Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 77776 June 27, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROMEO AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY, DANTE AGAPINAY, DELFIN AGAPINAY and CIRILO AGAPINAY, accused-appellants.

The Solicitor General for plaintiff-appellee.

Juan T. Antonio for accused-appellants.

 

SARMIENTO, J.:

On April 11, 1983, the then Acting Provincial Fiscal of Cagayan, Alejandro Pulido, filed an information accusing Romeo, Alex, Fortunato, Dante, Delfin, and Cirilo, all surnamed Agapinay, of murder, as a consequence of the fatal stabbing of Virgilio Paino on April 13, 1981. The same reads as follows:

That on or about April 13, 1981, in the municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Romeo Agapinay, Alex Agapinay, Fortunate Agapinay, Dante Agapinay, Delfin Agapinay and Cirilo Agapinay, armed with bolos (lilit) and stones, conspiring together and helping one another, with intent to kill, with evident premeditation, with treachery and with abuse of superior strength, did then and there wilfully, unlawfully and feloniously assault, attack, chase, stone and stab, one, Virgilio Paino, inflicting upon him wounds on his body which caused his death.

Contrary to law. 1

On arraignment, all six accused pleaded "not guilty." 2

The evidence of the prosecution shows that the Agapinays are brothers, except Romeo, who is Delfin's son,3 and that along with Virgilio Paino, Amor Flores, and Eufemio Paino, they were hirelings of Julia Rapada, an operator of fishing boats. On April 12, 1981, they set out, along with other complement, on a fishing venture in the sea of Batangan, in Gonzaga, Cagayan. They returned to shore the following day, April 13, 1981, whereupon, they unloaded their catch and spread out their fishnet on the sand to dry. Thereafter, except for Romeo Agapinay, they mended the net, with thread and small knives, under portable shed. 4 Meanwhile, Virgilio Paino took the shed and placed it where he and Alex and Cirilo Agapinay were. Moments later, Romeo Agapinay appeared and confronted Virgilio, and berated him for taking the shed without permission. Virgilio said that they were going to use it. Shortly, the two exchanged words and tempers apparently flared. Romeo lunged at Virgilio with a hunting knife, six inches long, that hit his right arm. Virgilio ran away but Delfin and Fortunato Agapinay met him and held on to his arms. Romeo approached him and dealt him a second stab at

the right side of his back. Virgilio, however, managed to extricate himself again and ran away. While he was running, Delfin, Alex, Fortunate, Dante, and Cirilo took turns in stoning him. All of a sudden Amor Flores appeared and plunged a knife at the back of Virgilio. It was then that Virgilio collapsed. Meanwhile Julia cried, "Kill him and we will bury him." 5

The prosecution also established that Cirilo and Delfin had attacked Eufemio Paino, a brother of Virgilio, with their own knives but the latter defended himself with a paddle. The former ran away. The rest of the Agapinays likewise fled. 6

Antonio and Eufemio Paino, brothers of Virgilio, and Artemio Siababa brought the wounded Virgilio to his (Virgilio's) house. 7 The latter supposedly executed an ante-mortem statement there wherein he implicated the Agapinays as well as Amor Flores, as responsible for the incident. Thereafter, he was brought to the Don Alfonso Enrile Hospital at Gonzaga. He was dead, however, on arrival. 8

Police Corporal Rugino Sunico, when informed of the stabbing, went to the scene to investigate but Virgilio had already been brought to his home. Later, Patrolman Sunico took a supposed confession of Romeo Agapinay who surrendered to him at 9:00 o'clock in the morning of April 13,1981. Meanwhile, Cirilo and Delfin Agapinay proceeded to the police headquarters to complain that Eufemio Paino also assaulted them. They refused to make any further statement. 9

The cadaver of Virgilio was later autopsied. Dr. Silverio Salvanera's post-mortem examination showed that the late Virgilio Agapinay suffered the following injuries:

... (a) 2 cm. long, penetrating to the liver, directed upwards and medially, located at the level of the 7th intercostal space along the mid-clavicular line; (b) 2.5 cm. long penetrating to the lungs, directed upwards and medially, located at the level of the 7th intercostal space along posterior axillary line; and (c) Thru and thru wound at the medial aspect between the distal and medial 3rd of the right arm, 2.5 cm. point of entrance, 1.5 cm. point of exit, 6.2 cm. apart. 10

After the prosecution rested, the accused presented their evidence.

Cirilo Agapinay stated that the incident started when Virgilio Paino grabbed the atal (a piece of wood used to roll boats ashore) without his, Cirilo's, permission. Cirilo resented this but Virgilio allegedly clubbed him and that he lost consciousness. Delfin and Fortunato Agapinay brought him to the hospital. 11

Delfin Agapinay, on the other hand, testified that he was with

Cirilo and a certain Jesus Alveza on that fateful morning at the seashore of Batangan mending fishnet. There, Virgilio confronted them and asked why Cirilo took the atal without his permission. Cirilo declared that he had Virgilio's companions' permission. It was then that Virgilio clubbed Cirilo until the latter passed out. He claimed that Romeo, Dante, Alex, and Fortunato Agapinay were not around when the incident happened. 12 He testified, finally, that Virgilio attacked them with a knife and that he, together with Cirilo, sustained injuries.

Fortunato Agapinay contended that he was asleep aboard the boat at the time and was roused by his nephew, Alfredo Maximo, and whereupon, he saw men fighting. Cirilo and Delfin Agapinay, together with Amor Flores, were allegedly on their way home, whom he followed. Upon reaching their house, Romeo Agapinay appeared and confessed that he had stabbed Virgilio Paino. 13

Alex Agapinay testified that he was with Salvador and Mariano Agapinay at that time repairing a lamp. They then saw Fely Rose Paino running, who informed them that Virgilio Paino had been stabbed, and that Romeo Agapinay was the culprit. Dante Agapinay corroborated his testimony. 14

Romeo Agapinay, who had been tagged as the knife-wielder, alleged that on April 13, 1981, he was at the shore of Batangan, in Buguey, mending net. He claimed that he was with his father, Delfin Agapinay, and uncle, Cirilo Agapinay, a certain Martin Maximo, Jesus Alveza, and unidentified complement. It was then that Virgilio Paino suddenly appeared "uttering bad words to his father Delfin." 15 Virgilio then allegedly struck Cirilo Agapinay and his father with a paddle. He stated that he was forced to stab Virgilio three times. Virgilio allegedly later went home alone. 16

The defense pictured Virgilio as having been drunk at that time, and that he came on strong without provocation, haranguing the Agapinays for two hours. 17

The trial judge rejected the accused's claim of defense of relative 18 and convicted all six accused of the crime of murder, attended by treachery. 19 He also noted that it was not Virgilio who assaulted Cirilo and Delfin Agapinay with a knife, but rather, Eufemio Paino. He held that the Agapinays can not thus say that they had been defending themselves (against Virgilio).

The lower court also found that the Agapinays had conspired to kill Virgilio Paino and thus held them, in the dispositive portion of its decision, "all principals by participation."

In giving credence to the prosecution's evidence, the trial court observed that Virgilio could not have given a valid cause for the Agapinays to assault him. ("[I]t is hard to believe that the late Virgilio just clubbed accused Cirilo and Delfin without cause." 20 )

Virgilio could not have blamed the Agapinays, as the latter claim, for taking the atal (the act that, as alleged by the Agapinays, precipitated the fight), because it was Fortunato Agapinay who was the head of the complement, and if any person should begrudge the Agapinays' act, the logical one was he, Fortunate. ("Thus, there is no plausible reason for the late Virgilio to have clubbed Cirilo and Delfin as the deceased was not the owner of the atal ..." 21)

The trial court likewise found that Cirilo and Delfin were not defending themselves against Virgilio when they suffered stab wounds of their own, but rather, against Eufemio Paino. It lent faith and credence to Corporal Sunico's testimony who heard both Cirilo and Delfin pin the blame on "Temyong" (Eufemio) Paino.22

The court commanded the Provincial Fiscal to indict Julia Rapada as alleged principal by inducement for having ordered the Agapinays to "[k]ill Virgilio Paino, " 23 as well as Amor Flores, to account for their crimes. (Neither of them is accused in the Information.)

It found that no evident premeditation attended the killing but appreciated treachery and conspiracy. The dispositive portion of its Decision reads:

WHEREFORE, PREMISES CONSIDERED, this Court finds accused Romeo Agapinay, Delfin Agapinay, Cirilo Agapinay, Fortunato Agapinay, Alex Agapinay and Dante Agapinay, all principals by participation, guilty beyond reasonable doubt of the crime of murder prescribed and penalized under Article 248 of the Revised Penal Code and hereby sentences each of herein accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of deceased Virgilio Paino the sum of THIRTY THOUSAND (P30,000.00) PESOS and to pay the costs of this suit.

SO ORDERED. 24

The six accused now submit that the Decision under appeal should be reversed, and that the trial court erred in the following terms:

 

FIRST. — THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT ROMEO AGAPINAY STABBED THE DECEASED TWICE.

SECOND. — THE TRIAL COURT ERRED IN FINDING THAT DELFIN

AGAPINAY, ALEX AGAPINAY, FORTUNATO AGAPINAY TOOK TURNS IN STONING THE VICTIM.

THIRD. — THE TRIAL COURT ERRED IN ADOPTING AS PART OF THE EVIDENCE THE PROCEEDINGS AT THE PRELIMINARY INVESTIGATION (1ST STAGE) CONDUCTED BY THE MUNICIPAL CIRCUIT TRIAL JUDGE.

FOURTH. — THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY ON THE PART OF THE APPELLANTS WHEN THEY COMMITTED THE CRIME CHARGED.

FIFTH. — THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANTS ARE GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER QUALIFIED BY TREACHERY.

SIXTH. — THE TRIAL COURT ERRED IN SENTENCING THE APPELLANTS TO THE PENALTY OFRECLUSION PERPETUA.

SEVENTH. — THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANTS TO PRESENT EVIDENCE TO FIND OUT IF THE EVIDENCE TO BE PRESENTED CONSTITUTES NEWLY DISCOVERED EVIDENCE AS A BASIS FOR A NEW TRIAL. 25

We affirm, with modifications, the Decision appealed from.

To begin with, the errors, except the last, assigned by the accused refer to credibility of witnesses, and in a long line of cases, we have held that "credibility" is the domain of the trial court.

There indeed seems to be no controversy that the Agapinays (that is, the six accused) are guilty of participating in the slay of Virgilio Paino: (1) Romeo admitted having stabbed him; (2) thereafter, Delfin and Fortunato held him, whereupon, Romeo thrust another stab; (3) as Virgilio ran away, Delfin, Alex, Fortunato, Dante, and Cirilo threw rocks at him.

Although it appears that it was Amor Flores who dealt Virgilio the death blow, the Agapinays can not deny that they had the intent to kill him, and performed acts to carry that out, for which they should be held accountable under the law. 26

With respect to Amor Flores, we agree with the trial judge that he should be brought to the bar of justice. As regards, however, Julia Rapada, it is the opinion of this Court, and based on the records, that she can not be held liable (as a principal by inducement). Her words, " Kill him and we will bury him" 27 amount but to imprudent utterances said in the excitement of the hour or in the heat of anger

(it does not appear whether or not Rapada held a grudge against the deceased), and not, rather, in the nature of a command that had to be obeyed. It has been held:

xxx xxx xxx

... A chance word spoken without reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may give birth to a thought of, or even a resolution to, crime in the mind of one for some independent reason predisposed thereto without the one who spoke the word or performed the act having any expectation that his suggestion would be followed or any real intention that it produce a result. In such case, while the: expression was imprudent and the results of it grave in the extreme, he would not be guilty of the crime committed. Therefore, in applying the principles laid down to concrete cases it is necessary to remember only that the inducement must be made directly with the intention of procuring the commission of the crime and that such inducement must be the determining cause of the crime. 28

xxx xxx xxx

We also believe that conspiracy has not been shown beyond reasonable doubt to hold all six accused as co-principals in the crime of murder. As the lower court observed, the stabbing happened in the "spur of the moment." 29 Conspiracy means, however, an agreement concerning the commission of a felony and a decision to commit it. 30 If the tragedy was a chance stabbing, there can be no conspiracy to speak of.

Hence, the parties' liability should be considered individually. 31

It is our considered opinion that only Romeo, Delfin, and Fortunato should be held as principals in the crime of murder. Romeo is guilty, as he admitted in open court, by direct participation, 32 while Delfin and Fortunate are liable as principals by cooperation. 33 In holding the victim by his arms, both allowed Romeo to inflict upon him a stab wound. 34

Alex, Dante, and Cirilo, on the other hand, should be held as simple accomplices 35 for their acts of pelting the victim with rocks. Since the deceased had already sustained two stab wounds, the act of hurling rocks at him was not indispensable to justify holding them legally liable as principals. 36 There is further no doubt that murder has been committed, but not because of treachery, as ruled by the trial court. Treachery depends on the suddenness of the attack, by which the victim is rendered hors d'combat, as in an ambuscade, or any manner in which the victim is deprived of all defenses, and in which the malefactor faces no risk to himself. 37 The manner of attack must be shown. 38 There is no such showing here.

The fact that Delfin and Fortunato Agapinay held Virgilio Paino while Romeo stabbed him, does not demonstrate treachery. Rather, what it proves is abuse of superiority. It is indeed plain from the records that the trio of Romeo, Delfin, and Fortunato had taken advantage of their strength to overcome the victim who, at that time, was already injured. 39

Abuse of superiority qualifies the taking of the life of another into murder. 40 Accordingly, we affirm the trial court's Decision insofar as it found Romeo, Delfin, and Fortunate, all surnamed Agapinay, guilty as co-principals of murder. We however, find Alex, Dante, and Cirilo, also all surnamed Agapinay, guilty as accomplices in the commission of the same offense.

Anent the last error assigned, that the lower court erred in not allowing a new trial, we sustain the action of His Honor, Judge Felipe Tumacder. As he held, the appeal having been perfected, "[t]he Court ... has no more jurisdiction to entertain" 41 any incident.

The counsel for the accused alleges that "the only reason why the Notice of Appeal was filed was because on January 30, 1987, the Motion for New Trial had not been formally resolved or denied, hence, the motion was filed as a precautionary measure not to lose the right to appeal which was set to expire on February 3, 1987. 42 The accused's counsel has apparently ignored the fact that "[t]he time during which a motion ... for a new trial has been pending shall be deducted ... 43 and hence, he faced no risk of losing the right to appeal in the event his motion was denied. 44

As we noted, the trial court repudiated the accused's posturing of defense of relatives, so also do we. "Defense of relatives" requires the concurrence of three elements: (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) the person defending the relative had no part in provoking the assailant, should any provocation have been given by the person attacked. 45 Of these three requisites, "unlawful aggression" is said to be the most essential and primary, without which any "defense" is not possible or justified. Thus: "If there is no unlawful aggression there would be nothing to prevent or repel." 46 In that event, not even incomplete self-defense can be validly invoked. 47

The Court is not persuaded that Virgilio Paino had acted with unlawful aggression that might have provoked the Agapinays' deadly wrath. The records show that all that Virgilio did was to address offensive language to Delfin Agapinay. 48 In one case, this Court held that 'injurious words or threats 49 do not amount to unlawful aggression. Assuming that Virgilio did strike Delfin and Romeo Agapinay with a paddle, the expedients reveals that thereafter and upon having been stabbed in the right arm by Romeo, he, Virgilio, ran away. It has also been ruled that: "Self-defense does not justify the unnecessary killing of an aggressor who is retreating from the fray." 50

The Court finds, however, that the accused should be entitled to the mitigating circumstance of provocation51 (or vindication of a grave offense 52 or passion or obfuscation. 53) since clearly, the deceased uttered offending words ("vulva of your mother, if you are talking as if you have no debts, not like me, I have no debts" 54) that made the Agapinays, especially Romeo, react violently. While the trial court disregarded this particular piece of evidence, the entire picture seems to indicate that Virgilio Paino did say bad words that made the Agapinays act in retaliation.

WHEREFORE, Romeo, Delfin, and Fortunate, all surnamed Agapinay, are ORDERED to undergo an indeterminate sentence of ten (10) years and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years, 4 months, and one (1) day of reclusion temporal maximum, as maximum. Alex, Dante, and Cirilo, also surnamed Agapinay, are ORDERED to undergo an indeterminate sentence of four (4) years and one (1) day of prision correccional, as minimum, to ten (10) years and one (1) day of prision mayormaximum, as maximum. All six accused are also ORDERED to pay, jointly and severally, to the heirs of Virgilio Paino, the sum of THIRTY THOUSAND (P30,000.00) PESOS. Costs against the accused.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 149368             April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs.FRANCISCO DACILLO alias DODOY AND JOSELITO PACOT y IBARRA (case provisionally dismissed),accused,FRANCISCO DACILLO alias DODOY, appellant.

DECISION

CORONA, J.:

Before us on automatic review is the decision1 of the Regional Trial Court of Davao City, Branch 31, in Criminal Case No. 45,283-2000 convicting appellant Francisco Dacillo y Timtim alias Dodoy of the crime of murder and sentencing him to suffer the penalty of death.

Appellant Dacillo together with Joselito Pacot y Ibarra were indicted for murder in an information that read:

The undersigned accuses the above-named accused of the crime of Murder, under Art. 248 of the Revised Penal Code, as amended by R.A. 7659, committed as follows:

That on or about February 6, 2000, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating together and helping one another, with treachery and evident premeditation, and with intent to kill, willfully, unlawfully and feloniously attacked, assaulted and stabbed one Rosemarie B. Tallada with a bladed weapon, thereby inflicting upon the latter mortal wounds which caused her death.

