade, were armed persons whom Mrs. Cerna allegedly recognized because of the moonlight and the truck's headlights and because their bodies from the waist up were exposed- She was instinctively afraid. She pressed the left thigh of her husband. He brushed her hand aside. The truck stopped at the me which is a few meters away from the end of the bridge and which on the right side is near the cliff and the pile of lumber. The driver did not shut off the headlights. The armed persons behind the barricade were Romeo Baricuatro, Rodrigo Baricuatro, Carlos Paslon, Vedasto Moreno, Emilio Generalao, and three others. The Place was an Ideal One for an ambuscade (67 tsn November 15, 1971). When Mrs. Cerna saw the roadblock, she turned to the right side of the road (" stooped down in order to peep and she then saw "clearly" before the shooting the armed persons behind the pile of logs on the side of the road "beneath the cliff " (3233, 66-67, 71, 72, 74, tsn Exh- 2Moreno). She testified that Mayor was told her that Moreno and Rodrigo Baricuatro Bide and Dido) were among the malefactors. The veracity of that testimony and similar testimony given by the chief of Police, Anacleto Barrientos and Jose de los Reyes is vehemently contested by the appellants. On the Identity of the assets, Mrs. Cerna testified as investigation: Q. Who were those persons with aid which (whom) you saw at the time of the incident? — A. Rodrigo Baricuatro, Vedasto Moreno, Emilio Generalao, Romeo Baricuatro, Carlos Paslon, and others whom I cannot Identify because I could not see their faces.

Q. You said also yesterday that there were persons behind the Pile of loge that were placed at the side of the road, do you know who were those persons? — A. Those are the same persons whom I have named Q. You said also it was a moonlight night and the headlight of the truck was on. Would you state to the investigator that the persons can still be seen on that night in question? — A It (They) can be clearly seen. Q. Who were those persons whom you can clearly see? — A. Rodrigo Baricuatro, Vedasto Moreno, Emilio Generalao, Romeo Baricuatro and Carlos Paslon.

— A. I do not know where they were, but I saw that when they disappeared, they passed by the side of the truck towards the end of the truck. Q. You said that you observed those persons leaving the place where you saw them before, by passing by the side of the truck towards the end of the truck. Do you want us to understand that they cross(ed) the bridge toward the south? — A. I did not know where they went, but I observed that they passed by the side of the truck, on the right side of the truck. (71-77 tsn Exh 2-Moreno and Exh- 5 Romeo) At the trial Mrs. Cerna testified:

xxx xxx xxx Q. Mrs. Cerna, you told this Honorable Investigator that you saw those persons you mentioned behind the pile of logs. Now, please ten this Investigator whether you saw those persons behind the pile of logs before the shooting or after the shooting? — A. Before the shooting. Q. Mrs. Cerna, since you saw those persons behind the pile of logs, and in fact you named those persons, can you please tell this investigator what were their relative positions when you saw them behind the pile of logs? A. I could not tell their positions because I could only see their bodies from their breast up. Q. Can you tell this Investigator if they were standing side by side or on file? — A. They were in line, side by side. Q. Since you can tell this Honorable Investigator that they were in line side by side, can you please tell us who was that person who was first from the left while looking on them? — A. Those were fronting me from the cliff which (who) were in line side by side were: first was Rodrigo Baricuatro, Emilio Generalao, Vedasto Moreno, Romeo Baricuatro, Carlos Paslon and those who were at the back I could not see their faces because their faces were covered

Q. Were you able to recognize these persons behind those (that) pile of wood? — A. Very much. Q. Will you name those persons to the court the you recognized behind the pile of wood? — A. Yes, sir, Rodrigo Baricuatro, Emilio Generalao, Vedasto Moreno, Romeo Baricuatro, Carlos Paslon and somebody behind whom I do not know because he was obstructed from my sight. Q. Those persons you have named to the court. how long have you known them? — A. Vedasto Moreno and Rodrigo Baricuatro I know them since their boyhood. Q. How about the others you have mentioned, how long have you known them? — A. I came to know them when they were already of age because they live in the barrio. xxx xxx xxx Q. How were you able to recognize these persons you have named since it was 8:30 in the evening? — A. Not only because of the light of the moon but they were also lighted by the beam of the light of our truck. (62-64 tsn September 2, 1970).

xxx xxx xxx

xxx xxx xxx

Q. Since you said that after the shooting those persons you mentioned, disappeared, can you tell whether they passed from the precise spot where you saw them before?

Q. But definitely, what you saw first, because of the beams of the lights on the front of the truck and the moonlight, was these pile of logs across the street and not the pile of

logs on the side of the road, is that right? — A. The first that I saw because of the light of the moon was the log blocked across the road and when I saw I immediately turned to the side of the road and I saw the pile of logs and behind it were some persons. xxx xxx xxx Q. But the beams of the front lights of your truck was directed forward, is that right? — A. It is not towards the front an the time, because the light is scattered as adjusted. xxx xxx xxx Q. How (What) do you mean by like that? — A. That the lights (of the truck are) in not straight but it is scattered on the sides. Q. But you will agree with me that when you saw that pile of wood across the street, the truck was moving? — A. Still moving and that was the time I saw clearly the persons standing by the side of the road. " (1 10-1 11, 113-114, tsn September 3, 1970). xxx xxx xxx Q. But, definitely, you cannot inform the Honorable Court whether they were having sidearms with them at that time? — A. All I saw were guns held like this (witness demonstrated a position by holding something in her hands in a port arms position). Q. So, you did not see any sidearms? — A. I only saw the barrel placed on top of the wood which they were holding." Ibid 126 tsn). xxx xxx xxx Q. How long after the silence by the time allegedly your husband mentioned the name? — A. After two to five minutes, more or less and I called him: 'Do', and after I called to him, he spat and then he said: 'Dido and Bidi Day', together with the accused to be arrested.

Q. You are quite sure that what lie said were those wounds: 'Dido and Bidi Day and the rest who were the accused? — A. Dido and Bidi Day and also the accused who are to be arrested. (Ibid 131 tsn). Q. Did he (the chief of police) ask you whom you saw — A. Yes, sir, I was asked. Q. Did he ask you whether you saw this Dido (Rodrigo Baricuatro)? - A. He asked me Who were they, Day and 1 told him they were Dido Baricuatro, Bidi Moreno, Romeo Baricuatro, Emilio Generalao, Carlos Paslon and there were some whom I did not, recognize because their faces were covered," (147-148 tsn September 1970). Mrs. Cerna further testified that the headlights (with 12 volts) of the truck were on during the shooting and a long time thereafter and that she saw the malefactors retreating (lbid, 95-97 tsn). De los Reyes, the driver, gave the following testimony on the Identity of the male factors: Q. Upon noticing the shots, what did you do? — A. After I heard the shots, I turned my head to the right and I saw Dido Baricuatro and Emilio Generalao like this (witness demonstrating a position as if holding firearms in his hands). Q. When you saw Emilio Generalao and Dido Baricuatro, where did you see those persons? - A. Near the end of the pile of wood at the side of the road. Q. What were they doing at that time when you saw them — A. They were firing their guns because I have seen fire flashes coming from their direction and they were guns like the (witness demonstrating right and left hand in an aiming position). Q. The place where you saw Emilio Generalao and Dido Baricuatro, how far were they from the truck? — A. Maybe more than "two arms length, more or less." (229-230 tsn September 3, 1970). xxx xxx xxx Q. While in that position at the right rear wheel of the truck, what did you notice? — A. At that moment, while I

was already behind the right rear wheel of the truck, I saw Vedasto Moreno moving backwards from the truck with a gun on his hand. Q. After seeing this Vedasto Moreno in that position you have described, what else happened? — A. After seeing Vedasto Moreno in that same position, Romeo Baricuatro followed him only an interval of one arms' length, and after Romeo Baricuatro followed in the same position as Vedasto Moreno. came Carlos Paslon. Q. What happened more? — A. Then, I saw Emilio Generalao followed also on the same position and in the same manner and had an interval (distance) of only one arms' length and then was followed by another man whom I did not know and the last one was Dido Baricuatro. Q. Those persons you have noted and observe to what direction did they go? — A. They were moving along the small path towards the upper portion of the hilt " Ibid 232234 tsn). Q. You said that when you jumped out of the truck, the headlights were on and you said that you saw two persons. Do you know those two persons whom you saw because of the headlights? — A. Dido Baricuatro and Emilio Generalao. Q. Do you know those persons personally? — A. Yes, sir, I know them. Q. When you d that when you were already hiding on the left rear portion of the truck, you were able to see those persons, am I right? — A. I saw. Q. Who were those persons whom you saw? Name them one by one — A. The first was Vedasto Moreno, and then Romeo Baricuatro. Q. Who else? — A. Carlos Paslon. Q. Were there other persons aside from the persons you named — A. Emilio Generalao and next was the person whom I do not know by name, and the next was Dido Baricuatro.

Q. When you said Dido Baricuatro, is he the same Rodrigo Baricuatro who is accused of this case? — A. Yes, sir. Q. When you said Bedi Moreno, is he the same Vedasto Moreno who is one of the accused in this case? — A. Yes, sir." (116118 tsn Exh. 2-Moreno and Exh. 5-Romeo). The truck showed down and swerved to the left. Immediately after the truck had halted in front of the roadblock, or while it was about to stop, volleys of gunfire were directed at its front and right side which was near the cliff. The shots came from the right side of the road. The fusillade lasted only for a brief interval. Jabido and Candida Comahig jumped out of the truck after the firing had started. Barrientos remained in the back of the truck. De los Reyes, the driver (a resident of Barrio Tutay, whose house was about 400 meters away and who was familiar. with the place), on hearing the shots, turned his head and saw Rodrigo Baricuatro and Generalao at tile end of the roadblock. The driver jumped out of the truck and sought cover under the truck near the left rear tire which was about four arms length from the pile of lumber. After the firing had stopped, he stationed himself behind the right rear tire. As testified by him from that coign of Advantage he saw and recognized Moreno, Generalao, Romeo Baricuatro, Rodrigo Baricuatro and Carlos Paslon still holding their firearms. He was acquainted with them because they were well-known residents of Pinamungajan Their figures were silhouetted by the headlights of his truck which were on during the shooting. After the firing had ceased, Mrs. Cerna perceived that her husband was gravely wounded. She shouted for help. As there were no houses in the vicinity, no one answered her clamor for succor. Sometime later, the truck ("Estela") of Jose Pena companions arrived. Penas companions removed the roadblock. At that juncture, De los Reyes showed up. He drove the mayor's truck and took him to the poblacion. (On the witness stand, Pena in answer to a leading question of whether he asked Mrs. Cerna and her companions who shot the mayor, replied that "they said they did not know" [269 tsn January 5, 19721. That answer

of Pena has been capitalized upon by the defense to counteract Mrs. Cerna's testimony that she knew the assailants of Mayor Cerna.) The mayor was brought to Toledo City fifteen kilometers away. On arriving at that place, he was placed in another car and taken to the Don Andres Soriano Memorial (Atlas Consolidated Mining Company) Hospital at Lutopan where he died. Injuries inflicted and results of the investigation at the scene of the crime.—The autopsy on the body of Mayor Cerna disclosed six entrance gunshot wounds, located in the mandibular region, right shoulder, anterior chest wall, right arm, and left leg, and four exit wounds, aside from abrasions and contusions (Exh. A to A-2). A slug was recovered at the right side of the lower lip of Mayor Cerna. It was lodged between the lower lip and the teeth of the victim or at his gums. The injuries caused by that slug involved the blood vessels, tissues and nerves of the injured portion of the jaw. The defense argues that, because of the wound in his jaw, Mayor Cerna could not have made a dying declaration to Mrs. Cerna and the chief of police that he was shot by Moreno and Rodrigo Baricuatro and their companions. Mrs. Cerna sustained fractures in the ring and middle fingers and metacarpal of her left hand. An operation was performed on her left hand. It was permanently deformed. She spent P2,000 for her hospitalization Exh D-12). Jabido had a gunshot wounded on his right cheek. He was confined in the hospital for eleven days (Exh. F). Candida Comahig suffered contusions on her right knee and thigh which were not caused by buffets but by some hard objects, Probably, the contusions were the consequence of her having jumped out of the truck and having fallen on the hard ground (Exh. J) De los Reyes had abrasions on the chin and a lacerated wound on his right arm was extracted (Exh. E). Recovered at the scene of the crime were a grease submachine gun caliber .45 (issued to Constabulary

Sergeant Mamerto Generalao), twenty-five empty caliber.45 shells, two empty caliber .30 shells, five slugs and a magazine with 25 rounds of ammunition, caliber.45. (Exh. B, C and II-I )

down from the truck and failed to find Jabido, the wounded mayor allegedly told her not to leave the place. This was tearfully recounted on the witness stand by Mrs. Cerna. The session had to be suspended at that juncture (72-73 tsn September 2, 1970).

On the right side of the truck, there were fifteen bullet holes from a .45 caliber submachine gun, two bullet holes on the right side of the front and windshield from a .30 caliber rifle and twenty-six other bullet holes. And at the scene of the ambuscade, there were bloodstains on the road and footprints on the swamp nearby. (See Exh. H-1-B and H-3-A )

Then, when she informed Mayor Cerna that Penas truck had arrived, the mayor told her that Penas truck should be parked alongside their truck so that he could be transferred to Penas truck. But because the road was narrow, that maneuver could not be accomplished,

On the high ground near the curve, the investigators found empty cans, a Pepsi-Cola bottle, human waste matter, the remains of food, and the wrappers for cooked rice known as "puso", indicating that certain persons ate their supper there before the ambuscade. In that place, the aroma of tuba could still be smelt at seven o'clock in the morning of the following day, January 22,1970 (67, 70 and 72 tsn November 15,1971).

Anacleto Barrientos remained inside the mayor's truck when the ambuscade was being perpetrated. After the gunfire had ceased and when he heard Mrs. Cerna shouting, he thought that there was a Hold up. He left the truck and hid under the bridge. After about ten minutes, he emerged from his hiding place and saw Mrs. Cerna walking to and from front of tile truck. He wondered why the mayor had not left the Truck He went to the right side of the front seat to find out what had happened to the mayor.

Mrs. Cerna testified that, as a consequence of the death of her husband, who was the family's breadwinner, their ice candy business, from which they derived a considerable daily income, was stopped. She spent P4,000 for the metal casket, ?4,000 for the twelve days during which the mayor's remains lay in state, and P7,000 for his marble tomb with a canopy.

He saw that here was blood on the mayor's white shirt. The mayor was leaning on the truck's steering wheel. The mayor saw him and asked him who he was. He Identified himself as a passenger who had boarded the truck in Cebu City.

Mayor Cerna's physical condition after the ambuscade.— The fact that Mayor Cerna was wounded in the jaw generated a controversy as to whether he could have made the antemortem declaration, attributed to him by Mrs. Cerna, Chief of Police Lesigues driver De los Reyes, Anacleto Barrientos and Candida Comahig, that Moreno, Rodrigo Balicuatro and their companions were his assailants. According to the medicolegal officer, Mayor Cerna retained his power of speech in spite of his wounds (180 tsn June 19,1972). Mrs, Cerna testified that after the fusillade Mayor Cerna bent forward, spat saliva mixed with blood and said that he saw Moreno, Rodrigo Baricuatro and the other persons to be arrested. Mayor Cerna allegedly told her not to leave him. She shouted for help and when nobody answered her, Mayor Cerna allowed her to leave the truck and go with Jabido to look for help. Even after Mrs. Cerna had gone

The mayor directed to go after Moreno, Rodrigo Baricuatro and their companions who had fled to the elevated Portion near the scene of the ambuscade. He saw the cliff or elevated ground but he did not comply with the mayor's directive e went back to the bridge. While there, he heard the sound of the engine of a motor vehicle which was ahead of the cargo truck. lt seemed to him that the vehicle was in the of barrio schoolhouse. (The same sound was heard by Mrs.Cerna, Candida Comahig and Jabido. Later, Pena truck arrived, the roadblock was removed, and De los Reyes, the driver of the mayor's truck appeared and started it. Barrientos seated himself on the right of the wounded mayor and placed his left arm around his left shoulder. The mayor told Barrientos to raise the mayor's right hand and to lift his left leg so that he (the mayor) could rest. Barrientosdemonstrated on the witness stand how he complied with the mayor's instruction (552-553 tsn September 1, 1971).

On the way to the poblacion, the mayor even asked Barrientos to take out something inside the back pocket of his pants since it caused him pain. Mrs. Cerna from time to time would call her husband "Do" and he would answer "Day". When the truck reached the mayor's garage in the poblacion, the chief of police, who was on the lawn of the mayor's residence, was called by Mrs. Cerna and was informed that the mayor had been ambushed. The chief of police approached the mayor, who was being held by Barrientos, and asked him who had shot him. The mayor replied that he was shot by Dido Baricuatro and the other accused already known to the chief of police. The latter asked the mayor if he was referring to Moreno, Romeo Baricuatro, Carlos Paslon and Generalao. The mayor replied in the affirmative (10-14 tsn September 2, 1970; 241-2 tsn September 3, 1970). According to De los Reyes, it was Mayor Cerna who suggested that the jeep of the priest be used in bringing him to the hospital because the cargo truck, which was old, might break down. After the priest said that it might not be good to transfer the mayor to the jeep, the mayor ordered that he be brought to the West Coast Hospital at Toledo City. On the way to that place, Mayor Cerna asked the chief of police, who was sitting at his feet, if the place is still far. The chief of police cautioned him not to talk much because talking was not good for a wounded person. The mayor asked the same question of his wife when he was being brought to the hospital at Lutopan. When the mayor was being transferred from his truck to Barba's car, he cried Agoy Evidently, he was suffering much pain. He sat on the left thigh of Barrientos while he was in Barba's car. From time o time, the mayor would tell Barrientos to let him recline and then, he would tell the latter to let him "lay flat" on his back. He was restless and, obviously, subjected to paroxysms of pain. Possibly, the transfer of Mayor Cerna from the truck to Mayor Barba's car in Toledo City and the trip from Toledo City to the hospital at Lutopan and the transfer to the stretcher of the hospital sapped his last reserved of resistance. He died seven minutes after his arrival at the hospital. As long as he was in the truck, his mental faculties appeared to be unimpaired in spite of the gunshot wounds. The mayor, a heavily built man, was

endowed with a strong constitution. He weighed 198 pounds (102 tsn September 3,. 1970; 427 tsn September 1, 1970). Appellants' contention that Mayor Cerna was already in a comatose condition alter he was shot and that lie could no longer talk is unfounded. The credibility of Avelino Norteza on the complicity of the seven appellants, Crecencio F. Nemenzo et al.—On January 26, 1970, a Constabulary officer filed in the municipal court against (1) Moreno (2) Generalao, (3) Rodrigo Baricuatro, (4) Romeo Baricuatro and (5) Carlos Paslon a single complaint for murder and multiple frustrated murder. The complaint was supported by the affidavits of Jose B. Lesigues the chief of police, Patrolman Eulogio B. Kyamko Jose de los Reyes (the driver) and Placido Mondejar. Lourdes Cerna and Jose R. Kyamko also executed affidavits dated January 28 and 30, 1970. The municipal judge Conducted a preliminary examination and, having found probable, he issued a warrant for the arrest of the five accused, fixing the bail a t P50,000 each in his order of January 28, 1970 Moreno was arrested at Dumaguete City on January 28,1970 (Exh. 3-Moreno). Rodrigo Baricuatro was arrested on January 29, 1970 in Cebu City. Moreno and Baricuatro were released on bail on February 2 1970. Generalao, Romeo Baricuatro and Carlos Paslon went into hiding. The three were to be given a separate trial. On February 4 1970 the municipal judge elevated the record to the Court of the Court of First Instance because of the nonappearance of the accused at the second stage of the preliminary investigation which they had presumably waived. On February 24, 1970 the provincial fiscal filed in the Court of First Instance of Cebu at Toledo City five informants charging Moreno, Generalao, Rodrigo Baricuatro, Romeo Baricuatro, Carlos Paslon and three unknown persons with murder with atentado and four frustrated murders [Criminal Cases Nos. 10(T) to 14(T)]. On June 22, 1970 the fiscal filed amended informations charging attempted murder only in connection with the

assaults against Candida Comahig and Jose de los Reyes [Criminal Cases Nos. 11(T) and 14(T)I. The Court of First Instance transferred the five cases to the Circuit Criminal Court at Cebu City where they were docketed as Criminal Cases CCC-XIV-95, 129,130, 131, and 132. In case No. 95,warrants were issued for the arrest of Moreno and Rodrigo Baricuatro. No bail was recommended. The trial started on September 2, 1970. About six months the trial had started, or on March 12, 1971, that is to say, after the witnesses, Jose B. Lesigues Lourdes Cerna and Jose de los Reyes, had testified at the trial, the fiscal filed amended informations against the five accused originally named and against eight new defendants, namely, (1) Crescencio F. Nemenzo (2) Rodulfo Umbay, (3) Salvador Pena (4) Roberto Paslon, (5) Victoriano Baraga, (6) Crispin Baraga, (7) Elpidio Baricuatro and (8) Ely Baricuatro. The basis of the amended informations was the affidavit dated February 24, 1971 of Avelino Norteza who, as mentioned earlier, claimed to be privy to the conspiracy to ambush Mayor Cerna (Exh. 2-Romeo). On the basis of that affidavit, the fiscal conducted another preliminary investigation. One important issue in this appeal is Norteza's credibility. The Solicitor General regards him as a perjured witness. At the trial, Norteza, a 37-year old mason and a high school undergraduate, testified that at about six o'clock in the evening of January 21, 1970 Crescencio Nemenzo Rodrigo Baricuatro, Rodulfo Umbay and Salvador Pena allegedly went to his house at Barrio Mangoto and invited him to go to Barrio Tutay for a drinking spree. They went to the cliff or the elevated portion in The barrio near the bridge, arriving there at about seven o'clock. There, Norteza saw firearms (grease gun, Thompson, garand rifle) dumped under a tree. He also saw his friends, Roberto Paslon, Carlos Paslon, Victoriano Baraga, Crispin Baraga, Emilio Generalao, Elpidio Baricuatro, Romeo Baricuatro and Moreno. Using only one glass, they were drinking tuba mixed with Pepsi-Cola. Rodrigo Baricuatro allegedly disclosed to him that the group would kill Mayor Cerna. Norteza was given the option to select what firearm he would use.

The plan was for Ely Baricuatro to go to his house at Sitio Mohon Aloguinsan, and fire a shot as a signal announcing the approach of Mayor Cerna's truck. A piece of logs on the right side of the road near the bridge would be used as a barricade to block the truck. In accordance with that suggestion, Roberto Paslon, Carlos Paslon, Generalao, Crispin Baraga and Victoriano Baraga blocked the road with logs. The roadblock was removed when three trucks, none of which belonged to Mayor Cerna, passed by. After the third truck had passed, a gunshot was heard. That meant that Mayor Cerna's truck was approaching. Some members of the group stationed themselves behind the roadblock. Others were stationed in the upper portion near the bridge. At that juncture, Norteza allegedly sneaked out of the place. He did not witness the ambush. On his home through the fields, he heard the gunshots coming from the place which he had left. The foregoing testimony was the trial court's basis for convicting appellants Elpidio Baricuatro, Ely Baricuatro, Nemenzo Pena Umbay, Roberto Paslon and Victoriano Baraga. Can credence be given to Norteza's testimony? As already stated, the Solicitor General agrees with the appellants that Norteza is a perjured witness. Norteza explained that he kept silent about the ambuscade for more than one year because he was fearful that he might be prosecuted and he was allegedly warned that if he squealed he and his family would be liquidated. He changed his mind because he realized that, eventually, it would be known that he had some knowledge of the conspiracy and because he surmised that if he disclosed what he knew about the killing of Mayor Cerna, other persons would follow his example and disclose what they knew about the unsolved killing of his brother, Miguel, on January 31, 1971. We have conscientiously evaluated Norteza's uncorroborated and contradicted testimony. Our conclusion is that it cannot be accorded any credence. Consequently, the guilt of the seven appellants implicated by him was not established beyond reasonable doubt. It is not merely the long delay in the giving of his testimony that impairs its veracity and engenders the notion that it might be fabricated. What strongly militates against his credibility is the undeniable fact that he was a

follower of Mayor Cerna and, therefore, it is not believable that he would have been invited by the appellants (some of whom were confirmed political enemies of Mayor Cerna to join the conspiracy to kill the mayor. (1846 tsn January 11, 1972). And because he was a follower of Mayor Cerna, it is not surprising that he was used as a production witness in this case.

The fact that he did not join in the conversation; that he did not make any suggestions; that he was a mere listener; that he did not even participate in placing the roadblock and in removing it when certain trucks passed, and that he played a passive role or was a mere spectator makes it hard to believe that the conspirators would have taken him into their confidence.

Norteza, as a tough guy, was well-known in the small town of Pinamungajan and its environs where, as in the case of small communities, political affiliations are noted-secret. The appellants could not be ignorant of the fact that Norteza and his father belonged to Mayor Cerna's faction The mayor was one of Norteza's three bondsmen in criminal Case No. 47'6-RP of the municipal court, a 1968 case, wherein he was charged with serious physical injuries for having assaulted Teodoro Alpas (Exh. 7 to 7-F Moreno. )Norteza voted for Mayor Cerna in 1967 election and for Mayor Cerna's son in the 1971 election. His father was leader of Mayor Cerna. (147,150 tsn November 17,1971).

It is within the realm of possibility that the seven appellants had some participation in the ambuscade and that someone, who had actual knowledge thereof but who was not indicted, had informed Norteza of what had transpired. But it is certain from the record that Norteza's uncorroborated testimony is not sufficient to prove the complicity of the seven appellants in the assassination.

In July, 1971, or after Norteza surfaced as a procecution witness, he was appointed a municipal caminero (1249 tsn November 16, 1971). Nortezas version as to the conspiracy contains improbabilities. He made it appear that although the conspirators or the appellants had already decided on killing the and - I had foregathered ill the upper portion of Barrio Tutay to wait for he mayor's truck, they had not yet agreed On the specific measures to be employed in accomplishing their diabolical purpose. From Norteza's story, It appears that the conspirators had to converse aloud in his presence and agree on the blocking of the road and the giving of the signal announcing the approach of the mayor's truck and that they had to invite him to implement their plan. He did not explain why his presence was still indispensable for the execution of the scheme to kill the mayor, considering that (according to Norteza's version) there were already thirteen armed persons present who were ready to perform their nefarious task. He did not mention any special qualifications on his part, which induced the conspirators to invite him to join them. These facts of his story appear to be incredible.

Norteza's testimony contains details that convey the impression that he was a co-conspirator. Such details as the giving of the signal and the placing of the roadblock, and the passing of three trucks before Mayor Cerna's truck passed, might have convinced the trial court that Norteza was present when the preparations for the ambuscade were made. But the record also reveals that other details were not mentioned by Norteza and that such omission casts doubt on the veracity of his testimony. For example, Norteza did not mention that the conspirators were provided with food which they ate while on the cliff, as shown in the telltale wrappers of "puso" rice and the empty tins of canned food (59 tsn July 24, 1972). Norteza could not tell the kind of firearms carried by the conspirators. He merely said that something was bulging at their waists. If he was a coconspirator trusted by the appellants and was present on the cliff, he could have easily ascertained the kind of weapons carried by his companions. Norteza's explanation as to his long silence is not convincing and satisfactory, It cannot erase the impression that he was a rehearsed witness whose testimony was concocted in order to strengthen the prosecution's case. The fact that he did not confide to his wife and parents his knowledge of the ambuscade (1239 tsn November 16, 1971) is quite unusual and may signify that he was not privy to the conspiracy. In a grave case, like the instant case, the guilt of the accused cannot be predicated on delayed testimony, like

that of Norteza's, which exhibits earmarks of fabrication. It would be highly injudicious to relay on such testimony because blanket acceptance thereof might result in the conviction of an innocent person. With the rejection of Norteza's testimony, the seven appellants, already name, should be acquitted. Having disposed of the appeal of the additional seven defendants, we now address ourselves to the appeal of the original five defendants against whom criminal actions were filed in the municipal court of Pinamungajan in four of which cases Mayor Cerna conducted the preliminary examination and issued the warrants of arrest. Case of appellant Moreno.—He relied on an alibi the details of which his counsel did not bother to discuss in his brief. He testified that when the ambuscade was perpetrated, or in the evening of January 21, 1970, he was in the house of his sweetheart, Maria Milan, at Barrio Bakit Pinamungajan Maria Milan, Juan Dejito and Casiano Flores corroborated Moreno's alibi. Dejito and Flores are the brothers-in-law of appellant Nemenzo who in turn is a first cousin of the brothers, appellants Rodrigo and Elpidio Baricuatro. However, Romula Gleocam the mother of Maria Milan, who lived with her, contradicted her and testified that Moreno called at their house at around nine o'clock in the evening of that day or after the ambuscade had been perpetrated. Maria Portes corroborated Romula's testimony. It may be recalled that Mrs. Cerna, Barrientos and Candida Comahig testified that, after the gunfire had ceased, they heard the sound of the engine of a vehicle. They imagined that it was an concurring truck. Actually, it was leaving the scene of the crime. That sound came from that part of the highway near the schoolhouse or near Moreno's house at Barrio Tutay (69 tsn, Exh, 2-Moreno). At around eight-thirty of that night, as Jose Kyamko, the brother-in- law of Mrs. Cerna, was crossing the highway, a jeep without any light passed by him. lt came from Barrio Tutay and was driven to the poblacion. Kyamko recognized it as the passenger jeepney which Leon Moreno, the father of Vedasto, had converted into a private vehicle. When the jeep passed Kyamko. he noticed that it was driven by Moreno. Beside him was Rodrigo Baricuatro. (See p. 37, Records of Crim. Case No. 95-Cebu.)