That the commission of the foregoing offense was attended by the aggravating circumstance of abuse of superior strength.

CONTRARY TO LAW.2

The case against appellant’s co-accused, Joselito Pacot, was provisionally dismissed for lack of sufficient evidence to identify him with certainty.

Appellant was arraigned on February 21, 2001 and, assisted by counsel, pleaded not guilty. Pre-trial was conducted on March 1, 2001 and trial ensued thereafter.

To establish appellant’s guilt, the prosecution presented the following witnesses: Charlita Tallada, the victim’s mother; Patricia Turlao, the victim’s aunt; appellant Dacillo’s neighbors, Jovelyn Dagmil, Augusto Cesar Arara, Roche Abregon, Resna Abregon, Allan Castanares, Jupiter Campaner; police officers SPO2 Rodolfo Taburda and SPO1 Avelino Alcobus, and medico-legal officer Dr. Danilo P. Ledesma.

The facts, as established by the prosecution witnesses’ collective testimonies, follow.

The victim, seventeen-year-old Rosemarie B. Tallada, was last seen alive at dusk on February 6, 2000, on the bridge near appellant’s house at Purok No. 3, New Society Village, Ilang, Davao City.

Around 7:45 p.m. that evening, witness Jovelyn Dagmil, who was living with her aunt in the house adjacent to appellant’s, was looking for her cousin when she saw the victim Rosemarie on the bridge. Because it was drizzling, she invited Rosemarie inside their house but the latter declined and told her she was waiting for someone.3

After a while, Jovelyn heard a man inside appellant’s house calling "Psst, psst . . ." Thinking the call was meant for her, she turned but instead saw Rosemarie walking towards and entering appellant’s house.4

Not long after Rosemarie went inside the house, a struggle was heard therein. Witnesses Roche and Resna Abregon, who were in the adjacent house singing with a karaoke machine, suddenly felt the floor shaking as if a scuffle was going on at the other side of the wall. The houses were built on stilts above the seashore, adjoining one another with mere wooden partitions in between. Roche Abregon peeped through a hole on the wall and saw appellant and another man grappling with a woman who was gagged with a handkerchief.5 When Roche saw appellant choking the woman, she informed her aunt about the commotion in appellant’s house but the aunt brushed it aside as a simple family quarrel.6 For a while they heard the sound of a woman being beaten up. Then everything became quiet. Later that evening, they saw appellant leaving his house.7

The following day, February 7, 2000, at around 8:00 a.m., appellant was seen entering his house carrying lumber and screen.8 He was observed going in and out of his house several times, each time carefully locking the gate as he left.9 At around 9:00 a.m., appellant was seen with ready-mixed cement in a plastic pail and, when asked what he was going to do with the cement, replied that it was for the sink he was constructing.10

Later, appellant entrusted a bag of woman’s personal belongings to barangay tanod Allan Castañares and told the latter that it belonged to his woman companion. He allegedly could not bring it home because his wife might see them.11

By February 11, 2000, neighbors started smelling the rotten odor of Rosemarie’s already decomposing body.12

At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering seashells under appellant’s house when they saw droplets of blood and pus dripping from appellant’s comfort room. They immediately reported it to their aunt who in turn instructed her husband

to get a stick and poke the sacks covering the comfort room. However, the husband instead climbed up the house and was greeted by the stink emanating from the corner where he saw a tomb-like structure. They immediately reported the matter to barangay officials who called the police.13

At about 10:00 p.m., policemen arrived at appellant’s house, accompanied by his wife, and forcibly opened the lock. They proceeded to where the tomb was located.

When cracked open, the tomb revealed the decomposing body of a woman.14

The corpse was brought to the Rivera Funeral Parlor where it was identified by the victim’s mother Charlita Tallada and aunt Patricia Turlao as that of Rosemarie, through the keloid scar on her forearm.

Dr. Danilo Ledesma conducted an autopsy on Rosemarie’s remains. His necropsy report revealed that Rosemarie died from a stab wound in the abdomen. The report further disclosed that she suffered contusions in the anterior chest wall and her right hand; an incised wound on her left middle finger; a stab wound on the left side of the face and fractures on the 2nd, 3rd, 4th, 5th, 6th and 7th ribs on her side.15

Dr. Ledesma testified that the wounds suffered by Rosemarie indicated that she put up a struggle and the wounds were inflicted before her death.16

In his defense, appellant admitted complicity in the crime but minimized his participation. Appellant alleged that he only held down Rosemarie’s legs to prevent her from struggling and, after the latter was killed by another man he identified as Joselito Pacot, he encased the corpse in cement.

He claimed that Pacot, a co-worker at Davao Union Cement Corporation (DUCC), was looking for a house where he and his girlfriend Rosemarie could spend the night. He offered his brother’s house which was under his care. In the evening of February 6, 2000, he and Joselito Pacot brought Rosemarie to the house at Purok No. 3, New Society Village, Ilang, Davao City.

After accompanying the couple there, he went home to take supper. Later that evening, he returned to the house with the bottle of Sprite Pacot had ordered. When he arrived, Pacot and Rosemarie were already grappling with each other and Pacot was strangling the girl. He told Pacot to stop but instead of heeding him, the latter ordered him to close the door. Pacot told appellant that he was going to be implicated just the same so he closed the door as ordered and helped Pacot "(hold) the feet of the woman" as "her feet kept hitting the walls."17

The two men stopped only when Rosemarie was already motionless. Pacot wanted to dump the body into the sea but appellant told him it was low tide. Appellant then suggested that they entomb the body in cement for which Pacot gave appellant P500.

Pacot left the house at dawn the following day, February 7, 2000. At past 10:00 a.m., appellant brought the concrete mixture and cast the dead body in cement. After finishing the job in the afternoon of that day, appellant reported for work at DUCC.

When the body was discovered in the evening of February 11, 2000, appellant immediately left for Cebu City, arriving there the next day, February 12, 2000. He stayed in Cebu City until his arrest the following year.

On May 31, 2001, the trial court rendered judgment finding appellant guilty of murder and imposed upon him the supreme penalty of death:

WHEREFORE, this Court finds the accused Francisco Dacillo GUILTY beyond reasonable doubt of the crime of MURDER for the death of Rosemarie Tallada, as defined and penalized under Art. 248 of the Revised Penal Code, as amended. Considering the aggravating circumstance of recidivism with no mitigating circumstance to offset the same, he is hereby sentenced to the extreme penalty of DEATH,

He is further ordered to indemnify the heirs of the offended party in the amount of P50,000.00, plus the sum of P50,000.00 as moral damages, and the sum of P50,000.00 as exemplary damages.

His immediate confinement to the national penitentiary is hereby ordered.

Costs de oficio.

SO ORDERED.18

Thus, this automatic review.

In his brief, appellant raises the following errors allegedly committed by the trial court:

I

THE COURT A QUO GRAVELY ERRED IN FINDING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN AWARDING THE HEIRS OF THE OFFENDED PARTY THE AMOUNT OF PHP50,000.00, WHICH APPEARS AS PAYMENT FOR ACTUAL DAMAGES.19

Appellant admitted that he had a hand in the killing of Rosemarie but attempted to downgrade his participation in the crime by claiming he only held Rosemarie’s legs as Pacot was strangulating her. The rule is that any admission made by a party in the course of the proceedings in the same case does not require proof to hold him liable therefor. Such

admission may be contradicted only by showing that it was made through palpable mistake or no such admission was in fact made. There was never any such disclaimer by appellant.

Moreover, despite appellant’s self-serving, exculpatory statement limiting his involvement in the crime, all circumstances pointed to his guilt. His declaration faltered in the face of the testimonies of eyewitnesses positively identifying him as one of the two men who were with Rosemarie when she was killed. Witness Roche Abregon pointed to appellant as the one who strangled Rosemarie. He was established to be inside the house at the time the witnesses heard a woman being battered. Thus, assuming for the sake of argument that Pacot was the mastermind, appellant’s admission that he participated in its commission by holding Rosemarie’s legs made him a principal by direct participation.

Two or more persons taking part in the commission of a crime are considered principals by direct participation if the following requisites are present:

1. they participated in the criminal resolution and

2. they carried out their plan and personally took part in its execution by acts which directly tended to the same end.20

Both requisites were met in this case. Two or more persons are said to have participated in the criminal resolution when they were in conspiracy at the time of the commission of the crime. To establish conspiracy, it is not essential that there be proof of the previous agreement and decision to commit the crime, it being sufficient that the malefactors acted in concert pursuant to the same objective.21

The prosecution was able to prove appellant’s participation in the criminal resolve by his own admission that, right after he was told by Pacot to close the door, he held down Rosemarie’s legs. He was pinpointed as the one who throttled the victim. He admitted that they only stopped when they were sure that Rosemarie was already dead. The two men planned how to dispose of the victim’s body; it was in fact appellant’s idea to pour concrete on the body, prevailing over Pacot’s suggestion to just dump the body into the sea. It was appellant himself who encased the body in cement and made sure that there were no leaks from which foul odor could emanate. He was a conspirator in the killing and, whether or not he himself did the strangling or the stabbing, he was also liable for the acts of the other accused.

It is well-settled that a person may be convicted for the criminal act of another where, between them, there is conspiracy or unity of purpose and intention in the commission of the crime charged.22 Conspiracy need not be proved by direct evidence of prior agreement on the commission of the crime as the same can be inferred from the conduct of the accused before, during, and after the commission of the crime showing that they acted in unison with each other pursuant to a common purpose or design.23

We are convinced beyond doubt of the joint and concerted effort between appellant and the man he identified as Pacot in the killing of Rosemarie.

Appellant likewise contends that the trial court erred in ruling that the presence of the aggravating circumstance of abuse of superior strength qualified the killing to murder. He contends that the qualifying circumstance of abuse of superior strength was not specifically alleged in the information. Nothing can be farther from the truth. A cursory reading of the information reveals that appellant was sufficiently informed of the charges against him, including the use of superior strength in killing the hapless and defenseless female victim.

The aggravating circumstance of abuse of superior strength necessitates a showing of the relative disparity in the physical characteristics of the aggressor and the victim such as age, gender, physical size and strength. We agree with the trial court that the killing of Rosemarie was committed with abuse of superior strength. As found by the courta quo, two grown-up men against a young fragile woman whose ability to defend herself had been effectively restrained revealed a shocking inequality of physical strength. The victim was much weaker in constitution and could not have possibly defended herself from her stronger assailants.24 Such disparity was manifest in the contusions in the chest and hands, wounds on the fingers, a stab wound on the left side of the face and multiple fractures in the ribs of the victim.25 The abuse of superior strength was obvious in the way Rosemarie was mercilessly beaten to a pulp.

The killing of Rosemarie was thus correctly qualified to murder by the abuse of superior strength, a circumstance specifically pleaded in the information and proved beyond reasonable doubt.

The Court, however, finds that the trial court erred in imposing the death penalty on the ground that appellant admitted during re-cross examination that he had a prior conviction for the death of his former live-in partner. The fact that appellant was a recidivist was appreciated by the trial court as a generic aggravating circumstance which increased the imposable penalty from reclusion perpetua to death.

In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information and to attach certified true copies of the sentences previously meted out to the accused.26 This is in accord with Rule 110, Section 8 of the Revised Rules of Criminal Procedure which states:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (Emphasis supplied)

The aggravating circumstance of recidivism was not alleged in the information and therefore cannot be appreciated against appellant. Hence the imposable penalty should be reduced to reclusion perpetua.

Regarding the award of P50,000 as civil indemnity to the heirs of the victim, appellant claims that said amount was awarded by the trial court as payment for actual damages. This claim is misleading. As aptly pointed out by the Solicitor General, the amount was granted by the trial court by way of indemnity ex delicto to compensate for the death of the

victim which prevailing jurisprudence fixes at P50,000.27 The award of such indemnity requires no proof other than the death of the victim and the accused’s responsibility therefor.28

The award of P50,000 as moral damages is proper, supported as it was by the testimony of Charlita Tallada, the victim’s mother, that Rosemarie’s death caused her immeasurable pain.29

In addition, the Court awards P25,000 in temperate damages, said amount being awarded in homicide or murder cases when no evidence of burial and funeral expenses is presented in the trial court.30

With regard to the award of exemplary damages, the Civil Code of the Philippines provides:

ART. 2229. Exemplary or corrective damages are imposed, by way of example of correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.

ART. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party.

In People vs. Catubig,31 we explained that:

The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.

Thus, the award of exemplary damages is warranted under Art. 2230 of the Civil Code in view of the presence of the aggravating circumstance of abuse of superior strength. Imposition of exemplary damages is also justified under Art. 2229 of the Civil Code in order

to set an example for the public good.32 For this purpose, we believe that the amount of P25,000 may be appropriately awarded.

WHEREFORE, the assailed judgment in Criminal Case No. 45,283-2000 of the Regional Trial Court of Davao City, Branch 31, is hereby AFFIRMED with MODIFICATION. Appellant Francisco Dacillo y Timtim alias Dodoy is declared guilty beyond reasonable doubt of murder as defined and penalized under Article 248 of the Revised Penal Code. There being neither aggravating nor mitigating circumstances, appellant is hereby sentenced to reclusion perpetua and is further ordered to indemnify the heirs of Rosemarie Tallada the sum of P50,000 as civil indemnity,P50,000 as moral damages, P25,000 as temperate damages and P25,000 as exemplary damages.

Costs de oficio.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-30912 April 30, 1980

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.AGAPITO DE LA CRUZ, accused-appellant.

Segundo J. Martinez for accused-appellant.

Solicitor General-Antonio for a appellee.

 

MELENCIO-HERRERA, J.:

This is an automatic review of the Decision of the Court of First Instance of Basilan City in Criminal Case No. 1903, finding AGAPITO de la Cruz guilty as principal by of the crime of Kidnapping and Serious Illegal Detention, and sentencing him to death.

By way of factual backdrop, the evidence establishes that one Antonio Yu owned 200 hectares of rubber and coconut land in Lantawan, Isabela, Basilan City. The victim, Yu Chi Chong, is his younger brother. The accused, AGAPITO de la Cruz, was an overseer of Antonio Yu for no less than ten years.

For the kidnapping and slaying of Yu Chi Chong, the City Fiscal of Basilan City filed against AGAPITO de la Cruz as Amended Information for Kidnapping with Robbery in Band and Murder, reading:

AMENDED INFORMATION

The undersigned City Fiscal of Basilan amending his information on record, accuses Agapito dela Cruz, Moros Asmad alias Busol Atib Akot, Kohotan alias Arip Alian, Angih ahas Ayub Alian, Amil alias Iburahim Hambali, Baddih alias Rajah Abduraman, Ajah alias Hajim Alian, Andali alias Ajing Akdam, Alih Itum alias Sayari Atib Akot, Jamas Jumaidi y Andas and Oyong Asidin of the crime of kidnapping with robbery in band and murder, committed as follows:

That on or about the 6th day of March, 1968, and within the jurisdiction of this Honorable Court, viz., at Lantawan, Isabela, City of Basilan Philippines, the above named accused, Agapito dela Cruz, as principal by inducement and his co-accused as co-principal by direct participation, armed with carbine and garand rifles, they being all private persons, conspiring and confederating together, aiding and assisting one with the other, did then and there willfully, unlawfully and feloniously, and for the purpose of extorting money for ransom,

kidnap and deprive the liberty of one Yu Chi Chong and demand the amount of P50,000. 00 as a consideration for, the release of Yu Chi Chong and when Yu Chi Chong was already in the custody of the accused and taking advantage of their superior force, take and steal a wrist watch (Rado) worth P150.00 and cash money in the amount of P400.00, all worth the total amount of P550.00, Philippine Currency, belonging to said Yu Chi Chong and on the way from Basilan to Sulu, the said accused with treachery and evident premeditation, assault, attack and shoot Yu Chi Chong, which caused his death and thereafter dumped the body into the sea.

Contrary to law.

xxx xxx xxx

Of the eleven charged in the Information, only AGAPITO de la Cruz. Jamas Jumaidi and Oyong Asidin were apprehended. The rest have remained at large.

On September 24, 1968, the City Fiscal asked for the discharge of Jamas Jumaidi and Oyong Asidin to be utilized as state witnesses. The trial Court granted the Motion.

The evidence of the prosecution rested mainly on the testimonies of the two discharged witnesses and that of Mohamad Sagap Salip, who all pointed to AGAPITO de la Cruz as the mastermind in the kidnapping of Yu Chi Chong.

Mohamad Sagap Salip testified that sometime in October, 1967, the accused AGAPITO met with him, Alih Itum and a certain Asmad, at which he proposed to them the killing of Antonio Yu and the kidnapping of the younger brother, Yu Chi Chong, for a ransom. Apparently, Asmad subsequently contacted some people in Jolo, Sulu, for the purpose, the accused herein among them.

The two discharged witnesses, Jamas Jumaidi and Oyong Asidin narrated what transpired thereafter as follows: On March 5, 1968, with the other accused, they sailed for Basilan City on board an outboard watercraft. The watercraft landed on the beach of Look Sapi, Basilan City, where they met Mohamad Sagap Salip and Alih Itum. They stayed in Look Sapi until 7:00 o'clock in the evening and then left in the boat for Bangcao Sapa with Sagap Salip as their guide. (Bangcao Sapa is the landing place nearest the residence of AGAPITO at Lantawan, Basilan City). They arrived at Bangcao Sapa at about 7:30 in the evening, and from there walked towards Lantawan. Two of the members of the group stayed in Bangcao Sapa to guard the motorboat. From Lantawan, they proceeded to AGAPITO's house, still with Sagap Salip as their guide, arriving there at about 3:00 o'clock in the morning.

AGAPITO met them when they arrived. He led them upstairs and gave them food. After eating, AGAPITO informed them that the two Chinese brothers would go to Lantawan on March 6, 1968 and that they were to kill Antonio Yu and kidnap Yu Chi Chong and demand ransom of P50,000.00. They agreed that P20,000.00 would go to AGAPITO. and P30,000.00 would be divided equally among the members of the group. After AGAPITO gave them actions, they rested. He woke them up at 5:00 o'clock in the morning and led them towards Lantawan to the place of ambush. Sagap Salip, who was through with his job as the guide, was then gent home by the group, while AGAPITO proceeded to the camp of

Antonio Yu. Baddish a member of the group, was instructed to go to the copra kiln of Antonio Yu, and hitch a ride in the truck of Yu Chi Chong. The rest of the group waited in the ambush spot.

In the meantime, Antonio Yu and his brother Yu Chi Chong were preparing to leave Isabela to go to their Lantawan plantation to take delivery of newly made copra. Their departure was delayed due to engine trouble. Upon arrival of the truck at Lantawan, 40 to 50 sacks of copra were loaded to be taken back to Isabela. Antonio Yu had to go to Tairan on some other business and instructed his brother to go back to Isabela and take care of the copra cargo. Isabelo Mancenido accompanied Yu Chi Chong in the truck.

At around 1:00 o'clock p.m. as the truck neared the ambush spot, Baddish as instructed, dropped his towel and requested Yu Chi Chong, who was driving, to stop the truck. When the truck came to a halt, the ambushers approached it and dragged Yu Chi Chong and Isabelo Mancenido therefrom. They shot at all of the tires with their assorted firearms, mostly carbine and garand rifles, and left with their quarry. Shortly the group released Mancenido upon the latter's pleas for mercy.

They led Yu Chi Chong, with hands tied in front of him, through the forest towards Bangcao Sapa, passing through a house where they asked for water. Upon reaching Bangcao Sapa, they found that the tide was low, rendering it impossible for them to reach their boat. While waiting, Yu Chi Chong in an attempt to escape, struck Angih with a piece of wood and tried to grab the gun of the latter but failed. Angih in anger, fired at Yu Chi Chong several times, killing him.

The gunshots which killed Yu Chi Chong were heard by two Muslim villagers. The duo walked in the direction of the source of the shots and saw the dead body. The malefactors, in the meanwhile, hid in the mangrove swamp. The two Muslims left and then came back with a group of villagers who viewed the body. Thereafter, the villagers left, leaving the body where they saw it with the intention of returning the next day.

When the villagers had gone, the armed group immediately took the body of Yu Chi Chong and left for Jolo. They dumped the body in the middle of the sea. The body of Yu Chi Chong was never recovered.

The two Muslims, who heard the gunshots, were Identified as Hajijul Salip Alam and Asadama Dansalan. They testified that during the night of March 6, 1968, they were on their way to Bangcao Sapa to go finishing. Attracted by the gunshots, they saw a dead man who appeared to be fair complexioned young, of regular build, wearing long khaki pants and a pair of white rubber shoes. They Identified the deceased to be the same man in Exhibit "A", the picture of Yu Chi Chong.

Asadama Dansalan and Hajijul Salip Alam reported the matter to Isam Dansalan, and with a group of villagers, they went back to Bangcao Sapa to view the body. They decided to leave the body where they found it, agreeing that they would call the police the following day. When they returned to the place the next day, however, they found that the body was no longer there.

Antonio Yu, the older brother of Yu Chi Chong testified as to the possible motive of AGAPITO. He manifested that he hired AGAPITO in 1957 as an overseer in his farm in Lantawan In 1964, the management and administration of the farm was transferred to AGAPITO when Yu moved to Zamboanga to look after his hardware business there. In 1967, Yu returned to Basilan and took over the management of his farm. AGAPITO's job became that of a mere supervisor. When Antonio Yu took over the farm, he noticed a significant increase in the farm's production as compared to the yield during AGAPITO's administration He also noticed that some of his cows were missing. This led him to be strict with AGAPITO and practically stripped the latter of all his powers.

In his defense, AGAPITO claimed that on March 5,1968 he reported for work in the land of Antonio Yu as usual; that in the evening he had dinner in the house of Alfonso Flores and slept there that night. He strongly asserted that he never left that house from 7:30 in the evening after eating his supper until 6:00 in the morning when he woke up the following day; after breakfast he went to the copra kiln and supervised the laborers hauling coconuts; around noontime he and Antonio Yu had lunch in the house of Alfonso Flores; thereafter Antonio Yu left for Tairan. Between 12:30 P.M. and 1:00 P.M. he heard several shots. He became apprehensive and instructed his assistant to get his carbine. On the way to the copra kiln he was informed by some laborers that the truck which they had loaded with copra had been fired upon. He went towards the truck and searched for Yu Chi Chong. When he shouted he heard an answer from Isabelo Mancenido from up the hill. The latter related to him that Yu Chi Chong had been taken by bandits but that he himself was released.

AGAPITO continued working in the plantation until October 25, 1968 when he stopped because he wanted to actively engage in politics.

AGAPITO also claimed that Oyong Asidin, Jamas Jumaidi as well as the other witnesses who testified against him were paid by Antonio Yu. 1 In fact, he actually saw some witnesses being paid. 2 He maintained that he does not know any of the co-accused except Alih Itum Asmad. 3

After a lengthy trial, a Decision was rendered by the trial Court on June 25, 1969, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Agapito dela Cruz guilty beyond reasonable doubt of the crime of kidnapping and serious illegal detention, as defined in Article 267 of the Revised Penal Code (amended by Republic Acts Nos. 18 and 1084). Finding that the crime was attended by the following aggravating circumstances, namely, abuse of confidence, commission of the offense in an uninhabited place, and abuse of superior strength, the crime having been committed with the aid of an outlaw band armed with unlicensed carbine and garand rifles in order to insure impunity, not offset by any mitigating circumstance, the accused, Agapito dela Cruz, should according to law, be, as he is, hereby sentenced to suffer the supreme penalty of death, with the accessories of the law, and costs; to indemnify the heirs of the deceased, Yu Chi Chong, in the sum of P12.000.00.

SO ORDERED.

xxx xxx xxx

From this Decision, AGAPITO, on appeal contends:

1. That the trial Court erred to discard the false testimony given by the discharged accused Jamas Jumaidi and Oyong Asidin, by applying the maxim faisus in uno falsus in omnibus;

2. That the trial Court erred to give credence to the testimony of Sagap Salip;

3. That the trial Court erred to convict the accused as master-mind or principal by inducement in the absence of the elements of conspiracy to the crime charged.

4. That the trial Court erred to consider the defense of alibi of the accused.

1. In support of the first assigned error, appellant points out that while Jamas Jumaidi, on direct examination, testified that, as he declared before the NBI, he saw the victim killed and dumped into the sea, on cross examination, he also admitted that in the statement to the NBI he answered that he did not know what had happened to the Chinese victim. 4

This is not entirely accurate. The records show that James Jumaidi had executed two Affidavits before the NBI. In the first (Exhibit 1), taken on July 8, 1968, he stated that he did not know what had happened to the Chinese and that it was only when they were back in Jolo that other companions told him that they had killed a Chinese. In his second Affidavit, however, executed on July 22, 1968, also before the NBI (Exh. C), he stated that while waiting for the tide to rise, Angih shot the Chinese and that they had dumped his body into the sea on their way to Jolo. This was the same declaration that he gave on the witness stand adding that the statement that he gave on July 8, 1968 was not entirely true, and that it was the Statement executed on July 22, 1968 which reflected the truth. When asked why he did not tell the truth right away, he replied that he did not want to be pinpointed as among those who had gone with the Chinese; 5 that he was thinking of himself as he did not want to be involved in the kidnapping and killing; 6and that neither did he want to incriminate his companions whom he feared. 7

While the two Statements are, indeed, at variance, the contradiction refers mainly to the involvement of Jamas Jumaidi and Oyong Asidin in the criminal act. But more importantly. the two Affidavits were invariably consistent on the crucial point of inquiry, namely, the role of AGAPITO in the kidnapping plot, the details thereat, the ransom to be demanded, and The distribution of the spoils.

Additionally, appellant claims that Oyong Asidin also admitted not having told the truth to the NBI when placed under cross-examination, 8 for which reason, his testimony is neither deserving of credence. But as far as this witness is concerned, he was similarly situated as Jamas Jumaidi. He had executed two Affidavits of the same tenor as Jumaidi's (Exhs. 3 and D). In the first he negated knowing what had happened to their Chinese victim, but in the second, narrated it in full detail. In both Affidavits, however, he too, consistently pointed to AGAPITO as the mastermind in whose house the criminal scheme was hatched and plotted.

We find no error on the part of the trial Court. therefore. when it gave credence to the testimonies of the two state witnesses. The rule "falsus in uno falsus in omnibus" is not mandatory. lt does not apply where the declarants are motivated by a desire to exculpate themselves and not really to pervert the truth as we find to be the case with respect to the two state witnesses.

... The rule falsus in uno falsus in omnibus is not a mandatory rule of evidence, but rather a permissible one which allows the jury or the court to draw the inference or not to draw it as circumstances may best warrant. (70 C.J., 783). The rule has its limitations, when the mistaken statement is consistent with good faith and is not conclusively indicative of a deliberate perversion, the believable portion of the testimony should be admitted. (III Wigmore secs. 1009-1015, pp. 674-683). There are, therefore, these requirements for the application of the rule, i.e., that the false testimony is as to a material point, and there should be a conscious and deliberate intention to falsify. 9

... The said rule should not apply where there is sufficient corroboration on many grounds of the testimony; where the mistakes are not on the very material points; where the errors do not arise from an apparent desire to pervert the truth but from innocent mistakes and the desire of the witness to exculpate himself though not completely. 10

Appellant, in the Reply Brief filed on November 13, 1972, argues that the statement of Jamas Jumaidi, to the effect that he does not know what happened to Yu Chi Chong, is material to the case as it refers to the body of the crime itself While it is true that this is a material point, the death of Yu Chi Chong has been proven by evidence other than the testimony of Jamas Jumaidi and Oyong Asidin. Empty shells and bloodstains were found in the place where Yu Chi Chong was shot. Asadama Dansalan and Hajijul Salip Alam also positively Identified the victim as the person in Exhibit "A", the picture of Yu Chi Chong.  11

2. Further, it is the accused's contention that the testimony of Sagap Salip should not be given credence. The trial Court, however, in its Decision, found that the testimony of Sagap Salip was unassailed, and was in itself sufficient to support the accusation. A close scrutiny of the records of the case will show that the testimony of the two discharged witness corroborate on substantial points that of Sagap Salip. We, therefore, do not find any reason to reverse the findings of the trial Court. It has been uniform jurisprudence "that with respect to the credibility of witnesses, the trial Court's findings and conclusions command great respect and weight," 12 subject to certain exceptions which are non-existent here.

3. AGAPITO further assails the conclusion of the trial Court finding him guilty as a principal by inducement reasoning that "since he did not take part in the commission of the crime, conspiracy does not exist and consequently he incurs no criminal liability.

This contention is untenable. The requisites necessary in order that a person may be convicted as a principal by inducement are:

1. That the inducement be made directly with the intention of procuring the commission of the crime; and

2. That such inducement be the determining cause of the commission of the crime by the material executor. 13

The foregoing requisites are indubitably present in this case. The two discharged witnesses testified that Asmad and Amil contacted them to go to Basilan to do a job for AGAPITO. 14 When the group was brought face to face with him, he lost no time in laying down the strategy for the killing of Antonio Yu and the kidnapping of Yu Chi Chong for ransom. It was he who knew when the truck of the intended victims would go to Lantawan to load the copra to be delivered to Isabela. He knew the route that the truck would take and the approximate time that it was to pass by. He even selected the ambush place. Clearly, he had the positive resolution to procure the commission of the crime. He, too, presented the strongest kind of temptation, a pecuniary gain in the form of ransom, which was the determining factor of the commission of the crime by his co-accused.

Without him the crime would not have been conceived, much less committed. Clearly, he was a principal by induction, with collective criminal responsibility with the material executors, his co-accused.

One is induced to commit a crime either by a command (precepto) or for a consideration (pacto) or by any other similar act which constitutes the real and moving cause of the crime and which was done for the purpose of inducing such criminal act and was sufficient for that purpose. The person who gives promises, or offers the consideration and the one who actually commits the crime by reason of such promise, remuneration or reward are both principals. 15

The inducer need not take part in the commission of the offense. One who induces another to commit a crime is guilty as principal even though he might have taken no part in its material execution. 16

4. Lastly, the accused seeks shelter behind his defense of alibi. He alleges that he was in the house of Alfonso Flores in the night of March 5, 1968, and that he never left the house from 7:30 in the evening up to 6:00 in the morning when he woke up the following day. His defense was corroborated by Federico Hilay who testified that he was with the accused that night; that they had supper together; and that he saw AGAPITO again the next day in the kitchen eating breakfast. Alfonso Flores corroborated Hilay's testimony.

The weakness of the accused's defense, however, lies in the tact that the house of Alfonso Flores is only about a kilometer away from his own house, the place where the meeting between him and his co- accused took place and where the criminal plans were laid down. 17 "The well-settled doctrine is that for alibi to be acceptable it must be shown that the place where the accused was alleged to be when the offense was committed must be located at such a distance that it was well-nigh impossible for him to be at the scene of the crime." 18 Since the distance between Agapito's house and that of Alfonso Flores was only one kilometer, it was not impossible for the accused to have left Flores' house to return to his own to confer with the group, assuming that he was, as he alleged, in Flores' house.

The defense of alibi of the accused is further negated by the testimonies of Jamas Jumaidi, Oyong Asidin and Sagap Salip, who categorically implicated the accused and vividly described the details of the meeting. "The rule is settled that the defense of alibi is worthless in the face of positive Identification by prosecution witnesses pointing to the accused as particeps criminis. Moreover, the defense of alibi is an issue of fact the resolution of which depends almost entirely on the credibility of witnesses who seek to establish it. In this respect the relative weight which the trial Judge accords to the testimony of the witnesses must, unless patently inconsistent with the evidence on record, be accepted." 19

5. The final point for consideration is the nature of the crime or crimes that AGAPITO should be held guilty of.

While the Information filed against all the accused charged them with the crime of Kidnapping with Robbery in Band and Murder, the trial Court convicted AGAPITO only of the crime of Kidnapping and Serious Illegal Detention as defined in Article 267 of the Revised Penal Code, stating that:

We find that the original plan of the accused was to kidnap, not to rob or commit murder. There is in fact no evidence as to the charge of robbery. The evidence does not show that there was any intention to commit murder and the killing of the victim, Yu Chi Chong, happened unexpectedly, that is, only in consequence of the outlaw band's effort to prevent Yu Chi Chong's escape. Murder here may be said to have been absorbed in the crime of kidnapping, for 'in kidnapping, it is immaterial whether or not the victim was killed' (People vs. Suarez, 82 Phil. 484; People vs. Tan, 88 Phil. 152).  20

In this, we find reversible error. In the Suarez case cited by the trial Court, the Supreme Court considered the killing of the victim of kidnapping as "immaterial" because the appellants were prosecuted for the crime of Kidnapping only. This Court held in said case:

Counsel for the appellants contends that these should be convicted only as accomplices. He claims that, there being no evidence to show that they had taken part in a conspiracy to kill Esteban Mungcal, - because, according to the evidence for the defense, after De Hora, his companion and Fermin Suarez had hogtied Esteban Mungcal, the appellants were left in a house and had nothing to do with the killing of Esteban, - they cannot be held guilty as co-principals of the crime of kidnapping. This contention is, however, based on the erroneous assumption that the fact of the killing of Esteban Mungcal constituted the principal element of the offense for which the appellants were prosecuted before, and found guilty by, the trial Court. But the appellants were not accused of the murder or the killing of Esteban; they were accused of kidnapping, as defined and punished under article 267, paragraph 1, of the Revised Penal Code. The essential element or act which makes the offense of kidnapping is the deprivation of an offended party's liberty under any of the four instances enumerated in said article, the illegal detention of the victim for more than five days being one of such instances. The fact that an accused person has directly participated in the kidnapping or illegal detention of another is sufficient to make him guilty as co-principal in the crime of

kidnapping it is immaterial whether or not the victim was subsequently killed by any or all of them. In the present case there is no doubt that the appellants had taken active part in the kidnapping of Esteban Mungcal and that the acts committed by them have made them guilty as co-principals. The fact that they may have not taken part in the subsequent killing of Esteban Mungcal has only the effect of making them less guilty than those who actually took part in the killing - but they are guilty just the same. As above stated, the appellants should therefore be held liable as co-principals in the crime of kidnapping penalized under article 267, paragraph 1, as amended, of the Revised Penal Code. (Emphasis supplied) 21

The situation, however, is different in the case at bar where AGAPITO was charged in the Information with the crime of Kidnapping with Robbery in Band and Murder. The evidence is clear that the victim Yu Chi Chong was kidnapped, as planned, primarily for the purpose of ransom in the amount of P50,000.00, and was murdered because he attempted to escape his captors.

In the following cases, the Court convicted the accused of the complex crime of Kidnapping with Murder: People vs. Ging Sam, et al., 94 Phil. 139 (1953); Parulan vs. Rodas and Reyes, 78 Phil. 855 (1947) and People vs. Parulan, 88 Phil. 615 (1951); People vs. Umali, et al., 100 Phil. 1095 (1957) Unreported case; People vs. Tulale, 97 Phil. 953 (1955), Unreported case; People vs. Escarda and Saliente, 88 Phil. 789 (1950), Unpublished Decision; People vs. Francisco and Dasalla, 96 Phil. 976 (1955), Unreported case; People vs. Joaquin, 89 Phil. 807 (1951), Unpublished Decision.