As already stated, according to Romula Gleocam at around nine o'clock on. that same night,, Moreno, riding in a jeep, went to the house of her daughter, Maria Milan, at barrio Bakit which was near the poblacion (Exh, T). Romula noticed that Moreno spoke in a quevering voice and that he look untidy f e I ed and attempt on prior occasions, he had a well-groomed appearance, After talking with Maria for about an hour, Moreno (Vidi) departed in his jeep. Shortly thereafter Romula heard again the drone of the jeep. Moreno called and asked Rufina Milan (Romula's sister) that he be allowed to pass the night in her house because no one was allowed to pass Barrio Tutay. On that night Moreno slept at Rufina's house. When Moreno was already inside the use, Romula heard a man's voice outside calling Moreno and saying: "Boss, he is already dead". Moreno did not make any reply. On the following morning, Moreno requested Luz, a daughter of Romula, to buy read in the market and to listen to the rumors being Spread around. After Luz had returned, she told Moreno that some persons in the street comer were saying that Moreno had killed Mayor Cerna. While Romula was preparing breakfast, she observed that Moreno was always looking out of the window. After taking breakfast, he left the house together with Maria Milan. They rode in the jeep. They passed by the store of Maria Portes where Moreno bought cigarettes. When she handed the cigarettes to him, she noticed that he looked pale and that his hands were trembling In fact, he dropped the cigarettes on the ground. Se asked Moreno what was wrong with m He answered that he was being implicated in the killing of Mayor Cerna. She said that if he had not done anything wrong, he had no reason to be afraid. Moreno testified that after bringing Maria Milan to the high school he went to his residence at Barrio Tutay and took his lunch there. Then, he went to Barrio Pandacan and supervised the gathering of the coconuts, the cutting of the bamboos and the plowing of the family lands. He went to the house of his aunt and passed the night there. On the following day, January 23, his uncle, Francisco Gabante, arrived from San Carlos City. He went with his uncle to Trozo, San Carlos City, arriving there by boat in the early morning of January 24, 1970. He visited his aunt, Victoria Gabon. on the following day, January 25, he went

to Bais City to visit his uncle, Felix Moreno. Then, the next day, he went to the residence of a lawyer at Dumaguete City in order to seek legal advice. On January 28, 1970, he was arrested in that city by three Constabulary sergeants of the Cebu City Constabulary detachment. Moreno went to the Constabulary headquarters at Dumaguete City and slept there (Exh. 3, Moreno). He and the Constabulary sergeants took a boat on the following day and arrived at Cebu City on January 30 (Exh. 5-Moreno). Maria Portes declared that after Moreno was arrested, he went to see her and requested her to testify that she saw him at the house of Rufina Milan at six o'clock in the evening of January 21, 1970. He offered her money. She refused to testify in his favor. We are convinced that Moreno's complicity in the perpetration of the ambuscade was proven beyond reasonable doubt by the testimonies of Mrs. Cerna and the driver, De los Reyes, and the declaration of Mayor Cerna to his wife, the chief of police and Barrientos. The motive for the killing was sufficiently established. Moreno felt aggrieved by Mayor Cerna's issuance of the warrant for his arrest and by his incarceration and posting of four bail bonds which entailed the payment of a substantial amount as premiums. Moreno's alibi, instead of showing his innocence, to confirm his guilt because, if he had no participation in the ambuscade, there was no reason for him to sleep in his sweetheart's house, three kilometers away from his residence in Barrio Tutay where the ambuscade was committed His flight to San Carlos City clearly signified that he had guilty conscience. Case of Rodrigo Baricuatro.—This appellant was 44 years old when he testified in 1972. He was a Constabulary sergeant connected with the reserve officers training corps (ROTC) unit of the University of the Visayas at Cebu City, with training and experience in perpetrating ambuscades. He testified that in the afternoon of January 21, 1970, he was given by his commandant a three-day pass so that he could go to Pinamungajan and transfer to a new residence on the lot of his parents. He arrived at Pinamungajan at past five o'clock. He and his wife took supper at six o'clock. Then he allegedly went to the house of Tonying

Batitay to play mahjong. He was accompanied by appellant Umbay, his brother-in-law. He stayed at Batitay's place until nine o'clock when the brother Eleazar and Jose Pena came with the information that Mayor Cerna had been ambushed at Barrio Tutay. Rodrigo Baricuatro, accompanied by Umbay and Loreto Quesido, left Batitay's place, and went home. Two days later, or on January 23, 1970; Coronel Jose Nazareno, the Constabulary zone commander who was in Pinamungajan took him into custody because of the suspicion that the firearms used in the ambuscade might have come from the armory of the University of the Visayas. Rodrigo was in charge of the armory. Upon his arrival at Cebu City, an inventory of the arms at the armory was made. He was later detained at the enlisted men's quarters and then at the guardhouse after a criminal charge was filed against hint He denied any complicity in the ambuscade. he refuted Norteza's statements implicating him in the assassination of Mayor Cerna. However, and this is a decisive point, Antonio Batitay, the owner of the house where Rodrigo Baricuatro and Umbay y played mahjong from seven o'clock in the evening of January 21, 1970 (the night of the ambuscade), testified that and Umbay did not play mahjong in his house at that time. They arrived in the mahjong den shortly before nine o'clock or after the ambuscade was committed. The mahjong game was stopped after nine o'clock when news of the ambuscade was relayed to the mahjong players (156-7, tsn March 6,1972). Batitay's testimony nullified Rodrigo Baricuatro's alibi and cancelled the testimonies of Eleazar Pena Loreto Quesido, and Beato Pefia and Sergeant Norberto Alvarado, supporting that alibi. The falsity of his alibi removes any doubt as to his guilt. Like Moreno, Rodrigo Baricuatro was identified by the eyewitnesses, Mrs. Cerna and De los Reyes, as being present at the scene of the crime, and by Mayor Cerna himself in his declaration to them, to s and to the chief of police. Rodrigo had reason to surmise to Mayor Cerna instigated the criminal action for grave threats filed

against him. Being a potential candidate of the Liberal Party for mayor in the 1971 election, he could believe that the elimination of Mayor Cerna would insure his election. Four prosecution witnesses, namely, Placido Mondejar, Angela Yanong, Lazaro Deroy and Sergio Perito testified to certain incidents which reveal that Rodrigo Baricuatro had nursed the design to kill Mayor Cerna before the 1971 elections and had recklessly made an open avowal of that intention. -Rodrigo made a blanket denial of that imputation. It would seem that before the ambuscade Rodrigo Baricuatro and Moreno had already prepared their alibis. Rodrigo would be in the mahjong den while Moreno would be in his girl friend's residence. What they did not foresee was that, immediately after the ambuscade, the finger of suspicion would be pointed at them by their fellow townsmen as individuals implicated in that iniquitous and dastardly deed. Thus, Candida Comahig stopped her narrative about the ambuscade when she noticed that Rodrigo was among those listening to her. And Fiscal Alfredo S. Pancho testified that on the day following the ambuscade a group of around fifteen persons, some of whom were armed and drunked, stopped the Moreno bus at the public market of Pinamungajan and wanted to be brought to Sitio Tubod where Rodrigo Baricuatro was residing. The group harassed the bus driver and the conductor, the employees of Vedasto Moreno's family. That circumstance led Fiscal Pancho, a bus passenger bound for Aloguinsan, to conclude that it was dangerous for Moreno to remain in Pinamungajan Because of that incident, the bus could not proceed to Barrio Tutay. It had to take a roundabout route via Carcar to Aloguinsan Fiscal Pancho rejected the offer that Moreno himself would drive the bus to Aloguinsan by way of Barrio Tutay. Case of Romeo Baricuatro.—This appellant, the nephew of Rodrigo Baricuatro, was thirty-three years old in 1970. He is married with five children. He was a student of criminology at the University of the Visayas in Cebu City. He declared in support of his alibi that in the afternoon of January 20, 1970 his wife came from Pinamungajan to inform him at his boarding house in Cebu City of the warrant of arrest issued against him in the four criminal

cases pending in the municipal court. She also apprised him that Moreno had already been arrested, He testified that at around noontime, he took his wife to the bus station for her return trip to Pinamungajan At the station, he saw Avelino Norteza who was working as a mason in Cebu City. Romeo denied Norteza's testimony that he was in Barrio Tutay in the evening of January 21, 1970. Romeo's alibi is that he was in the house of Atty. Rodolfo Acido in Cebu City at the time when the ambuscade was perpetrated. Romeo conferred with Atty. Acido whom he had hired as his counsel in the four criminal cases. His landlord, Mario Saromines, was with him when he conferred with Atty. Acido whom he had hired as his counsel in the four criminal cases. His landlord, Mario Saromines, was with him when he conferred with Acido. Romeo returned to his boarding house after nine o'clock in the evening. He was already in the boarding house when the whistle announcing the curfew for minors was sounded at ten o'clock. Romeo explained that Norteza testified against him because the Cerna family had helped Norteza in a certain case and that Mrs. Cerna implicated him because she hated his uncle, Rodrigo. Mario Saromines, a thirty-nine year old barber, corroborated Romeo's alibi. But Acido (Moreno's counsel in the preliminary investigation), whose, corroboration would be vital in establishing the truth of Romeo's alibi, did not testify in court. Hence, Romeo's alibi cannot prevail against tile testimonies of Mrs. Cerna and De los Reyes that he was among those who ambushed Mayor Cerna. After eluding arrest for more than twenty-two months, Romeo was arrested by Sergeant Servando in his house at Sta. Cruz, Pinamungajan on November 20, 1971.

Cases of Emilio Generalao and Carlos Paslon.—Generalao, a resident of Barrio Tutay, was thirty-eight years old when he testified in 1972. He reached the first year of high school. His alibi was that from January 6, I970 to May 3, 1971, or for about one year and five months, lie was doing farm work in Barrio Calibasan Toledo City which was fifteen kilometers away from the provincial road at Matab and to go to that place, one had to walk from Matab- ang. Filomeno Cantutay, a resident, of Calibasan Cantutay corraborated his alibi. Generalao testified that in May, 1970, his white went to Calibasan to inform him that he was Implicated in the killing of Cerna. He returned to Barrio Tutay on May 3, 1971 in order to confer with his brother and his white regarding his surrender. lie denied shall lie was with Norteza in Barrio Tutay in evening on January 21, 1970. His theory was Chat Norteza was angry with him because he refused to help Norteza and his Brother in gathering the coconuts of Clemente Yanong. He was arrested in his father's house on November 25, 1971 by certain Constabulary men named Aldaba Nebres and Carding and other whose names he did not know He said that he was brought to the Constabulary station at Pinamungajan where he was mauled by the Constabularymen and by Jesus Cerna and Jose Kyamko in the presence of several persons. Then, he was taken to the Constabulary headquarters at Salonga where he was again maltreated. 'There, he signed an affidavit which he did hot read. The affidavit, Exhibit B-Generalao, was taken by Sergeant Benjamin Solante in the presence of Sergeants Nicanor E. Bancog and Edmundo Panistante and sworn to before Fiscal Benicio Arzadon who prosecuted this case. Generalao, on cross-examination by Fiscal Arzadon, denied that he signed freely that affidavit. In that affidavit, Generalao admitted that on January 2, 1970, he killed Juanita Gabonada; that, because of that killing, he went into hiding at Sitio Calibasan and Barrio Guingkamote, Toledo City, staying with his brother-in-law Cantutay, his friend Marcelo Tante and his mother's cousin, Felicisimo Maturan; that he returned to his fathers house at Sitio Santa Cruz, Barrio Sacsac Pinamungajan on May 3, 1971 in order to surrender but he was not able to do so because he feared that he might be killed, so he just laid low and talked from time to time with Carlos Paslon

and Romeo Baricuatro; that in November, 1971, in the course of an encounter with Constabulary soldiers, he threw away his Garand rifle and it was recovered by the Constabularymen and that his companions in that encounter were Carlos Paslon and Gavino Layar (Translation.) Carlos Paslon, married, with seven children, was thirty six years old in 1972. He finished the fifth grade. His alibi was that from November, 1969 to February, 1970 he stayed in the house of his elder brother, Doming, in Barrio Lawaan, Talisay, Cebu. He was working as driver at six pesos a day with the Cebu United Enterprises. Afterwards, he lived in Duljo, Cebu City where his wife established a dress shop. He left Duljo in Ap 1971 and returned to Pinamungajan. Paslon testified that in the evening of January 21, 1970 he attended a party in the house of Eutiquio Cabuenas in Barrio Lawaan. According to Paslon, the occasion was a "yearly devotion". According to Cabuenas, it was the birthday of his wife. Paslon could not remember the birthdays of his children. Cabuenas corroborated his alibi However, on cross examination, Cabuenas declared when he testified on August 26, 1972 that the current month was July. Cabuenas admitted that he was requested by the wife of Carlos Paslon to testify that Carlos was in the house of Cabuenas in the evening of January 21, 1970. Carlos Paslon denied the imputation of Norteza that he was in Barrio Tutay on that date. Norteza was angry with him because he refused to sell a pig to him. He was arrested on November 24, 1971 in the house of Sabina Intong at Barrio Sambagon, Pinamungajan by certain Constabularymen named Aldaba, Alpon and Carding who maltreated him. They stopped maltreating him when Sergeant Nebres told them that according to Mrs. Cerna, Carlos Paslon would be a State witness. He was brought to Sibonga where he signed an affidavit after having been mauled.

The alibis of Generalao and Carlos Paslon cannot be accorded any credence because they were positively Identified by Mrs. Cerna. And the fact that, like Romeo Baricuatro, they were fugitives from justice for around twenty-two months, hiding in the mountain barrios of Pinamungajan conveys the impression that they had a guilty conscience. Appellants' criminal liability.—As to Mayor Cerna, the offense committed was correctly categorized as the complex crime of murder with direct assault upon a person in authority (Arts, 48, 148 and 248, Revised Penal Code). The killing of Mayor Cerna was indisputably treacherous. The ambuscade exhibited the characteristic features of alevosia (Art. 14[161, Revised Penal Code), Nocturnity is aggravating because the appellants took advantage of the night for the consummation of their nefarious enterprise. The killing constituted a direct assault against a person in authority (Art. 152, Revilla Penal Code- U. S. vs. Gumban 39 Phil. 76), as charged in the information, because the rule is that the person in authority or his agent should have been assaulted "while engaged in the performance of official duties, or on occasion on such performance". At the time Mayor Cerna was ambushed, he was returning from Cebu City where he had transacted official business with the governor. The impelling motive for the direct assault was Mayor Cerna's performance of his official duty in conducting the preliminary examination of the four criminal cases against appellants Moreno, Generalao, Romeo Baricuatro and Carlos Paslon and the issuance of warrants of arrest which resulted in the incarceration of Moreno and constrained him to pay P1,000 as premiums on his bail bonds. Undoubtedly, that caused resentment. (Justo vs. Court of Appeals, 99 Phil 453; U. S. vs. Garcia, 20 Phil. 358). As the crime is complex, the penalty of reclusion temporal maximum to death for murder, the more serious offense, should be imposed in the maximum period. Hence, the death penalty should be imposed on the principals. The trial court correctly imposed the death penalty upon Moreno and Rodrigo Baricuatro, whose guilt as coprincipals in the assassination of Mayor Cerna, was established to a moral certainty.

For lack of the requisite votes, the death penalty cannot be imposed on appellants Generalao, Carlos Paslon and Romeo Baricuatro. They should be sentenced to reclusion perpetua. In this connection, it may be noted that in People vs. Ubina, 97 Phil. 515, where Aureliano Carag, the mayor of Solano, Cagayan, was killed by eight persons led by Tomas Ubina, his political enemy only Ubina was sentenced to death because he was the one who conceived the plan and utilized his influence to perpetrate the killing. "For him justice cannot be tempered with mercy; the law must be applied to its full force and to its full extent." His four companions, who were indebted to him for personal favors, were sentenced only to reclusion perpetua. Three others, who were present at the killing but did not conspire with Ubina, were considered accomplices. (See People vs. Sakam 61 Phil. 27; People vs. Cabrera, 43 Phil 82; People va. Chua Huy 87 Phil. 258, and People vs. Ging Sam 94 Phil 139, capital cases, wherein not all those convicted as principals were sentenced to death.) In the other four cases, the trial court convicted the appellant of frustrated murder. This is a glaring error. The trial court overlooked that there were only two informations for demonstrated murder. These refer to the cases where the victims were Lourdes Cerna and Jose de los Reyes. The other two informations charged attempted murder only in the cases where the victims were Candida Comahig and Francisco Jabido. In these four cases, the crime committed is attempted murder only because the injuries suffered by the victims could not have caused their death. Band (cuadrilla) is aggravating in addition to nocturnity Only the five appellants originally charged should be held responsible for the attempted murders. We have already ruled that the seven additional appellants implicated by Norteza should be acquitted. However, Generalao, Romeo Baricuatro and Carlos Paslon cannot be held responsible for the attempted murder committed against Jabido and De los Reyes because these two offended parties did not testify at their separate trial. Neither did Doctors Florante Batucan and Ramon Arcenas who examined the injuries of Jabido and De los Reyes and issued the corresponding medical certificates (Exh. E and F testify at the separate trial of Generalao, et al.

WHEREFORE, the trial court's decision is modified and the following judgment is rendered in these five cases: 1. In Criminal Case No. 95-Cebu, L-37801, appellants Vedasto Moreno Rodrigo Baricuatro, Romeo Baricuatro, Carlos Paslon and Emilio Generalao are convicted as coprincipals in the crime of murder with assault upon a person in authority. Moreno and Rodrigo Baricuatro are each sentenced to death, while Romeo Baricuatro, Paslon and Generalao are each sentenced to reclusion perpetua. The five appellants are ordered to pay solidarity to the heirs of Mayor Samson Cerna an indemnity of P50,000. 2. In the other four cases, Criminal Cases Nos. 129-Cebu, L- 37802; 130-Cebu, L-37803; 131-Cebu, L-37804, and 132 Cebu, L-37805, appellants Moreno and Rodrigo Baricuatro are convicted of four attempted murders and are each sentenced to four indeterminate penalties each consisting of four (4) years of prision correccionalmedium as minimum, to seven (7) years of prision mayor, minimum, as maximum, and to pay solidarity an indemnity of two thousand pesos (P2,000) to each of the three victims, Candida Comahig, Francisco Jabido and Jose de los Reyes. The same two appellants are further ordered to pay solidarity to Lourdes Cerna an indemnity of ten thousand (P10,000). The penalty and civil liability in Criminal Cases No. 129, 37802 and 130, L-37803, involving Candida Comahig and Lourdes Cerna, are imposed upon appellants Generalao, Romeo Baricuatro and Carlos Paslon These three appellants have no liability in Cal Cases Nos. 131 and 132, L-37804 and L-37805, involving Francisco Jabido and Jose de los Reyes. 3. The other seven appellants, Crescencio F. Nemenzo Elpidio Baricuatro, Ely Baricuatro, Salvador Pefia Rodulfo Umbay, Roberto Paslon, and Victoriano Baraga, are acquitted in the five cases on the ground of reasonable doubt. The convicted appellants will pay the costs. SO ORDERED.

charged in the information, and is sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000 and to pay the costs. Upon arraignment the accused entered a plea of not guilty to the charges contained in the information. Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense, rendered judgment as above stated.

*Complex Crimes (Compound Complex Crime) G.R. No. L-1477

January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIO GUILLEN, defendant-appellant. PER CURIAM, J.: This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as

In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficio for the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital, there to be examined by medical experts who should report their findings accordingly. This was done, and, according to the report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14, reads: FORMULATION AND DIAGNOSIS Julio C. Guillen was placed under constant observation since admission. There was not a single moment during his whole 24 hours daily, that he was not under observation. The motive behind the commission of the crime is stated above. The veracity of this motivation was determined in the Narcosynthesis. That the narcosynthesis was successful was checked up the day after the test. The narco-synthesis proved not only reveal any conflict or complex that may explain a delusional or hallucinatory motive

behind the act. Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He was found to be intelligent, always able to differentiate right from wrong, fully aware of the nature of the crime he committed and is equally decided to suffer for it in any manner or form. His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives, temptations and provocations that preceded the act, were all those of an individual with a sound mind. On the other hand he is an man of strong will and conviction and once arriving at a decision he executes, irrespective of consequences and as in this case, the commission of the act at Plaza Miranda. What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is seen not only in the present instance, but sometime when an employee in la Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken speeches. All these mean a defect in his personality characterized by a weakness of censorship especially in relation to rationalization about the consequences of his acts. In view of the above findings it is our considered

opinion that Julio C. Guillen is not insane but is an individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority. Final Diagnosis Not insane: Constitutional Psychopathic Inferiority, without psychosis. In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being insane, could be tired, as he was tired, for the offenses he committed on the date in question. THE FACTS Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to the essential facts which caused the filing of the present criminal case against this accused. Those facts may be stated as follows: On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political group, has voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth and subsequently President of the President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure. Hence he determined to assassinate the President. After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity

presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the same rights granted to Filipino nationals be adopted. Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm, which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the chances of killing President Roxas, either by going to Malacañan, or following his intended victim in the latter's trips to provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947. On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a document (Exhibit B), in accordance with their pervious understanding in the preceding afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation (Exhibit B-2) from its original Tagalog reads:

spare. And had I expected to lives to spare, I would not have hesitated either ton sacrifice it for the sake of a principle which was the welfare of the people. Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated. I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived the people, he had astounded them with no other purpose than to entice them; he even went to the extent of risking the heritage of our future generations. For these reasons he should not continue any longer. His life would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up my life too if only the good of those eighteen million souls. These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of my act. I t matters not if others will curse me. Time and history will show, I am sure, that I have only displayed a high degree of patriotism in my performance of my said act. Hurrah for a free Philippines. Cheers for the happiness of every Filipino home. May God pity on me.

FOR THE SAKE OF A FREE PHILIPPINES Amen. I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to my God, until I reached my conclusion. It was my duty. I did not expected to live long; I only had on life to

JULIO C. GUILLEN

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears unsigned,

because he was in a hurry for that meeting at Plaza de Miranda.

previous ten years and had seen each other in the plaza a few moments previous to the explosion.

When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech, was being congratulated by Ambassador Romulo and was about to leave the platform.

The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to hold when he was running away.

General Castañeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought the grenade was likely to do the least harm; and, covering the President with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade had seriously injured Simeon Varela (or Barrela ) — who died on the following day as the result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) — Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang. Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one Angel Garcia, who was one spectators at that meeting, saw how a person who was standing next to him hurled an object at the platform and, after the explosion, ran away towards a barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him and had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but some detectives, mistaking the former for the real criminal and the author of the explosion, placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were investigating the affair, one Manuel Robles volunteered the information that the person with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel Robles) was acquainted with Julio Guillen for the

During the investigation conducted by the police he readily admitted his responsibility, although at the same time he tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where he had hidden his so called last will quoted above and marked Exhibit B, which was then unsigned by him and subsequently signed at the police headquarters. Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to question propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations and made by him on the witness stand during the trial of this case. THE ISSUES In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of the complex crime of murder and multiple frustrated murder"; third, "in applying sub-section 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused"; and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission of crime." The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any

shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons who were around his main and intended victim from being killed or at least injured, due to the highly explosive nature of the bomb employed by him to carry out his evil purpose. Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President, but that it did not make any difference to him if there were some people around the President when he hurled that bomb, because the killing of those who surrounded the President was tantamount to killing the President, in view of the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In other word, although it was not his main intention to kill the persons surrounding the President, he felt no conjunction in killing them also in order to attain his main purpose of killing the President. The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the corresponding penalties for the different felonies committed, the sum total of which shall not exceed three times the penalty to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code. In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any person committing felony (delito) although the wrongful act done be different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be qualified

as imprudence it is necessary that either malice nor intention to cause injury should intervene; where such intention exists, the act should qualified by the felony it has produced even though it may not have been the intention of the actor to cause an evil of such gravity as that produced.' (Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605) Squarely on the point by counsel is the following decision of the Supreme Court of Spain: Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de imprudencia temeraria? — La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un año de prision correctional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por haberse ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio declararsele responsable de la misma, a tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente

que en el antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.)

commission of a felony by over acts, but he did not succeed in assassinating him "by reason of some cause or accident other than his own spontaneous desistance." For the same reason we qualify the injuries caused on the four other persons already named as merely attempted and not frustrated murder.

Article 48 of the Revised Penal Code provides as follows:

In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault upon a person in authority, for in fact his efforts were directed towards the execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate allegation charging Guillen with the commission of said offense, we shall refrain making a finding to that effect.

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 for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive hand grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties. The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs. Mabug-at, supra, this court held that the qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the same case it was held that the qualifying circumstance of premeditation may not be properly taken into the account when the person whom the defendant proposed to kill was different from the one who became his victim. There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with the intention to kill him, thereby commencing the

The complex crimes of murder and multiple attempted murder committed by the accused with the single act of throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the information, without any mitigating circumstance. But we do not deem it necessary to consider said aggravating circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporal in its maximum period to death. (Art. 248.) It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts and circumstances hereinabove narrated. The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the date the record shall have been remanded. It is so ordered.

*Complex Crimes (Complex Crime Proper)

Finally he is sentenced to pay the costs of this proceedings.

and her legs apart. After they were through they tied her up again. All in all Myrna was violated seventeen times.

G.R. No. L-40995 June 25, 1980 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EULALIO BOHOS, ET AL., defendant-appellant. PER CURIAM: This is a review on appeal of the decision dated December 18, 1974, of the Court of First Instance of Lanao del Norte, Branch IV, Iligan City, in Criminal Case No. 1440 convicting Eulalio Bohos of the complex crime of Forcible Abduction with Rape and sentencing him to die for each of the thirteen (13) separate acts of rape committed on the person of the complaint the dispositive portion of which reads. WHEREFORE, the Court finds the accused Eulalio Bohos GUILTY as principal and beyond reasonable doubt of the common crime of Forcible Abduction with Rape under Articles 335 and 342 of the Revised Penal Code with the attending aggravating circumstances of nighttime and taking advantage of superior strength and number with no attending mitigating circumstance and hereby sentences the said accused to suffer the supreme penalty of death for each of the thirteen (13) separate acts of rape committed on the person of Myrna de la Vega. Further, the accused is sentenced to indemnify Myrna de la Vega in the amount of P500.00 for actual damages representing her expenses in coming to testify in this case in Iligan City from San Carlos City, P12,000.00 for moral damages and P6,000.00 for exemplary damages.

On September 17, 1966, a Saturday, Myrna de la Vega, then 16 years old and a student of the Immaculate Concepcion College in Ozamis City left the residential home at Kapatagan, Lanao del Norte, at 2:00 o'clock in the afternoon to see a movie in barrio Maranding, Lala, Lanao del Norte, accompanied by a small child who tagged along when Myrna went to the child's house in Maranding. At about 4:00 o'clock the child got thirsty so Myrna took her home but returned alone to view the rest of the film. It was already 8:00 o'clock in the evening when she by left the movie house to go home. In going to Maranding Myrna walked a kilometer via the highway and she had to take the same route in going home to Kapatagan. By that time the highway was already deserted and although there were houses along the way the occupants had already gone to bed. After walking for sometime she noticed several persons approaching and as they came nearer they turned out to be four men. Then she heard one of the men say, "Bay, Bay, mayron babae She tried to run away from them but her efforts proved futile for she was no match to the four men who immediately caught up with her. One man held her right arm, another held her left arm and the other two covered her mouth. A passing cargo truck bound for Iligan City was stopped and she was dragged along it. The four men rode with her at the rear of the truck. Two men continued to hold her arms. A handkerchief was then placed inside her mouth, her panty was removed and right there on the truck one of the men abused her sexually. The cargo truck was made to stop at Magpatao, another barrio of Lala where she was forced to alight and taken to a small house along the highway, belonging to Teodoro Engio. That night, Myrna was ravished thirteen times, once in the truck and twelve times in the house of Teodoro Engio where the four men took turns in ravishing her three times each. Everytime she was abused one man held her right hand, another held her left hand and another held her legs wide apart. After that night's ordeal, Myrna's hands and feet were tied. The following morning, September 18, 1966, her abductors untied Myrna and each one again took turns in having carnal knowledge of her while the others held her hands

Myrna was rescued at about 3:00 o'clock in the afternoon of September 18, 1966 by then Kapatagan Mayor Bernardo Nietes together with some of his policemen led by Desk Sergeant Apolonio Pangilinan in coordination with Philippine Army soldiers, in response to a report of Florencio Morilla a neighbor of the De la Vegas. They found Myrna in the house of Teodoro Engio fast asleep wearing only a "sando" while a small towel was wrapped around her waist to cover her private parts. Beside her, also sleeping was Agustin Nodado, one of the accused, who was in his underwear. Both were interrogated right in the house and Agustin Nodado gave the names of his companions as Teotimo Babanto, Felix Palcis and Eulalio Bohos. Myrna looked weak and pale; she could not talk very well and was trembling during the interrogation. However, she was able to tell Mayor Nietes and Sgt. Pangilinan that she was kidnapped and abused by four men including Nodado. That same afternoon, Teotimo Babanto, Felix Palcis and Eulalio Bohos were also arrested. Eulalio Bohos was arrested right along the highway of Maranding where the raiding team passed him on their way back to the Police Station of Kapatagan after the rescue of Myrna while Teotimo Babanto and Felix Palcis were picked up in Baroy where they were apprehended for pick-pocketing. Immediately after the arrest of the three, Myrna Identified them as the companions of Nodado who kidnapped her and took turns in raping her. Teodoro Engio was also apprehended for questioning but he explained that he allowed the four who were his friends just to pass the night at his house. At the time of the trial Teodoro had already died. On November 25, 1967, Felix Palcis, Teotimo Babanto and Eulalio Bohos escaped from the provincial jail while Agustin Nodado escaped on September 26, 1968, after he had stabbed to death the guard on duty (Report of the Provincial Warden, Exhibit "A" Only Eulalio Bohos had been rearrested as of arraignment date on March 18, 1974. He pleaded not guilty to the offense charged, was tried and convicted as aforesaid. The three others are still at large.

The verified complaint filed by Myrna de la Vega with the Court of First Instance of Lanao del Norte on January 18, 1968, against Agustin Nodado, Teotimo Babanto, alias Toting alias Ernesto Ybanez, Felix Palcis and Eulalio Bohos alleges: That on or about the 17 the day of September 1966 in the barrio of Maranding, Municipality of Kapatagan, Province of Lanao del Norte, Philippines, and within the jurisdiction of this Honorable Court, the accused Agustin Nodado, in company with Teotimo Babanto, Felix Palcis and Eulalio Bohos, who have escaped from confinement in the Provincial Jail last November 25, 1967, as detained prisoners in Crim. Case No. 1311 together with Agustin Nodado, and who are still at large, armed with a deadly weapon, and with the use thereof, conspiring together, confederating and mutually helping with one another and with lewd designs, did then and there wilfully, unlawfully and feloniously take and carry away the undersigned by force and violence or intimidation in a cargo truck which happened to pass by bound for Iligan City and while in the said truck, the said accused abused her and upon reaching the barrio of Magpatao, Lala, this province, the said accused stopped the truck and forced her to alight thereon, dragged her to a certain house at Magpatao where she was detained, the said accused alternately and successively had sexual intercourse with her against her wilt to the damage and prejudice of the offended party. At the time of the trial in 1974, Myrna had transferred her residence to San Carlos City (Pangasinan) which explains the award of P500.00 for her expenses in going to Iligan City in order to testify. Mayor Nietes had abandoned politics and moved to Quezon, Bukidnon, as a farmer. And Dr. Pablito P. Abragan Municipal Health Officer of Kapatagan who performed the examination on Myrna was killed in 1971 during an ambuscade so that his findings (Exh. "B") had to be interpreted by Dr. Ramon Abragan, Jr.,

Provincial Health Officer who gave the opinion that force was used on the person of Myrna when she was sexually used. Appellant's counsel de oficio, Mary Concepcion-Bautista, who is a very capable lawyer, states in her brief: At the outset, we must confess to an inner conflict as to whether we should proceed as counsel de oficio for the appellant after we found ourselves compelled to accept that indeed the crane of forcible abduction with rape had been committed, and that appellant had guilty participation in its commission. As this Honorable Court had aptly observed in its previous decisions, no country lass would allow herself to be so humiliated publicly unless she had really suffered and been so victimized. Furthermore, the half-nakedness of the victim at the time of her rescue was an indication of what she had gone through and one can surmise that she fell asleep out of sheer physical weakness and exhaustion. In addition, there was no reason to question her Identification of the appellant when he was apprehended on September 18, 1966 and in the courtroom. Neither could we ignore the circumstance that appellant escaped, instead of insisting on an early trial which an innocent man would have done. Nonetheless, appellant's counsel has raised certained points in an effort to mitigate his criminal liability. Thus she argues that there was no conspiracy among the four accused hence the appellant should not be held liable for the acts of his co-accused. It is true that there is no evidence in the record of a previous plan among the accused to abduct Myrna in order to rape her. No witness testified to having seen or heard the accused conspire or confabulate. The whole incident happened because the four accused met a woman walking alone at a deserted place at night. But for collective responsibility to be establish it is not necessary that

conspiracy be proved by direct evidence of a prior agreement to commit the crime. It is sufficient that at the time of the commission of the offense all the accused acted in concert showing that they had the same purpose or common design and were united in its execution. (People vs. Cutura, G.R. No. L-12702, March 30, 1962, 4 SCRA 663; People vs. Verzo, G.R. No. L-22517, Dec. 26, 1967, 4 SCRA 1403; People vs. Estrada, G.R. No. L-26103, Jan. 17, 1968, 22 SCRA 111; People vs. Crisostomo, 46 Phil. 775 [1923]; People vs. Pajenado, G.R. No. L-26458, Jan. 30, 1976, 69 SCRA 172; People vs. Aleta, G.R. No. L40694, Aug. 31, 1976, 72 SCRA 542; People vs. Cabiling, G.R. No. L-38091, Dec. 17, 1976, 74 SCRA 285; People vs. Roncal, G.R. No. L-26857-58, Oct. 21, 1977, 79 SCRA 509; People vs. Cercano, G.R. No. L-37853, Nov. 21, 1978, 87 SCRA 1, citing People vs. Clarit, G.R. No. L-14150, Oct. 31, 1961, 3 SCRA 331, People vs. Castro, G.R. No. L-17465, Aug. 31, 1964, 11 SCRA 699, People vs. Mandayag, 46 Phil. 838 [1923].) The degree of participation by each of them is immaterial (People vs. Verzo, supra, citing People vs. Macul, 86 Phil. 423 [1950], People vs. Bautil, G.R No. L18997, Jan. 31, 1966, 16 SCRA 57, People vs. Reyes, G.R. No. L-18892, May 30, 1966, 17 SCRA 309, People vs. Akiran, G.R. No. Jr 18760, Sept. 29, 1966, 18 SCRA 239). The simultaneous acts of the four accused — two of them holding Myrna's hands and the other two covering her mouth as they accosted her on the highway; the four of them dragging Myrna aboard the truck which they stopped and where she was violated by one of them with the assistance and encouragement of the three others; the four of them alternately and successively ravishing her inside the house of Teodoro Engio three times each on the night of September 17, 1966, and one each the following morning while one held complainant's right arm, another held her left arm and another stretched her legs wide apart - together with other circumstances, make evident a community to design, an indicia of a conspiracy to abduct complainant forcibly for the satisfaction of their carnal desire against her will . We are satisfied that there was conspiracy among the four accused to abduct and rape Myrna so that the act of any one was also the act of the others. Appellant's other point is: "Even if we may assume purely for the sake of argument that the complaining witness was forcibly abducted and then raped thirteen times, we submit that there was only one forcible abduction, with rape and that was the one allegedly committed on the truck or jeep. Any subsequent acts of intercourse in the

house against her wig would be only separate acts of rape and can no longer be considered separate complex crimes of forcible abduction with rape.

considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter." (At p. 475.)

This point is well taken. There was only one forcible abduction with rape which was the one committed in the truck. Thus in People vs. Jose, et al., G.R. No. L-28232, Feb. 6, 1971, 37 SCRA 450, where the four accused forcibly abducted Maggie de la Riva and each of them raped her, this Court held "that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding crimes of the same nature can not legally be considered as still connected with the abduction — in other words, they should be detached from, and

We have examined the record to ascertain if there was indeed forcible abduction with rape and other rapes in order to set our minds at ease. And the evidence is overwhelming so as to satisfy even the most skeptical reviewer that the crimes were in fact committed. We have Myrna's testimony that she was forcibly abducted and then raped seventeen (17) times. Corroborating her were Bernards Nietes, former Municipal Mayor of Kapatagan, Lanao del Norte, and Apolonio P former Desk Sergeant in the Kapatagan Police Force, concerning their

rescue of Myrna in the afternoon of September 18, 1966, at Magpatao, Lala, Lanao del Sur, where she was brought by her abductors, and their investigation of the case immediately after the rescue which lead to the arrest of appellant Eulalio Bohos and his companions Agustin Nodado, Teotimo Babanto and Felix Palcis. Both Nietes and Pan testified that in that investigation, Agustin Nodado Identified his three companions as Teotimo Babanto, Eulalio Bohos and Felix Palcis. Pangilinan further testified that Teodoro Engio who was also apprehended on the same date for questioning Identified the four accused as his friends who asked his permission to pass the night in his house. And then we have the testimony of Dr. Ramon Abragan, Sr. to the effect that Myrna was abused when she was sexually used according to Exhibit "B" which reads as follows:

REPUBLIC OF THE PHILIPPINES DEPARTMENT OF HEALTH

FIELD OPERATIONS REGIONAL HEALTH OFFICE NO. 7 RURAL HEALTH UNIT KAPATAGAN, LANAO DEL NORTE September 19, 1966 TO WHOM IT MAY CONCERN: This is to certify that I personally performed the examination of MYRNA DE LA VEGA, 16 years old, single of Kapatagan, Tanso del Norte. Findings: Ocular inspection of the vulva revealed (1) Fresh blood along the external os. (2) Peri-vulvar hyperomia moderate, more prominent along both sides of he clitoris. Internal examination revealed: 1. One finger can be admitted with slight pain, but can admit 2 fingers with difficulty on the part of the examiner and severe pain on the part of the patient. 2. Tenderness upon lactation of the cervix. 3. Hymen incomplete with slight laceration at 8:30 o'clock. 4. Laceration of the cervix slight at 6:00 o'clock with slight bleeding from the laceration. (SGD) PABLITO P. ABRAGAN M.D. Municipal Health Officer

The defense of the appellant is alibi. He claims that on September 17 and 18, 1966, he was in the house of Vicente Pangilinan at Kapatagan, Lanao del Norte. We reject this defense. The defense of alibi, which can be easily concocted, cannot prevail over the positive Identification of the accused by the prosecution witness as the author of the crime (People v. Cortez G.R. No. L-31104, Nov. 15, 1974, 61 SCRA 73). For alibi to prosper it is not enough to prove that the accused was somewhere when the crime was committed but that he must likewise *Complex Crimes (Complex Crime Proper)

demonstrate that it was physically impossible for him to have been at the scene of the crime during its commission (People v. Cortez, G.R. No. L-31106, May 31, 1974, 57 SCRA 308). The aggravating circumstance of abuse of superior strength was correctly appreciated by the trial court but it erred when it also added nocturnity for there is no evidence to show that nighttime was purposely chosen to facilitate the commission of the crime. The aggravating circumstance of use of a motor vehicle should also be appreciated. G.R. No. L-32205 August 31, 1979

The crimes thus proved to have been committed are forcible abduction with rape and sixteen (16) separate rapes attended by the aggravating circumstances of superiority and use of a motor vehicle without any mitigating circumstance. WHEREFORE, the judgment appealed from is modified in that Eulalio Bohos is sentenced to suffer not thirteen (13) but seventeen (17) death penalties; it is affirmed in all other respects. Costs de officio. SO ORDERED. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. (1) EMERITO ABELLA alias Kulot, (2) GORGONIO

AÑOVER (3) RODOLFO APOLINARIO, (4) MAXIMO APOLONIAS, (5) DOMINGO ASTROLOGIA alias Blackie, (6) JOSE BARBAJO, (7) PERFECTO BILBAR alias Porping, (8) CATALINIO CABCABAN alias Inday, (9) RODOLFO CARBALLO, (10) RUSTICO CIDRO, (11) CRESENCIO CUIZON, (12) FRANCISCO DIONISIO alias Satud, (13) ELINO DURAN, (14) ABSALON ENRIGAN, (15) JOSE FRANCISCO alias Karate, (16) SINDOLFO GALANTO, (17) LEOCADIO GAVILAGUIN alias Cadio, (18) ALFREDO GAYLAN. (19) ROMULO GELLE, (20) FELIX HERNANDEZ, (21) GUILLERMO IGNACIO, (22) ALFREDO LAGARTO, (23) BENEDICTO LORAÑA alias Payat, (24) ELEUTERIO MALDECIR alias Aswang, (25) CIRIACO OPSIAR alias Simaron, (26) ROBERTO PANGILINAN, (27) ROLANDO PANGILINAN, (28) EUGENIO PROVIDO, JR., (29) VICENTE QUIJANO, (30) JUANITO REBUTASO, (31) ROMEO RICAFORT alias Romy, (32) MARCELO SARDENIA, (33) ELEUTERIO TABOY, (34) ANGEL TAGANA, (35) AGUSTIN VILLAFLOR alias Tisoy, (36) JOSE VILLARAMA and (37) SOFRONIO VILLEGAS, accused. (1) EMERITO ABELLA, (2) MAXIMO APOLONIAS, (3) JOSE BARBAJO, (4) CATALINO CABCABAN, (5) RODOLFO CARBALLO, (6) FRANCISCO DIONISIO, (7) ELINO DURAN, (8) ABSALON ENRIGAN, (9) JOSE FRANCISCO, (10) LEOCADIO GAVILAGUIN, (11) FELIX HERNANDEZ, (12) GUILLERMO IGNACIO, (13) BENEDICTO LORAÑA, (14) EUGENIO PROVIDO, JR., (15) VICENTE QUIJANO, (16) ELEUTERIO TABOY, (17) ANGEL TAGANA, (18) JOSE VILLARAMA and (19) SOFRONIO VILLEGAS, accused whose death sentences are under automatic review. AQUINO, J.: This case is about the massacre of certain prisoners in the Davao Penal Colony. It was a reprise of a similar riot which occurred in the national penitentiary at Muntinlupa Rizal on Sunday morning February 16, 1958 (People vs. De los Santos, L-19067-68, July 30, 1965, 14 SCRA 702). The record reveals that in the morning of Sunday, June 27, 1965 Numeriano Reynon a prisoner-trustee, was performing guard duty at the jailhouse of the penal colony in Panabo, Davao del Norte. The jailhouse (bartolina) was a two-story building whose second floor was divided by a corridor or passageway one and half meters wide. On one side was a single cell about

ten meters long and eight meters wide. On the opposite side were three small cells. Around seventy (seventy-five, according to defendant Cabcaban) prisoners were incarcerated in the big cell. It was indubitably congested. The prisoners used a drum to dispose of their waste matter. Confined ill the three small cells were seventeen prisoners who liad committed grave misconduct and who were known as "close-confined" prisoners to distinguish them from the prisoners in the big cell who were just undergoing punishment. The prisoners belonged to two gangs: the Oxo gang, whose members were Visayans with an Oxo mark tattooed on their bodies, and the Sigue-Sigue gang whose members hailed from Luzon. The name Sigue-Sigue was tattooed on their thighs or buttocks. The existence of these gangs in the New Bilibid Prison was traced by Judge (now Justice) Andres Reyes in the De los Santos case, supra. See People vs. Peralta, 25 SCRA 759. Shortly before noontime of that Sunday, June 27, 1965, or after the inmates of the big cell had taken their lunch, Reynon locked that cell. The seventeen inmates of the three small cells, all members of the Oxo gang, had also taken their lunch but Reynon did not lock their cells because he was waiting for the prisoner-janitor to bring out from those cells the cans used as urinals. At that juncture, Leocadio Gavilaguin, a prisoner from the small cell, approached Reynon and asked permission to pawn his pillow to Rodolfo Carballo, an inmate of the big cell. Reynon told Gavilaguin. that Carballo would not accept his pillow because it was very dirty. As it turned out, Gavilaguin was simply employing a ruse to inveigle Reynon into opening the door to the big cell. When Reynon refused to open the door, Gavilaguin grabbed him from behind. Then, as if on cue, "the closeconfined" prisoners from the small cells surrounded Reynon and assaulted him. One prisoner stabbed Reynon while the others hit him on the chest and right temple with fistic blows. Reynon lost consciousness and collapsed on the floor. A prisoner took the bunch of keys which were in Reynon's custody and opened the door of the big cell. (According to

some extrajudicial confessions, Reynon himself opened the door.) Led by Kulot (Emerito Abella), Tisoy (Agustin Villaflor) and Cadio (Gavilaguin), the other thirteen prisoners from the small cells rushed into the big cell. They were (1) Gorgonio Anover, (2) Rustico Cidro, (3) Absalon Enrigan, (4) Sindolfo Galanto, (5) Felix Hernandez, (6) Benedicto Lorana alias Payat, (7) Eleuterio Maldecir alias Aswang, (8) Ciriaco Opsiar alias Simaron, (9) Vicente Quijano, (10) Juanita Rebutaso, (11) Eleuterio Taboy, (12) Jose Villarama and (13) Sofronio Villegas. They were armed with improvised weapons. So, there were around eighty-six prisoners in the eighty- squaremeter big cell when the massacre occurred. The seventeenth closely confined prisoner, Perfecto Bilbar alias Proping, stayed in the small cell. He locked its door and closed the padlock of the big cell (Page. 9, Record, Report of Jose T. Castro). Inside the big cell, Villaflor (Tisoy) shouted: "Tumabi ang Bisaya!" ("Visayans go to the sides"). Guillermo Ignacio alias Pilay, an inmate of the big cell, placed pieces of wood and a blanket on the door to keep it closed (16 tsn July 25, 1967). According to the eyewitnesses, Arsenio Guevarra,, Juan del Rosario (a victim), and Roberto Rodrigo, all prisoners, the, inmates from the big cell, who joined the sixteen raiders from the three cells in assaulting the victims, were (1) Rodolfo Apolinario, (2) Maximo Apolinias alias Max, (3) Domingo Astrologia alias Blackie, (4) Jose Barbajo alias Joe, (5) Catalino Cabcaban alias Inday, (6) Rodolfo Carballo alias Rudy, (7) Cresencio Cuizon alias Sianong Kulot, (8) Francisco Dionisio (he pleaded guilty), (9) Elino Duran, (10) Jose Francisco alias Karate. (11) Guillermo Ignacio alias Pilay, (12) Roberto Pangilinan alias Pagong, (13) Rolando Pan (14) Eugenio Provide, Jr. alias Junior, (15) Romeo Ricafort alias Romy, (16) Marcelo Sardenia and (17) Angel Tagana. Some of these seventeen prisoners destroyed the floor of the big cell removed the wood therefrom and used the pieces of wood in clubbing to death some of the victims. The assaulted prisoners, who were unarmed, did not resist the attack. Many of them were lying flat on the floor with raised hands or clinging to the walls made of steelmatting. The affray lasted for about an hour. Although

three whistles were sounded at the start of the massacre and prison officials rushed to the corridor near the big cell, they could not do anything because the door was locked and the key was held by one of the raiders. No one among the assailants was injured. The offenders at first did not surrender to prison officials who had arrived at the scene after the alarm was sounded. It was only after they were assured that they would not be maltreated that Abella advise his companions to surrender. Villaflor gathered all the weapons used by his group. He gave them and the bunch of keys to Geronimo Jorge, the overseer of the penal colony, through the holes of the steel-matting. Those weapons consisted of five sharppointed wooden daggers, seven sharp- pointed aluminum daggers, three wire ice picks, two bamboo ice picks, two Gillete blades with wooden handles, a stone wrapped with cloth (caburata), a wooden club (Reynon's balila) and twenty-two pieces of wood. Ten victims, Identified as (1) Romeo Bulatao, (2) Manalo Castillo, (3) Jose Castro, (4) Gualberto Fuentes, (5) Jose Magpantay, (6) Severino Pacon, (7) Carlito Padilla, (8) Generoso Palino, (9) Jacinto Refugia and (10) Delfin San Miguel, were pronounced dead on arrival at the penal colony hospital. Salvador Abique Demetrio Camo, Manuel Cayetano and Armando Sanchez died in that hospital. The fourteen victims died of shock, cerebral hemorrhage and severe external and internal hemorrhage. Three other victims survived. Reynon sustained a lacerated wound on his eyebrow and a stab wound on the left shoulder. He was confined in the hospital for nineteen days. Juan del Rosario, a prisoner in the big cell suffered a lacerated wound in the head and six incised wounds on the right cheek, mid-anterior side of the neck, right side of the neck and the left arm. Bartolome de Guzman had a lacerated wound on the head, two incised wounds at the nape and at the left hypochondriac region, a stab wound on the neck which penetrated the larynx and two superficial punctured wounds on the left and right sides of the chest.

The examining physician testified that Reynon, Del Rosario and De Guzman would have died had there been no timely medical attendance. In July, 1965 the statements of several jail inmates were taken by the prison investigator. They were sworn to before the municipal judge of Panabo. On September 24, 1965 Vicente B. Afurong, supervising prison guard and senior investigator of the Davao Penal Colony, filed in the municipal court of Panabo a complaint for multiple murder and multiple frustrated murder against thirty-seven prisoners of the penal colony who allegedly took part in the assault (Criminal Case No. 1773). The accused waived the second stage of the preliminary investigation. On October 22, 1965, a special counsel of the provincial fiscal's office filed an information in the Court of First Instance of Davao, Davao City Branch II, charging the thirty-seven accused with multiple murder and multiple frustrated murder (Criminal Case No. 9405). As specified in the information, at the time the massacre occurred the thirty-seven accused were quasi-recidivists because they were serving sentences for different crimes after having been convicted by final judgment, as indicated below: (1)Abella cualified theft. murder and frustrated murder;(2) Añover - murder, theft of large cattle and evasion of service of sentence; (3) Apolinario - qualified theft; (4) Apolinias - homicide; (5) Astrologia - robbery, homicide, frustrated homicide and qualified theft; (6) Barbajo robbery with habitual delinquency; (7) Bilbar - homicide; (8) Cabcaban - theft; (9) Carballo - homicide; (10) Cidro - frustrated murder and evasion of service of sentence;(11) Cuizon - murder and robbery; (12) Dionisio - murder, robbery in an inhabited house, six counts, and theft, four counts; (13) Duran homicide; (14) Enrigan - homicide; (15) Francisco robbery; (16) Galanto - homicide; (17) Gavilaguin murder, homicide and evasion of service of sentence; (18) Gaylan murder; (19) Gelle - murder; (20) Hernandez homicide; (21) Ignacio - murder, arson, evasion of service of sentence and frustrated murder; (22) Lagarto - murder; (23) Lorana - murder, frustrated murder, attempted robbery with homicide and robbery with serious physical

injuries; (24) Maldecir - murder, frustrated murder, double homicide and evasion of service of sentence: (25) Opsiar murder, frustrated murder and qualified theft; (26) Roberto Pangilinan - murder and theft, two counts, (27) Rolando Pangilinan - murder; (28) Provide, Jr. - theft, two counts and violation of articles 157 and 178 of the Revised Penal Code; (29) Quijano - murder; (30) Rebutaso - robbery; (31) Ricafort homicide and attempted homicide; (32) Sardenia robbery, four counts; (33) Taboy - murder; (34) Tagana robbery with physical injuries malicious mischief, slander by deed, slander with slight physical injuries and violations of Manila ordinances; (35) Villaflor- robbery, frustrated homicide and evasion of service of sentence; (36) Villarama - frustrated homicide and evasion of service of sentence, and (37) Villegas - murder and evasion of service of sentence. At the arraignment on March 5, 1966, the accused were represented by two lawyers de oficio. The information was read and explained to them in the Tagalog dialect. The nineteen accused who pleaded guilty were (1) Abella, (2) Anover, (3) Cidro, (4) Dionisio, (5) Enrigan (6) Galanto, (7) Gavilaguin, (8) Hernandez, (9) Lorana (10) Maldecir (11) Opsiar (12) Rolando Pangilinan (1.3) Quijano, (14) Rebutaso (15) Ricafort, (16) Taboy, (17) Villaflor, (18) Villarama and (19) Villegas. Of the nineteen who pleaded guilty, sixteen were "closeconfined" prisoners from the three small cells while three Dionisio Pangilinan and Ricafort were from the big cell. The seventeen accused who pleaded not guilty were (1) Apolinario, (2) Apolonias, (3) Astrologia, (4) Barbajo, (5) Bilbar, (6) Cabcaban, (7) Carballo, (8) Cuizon, (9) Duran, (10) Francisco, (11) Gaylan, (12) Gelle, (13) Lagarto, (14) Roberto Pangilinan, (15) Provide, Jr., (16) Sardenia and (17) Tagana. The thirty-seventh accused, Guillermo Ignacio, at first pleaded guilty but when he repudiated his extrajudicial confession, a plea of not guilty was substituted for his plea of guilty. After the pleas were entered, the trial court required the fiscal to present evidence as of those who had pleaded guilty. The fiscal submitted as exhibits the extrajudicial confessions of the nineteen accused which were sworn to before the municipal judge. At the fiscal's behest, the trial court ordered the interpreter to ask individually the nineteen accused whether they confirmed their confessions. In open court, all of them ratified their confessions. Typical of the confessions of the accused was Villaflor's statement taken by Ramon C. Alicarte, an investigator, on

July 14, 1965 at the so-called "reading center" of the penal colony. Villaflor said: 13. Q - Will you please narrate to me what you know about that unusual incident (in the morning of June 27, 1965)? A. — On that particular time and date, the inmates of the big cell opposite our cell were already inside their cell after they have eaten their noon meal and after they were locked in the big cell, we inmates in the closeconfinement cells were also sent out to have our noon meat But before we went out from our cells, we had already agreed that we are going to get inside the big cell and we also made an agreement that one of us from the closeconfinement cells by the name of Cadio (Gavilaguin) would find a way so that we can get inside the big cell. After Cadio had finished eating, he went to his cell and got a pillow which was to be sold to our contact inside the big cell. When Cadio was already at the aisle between the big cell and the close-confinement cells, our contact in the big cell by the name of Ruding Pakpak (Arsenio Guevarra) (should be Rodolfo Carballo) came near the door of their cell and asked Cadio if the pillow he (Cadio) was holding is made of cotton. Cadio then called the trusty police on duty, prisoner Numeriano Reynon, and requested him (Reynon) that he (Cadio) is going to pledge the said pillow to Ruding Pakpak (Carballo) but the said trusty was hesitant at first. When Cadio's request was seconded by Emerito Abella by saying. 'Sigi na pare. dahil sa wala kaming pangbili ng cigarilyo, Reynon opened the door of the big cell and Ruding Pakpak said: 'Abi, Abi tingnan ko ang unan kung bulak ang laman.' Then, I saw that Reynon was grappled by some of my coinmates from the close-confinement cell and then my companions began entering the big cell When, I also went inside the big cell Ruding Pakpak met me and said to me: 'Saan ang sa akin?' I pulled from my waist his weapon and gave it to him. I then began looking for the inmate who had incriminated me in the previous incident in the prison compound which caused my being jailed in the close-confinement cells. I then asked Pakpak as to where is Jimmy (Refugia) and he pointed Refugia to me who was then at the ceiling. When I saw Refugia. I also climbed and pulled him down. When he fell down the floor, I stabbed him and after that I left Jimmy (Jacinto) who was already fatally wounded. Then, I began looking for another of our enemies. I then saw Manuel Cayetano who was already wounded. I took the club from Emerito Abella and began beating Cayetano with it until I stopped beating him when I saw that he was

no longer moving. I gave the club to Kulot (Emerito Abella )and rested for a while. I then saw Pakpak grappling with Bundat and Pakpak called for me to help him. I went near them and I stabbed Bundat once. And Bundat lessened his grip from Pakpak then began stabbing Bundat (sic) and when he saw that Bundat is (was) dead, he mixed with the rest. Then, he asked me: 'Ano ba ito Cusa (Agustin ), aamin rin ba ako?'. Then, I told him: 'siempre tapos na rin iyon and he kept quiet. I then continued my rest until at (sic) the employees and guards arrived at the jail. While the rest of my companions continued stabbing and beating our victims, I rested. (EXH. B, pp. 63-64, Record Gavilaguin's narrative of the massacre is as follows: 15. Q. - Will you narrate to me the story of said incident? A. — At about 11:55 a. m., June 27, 1965, we were sent out of the cell for our lunch. After the lunch, I called the jailer (trusty police) the person of Reynon and told him 'Pare, we finished our meal. Please come and I'll tell you something.' Then, he approached and said: 'What?' 'I have a pillow to be given to Rudy Pakpak for sale. You may inspect it if you wish.' After (he) inspected, he called Rudy Pakpak and said: 'Will you buy this pillow?" and Rudy said. - 'Open the door so that I can see it.' Reynon opened the door and when it was opened, Sofronio Villegas (prisoner) held him (Reynon) tightly, and I grabbed the key from the hand of Reynon. When I got (it), I pushed him away and opened the door. When I got inside the cell I said: 'Visaya at Ilocano ay tumabi.' My companions followed me inside in the big cell and I told them to watch on the door, I saw trusty police Budoy and (he) closed the door and said.- 'Mamatay kayong lahat diyan.' When I went to the middle part of the big cell I met Abiki having Sigi- sigi tatoo. I stabbed him and he was able to grab the weapon (sharp- pointed stakes) taken from me. When he held my hand, he told me: 'Kalugar (sic), Pilay, you help me. Tulongan mo ako. Malaki masyado ito.' Pilay approached us and I gave him the blade and he used the same to cut off the neck of Abiki. Abiki released me and I continued stabbing for several others (sic). When I saw him down, I left him and went to the others. I saw some Sigi-sigi members. I also stabbed them after which I told Rudy Pakpak: 'Hilahin mo dito and mga patay.' I saw some who were still alive and I told 'Beat them on the head with the wooden clubs.' Afterwards, the employees arrived and shouted: 'You surrender' and we called Mr. Jorge for whom we made the surrender by

giving to him our weapons such as sharpened stakes and others. Then, we were ordered to go down asked with hands tied and thereafter, we were instructed to go to the place near the toilet until the Judge arrived. The dead ones were brought down ... (Exh. E, pp. 76-77 or 55-56, Record). The trial court forthwith rendered a partial decision convicting the nineteen accused, who pleaded guilty, of the complex crime of multiple murder and multiple frustrated murder, qualified by treachery and premeditation (alleged in the information) and with the special aggravating circumstance of quasi-recidivism which was not offset by their plea of guilty In addition, recidivism, which was alleged in the information, was appreciated against Abella, Anover, Cidro, Dionisio, Enrigan, Galanto, Gavilaguin, Fernandez, Lorana, Maldecir, Opsiar, Rolando Pangilinan, Quijano, Ricafort, Taboy, Villaflor and Villegas. Reiteration. which was also alleged in the information, was appreciated against Abella, Gavilaguin, Maldecir, Villaflor, Villarama and Dionisio. Eighteen accused who pleaded guilty were sentenced to death. Rebutaso the nineteenth accused who also pleaded guilty, was sentenced to cadena perpetua (should be reclusion perpetual. All of them were ordered to pay solidarily an indemnity of six thousand pesos to the heirs of each of the fourteen victims (Decision of March 5, 1966, p. 238, Expediente of Criminal Case No. 9405). Those who were convicted were sent to the national penitentiary. The eighteen accused (including Ignacio) who pleaded not guilty were tried. Upon motion of the fiscal, on the ground of lack of evidence, the trial court dismissed the case as to Perfecto Bilbar (page 299, Expediente). After trial, the lower court in its decision of September 14, 1969 convicted twelve of the said eighteen defendants, namely, (1) Apolonias, (2) Astrologia, (3) Barbajo, (4) Cabcaban, (5) Carballo, (6) Cuizon, (7) Duran, (8) Francisco, (9) Ignacio, (10) Pangilinan, (11) Provido, Jr. and (12) Tagana, of the complex crime of multiple murder and multiple frustrated murder with the aggravating circumstances of premeditation and quasi-recidivism (treachery was not mentioned).

The trial court sentenced to death each of the said twelve accused (in addition to the eighteen "close-confined" prisoners who pleaded guilty and were already sentenced to death in the trial court's 1966 partial decision) and ordered them to pay solidarily an indemnity of six thousand pesos to the heirs of each of the fourteen victims, namely, Abique, Bulatao, Camo, Castillo, Castro, Cayetano, Fuentes, Magpantay, Pacon, Padilla, Palino, Refugia, Sanchez and San Miguel. The twelve defendants were further ordered to pay solidarily an indemnity of three thousand pesos to each of the frustrated murder victims, Numeriano Reynon, Juan del Rosario and Bartolome de Guzman. For lack of evidence, a verdict of acquittal was rendered for six accused, namely, Apolinario, Bilbar, Gaylan, Gelle, Lagarto and Sardenia (Decision of September 14, 1969, page 400, Expediente). So, thirty of the thirty-seven accused were sentenced to death. The case of Rebutaso who was sentenced tocadena perpetua and who did not appeal, is not under review. The death sentence imposed upon Astrologia is likewise not under review because it was not promulgated. After the trial, he was returned to the national penitentiary for security reasons. On October 10, 1969 he was erroneously paroled because the Board of Pardons and Parole was not informed that he was sentenced to death in the Davao court's decision of September 14, 1969 (Pages 413-4 of Expediente and pages 1, I -D 2 and 159, Rollo). After the rendition of that decision or during the pendency of this case, death ended the agonies of ten of the twentynine accused who were sentenced to death. The ten dead defendants were Anover Cidro, Cuizon, Galanto, Maldecir Opsiar, Roberto Pangilinan, Rolando Pangilinan, Ricafort and Villaflor (Pages 98, 125, 171, 176, 181, 212, 336-B, 662, 717 and 750, Volumes I and II of the Rollo). The death penalty imposed on the remaining nineteen accused named in the title of this case (Including Abella, Apolonias and Villegas who escaped from confinement, page 158, Rollo), is the one under automatic review "as law and justice shall dictate".