Having found that AGAPITO is a principal by inducement and conspiracy being evident, he should, therefore, be held guilty of the same crime committed by the material executors in furtherance of the offense which he induced them to commit.

The general rule is well settled that, where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all ... It is immaterial, as affecting the question of co-equal responsibility, that one or more were not actually present at the continuation of the preconceived design. 22

And although the nefarious scheme was to kill Antonio Yu and to kidnap for ransom his brother Yu Chi Chong, considering the presence of conspiracy among the accused, the actuality that it was the latter instead who was murdered makes AGAPITO liable as well for all the consequences resulting from the carrying of the crime into effect.

If there was an understanding to commit an offense, all who participated in the preconcerted crime are liable for the means which each of them employed to carry such crime into effect and for the consequence thereof. 23

The crime committed is the complex crime of Kidnapping for ransom with Murder. Pursuant to Article 48 of the Revised Penal Code, the penalty for the more serious crime, or

Kidnapping for ransom which under Article 267 of the same Code, as amended, is death, should be imposed. The penalty, being single and indivisible, consideration of the aggravating circumstances discussed by the trial Court need no longer be undertaken as that penalty will have to be applied regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed (Article 63, Revised Penal Code). However, for lack of the required number of votes for the imposition of the capital punishment, the penalty to be imposed is the next lower in degree or reclusion perpetua.

WHEREFORE, the accused-appellant, Agapito de la Cruz, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the deceased Yu Chi Chong in the sum of P12,000.00; and to pay the costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-8187            January 29, 1913

THE UNITED STATES, plaintiff-appellee, vs.PANGLIMA INDANAN, defendant-appellant.

Leo T. Gibbons, for appellant. Office of the Solicitor-General Harvey, for appellee.

MORELAND, J.:

An appeal from a judgment convicting the appellant of the crime of murder, and sentencing him to be hanged.

The accused was at the time of the commission of the crime, the headman of Parang. He is alleged to have committed the murder by inducement. The proofs tend to demonstrate that on the 24th day of March, 1912, the accused sent Induk to bring to the house of the accused one Sariol. The following day, Induk, in obedience to the orders, brought Sariol to the house, whereupon the accused ordered the witnesses, Akiran and Suhuri, to tie Sariol. They obeyed the order in the presence of the accused, who was at the time lying upon a bed in the room. This was about 4:30 in the afternoon. Sariol remained there with his hands tied behind his back until night, when the accused, in the presence of several witnesses, ordered Sariol to be taken to the Chinese cemetery and there killed, the accused asserting at the time that he had an order to that effect from the governor. He gave strict orders to Akiran that he should be present at the time that Sariol was killed, and that he should aid in killing him. To make sure of the work being well done, the accused ordered Akiran to take his (the accused's) bolo with which to assist in the killing. Sariol was taken to the cemetery, in an isolated spot a considerable distance from the road and about 200 yards from the nearest house, and there killed. Kalyakan struck the first blow with his bolo, while Akiran joined in and assisted thereafter. The deceased at the time he was killed had his hands tied behind his back. On returning to the house of the accused after the death of Sariol, Unding told the accused that Sariol had been killed, whereupon the accused said that it was all right and appeared to be very much pleased.

The proofs demonstrate beyond question that the accused was the recognized headman of Parang, and it appears from the testimony of the witnesses, Kalyakan, Suhuri, and Akiran, that he had a very powerful influence over them, hence this power over them was such that any order issued by him had the force and efficacy of physical coercion. One of the witnesses testified: "He (the accused) knows what is good and what is bad, and he is the headman of the governor. He is headman of Parang." And in answer to the question, "He is the biggest chief in the Parang ward?" replied: "There is none, only himself." He further said: "The people do not hesitate to take his orders because he is the headman of the

governor." Later, in reply to the question, "If he were to get angry with the people, what would he do to them?" this witnesses answered: "I do not know; might kill them." Another witness, answering the question as to why he did not run away instead of going to the Chinese cemetery as the accused ordered him, answered: "The reason why I did not run away, well, take the same thing as the Government soldiers. They are told to do a thing and they do it." Prior to this time the same witness had said: "If a chief says anything to a man like me and tells me it is by order of the governor and that he has a warrant there, well, a man like me does what he tells me." Another witness declared: "I am afraid of him. I did not believe that he would make me do anything unjust." The same witness afterwards testified in answer to the question: "Would you have killed this man if any other person besides Panglima, the headman, had ordered you to ?" "I would not." Another witness declared: "Well, he was the headman. It was the headman's orders, and if we did not do it, he would get angry with us." This witness, answering the question, "Did Panglima make you think that he was acting under the orders of the Government in causing this man to be killed?" testified: "He said, 'I have a warrant here.' To the question, "And you thought that it was a legal execution, did you?" answered, "Yes, because he (the accused) is not afraid of the governor."

We are of the opinion that the domination of the accused over the persons who, at his orders, killed the deceased was such as to make him responsible for whatever they did in obedience to such orders.

Article 13, paragraph 2, of the Penal Code declares those to be principals in a crime "who directly force or induce others to commit it."

Commenting upon this paragraph, Viada says:

They force another to commit a crime who physically by actual force or grave fear, for example, with a pistol in hand or by any other threatening means, oblige another to commit the crime. In our commentary on paragraph 9 of article 8 (page 28), we have already said that he who suffers violence acts without will and against his will, is no more than an instrument, and therefore is guilty of no wrong. The real culprits in such case, the only guilty persons, are those who use the violence, those who force the other to commit the crime.

One is induced directly to commit a crime either by command, or for a consideration, or by any other similar act which constitutes the real and moving cause of the crime and which was done for the purpose of inducing such criminal act and was sufficient for that purpose. We have already seen in our commentary on paragraph 12 of article 8 that the one who physically commits the crime may escape criminal responsibility by showing that he acted with due obedience to an order; in such case the criminal responsibility falls entirely upon the one who orders, that is, upon him who by his commands has directly induced the other to commit the act. But in case the obedience of the inferior is not due to the superior and therefore not necessary, and does not, therefore, exempt him from criminal responsibility as the physical author of the crime, he who thus, by his command, directly induced him to the criminal act is considered by the law also as principal in the crime.

The pacto by virtue of which one purchases for a consideration the hand which commits the crime makes him who gives, promises, or offers the consideration the principal in the crime by direct inducement, because without such offer or promise the criminal act would never have been committed. But this does not mean that the one who actually commits the crime by reason of such promise, remuneration or reward is exempted from criminal responsibility; on the contrary, we have already seen in our comments on paragraph 3 of article 10 that such circumstance constitutes an aggravation of his crime.

We have heretofore said that in addition to the precepto and the pacto there are similar means by which another may be induced to commit a crime which also make the one who offers the inducement the principal in the crime by virtue of the provisions of article 13, paragraph 2. But it must be borne in mind that these actsof inducement do not consist in simple advice or counsel given before the act is committed, or in simplewords uttered at the time the act was committed. Such advice and such words constitute undoubtedly an evil act, an inducement condemned by the moral law; but in order that, under the provisions of the Code, such act can be considered direct inducement, it is necessary that such advice or such words have a great dominance and great influence over the person who acts; it is necessary that they be as direct, as efficacious, as powerful as physical or moral coercion or as violence itself.

The following decisions of the supreme court of Spain illustrate the principles involved and their application to particular cases:

It was held by that court on the 14th day of April, 1871, that one who, during a riot in which a person was killed, said to one of the combatants, "Stab him! Stab him!", it not appearing that he did anything more than say these words except to be present at the fight, was not guilty of the crime of homicide by inducement, the court saying that, "considering that, although the phrases pronounced were imprudent and even culpable, they were not so to the extent that they may be considered the principal and moving cause of the effect produced; direct inducement cannot be inferred from such phrases, as inducement must precede the act induced and must be so influential in producing the criminal act that without it the act would not have been performed."

In a decision rendered on the 10th of July, 1877, the principle was laid down that "a person who advised a married woman whose husband was very stingy and treated her badly that the only thing for her to do was to rob him, was not guilty of the crime of robbery by inducement, for the reason that imprudent and ill-conceived advice is not sufficient."

In a decision of the 22nd of December, 1883, it was held that a father who simply said to his son who was at the time engaged in combat with another, "Hit him! Hit him!", was not responsible for the injuries committed after such advice was given, under the facts presented. The court said: "It being held in mind that the inducement to the commission of the crime by means of which a person may be considered a principal in the same manner as he who executes the act itself can only be founded in commands, sometimes in advice, in considerations, or by inducement so powerful that it alone produces the criminal act. None of these characteristics pertain to the words of Miguel Perez, inasmuch as the

circumstances which surrounded the event at the time do not appear in sufficient detail to show with clearness the effects which the words produced, or the relative situation of the deceased and of the one who killed him, or the point to which the fight had progressed at the time the words were spoken. Moreover, the decision of the court below does not show sufficient facts upon which to affirm that Miguel foresaw the use of the firearm on the part of his son when he spoke the words referred to, or, for that reason, that he thereby induced him to use said weapon."

In a decision of the 19th of December, 1896, the court held that the fact "of having proposed to other persons the abstraction of the tickets which were the subject matter of the robbery, at the same time telling them the place where they were to be found, does not constitute inducement to commit the robbery because the proposal to commit the robbery was not sufficiently efficacious to be the cause of the crime, as the crime, under the facts, could have been committed without it; nor was the indication of the place where the money was to be found a sufficient motive to induce the robbery."

The foregoing decisions have been presented for the purpose of showing concrete cases in which the acts of the accused were not sufficient, as a matter of law, to constitute inducement. They not only lay down the legal principles which govern in prosecutions of this character, but they also illustrate in the most valuable way the application of those principles to actual cases.

The following decisions of the same court present instances in which the acts of the accused constitute inducement under the law and illustrate the application of the principles to concrete cases.

In a decision of the 14th of April, 1871, the facts as stated by the court were: "It appeared that Lulu, who was living with Joe and Zozo (a married couple) in the town of X, gave birth to a child on the morning of the 28th of March, the offspring of her illicit relations with William. It had been previously agreed upon by the first three named to deliver the child to William as soon as it was born, with instructions to deposit it in some frequented place so that it might be found and taken up; but Joe changed his mind and handed the child over to the father, telling him, 'Here is your child, do with it whatever you please; throw it into the sea if you choose to,' which the latter actually did." Under the facts the accused was held guilty by inducement.

In a judgment pronounced on the 22nd of January, 1873, it was held that "a woman who, living with a man in scandalous concubinage in the presence of a daughter who continually manifested her disgust and repugnance for such conduct, conceived against the daughter the most profound hatred and conceived the purpose of killing her by most insidious methods, obtaining for that purpose poison and various deadly weapons, and contriving that she and her family and all of the tenants in the house should go to the theater on an evening during which the daughter was sick and obliged to remain at home, in order that her lover might be entirely undisturbed in killing the daughter and that he might not be surprised in the act, such woman is the author and principal of the crime the same as her lover who actually committed the deed."

In a decision of the 6th of July, 1881, the court held that "one who takes advantage of his position as an inspector for the maintenance of public peace and proposes to a private citizen the perpetration of a robbery, with the threat that unless he did commit the robbery he would be arrested as an escaped prisoner, at the same time offering to withdraw the officers from the vicinity of the place to be robbed, and who after the robbery received a part of the booty, was guilty of the crime as principal, although he did not take personal part therein."

In a decision of the 12th of April, 1882, it was said that "an alcalde of a barrio who, accompanied by a number of peace officers, ordered them to stop certain music that was being played in the public street, and after the order had been obeyed and the music stopped one of the persons expressed his resentment against the act whereupon the alcalde ordered the peace officers to attack the man, which they did, inflicting upon him various wounds, was guilty of the crime of lesiones graves by inducement."

In a decision of the 21st of June, 1882, it was stated that "a father who from the balcony of his house cried out in a loud voice to his sons who were fighting with others to kill those with whom they were fighting before they were killed themselves, because they might as well go to jail for a big thing as a little, was guilty of the crime of lesiones gravesby inducement by reason of the injuries inflicted under such orders."

In a decision of the 22nd day of December, 1883, the court said, "that the inducement and the commission of a crime whereby the inducer becomes a principal to the same extent and effect as if he had physically committed the crime exist merely in acts of command, sometimes of advice, or agreement for a consideration, or through influence so effective that it alone determines the commission of the crime."

In a decision of the 11th of November, 1884, the court laid down the proposition that the secretary of theayuntamiento who induced a certain persons to form new lists of compromisarios five days prior to the election of senators was guilty as principal of the crime against the election lists, saying: "It appearing and it being a fact proved that the secretary of the ayuntamiento of Jalom, Miguel Antonio Dura, induced the members of the council to commit the act stated, his participation as principal in the commission of the act is well established according to the provisions of paragraph 2, article 13, of the Penal Code, because such inducement coming from a person of such influence as the secretary of the ayuntamiento in a small village must be considered sufficiently dominant to turn the mind of those induced."

In a decision rendered on the 28th of December, 1886, it was held that a woman who was at enmity with an uncle for having refused to renounce in her favor a donation which a relative had given to him, who made frequent threats to kill the uncle and who finally offered a third person a certain sum of money together with the land involved in the donation if he would kill the uncle, and who told her son that, if they were unable to get anybody else to kill the uncle, he must do it himself as he would thus inherit 15,000 pesetas with which they could flee abroad, and in case he refused to do it he must leave the house because he was a coward, was guilty as principal of the crime of murder committed by the son under such inducement. The court said: "It being borne in mind that the suggestions with which the mother moved the mind of her son to kill the uncle had the force of a real inducement and

inclined and decided the will of the son by means of the relations which she bore to him as well as the reward which she held up before him."

In a decision of the 26th of January, 1888, it was held that finding as principal in a crime, him who, "by direct and influential means and taking advantage of the inexperience of a boy of tender age," induces him to commit a crime, was warranted by law, the court saying that "in view of the fact that the inducement exercised by Juan Santiso with regard to the boy, Ramon Carballo, to steal the jewels in question from his grandmother's house shows such a direct and inducing cause of the criminal act that without such inducement the crime would not have been committed."

In a decision of the 9th of April, 1882, the court held "that the inducement referred to in paragraph 2, article 13, of the Penal Code exists whenever the act performed by the physical author of the crime is determined by the influence of the inducer over the mind of him who commits the act, whatever be the source of such influence."

In a decision of the 3rd of February, 1897, it was declared that one was the "principal by inducement in five different larcenies, it having been proved that the inducer, knowing that the oil which was brought to her for sale was stolen by the persons who were seeking to sell it to her, advised them thereupon to continue stealing oil and furnished them vessels in which to carry it and contributed on five different occasions to the realization of the larcenies, it appearing that the physical authors of the crime were boys under 15 years of age and that they acted upon the suggestions of the inducer without discernment or judgment of their own," the court saying that in view of the fact that she knew that the oil which she first purchased from the boys was stolen oil, that the boys were less than 15 years of age, and therefore easily led, that she furnished the vessels in which to carry the stolen property — all indicate conclusively that the five crimes were committed by the influence exercised by the woman, which inducement was not merely that of favoring the execution of the crime but was that which determined its commission."

In a decision of the 31st of May, 1898, it was laid down "that the command of a master to his servant, by reason of the special relations which exist between them, contains the elements of inducement which makes the master who orders such servant to cut wood belonging to a third person, in order that he might benefit thereby, the principal of the crime committed by such servant," the court saying that "in view of the fact that the command of the master to the servant, made within the sphere and under the ordinary conditions of domestic life, when they relate to acts simple and apparently legitimate, contains the necessary elements, directly and sufficiently efficacious, of inducement according to the provisions of paragraph 2 of article 13 of the Penal Code, it appearing that the master, taking advantage of the ascendency and authority which he naturally must exercise over his servant or inferior, ordered him to cut and carry away wood from land which he knew did not belong to him, without disclosing to the servant that circumstance, which concealment gave rise to the influence which the master exercised over the servant in that particular act."

The following decisions of the Supreme Court of the Philippine Islands apply the foregoing principles to particular cases.

In the case of the United States vs. Galuran (12 Phil. Rep., 339) it appeared that one of the defendants conceived the idea of the robbery of a warehouse and assisted in procuring false keys with which to open it. He took no immediate part in the act of robbery itself. The court in its opinion said:

These facts, which we hold to have been proven, clearly show the guilt of the appellant, Sy-Yoc, as the instigator of the crime herein prosecuted. From him came the initiative in the robbery; he was the first to conceive the idea of its commission, and, being unable or unwilling to carry it out himself, he employed Galuran, impelling him to the material execution of the crime by a promise to pay him P16 for each case of whisky that he was able to steal. The better to induce him to commit the offense, he clearly demonstrated how easily it could be accomplished, instructed him as to the best means of carrying it out, and offered him money to pay for the false key. He thus removed all the difficulties in the way of determination to execute, and the actual execution of the robbery in question. These acts constitute a real inducement made directly for the commission of the said robbery, and place the appellant, Sy-Yoc, in the position of principal in accordance with paragraph 2 of article 13 of the Penal Code.