Review of death sentence on those who pleaded guilty. — It may be recapitulated that of the nineteen accused in the death row, ten, namely (1) Abella, an escapee, (2) Dionisio, (3) Enrigan (4) Gavilaguin. (5) Hernandez, (6) Loraña (7) Quijano, (8) Taboy, (9) Villarama (he allegedly killed on February 12, 1976 a fellow prisoner in the national penitentiary, page 712, Volume II of Rollo), and (10) Villegas, an escapee, pleaded guilty upon arraignment and in open court ratified their extrajudicial confessions which were sworn to before the municipal judge. They were sentenced to death in the trial court's 1966 partial decision.

follow is to take such evidence as are available and necessary in support of the material allegations of the information, including the aggravating circumstances therein enumerated, rot only to satisfy the trial judge himself but also to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, fun significance and consequences of his plea" (People vs. Bulalake, 106 Phil. 767, 770. See People vs. Baluyot, L-32752-3, January 31, 1977, 75 SCRA 148).

Nine of the ten were among the sixteen "close-confined" prisoners in the three small cells who invaded the big cell. The tenth Dionisio, was confined in the big cell.

As already indicated in our recital of the proceedings below, the trial court, in order to comply with the procedure in capital cases when a plea of guilty is entered, required the fiscal to present evidence. The latter presented the confessions of those who pleaded guilty.

After a perusal of their confessions, we find that their admission of guilt therein is corroborated by evidence of thecorpus delicti or the fact that the massacre described therein actually took place,

It is true that the trial judge did not adhere to the ritualistic formula of explaining to the accused the meaning and consequences of their plea of guilty and the nature of the aggravating circumstances.

The requirements of section 20, Article IV of the Constitution with respect to extrajudicial confessions are not applicable to the confessions herein because they were taken before the effectivity of the Constitution or before January 17, 1973, Magtoto vs. Manguera, L- 3720102, Simeon vs. Villaluz, L-37424 and People vs. Isnani, L38929, all decided on March 3, 1975, 63 SCRA 4).

Presumably, the trial court did not do so, not only because the judicial confessions of the accused (pleas of guilty) were reinforced by their extrajudicial confessions, but also because it was cognizant of the fact that all the accused were quasi-recidivists who had already acquired experience in criminal proceedings and had, therefore, some comprehension of what a plea of guilty signifies.

Counsel de oficio contends that the accused made an improvident plea of guilty because the lower court did not apprise them of the meaning and consequences of their plea. Reliance is placed on the dictum that in capital cases "it is advisable for the court to call witnesses for the purpose of establishing the guilt and the degree of culpability of the defendant" (U.S. vs. Talbanos, 6 Phil. 541, 543).

We hold that in this case the accused did not make an improvident plea of guilty. As held in U.S. vs. Jamad, 37 Phil. 305, 318, it lies within the sound discretion of the trial judge whether he is satisfied that a plea of guilty has been entered by the accused with fun knowledge of the meaning and consequences thereof.

Also cited is the admonition that "judges are duty-bound to be extra solicitous in seeing to it that when an accused pleads guilty he understands fully the meaning of his plea and the import of an inevitable conviction" (People vs. Apduhan, Jr., 19491, August 30, 1968, 24 SCRA 798, 817).

People vs. Yamson and Romero, 109 Phil. 793, is a case similar to the instant case. In the Yamson case two prisoners in the New Bilibid Prison killed their fellow convict. At their arraignment for murder, they pleaded guilty with the assistance of a counsel de oficio. They were forthwith convicted by the trial court and sentenced to death, being quasi-recidivists

And the long settled rule is that in case a plea of guilty is made in capital cases "the proper and prudent course to

The accused appealed. This Court, in resolving the contention of the counsel de oficio that the accused had

made an improvident plea, held that the trial judge must have been fully satisfied that the accused entered the plea of guilty with fun knowledge of the meaning and consequences thereof. That observation may be applied to the instant case. (Same holding in People vs. Perete, 111, Phil. 943 and People vs. Yamson, 111 Phil. 406.) Review of the death sentence on those who pleaded not guilty. — As to the other nine accused, who pleaded not guilty and were tried and sentenced to death, namely, Apolonias, Barbajo, Cabcaban, Carballo, Duran, Francisco, Ignacio, Provide. Jr. and Tagana, it is necessary to make a painstaking examination of the evidence in order to ascertain whether their guilt was established beyond reasonable doubt. Those nine accused were in the big cell (bartolina). The prosecution's theory is that they conspired with the sixteen raiders from the three small cells to kill the fourteen victims and inflict injuries on the three other victims. 1. Maximo Apolonias alias Max. — He was born in Barrio Anas, Dimasalang, Masbate. He finished grade four. He was convicted of homicide by the Court of First Instance of Masbate and sentenced to an indeterminate penalty of six months and one day of prision correctional as minimum to six years and one day of prision mayor, as maximum. He was imprisoned in the national penitentiary on December 26, 1964. He arrived in the Davao Penal Colony on May 8, 1965. He was twenty-four years old when he testified on March 13, 1968. He testified that when the massacre occurred he climbed the wall of steel-matting. He allegedly did not know what transpired when the sixteen "close-confined" raiders entered the big cell. In his statement of August 9, 1965, he denied having joined the sixteen raiders. lie repeatedly declared that he could not have been involved in the massacre because he was a new arrival in the penal colony. The massacre took place fifty days after Ms arrival. Witness Guevarra said that he did not see Apolonias assaulting the victims (109 tsn November 16, 1966). Witnesses Del Rosario and Rodrigo implicated Apolonias but did not state definitely the acts perpetrated by the latter during the assault.

We find that the prosecution's evidence does net establish beyond reasonable doubt the guilt of Apolonias. As to him, it is not sufficient to justify the judgment of conviction. 2. Jose Barbajo alias Joe.— He is a native of Mabolo, Cebu City. He finished grade three. He was eighteen years old when he was convicted of robbery. The Court of First Instance of Cebu imposed upon him a penalty of six years and eight months of prision mayor (as a habitual delinquent he was not entitled to an indeterminate sentence) plus three years, six months and twenty-one days for habitual delinquency. He was received in the national penitentiary on July 9, 1964. He arrived in the Davao Penal Colony on September 13, 1964. He was twenty-five years old when he testified on March 12, 1968. He declared that he was sick when the massacre occurred. He climbed the wall of steel-matting. He said that he was not a member of any prison gang. Witness Guevarra identified Barbajo as a member —of the Oxo gang and as having beaten with a piece of wood one "Bandes" (108, 115 and 127 tsn November 17 and 18, 1966). Witness Del Rosario implicated Barbajo and witness Rodrigo definitely testified that Barbajo supplied to his companions the pieces of wood which they used in beating the victims (10 tsn July 25, 1967). 3. Catalino Cabcaban alias Inday.— He was born in Barrio Asagna, Tanjay, Negros Oriental. He finished the fourth grade. He was convicted of theft and evasion of service of sentence. He was confined in the national penitentiary starting August 29, 1962. He arrived in the Davao Penal Colony on May 15, 1964. He was twenty-six years old on October 20, 1967 when he testified. In his statement (Exh. DD), he admitted that he was a member of the Oxo gang but he denied that he helped the sixteen raiders in assaulting the victims. He testified that at the time the massacre was being perpetrated he was clinging to the wall made of steel-matting. His body was examined while he was on the witness stand. It was tattooed but not with the letters "OXO". Witnesses Guevarra and Del Rosario, the companions of Cabcaban in the big cell, testified that Cabcaban was a member of the Oxo gang and that he helped Abella's

group in attacking the members of the Sigue- Sigue gang in the big cell. Witness Rodrigo, a prisoner acting as a special policeman, pointed to Cabcaban as the person who beat Cabile with a piece of wood (4 tsn July 25, 1967). There is no victim surnamed Cabile, as reported in the transcript, but Rodrigo was probably referring to the victim named Salvador Abique who was also Identified by a witness as Tabique. The name "Cabile" might be an error in transcription. 4. Rodolfo Carballo alias Ruding Pakpak. — He was born in Villadolid, Negros Occidental. He resided at 958 Antipolo Street, Tondo, Manila. He finished grade six. He was convicted of homicide by the Court of First Instance of Manila and sentenced to six years and one day of prision mayor to twelve years and one day of reclusion temporal. He was brought to the New Bilibid Prison on December 8, 1962. He arrived in the Davao Penal Colony on June 20, 1964. He escaped from the penal colony on August 12, 1964 and was recaptured on March 15, 1965. He was twenty-seven years old when he testified on January 8, 1968. He admitted in his statement to the investigator that he was a member of the Oxo gang and had the Oxo tattoo mark. He testified that during the massacre he climbed the wag of steel-matting but someone pulled his feet and he fell down on the floor. Witness Guevarra testified that Gavilaguin, a closelyconfined prisoner, wanted to sell his pillow to Carballo (who is Identified in the confessions as Ruding Pakpak), a prisoner in the big cell. It was that ruse which started the commotion (9598 tsn November 16. 1966). Guevarra Identified Carballo as one of those who helped the sixteen raiders (107 tsn November 17, 1966). That testimony was corroborated by witnesses Del Rosario and Rodrigo. 5. Elino Duran. — He was born in Catbalogan, Samar. He finished grade five. He was convicted of homicide by the Court of First Instance of Samar and sentenced to six years and one day of prision mayor to fourteen years and eight months of reclusion temporal. He was brought to the national penitentiary on December 18, 1962. He arrived in the Davao Penal Colony on March 5, 1963. He was twentynine years old when he testified on March 12, 1968.

In his statement and testimony, he denied any participation in the massacre. He said that during the riot he climbed the wall of steel-matting. He said that he was not a member of the Oxo gang but he believed that he was counted as an Oxo sympathizer because he is a Visayan. He admitted that he executed a statement and that the contents thereof were true (Exh. EE). On the witness stand, he pointed to Ignacio alias Pilay, Tagana, Astrologia, Cabcaban and Carballo alias Rudy as among those who took part in the massacre. In his statement, he Identified Cuizon, Roberto Pangilinan, Rolando Pangilinan, Cabcaban, Lagarto, Apolonias, Astrologia, Ricafort, Carballo, Ignacio, Tagana and Dionisio as having taken part in the killings (See No. 12, Exh. EE ). Prosecution eyewitnesses Guevarra, Del, Rosario and Rodrigo Identified Duran as having ellaborated with the sixteen raiders in perpetrating the massacre. 6. Jose Francisco alias Karate. — He was born in Pila, Laguna and resided at San Andres Extension, Manila. He finished the first year of high school. He used to be a judo instructor. In 1964, he was convicted of robbery by the Court of First Instance of Manila and sentenced to imprisonment for two years and four months of prision correctional as minimum to eight years and one day of prision mayor, as maximum (Exh. J-5). He was confined in the national penitentiary on February 15, 1964. He was received in the Davao Penal Colony on May 15, 1964 and confined in the big cell on June 25, 1965, or two days before the riot, because he was suspected of having smuggled deadly weapons into the prison compound (pp. 93 or 115, Record). He was twenty- five years old when he testified on January 8, 1968. He declared that when the raiders entered the big cell he :stepped aside, climbed the wall of steel-matting and prayed. however, witness Guevarra Identified Francisco as a member of the Oxo gang who helped the raiders and who, armed with a wooden club, beat the victim, Gualberto Fuentes, who died (108, 114-115 and 127 tsn November 17 and 18, 1966). Witness Del Rosario included Francisco in his wholesale Identification of twelve assailants who helped the raiders from the small cells.

Counsel de oficio, who filed a brief for Francisco only, contended that the trial court erred in holding that Francisco was a co-conspirator. Said counsel alleged that Francisco was convicted of robbery (snatching) because he was framed up by a certain Patrolman Liwanag of the Manila police. According to counsel, Francisco and one Roberto Gonzales (an actor) had charged Liwanag with extorting money from the Karate Club, of which Francisco was a member, and, in revenge, Liwanag fabricated a complaint for robbery against Francisco who was convicted and sent to the Davao Penal Colony. No evidence was presented in the lower court by Francisco to prove that he was convicted on a trumped-up charge of robbery. 7. Guillermo Ignacio alias Pilay. — He was born in La Carlota, Negros Occidental. He finished grade five. He was convicted of murder, frustrated murder, arson and evasion of service of sentence. He was received in the national penitentiary on July 27, 1953. He arrived in the Davao Penal Colony on September 22, 1961. He escaped three times from prison (Exh. J-12). He was thirty-eight years old when he testified on March 12,1968. He declared that when the massacre began, he stood beside the steel-matting. He saw his fellow prisoner, Arsenio Guevarra (the prosecution witness), carrying a pillow. After the riot, he was investigated. He said that he did not read his statement but he was just made to sign it and he signed it so that he would not be maltreated. In his statement, he admitted he was a member of the Oxo gang. Guevarra said that he did not see Ignacio helping the group (108 tsn November 17, 1966). Witness Rodrigo, a prisoner acting as a special policeman, identified Ignacio as a member of the Oxo gang and as the prisoner who, during the riot, covered the door of the big cell with a blanket and pieces of wood and who, armed with a wooden club, took part in beating the victims (1516 tsn July 25,1967). Witness Del Rosario, in his wholesale Identification of the twelve prisoners who took part in the assault, included Ignacio (222 tsn February 10, 1967).

8. Eugenie Provido, Jr. — He was born in Sta. Barbara, Iloilo. He finished the sixth grade. He was convicted of theft and violations of articles 157 and 178 of the Review Penal Code. He was received in the national penitentiary on December 3, 1959. He arrived in the Davao Penal Colony on February 29, 1964 (Exh. J-17). He was twentysix years old when he testified on July 10, 1968. He declared that when the sixteen raiders entered the big cell he was driven to a comer and was shielded by the other prisoners and in that situation he heard the shouts of the rioters. He said that he did not know what actually happened because he was solicitous about his own personal safety. He did not climb the steel- matting. He said that during the investigation of the case, he was told that he would be utilized as a State witness. He denied that he was a member of the Oxo gang. Witness Guevarra testified that he did not know Provido (90 tsn November 16, 1966). However, when he was asked to point to his (Guevarra's) companions in the big cell who helped Abella's group, Guevarra fingered Provido and Identified him as a member of the Oxo gang and as having beaten the victims with a piece of wood (Ibid, 108 and 11 5; 127 tsn Nov. 18, 1966). Witness Rodrigo Identified Provido as having beaten the deceased Jose Magpantay with a piece of wood (10-11 tsn July 25, 1967). Witness Del Rosario included Provido as among those who participated in the assault (222 tsn February 10, 1967). 9. Angel Tagana.—He was born in Dulag, Leyte. He finished grade two. He resided in Pandacan, Manila. He had six convictions for robbery with physical injuries, malicious mischief and slander by deed and violations of city ordinances. He was received in the national penitentiary on June 15, 1963. He arrived in the Davao Penal Colony on May 8,1965 (Exh. J-9). He was twenty-six years old when he testified on January 9, 1968. He declared that when the sixteen raiders entered the big cell and started stabbing his companions he ran to the side of the cell. He was not assaulted by anyone. In his statement, he admitted that he was a member of the Oxo gang (p. 119 or 143, Record). Witness Guevarra

Identified him as a member of that group and as having used a piece of wood in beating one victim (115 and 127 tsn November 17, 1966). Witnesses Del Rosario and Rodrigo also pointed to Tagana as one of those who helped Abella's group (222 tsn February 10, 1967 and 1415 tsn July 25, 1967). Counsels de oficio contend that the trial court erred in holding that there was a conspiracy among the accused. That contention has no basis in the evidence. The record supports the trial court's finding that "conspiracy can logically be inferred from the simultaneous and concerted acts of (the) sixteen raiders who, after putting down the guard and entering the big cell, joined and combined forces with their friends and associates-inmates of the big cell who were waiting for the go signal to commence the attack in pursuance of their criminal objective". The trial court added that the acts and conduct of the accused from the start of their aggression until the riot was suppressed were characterized "by a swift, united and concerted movement that could easily indicate a community of purpose, closeness of association and concurrence of will", as shown particularly by the order of the two "close-confined" prisoners, Abella and Villaflor, that the Visayans in the big cell should stay on one side so that it could be ascertained that they were the allies of the sixteen raiders. The conspiracy among the accused was manifest and indubitable. The massacre had been planned by the sixteen "close-confined" prisoners in collaboration with the other members of the Oxo gang in the big cell. Counsel de oficio assails the credibility of witnesses Guevarra and Del Rosario. These two witnesses were prisoners in the big cell. They had sufficient opportunity to observe what took place during the hour-long riot. Del Rosario was himself a victim. Counsel de oficio contends that reiteration is not aggravating because there is no evidence that the said accused had been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. On the contrary, according to counsel, the said accused were still serving sentence for their prior convictions.

Counsel's contention is correct as to Abella. Dionisio, Gavilaguin, Maldecir, Villaflor and Villarama to whom reiteration was considered aggravating. They were still serving sentence for their previous crimes at the time the riot occurred. In order that the aggravating circumstance of reiteration may be taken into account, it should be shown that the offender against whom it is appreciated had already served out his sentences for the prior offenses (People vs. Layson, 1-25177, October 31, 1969. 30 SCRA 92, 97). But since the accused are quasi-recidivists the fact that reiteration cannot be appreciated against them and that their Plea Of guilty is mitigating will not affect the imposition of the death penalty for the murders and frustrated murders which they had committed. The other contention of counsel de oficio that all the accused should be given the benefit of the extenuating circumstance of voluntary Surrender to the authorities is not correct. The accused did not surrender voluntarily and unconditionally. They rejected the initial requests for their surrender. They surrendered after Prison officials armed with guns demanded their surrender. They chose the person to whom they would surrender, namely, Jorge, the overseer. Defense counsel's contention that treachery and evident premeditation are not aggravating in this case is untenable. The accused, who were all armed, unexpectedly attacked the unarmed and defenseless Sigue-Sigueinmates in the big cell who had no means of escaping from that cell and who could not avoid their assaults. The victims did not offer any resistance. The accused had deliberately planned the attack as shown by the manner in which they executed the massacre. They provided themselves with improvised weapons. No one among the accused sustained any injuries or was exposed to any risk arising from any defense that the victims might have made. The victims were not able to make any retaliation. Moreover, there was abuse of superiority which absorbed cuadrilla In People vs. Layson, L-25177, October 31, 1969, 30 SCRA 92, the four accused, also inmates of the Davao Penal Colony, who were armed with bladed weapons, entered on January 17, 1964 the cell of their fellow prisoners, locked

the door thereof and stabbed him to death. It was held that the crime was murder aggravated by treachery, evident premeditation and quasi-recidivism. The Layson case is similar to the instant case. The difference between the two cases is that in the instant case, more prisoners were involved and there were seventeen victims. Motion for new trial. — On October 30, 1973 or after the Solicitor General had filed his brief, twenty of the thirty accused, who were sentenced to death, filed, personally or without the assistance of counsel, a motion for new trial. Those twenty movants are Anover alias Abarca (who died on June 18, 1976), Barbajo, Cabcaban, Carballo, Cuizon (who died on November 6, 1977), Dionisio, Duran, Enrigan Francisco, Gavilaguin, Hernandez, Ignacio, Lorana, Opsiar, (who died on April 2, 1974), Provide, Quijano, Tagana, Taboy, Villarama and Villegas. Of those twenty, ten accused, namely, Dionisio, Enrigan, Gavilaguin, Hernandez, Lorana, Opsiar, Quijano, Taboy, Villarama and Villegas had pleaded guilty, Nine of the ten were "close-confined" prisoners in the three cells. The tenth, Dionisio, was in the big cell. The other ten of the twenty accused were from the big cell. They pleaded not guilty and they were tried. The twenty movants alleged in their motion for new trial that those who pleaded guilty did so due to "the coercion, harassment and intimidation applied by the prison authorities" or due to "third degree" and other brutalities. They further alleged that one of the "fabricated (prosecution) witnesses" was Guillermo Ignacio who made a retraction and that another witness, Elino Duran, was forced to sign his affidavit. The Solicitor General commented that the grounds relied upon by the movants are not the grounds for a new trial under sections 2 and 3, Rule 121 and section 13, Rule 124 of the Rules of Court. He correctly observed that Ignacio and Duran were not utilized as prosecution witnesses. Action on the motion for new trial was deferred until the case is decided on the merits. After an evaluation of the said motion, we find that it is devoid of merit and is not in order.

The record does not show that Ignacio retracted his statement. Duran never claimed that he was intimidated into making his statement. Those movants who pleaded guilty were convicted on the basis of their confessions which they ratified during the trial. On the other hand, those who pleaded not guilty were given a fair trial. They testified and they had the opportunity to prove their innocence. Their testimonies (except Apolonias' testimony) did not generate any reasonable doubt as to their guilt. Propriety of the imposition of the death penalty on the eighteen accused — As to the fourteen deceased victims, the crime is murder qualified by treachery which absorbs abuse of superiority and cuadrilla As to those who pleaded guilty, that mitigating circumstance is offset by evident premeditation. Recidivism is aggravating as to some accused As to all the eighteen accused, quasi-recidivism is a special aggravating circumstance which justifies the imposition of the penalty for murder (reclusion temporal maximum to death) in its maximum period or death. The fiscal and the trial court treated the fourteen killings and the injuries inflicted on the three victims as a complex crime of multiple murder and multiple frustrated murder. The trial court imposed a single death penalty. However, the Solicitor General submits that the accused should be convicted of fourteen separate murders and three separate frustrated murders and punished, respectively, by fourteen death penalties and three penalties for the frustrated murders because the killings and injuries were effected by distinct acts. It is argued that article 48 of the Revised Penal Code is not applicable to this case. Cited in support of that stand is the ruling in U.S. vs. Ferrer, 1 Phil. 56 that "where the defendant has fired two shots, killing one party and wounding another, the acts constitute two distinct crimes, each of which must be tried separately". We hold that the Solicitor General's submission is not well taken. In the De los Santos case, supra, which involved two riots on two successive days in the national penitentiary wherein nine prisoners were killed (five on the first day and four on the second day), the fourteen members of the SigueSigue gang who took part in the killing were convicted of multiple murder (a complex crime) and not of nine separate murders. Only one death penalty was imposed. It was commuted to reclusion perpetua for lack of necessary votes.

There is no compelling reason for not deciding this case in the same way as the De los Santos case. The two cases are very similar. The ruling in the De los Santos case is predicated on the theory that "when, for the attainment of a single purpose which constitutes an offense, various acts are executed, such acts must be considered only as one offense", a complex one (People vs. Penas, 66 Phil. 682, 687. See People vs. Cu Unjieng, 61 Phil. 236, 302 and 906, where the falsification of one hundred twenty-eight warehouse receipts during the period from November 1930 to July 6, 1931, which enabled the accused to swindle the bank in the sum of one million four hundred thousand pesos was treated as only one complex crime of estafa through multiple falsification of mercantile documents and only one penalty was imposed). That holding in the De los Santos case is buttressed by some precedents. Thus, in People vs. Cabrera, 43 Phil. 64 and 82, 102- 103, where seventy-seven Constabularymen murdered six policemen (including the assistant chief of police) and two private citizens and gravely wounded three civilians, they were convicted of multiple murder with grave injuries, a complex crime. The eleven sergeants and corporals were Sentenced to death while the sixty-six privates were sentenced to reclusion perpetua (See People vs. Umali, 96 Phil. 185, re sedition and multiple murder.) In People vs. Sakam, 61 Phil. 27, nineteen Moros, forming part of a band of one hundred, massacred fourteen Constabularymen. They were charged and convicted of multiple murder, a complex crime. Their ring leader was sentenced to death. The other eighteen accused were sentenced to reclusion perpetua. In People vs. Lawas, 97 Phil. 975, where on a single occasion around fifty Maranaos were killed by a group of home guards (formerly Constabulary soldiers), the killing was held to be only one complex offense of multiple homicide because it 4 resulted from a single criminal impulse" and it was not possible to determine how many victims were killed by each of the accused. (See U.S. vs. Fresnido, 4 Phil. 522 where the killing of three Constabulary soldiers on a single occasion was punished as a single homicide.)

In People vs. Manantan, 94 Phil. 831, around eighty persons stationed on both sides of the highway in Sitio Salabusab, Bongabong, Nueva Ecija, fired at the group of Aurora Vda. de Quezon riding in five cars which were proceeding to Baler, Quezon Province. The group was going to attend the inauguration of a monument in honor of President Manuel L. Quezon. Killed as a result of the ambuscade were eleven persons, namely, Mrs. Quezon, Baby Quezon Felipe Buencamino III, Mayor Ponciano Bernardo of Quezon City, Primitive San Agustin, Antonio San Agustin, Pedro Payumo, two Constabulary lieutenants, one corporal and a soldier. Five persons were charged with multiple murder, a complex crime, for complicity in the ambuscade. The trial court sentenced them to death. They appealed. The case as to three of the accused was dismissed on the ground that their confessions were taken after they had been tortured. Two other accused, Pedro Manantan and Raymundo Viray, executed extrajudicial confessions. At the trial, they relied on alibis, which were not given credence. This Court imposed upon Manantan and Viray only one death penalty for the multiple murder but for lack of necessary votes, the penalty was reduced to reclusion perpetua. As persuasive authority, it may be noted that the Court of Appeals rendered the same ruling when it held that where a conspiracy animates several persons with a single purpose "their individual acts in pursuance of that purpose are looked upon as a single act — the act of execution — giving rise to a complex offense. The felonious agreement produces a sole and solidary liability: each confederate forms but a part of a single being" (People vs. Leano, 1 ACR 447, 461 per Albert, J., with Justices Pedro Concepcion, Moran, Sison and Paras concurring). In the Leaño case, a group of twenty-five persons armed with bolos, knives, sticks and other weapons, after shouting to one another "Remember the agreement! Don't be afraid!", attacked a group of excursionists coming from the Vintar Dam in Ilocos Norte, who were riding in a Ford coupe and omnibus. As a result of the attack, one excursionist was killed, three suffered lesiones menos graves and four suffered light injuries. The trial court convicted the assailants of homicide only. The Solicitor General recommended that they be convicted of lesiones menos graves and lesiones leves in addition to

homicide. The Court of Appeals held that the appellants were guilty of the complex crime of homicide with lesiones menos graves. The holding that there is a complex crime in cases like the instant case is similar to the rule in robbery with homicide, a special complex crime, where the number of persons killed on the occasion or by reason of the robbery does not change the nature of the crime. We have already stated that the conviction for multiple murder and multiple frustrated murder, as a complex crime, qualified by treachery (absorbing abuse of superiority and cuadrilla and aggravated by quasi-recidivism and evident premeditation (offset by plea of guilty) and recidivism, as to some accused, as shown in the record, should be affirmed. The death penalty was properly imposed in conformity with articles 48, 160 and 248 of the Revised Penal Code. The indemnity of six thousand pesos should be increased to twelve thousand pesos for each set of heirs of the fourteen victims.

However, justice should be tempered with mercy. Considering the circumstances which drove the accused to massacre their fellow prisoners, they deserve clemency. The death penalty should be commuted to reclusion perpetua. The following observations of this Court in the De los Santos case have some relevancy to this case: But the members of the Court cannot in conscience concur in the death penalty imposed, because they find it impossible to ignore the contributory role played by the inhuman conditions then reigning in the penitentiary, vividly described by the trial judge in his decision. It is evident that the incredible overcrowding of the prison cells, that taxed facilities beyond measure and the starvation allowance of ten centavos per meal for each prisoner, must have rubbed raw the nerves and dispositions of the unfortunate inmates, and predisposed them to all sorts of violence to seize from their owners the meager supplies from outside in order to eke out their miserable existence. All this led inevitably to the formation of gangs that preyed like wolf packs on the weak, and ultimately to pitiless gang rivalry for the control of the prisoners, abetted by the inability of the outnumbered guards to enforce discipline, and which culminated in violent riots. The government cannot

evade responsibility for keeping prisoners under such subhuman and Dentesque conditions. Society must not close its eyes to the fact that if it has the right to exclude from its midst those who attack it, it has no right at all to confine them under circumstances that strangle all sense of decency, reduce convicts to the level of animals, and convert a prison term into prolonged torture and slow death. (See People vs. Dahil, L-30271, June 15, 1979.) Justice Barredo believes that in a case like the instant case, where, since the commission of the multiple murder and multiple frustrated murder in 1965 or more than fourteen years ago, the accused have been in confinement and in fact they have been in confinement for other offenses even prior to 1965, the death penalty should be commuted to reclusion perpetua. WHEREFORE, following the precedent established in the aforecited De los Santos case, the death penalty imposed by the lower court is reduced to reclusion perpetua. The indemnity of six thousand pesos is increased to twelve thousand pesos. The indemnities for the frustrated murders are affirmed. Defendant Maximo Apolonias is acquitted on the ground of insufficiency of evidence. Costs de oficio. SO ORDERED.

*Complex Crimes (Complex Crime Proper)

G.R. No. L-1536

July 31, 1947

RICARDO PARULAN, Petitioner, vs. SOTERO RODAS, Judge of First Instance of Manila, and LUIS B. REYES, Assistant City Fiscal of Manila, Respondents. FERIA, J.: chanrobles virtual law library This is a motion for reconsideration of our resolution dated July 11, 1947, which reads as follows: Passing upon the petition for certiorari in G.R. No. L-1536, Ricardo Parulan vs. Sotero Rodas, etc. et al., praying for relief from the order of the respondent Judge of the Court of First Instance of Manila, dated July 8, 1947, denying petitioner's motion to quash the information filed in criminal case No. 3649 of said respondent Court as well as petitioner's motion for reconsideration and praying, further, for the issuance of a writ of preliminary injunction restraining the respondent Judge from arraigning the petitioner of July 12, 1947: the Court resolved to dismiss said petition on the ground that the Court of First Instance of Manila has jurisdiction over the complex offense of kidnapping with murder, the one charged in the information. . . . Section 48 of the Penal Code, providing for penalties for complex crime, says that "when an offense is a necessary means to commit the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." Therefore, the question for determination in the present case is whether the offense charged in the information is a complex crime of kidnapping and murder, the former as a necessary means for committing the latter.chanroblesvirtualawlibrary chanrobles virtual law library

In order to determine whether two offenses constitute a complex crime, we should not find out whether, in accordance with their definition by law, one of them is an essential element of the other, such as physical injuries which cause the death of the victim, or stealing of personal property without the consent of the owner through force or violence, for in such cases there would be only one single offense of homicide in the first and robbery in the second case. But we should take into consideration the facts alleged in a complaint or information and determine whether one of the two separate and different offenses charged therein was committed as a necessary means to commit the other offense; if it were the two offenses constitute one complex crime; otherwise the complaint or information charges two crimes or offenses independent from one another.chanroblesvirtualawlibrary chanrobles virtual law library For example, the crime of falsification of a private document is not in general, an essential element of the crime of estafa, because this offense may be committed through many and varied means; but if a defendant is charged in a complaint or information with having committed falsification of a private document as a means for committing estafa, the offense charged would be a complex offense of estafa through falsification. Also, abduction is, in general, not an essential element of rape because rape may be committed anywhere without necessity of forcibly abducting or taking the victim to another place for that purpose; but if the offense charged is that the defendant abducted or carried by force the victim from one place to another wherein the latter was raped by the former, the crime charged would be a complex crime of rape through abduction, the abduction being in such a case a necessary means to commit the rape. And although homicide or murder may be committed wherever the victim may be found, yet if the charge in a complaint or information is that the victim was kidnapped and taken to another distant place in order to demand ransom for his release and kill him if ransom is not paid, the offense charged would evidently be a complex crime of murder through kidnapping, the latter being a necessary means to commit the former.chanroblesvirtualawlibrary chanrobles virtual law library The pertinent part of the information reads as follows: That on or about the 10th day of June, 1947, in the City of Manila, Philippines, the said accused, being then private individuals, conspiring and confederating together and all helping one another, did then and there wilfully, unlawfully, feloniously, and for purpose of extorting ransom from one Arthur Lee or of killing him if the desired amount of money could not be given, kidnap, carry away in an automobile, detain, and later, after having taken him to an uninhabited place by means of a motor boat, with treachery, to wit: while the said Arthur Lee was deprived of his liberty and was very weak as a result of the physical injuries which had been previously inflicted upon him by the said accused, fire upon him with a .45 caliber pistol several shots thru the chest and head, fracturing the right 5th and 6th ribs and the skull and lacerating the brain, thereby inflicting upon him physical injuries which directly caused the death of the said Arthur Lee almost instantaneously. From a cursory examination of the foregoing it clearly appears that the crime charged is kidnapping and murder and the former was committed by the defendants as a necessary means "for the purpose of extorting ransom from the victim or killing him if the desired amount of money could not be given," that is, that the defendants had to kidnap or carry the victim to a faraway and secluded place in order to better secure the consent of the victim through fear to pay the ransom, and kill him with certain sense of impunity and certainty that no other person may witness the commission of the offense by the defendants if the victim refused to accede to their demand, and that in fact he was killed by the defendants because of his refusal to pay the ransom. The crime charged being a complex crime of kidnapping and murder, the court of first instance of any province in which any one of the essential elements of said complex offense has been committed, has jurisdiction to take cognizance of the offense; and, therefore, the Court of First Instance of Manila from where the victim was kidnapped has jurisdiction over the offense committed in Manila and continued all the way to the place where the victim was taken and murdered. The motion for reconsideration is therefore denied. *Complex Crimes (Complex Crime Proper) G.R. No. L-28232 February 6, 1971 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME JOSE Y GOMEZ, ET AL., defendants. JAIME JOSE

Y GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAÑAL Y SEVILLA, defendants-appellants. PER CURIAM:

The amended complaint filed in this case in the court below, reads as follows: The undersigned complainant accuses JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR. Alias "BOY," EDUARDO AQUINO Y PAYUMO alias "EDDIE" and ROGELIO CAÑAL Y SEVILLA alias "ROGER," as principals, WONG LAY PUENG, SILVERIO

GUANZON Y ROMERO and JESSIE GUION Y ENVOLTARIO as accomplices, of the crime of Forcible Abduction with rape, committed as follows: That on or about the 26th day of June, 1967, in Quezon City, and within the jurisdiction of this Honorable Court, the above-named principal accused, conspiring together, confederating with and mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, with lewd design, forcibly abduct the undersigned complainant against her will, and did, then and there take her, pursuant to their common criminal design, to the Swanky Hotel in Pasay City, where each of the four (4) accused, by means of force and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned complainant against her will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the civil code. That WONG LAY PUENG, SILVERIO GUANZON y ROMERO, and JESSIE GUION y ENVOLTARIO without taking a direct part in the execution of the offense either by forcing, inducing the principal accused to execute, or cooperating in its execution by an indispensable act, did, then and there cooperate in the execution of the offense by previous or simultaneous acts, that is, by cooperating, aiding, abetting and permitting the principal accused in sequestering the undersigned complainant in one of the rooms of the Swanky Hotel then under the control of the accused Wong Lay Pueng, Silverio Guanzon y Romero and Jessie Guion y Envoltario, thus supplying material and moral aid in the consummation of the offense. That the aforestated offense has been attended by the following aggravating circumstances: 1. Use of a motor vehicle. 2. Night time sought purposely to facilitate the commission of the crime and to make its discovery difficult;

3. Abuse of superior strength; 4. That means were employed or circumstances brought about which added ignominy to the natural effects of the act; and 5. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for the commission. CONTRARY TO LAW. Upon arraignment, Basilio Pineda, Jr. pleaded guilty to the charge imputed in the above-quoted amended complaint; however, in an order dated July 11, 1967, the court reserved judgment "until such time as the prosecution shall have concluded presenting all of its evidence to prove the aggravating circumstances listed in the complaint." Upon the other hand, the rest of the defendants went to trial on their respective pleas of not guilty. After the merits, the court below rendered its decision on October 2, 1967, the dispositive portion of which reads as follows: WHEREFORE, the Court finds the accused Jaime Jose, Rogelio Cañal, Eduardo Aquino and Basilio Pineda, Jr. guilty beyond reasonable doubt of the crime of forcible abduction with rape as described under Art. 335 of the Revised Penal Code, as amended, and hereby sentences each of them to the death penalty to be executed at a date to be set and in the manner provided for by law; and each to indemnify the complainant in the amount of ten thousand pesos. On the ground that the prosecution has failed to establish a prima facie case against the accomplices Wong Lay Pueng, Silverio Guanzon y Romero, and Jessie Guion y Envoltario, the Motion to Dismiss filed for and in their behalf is hereby granted, and the case dismissed against the aforementioned accused. Insofar as the car used in the abduction of the victim which Jaime Jose identified by pointing to it from the window of the courtroom and pictures of which were submitted and marked as Exhibits "M" and "M-1," and which Jaime Jose in his testimony admitted belonged to him, pursuant to Art. 45 of the Revised Penal

Code, which requires the confiscation and forfeiture of the proceeds or instruments of the crime, the Court hereby orders its confiscation. This case is now before us by virtue of the appeal interposed by Basilio Pineda, Jr., Edgardo Aquino, and Jaime Jose, and for automatic review as regards Rogelio Cañal. However, for practical purposes all of them shall hereafter be referred to as appellants. The complainant, Magdalena "Maggie" de la Riva, was, at the time of the incident, 25 years old and single; she graduated from high school in 1958 at Maryknoll College and finished the secretarial course in 1960 at St. Theresa's College. Movie actress by profession, she was receiving P8,000.00 per picture. It was part of her work to perform in radio broadcasts and television shows, where she was paid P800.00 per month in permanent shows, P300.00 per month in live promotional shows, and from P100.00 to P200.00 per appearance as guest in other shows. So it was that at about 4:30 o'clock in the morning of June 26, 1967, Miss De la Riva, homeward bound from the ABS Studio on Roxas Blvd., Pasay City, was driving her bantam car accompanied by her maid Helen Calderon, who was also at the front seat. Her house was at No. 48, 12th Street, New Manila, Quezon City. She was already near her destination when a Pontiac two-door convertible car with four men aboard (later identified as the four appellants) came abreast of her car and tried to bump it. She stepped on her brakes to avoid a collision, and then pressed on the gas and swerved her car to the left, at which moment she was already in front of her house gate; but because the driver of the other car (Basilio Pineda, Jr.) also accelerated his speed, the two cars almost collided for the second time. This prompted Miss De la Riva, who was justifiably annoyed, to ask: "Ano ba?" Forthwith, Pineda stopped the car which he was driving, jumped out of it and rushed towards her. The girl became so frightened at this turn of events that she tooted the horn of her car continuously. Undaunted, Pineda opened the door of Miss De la Riva's car and grabbed the lady's left arm. The girl held on tenaciously to her car's steering wheel and, together with her maid, started to scream. Her strength, however, proved no match to that of Pineda, who succeeded in pulling her out of her car. Seeing her mistress' predicament, the maid

jumped out of the car and took hold of Miss De la Riva's right arm in an effort to free her from Pineda's grip. The latter, however, was able to drag Miss De la Riva toward the Pontiac convertible car, whose motor was all the while running. When Miss De la Riva, who was being pulled by Pineda, was very near the Pontiac car, the three men inside started to assist their friend: one of them held her by the neck, while the two others held her arms and legs. All three were now pulling Miss De la Riva inside the car. Before she was completely in, appellant Pineda jumped unto the driver's seat and sped away in the direction of Broadway Street. The maid was left behind. The complainant was made to sit between Jaime Jose and Edgardo Aquino at the back seat; Basilio Pineda, Jr. was at the wheel, while Rogelio Cañal was seated beside him. Miss De la Riva entreated the appellants to release her; but all she got in response were jeers, abusive and impolite language that the appellants and threats that the appellants would finish her with their Thompson and throw acid at her face if she did not keep quiet. In the meantime, the two men seated on each side of Miss De la Riva started to get busy with her body: Jose put one arm around the complainant and forced his lips upon hers, while Aquino placed his arms on her thighs and lifted her skirt. The girl tried to resist them. She continuously implored her captors to release her, telling them that she was the only breadwinner in the family and that her mother was alone at home and needed her company because her father was already dead. Upon learning of the demise of Miss De la Riva's father, Aquino remarked that the situation was much better than he thought since no one could take revenge against them. By now Miss De la Riva was beginning to realize the futility of her pleas. She made the sign of the cross and started to pray. The appellants became angry and cursed her. Every now and then Aquino would stand up and talk in whispers with Pineda, after which the two would exchange knowing glances with Cañal and Jose. The car reached a dead-end street. Pineda turned the car around and headed towards Victoria Street. Then the car proceeded to Araneta Avenue, Sta. Mesa Street, Shaw Boulevard, thence to Epifanio de los Santos Avenue. When the car reached Makati, Aquino took a handkerchief from his pocket and, with the help of Jose, blindfolded Miss De la Riva. The latter was told not to shout or else she would

be stabbed or shot with a Thompson. Not long after, the car came to a stop at the Swanky Hotel in Pasay City The blindfolded lady was led out of the car to one of the rooms on the second floor of the hotel. Inside the room Miss De la Riva was made to sit on a bed. Her blindfold was removed. She saw Pineda and Aquino standing in front of her, and Jose and Cañal sitting beside her, all of them smiling meaningfully. Pineda told the complainant: "Magburlesque ka para sa amin." The other three expressed their approval and ordered Miss De la Riva to disrobe. The complainant ignored the command. One of the appellants suggested putting off the light so that the complainant would not be ashamed. The idea, however, was rejected by the others, who said that it would be more pleasurable for them if the light was on. Miss De la Riva was told to remove her stocking in order, according to them, to make the proceedings more exciting. Reluctantly, she did as directed, but so slowly did she proceed with the assigned task that the appellants cursed her and threatened her again with the Thompson and the acid. They started pushing Miss De la Riva around. One of them pulled down the zipper of her dress; another unhooked her brassiere. She held on tightly to her dress to prevent it from being pulled down, but her efforts were in vain: her dress, together with her brassiere, fell on the floor. The complainant was now completely naked before the four men, who were kneeling in front of her and feasting their eyes on her private parts. This ordeal lasted for about ten minutes, during which the complainant, in all her nakedness, was asked twice or thrice to turn around. Then Pineda picked up her clothes and left the room with his other companions. The complainant tried to look for a blanket with which to cover herself, but she could not find one. Very soon, Jose reentered the room and began undressing himself. Miss De la Riva, who was sitting on the bed trying to cover her bareness with her hands, implored him to ask his friends to release her. Instead of answering her, he pushed her backward and pinned her down on the bed. Miss De la Riva and Jose struggled against each other; and because the complainant was putting up stiff resistance, Jose cursed her and hit her several times on the stomach and other parts of the body. The complainant crossed her legs tightly, but her attacker was able to force them open.

Jose succeeded in having carnal knowledge of the complainant. He then left the room. The other three took their turns. Aquino entered the room next. A struggle ensued between him and Miss De la Riva during which he hit, her on different parts of the body. Like Jose, Aquino succeeded in abusing the complainant. The girl was now in a state of shock. Aquino called the others into the room. They poured water on her face and slapped her to revive her. Afterwards, three of the accused left the room, leaving Pineda and the complainant After some struggle during which Pineda hit her, the former succeeded in forcing his carnal desire on the latter. When the complainant went into a state of shock for the second time, the three other men went into the room again poured water on the complainant's face and slapped her several times. The complainant heard them say that they had to revive her so she would know what was happening. Jose, Aquino and Pineda then left the room. It was now appellant Canal's turn. There was a struggle between him and Miss De la Riva. Like the other three appellants before him, he hit the complainant on different parts of the body and succeeded in forcing his carnal lust on her. Mention must be made of the fact that while each of mention must be made the four appellants was struggling with the complainant, the other three were outside the room, just behind the door, threatening the complainant with acid and telling her to give in because she could not, after all, escape what with their presence. After the appellants had been through with the sexual carnage, they gave Miss De la Riva her clothes, told her to get dressed and put on her stockings, and to wash her face and comb her hair, to give the impression that nothing had happened to her. They told her to tell her mother that she was mistaken by a group of men for a hostess, and that when the group found out that she was a movie actress, she was released without being harmed. She was warned not to inform the police; for if she did and they were apprehended, they would simply post bail and later hunt her up and disfigure her face with acid. The appellants then blindfolded Miss De la Riva again and led her down from the hotel room. Because she was stumbling, she had to be carried into the car. Inside the car, a appellant Jose held her head down on his lap, and kept it in that position during the trip, to prevent her from being seen by others.

Meanwhile, the four appellants were discussing the question of where to drop Miss De la Riva. They finally decided on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just come from the studio. Pineda asked Jose to alight and call a taxicab, but to choose one which did not come from a well-known company. Jose did as requested, letting several taxicabs pass by before flagging a UBL taxicab. After they warned again Miss De la Riva not to inform anyone of what had happened to her, appellant Canal accompanied her to the taxicab. The time was a little past 6:00 o'clock. When Miss De la Riva was already inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following them; and each time the driver answered her in the negative. It was 6:30 o'clock — or some two hours after the abduction — when Miss De la Riva reached home. Her mother, her brother-in-law Ben Suba, as well as several PC officers, policemen and reporters, were at the house. Upon seeing her mother, the complainant ran toward her and said, "Mommy, Mommy, I have been raped. All four of them raped me." The mother brought her daughter upstairs. Upon her mother's instruction, the complainant immediately took a bath and a douche. The older woman also instructed her daughter to douche himself two or three times daily with a strong solution to prevent infection and pregnancy. The family doctor, who was afterwards summoned, treated the complainant for external physical injuries. The doctor was not, however, told about the sexual assaults. Neither was Pat. Pablo Pascual, the police officer who had been sent by the desk officer, Sgt. Dimla, to the De la Riva residence when the latter received from a mobile patrol a report of the snatching. When Miss De la Riva arrived home from her harrowing experience, Pat. Pascual attempted to question her, but Ben Suba requested him to postpone the interrogation until she could be ready for it. At that time, mother and daughter were still undecided on what to do. On the afternoon of June 28, 1967, the complainant family gathered to discuss what steps, if any, should be taken. After some agonizing moments, a decision was reached: the authorities had to be informed. Thus, early on the morning of June 29, 1967, or on the fourth day after the incident, Miss De la Riva, accompanied by her lawyer, Atty. Regina O. Benitez, and by some members of the family, went to the Quezon City Police Department

Headquarters, filed a complaint and executed a statement (Exh. "B") wherein she narrated the incident and gave descriptions of the four men who abused her. In the afternoon of the same day, the complainant submitted herself ito a medico-internal examination by Dr. Ernesto Brion, NBI Chief Medico-Legal Officer. During the physical examination of the complainant by Dr. Brion on June 29, 1967, Pat. Pascual was also at the NBI office. There he received a telephone call from the police headquarters to the effect that one of the suspects had been apprehended. That evening, the complainant and Pat. Pascual proceeded to the headquarters where Miss De la Riva identified appellant Jaime Jose from among a group of persons inside the Office of the Chief of Police of Quezon City as one of the four men he abducted and raped her. She executed another statement (Exh. "B-1") wherein she made a formal identification of Jose and related the role played by him. At about 9:00 o'clock of the same evening, appellant Jose executed a statement (Exh. "I") before Pat. Marcos G. Viñas. In his statement, which was duly sworn. Jose admitted that he knew about, and was involved in, the June 26 incident. He named the other line appellants as his companions. Jose stated, among other things, that upon the initiative of Pineda, he and the other three waited for Miss De la Riva to come out of the ABS Studio; that his group gave chase to the complainant's car; that it was Pineda who blindfolded her and that only Pineda and Aquino criminally assaulted the complainant. After Exh, "I" was executed by Jose, an informant furnished Pat. Vinas with a picture of appellant Edgardo Aquino. The picture was shown to Miss De la Riva, who declared in her sworn statement (Exh. "B-3") that the man in the picture was one of her abductors and rapists. The same picture was shown to Jose, who, in another sworn statement (Exh. "I-l"), identified the man in the picture as appellant Aquino. After the apprehension of Jose, the other three soon fell into the hands of the authorities: Pineda and Cañal on July 1, 1967, in Lipa City, and Aquino on July 5, 1967, in the province of Batangas. On the evening of July 1, 1967. Miss De la Riva pointed to Pineda and Cañal as among the four persons who abducted and raped her. She picked them out from among several person in the Office of the Chief of Police of Quezon City. Later in the same evening, Miss De

la Riva executed a sworn statement (Exh. B-2)wherein she made the same identification of the two appellants from among a group of persons in the Office of the Chief of the Detective Bureau, adding that appellant Cañal had tattoo marks on his right hip. After the identification, one of the policemen took appellant Cañal downstairs and undressed him, and he saw, imprinted on the said appellant's right hip, the words "Bahala na Gang." Appellant Cañal and Pineda executed and swore to separate statements on the day of their arrest. In his statement (Exh. "G"), appellant Cañal confirmed the information previously given by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Appellant Cañal admitted that all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned the complainant yielded her body to him on condition that he would release her. Pineda executed a statement (Exh. "J") stating that he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having sexual intercourse with him. In his medical report (Exh. "K"), Dr. Brion noted the presence of multiple contusions and bruises on different parts of the complainant's body, as well as of genital injuries. On the witness stand the doctor was shown several photographs of the complainant taken in his presence and under his supervision. With the aid of the photographs and the medical reports, the doctor explained to the court that he found contusions or bruises on the complainant's chest, shoulders, arms and fore-arms, right arm index finger, thighs, right knee and legs. He also declared that when he was examining her, Miss De la Riva complained of slight tenderness around the neck, on the abdominal wall and at the sites of the extragenital physical injuries, and that on pressing the said injuries, he elicited a sigh of pain or tenderness on the part of the subject. The injuries, according to Dr. Brion, could have been caused blows administered by a closed fist or by the palm of the hand, and could have been inflicted on the subject while she was being raped. It was the doctor's opinion that they could have been sustained on or about June 26, 1967. In connection with the genital examination, the doctor declared that he found injuries on the subject's

genitalia which could have been produced by sexual intercourse committed on June 26, 1967. He said that he failed to find spermatozoa. He explained, however, that spermatozoa are not usually found in the vagina after the lapse of three days from the last intercourse, not to mention the possibility that the subject might have douched herself. The three appellants who pleaded not guilty (Jose, Aquino and Cañal) took the witness stand. We quote hereunder the portions of the decision under review relative to the theory of the defense: Their story is that they and their coaccused Pineda had gone to the Ulog Cocktail Lounge somewhere in Mabini street in Manila, and there killed time from 9:30 in the evening of June 25 until closing time, which was about 3:30 in the early morning of the next day. At the cocktail lounge they had listened to the music while enjoying some drinks. Between them they had consumed a whole bottle of whisky, so much so that at least Aquino became drunk, according to his own testimony. They had been joined at their table by a certain Frankie whom they met only that night. Come time to go home, their new acquaintance asked to be dropped at his home in Cubao. The five men piled into the red-bodied, black topped two-door convertible Plymouth (Pontiac) car of Jaime Jose, and with Pineda at the wheel repaired to Cubao After dislodging their new friend, Pineda steered the car to España Extension to bring Aquino to his home in Mayon Street. But somewhere in España Extension before the Rotonda a small car whizzed to them almost hitting them. They saw that the driver was a woman. Pineda gave chase and coming abreast of the small car he shouted, "Putang ina mo, kamuntik na kaming mamatay." The woman continued on her way. Now Pineda saying "let us teach her a lesson," sped after her and when she swerved ostensibly to enter a gate, Pineda

stopped his car behind being hurriedly got down, striding to the small car, opened the door and started dragging the girl out. Both Jose and Aquino confirm the presence of another woman inside the girl's car, who helped the girl struggle to get free from Pineda's grip; and that the struggle lasted about ten minutes before Pineda finally succeeded in pushing the girl into the red convertible. All the three accused insist they did nothing to aid Pineda: but they also admit that they did nothing to stop him. Now the defense contends that Pineda cruised around and around the area just to scare the girl who was in truth so scared that she begged them to let her be and return her to her home. She turned to Jose in appeal, but this one told her he could net do anything as the "boss" was Pineda. Aquino heard her plead with Jose "do you not have a sister yourself?" but did not bear the other plea 'do you not have a mother?' Then Pineda stopped at the corner of the street where he had forcibly snatched the girl presumably to return her, but then suddenly changing his mind he said, 'why don't you do a strip tease for us. I'll pay you P1,000.00 and the girl taunted, 'are you kidding?': that after a little while she consented to do the performance as long as it would not last too long and provided the spectators were limited to the four of them. Pineda sped the car until they got to Swanky Hotel where he and Maggie alighted first, but not before Maggie had borrowed a handkerchief from one of them to cover her face as she went up the Hotel. The three followed, and when they saw the pair enter a room, they quickly caught up. All the three accused testify that as soon as they got into the room, Maggie de la Riva asked the boys to close the windows before

she. undressed in front of them. They themselves also removed their clothing. Two of them removed their pants retaining their briefs, while Boy Pineda and Cañal stripped to the skin "because it was hot." The three accused declared that they saw Boy Pineda hand P100.00 to Maggie and they heard him promise her that he would pay the balance of P900.00 later. Whereupon, the show which lasted about 10 minutes began with the naked girl walking back and forth the room about 4 to 5 times. This accomplished, all of them dressed up once more and the three accused (Jaime Jose, Eduardo Aquino and Rogelio Cañal) left the room to wait in the car for Boy Pineda and Maggie de la Riva who were apparently still discussing the mode of payment of the balance. Three minutes later Maggie de la Riva and Boy Pineda joined them. Now, the question of how and where to drop Maggie came up and it is testified to by the accused that it was Maggie's idea that they should drop her near the ABS Studio so that it would appear as if she had just come from her work. Jaime Jose was picked by the police on the morning of June 29 along Buendia Avenue. Aquino testifies how, on June 29 Pineda went to him with a problem. He did not have the P900.00 with which to pay Maggie the balance of her "show" and he was afraid that if he did not pay, Maggie would have her goons after him. He wanted Aquino to go with him to Lipa City where he had relatives and where he could help raise the money. Aquino readily obliged, and to make the company complete they invited Cañal to join them. They used another car of Jaime Jose, different from the one they had used the day before. At Lipa, Aquino detached himself from his compassions and proceeded alone to the barrio allegedly to visit his relatives. In the meantime his two

companions had remained in the City and had, according to Canal, gone to live in a house very close to the municipal hall building. They later moved to another house where the PC and Quezon City police posse found and arrested them. Aquino was the last to be apprehended, when having read in the newspapers that he was wanted, he surrendered on July 5 to Mrs. Aurelia Leviste, wife of the governor of Batangas. The striptease-act-for-a-fee story on which the defense theory is anchored, defies one's credulity and reason, and had utterly to counteract the evidence for the prosecution, particularly the complainant's testimony and Dr. Brion's medical report and testimony. We quote with approval the able dissertion of the trial judge on this point: As main defense in the charge of rape, the three accused advance the proposition that nothing happened in Swanky Hotel except a strip-tease exhibition which the complaint agreed to do for them for fee of P1,000.00, P100.00 down and the balance to be paid "later." The flaw in this connection lies in its utter inverisimilitude. The Court cannot believe that any woman exists, even one habitual engaged in this kind of entertainment (which Maggie de la Riva has not been proven to be) who would consent (and as easily and promptly as defense claims) to do a performance, not even for all money in the worlds after the rough handling she experienced from these wolves in men's clothing who now hungered for a show. There is no fury to match a woman stirred to indignation. A woman's pride is far stronger than her yen for money, and her revenge much more keen. The Court cannot believe that after the rudeness and meanness of these men to her, Maggie would in so short an interval of time forget her indignation and so readily consent to satisfy their immoral curiosity about her. The

woman in her would urge her to turn the men's hankering as a weapon of revenge by denying them their pleasure.

desperate attempt to save the day for the accused. It truly underscores the hopelessness of their stand and projects all the more clearly their guilt.

Besides, the manner of payment offered for the performance is again something beyond even the wildest expectations. Assuming that the woman whom the accused had abducted was in this kind of trade assuming that the price offered was to her satisfaction, whom woman would be willing to perform first and be paid later? It is simply preposterous to believe that Maggie de la Riva should have consent to do a striptease act for a measly down-payment of P100.00 and the balance to be paid God knows when. Since when are exposition of the flesh paid on the installment basis? By the very precautious nature of their pitiful calling, women who sell their attractions are usually very shrewed and it is to be expected that they could demand full payment before curtain call. How was Maggie to collect later when she did not even know who these man were, where they lived, whether they could be trusted with a promise to pay later (!) whether she could ever find them again? If there is anything that had struck the Court about the complaint, it is her courage, her intelligence and her alertness. Only a stupid woman, and a most stupid one that, could have been persuaded to do what the defense want this Court to believe Maggie de la Riva consented to do.

Then there is the incident of the men's stripping themselves. Why was there need for this? The Court realizes that in its desperate need of an explanation for Maggie's positive identification of Cañal as the man with the tattoo mark on his right buttock, the defense concocted the sickeningly incident story that the four men removed their underclothing in the presence of a woman simply "because it was hot." What kind of men were these who were so devoid of any sense of decency that they thought nothing of adding insult to injury by not only inducing a woman a strip before them, but for forcing her to perform before a naked audience? And then they have gall to argue that "nothing" happened. For males of cold and phlegmatic blood and disposition it could be credible, but not for men of torrid regions like ours where quick passions and hot tempers are the rule rather than the exception!