In the case of the United States vs. Ancheta (15 Phil. Rep., 470) it appeared that the accused induced certain Igorrotes to kill a third person by holding up before them the fact that by such act they would be able to obtain P40 which was then in the house of the victim, as well as the carabao which he owned, saying to them, "If you go to work you only make a little; it is better to kill this man and take his carabao and the P40 which was received from the sale of the house in town." They having made an unsuccessful attempt upon the life of the proposed victim and having returned and explained why they had not been able to kill them, the accused said to them: "Why did you eat my chickens if you are not going to do what I told you to do. I came here to spend the night in Cambaguio because I thought you were going to kill them." The Igorrotes then spent three days clearing some land for another person from whom they received P2.25. About noon of the third day of their work, the defendant went to them and said: "Now you must repeat what I told you to do, and comply with our agreement; I am going to Ululing to-day, and I wish you to kill Tiburcio to-night. You go to the bushes and conceal yourselves in the same place you were concealed before." The murder was committed as proposed. Upon these facts and inducer of the crime, and that he was liable as principal. (Supreme court of Spain, 20th of October, 1881, 7th of January, 1887, 12th of January, 1889.)

In the case of the United States vs. Empinado (17 Phil. Rep., 230) it appeared that the accused had a conversation with Serapio Tapic, a laborer, in which the accused asked him if he knew Antonio Gavato and his associates, to which he replied in the negative. The defendant then said: "I wish to confer upon you a commission, which is as follows: Order must be disturbed in the cockpit of Gavato, and when you arrive there wound any person." It seems that Tapic was reluctant to obey this order, but defendant gave him something to eat and drink until he became intoxicated, and then he gave him a bolo and P10 and said: "Comply with what I have ordered and in case you incur any responsibility I will be responsible to the court, and as soon as you wound any person or persons, return to me and I will defend you." The court held that these facts constituted sufficient inducement to bring the accused within the provisions of article 13, paragraph 2, of the Penal Code.

In the case of the United States vs. Gamao (23 Phil. Rep., 81) the court said:

Mauricio Gamao, nephew of Gil Gamao, was a poor, ignorant fisherman, and more or less dependent upon his uncle for subsistence. On the other hand, Capt. Gil Gamao was, when this crime was committed, a man of great influence in Escalante. He had a great number of people working for him, one of whom was his nephew Mauricio. He was the local political leader of his party. One of his nephews was president of the town. He had two brothers-in-law in the municipal council. Of his nephews, one was chief of police and two others were members of the police force. He had acquired, as we have said, a bitter hatred toward the Roman Catholic Church and the Spanish friars and priests. He called a meeting in his own house on the afternoon of May 15, where the question of murdering the priest was discussed. He was the prime mover in this meeting. He dominated all who were present. He selected his nephew Mauricio to commit the crime and directed him to do it. Mauricio, immediately after murdering the priest, returned to the house of his uncle Gil and reported the fact. The influence exercised by Gil Gamao over his nephew was so great and powerful that the latter, through fear, could not resist it. That Mauricio was directly induced to murder the priest by his uncle Gil we think there can be no question.

In the case of the United States vs. Chan Guy Juan (23 Phil. Rep., 105) it was held that the "one who employs an innocent agent to commit a crime is liable as a principal, although he does nothing himself in the actual commission of the crime."

In the case of the United States vs. Alcontin (10 Off. Gaz., 1888) it appeared that "a married woman suggested to her paramour, with whom she had been maintaining illicit relations that he kill her husband in order that thereafter they might live together freely. The paramour acting upon these suggestions and actuated by a desire to possess the woman for himself without the interference of the husband, killed him. The guilty pair immediately thereafter made their escape and lived together as man and wife until the time of ] their arrest." Upon these facts the court said:

We think that the direct inducement to the commission of the crime is fully established por pacto (for a consideration); that is to say, on the understanding that the woman would live in illicit relations with the murderer after the death of her husband; and por precepto (by precept) which constituted "a real, intentional, direct and efficacious exciting inducement (excitacion) to commit the crime." The propositions and suggestions of the woman constituted something more than mere counsel or advice which her co-defendant was entirely free to accept or not, in that they were coupled with a consideration which, in view of the relations existing between them, furnished a motive strong enough to induce the man to take the life of her husband; and for the further reason that due to these illicit relations she had required such an influence over her co-defendant that her insistent suggestions that he commit the crime had a marked and controlling influence upon his mind.

In the case of the United States vs. Matinong (22 Phil. rep., 439) it appeared that the accused proposed to his companions an assault upon the house of Francisco Tolosa; that armed with a talibon he accompanied them during the assault; that, while the assault was

being made, he stood watch at the foot of the stairs of said house so that his companions would not be caught, and that, finally, he accompanied them to the place where the deceased was killed. These facts were held by the court to be sufficient to make the accused a principal by inducement as well as by direct participation.

In the case at bar, the words and acts of the accused had the effect of a command. There does not seem to have existed, however, any official relation between the accused and the persons whom he induced to kill Sariol. While he appears to have been the headman of Parang, those whom he induced held no official position under him and owed him, legally speaking, no obedience. According to tradition and custom, however, the headman seems to have been a person whose word was law and whose commands were to be obeyed. Moreover, the accused represented to those who physically committed the crime that he had a warrant from the governor authorizing, if not requiring, the acts committed, and urged upon them, in effect, that all must obey the commands of the Government. This representation was false, but it produced the same effect as if it had been true. It cannot be doubted that the accused knew the representation was false and purposely and intentionally made it as an additional factor going to insure obedience to his orders.

Even if there should happen to be lacking any element sufficient to bring the acts of the accused within the definition of inducement by command, and we do not believe there is, there would still remain all of the elements necessary to qualify the crime as murder by inducement. From the authorities heretofore cited and the principles laid down therein as those which must govern in the determination of whether or not the acts of an accused constitute inducement under the law, it may be stated as a general proposition that, where the inducement offered by the accused is of such a nature and made in such a way that it becomes the determining cause of the crime, and such inducement was offered with the intention of producing that result, then the accused is guilty by inducement of the crime committed by the person so induced. The inducement to the crime must be intentional on the part of the inducer and must be made directly for the purpose in view.

The verb "induce" is sufficiently broad, generally speaking, to cover cases where there exists on the part of the inducer the most positive resolution and the most persistent effort to secure the commission of the crime, together with the presentation to the person induced of the very strongest kind of temptation, as well as words or acts which are merely the result of indiscretion or lack of reflection and which carry with them, inherently, almost nothing of inducement or temptation. A chance word spoken without reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may give birth to a thought of, or even a resolution to, crime in the mind of one for some independent reason predisposed thereto without the one who spoke the word or performed the act having any expectation that his suggestion would be followed or any real intention that it produce a result. In such case, while the expression was imprudent and the results of it grave in the extreme, he would not be guilty of the crime committed. Therefore, in applying the principles laid down to concrete cases it is necessary to remember only that the inducement must be made directly with the intention of procuring the commission of the crime and that such inducement must be the determining cause of the crime.

In the case before us, as we have seen, the accused falsely represented to the persons who actually committed the crime that he had an order from the Government requiring the

death of Sariol and that they were under obligation to carry out that order. It is clear from the evidence that this inducement was offered by the accused directly to the persons interested with the intention of moving them to do his bidding, and that such representation was the moving cause of the fatal act. While it may be said, and is true, that the personal commands of the accused were entirely sufficient to produce the effects which actually resulted and that such commands may be considered the moving cause of the crime, still there is no doubt, under the evidence, that the representation that the accused had in his possession an order from the Government commanding the death of Sariol was also of material influence in effecting the death; and where two fundamental causes work together for the production of a single result and one of those causes would lead to a conviction upon one theory and the other upon another, a conviction is sustainable upon either theory.

There was present premeditation, qualifying the crime as murder. There were present, also, the aggravating circumstances of desplobado and nocturnity.

We are of the firm conviction that the judgment of the court below is well founded, and we accordingly affirm the same, with costs.

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

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-51304-05 June 28, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MARTIN MANDOLADO and JULIAN ORTILLANO, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Basilio V. Lanoria for defendants-appellants.

 

GUERRERO, J.:

The judgment of conviction rendered by the Court of First Instance of Cotabato, Branch I I, Cotabato City dated June 28, 1979 sentencing the accused Martin Mandolado to the supreme penalty of death in each case and the accused Julian Ortillano to imprisonment of six (6) years of prision correccional as minimum to seventeen (17) years of prision mayor as maximum, being merely an accessory, is before Us for mandatory review.

Under two (2) separate criminal informations dated January 5, 1978 filed by First Assistant Provincial Fiscal Ismael G. Bagundang, the two accused- appellants, Martin Mandolado and Julian Ortillano, draftees assigned with the Alpha Company, 3rd Infantry Battalion, Second Infantry Division, Philippine Army with station at Pikit, North Cotabato, together with Anacleto Simon and Conrado Erinada, trainees attached to the Headquarters & Headquarters Company, 3rd Infantry Battalion, 2nd Infantry Division, Philippine Army, stationed at the Army Detachment along Simuay Junction, Simuay, Sultan Kudarat, Maguindanao, were accused of murder for the death of the victims Herminigildo Tenorio and his driver Nolasco Mendoza with the use of their firearms in the afternoon of October 3. 1977 at Sultan Kudarat, Maguindanao, qualified with the aggravating circumstances of treachery, evident premeditation and abuse of superior strength.

Specifically, in Criminal Case No. 561, the information charged the accused as follows:

That on or about October 3, 1977 in the afternoon, in the Municipality of Sultan Kudarat, Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, conspiring, confederating and helping one another with treachery, evident premeditation and the use of superior strength all armed with high powered weapons did then and there willfully, unlawfully, and feloniously, and with the use of their guns shoot Mr. Nolasco Mendoza hitting the latter on the different parts of his body causing his instantaneous death.

Contrary to law with the aggravating circumstances of treachery, evident premeditation, and the use of superior strength.

Similarly, in Criminal Case No. 562, the information reads:

That on or about October 3, 1977, in the afternoon, in the Municipality of Sultan Kudarat, Province of Maguindanao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring, confederating and helping one another with treachery, evident premeditation and the use of superior strength all armed with high- powered weapons did then and there willfully, unlawfully, and feloniously, and with the use of their guns shoot Mr. Herminigildo Fajardo Tenorio hitting the latter on the different parts of his body causing his instantaneous death.

Contrary to law with the aggravating circumstances of treachery, evident premeditation, and the use of superior strength.

The charges having been allegedly committed at the same place and occasion and involving all the four (4) accused in each instance were jointly tried per order of the trial court dated February 28, 1978 and after completion thereof, the two herein accused-appellants were found guilty while the remaining two accused, Anacleto Simon and Conrado Erinada were acquitted. We quote hereunder the dispositive portion of the decision now under review, to wit:

WHEREFORE, Martin Mandolado is found guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 562 for the killing of Herminigildo Fajardo Tenorio, and also in Criminal Case No. 561 for the killing of Nolasco Mendoza, with the aggravating circumstances of (1) 'advantage was taken of his being a draftee in the Philippine Army,' and (2) 'abuse of confidence or obvious ungratefulness' without the presence of any mitigating circumstances and is meted the following penalty, to wit;

In Criminal Case No. 562, for the killing of Herminigildo Tenorio, he is sentenced to suffer the penalty of the crime in its maximum degree which is death.

He shall pay the heirs of the deceased the amount of P12,000.00 for the death of this victim, and the amount of P20,000.00 as moral and exemplary damages.

In Criminal Case No. 561 for the killing of the driver, Nolasco Mendoza, he is similarly sentenced to death.

He is to pay the heirs of said deceased the amount of P50,000.00 for the death of said victim, and the amount of P100,000.00 as moral and exemplary damages.

In both Criminal Cases Nos. 561 and 562, on the grounds of reasonable doubt, Anacleto Simon and Conrado Erinada are both found not guilty. This case against them (Anacleto Simon and Conrado Erinada) is hereby dismissed.

In Criminal Cases Nos. 561 and 562, Julian Ortillano was found guilty as an accessory. He fired his M-16 armalite whenever Martin Mandolado fired his machine gun and this could be for no other purpose than to conceal or destroy the body of the crime in making it appear the victims were fighting them or running away or that somebody else like the MNLF, rebels, NPA or bandits committed the crime. Furthermore, in his own admission, the purpose of their attempt to leave Mindanao for Bulacan after this incident was to hide and wait for the time when Martin Mandolado could succeed in settling this case which is evidence that he assisted in the escape of the principal of the crime.

He is hereby sentenced in each of both cases to serve an imprisonment term of six (6) years of Prision Correccional as the

minimum penalty, to seventeen (17) years of Prision Mayor as the maximum penalty.

Martin Mandolado and Julian Ortillano are to pay jointly and solidarily the cost of this litigation.

SO ORDERED.

Given in the City of Cotabato, Philippines, the 28th day of June, 1979.

(SGD.) ALEJANDRO R. LEOPANDODistrict Judge

The facts are as stated in the People's Brief as follows:

In the morning of October 3, 1977, Julian Ortillano, Martin Mandolado, Conrado Erinada and Anacleto Simon, trainees/draftees of the Armed Forces of the Philippines and assigned to the 3rd Infantry Battalion of the Philippine Army, were passengers of a bus bound for Midsayap, North Cotabato (p. 8, t.s.n., Feb. 21, 1979). They alighted at the bus terminal in Midsayap. Being all in uniform, armed and belonging to the same military outfit, they got acquainted and decided to drink ESQ rum, at the said bus terminal (pp. 10-11, Supra).

While drinking, Conrado Erinada and Anacleto Simon decided to join appellants in going to Pikit, North Cotabato, home base of appellants (p. 59, Id.). After drinking for about an hour, appellant Mandolado got drunk and went inside the public market. Subsequently, he returned, grabbed his .30 caliber machine gun and started firing. His companions tried to dissuade him but he nonetheless continued firing his gun (pp. 11-12, Supra).

Sensing trouble, Conrado Erinada and Anacleto Simon ran away, hailed and boarded a passing Ford Fiera with some passengers on board. Appellants followed and boarded also the vehicle (pp, 13-15, Supra). The soldiers forced the driver of the Ford Fiera to bring them to the Midsayap crossing (p. 58, t.s.n., July 24,1978).

On their way, appellant Mandolado got his knife and tried to attack the driver (pp. 61-62, Supra). After appellants alighted at said crossing, the Ford Fiera sped away. Appellant Mandolado fired his .30 caliber machine gun at the speeding vehicle (p. 51, t.s.n., Jan. 17, 1979) hitting the right side of the back of the driver's sister who was then on board said vehicle (p. 64, t.s.n., July 24, 1978).

While waiting for a ride at the Midsayap crossing a privately owned jeep, driven by Herminigildo Tenorio, passed by. On board said jeep which was bound for Cotabato City were Nolasco Mendoza and two (2) others, but the latter two alighted at said crossing. Conrado Erinada and Anacleto Simon boarded the jeep. Thereafter, appellants ran after the jeep, shout at Herminigildo Tenorio the driver thereof, to stop the vehicle and subsequently, both appellants Mandolado and Ortillano boarded the jeep (p. 34, Supra). On the way, both appellants kept firing their guns (pp. 54-55, t.s.n., Jan. 17, 1979) prompting Herminigildo Tenorio to remark, "Kung hindi kayo tatahimik, ibabangga ko itong jeep" (Sworn Statement, Exh. Q., Mandolado) which literally means, "if you will not stop firing your guns, I will ram this jeep into something. "

Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato, appellant Mandolado got angry, "cocked" his gun and ordered the driver to stop (pp. 36-38, Supra). While the jeep was coming to a full stop, Conrado Simon and Anacleto Erinada immediately jumped off the jeep and ran towards their detachment camp located some two hundred fifty meters away. Appellants also got off the jeep. Thereupon, appellant Mandolado fired his .30 caliber machine gun at and hit the occupants of the jeep (Sworn Statement, Exh. Q, Mandolado). Appellant Ortillano likewise, fired his armalite, not at the occupants of said jeep but downwards hitting the ground. These bursts of gunfire were heard by both Conrado Erinada and Anacleto Simon who were then already about fifty meters away from the jeep while running towards their detachment camp (pp. 38 and 42, t.s.n., Feb. 21, 1979). Although it was then raining torrentially, Anacleto Simon recognized the bursts of gunfire as those of a machine gun (p. 43,Supra).

Appellants ran away from the scene and boarded another vehicle, alighting at Pinaring crossing. Appellant Mandolado proceeded to a house where he left his belongings and changed his wet uniform (p. 104, Supra). After about an hour, they rode in a "Hino" passenger bus bound for Midsayap. On board said bus was a certain Mr. Leopoldo Jalandoni who was seated in front of the appellants.

Upon reaching a BPH building near Nuling, Sultan Kudarat, the passengers of said bus were ordered to alight at the military check point but appellant Mandolado did not alight (pp. 10-13, t.s.n., Oct. 5, 1975). As the bus was not proceeding to Pikit, North Cotabato and upon advice of Mr. Jalandoni, appellants alighted at the Midsayap crossing and waited for a bus bound for Pikit (pp. 19-20, Supra).

Appellants were able to ride on a sand and gravel truck which took them to Pikit, North Cotabato, arriving thereat at about 3:00 o'clock in the afternoon. At their camp, appellants returned their firearms, but did not report the incident. In the evening, appellants attended a party at the Pikit Elementary School (pp. 32-35, t.s.n., April 16, 1979). The following day, appellants proceeded to Davao City but stopped at Kavocan where they stayed overnight.

Arriving at Davao City, the following morning, appellants went to see a movie and afterwards proceeded to the Office of Doña Ana, a shipping firm (p. 40, Supra), where they saw a certain Sgt. Villanueva who was then leaving for Luzon. Sgt. Villanueva informed the appellants that they were suspects in the Tenorio and Mendoza killings. Immediately thereafter, appellant Mandolado purchased two passenger tickets for Manila. The other ticket was for appellant Ortillano (pp. 120-123, Supra). However, before appellants could board the ship bound for Manila, they were apprehended by a team led by Lt. Licas (p. 45, Supra). Appellants were brought to Pikit, North Cotabato where they were investigated by Lts. Licas and Maburang about the aforesaid killings. The following day, appellants were brought to the headquarters of the 2nd MP Battalion at P.C. Hill, Cotabato City where they were again investigated. In said investigation, after appellants were duly apprised of their constitutional rights, they executed and signed their respective sworn statements (Exhs. "O" and "R"). Appellant Mandolado admitted the killing of Tenorio and Mendoza (Exh. "Q"); whereas appellant Ortillano admitted his presence at said killings and of his having fired his armalite downwards after appellant Mandolado fired upon the killed the afore-named victims (Exh. "R ").

Silverio Balderosa, on October 3, 1977, at about 12:30 p.m., was on board a "Pinoy" jeep. On his way home to Midsayap, he passed a jeep parked along the highway towards the direction of Cotabato City and about 250 meters away from the BPH building. The parked jeep was surrounded by several persons. Alighting from the "pinoy" jeep, he went near the parked jeep to see what happened. He saw the lifeless bodies of two persons, one sprawled along the highway whom he recognized as Nolasco Mendoza and the other whom he recognized as Mr. Tenorio slumped on the wheel of the parked jeep (pp. 13-15, t.s.n., July 24, 1978).

The postmortem examination conducted by Dr. Taeb Zailon, Municipal Health Officer of Sultan Kudarat, Maguindanao, upon the bodies of Tenorio and Mendoza on October 3, 1977, were reduced into writing and reads as follows:

POST-MORTEM EXAMINATION REPORT

Post-mortem examination was performed at the Rural Health Center, Sultan Kudarat, Maguindanao on October 3, 1977 at around 3:30 p.m. in the presence of police officers of Sultan Kudarat, Maguindanao and personnel of the Health Center and other persons in the vicinity.

PERTINENT PERSONAL DATA:

Name: HERMINIGILDO TENORIO

Sex: Male

Age: 55 yrs. old

Height: 5'5'

Weight: 145 lbs.

C.S.: Married

Residence: Midsayap, N. Cotabato

Place of Death: Sultan Kudarat, Maguindanao

POST-MORTEM EXAMINATION FINDINGS

1. Avulsed cranial content at the level of forehead including eyeballs;

2. Wound-circular lacerate 3 inches in diameter T-T at lateral side of right deltoie region;

3. Wound-1 in. circular wound at the right forearm T-T 4 inches below the elbow;

4. Comminuted fracture at right leg just below the knee cap;

5. Comminuted fracture at right leg just above ankle;

6. Wound-1 in. circular non-penetrating at lateral side left arm;

7. Wound-1/2in.circularnon-penetrating at left region.

PROBABLE CAUSE OF DEATH

Hemorrhage severe secondary to multiple gunshot wounds.

Respectfully submitted:

(SGD.) TAEB ZAILON, M.D. Municipal Health Officer Sultan Kudarat, Maguindanao (Exh. "N")

POST-MORTEM EXAMINATION REPORT

Post-mortem examination report was performed at the Rural Health Center, Sultan Kudarat, Maguindanao on October 3, 1977 at 3:30 p.m. in the presence of police officers, personnel of the health center and other civilians.

PERTINENT PERSONAL DATA:

Name: NOLASCO MENDOZA

Sex: Male

Age: 45 years old

Height: 5'4"

Weight: 135 lbs.

C.S.: Married

Residence: Midsayap, North Cotabato

Place of Death: Sultan Kudarat, Maguindanao

POST-MORTEM EXAMINATION FINDINGS

1. Wound -Circular, one inch wide, one inch above right eyebrow;

2. Wound-Circular, 1/2 inch wide, lateral part of left side of neck:

3. Wound-Circular, 3/4 inch wide, upper aspect of right deltoid muscle;

4. Wound-Circular, 1 1/2 inch wide, lateral aspect of right deltoid muscle; and

5. Wound-Circular, 1 1/2 inch wide, lateral aspect of right breast 3 inches below arm pit.

PROBABLE CAUSE OF DEATH

Wounds, gunshot, multiple shock, secondary hemorrhage, external-internal, extensive

Respectfully submitted:

(SGD.) TAEB A. ZAILON, M.D. Municipal Health Officer Sultan Kudarat, Maguindanao (Exh. "P")

Acting upon the letter request of the commanding officer, Lt. Rodolfo Villanueva, a ballistic test was conducted by Sgt. Leon Platoon of the P.C. Crime Laboratory at Cotabato City, on the firearms issued to appellant Mandolado, Anacleto Simon and Conrado Erinada. In said

test, bullets were fired from said guns and the empty shells, called test specimen (T05-1 to T-05-3), together with the empty shells recovered from the scene of the crime called specimen evidence, and the 10 links of cal. 30 machine gun, were forwarded to Camp Crame for Ballistic Examination (pp. 20-24, t.s.n., October 6, 1978). Sgt. Platoon marked the 8 shells of .30 caliber recovered from the scene of the crime as HT-1 to HT-8 and the armalite shells as CM-9 to CM-13.

In the ballistic examination conducted by Reynaldo Pasatiempo of the Camp Crame Criminal Laboratory, it was found that the caliber .30 shells recovered from the scene of the crime (Exh. "HT-1" to "HT-8 ") reveal Identical impressions as the test specimens of five empty shells ("T-05-1 to "T-05-3 ") fired from appellant Mandolado's machine gun. Whereas the armalite shells recovered from the scene of the crime reveal non-identical impressions with the shells fired from the armalites of Conrado Simon and Anacleto Erinada. He then concluded that the .30 caliber shells recovered from the scene of the crime were fired from the same machine gun issued to appellant Mandolado (pp. 60-62, t.s.n., October 6, 1978).

Appellants submit only one assigned error and that is, that the trial court erred in convicting appellants Martin Mandolado and Julian Ortillano beyond reasonable doubt as principal and accessory, respectively, of the crimes charged on the strength of the prosecution's evidence totally disregarding the evidence of the defense. Appellants contend that their guilt was not proven beyond reasonable doubt inasmuch as the circumstantial evidence of the prosecution merely proved the fact of the deaths of Tenorio and Mendoza and not as to the actual perpetrators of the crime; that the evidence of the prosecution being weak on its own, the only link of the appellant Mandolado to the killings is his extra-judicial sworn confession, Exhibit "Q", which he stoutly repudiates for being unlawfully taken under force and duress and in the failure of the investigator to apprise him of his constitutional right to remain silent and to be assisted by counsel.

It is contended by the defense that although the ballistic expert and the firearm examiner testified that they conducted ballistic and firearm examinations, respectively and that their finding was that the caliber .30 empty shells were fired from the machine gun issued to Martin Mandolado, the prosecution failed to prove that the "evidence specimen" (Exh. "HT-1" " to Exh. "HT-8") were the empty shells recovered from the scene of the crime, the prosecution not having presented any witness who recovered these empty shells. It was not shown that these empty shells were recovered from the scene of the crime nor that the slugs of these empty shells caused the gunshot wounds which resulted in the death of the victims, Hence, the only link of appellant Martin Mandolado with the empty caliber .30 shells was the fact that these shells were fired from his machine gun, yet the records disclose that Mandolado accidentally fired his machine gun at the Mintranco Terminal in Midsayap, North Cotabato, which is not the scene of the crime, when he threatened the person who tried to steal his bag.

Appellant Mandolado's claim that he was not previously apprised of his constitutional rights before he executed his extra-judicial confession, Exh. "Q ", deserves scant consideration. His claim is clearly belied by the opening statements appearing in his sworn statement, which reads, thus:

Preliminaries: Dft Martin Mandolado please be informed that you are now under investigation by this unit in connection with the Shooting incident that happened at National Highway particularly near the vicinity of the BPH Office at Sultan Kudarat, Maguindanao on or about 031300H October 1977. Before I ask you any questions, you must understand your legal rights to wit: You have the right to remain silent. Anything you say maybe used for or against you as evidence. You have the right to the services of a lawyer of your own choice. If you cannot afford a lawyer and you want one, a lawyer will be appointed for you before I ask you any questions.

Question: Are these all clearly understood by you?

Answer: Yes, sir.

2. Q— Do you wish now to proceed with this investigation ever. in the absence of a lawyer of your own choice?

A— Yes sir.

3. Q— Are you willing to give your statement without being forced, coerced, intimidated or promised of any reward whatsoever?

A— Yes sir.

4. Q— Now that you are about to testify under oath, do you swear to tell the truth?

A— Yes sir.

WAIVER

I have been advised of my legal right to remain silent; that anything I say maybe used as evidence against me, and that I have the right to a lawyer to be present with me while I am being questioned.

I understand these rights and I am willing to make a statement and answer to questions. I do not want the assistance of a counsel and I understand and know what I am doing. No promises or threats have been made to me and no force or pressure of any kind have been used against me.

(SGD.) MARTIN A. MANDOLADO Dft

07A-2853 PA (Affiant)

And with respect to the accused-appellant Julian Ortillano, the same preliminary questions were made to him before his investigation and he answered similarly as his co-accused Mandolado which is shown in Exhibit "R" and said Ortillano likewise executed the same waiver as that of his co- accused, which is marked Exhibit "R-A".

The contention of both appellants that they signed their sworn statements (Exhibits Q and R) because they were maltreated and forced, cannot be believed, not only for failure on their part to present any evidence of compulsion, duress or violence but also because they even failed to Identify their investigators who allegedly inflicted maltreatment to them, much less complained to the officials who administered the oaths to their sworn statements of such maltreatment, if any. Moreover, the sworn statements themselves contain significant and important details which the affiants alone could have furnished, thereby clearly revealing the voluntariness of said statements and rendering the same admissible as evidence. (People vs. Rosales, 108 SCRA 339; People vs. Regular, 108 SCRA 23, 39; People vs. Tintero, 111 SCRA 714; People vs. Estero, 91 SCRA 93,99).

The conviction of appellant Mandolado for double murder appears to be based not only on his extra-judicial confession (Exhibit Q) but also upon the following circumstances which proved that he did shot and kill the victims, Tenorio and Mendoza, beyond peradventure of doubt. And these are listed in the People's Brief, to wit: "(1) he repeatedly fired his .30 caliber machine gun while intoxicated at the bus terminal in Midsayap (pp. 11-12, t.s.n., February 21, 1979); (2) that he fired at the Ford Fierra which took them in the Midsayap junction (p. 51, Supra) hitting one of its passengers (p. 64, t.s.n., July 24, 1978); (3) that Anacleto Simon while running away from the jeep driven by the deceased, heard a burst of machine gun fire coming from the direction of the jeep (p. 42, t.s.n., February 21, 1979); (4) the result of the Ballistic examination showing that the shells recovered from the scene of the crime were fired from the gun issued to appellant Mandolado (pp. 60-62, t.s.n., October 16, 1978); (5) the attempted flight of both appellants from justice (pp. 120-123, t.s.n., April 16, 1979) and which act clearly indicates guilt for the 'wicked teeth where no man pursueth but the righteous are as bold as the lion, and lastly (6) appellant's own admission before the lower court that he killed Tenorio and Mendoza although he claims the same to be accidental (pp. 7-8, t.s.n., October 6, 1978). "

The killing of the two victims in the case at bar is correctly qualified as murder, there being present the qualifying circumstance of treachery which is alleged in the informations. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. (Art. 14, paragraph 16, Revised Penal Code). The prosecution evidence is quite clear and explicit that when appellants alighted from the jeep, the accused Mandolado immediately fired his .30 caliber machine gun at the occupants of the jeep, the victims Nolasco Mendoza and Herminigildo Tenorio, and both of them died instantaneously on the

spot, and from this sudden means or manner of attack, it can reasonably be concluded that it tended directly to insure its execution without risk to the appellant-assailant and also deprive the victims of any chance or opportunity to defend themselves. We also rule that the particular means or manner employed by the appellant-assailant was consciously or deliberately sought and not a mere accidental circumstance resorted to on the spur of the moment on the basis of the evidence that the appellant had previously and repeatedly fired his .30 caliber machine gun at the bus terminal in Midsayap and had also fired the machine gun at the Ford Fiera which took them to Midsayap junction and that appellants waited for sometime riding on board the jeep driven by Tenorio before they ordered the jeep to stop, alight therefrom and then shoot the occupants therein.

While the informations allege as aggravating circumstances that of evident premeditation and the use of superior strength, aside from treachery, We cannot agree with the finding of the trial court that the aggravating circumstances of (1) advantage was taken of his being a Draftee in the Philippine Army, and (2) abuse of confidence or obvious ungratefulness were present in the commission of the crime.

While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one who holds public position (U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier was held to be a public officer), there is no persuasive showing that herein appellants being draftees of the Army, in full military uniform and carrying their high-powered firearms, facilitated the commission of the crimes they were charged. It may be conceded that as draftees, the accused could easily hitch hike with private vehicles, as in the case of the deceased Tenorio's owner-type jeep, but there is no evidence that when they stopped the jeep the accused already intended to shoot the occupants of the vehicle. As it was held in People Pantoja, 25 SCRA 468, 471 which We reiterate that "There is nothing to show that the appellant took advantage of his being a sergeant in the Philippine Army in order to commit the crimes. The mere fact that he was in fatigue uniform and had an army rifle at the time is not sufficient to establish that he misused his public position in the commission of the crimes ... "

There is also merit in appellants' contention that there could be no abuse of confidence as the evidence on record showed the lack of confidence by the victims to the appellants, that this confidence was abused, and that the abuse of the confidence facilitated the commission of the crimes. In order that abuse of confidence be deemed as aggravating, it is necessary that "there exists a relation of trust and confidence between the accused and one against whom the crime was committed and the accused made use of such a relationship to commit the crime." (People vs. Comendador, 100 SCRA 155, 172). It is also essential that the confidence between the parties must be immediate and personal such as would give that accused some advantage or make it easier for him to commit the crime; that such confidence was a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence (People vs. Hanasan, 29 SCRA 534). In the instant case, there is absolutely no showing of any personal or immediate relationship upon which confidence might rest between the victims and the assailants who had just met each other then. Consequently, no confidence and abuse thereof could have facilitated the crimes.

Similarly, there could have been no obvious ungratefulness in the commission of the crime for the simple reason that the requisite trust of the victims upon the accused prior to the criminal act and the breach thereof as contemplated under Article 14, par. 4 of the Revised Penal Code are manifestly lacking or non-existent. In all likelihood, the accused Army men in their uniforms and holding their high-powered firearms cowed the victims into boarding their jeep for a ride at machine gun point which certainly is no source of gratefulness or appreciation.

The finding of the trial court that: "There is no doubt about Martin Mandolado's state of intoxication. He was so drunk that even his three (3) companions armed with M-16 armalite feared him. The same thing was true with the MPs," should credit said accused with the mitigating circumstance of drunkenness but which the trial court decision failed to appreciate in his favor. Accordingly, the penalty to be imposed upon the accused-appellant Mandolado shall be reduced in the computation thereof.

With respect to the accused-appellant Julian Ortillano who was found guilty as an accessory in Criminal Cases No. 561 and No. 562 for having fired his M-16 armalite whenever Martin Mandolado fired his machine gun and, according to the court, this could be for no other purpose than to conceal or destroy the body of the crime and making it appear that the victims were fighting them or running away or that somebody else like the MNLF, rebels, NPA or bandits committed the crime, and for assisting in the escape of the principal Martin Mandolado) of the crime and sentenced in each of both cases to serve imprisonment for a term of six (6) years of prision correccional as minimum to seventeen (17) years of prision mayor as maximum, We find and hold that the accused-appellant Julian Ortillano should be convicted, not as an accessory, but as an accomplice.

An accomplice cooperates in the execution of the offense by previous or simultaneous acts, provided he has no direct participation in its execution or does not force or induce others to commit it, or his cooperation is not indispensable to its accomplishment (Art. 18, Revised Penal Code).

To hold him liable, upon the other hand, as an accomplice, it must be shown that he had knowledge of the criminal intention of the principal, which may be demonstrated by previous or simultaneous acts which contributes to the commission of the offense as aid thereto whether physical or moral (People vs. Silvestre, et al., 56 Phil, 353, 356). As aptly stated in People vs. Tamayo (44 Phil. 38, 49): 'It is an essential condition to the existence of complicity, not only that there should be a relation between the acts done by the principal and those attributed to the person charged as accomplice, but it is further necessary that the latter, with knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime in an efficacious way. (People vs. Custodia, 47 SCRA 289,303 [19721).

In the case at bar, Ortillano, by his acts, showed knowledge of the criminal design of Mandolado. He was present when Mandolado tried to attack the driver of the Ford Fierra with a knife and fired at the vehicle hitting a female passenger (p. 4, Decision). When Mandolado got angry and "cocked" his gun and ordered Tenorio to stop the jeep, their two

other companions, Simon and Erinada, immediately jumped off the jeep and ran away, but Ortillano stayed. In a display of unity with Mandolado, Ortillano fired his armalite while they were riding in the jeep of the victim (p. 5, Decision). And Ortillano's act of firing his gun towards the ground manifested his concurrence with the criminal intent. In other words, Ortillano's simultaneous acts supplied, if not material, moral aid in the execution of the crime in an efficacious way. Ortillano's presence served to encourage Mandolado, the principal, or to increase the odds against the victims (U.S. vs. Guevara, 2 Phil. 528 [1903]; People vs. Silvestre and Atienza, 56 Phil. 353 [1931]).

In convicting the accused Ortillano as an accomplice, We, however, appreciate the mitigating circumstance of drunkenness in his favor, the same as We did to his co-accused Martin Mandolado, the principal defendant.