Finally, it is odd that not one of these men should have mentioned this circumstances during their interview with anyone, either the press, their police interrogator, the person who negotiated their surrender (as in the case of Aquino) or even their counsel. One cannot escape the very strong suspicion that this story is a last ditch,

All of these consideration set aside, notwithstanding, it is quite obvious that the version of the defense has not been able to explain away a very vital piece of evidence of prosecution which, if unexplained, cannot but reduce any defense unavailing. The result of the physical (external and internal) examination conducted on the person of Maggie de la Riva in the afternoon of June 29, the pertinent findings of which quoted earlier in this decision, establish beyond doubt that at the time that Maggie de la Riva was examined she bore on her body traces of physical and sexual assault. The only attempt to an explanation made by the defense is either one of the following: (1) the insinuation that when Maggie de la Riva and Boy Pineda were left behind in the hotel room the bruises and the sexual attack could have taken place then. But then, the

defense itself says that these two persons rejoined the three after three or four minutes! It is physically impossible, in such a short time, for Boy Pineda to have attacked the girl and inflicted on her all of these injuries; (2) it was suggested by the defense that Maggie de la Riva could have inflicted all of those injuries upon herself just to make out a case against the accused. The examining physician rules out this preposterous proposition, verily it does not take much stretch of the imagination to see how utterly impossible this would be, and for what purpose? Was P900.00 which she had failed to collect worth that much selftorture? And what about all the shame, embarrassment and publicity she would (as she eventually did) expose herself to? If she really had not been raped would she have gone thru all of these tribulation? A woman does not easily trump up rape charges for she has much more to lose in the notoriety the case will reap her, her honor and that of her family, than in the redress she demands (Canastre 82-480; Medina, C.A. 1943 O.G. 151; Medina y Puno, CA O.G. 338; CA 55 O.G. 7666; Galamito, L-6302, August 25, 1954); (3) it could also be argued that the contusions and bruises could have been inflicted on Maggie during her struggle with Pineda when the latter pulled and pushed her into the red convertible car. The telltale injuries, however, discount this possibility, for the location in which many of the bruises and traumas were located (particularly on the inner portion of her thighs) could not have been cause by any struggle save by those of a woman trying to resists the brutal and bestial attack on her honor. In their Memorandum the accused contend that Maggie's sole and uncorroborated testimony should not

be rated any credence at all as against the concerted declaration of the the accused. In the first place, it is not correct to say that Maggie's declaration was uncorroborated — she has for corroboration nothing less than the written extra-judicial statements of Jose and Canal. But even assuming that Maggie stood alone in her statements, the cases cited by the accused in their Memorandum notwithstanding which the Court does not consider in point anyway, jurisprudence has confirmed the ruling that numbers is the least vital element in gauging the weight of evidence. What is more important is which of the declarations is the more credible, the more logical, the more reasonable, the more prone to be biased or polluted. (Ricarte 44 OG 2234; Damian CA-GR No. 25523, April 24, 1959). Besides, it should be borne in maid that in the most detestable crime of rape in which a man is at his worst the testimony of the offended party most often is the only one available to prove directly its commission and that corroboration by other eyewitnesses would in certain cases place a serious doubt as to the probability of its commission, so trial courts of justice are most often placed in a position of having to accept such uncorroborated testimony if the same is in regards conclusive, logical and probable (Landicho, VIII ACR 530). We shall now consider the points raised by the appellants in their briefs. 1. Appellants Jose, Aquino and Cañal deny having had anything to do with the abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act was purged at any taint of criminality by the complainant's subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated the existence of the element of lewd design. This line of defense has evidently leg no to stand on. The evidence is clear and overwhelming that all the appellants

participated in the forcible abduction. Miss De la Riva declared on the witness stand, as well as in her sworn statements, that they helped one another in dragging her into the car against her will; that she did not know them personally; that while inside the car, Jose and Aquino, between whom she was seated, toyed with her body, the former forcing his lips on hers, and the latter touching her thighs and raising her skirt; that meaningful and knowing glances were in the meanwhile being exchanged among the four; and that all of them later took turns in ravishing her at the Swanky Hotel. This testimony, whose evidentiary weight has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended complaint. In the light thereof, appellants' protestation that they were not motivated by lewd designs must be rejected as absolutely without factual basis. 2. The commission of rape by each of the appellants has, as held by the court below, likewise been clearly established. Jose, Aquino and Canal contend that the absence of semen in the complainant's vagina disproves the fact of rape. The contention is untenable. Dr. Brion of the NBI, who testified as an expert, declared that semen is not usually found in the vagina after three days from the last intercourse, especially if the subject has douched herself within that period. In the present case, the examination was conducted on the fourth day after the incident, and the complainant had douched herself to avoid infection and pregnancy. Furthermore, the absence of spermatozoa does not disprove the consummation of rape, the important consideration being, not the emission of semen, but penetration (People vs Hernandez, 49 Phil., 980). Aquino's suggestion that the abrasions on the cervix were caused by the tough tip of a noozle deliberately used by the complainant to strengthen her alleged fabricated tale of rape, is absurd, if not cruel. It is difficult to imagine that any sane woman, who is single and earning as much Miss Dela Riva did, would inflict injuries on her genital organ by puncturing the same with a sharply-pointed instrument in order to strike back at four strangers who allegedly would not pay her the sum of P900.00 due her for a striptease act. Besides, Dr. Brion testified that the insertion of such an instrument in the genital organ would not result in the kind of injuries he found in the mucosa of the cervix. 3. Other evidence and considerations exist which indubitably establish the commission of successive rapes by the four appellants. Upon Miss De la Riva's arrival at

her house in the morning of June 26, 1967, she immediately told her mother, " Mommy Mommy, I have been raped. All four of them raped me." This utterance, which is part of theres gestae, commands strong probative value, considering that it was made by the complainant to her mother who, in cases of this nature was the most logical person in whom a daughter would confide the truth. Aquino and Canal would make capital of the fact that Miss De la Riva stated to the reporters on the morning of June 26, that she was not abused. Her statement to the press is understandable. At that time the complainant, who had not yet consulted her family on a matter which concerned her reputation as well as that of her family, and her career, was not then in a position to reveal publicly what had happened to her. This is one reason why the complainant did not immediately inform the authorities of the tragedy that befell her. Another reason is that she was threatened with disfiguration. And there were, of course, the traumas found by Dr. Brion on different parts of the complainant's body. Could they, too, have been selfinflicted? Or, as suggested, could they possibly have been inflicted by appellant Pineda alone, when the story given by the other three is that Pineda and the complainant were left in the hotel room for only three or four minutes, and that they came out to join them in what they would picture to be a cordial atmosphere, the complainant even allegedly suggesting that she be dropped on a spot where people would reasonably presume her to have come from a studio? Equally important is the complainant's public disclosure of her tragedy, which led to the examination of her private parts and lay her open to risks of future public ridicule and diminution of popularity and earnings as a movie actress. 4. Jose and Canal seek the exclusion of their extrajudicial statements from the mass of evidence on the grounds that they were secured from them by force and intimidation, and that the incriminating details therein were supplied by the police investigators. We are not convinced that the statements were involuntarily given, or that the details recited therein were concocted by the authorities. The statements were given in the presence of several people and subscribed and sworn to before the City Fiscal of Quezon City, to whom neither of the aforesaid appellants intimated the use of inordinate methods by the police. They are replete with details which could hardly be known to the police; and although it is suggested that the authorities could have secured such details from their various informers, no evidence at all was presented to establish the truth of such allegation. While in their

statements Jose and Canal admitted having waited — together with the two other appellants — for Miss De la Riva at the ABS Studio, each of them attempted in the same statements to exculpate himself: appellant Jose stated that only Pineda and Aquino criminally abused the complainant; while appellant Canal would make it appear that the complainant willingly allowed him to have sexual intercourse with her. Had the statements been prepared by the authorities, they would hardly have contained matters which were apparently designed to exculpate the affiants. It is significant, too, that the said two appellants did not see it fit to inform any of their friends or relatives of the alleged use of force and intimidation by the police. Dr. Mariano Nario of the Quezon City Police Department, who examined appellant Canal after the latter made his statement, found no trace of injury on any part of the said appellant's body in spite of the claims that he was boxed on the stomach and that one of his arms was burned with a cigarette lighter. In the circumstances, and considering, further, that the police officers who took down their statements categorically denied on the witness stand that the two appellants were tortured, or that any detail in the statements was supplied by them or by anyone other than the affiants themselves, We see no reason to depart from the trial court's well-considered conclusion that the statements were voluntarily given. However, even disregarding the in-custody statements of Jose and Canal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two. The admissibility of his extrajudicial statements is likewise being questioned by Jose on the other ground that he was not assisted by counsel during the custodial interrogations. He cites the decisions of the Supreme Court of the United States in Messiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (378 U.S. 478) and Miranda vs. Arizona (384 U.S. 436). The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par. 17 of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be heard by himself and counsel ..." While the said provision is identical to that in the Constitution of the United States, in this jurisdiction the termcriminal prosecutions was interpreted by this Court, in U.S. vs. Beecham, 23 Phil., 258 (1912), in connection with a similar provision in the Philippine Bill of Rights (Section 5 of Act of Congress of July 1, 1902) to mean proceedings before the trial court from arraignment to rendition of the judgment. Implementing the said constitutional provision,

We have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant shall be entitled ... (b) to be present and defend in person and by attorney at every stage of the proceedings, that is, from the arraignment to the promulgation of the judgment." The only instances where an accused is entitled to counsel before arraignment, if he so requests, are during the second stage of the preliminary investigation (Rule 112, Section 11) and after the arrest (Rule 113, Section 18). The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only because it has no binding effect here, but also because in interpreting a provision of the Constitution the meaning attached thereto at the time of the adoption thereof should be considered. And even there the said rule is not yet quite settled, as can be deduced from the absence of unanimity in the voting by the members of the United States Supreme Court in all the three above-cited cases. 5. Appellant Pineda claims that insofar as he is concerned there was a mistrial resulting in gross miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital offense and the amended complaint cited aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. The contention is untenable. While a plea of guilty is mitigating, at the same time it constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the crime (People vs. Boyles, et al., L-15308, May 29, 1964, citing People vs. Ama, L-14783, April 29, 1961, and People vs. Parete, L-15515, April 29, 1961). Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less to require his presence in court. It would be different had appellant Pineda requested the court to allow him to prove mitigating circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. (Cf. People vs. Arconado, L16175, February 28, 1962.) The case of U.S. vs. Agcaoili (31 Phil., 91), cited by Pineda, is not in point, for there this Court ordered a new trial because it found for a fact that the accused, who had pleaded guilty, "did not intend to admit that he committed the offense with the aggravating circumstances" mentioned in the information. We are not

in a position to make a similar finding here. The transcript of the proceedings during the arraignment shows that Pineda's counsel, Atty. Lota prefaced his client's plea of guilty with the statement that . I have advised him (Pineda) about the technicalities in plain simple language of the contents of aggravating circumstances and apprised him of the penalty he would get, and we have given said accused time to think. After a while I consulted him — for three times — and his decision was still the same. Three days after the arraignment, the same counsel stated in court that he had always been averse to Pineda's idea of pleading guilty, because "I know the circumstances called for the imposition of the maximum penaltyconsidering the aggravating circumstances," but that he acceded to his client's wish only after the fiscal had stated that he would recommend to the court the imposition of life imprisonment on his client. To be sure, any such recommendation does not bind the Court. The situation here, therefore, is far different from that obtaining in U.S. vs. Agcaoili, supra. 6. Two of the appellants — Jose and Cañal — bewail the enormous publicity that attended the case from the start of investigation to the trial. In spite of the said publicity, however, it appears that the court a quo was able to give the appellants a fair hearing. For one thing, three of the seven (7) original accused were acquitted. For another thing, Jose himself admits in his brief that the Trial Judge "had not been influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a presumption of innocence and to fair trial." We are convinced that the herein four appellants have conspired together to commit the crimes imputed to them in the amended information quoted at the beginning of this decision. There is no doubt at all that the forcible abduction of the complainant from in front of her house in Quezon City, was a necessary if not indispensable means which enabled them to commit the various and the successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding

(crimes of the same nature can not legally be considered as still connected with the abduction — in other words, they should be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter. What kind of rape was committed? Undoubtedly, it is that which is punishable by the penalty of reclusion perpetuato death, under paragraph 3, Article 335, as amended by Republic Act No. 4111 which took effect on June 20, 1964, and which provides as follows: ART. 335. When and how rape committed.—Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter the nature of the penalty to be imposed. Nevertheless, to put matters in their proper perspective and for the purpose of determining the proper penalty to be imposed in each of the other three crimes of simple rape, it behooves Us to make a definite finding in this connection to the effect that the commission of said crimes was attended with the following aggravating circumstances: (a) nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes; (b) abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another (Cf. People vs. De Guzman, et al., 51 Phil., 105, 113); (c) ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating; and (d) use of a motor vehicle. With respect to appellants Jose, Aquino and Ca_¤_al, none of these aggravating circumstances has been offset by any mitigating circumstance. Appellant Pineda should, however, be credited with the mitigating circumstance of voluntary plea of guilty, a factor which does not in the least affect the nature of the proper penalties to be imposed, for the reason that there would still be three aggravating circumstances remaining. As a result, appellants should likewise be made to suffer the extreme penalty of death in each of these three simple crimes of rape. (Art. 63, par. 2, Revised Penal Code.) In refusing to impose as many death penalties as there are offenses committed, the trial court applied by analogy Article 70 of the Revised Penal Code, which provides that "the maximum duration of all the penalties therein imposed upon the appellant shall not be more than threefold the length of time corresponding to the most

severe of the penalties imposed upon the appellant, which should not exceed forty years." The said court is of the opinion that since a man has only one life to pay for a wrong, the ends of justice would be served, and society and the victim would be vindicated just as well, if only one death penalty were imposed on each of the appellants. We cannot agree with the trial court. Article 70 of the Revised Penal Code can only be taken into account in connection with the service of the sentence imposed, not in the imposition of the penalty (People vs. Escares, 55 Off. Gaz., 623). In holding that only one death penalty should be imposed because man has only one life, the trial court ignored the principle enunciated in the very case it cited, namely, U.S. vs. Balaba, 37 Phil., 260, where this Court, in affirming the judgment of the trial court, found the accused guilty of two murders and one homicide and imposed upon him two death sentences for the murders and a prison term for the homicide. In not applying the said principle, the court a quo said that the case of Balaba is different from the present case, for while in the former case the accused was found to have committed three distinct offenses, here only one offense is charged, even if complex. As We have explained earlier herein, four crimes were committed, charged and proved. There is, therefore, no substantial difference between the two cases insofar as the basic philosophy involved is concerned, for the fact remains that in the case of Balaba this Court did not hesitate to affirm the two death sentences imposed on the accused by the trial court. In People vs. Peralta, et al., L19060, October 29, 1968, in which this Court imposed on each of the six accused three death penalties for three distinct and separate crimes of murder, We said that "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." In the said case (which was promulgated after the decision of the court a quo had been handed down) We had occasion to discuss at length the legality and practicality of imposing multiple death penalties, thus: 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 the 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 moves 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 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 forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum

of only thirty years corresponding to a single life sentence. We are, therefore, of the opinion that in view of the existence of conspiracy among them and of our finding as regards the nature and number of the crimes committed, as well as of the presence of aggravating circumstances, four death penalties should be imposed in the premises. ———— Before Us is a petition for intervention filed by Filipinas Investment & Finance Corporation asking for reversal of that portion of the judgment of the court below ordering the confiscation of the car used by the appellants in abducting the complainant. The aforesaid car is a 1965 two-door Pontiac sedan with Motor No. WT-222410, Serial No. 2376752110777, Plate No. H-33284, File No. 11584171, alleged by the intervenor to be in the custody of Major Ernesto San Diego of the Quezon City Police Department. The car is registered in the name of Mrs. Dolores Gomez. On April 4, 1967, Mrs. Dolores Gomez, mother of an appellant Jaime G. Jose, bought the car from the Malayan Motors Corporation and simultaneously executed a chattel mortgage thereon to secure payment of the purchase price of P13,200, which was stipulated to be payable in 24 monthly installments of P550 beginning May 4, 1967 up to April 4, 1969. The mortgage was duly registered with the Land Transportation Commission and inscribed in the Chattel Mortgage Registry. The mortgage lien was annotated on the motor registration certificate. On April 17, 1967, for value received and with notice to Mrs. Gomez, the Malayan Motors Corporation assigned its credit against Mrs. Gomez, as well as the chattel mortgage, to the intervenor. The assignment was duly registered with the Land Transportation Commission and annotated on the registration certificate. Mrs. Gomez failed to pay any of the installments due, in view of which the intervenor filed on July 5, 1967, an action for replevin against her (Civil Case No. 69993, Court of First Instance of Manila) as a preliminary step to foreclosure of the chattel mortgage. On July 7, 1967, the court issued an order for the seizure of the car. The sheriff, however, could not enforce the writ of replevin because the car was not in Mrs. Gomez' possession, the same

having been used by her son, appellant Jaime G. Jose, together with the other appellants in this case, in the abduction of Miss De la Riva, as a result of which the car was seized by the Quezon City police and placed in the custody of Major San Diego, who refused to surrender it to the sheriff on the ground that it would be used as evidence in the trial of the criminal case. During the pendency of that criminal case in the court below, or on July 26, 1967, the intervenor filed with the said court a petition for intervention. The said petition was not, however, acted upon. On October 2, 1967, the trial court rendered its judgment in the present case ordering the car's confiscation as an instrument of the crime. Although not notified of the said decision, the intervenor filed, on October 17, 1967, a motion for reconsideration of the order of confiscation; but the same was denied on October 31, 1967, on the ground that the trial court had lost jurisdiction over the case in view of the automatic elevation thereof to this Court. The intervenor then filed a petition for relief from judgement, but the same was also denied. On February 5, 1968, judgement was rendered in the replevin case ordering Mrs. Gomez to deliver the car to the intervenor so that the chattel mortgage thereon could be foreclosed, or, in the alternative, to pay the intervenor the sum of P13,200 with interest thereon at 12% per annum from July 5, 1968, the premium bond, attorney's fees, and the costs of suit. The judgment became final and executory. Attempts to execute the judgment against the properties of Mrs. Gomez were unavailing; the writ of execution was returned by the sheriff unsatisfied. On July 26, 1968, the present petition for intervention was filed with this Court, which allowed the intervenor to file a brief. In his brief the Solicitor General contends, among others, that the court a quo having found that appellant Jose is the owner of the car, the order of confiscation is correct. Considering that the car in question is registered in the name of Mrs. Dolores Gomez, who, in the absence of strong evidence to the contrary, must be considered as the lawful owner thereof; that the only basis of the court a quo in concluding that the said car belongs to appellant Jose were the latter's statements during the trial of the criminal case to that effect; that the said statement were not, however, intended to be, nor could constitute, a claim of ownership over the car adverse to his mother, but were made simply in answer to questions propounded in court

for the sole purpose of establishing the identity of the defendant who furnished the car used by the appellants in the commission of the crime; that the chattel mortgage on the car and its assignment in the favor of the intervenor were made several months before the date of commission of the crimes charged, which circumstance forecloses the possibility of collusion to prevent the State from confiscating the car; that the final judgement in the replevin case can only be executed by delivering the possession of the car to the intervenor for foreclosure of the chattel mortgage; and the Article 45 of the Revised Penal Code bars the confiscation and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a third person not liable for the offense," it is the sense of this Court that the order of the court below for confiscation of the car in question should be set aside and that the said car should be ordered delivered to the intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in the replevin case, Civil Case No. 69993. ———— Before the actual promulgation of this decision, this Court received a formal manifestation on the part of the Solicitor General to the effect that Rogelio Cañal, one of the herein appellants, died in prison on December 28, 1970. As a result of this development, this case is hereby dismissed as to him alone, and only insofar as his criminal liability is concerned, with one-fourth (1/4) of the costs declared de oficio. WHEREFORE, the judgment under review is hereby modified as follows: appellants Jaime G. Jose, Basilio Pineda, Jr., and Edgardo P. Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape. As a consequence thereof, each of them is hereby sentenced to four (4) death penalties; all of them shall, jointly and severally, indemnify the complainant of the sum of P10,000.00 in each of the four crimes, or a total of 40,000.00; and each shall pay onefourth (1/4) of the costs. Insofar as the car used in the commission of the crime is concerned, the order of the court a quo for its confiscation is hereby set aside; and whoever is in custody thereof is hereby ordered to deliver its possession to intervenor Filipinas Investment & Finance Corporation in accordance

with the judgment of the Court of First Instance of Manila in Civil Case No. 69993 thereof.

*Complex Crimes (Special Complex Crime) G.R. No. 107799 April 15, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO NANG alias "Batutto," (at large) SUMINA GAMO and LUMUNSOG GABASAN alias "Dodong," accused, SUMINA GAMO and LUMUNSOG GABASAN alias "Dodong," accused-appellants. ROMERO, J.: Pablito Nang alias "Batutto" (Batuto) and accusedappellants Sumina 1 Gamo and Lumonsog 2 Gabasan alias "Dodong" were charged with the crime of robbery with homicide before the Regional Trial Court of Pagadian City, Branch 19. The information reads: That on the 16th day of May, 1990 at about 7:00 o'clock in the evening at Sitio San Pedro, Barangay Lubusan, Municipality of Lapuyan, Province of Zamboanga del Sur, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused conspiring and confederating together and mutually helping one another, the two of said accused being armed with a pistol and a knife respectively, with intent to gain and by means of violence did then and there willfully, unlawfully and feloniously take

and rob (sic) the spouses Mr. and Mrs. Nicanor Gonzales of the sum of Five Hundred (P500.00) Pesos and pursuant to said conspiracy and by reason and on the occasion thereof, the abovenamed accused did then and there willfully, unlawfully and feloniously stab and inflict injuries upon Nicanor Gonzales which caused the latter's death immediately thereafter. Act contrary to Article (sic) 293 and 294 of the Revised Penal Code. 3 Of the three accused, only herein accused-appellants Gamo and Gabasan, were apprehended, while Pablito Nang remains at large to this day. Upon arraignment, both accused-appellants entered a plea of "not guilty." The prosecution's version of the crime, as testified to by the deceased victim's wife, Epifania Gonzales, and daughter, Elizabeth, is as follows: At around 7:00 o'clock p.m. on May 16, 1990, farmer Nicanor Gonzales, his wife Epifania and six of their eleven children, namely: Monina, Celso, Elizabeth, Basilio, Ambrosio and Ronnie were in their house at Sitio San Pedro, Lubosan, Lapuyan, Zamboanga del Sur. Feeling the urge to relieve himself before going to bed, Nicanor proceeded downstairs to the comfort room adjacent to the house. Since it was already dark, Epifania placed a lighted gas lamp on the windowsill overlooking the toilet to illuminate the place. 4 After a while, Nicanor called for his daughter Elizabeth to take her turn in using the toilet.

Forthwith, Elizabeth went downstairs and walked towards the direction of the toilet. 5 To her surprise, she saw her father being attacked by three masked men. As Nicanor struggled with the assailants, their T-shirt masks dropped, enabling Elizabeth to recognize them with the aid of the light emanating from the gas lamp on the window overlooking the toilet and the scene of the crime. She recognized the two culprits who held her father's hands as accused-appellants Sumiba Gamo and Lumonsog Gabasan, and the third who stabbed her father, as accused Pablito Nang. Elizabeth positively identified the three assailants because she was familiar with their faces since they used to pass by their place. 6 After stabbing Nicanor, the three malefactors rushed inside the house. Out of fear, Elizabeth followed them, only to be hit on the head by Gabasan who then stood as lookout beside the stairs. 7 Having subsequently eluded Gabasan, Elizabeth managed to reach the upper floor of the house where she saw her mother Epifania struggling against Pablito Nang and Sumiba Gamo. 8 Earlier Epifania Gonzales, having heard the commotion coming from the direction of the comfort room, decided to investigate. Before she could even step out of the door, two masked men she met immediately grabbed her by the hands and poked knives at her. In the ensuing scuffle, she was able to pry loose their masks. Aided by the light coming from the gas lamp on the window, Epifania recognized the two who gripped her hands as Pablito Nang and Sumiba Gamo, both of whom were then armed with hunting knives. She also saw Lumonsog Gabasan standing

by the stairs. The three intruders were familiar to her as Lumonsog Gabasan used to sell copra to them and buy on credit from her store. Nang was known as "bugoy," being notorious in the community. 9 Gabasan demanded money from Epifania who replied that they had no money. She pleaded with them to spare her life. The two men warned her, instead to keep quiet. But as Epifania continued to struggle with the two, she sustained wounds on her left wrist and neck. While Pablito Nang was restraining her, Sumiba Gamo searched their trunk, took the money in it, and told Nang about it. 10 As the three intruders fled, one of them shouted threatening that they would come back. After the three had left, Epifania immediately shouted for help crying out, "Tabang mo kay gitulis me!" (Help us, we were robbed!) There being no immediate response to her cries for assistance, Epifania, hurriedly scampered downstairs. As she left the house, she saw her husband Nicanor seriously wounded beside the mango tree. When she asked him to identify his assailants, he named Pablito Nang and Sumiba Gamo and could make no more utterance as he was choking in his own blood due to his grave condition. 11 When the neighbors arrived, they placed the wounded Nicanor on a bench which they carried towards the road to bring him to a doctor. Unfortunately, however, Nicanor expired after only a few minutes. 12 When Epifania inspected the family trunk that was ransacked by the intruders, she found out that the money consisting of paper bills and coins totalling some P500.00 were taken by the three men. 13 The following day, Patrolman Alfren Humpa and Pfc. Ansaling Lingating conducted an investigation and drew a sketch of the crime scene 14 which indicated the window of the Gonzales house overlooking the toilet, the one meter distance of the toilet from the house, the four-meter distance of the toilet from the mango tree where the bloodstains were found and the distance of the house from the road where the victim died. The post mortem examination prepared by Rural Sanitation Inspector George Bayamban revealed that Nicanor Gonzales sustained the following injuries:

1. One stab wound at the middle of the chest measuring 1 3/4 inch in length and 1 inch wide and 4 inches deep; 2. One stab wound at the middle of his back measuring 1 3/4 inch in length and 1/2 inch wide and 4 inches deep. 15 Hemorrhage due to stab wounds at middle back and chest was the cause of Nicanor's death. 16 The defense had an altogether different version of the occurrence. Accused-appellants Sumiba Gamo and Lumonsog Gabasan interposed the defense of denial and alibi. In the morning of May 16, 1990, they were hired by Lamberto Lingating Lusay to make copra at Guili-an, Lapuyan, Zamboanga del Sur. They started making copra after breakfast at about 7:00 o'clock a.m. After they had finished their work at about 4:00 o'clock p.m., they decided to go to the house of Lumonsog Gabasan in order to rest. While there, Ernie Gandamon arrived and summoned Temie Gabasan, the brother of accusedappellant Lumonsog Gabasan, to discuss the impending marriage between Temie and Ernie's cousin Myrna. The father of Lumonsog Gabasan agreed to go to the house of Myrna in Sitio Guili-an, Poblacion, Lapuyan. He was accompanied by accused-appellants Lumonsog Gabasan and Sumiba Gamo, Dugang, Temie and Mamerto Masulog. The group brought two chickens to symbolize the plighted troth between Temie and Myrna. Upon arrival at their destination, accused-appellants cooked and prepared the chickens for supper, after which a wedding covenant was forged between the father of the prospective groom and Mamerto Masulog, the guardian of the bride-to-be. While having dinner, they heard gunshots coming from the neighboring barangay, thereby prompting the father of accused-appellant Lumonsog and his younger brother to go home at once out of concern for the rest of the family. Accused-appellants Lumonsog Gabasan and Sumiba Gamo, together with Temie, stayed behind and slept at the house of Ernie that evening. Upon waking up at 7:00 o'clock a.m., they then returned to their place of work. 17 The defense presented Ernie Gandamon, Mamerto Masulog and Pendatun Bandatun to corroborate accused-appellants' alibi. 18

On February 21, 1992, the trial court 19 rendered its judgment of conviction, disposing thus: WHEREFORE, the Court hereby finds "GUILTY" beyond reasonable doubt accused SUMINA GAMO and LUMONSOG GABASAN of the crime of Robbery with Homicide and sentences them to RECLUSION PERPETUA or LIFE IMPRISONMENT, with all the accessory penalties prescribed by law and to return the sum of FIVE HUNDRED (P500.00) PESOS to the heirs of victim Nicanor Gonzales which is the amount taken by them and to pay FIFTY THOUSAND (P50,000.00) PESOS as to compensation for the death of the victim Nicanor Gonzales to the latter's heirs without subsidiary imprisonment in case of insolvency. Both accused Sumina Gamo and Lumonsog Gabasan having been in prison since June 5, 1990, are hereby credited FOUR-FIFTH (4/5) of such preventive imprisonment in the service of their sentence herein imposed. SO ORDERED. 20 Hence, this appeal. Appellants insist on their innocence and contend that the trial court erred: I . . . WHEN IT IGNORED MATERIAL INCONSISTENCIES IN THE TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION AND MADE FINDINGS OF FACT THAT ARE UNSUPPORTED BY THE RECORDS AND THE EVIDENCE; II . . . WHEN IT GAVE CREDENCE AND FULL WEIGHT TO THE TESTIMONY OF THE WIFE AND THE DAUGHTER OF THE DECEASED VICTIM NICANOR GONZALES; III . . . WHEN IT HELD THAT THE ACCUSED APPELLANTS WERE GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE. 21 The appeal is devoid of merit.

Clearly, the core issue raised is factual and involves the credibility of the testimonies of witnesses. It is doctrinal that this Court will not interfere with the judgment of the trial court in passing upon the credibility of witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misapprehended or misinterpreted. The reason for this is that the trial court is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial. 22 There is no cogent reason for the Court to depart from this well-settled rule. Accused-appellants point to certain errors committed by the trial court in its "findings of fact . . . that are not supported by the records . . . (and thus) . . . greatly prejudiced their constitutional right to a fair and impartial trial." They, therefore, submit that this case comes within the exception to the rule that the findings of the trial court with regard to the credibility of the witnesses and the findings as to facts are not to be disturbed on appeal. 23 These supposed errors are: (1) that the daughter of the deceased victim, Elizabeth, was hit on the head with a gun by one of the three assailants, 24 but the records show that she only testified that she was hit on the head without mentioning a gun; 25 (2) that Pablito Nang was identified by Epifania because he removed his mask while ransacking the family trunk, 26 but witness Epifania said that she was able to remove the masks of the culprits while she was struggling with them; (3) that Epifania was grabbed by two masked men and a third masked person followed and entered the house and then ransacked the trunk, 27 but in the testimony of Epifania, only two persons entered their house and it was appellant Gamo who opened the trunk, while the third, appellant Gabasan, was waiting by the stairs; 28 (4) that the victim's wife, Epifania, did not identify Lumonsog Gabasan while the victim's daughter Elizabeth did not identify Sumina Gamo, because they did not know them, hence the two told the truth, 29 but in their respective testimonies, wife and daughter categorically identified all three accused as the ones who killed Nicanor, attacked them and robbed them of their money. 30 Accused-appellants, therefore, conclude that because of these errors in its factual findings and appreciation of the evidence, the lower court failed in its duty to conduct a real examination as to the credibility of the testimony of the two key witnesses for the prosecution.