In resume, the crime committed by the accused-appellant Martin Mandolado is murder, qualified by treachery. There being no aggravating circumstance but having found and appreciated drunkenness which is not habitual as a mitigating circumstance, the penalty prescribed under Article 248 of the Revised Penal Code which is reclusion temporal in its maximum period to death shall be imposed in its minimum period. Applying the Indeterminate Sentence Law, the accused shall be sentenced to imprisonment of ten (10) years and one (;) day of prision mayoras minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum in each case.

As to the accused-appellant Julian Ortillano, convicted as an accomplice to the crime of murder, and appreciating in his favor the mitigating circumstance of drunkenness which is not habitual, the penalty to be imposed upon him shall be one degree lower than that imposed for murder (Article 52, Revised Penal Code), which will be in the minimum period. Applying the Indeterminate Sentence Law, the accused Ortillano shall be sentenced to imprisonment of four (4) years, two (2) months of prision correccional as minimum to ten (10) years and one (1) day of prision mayor as maximum in each case.

With respect to damages, for the death of Herminigildo Tenorio, the award of P12,000.00 as compensatory damages and P 20,000.00 for moral damages is hereby affirmed.

For the death of Nolasco Mendoza, We reduce the award of P50,000.00 as compensatory damages to P12,000.00 We also reduce the award of P100,000.00 as moral damages to P20,000.00.

The liability of the appellants for the above damages which shall be paid to the heirs of the victims shall be in solidum (Article 110, par. 1, Revised Penal Code).

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of the trial court is hereby MODIFIED. The accused-appellant Martin Mandolado is hereby found guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 561 for the killing of Nolasco Mendoza and in Criminal Case No. 562, for the killing of Herminigildo Tenorio. There being no aggravating circumstance but having found and appreciated drunkenness which is not habitual as a mitigating circumstance, said accused is hereby sentenced to suffer imprisonment of ten (10) years and one (1) day of prision mayor as minimum to seventeen

(17) years, four (4) months and one (1) day ofreclusion temporal as maximum in each of the two cases.

The accused-appellant Julian Ortillano is hereby found guilty beyond reasonable doubt as accomplice in the crime of murder in Criminal Case No. 561 for the killing of Nolasco Mendoza and in Criminal Case No. 562 for the killing of Herminigildo Tenorio. Similarly, there being no aggravating circumstance but having found and appreciated the mitigating circumstance of drunkenness which is not habitual in his favor, said accused is hereby sentenced to suffer imprisonment of four (4) years, two (2) months of prision correccional as minimum to ten (10) years and one (1) day of prision mayor as maximum in each case.

In Criminal Case No. 561 for the killing of Nolasco Mendoza, We sentence both accused to pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 as moral damages. The liability of the accused shall be in solidum.

In Criminal Case No. 562 for the killing of Herminigildo Tenorio, We sentence both accused to pay the heirs of the victim P12,000.00 as compensatory damages and P20,000.00 for moral damages. The liability of the accused shall also be in solidum.

Costs against the appellants. Judgment modified.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Baguio City

THIRD DIVISION

G.R. No. 139179      April 3, 2002

PEOPLE OF THE PHILIPPINES, appellee, vs.WILFREDO TOLENTINO Y ESPERAT and JONATHAN FABROS Y CASTRO, accused,JONATHAN FABROS Y CASTRO, appellant.

PANGANIBAN, J.:

An appeal in a criminal case opens the entire records to review. The appellate court may pass upon every circumstance favorable to the accused. In the present case, the prosecution failed to prove the existence of conspiracy beyond reasonable doubt. Neither was it able to show that appellant was an accomplice or accessory. Hence, he must be acquitted on reasonable ground.

The Case

Jonathan Fabros y Castro appeals the May 27, 1999 Decision1 of the Regional Trial Court (RTC) of Zamboanga City (Branch 17) in Criminal Case No. 13698, finding him guilty of murder and sentencing him to reclusion perpetua. The dispositive portion of the Decision reads as follows:

"WHEREFORE, finding the accused Wilfredo Tolentino and Jonathan Fabros guilty beyond reasonable doubt of the crime of murder, and taking into consideration the aggravating circumstance of dwelling (morada) without any mitigating circumstance to offset the same, the Court hereby sentences the above-named accused separately to suffer the penalty of [r]eclusion [p]erpetua, to pay separately the heirs of the victim the sum of P50,000.00 as moral damages, the sum of P50,000.00 as exemplary damages, and to indemnify the said heirs [in] the sum of P15,000.00 as actual damages, and to pay the costs."2

The Information, dated March 2, 1996, charged appellant as follows:

"That on or about February 28, 1996, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a piece of wood and knife, conspiring and confederating together, mutually aiding and assisting with one another, by means of treachery and evident premeditation and with intent to kill, did then and there without any warning, assault, attack and stab with the use of said weapons that they were armed with, at the person of HERNAN SAGARIO y CUESTA, thereby inflicting mortal wounds on the different parts of the latter's body which directly caused his death, to the damage and prejudice of the heirs of said victim.

"That the commission of the above-stated offense has been attended by the following aggravating circumstances, to wit:

1. Abuse of superior strength; and

2. Dwelling."3

With the assistance of counsel,4 appellant pleaded not guilty when arraigned on June 7, 1996.5 After due trial, the RTC rendered the assailed Decision.

The Facts

Version of the Prosecution

The prosecution's version of the facts is summarized by the Office of the Solicitor General as follows:6

"On February 28, 1996 around 7:30 in the evening, appellant and his cousins, Sheila Guilayan and Merwin Ledesma, were at their house in Luyahan, Pasonanca, Zamboanga City when their neighbor Wilfredo Tolentino called them. When asked what was it all about, Wilfredo simply motioned to them to come to his house located just across the road. Once they were inside the house, Wilfredo immediately revealed his plan to kill Hernan Sagario, Sheila's stepfather. Wilfredo explained that it was the only way to free Sheila's mother - appellant's aunt - of the sufferings being caused by Hernan. Wilfredo then instructed Merwin to go back to the house and get the bolo of Hernan. Merwin obliged, got the bolo, and gave it to Wilfredo. Thereafter, they were told by Wilfredo to go home and wait for Hernan. 1âwphi1.nêt

"Around 8:30 in the evening, Hernan arrived. He went directly to the kitchen and fixed the bag of rice he was carrying. Meanwhile, appellant, together with Sheila and Merwin, just stayed quiet in the living room. Moments later, Wilfredo with a 2"x2" piece of wood in his hand entered the house. He then followed Hernan towards the kitchen. When about an armslength away from Hernan, Wilfredo, without saying a word, immediately walloped Hernan on the right side of the neck sending the latter unconscious and falling face down to the ground. Wilfredo immediately instructed appellant and Merwin to help him bring Hernan out of the house. Lifting Hernan out of the house, Wilfredo held him by the neck while both appellant and Merwin grasped his feet. They then carried Hernan towards the creek about seven meters away from the house.

"Upon reaching the creekside, the three stopped and moved closer to the water. At this juncture, Wilfredo successively stabbed Hernan on different parts of the body causing the latter's instant death. After throwing the victim's lifeless body in the creek, the three immediately left.

"The post-mortem examination on the victim's cadaver disclosed that the cause of his death was cardio-respiratory arrest due to shock and hemorrhage secondary to [a] stab wound penetrating the chest." (Citations omitted)

Version of the Defense

Appellant, on the other hand, presented the following version of the facts:7

"Accused Jonathan Fabros and Wilfredo Tolentino both denied killing the victim. Instead, they pointed to each other as the one who killed Hernan Sagario. Fabros pointed to Tolentino as the assailant and the latter also fingered the former as the killer of Sagario.

"Relying on his lone testimony and corroborating the testimony of prosecution witness Sheila Guilayan, accused Fabros narrated that he is a resident of Luyuhan, Pasonanca, particularly in the house of his auntie Amparo Guilayan (the common-law wife of Hernan Sagario), together with his cousins Merwin Ledesma and Sheila Guilayan.

"On 28 February 1996, at around 7:00 p.m., he returned home to Luyahan after his work at Astoria Hotel as a waiter. Sheila was at home when he arrived. Shortly thereafter, their neighbor, accused Tolentino, came over and called for Sheila. Sh[ei]la stood up and went to the house of Tolentino, leaving behind Fabros and Merwin Ledesma. After a while, he and Ledesma heard Sheila crying and the two went to the house of Tolentino. At the house of Tolentino, Fabros and Ledesma asked Sheila why she cried. [She] disclosed Tolentino's plan to kill her stepfather Hernan Sagario. When asked for his motive to kill Hernan Sagario, Tolentino merely reasoned that he just wanted to help their auntie Amparo get rid of her problems. When they expressed apprehension [about] being implicated and tried to prevent Tolentino from pursuing his plan, the latter told them not to worry; for he will take care.

"When Tolentino saw their uncle Hernan coming towards the house, he ordered them to go home and they obeyed. As he arrived, Hernan ordered Fabros to boil water. Afterwards, Hernan went out of the house to buy Ovaltine. When Hernan returned, Tolentino approached him and they talked for about two minutes. Afterwards, Tolentino went to his house while their uncle Hernan told him (Fabros) to check if the water was already boiling. Jonathan went to the kitchen while their uncle placed the rice he brought in a container. At that instance, Jonathan heard the sound 'pok', and saw Tolentino holding a piece of wood (2" x 2"). Then, he saw his uncle f[a]ll down slowly, his chest hitting the corner edge of a table. Tolentino approached his uncle and kicked him. Then he ordered Fabros to come near him and carry Hernan by his feet. Afraid that Tolentino will hit him with the piece of wood, Fabros held his uncle by the feet while Tolentino pulled Hernan by the shirt and he just followed Tolentino. Tolentino brought Hernan near the river. When Jonathan noticed that his uncle regained consciousness, he ran away towards a banana plantation and from there he saw Tolentino [stab] Sagario on the chest. After stabbing the victim, Tolentino pushed and waded him into the water. Scared, Jonathan ran home. About twenty minutes later, Tolentino arrived and with thumbs up sign, he said, 'Okey na!'. Jonathan also observed that there was blood on the shoulder of Tolentino. The latter then called the three (3) and warned them that if they will tell

other people, he will kill them. Out of fear, they just followed whatever Tolentino told them.

"By reason of fear of Tolentino's threat, Jonathan told the police that he did not know what happened. On 01 March 1996, however, he was arrested for the death of Hernan Sagario on account of an information received by the police identifying him as the assailant. He was brought to the Sta. Maria Police Station and thereat he was told by the police that if he will not admit, they will show him the witness, which the police later did by showing to him his co-accused Tolentino. On seeing Tolentino, he declared that he (Tolentino) was the one who killed the victim.

"However, on 14 July 2000, long after the trial court's decision had become final and executory on his part, Wilfredo Tolentino, apparently conscience-stricken, executed an affidavit admitting sole responsibility for the death of Hernan Sagario and retracted his testimony implicating accused-appellant Jonathan Fabros. His affidavit is herein reproduced as follows:

'I, WILFREDO TOLENTINO y ESPERAT, 65 years old, widower, Filipino, a convicted prisoner with the San Ramon Prison and Penal Farm in Zamboanga City, after having been duly sworn to in accordance with law hereby depose and state:

'That I was convicted for the crime of Murder in Criminal Case No. 13698 entitled 'The People of the Philippines, Plaintiff, versus, Wilfredo Tolentino y Esperat and Jonathan Fabros y Castro, accused,' which Decision was promulgated on May 30, 1999 and ha[s] become final;

'That of the four years I have been in prison, I have contemplated on the consequences of my acts and have been conscience stricken causing me sleepless nights and deep pity [for] my co-accused Jonathan Fabros whom I have wrongfully imputed to be the killer of the victim Hernan Sagario y Cuesta. As he appealed the Decision, [maybe] I still have the chance to rectify the wrong I have done to him and tell the Honorable Court what actually happened [o]n the night of February 28, 1996, as hereunder narrated;

'That I had known Hernan Sagario earlier in 1994 when he was still a security guard and he attempted to shoot me with his service firearm and although we had amicably settled the matter between us, when he came to be my neighbor, I would remember that incident and my old grudge against him would be rekindled;

'That earlier that night of February 28, 1996, I came home quite drunk [after] my drinking spree with my relatives across the river and one of the topics we discussed was about the incident when Hernan Sagario attempted to shoot me. As I recalled that incident, my old grudge against him resurfaced and I resolved right then and there to take my revenge on Hernan. So when he came home and he was in the kitchen, I took hold of a piece of wood and hit

him with it and when he fell down unconscious, I dragged his body outside of the house, ordering Jonathan Fabros who was then in the kitchen to help me carry the body of Hernan outside or else he would also become my victim. Jonathan unwillingly assisted me carry the body of Hernan outside and upon my direction, we dragged the body of Hernan towards the river where to finish him off, I stabbed [him] in the chest and pushed him down into the water to hide his body. For his part, Jonathan left me when the body reached the river;

'That after [the] killing, I threatened Jonathan Fabros, Neneng (the daughter of Hernan's live-in-partner) and Weng-weng, a cousin of Neneng and Jonathan[,] never to report the incident to any one or else they could become my next victim;

'That during the investigation of the killing, I pointed to Jonathan as the killer of Hernan, thinking that I would not be implicated. Even when I was also charged for the killing, I was confident that I would be acquitted if I would point to Jonathan as the killer. During the trial of the case, I bribed Jonathan and even gave P20,000.00 to a middle man to effect the pay off but Jonathan returned the money to me saying he could not admit what he did not commit;

'That my conscience ha[d] been greatly troubled by denying Jonathan his future by [my] own evil acts and by this affidavit hopes to correct the wrongs I had done to Jonathan Fabros;

'That I am executing this affidavit [to] attest to the truth of the foregoing narration of facts and to appeal to the Court authorities to rectify the wrongs I had done to Jonathan Fabros and I am willing to testify in court o[n] these statements narrated.'"

Ruling of the Trial Court

The trial court held that the prosecution's evidence positively identified Wilfredo Tolentino as the person who had hit the victim with a piece of wood and later stabbed him with a bolo. It also ruled that the killing was qualified by treachery and attended by the aggravating circumstance of dwelling.

The court a quo observed that overt and positive acts of appellant manifested his approval of the killing and the concurrence of his acts with those of the other accused.8 Thus, the RTC concluded that Fabros was a co-conspirator and should be held equally responsible for the murder.

Hence, this appeal.9

The Issue

In his Brief, appellant assigns the following alleged errors for our consideration:

I

"The Court a quo gravely erred in convicting herein Accused-appellant Jonathan Fabros of the crime charged notwithstanding the categorical statement of Prosecution Witness Sheila Guilayan that it was Accused Wilfredo Tolentino who actually killed the victim, Hernan Sagario.

II

"The Court a quo gravely erred in convicting accused-appellant notwithstanding Wilfredo Tolentino's categorical admission of guilt [of] the crime charged."10

The errors boil down to the sufficiency of the prosecution evidence.

This Court's Ruling

The appeal is meritorious; appellant should be acquitted.

Main Issue:

Sufficiency of Prosecution Evidence

The RTC held that the assistance of appellant in bringing the body of the victim from the house to the river bank where the latter was allegedly stabbed to death positively showed that the former had conspired in the commission of the crime.11 In its abbreviated nine-page Brief, the Office of the Solicitor General agrees that conspiracy has been duly proven. On the other hand, appellant argues that his "fleeting participation" in helping carry the victim's body to the river bank did not indicate unity of purpose or design. We agree with him.

An appeal in a criminal action opens the whole case to review. This implies that the Court may pass upon every circumstance favorable to the accused. In People v. Manambit,12 the Court explained thus:

"Indeed, the Supreme Court is clothed with ample authority to review matters, even those not raised on appeal, if it finds that their consideration is necessary in arriving at a just disposition of the case. It is a matter of justice that the two other appellants be exonerated of the charges. This we do because an appeal in a criminal action opens the whole case for review and this includes the review of the penalty and indemnity. Every circumstance in favor of the accused shall be considered."13

No Conspiracy

Even the Office of the Solicitor General admits that appellant did not directly kill the victim. It, however, urges us to convict him on the basis of conspiracy.

In theory, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.14 To prove conspiracy, the prosecution must establish the following three requisites: (1) two or more persons came to an agreement, (2) the agreement concerned the commission of a crime, and (3) the execution

of the felony was decided upon.15 Once conspiracy is established, the act of one becomes the act of all.16

Well-settled is the rule that the existence of conspiracy cannot be presumed.17 Quite the contrary, the evidence for it must be shown beyond reasonable doubt.18 As this Court has repeatedly stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures.19 Prior agreement or assent is usually inferred from the acts of the accused showing concerted action, common design and objective, actual cooperation, and concurrence of sentiments or community of interests.20 Mere presence at the scene of the crime or even knowledge of the plan or acquiescence thereto are not sufficient grounds to hold a person liable as a conspirator.21 Therefore, the task in every case is to determine whether the particular acts established by the requisite quantum of proof reasonably yield that inference.22

In the case before us, we agree that the culpability of Tolentino was clearly established, but we are also convinced that the evidence fails to show the culpability of appellant beyond reasonable doubt.23 Because, unquestionably, the latter did not personally inflict any of the fatal flows, he can be held liable as a principal, only if conspiracy is proven.24 To recall, Sheila Guilayan, the prosecution eyewitness, narrated the circumstances surrounding the killing of Hernan Sagario as follows:

"Q       On February 28, this year, 1996, at around 7:30 o'clock in the evening, can you still remember where were you?

A       Yes, I could still remember, I was in our house.

Q       You were in your house, are you referring to your house in Pasonanca, Luyahan?

A       Yes.

Q       Can you also remember who were with you in that evening of February 28, 1996 in your house at Pasonanca, Luyahan?

A       Yes, I can still remember, my companions were Jonathan Fabros and Melwin Ledesma.

x x x      x x x      x x x

Q       And you said while you were in the sala sitting down, writing, there was an incident that transpired, will you please tell us what transpired?