Upon careful examination of the assailed decision and the evidence on record, this Court agrees with accusedappellants' observation that the trial court may indeed have committed some errors, but these lapses are not so grave as to suffice to reverse the verdict of conviction against accused-appellants, who, as the records show, were categorically and positively identified by eyewitnesses as the perpetrators of the crime being imputed to them. More important, all the elements of the crime of robbery with homicide are shown to exist. The crime of robbery with homicide is primarily classified as an offense against property and not against persons. It is therefore incumbent upon the prosecution to establish that: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. 31 This Court is satisfied that all the elements of the crime attributed to accused-appellants had been adequately established. Accused-appellants attempt to discredit the testimonies of prosecution witnesses by pointing out certain alleged inconsistencies and contradictions between their affidavits or sworn statements given to the police investigatorsvis-avis their testimonies in open court. They allege that in Epifania's affidavit, nothing was mentioned about her being stabbed by her attackers. What she stated was that Sumiba Gamo pointed a knife at her while Pablito Nang ransacked the trunk. In court, however, she testified that Nang stabbed her and that Gamo was the one who opened the trunk, and that she recognized them as she was able to snatch their masks. As regards the affidavit of Elizabeth, accused-appellants point out that what was stated therein was that Lumonsog Gabasan whipped her with a pistol but she made no mention about the gun in her court testimony, only her allegation that she was whipped by Lumonsog Gabasan. Contrary to what accused-appellants assert, there is no serious incongruence in the prosecution eyewitnesses' sworn declarations and their testimonies. What is material is that their testimonies agree on the essential fact that the three accused were present and they participated in the commission of the crime. It bears stressing that ex

parte affidavits are generally incomplete. Hence, inconsistencies between the declaration of the affiants in their sworn statements and those in court do not necessarily discredit them. The infirmity of affidavits as evidence is a matter of judicial experience. 32 In People v. Miranda, 33 this Court observed thus: . . . Predictably, testimonies given during trials are much more exact and elaborate than those stated in sworn statements. Ex parte affidavits are almost always incomplete and often inaccurate for varied reasons, at times because of partial and innocent suggestions or for want of specific inquiries. Witnesses cannot be expected everytime, except when told, to distinguish between what may be inconsequential and what may be mere insignificant details. In the same vein, this Court noted in People v. Reyes, 34 viz.: . . . Differences in the narration of an incident between the sworn statements and the testimony of a witness are not unknown. The infirmity of an extrajudicial statement is a matter of judicial experience. An extrajudicial statement or affidavit is generally not prepared by the affiant himself but by another who uses his own language in writing the affiant's statement; hence, omissions and misunderstandings by the writer are not infrequent. Thus, as between sworn statements taken ex parte and testimonies given in open court, the latter are generally held to be superior. The rationale is that affidavits are oftentimes executed when an affiant's mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident that has transpired. 35 Affidavits are not complete reproductions of what the declarant has in mind because the administering officer generally prepares them and the affiant simply signs them after the same have been read to him. 36 In the case at bar, the alleged inconsistencies between the affidavits and testimonies of witnesses are minor and do not affect their credibility as witnesses. They merely show

that their affidavits are incomplete with respect to certain details that do not in any way detract from the overall veracity of their testimonies. Minor inconsistencies serve instead to strengthen their credibility as they are badges of truth rather than indicia of falsehood. The most candid witnesses oftentimes make mistakes and fall into confused and inconsistent statements but such honest lapses do not necessarily affect their credibility. Far from eroding the effectiveness of the testimonies of the two witnesses, such trivial differences in fact constitute signs of veracity. 37 What is clear is that their affidavits and testimonies concur on all material points and establish the presence of accused-appellants at the scene of the crime and the manner in which they executed the same. Accused-appellants also assail the trial court's utmost reliance on the testimony of 11-year-old Elizabeth considering her tender age and alleged low level of understanding, intelligence and common sense. 38 On this score, it is well-established that any child regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and that he is capable of relating truthfully facts for which he is examined. 39

Evidence of physical impossibility had not been adduced in the case at bar. Barangay Guili-an where Lumonsog Gabasan and Sumiba Gamo claimed to be at the time of the commission of the crime is not far from Sitio San Pedro, Brgy. Lubosan where the crime was committed. According to defense witness Ernie Gandamon, the distance between Guili-an and San Pedro Lubosan, Lapuyan, can be negotiated in 20 minutes by riding a carabao or by hiking. 45 Moreover, accused-appellants' alibi cannot prevail in light of the positive identification of prosecution eyewitnesses Epifania and Elizabeth Gonzales who have not been proved to harbor any ill-motives in testifying against the accused-appellants. 46 Challenge is also made as to the credibility of the key witnesses being the wife and child of the deceased victim. Relationship per se, without more, does not affect the credibility of witnesses. Indeed, it would be unnatural for the relatives of the victims who seek justice to commit another injustice by imputing the crime on innocent persons and not on those who were actually responsible therefor. 47

The requirements of a child's competence as a witness are: (a) capacity of observation (b) capacity of recollection and (c) capacity of communication. The determination of whether a child is of sufficient intelligence according to the foregoing requirements is addressed to the sound judgment of the trial court. In the instant case, this Court finds no cogent reason to disturb the trial court's assessment regarding Elizabeth's credibility as a witness.

Moreover, the delay of witnesses in revealing to the authorities the identities of the accused may be attributable to trauma, confusion, and grief. It is quite understandable when the witnesses do not immediately report the identity of the offender after a startling occurrence more specifically when they are related to the victim as they just had a traumatic experience. 48

Accused-appellants' defense of alibi is, as repeatedly pronounced, one of the weakest defenses an accused can invoke. 40Accordingly, courts have invariably looked upon it with caution, if not suspicion, not only because it is inherently unreliable but because it is rather easy to fabricate. 41 Alibi cannot prevail over the positive identification of the accused by the prosecution's witness who has no motive to testify falsely against them. 42 For alibi to be believed, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable. 43 The accused must show that he was at such other place for such a period of time that it was physically impossible for him to have been at the place where the crime was committed at the time of its commission. 44

The trial court correctly found accused-appellants guilty beyond reasonable doubt of the crime of robbery with homicide as defined in Article 294 (1) of the Revised Penal Code. The prosecution has established with moral certainty through the eyewitness testimonies of Epifania and Elizabeth that accused-appellants used violence and intimidation against the members of the Gonzales family in carrying out their intention to rob them. They stabbed to death Nicanor Gonzales to facilitate the commission of the robbery and attacked his wife Epifania and 11-year-old child Elizabeth causing them injuries, in carrying out their intention to rob them of their money. It was likewise amply shown through eyewitness testimony that accusedappellants took away some P500.00 from the Gonzales family trunk. There being proof of asportation, animus lucrandi is presumed. 49

In the crime of robbery with homicide, the homicide may precede robbery or may occur after robbery. What is essential is that there is a nexus, an intimate connection between robbery and the killing whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time. 50 Likewise, the rule is well-established that whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide. 51 Such exception does not apply in the instant case. By their concerted action, accusedappellants and Pablito Nang obviously conspired to rob the Gonzales family, on which occasion they killed Nicanor to facilitate their criminal intent. It is immaterial, therefore, that accused-appellants merely held the arms of Nicanor Gonzales while Pablito Nang stabbed him. In view of the presence of conspiracy, all the perpetrators of the crime shall bear equal responsibility. 52 The special complex crime of robbery with homicide carries the penalty of reclusion perpetua to death under Article 294 (1) of the Revised Penal Code. In the case at bar, the proper imposable penalty upon accusedappellants is reclusion perpetua in the absence of proven mitigating or aggravating circumstances. 53 However, the trial court erroneously imposed on accused-appellants the penalty of reclusion perpetua or life imprisonment." Reclusion perpetua and life imprisonment are not synonymous penalties — these are distinct in nature, in duration and in accessory penalties. 54 This Court has distinguished between the two penalties in previous decisions, going as far back as People v. Mobe 55 and, recently, inPeople v. Antonio Magana, 56 thus: The Code (Revised Penal Code) does not prescribe the penalty of "life imprisonment" for any of the felonies therein defined, that penalty being invariably imposed for serious offenses penalized not by the . . . Code but by the special law. Reclusion perpetua entails imprisonment for at least (30) years, after which the convict becomes eligible for pardon. It also carries with it

accessory penalties, namely: perpetual special disqualification, etc. It is not the same as "life imprisonment" which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration.

WHEREFORE, the decision appealed from convicting accused-appellants Sumina Gamo and Lumunsog Gabasan of the crime of Robbery with Homicide is AFFIRMED with the MODIFICATION that the phrase "or life imprisonment" in the dispositive portion thereof is DELETED.

Let a copy of this Decision be furnished the Philippine National Police and the National Bureau of Investigation which shall effect with dispatch the arrest of Pablito Nang in order that he may be put on trial for the crime charged and duly proved here. SO ORDERED.

*Complex Crimes (Special Complex Crime) G.R. Nos. 113692-93 April 4, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN JULIAN, ALBERTO BUMANGLAG, ERNESTO MACALIPIS, and PEDRO DULDULAO, accused, PANGANIBAN, J.: Rape is chilling, naked sadism. It is marked by the savagery and brutality of the assault on the helpless victim's person and privacy. Thus, a severe penalty is meted our by the State, as parens patriae, for this abhorrent crime, revealing the clear legislative intent to "protect women against the unbridled bestiality of persons who cannot control their libidinous proclivities." 1

This is an appeal from the Decision 2 dated September 15, 1993 of the Regional Trial Court, First Judicial Region, Branch 15 3 stationed in Laoag City, in Criminal Case No. 2822-15 finding Accused-appellant Edwin Julian guilty of forcible abduction with rape plus three counts of rape. Incidentally, the city prosecutor committed the unfortunate mistake of not including Edwin Julian as an accused in Criminal Case No. 2823-15 resulting in the dropping of the latter from that related case. In the amended Criminal Complaint 4 in Criminal Case No. 2822-15, Accused-appellant Edwin Julian and Accused Alberto Bumanglag, Mario Alonzo alias Marcos Obrero, Ernesto Macalipis and Pedro Duldulao were charged with forcible abduction with rape. The crime was committed as follows: That on or about the 19th day of November, 1984, in the City of Laoag, Philippines, and within the jurisdiction

of this Honorable Court, the abovenamed accused, conspiring, together, confederating with and mutually helping one another, did then and sere wilfully (sic), unlawfully and feloniously, with lewd design, forcibly abduct (sic) the undersigned complainant against her will, and did then and there take her, pursuant to their common criminal design, to an uninhabited place in Barangay 15 San Nicolas, Ilocos Norte, where each of the accused Edwin Julian, Alberto Bumanglag, Mario Alonzoalias Marcos Obrero, and Pedro Duldulao by means of force and intimidation, and with the use of a deadly weapon, have carnal knowledge of the undersigned complainant, against her will, to her damage and prejudice in such amount as maybe (sic) awarded to her under the

provisions of the New Civil Code of the Philippines. That the aforestated offense has been attended by the following aggravating circumstances: 1. Use of motor vehicle; 2. Nighttime, sought purposely to facilitate the commission of the crime and to make its discovery difficult; and 3. Abuse of superior strength. CONTRARY TO LAW. The foregoing amended complaint, filed with the certification of Assistant City Fiscal Constante C. Caridad after the latter had found a prima facie case against the accused, was treated as the Information. When arraigned, all the accused, except Ernesto Macalipis who was not arrested and remained at large, pleaded not guilty to the charge. Subsequently, Bumanglag jumped bail but the trial court correctly ordered his trial in absentia. In an order dated November 21, 1986, the court a quo dropped Mario Alonzo alias Marcos Obrero from the information after the complainants had cleared him of participation in the crime charged. After trial, the trial court rendered a judgment, the dispositive portion of which reads: WHEREFORE, IN VIEW OF ALL THE FOREGOING, Judgment is hereby rendered declaring EDWIN JULIAN, ALBERTO BUMANGLAG, and PEDRO DULDULAO guilty beyond reasonable doubt of the crime of Forcible Abduction with Rape and three (3) separate Crimes of Rape in Criminal Case No. 2822, and are hereby sentenced to suffer the penalty of FOUR (4) TERMS of reclusion perpetua, and to indemnify, jointly and severally, complainant Nelia Agtarap in the amount of P150,000.00. In Criminal Case No. 2823, the Court finds ALBERTO BUMANGLAG and PEDRO

DULDULAO guilty beyond reasonable doubt of the crime of Forcible Abduction with Rape and two (2) separate crimes of Rape, and are hereby sentenced to suffer the penalty of THREE TERMS of reclusion perpetua, and to indemnify, jointly and severally, complainant Angeles Alonzo in the amount of P150,000.00. Accused ALBERTO BUMANGLAG is sentenced in absentia having escaped from detention during the trial. With respect to accused ERNESTO MACALIPIS who was not arrested and has remained at large, the two (2) cases are hereby ordered ARCHIVED insofar as he is concerned, to be automatically revived upon his arrest. Pursuant to Administrative Circular No. 2-92 of the Supreme Court dated January 20, 1992, the bailbond given for the provisional liberty of EDWIN JULIAN and PEDRO DULDULAO are hereby CANCELLED and they are hereby ordered committed to prison immediately. SO ORDERED. 5 The Bureau of Corrections informed this Court in a letter dated July 7, 1994 that Accused-appellant Edwin Julian "was received in the New Bilibid Prison on October 14, 1993," but that there was "no record of confinement of ALBERTO BUMANGLAG and PEDRO DULDULAO," 6 who are thus deemed at large. The Facts Version of the Prosecution The prosecution's version, as gleaned by the trial court from the testimonies of prosecution witnesses Angeles Alonzo (the complainant in Criminal Case No. 2823-15 and witness in Criminal Case No. 2822-15) and Nelia Agtarap

(the complainant in Criminal Case No. 2822-15 and a witness in Criminal Case No. 2823-15) is as follows: Angeles and Nelia, 35 and 33 years old, respectively, and both residents of Laoag City, worked as beauticians at Ceasar's Beauty Parlor located in the Laoag City supermarket. In the evening of November 19, 1984 between 7:00 to 8:00 o'clock they left the beauty parlor in the company of two male customers who had invited them to go out for snacks. They rode in the 2-door Gemini car of Roy Valdez, a vacationing "balikbayan", together with Jun Alcon, Roy's friend. They first went to the residence of Angeles in Nangalisan where she asked permission to go out with her friends. They returned to the poblacion to buy their snacks after which they proceeded to the Laoag City (Marcos) Bridge. They stopped at the southern end of the bridge and parked their car on the eastern lane facing north, near a streetlight. Angeles, Roy and Jun got off while Nelia remained inside the car seated at the right front seat. The door was open and she was facing her three companions who were only one meter away from the car. While they were thus enjoying the breeze and taking their snacks four (4) men later identified as the accused approached from the western side of the bridge and surrounded them. Julian opened the car's left door and sat on the driver's seat, Bumanglag pointed a gun at them and ordered them to get inside the car. When they hesitated, one of the accused pushed them inside the car. Once inside the car, the accused put on masks. Julian backed up the car and drove towards Gabu and then turned left towards Suba. All this time, the accused were threatening the complainants to keep quiet and forced

them to stoop everytime a vehicle approached. On the road to Suba, Duldulao and Macalipis tore the seat cover of the car and used it to blindfold Angeles and Nelia. Duldulao also tied the hands and feet of Roy Valdez and Jun Alcon. Julian then stopped the car at a narrow road in what turned out to be a forested area and all of them were told to get out. Bumanglag removed the blindfold of Angeles and led her to an open field about 10 to 12 meters away from the car. He pointed a gun at her hand and told her to follow and do as told. At the same time Julian and Duldulao led Nelia, also with blindfold removed, to another place about 6 meters away from the place where Bumanglag led Angeles. Poking his gun at various parts of Angeles' body, Bumanglag ordered her to remove her pants and panty. Angeles first pleaded with Bumanglag to spare her and when she resisted Bumanglag kicked and boxed her thighs. After her pants and panty were removed, Bumanglag ordered Angeles to lie down and when she refused he pushed her to the ground. He lay on top of her, kissing and embracing her. Angeles fought and resisted by pressing her legs together but Bumanglag was stronger. He forced her legs apart with his own legs and succeeded in raping her. After Bumanglag was through with her she put back her panty and pants but Duldulao came along and forced her to undress again, threatening her if she refused. She felt so weak and had no more energy to fight and resist and so Duldulao also succeeded in raping her, even adding insult to injury by asking if she was enjoying it.

After Angeles had dressed up, Duldulao took her back to the car but on the way they met Macalipis who grabbed her from Duldulao. She cried out for help and shouted, "Nelia, where are you?" Nelia shouted back, "I'm here' and Nelia was also crying. Macalipis also forced Angeles to undress and succeeded in raping her. She felt very tried (sic) and had no more strength to resist. She managed to dress up but after walking about 2 meters toward the car she felt so exhausted that she sat on the ground. Macalipis told her that they did what they did because they had just come down from the mountains and that they were deprived of sex for a long time. It was then that Nelia approached them, accompanied by Julian, Bumanglag and Duldulao. They came from the direction where, minutes before, she heard Nelia crying. As previously stated, when Bumanglag led Angeles to the place where he raped her, Nelia was also taken to a secluded place by Julian and Duldulao. While Nelia's hands were held together by Duldulao, Julian forcibly undressed her and when she resisted Julian slapped her and threatened her with a gun. After Julian succeeded in removing her clothes, Nelia was raped first by Julian, followed by Bumanglag and by Julian again for the second time. Duldulao did not rape Nelia but he held her while she was being raped by Julian but Nelia does not know who held her when she was raped by Bumanglag because she was by then hysterical. When Julian raped Nelia the second time, Bumanglag was present. During all the time Nelia and Angeles were being raped, they cried out to each other for help. Later, when they had re-grouped, Julian threatened Nelia and Angeles not to report to the police and to consider what happened to them as just a bad

dream and that henceforth they should call him "brod". Julian also told Nelia, Angeles and their two male companions to retrieve the car from (sic) Solsona because they will bring it there. They all re-boarded the car and with Julian at the wheel they drove eastward until they reached a place near the highway in San Nicolas where Nelia and Angeles were told to alight. About ninety (90) meters further to the south, their two male companions were also allowed to alight. Nelia and Angeles ran towards their two companions and helped them remove their blindfolds and untie their hands. From there they walked to the house of Angeles in Nangalisan. By then it was near dawn. Early the following morning, Nelia left Angeles' house and went home to Barangay Caaoacan. (sic) Roy Valdez and Jun Alcon had earlier left without bidding good-bye to either Angeles and Nelia. Angeles reported for work at the beauty parlor. About 9:00 A.M. she was called to the telephone. She recognized the voice as that of Julian when he said he is their "brod". He also told Angeles to tell their two male companions not to look for the car in Solsona because they left the car west of the provincial capitol building. Julian repeated his threats and because of such threats Angeles and Nelia did not report the incident to the police and did not submit to a medical examination. 7 The prosecution also presented Policeman Rodrigo Ventura, Chief Investigator of the Laoag City Police, who gave the following testimony: On February 6, 1985 at the Laoag City Police headquarters, Ventura was

investigating Alberto Bumanglag and Ernesto Macalipis in connection with several carnapping incidents in Laoag City, particularly the complaint of one Alfredo Alcon, Jr. that carnappers forcibly took his Gemini car on November 19, 1984. The two suspects had been earlier arrested by the Batac police for carnapping and Ventura had requested for their custody. While he was interrogating the suspects, Angeles Alonzo and Nelia Agtarap arrived at the police station. They told Ventura that they heard over the radio about carnapping suspects being investigated by the police. They also told him that on November 19, 1984 the car they were riding in was carnapped and that they were sexually abused by the carnappers. Upon seeing Alberto Bumanglag and Ernesto Macalipis, Angeles and Nelia immediately identified them as two of the men who sexually abused them on the night of November 19, 1984. The two suspects admitted their participation in the rape and carnapping incident and identified their companions as Edwin Julian and Mario Obrero and others. Later, when Edwin Julian was arrested, the complainants identified him as one of those who abducted them and who raped Nelia Agtarap. The identification was made in the Office of then City Mayor Rodolfo C. Fariñas where Julian admitted the accusation against him and named Pedro Duldulao as one of his companions. 8 Laoag City Police Investigator Alden Rosacio testified that: On April 17, 1986 Pedro Duldulao was brought to the Laoag City Police Station by his relative, Pat. Samuel Barit, also of the Laoag City Police, for investigation in connection with carnapping and rape cases in Laoag City. Among these cases was the complaint of Roy Valdez that his car was stolen on November 19, 1984 and

that his two lady companions were raped. Duldulao told the police what he knew about the cases being investigated and asked for a lawyer to assist him in making a confession. Whereupon, Rosacia accompanied Duldulao to the Citizens Legal Assistance Office (CLAO), now the Public Attorneys Office (PAO), where Duldulao's extra-judicial confession was taken. Duldulao was assisted by CLAO lawyer Maria Calija. Before giving his extra-judicial confession, Duldulao was duly apprised of his constitutional rights by both Pat. Rosacia and lawyer Calija. Duldulao voluntarily confessed that on November 19, 1984 at about 9:00 P.M., Edwin Julian, Alberto Bumanglag, Ernesto Macalipis and Mario Obrero sexually abused two women whom he (Duldulao) and his four-named companions abducted from the Marcos Bridge in the victims' car, together with two male companions. 9 Meanwhile, Maria Calija, CLAO lawyer, testified that "Duldulao asked her for legal assistance and corroborated the testimony of Rosacia with respect to her participation in the preparation of Duldulao's extra-judicial confession. 10 Version of the Defense The defense posits denial and alibi as follows: The accused Edwin Julian denied the charges against him and put up the defense of alibi. He testified that in the early days of October 1984 he went to Alcala, Pangasinan and was employed by one Ruben Mendoza as the latter's personal representative and spokesman in his construction firm. Mendoza was at that time the vice president of the Association of Barangay Captains of Pangasinan. Julian's brother, a member of the military, was assigned as security man of Mr. Mendoza together with a certain

Maj. Pedrino. Edwin Julian didn't return to Laoag until March 1986. His parents and his wife visited him in Pangasinan and his father showed him the affidavits of the complainants and that was the first time he learned of the charges filed against him. They then negotiated for his surrender to the police. He told police investigators that he was in Pangasinan when the alleged abduction and multiple rape took place but he didn't execute a written statement. Rosemarie Julian corroborated the testimony of her husband that from October 1984 to March 1986 Edwin was in Alcala, Pangasinan. She testified that during all this time she and her children were living in Barangay Navotas, Laoag City but visited her husband about five times and stayed in the house of Mr. Ruben Mendoza. She first learned of the case against her husband in March 1986. That was the time she reported for work as an employee of the then PC-INP in Camp Juan, Laoag City. When her co-employees informed her about the cases against her husband, she went to Alcala to inform him. When her husband arrived in Laoag in April 1986 he was immediately detained at the provincial jail. 11 Error Assigned The defense cites a single error: The trial court erred in giving credence to the prosecution's evidence relative to the identity of accused-appellant Edwin Julian and his involvement in the commission of the crime of forcible abduction with rape described in Nelia Agtarap's amended complaint in the face of the inconclusiveness and unreliability of the entire prosecution's evidence of the identities of the malefactors and consequently, erred in

rejecting his defenses of denial and alibi unrebutted by the prosecution.

12

Ultimately, the issue boils down to the credibility of the witnesses.

determinative of the outcome" 16 of the case because "when an alleged victim of rape says that she was violated, she says in effect all that is necessary to show that rape has been inflicted on her and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof." 17

This Court's Ruling We affirm the judgment of the trial court. Credibility of Witnesses The defense questions whether "the entire evidence of the prosecution relative to the identities of the malefactors (are) conclusive and reliable to warrant the inference that the identity and involvement of accused-appellant in the crime described in Agtarap's amended complaint had been established beyond reasonable doubt." 13 Appellant answers this question in the negative, based on the following: (1) the statement of Roy Valdez, one of private complainant's male companions that fateful night, given at the Laoag City police station the next day, that "four unidentified men were the culprits"; (2) Private Complainant Angeles Alonzo's testimony that "she was not able to recognize her and her companions' abductors"; (3) the lapse of "almost three months" before the two private complainants reported to the police that they had been raped; (4) their failure to undergo medical examination; (5) Angeles' sworn statement that Marcos Obrero had no participation in the crime charged, thereby contradicting her earlier sworn complaint against five suspects including Obrero; and (6) the two private complainants' subsequent execution of an affidavit of desistance in favor of Accused Pedro Duldulao. 14 In deciding this appeal, the Court is guided by certain wellestablished principles in reviewing rape cases, to wit: "(a) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) due to the nature of the crime of rape where usually only two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense." 15 Furthermore, as in other rape cases, "the credibility of the offended party's testimony is

In assessing the credibility of witnesses, the long-held doctrine is that "the trial court's evaluation as to the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses' demeanor and deportment on the stand, and the manner in which they gave their testimonies. The trial judge therefore can better determine if such witnesses were telling the truth, being in the ideal position to weigh conflicting testimonies. Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility must be respected." 18 After a thorough review of the entire record of this case, we find that the trial court did not overlook any such material fact nor did it commit any palpable error in its assessment of the testimonies of the prosecution and defense witnesses. The record shows the unequivocal and unswerving testimonies of Nelia Agtarap and Angeles Alonzo faithfully recounting their harrowing experience that fateful night of November 19, 1984 and sufficiently identifying Appellant Julian as one of their abductors who raped them. In fact, Nelia steadfastly charged Appellant Julian of raping her not only once but twice. Their accounts of the circumstances antecedent to, during and after their forcible abduction and rape are replete with significant details that jibe on material points. Their version is significantly backed by the complaint filed by one of their male companions in their disastrous double date, Alfredo Alcon Jr. (Jun Alcon), that his Gemini car was forcibly taken from him that same evening of November 19, 1994. Hence, we find no cogent reason to disturb the findings and assessment of the trial court as to the credibility of witnesses. As astutely and correctly observed by the trial court: The details of the abduction and multiple rape were clearly and graphically described by the complainant, two fairly good-looking

ladies in their late twenties and early thirties at the time of the commission of the crime. They testified in a straightforward, forthright and convincing manner, positively identifying the accused as their attacker (tsn, September 10, 1986, pp. 27-33; tsn; November 19, 1986, pp. 1316; tsn, October 23, 1989, pp. 26-33). No evidence was presented to show that the complainants had ulterior motives to falsely charge the accused. 19 Identification of Appellant The defense contends that the identification of Accusedappellant Edwin Julian by Private Complainant Nelia Agtarap was made doubtful by Roy Valdez's report that his Gemini car had been taken by four unidentified" men. We find this contention puerile. The only import of the statement of Roy, a nonresident balikbayan, was that he did not recognize the four who had taken his car but this did not mean he would not be able to recognize and identify them if he saw them again. Furthermore, to support their argument, the defense points to Angeles Alonzo's testimony that she did not recognize the perpetrators of the crime committed against them. Their argument is of no moment, however, since they cited Alonzo's statement out of context. As aptly stated by the Solicitor General: The claim misleads. A reading of the purported testimony readily shows that Angeles Alonzo did not readily recognize the malefactors only at the time when they suddenly approached her and her companions. Thus: q Do you know the accused Pedro Duldulao? a No, sir. When the incident happened, I was not able to recognize their faces. q What is that incident you are referring to? a It was when they took us from the Marcos Bridge. (p. 4, TSN, September 10, 1986) 20

The trial court elucidated the matter stating that "from a reading of the transcript of her entire testimony, it is clear that what she meant was that she did not know their names (tsn, December 16, 1986, p. 13). Angeles testified in Ilocano and based upon the experience of undersigned presiding judge, the original meaning must have gotten lost in the process of translation." 21 Contrary to the defense's assertion, the findings of the court a quo clearly and indubitably show that the private complainants had the opportunity, and indeed were able, to identify Appellant Julian, viz.: The evidence shows that the southern end of the Laoag bridge where the complainants parked their car on the night of November 19, 1984 was welllighted (tsn, September 10, 1986, p. 9). The faces of the accused were therefore visible to the complainants as the accused approached from the western lane of the bridge, surrounded the complainants and forced them inside the car. At this point the accused put on their masks. On the way to Suba, the complainants were blindfolded, obviously to avoid closeproximity recognition during the time it took to reach Suba. But once in the forested area their blindfolds were removed and that sometime during the rape episode the accused also removed their masks, perhaps confident that they had so intimidated their victims that even if they were recognized, the victims would not report to the police. It was probably this confidence that led to Edwin Julian's audacity to stare at the victim's faces and say "may I look at your faces" (tsn, November 19, 1986, p. 24). It was a moonlight (sic) night (tsn, September 10, 1986, p. 23) and the faces of the accused were visible to the complainants. By the time they drove back to San Nicolas, the accused had become bold enough to dispense with their masks. All these circumstances show that the complainants had ample opportunity to

look at and remember the faces of the accused. Admittedly, the complainants did not know the names of the accused at the time of the incident although they recognized their faces (tsn, December 16, 1986, p. 13). In fact, in the case of Edwin Julian and Pedro Duldulao, Angeles Alonzo testified that Julian had patronized their beauty parlor once or twice (tsn, supra, p. 7) while Nelia Agtarap testified that Duldulao's face was familiar because he had passed by the beauty parlor a number of times (tsn, November 27, 1989, p. 23). Duldulao himself testified that he knew Angeles Alonzo when he was still a passenger jeepney conductor (tsn, January 14, 1993, p. 3). 22 Delay in Reporting the Forcible Abduction and Rape The mere fact that almost three months had passed before Nelia and Angeles decided to report to the police authorities the crime committed against them does not negate the veracity of their charge. The Court reiterates that "(t)he failure of complainant to disclose her defilement without loss of rime to persons close to her or to report the matter to the authorities does not perforce warrant the conclusion that she was not sexually molested and that her charges against the accused are all baseless, untrue and fabricated. Delay in prosecuting the offense is not an indication of a fabricated charge. Many victims of rape never complain or file criminal charges against the rapists. They prefer to bear the ignominy and pain, rather than reveal their shame to the world or risk the offenders' making good their threats to kill or hurt their victims." 23 This is "understandable as Filipino women are known to be affectedly shy and coy. Rape stigmatizes the victim, not the perpetrator. It is a sad reality that a nonvirgin who has been deflowered against her will is nonetheless treated with scorn by society." 24 In the final analysis, what is important is that both Nelia Agtarap and Angeles Alonzo revealed they had been raped when they filed their sworn complaint with the Laoag Police. Consequently, Nelia's delay in filing the complaint does not in any way affect her credibility. In one case, a

complaint was filed three months after the incident, and this Court held that "three months is not too long a period to file a complaint for rape." 25 Medical Examination Not Indispensable to Prosecution of Rape The defense points to the failure of the private complainants to submit themselves to medical examination prior to their filing a sworn complaint charging the accused of raping them. The defense argues that this was a fatal defect in the prosecution of the instant case. We disagree. No law requires a medical examination for the successful prosecution of rape. Thus, it has been held: . . . lack of lacerated wounds does not negate sexual intercourse. Moreover, the fact that hymenal lacerations were found to he "healed round edge" and no spermatozoa was found does not necessarily negate rape. A freshly broken hymen is not an essential element of rape. For that matter, in crimes against chastity, the medical examination of the victim is not an indispensable element for the successful prosecution of the crime, as her testimony alone, if credible, is sufficient to convict the accused thereof . 26 (Emphasis supplied.) Falsus in Uno, Falsus in Omnibus? The defense further argues that since Private Complainant Angeles Alonzo had made a false accusation against Marcos Obrero, a mistake she herself later corrected resulting in Obrero's being dropped from the case, the testimonies of the private complainants Angeles Alonzo and Nelia Agtarap, who had both falsely charged Obrero, should be discredited in whole. We are not persuaded. The doctrine of falsus in uno, falsus in omnibus "deals only with the weight of evidence and is not a positive rule of law, and the same is not an inflexible one of universal application. The modern trend of jurisprudence is that the testimony of a witness may be believed in pan and disbelieved in part, depending upon the corroborative evidence and the probabilities and improbabilities of the

case. That is the present rule in the Philippines, and appellant cannot . . . discredit such portions of her testimony as are otherwise credible." 27 Hence, the mere fact that Angeles and Nelia had mistakenly implicated Obrero in their complaint does not belie their charges against the other accused including the accused-appellant Edwin Julian when, from the evidence on record, such charges are overwhelmingly credible and probable. The fact that both private complainants each executed an affidavit of desistance in favor of Accused Duldulao does not destroy their credibility since each has satisfactorily explained her execution of the document. As insightfully put by the trial court: As to the affidavits of desistance, the complainants explained that they were virtually tricked into signing them by Duldulao's former counsel. It appears that there was an attempt to "settle" the case insofar as Duldulao was concerned, apparently with the blessings of then presiding judge who suspended proceedings for six (6) months to give the parties a chance "to arrive at a final satisfactory settlement" (Order dated November 12, 1987, p. 214, Record of Crim. Case No. 2822). And obviously, the attempt failed because the complainants later repudiated the affidavits (tsn, September 4, 1990, pp. 16- 17). The Court takes note that the affidavits were signed on February 20, 1987 but the jurat is dated February 19, 1987 or the day before it was signed, evidencing haste in its preparation and giving credence to complainant's claim they were forced and virtually tricked into signing the affidavits.

In his confession, Duldulao admitted he was with all the other accused when they forcibly abducted the complainants, but impliedly denied having raped them, pointing to the others as the ones who did. However, since conspiracy is alleged and duly proven, such disclaimer is for naught since the act of one is the act of all.28 Appellant's Defense of Alibi Debunked Courts have always looked upon the defense of alibi with suspicion and have always received it with caution not only because it is inherently weak and unreliable but because it is easily fabricated. For alibi to serve as basis for acquittal, it must be established with clear and convincing evidence. The requisites of time and place must be strictly met. Appellant must convincingly demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission." 29 Appellant Edwin Julian did not substantiate his claim of alibi with clear and convincing evidence. This was evident from the finding of the trial court that: In the case of Edwin Julian, the Court is not convinced that he was in Alcala, Pangasinan when the crime was committed. Not only did he fail to present the testimonies of his supposed employer and that of his brother who allegedly recommended him to that employer, he also failed to present any documentary proof of his supposed employment in the construction firm of Mr. Ruben Mendoza at the time of the incident. From Julian's demeanor on the witness stand, it appeared obvious to the Court that he was acting out a concocted story. True, his wife testified in Court but her testimony must be regarded as naturally biased. Furthermore, Julian testified that he learned of the charges against him when his father showed him the affidavits of the complainants. On the other hand, his wife testified that her co-employees in the PNP told her about the charges and it was she who

informed her husband. The Court believes that what happened is that when Julian learned of the arrest of Bumanglag and Macalipis, he fled to Pangasinan and hid there for more than a year. In fact, a warrant for his arrest was issued on May 2, 1985 (p. 8, Record of Crim. Case No. 2822). 30 Since, as previously discussed, Appellant Julian "was positively identified by the victim of rape herself who harbored no ill motive against the accused, the defense of alibi must fail." 31 In the light of the foregoing, this Court's conscience rests easy on the moral certainty that Accused-appellant Edwin Julian has been proven guilty beyond reasonable doubt of the crime charged. However, we differ with the trial court's ruling in Criminal Case No. 2822-15 declaring coconspirators Edwin Julian, Alberto Bumanglag and Pedro Duldulao guilty of forcible abduction with rape plus three more counts of rape. For when the first act of rape was committed by Edwin Julian against Nelia Agtarap, the complex crime of forcible abduction with rape was then consummated. Hence, there were only two separate acts of rape remaining, directly and successively committed by Bumanglag and, for the second time, by Julian against Nelia Agtarap, for which they may be further held liable.32 In other words, Julian, Bumanglag and Duldulao are each guilty of one count of forcible abduction with rape and two counts of rape. This modification of the trial court's judgment will benefit only Edwin Julian, as the two remaining accused (Bumanglag and Duldulao) are at large. Furthermore, this Decision is without prejudice to the filing of another information against Edwin Julian for his participation in the forcible abduction and rape of Angeles Alonzo for which he has not yet been prosecuted, as he had not been included in the amended complaint treated as the information in Criminal Case No. 2823-15. On the other hand, Appellant Julian and the other accused cannot be held liable for three counts of forcible abduction with rape. This is based on the pronouncement of the Court in People vs. Bohos 33 which was reiterated in People vs. Bacalso 34 that: Appellant's other point is: "Even if we may assume purely for the sake of argument that the complaining witness

was forcibly abducted and then raped thirteen times, we submit that there was only one forcible abduction with rape and that was the one allegedly committed on the truck or jeep. Any subsequent acts of intercourse in the house against her will would be only separate acts of rape and can no longer be considered separate complex crimes of forcible abduction with rape. This point is well taken. There was only one forcible abduction with rape which was the one committed in the truck. Thus, in People vs. Jose, et al., G.R. No. L-28322, February 6, 1971, 37 SCRA

*Penalties (Classification of Penalties) G.R. Nos. 108172-73 January 9, 1995

450, where the four accused abducted Maggie de la Riva and each of them raped her, this Court held, "that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding crimes of the same nature cannot legally be considered as still connected with the abduction — in other words they should be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter. (Emphasis supplied.)

WHEREFORE, the decision of the trial court dated September 15, 1995 in regard to Appellant is hereby MODIFIED. Appellant Edwin Julian is found guilty beyond reasonable doubt of forcible abduction with rape in Criminal Case No. 2822, but he is guilty of only two separate additional crimes of rape therein. Three terms ofreclusion perpetua are hereby imposed on him. The indemnity due to the victim Nelia Agtarap in the amount of P150,000.00 stands. The trial court's decision in regard to Accused Albeno Bumanglag and Ernesto Macalipis, who are at large, remains unmodified. SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONRADO LUCAS Y BRIONES, accused-appellant. DAVIDE, JR., J.: In the decision in this case, promulgated on 25 May 1994, the First Division touched on the nature of the penalty of reclusion perpetua in the light of Section 21 of R.A. No. 7659 1 which amended Article 27 of the Revised Penal Code by specifically fixing the duration of reclusion perpetua at twenty (20) years and one (1) day to forty (40) years. It opined that since no corresponding amendment to Article 76 of the Revised Penal Code was made, the said laws has not made explicit an intention to convert reclusion perpetua into a divisible penalty. Nevertheless, it applied Article 65 of the Revised Penal Code 2 and stated: Accordingly, the time included in the penalty of reclusion perpetua (twenty [20] years and one [1] day to forty [40] years) can be divided into three equal portions with each composing a period. The periods of reclusion perpetua would then be as follows:

Taking into account the presence of the aggravating circumstance of relationship in Criminal Case No. Q-9118465, the accused may finally be sentenced to thirty-four (34) years, four (4) months and one (1) day of reclusion perpetua. It then modified the challenged decision of the trial court by changing the penalty in Criminal Case No. Q-91-18465 from reclusion perpetua, as imposed by the trial court, to "imprisonment of 34 years, 4 months and 1 day ofreclusion perpetua." In a motion for clarification seasonably filed by the appellee on 28 June 1994 which was not opposed by the accused-appellant in his comment, the appellee asks the Court to correct the duration of the maximum period ofreclusion perpetua from thirty-four (34) years, four (4) months and one (1) day to forty (40) years, as stated in the decision, to thirty-three (33) years, four (4) months and one (1) day to forty (40) years.

minimum

— 20 years and 1 day to 26 years and 8 months

medium

— 26 years, 8 months and 1 day to 33 years and 4 months

maximum

— 34 years, 4 months and 1 day to 40 years

Since the issue of whether the amendment of Article 27 of the Revised Penal Code by Section 21 of R.A. No. 7659 has made reclusion perpetua a divisible penalty is one of first impression and of sufficient importance, the First Division referred the motion for clarification to the Court en banc. The latter accepted the referral. After deliberating on the motion and re-examining the legislative history of R.A. No. 7659, the Court concludes that although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty. R.A. No. 7659 is a consolidation of Senate Bill (SB) No. 891 3 and House Bill (HB) No. 62. 4 SB No. 891 seeks to amend Article 27 of the Revised Penal Code by inserting therein what are to be considered heinous crimes and to penalize these not with the death penalty, but which reclusion perpetua only, with the qualification that

"any person sentenced to reclusion perpetua for . . . [such heinous] crimes under this Code shall be required to serve thirty (30) years, without entitlement to good conduct time allowance and shall be considered for executive clemency only after service of said thirty (30) years." HB No. 62 defines and enumerates the heinous crimes and seeks to penalize them with the death penalty. An amendment by substitution to SB No. 891 was introduced by the Senate Special Committee on Death Penalty. The amendment was entitled "An Act to Impose the Death Penalty on Certain Heinous Crime, Amending for that Purpose some Articles of Act No. 3815, as Amended, and for other Purposes." The substitute amendment sought to amend (a) Article 25 of the Revised Penal Code by providing in the scale of penalties the following: CAPITAL PUNISHMENT: DEATH Afflictive Penalties: LIFE IMPRISONMENT

Reclusion Perpetua Reclusion Temporal and (b) Article 27 of the same Code by inserting therein the penalty of life imprisonment and providing a specific duration therefor as well as for reclusion perpetua. The proposed amended Article 27 pertinently reads as follows: Art. 27. LIFE IMPRISONMENT. — THE PENALTY OF LIFE IMPRISONMENT SHALL BE FROM THIRTY YEARS AND ONE DAY TO FORTY YEARS. RECLUSION PERPETUA — THE PENALTY OF RECLUSION PERPETUA SHALL BE FROM TWENTY YEARS AND ONE DAY TO THIRTY YEARS. Thus, life imprisonment, therefore a penalty imposed by special penal statutes, was sought to be incorporated as penalty in the revised Penal Code with a specific duration. In his sponsorship of this substitute bill, Senator Arturo M. Tolentino explained the incorporation of life imprisonment as follows: But a very basic amendment was made, and that is, an amendment that will create a new penalty, known in this bill as life imprisonment. The new penalty was created in order to enable the committee to provide, in some crimes, a three-grade penalty that would be composed of reclusion perpetua, as now provided by the Revised Penal Code, as the lowest grade; on top of that, would be life imprisonment; and the third highest grade would be death penalty. With this new grade of penalty, it became possible for this bill now under consideration to impose a penalty ranging from reclusion perpetua to death, composed of actually three periods or grades. 5

However the Bicameral Conference Committee eliminated from the proposed amendment of Article 27 the penalty of life imprisonment but extended the duration of reclusion perpetua from twenty (2) years and one (1) day to forty (40) years. Thus, in his sponsorship of the Conference Committee report on both the substitute SB No. 891 and HB No. 62, Senator Tolentino stated: By this, Mr. President, we have this new consolidated session that is before the Members of this Chamber. There is one part or one portion of the Senate version that we have agreed to be eliminated and that is the creation of the new penalty known as "life imprisonment." Even in this Chamber, there were some doubts as to the creation of this new penalty of life imprisonment becausereclusion perpetua, which is in the Revised Penal Code and retained in this bill, also means the same thing. It is a perpetual imprisonment. So in order to still accommodate the increase of imprisonment by means of life imprisonment — while we eliminated the new penalty of life imprisonment which would last from 30 years and one day to forty years — what we did was simply to extend the period of reclusion perpetua by adding 30 to 40 years imprisonment to the original 20 to 30 years, making the reclusion perpetua in this new bill range from 20 years to one day to 40 years. This would be what we had called one day before a "flexible or divisible penalty." 6 Although Senator Tolentino described reclusion perpetua as a "flexible or divisible" penalty, yet in the portion of his sponsorship speech immediately succeeding the foregoing description, he explicitly stated that the said penalty is one of the two indivisible penalties in the Revised Penal Code. Thus: Instead of having three penalties in the divisible [sic] penalty, we would have

only two indivisible penalties — reclusion perpetua to death; and the principles on aggravating and mitigating circumstances in the Revised Penal Code will be applicable to this penalty of reclusion perpetua to death. 7 At first glance, by stating that reclusion perpetua was "flexible and divisible" and then later referring to it as one of two indivisible penalties, Senator Tolentino might have fallen into an inconsistency. If we recall, however, what he stated in his sponsorship speech to substitute bill where, as above adverted to, he mentioned the proposed threegrade penalty ranging from reclusion perpetua to death, then indeed he could also be correct in the sense that such three-grade concept would in fact be a complex penalty which would be divisible, with each grade composing a period and which could then be governed by Article 77 8 of the Revised Penal Code. That Senator Tolentino had this three-grade penalty in mind when he spoke of flexibility and divisibility and that he stood by his subsequent statement that reclusion perpetua is one of two indivisible penalties is further borne out by his explanations in relation to the rule in Article 63 of the Revised Penal Code on the application of mitigating circumstance. Thus: Senator Tolentino. In general, Mr. President, in all of these heinous crimes, the penalty reclusion perpetua to death. Unless otherwise provided in the bill itself, this means that the provisions on aggravating and mitigating circumstances will apply to them. Therefore that means, if there is no mitigating and no aggravating circumstances, the penalty of death will not be applied because under the provisions of the revised Penal Code, when there are two indivisible penalt[ies] such as reclusion perpetua to death, if there is no aggravating circumstance, then the penalty will be of lesser degree, which means: life imprisonment. But even if there is an aggravating circumstance, still death penalty will not be applied because it will still be

the lesser penalty. This is how it is going to operate. But if there is an aggravating circumstance, without any mitigating circumstance, the Revised Penal Code provisions for the application of the higher penalty or the death penalty. That is how it is going to operate. . . . ... Senator Tañada. Mr. President, permit me to clarify the matter further. The Gentleman is saying that the principle of mitigating and aggravating circumstances is applicable in general to all these crimes listed in this consolidated version. That means that, first, if there is no aggravating circumstance and there is no there is no mitigating circumstance, then the crime, although listed here in the measure, will not be punished by death but by the lesser penalty of reclusion perpetua. Senator Tolentino. Yes, Mr. President. Senator Tañada. Second, if there is an aggravating circumstance, but there is also a mitigating circumstance, then generally speaking, that aggravating circumstance is offset by the mitigating circumstance in which case the lesser penalty which is reclusion perpetua will be the one imposed. Senator Tolentino. That is right, Mr. President. 9 Article 63 of the Revised Penal Code provides that in all cases in which the law prescribes a single indivisible penalty, it shall be applied regardless of any mitigating or aggravating circumstance that may have attended the commission of the deed, and if the law prescribes a penalty composed of two indivisible penalties, then the greater penalty shall be applied if there is present only one aggravating circumstance, and the lesser penalty shall be applied when the commission of the act was attended by some mitigating circumstance but without an aggravating circumstance or when there was neither mitigating nor aggravating circumstance, and if both mitigating and aggravating circumstances were present,

the court shall reasonably allow them to offset one another taking into account their number and importance and then to apply preceding rules according to the result of such compensation. Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no statutory rules for determining when eitherreclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for imposingreclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances. This problem revolving around the non-applicability of the rules in Article 63 assumes serious proportions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty ofreclusion perpetua to death is also imposed on treason by a Filipino (section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and serious illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape committed under certain circumstances (Section 11), and plunder (Section 12). Now then, if Congress had intended to reclassify reclusion perpetua as a divisible penalty, then it should have amended Article 63 and Article 76 of the Revised Penal Code. The latter if the law on what are considered divisible penalties under the Code and what should be the duration of the period thereof. There are, as well, other provisions of the Revised Penal Code involving reclusion perpetua , such as Article 41 on the accessory penalties thereof and paragraphs 2 and 3 of Article 61, which have not been touched by a corresponding amendment. What then may be the reason for the amendment fixing the duration of reclusion perpetua? The deliberations in the Bicameral Conference Committee and in both Chambers of Congress do not enlighten us on this, except the cryptic statement of Senior Tolentino adverted to above on the elimination of the "new penalty" of life

imprisonmentby the Bicameral Conference Committee. It may, however, be pointed out that although the Revised Penal Code did not specify the maximum of reclusion perpetua , it is apparent that the maximum period for the service of this penalty shall not exceed forty (40) years. In People vs. Reyes, 10 this Court, speaking through Mr. Justice Florenz D. Regalado, stated: We hold that there is legal basis, both in law and logic, for Presidential Decree No. 818 to declare that any penalty exceeding twenty (20) years, or the maximum duration of reclusion temporal, is within the range of reclusion perpetua. It will be observed that Article 27 of the Code provides for the minimum and maximum ranges of all the penalties in the Code (except bond to keep the peace which shall be for such period of time as the court may determine) from arresto menor to reclusion temporal, the latter being specifically from twelve years and one day to twenty years. For reclusion perpetua, however, there is no specification as to its minimum and maximum range, as the aforesaid article merely provides that "(a)ny person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon." The other applicable reference to reclusion perpetua is found in Article 70 of the Code which, in laying down the rule on successive service of sentences where the culprit has to serve more than three penalties, provides that "the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of

the penalties imposed upon him," and "(i)n applying the provisions of this rule the duration of perpetual penalties ( pena perpetua) shall be computed at thirty years." The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. Since, however, in all the graduated scales of penalties in the Code, as set out in Article 25, 70 and 71, reclusion perpetua is the penalty immediately next higher to reclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is twenty (20) years and one (1) day with duration thereafter to last for the rest of the convict's natural life although, pursuant to Article 70, it appears that the maximum period for the service of penalties shall not exceed forty (40) years. It would be legally absurd and violative of the scales of penalties in the Code to reckon the minimum of reclusion perpetua at thirty (30) years since there would thereby be a resultant lacuna whenever the penalty exceeds the maximum twenty (20) years of reclusion temporal but is less than thirty (30) years. 11

At most then in fixing a specific duration for reclusion perpetua , Section 21 of R.A. No. 7659 merely restated the existing jurisprudence.

of Fifty Thousand Pesos (P5,000.00); and

WHEREFORE, the Court resolved to MODIFY the decision of 25 May 1994 in this case by DELETING therefrom the disquisitions on whether reclusion perpetua is a divisible penalty and SETTING ASIDE its division into three periods and, finally, AMENDING the dispositive portion thereof to read as follows:

(2) In Criminal Case No. Q-91-18466, accused JOSE CONRADO LUCAS Y BRIONES is hereby found GUILTY beyond reasonable doubt of the lesser offense of attempted rape and is hereby sentenced to suffer an indeterminate penalty ranging from Four (4) Years, Two (2) Months and One (1) Day of prision correccional as minimum to Ten (10) Years and One (1) Day of prision mayor maximum, and to indemnify the offended party, Chanda Lucas y Austria, in the sum of Thirty Thousand Pesos (P30,000.00).

WHEREFORE, the challenged decision of 28 October 1992 of Branch 104 of the Regional Trial Court of Quezon City in Criminal Case No. Q-91-18465 and Criminal Case No. Q-91-18466 is hereby AFFIRMED, subject ot the modifications above indicated. As modified: (1) In Criminal Case No. Q-91-18465, in addition to the penalty of reclusion perpetuaimposed by the trial court, accused JOSE CONRADO LUCAS Y BRIONES is further ordered to indemnify the offended party, Chanda Lucas y Austria, in the sum

Costs against the accused-appellant. SO ORDERED.

*Probation G.R. No. 152044

July 3, 2003

DOMINGO LAGROSA and OSIAS BAGUIN, petitioners, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents. YNARES-SANTIAGO, J.: This is a petition for review of the decision of the Court of Appeals in CA-G.R. No. 67308,1 which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners’ Application for Probation, and its Order denying petitioners’ Motion for Reconsideration.2 The undisputed facts are as follows. On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2, rendered a decision in Criminal Case No. 8243,3 finding petitioners Domingo Lagrosa and Osias Baguin guilty of violation of Section 68 of P.D. 705, as amended (The Revised Forestry Code), for having in their possession forest products without the requisite permits. The trial court sentenced them to suffer the indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. Petitioners’ Motion for Reconsideration of the decision4 was denied by the trial court on November 21, 1996.5 Petitioners appealed their conviction to the Court of Appeals, where it was docketed as CA-G.R. CR No. 20632.6On March 14, 2000, the appellate court affirmed the conviction of the petitioners, with the modification as to the penalty imposed, which was reduced to an indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to one (1) year, eight (8) months and twenty one (21) days of prision correccional, as maximum.7 The decision became final and executory on April 12, 2000. On August 29, 2001, petitioners filed an Application for Probation with the trial court,8 which, as mentioned at the outset, was denied. Petitioners’ motion for reconsideration was likewise denied by the trial court. Hence, petitioners filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 67308.9 On January 11, 2002, the

Court of Appeals rendered the assailed decision affirming the questioned resolutions of the trial court. Hence this petition, raising the following arguments: 1) That Section 4 of Presidential Decree No. 968, as amended by PD No. 1990, is very absurd and illogical considering that petitioners were not given the opportunity to apply for probation when they were convicted by the Regional Trial Court of Bohol, Branch 2, because the penalty imposed by said court is more than six (6) years and therefore nonprobationable. That the first opportunity for herein petitioners to apply for probation was when the Court of Appeals modified the sentence imposed by the Regional Trial Court of Bohol, Branch 2, from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, to six (6) months and one (1) day to one (1) year, eight (8) months and twenty one (21) days as maximum which is clearly probationable. 2) That the ruling of this Honorable Supreme Court in the case of Pablo Francisco versus Court of Appeals, et al., G.R. No. 108747, is not applicable to the instant case because in the said Francisco case the accused therein can apply for probation because the penalty imposed by the lower court was already probationable but the accused instead appealed the decision but in the case of herein petitioners they cannot apply for probation when they were convicted because the penalty imposed by the lower court was more than six (6) years and therefore nonprobationable. 3) That the decision of the Court of Appeals herein sought to be reviewed is clearly contrary to the purpose of the Probation Law.10 The law that is at the heart of this controversy is Presidential Decree No. 968, also known as the Probation Law, as amended by P.D. 1990, the pertinent provision of which reads: SEC. 4. Grant of Probation. – Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. (underscoring ours)

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a maximum term of imprisonment of more than six years are disqualified from seeking probation. It should be noted that before P.D. 968 was amended by P.D. 1990, the accused was allowed to apply for probation even after he had already filed an appeal, as long as he had not yet begun to serve his sentence.11 Petitioners contend that they should be allowed to apply for probation even if they had already appealed the decision of the trial court. They argue that their case should be considered an exception to the general rule which excludes an accused who has appealed his conviction from the benefits of probation. In the case at bar, the trial court sentenced petitioners to a maximum term of eight years, which was beyond the coverage of the Probation Law. They only became eligible for probation after the Court of Appeals modified the judgment of the trial court and reduced the maximum term of the penalty imposed on them to one year, eight months and twenty-one days.12They submit that the ruling in the case of Francisco v. CA13 is not applicable because in that case, the accused appealed their conviction notwithstanding the fact that the maximum term of the prison sentence imposed on them by the trial court was less than six years.14 In its Comment, the Office of the Solicitor General reiterates the express provision of P.D. 968 prohibiting the grant of probation to those who have appealed their convictions.15 It argues that, even if the petitioners have appealed for the purpose of reducing an incorrect penalty, this fact does not serve to remove them from the prohibition in Section 4 of P.D. 968 for the law makes no such distinction.16 There is no question that petitioners appealed from the decision of the trial court. This fact alone merits the denial of petitioners’ Application for Probation. Having appealed from the judgment of the trial court and having applied for probation only after the Court of Appeals had affirmed their

conviction, petitioners were clearly precluded from the benefits of probation.17 However, petitioners now ask us not to apply the letter of the law, claiming that their situation should be considered an exception to the rule. Their petition is without merit. Petitioners repeatedly assert that their application for probation was made at the "first opportunity," undoubtedly invoking the fourth "whereas" clause of P.D. 1990, which reads: WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated; x x x. To bolster this assertion, petitioners claim that what prompted them to appeal the decision of the trial court was the erroneous penalty imposed by the trial court.18

*Probation G.R. No. 108747 April 6, 1995 PABLO C. FRANCISCO, petitioner, vs. COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents. BELLOSILLO, J.: Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused — to wager on the result of his appeal — that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an

Petitioners are not being very candid. In their appellant’s brief filed in CA-G.R. CR No. 20632, they raised the following assignment of errors: I. THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED GUILTY OF THE OFFENSE CHARGED BECAUSE THE EVIDENCE AGAINST THEM LACKS MORAL CERTAINTY. II. IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN IMPOSING THE PROPER PENALTY AS PROVIDED BY LAW. The fact that petitioners put the merits of their conviction in issue on appeal belies their claim that their appeal was prompted by what was admittedly an incorrect penalty. Certainly, the protestations of petitioners connote a profession of guiltlessness, if not complete innocence, and do not simply assail the propriety of the penalties imposed. For sure, petitioners never manifested that they were appealing only for the purpose of correcting a wrong penalty – to reduce it to within probationable range. Hence, upon interposing an appeal, more so after asserting their innocence therein, petitioners should be precluded from seeking probation. By perfecting their appeal, petitioners ipso facto relinquished the

"escape hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse. As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990? Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst and blurted — You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . .Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all. Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate

alternative remedy of availing of the Probation Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused who, although already eligible, does not at once apply for probation, but did so only after failing in his appeal.19 Although it has been suggested that an appeal should not bar the accused from applying for probation if the appeal is solely to reduce the penalty to within the probationable limit may be equitable,20 we are not yet prepared to accept this proposition, specially given the factual circumstances of this case. Had the petitioners’ appeal from the decision of the trial court raised the impropriety of the penalty imposed upon them as the sole issue, perhaps this Court would have been more sympathetic to their plight. Unfortunately, their misrepresentation has led to their own undoing. WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated January 11, 2002 in CA-G.R. No. 67308, which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners’ Application for Probation, and its Order denying petitioners’ Motion for Reconsideration, is AFFIRMED. Costs against the petitioners. SO ORDERED.

Informations instituted by five (5) of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to 12 April 1980. On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit. 1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar Colindres, to appear and testify. Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial Court.

On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating circumstance analogous to passion or obfuscation. Thus — . . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he must have been angry and worried "about some missing documents . . . as well as the letter of the Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . . " the said defamatory words must have been uttered in the heat of anger which is a mitigating circumstance analogous to passion or obfuscation. 2 Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . " 3 After he failed to interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment by the MeTC which, as a consequence, issued a warrant of arrest. But·before he could be arrested petitioner filed an application for probation which the MeTC denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ." 4

move for reconsideration of the questioned order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public Service Commission, 31-SCRA 372). Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of power in denying the petitioner's application for probation . . . . Fourthly, the petition for probation was filed by the petitioner out of time . . . . Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by the defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules out probation where an appeal has been taken . . . . 5 The motion for reconsideration was likewise denied.

Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds — Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition. Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider its above order; in fact, he had failed to give the court an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is, however, required to

In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor technicalities which may militate against his petition as he now argues before us that he has not yet lost his right to avail of probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of the benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the penalties imposed upon him by the said court to enable him to qualify for probation." 7 The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his

conviction to the RTC which affirmed the MeTC except with regard to the duration of the penalties imposed. Petitioner is no longer eligible for probation. First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused. 10 The Probation Law should not therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit from the terms of the law who is not clearly within them. Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to any to suit the case of petitioner. While the proposition that an appeal should not bar the accused from applying for probation if the appealis solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals— . . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any statutory language that appears to favor the accused in acriminal case should be given.a "liberal interpretation." Courts . . . have no

authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the statute themselves, and·as illuminated by the history of that statute, leave no room for doubt or interpretation. We do not believe that "the spirit of·the law" may legitimately be invoked to set at naught words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by judges and all others who are charged with the application and implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words actually used by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the words of the legislature. The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled search for the meaning which the law-making authority projected when it promulgated the language which we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Courtis simply·reading Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning which shines through the words of the statute. The first duty of the judge is to take and apply a statute as he finds it, not as he would like·it to be. Otherwise, as this Court in Yangco v. Court of First

Instance warned, confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more difficult to achieve: . . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with the English language as found in statutes and contracts, cutting the words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves

are unable to advise their clients as to the meaning of a given statute or contract until it has been submitted to some court for its interpretation and construction. The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12 Therefore, that an appeal should not·bar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." In Bersabal v. Salvador, 13 we said — By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced. And where the law does not distinguish the courts should not distinguish; where the law does not make exception the court should not except. Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility for,

nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private complainants on four (4) different, separate days, he was still·eligible for probation, as each prison term imposed on petitioner was probationable. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong doing but because of the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation. To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to atotal prison term of thirteen (13) years, and another who

has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is disqualified from availing of probation. Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of probation. Since he could have, although he did not, his appeal now precludes him from applying for probation. And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him should be summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as the total of his penalties exceeds six (6) years. The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties imposed by the MeTC cannot be any clearer — "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating circumstance for each case, count or incident of grave oral defamation·There is no valid reason therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner in each of the sixteen (16) cases

and reducing only the duration of the penalties imposed therein. Thus — Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows: WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the above entitled cases and appreciating in his favor the mitigating circumstance which is analogous to passion or obfuscation, the Court hereby sentences the said accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay the costs. 16 Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases, counts or incidents was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole modification on the duration of the penalties. In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the penalties is not the test, petitioner should have immediately filed an application for probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability. Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and probation mutually exclusive remedies. 17 Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible for probation — since he was already qualified under the MeTC Decision — but rather to insist on his innocence. The

appeal record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because of his positive identification by the witness for the prosecution; (b) in giving full faith and credence to the bare statements of the private complainants despite the absence of corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed an error in relying on his positive identification considering that private complainants could not have missed identifying him who was their President and General Manager with whom they worked for a good number of years. Petitioner further argued that although the alleged defamatory words were uttered in the presence of other persons, mostly private complainants, co-employees and clients, not one of them was presented as a witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of the uncorroborative testimony of private complainants. 19 Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of correcting a wrong penalty — to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after asserting his innocence therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of an accused who although already eligible does not at once apply for probation, but doing so only after failing in his appeal. The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his penalties. Conversely, he was afraid that the Court of Appeals would increase his penalties, which could be worse for him. Besides, the RTC Decision had already become final and executory because of the negligence, according to him, of his former counsel who failed to seek possible remedies within the period allowed by law.

Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral defamation, committed on four (4) separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the Information. Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period allowed by law and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the arrest of petitioner had been issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a significant fact which militates against the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue — . . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended, provides thus: Sec. 4. Grant of Probation. — Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal. . . . place the defendant on probation . . . . Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement that the petitioner was up

for execution of judgment before he filed his application for probation. P.D. No. 968 says that the application for probation must be filed "within the period for perfecting an appeal;" but in this case, such period for appeal had passed, meaning to say that the Regional Trial Court's decision had attained finality, and no appeal therefrom was possible under the law. Even granting that an appeal from the appellate court's judgment is contemplated by P.D. 968, in addition to the judgment rendered by the trial court, that appellate judgment had become final and was, in fact, up for actual execution before the application for probation was attempted by the petitioner. The petitioner did not file his application for probation before the finality of the said judgment; therefore, the petitioner's attempt at probation was filed too late. Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed only after judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of sentence. The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final, for him to file the application for probation with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow probation after an appeal has been perfected. Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties were already probationable, and in his appeal, he asserted only his innocence and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an application for probation outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review should be as it is hereby DENIED. SO ORDERED.