ATTY. JIMENEZ:

That will ask for narration, what transpired?

COURT:

Be more specific on that.

PROSECUTOR ORILLO:

Q       What happened?

A       I was called by Tolentino and he requested me to go to their house.

Q       You are referring to Wilfredo Tolentino?

ATTY. JIMENEZ:

Leading, Your Honor.

COURT:

Sustained.

PROSECUTOR ORILLO:

Q       What did you do after you were called by this Tolentino?

A       So I went with him to their house.

Q       Where is his house?

A       Just beside our house or near our house.

COURT:

Q       Where was Tolentino when he called you to go with him?

A       He was by the door of our house although he was still outside but he was at the door of our house when he called me.

COURT:

Continue.

PROSECUTOR ORILLO:

Q       And you said you went with him to his house, now what happened there in his house?

A       There in their house he told me just to keep quiet because he [was] going to kill my step-father.

Q       And what did you do next after he told you about that?

A       After he told me that I cried and I told him not to do that because we will be implicated.

Q       What else did you do aside from crying and telling him not to do it because we will be implicated, what else did you do?

A       Well, I just cried until my two cousins heard me and they, the two, also went to the house of Tolentino.

Q       While your two cousins were already in the house of Tolentino, what happened next?

A       My cousins asked me why I was crying.

Q       And then?

A       They asked Tolentino why I was crying.

Q       What did you do next?

A       I just cried and kept on telling him not to do it because we will be implicated and also my mother [was] not [t]here.

Q       And how about Tolentino, what did he do?

A       Well, he again told me just not to tell it to anybody because if I [was] going to tell it to anybody, he will also kill us.

Q       How about your two cousins, what did they do?

A       My cousins also told him not to do it because they said they [were] the only persons [t]here and for sure we will be implicated.

Q       And thereafter, what happened next?

A       Tolentino said he will just take care.

Q       So what happened next after that?

A       And then Tolentino asked Melwin Ledesma to get the bolo of my stepfather in our house.

Q       And what did your cousin Melwin Ledesma do after he was ordered by Tolentino to get the bolo?

A       Then Melwin Ledesma went to the house and got the bolo and brought the same to the house of Tolentino.

Q       And after bringing the bolo to the house of Tolentino, what happened next?

A       Then when my step-father was on his way to our house, Tolentino told us to go home."25

"Q       What happened next after you said your step-father went out to buy ovaltine?

A       Then several minutes thereafter my stepfather again arrived in our house then he got inside the house and he went directly to the kitchen.

Q       And what did your step-father do?

A       After that he transferred the rice he brought which was placed on a plastic cellophane to another plastic container.

Q       And what else happened?

A       And then after that Tolentino entered our house and went directly to the kitchen and there he hit my step-father.

Q       And what instrument did Tolentino use in hitting your step-father?

A       A piece of wood.

Q       Will you please describe this piece of wood?

A       A round piece of wood.

Q       How about the length of this piece of wood?

A       (Witness extended her both hands to demonstrate the length which when measured gave us twenty inches in length).

Q       You said it was a round piece of wood, can you more or less tell us the diameter of this piece of wood?

A       (Witness again made a circle to demonstrate the diameter which [was] three and a half inches x x x).

PROSECUTOR ORILLO:

Q       And where was your step-father hit by that piece of wood used by Tolentino?

A       He was hit on the right side of his neck x x x extending to his right jaw.

Q       Will you please tell this Honorable Court your particular position when you saw Tolentino hit with the piece of wood your step-father?

A       I was in a sitting position in the sala but you know in our house even if you are seated in the sala you can see the kitchen from there.

Q       Before you saw that, where did Tolentino come from?

ATTY. JIMENEZ:

Witness is incompetent, Your Honor.

PROSECUTOR ORILLO:

If she knows, Your Honor.

ATTY. JIMENEZ:

She was seated in the sala, how can [she] know?

COURT:

According to her she went home and she was in the sala. If she went to the sala, probably she will know. If she knows she may answer.

A I did not know where he came from but I just saw him getting inside our house and [going] directly to the kitchen.

PROSECUTOR ORILLO:

Q       When you saw Tolentino hit your step-father, where was your step-father facing?

A       He was facing forward while Tolentino came from behind him.

Q       And what happened next after your step-father was hit by that piece of wood used by Tolentino?

A       After he was hit he fell [face] down x x x, he fell down first on the table and after that to the ground. From the table he continued to fall to the ground.

Q       And while your step-father was already on the ground, what if any did Tolentino do?

A       Then when my step-father was already at the cemented pavement Tolentino stepped on his head several times.

Q       And then what happened next?

A       After that I cried but he told me to keep quiet because if I [was] not going to keep quiet he will also kill us.

Q       After that, what happened?

A       And then he asked my cousins to help him to bring the body of my step-father outside of the house.

Q       And then?

A       Then they brought my step-father outside of the house and Tolentino held him on the collar of his shirt and my cousins held him on his feet.

Q       And while already outside the house, towards what direction did they bring your step-father?

ATTY. JIMENEZ:

Witness is incompetent, we object, Your Honor.

COURT:

Sustained.

PROSECUTOR ORILLO:

Q       What else happened after you saw your cousins Jonathan Fabros and Tolentino carrying your step-father?

ATTY. FABIAN:

Objection, Your Honor, there was no mention of any Jonathan Fabros in her testimony.

COURT:

Cousin only.

ATTY. FABIAN:

Yes, Your Honor, cousin only, no mention of Jonathan Fabros.

COURT:

I do not know if it was cousin or cousins.

ATTY. JIMENEZ:

I heard cousins, Your Honor.

COURT:

Cousins, with 'S'. She may answer. Yes, according to her it was only her cousins who were with her.

ATTY. FABIAN:

I heard the name Jonathan Fabros being mentioned by the prosecution, Your Honor.

COURT:

That is why I told the prosecutor to change it to cousins.

ATTY. FABIAN:

Yes, Your Honor.

A       It was only Jonathan and Tolentino who carried him.

Q       So what happened next after you saw them carrying your step-father?

A       They brought my step-father to the creek.

Q       How far is this 'sapa' or creek from your house?

A       Maybe from here (witness again by the use of the witness stand as reference point, pointed to the fourth bench from the front,) about 6.5 meters, because from the witness stand to the main door is measured 7.5 meters, so if it is from here, it is only 6.5 meters.

ATTY. JIMENEZ:

That is about 7 to 8 meters.

COURT:

That is about 7 meters already from the witness stand to the fourth bench, more or less 7 meters.

PROSECUTOR ORILLO:

Q       This 'sapa' or creek that you are referring to, please describe to this Honorable Court this creek which according to you is only 7 meters more or less away from your house?

A       This is a wide creek.

Q       And what else did you see?

A       Well, since it was clear from our house although I stayed inside our house and since the walling of our house, the portion of this is made of screen, I saw Tolentino when they were carrying my step-father in the act of stabbing my step-father (witness demonstrated as if she was holding something and thrust[ing it] forward).

Q       What else did you see?

A       And then after that, I only saw Tolentino [place] the body of my step-father on the water and there I did not see my cousin anymore.

Q       And then what transpired next?

A       Then a few minutes thereafter my cousin returned to the house.

Q       And what did you do when your cousin returned to the house?

A       And then when he arrived home I just cried and I told him, because his nickname is Nonong, so I said: 'Nonong, we will be really implicated and he said nothing and instead he just went to his previous position and sat down.

Q       How about the other cousin of yours Melwin Ledesma, where was he?

A       He was also beside me and he was embracing me from behind.

Q       What happened next?

A       Then another few minutes after, Tolentino arrived in our house.

Q       And when he arrived at your house, what did he do?

A       And then there inside our house he flashed a thumb's up and he said it is already okey.

Q       What else did he do?

A       Then he approached me and told me not to report [t]his incident because if I [was] going to report [it] he [was] going to kill me.

Q       And that particular time when he arrived at your house, what if any did you notice from his person, this Tolentino?

ATTY. JIMENEZ:

Leading, Your Honor.

COURT:

Sustained.

PROSECUTOR ORILLO:

What if any have you noticed from Tolentino?

COURT:

Will you please be more specific with your question.

PROSECUTOR ORILLO:

At the time when Tolentino arrived at your house and told you 'okey na', with thumb's up, that particular time, what if any have you noticed on his person?

ATTY. JIMENEZ:

It is [a] very general question, Your Honor.

COURT:

Anything she noticed, she may answer.

A       I noticed that his shortpants was wet and there [were] bloodstains on his shirt."26

The above testimony shows that Tolentino attacked Hernan Sagario. The assault was carried out without the participation of appellant,27 who did not personally hit or stab the victim, but only subsequently helped carry the latter from the house to the nearby creek.28 Nothing in the testimony conveyed a coordinated action, concerted purpose or community of design to commit the criminal act.29 It must be emphasized that Tolentino's plan to kill the victim was concocted in the absence of appellant.30 The latter's participation, as shown by the foregoing testimony, was made when the decision to kill was already a fait accompli.31

Further, conspiracy cannot be inferred from the overt acts of appellant.32 He did nothing to assist Tolentino in the actual commission of the murder.33 Neither did the former bear any weapon, much less use one to inflict injury on the victim.34 In fact, appellant, showing clearly

his lack of support for the criminal intent of Tolentino, even tried to prevent the latter from hacking the victim, according to the eyewitness.35

Indeed, the trial court based its finding of conspiracy on mere presumptions, not on solid facts indubitably indicating a common design to commit murder.36 Such suppositions do not constitute proof beyond reasonable doubt.37

Because of the lack of a united purpose, appellant cannot be considered a principal by indispensable cooperation.38Absent a conspiracy, his responsibility, as well as that of his co-accused, is individual -- not collective -- and each is to be punished only for his own separate acts.39

Not an Accomplice

Neither can appellant be convicted as an accomplice. Article 18 of the Revised Penal Code defines accomplices as "those persons who, not being included in Article 17,40 cooperate in the execution of the offense by previous or simultaneous acts." To be convicted as an accomplice, it is necessary that the accused be aware of the criminal intent of the principal and then cooperate knowingly or intentionally by supplying material or moral aid for the efficacious execution of the crime.41

To consider a person an accomplice in the commission of the offense, the following must concur: (1) community of design -- knowing the criminal design of the principal by direct participation, one concurs therein; (b) cooperation in the execution of the offense by previous or simultaneous acts, with the intention of supplying material and moral aid in the execution of the crime in an efficacious way; and (c) a relation between the acts done by the principal and those attributed to the person charged as accomplice.42

To be deemed an accomplice, one needs to have had both knowledge of and participation in the criminal act.43 In other words, the principal and the accomplice must have acted in conjunction and directed their efforts to the same end.44 Thus, it is essential that both were united in their criminal design.45

In the case before us, appellant did not concur in or lend support to the nefarious intent of Tolentino.46 The mere fact that the former had prior knowledge of the latter's criminal design did not automatically make him an accomplice.47 This circumstance, by itself, did not show his concurrence in the principal's criminal intent.48

That appellant helped Tolentino carry the victim from the house to the creek did not necessarily demonstrate concurrence of wills or unity of purpose or action.49 Quite the contrary, the former's attempt to dissuade the latter from killing Sagario was attested to by the prosecution witness.50 With the nominal role appellant played in the drama that had been thrust upon him, we cannot declare that he was an accomplice in the crime charged.51

Not an Accessory Either

Appellant cannot be convicted as an accessory either. Article 19 of the Revised Penal Code defines an accessory as one who had knowledge of the commission of the crime and did

not participate in its commission as principal or accomplice, yet took part subsequent to its commission by any of three modes: (1) profiting oneself or assisting the offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. To convict an accused as an accessory, the following elements must be proven: (1) knowledge of the commission of the crime and (2) subsequent participation in it by any of the three above-cited modes.52

Under paragraph 2 of said codal provision, the concealment or the destruction of the body of the crime or of the effects or the instruments thereof must have been done in order to prevent the discovery of the crime.53 That, precisely, is wanting in the present case.54

In his testimony,55 appellant stated that because he was afraid his co-accused would hurt him if he refused, he agreed to assist the latter in carrying the victim towards the river. The fact that appellant left thereafter likewise indicated his innocence of the charge.56 Verily, he adequately explained his conduct prior to the stabbing incident as one born of fear for his own life.57 It is not incredible for an eyewitness to a crime, especially if unarmed, to desist from assisting the victim if to do so would put the former's life in peril.58

Thus, in People v. Verzola,59 we explained as follows:

"x x x. It must be noted that Josefina testified that she helped her co-appellant bring the body of the deceased down the stairs because of fear. Even if she assisted her co-appellant without duress, simply assisting Verzola in bringing the body down the house to the foot of the stairs and leaving said body for anyone to see, cannot be classified as an attempt to conceal or destroy the body of the crime, the effects or instruments thereof, must be done to prevent the discovery of the crime."60

The presumption of innocence in favor of appellant has not been overcome by proof beyond reasonable doubt.61Thus, he must be acquitted.62

WHEREFORE, the appeal is GRANTED and the assailed Decision SET ASIDE. Appellant is ACQUITTED on reasonable doubt. He is ordered RELEASED from custody immediately, unless legally held for another cause. In this regard, the director of the Bureau of Corrections is directed to report to this Court his compliance with this Decision within five (5) days from receipt hereof.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 85204 June 18, 1990

JORGE TAER, petitioner, vs.THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Lord M. Marapao for petitioner.

The Solicitor General for respondents.

 

SARMIENTO, J.:

This is a petition for review on certiorari of the decision rendered by the Court of Appeals in "People v. Jorge Taer," CA-G.R. CR No. 01213, 1 dated May 26, 1988, which affirmed in toto the conviction of Jorge Taer for the crime of cattle rustling by the Regional Trial Court of Bohol in Criminal Case No. 3104, 2 and the resolution of the same court denying the petitioner's Motion for Reconsideration.

After the required preliminary investigation in the 11th Municipal Circuit Court at Valencia-Dimiao, in the province of Bohol, the following information was filed in the then Court of First Instance of Bohol, 14th Judicial District, Branch IV, at Tagbilaran City:

The undersigned, Third Assistant Provincial Fiscal, hereby accuses Emilio Namocatcat alias Milio, Mario Cago, Jorge Taer and Cerilo Saludes for the crime of Theft of Large Cattle, committed as follows:

That on or about the 5th day of December, 1981, in barangay Lantang, municipality of Valencia, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping with each other, with the intent of gain and without the consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and lead away two (2) male carabaos with the total value of FOUR THOUSAND PESOS (P4,000.00), Philippine Currency, belonging to and owned by Tirso Dalde and Eladio Palaca; to the damage and prejudice of the said offended parties in the aforestated amount.

Acts committed contrary to the provisions of Articles 308, 309 and 310 of the Revised Penal Code, with the aggravating circumstance of nighttime being purposely sought for or taken advantage by the accused to facilitate the commission of the crime.

City of Tagbilaran, June 1, 1982. 3

After proper proceedings and trial, Saludes and Cago were acquitted but Taer and Namocatcat were convicted. The dispositive portion of the decision of the trial court, dated July 6, 1984, reads as follows:

WHEREFORE, the Court finds accused Emilio Namocatcat and Jorge Taer GUILTY beyond doubt of the theft of large cattle and appreciating against them the aggravating circumstance of nocturnity and pursuant to Presidential Decree No. 533 each is hereby sentenced to undergo the indeterminate penalty of imprisonment of from SIX (6) YEARS and ONE DAY TO FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS, together with the accessory penalties, and to pay the costs; they are entitled to credit for their preventive imprisonment. Accused Mario Cago and Cirilo Saludes are ACQUITTED for insufficiency of evidence. 4

Only Jorge Taer appealed to the Court of Appeals. The Court of Appeals, finding the evidence of the prosecution that conspiracy indeed existed between Emilio Namocatcat and Jorge Taer, affirmed in toto the decision appealed from. But the affirmance did not affect Emilio Namocatcat because, as adverted to earlier, he did not appeal his conviction by the Regional Trial Court.

Hence, this petition for review was filed by Taer alone.

In sum, Taer interposed these twin arguments:

1. That the extent of his participation did not go beyond the participation of the original defendants Cirilo Saludes and Mario Cago. Therefore, he submits that the acquittal of these two by the trial court should also lead to his acquittal; 5

2. That the only evidence proving the alleged conspiracy between him and Emilio Namocatcat was the confession of his co-accused Emilio Namocatcat. However this should not be considered as admissible because the same is hearsay under the rule of res inter alios acta. 6

The undisputed facts as found by the trial court show that:

In the evening of December 5, 1981, accused Cirilo Saludes slept in the house of his compadre accused Jorge Taer at Datag, Garcia-Hernandez, Bohol, whereat he was benighted. At about 2:00 o'clock dawn, December 6, 1981, accused Emilio Namocatcat and Mario Cago arrived at Taer's house with two (2) male carabaos owned by and which Namocatcat wanted Taer to tend. The said carabaos were left at Taer's place.

Tirso Dalde and Eladio Palaca of Lantang, Valencia Bohol discovered in the morning of December 6, 1981 that their respective male carabaos, 3 to 4 years old, were missing at the different grazing grounds whereat they tied the same the afternoon preceding.

After searching in vain for the carabaos at the vicinity, Dalde and Palaca reported the matter to the police. On December 15, 1981, one Felipe Reyes of Hinopolan, Valencia, Bohol, informed Dalde that he saw the latter's lost carabao at Datag, Garcia-Hernandez. Forthwith Dalde and Palaca went on that day to Datag and there they found their missing carabaos tied to a bamboo thicket near the house accused Taer who was then not in the house as he was in Napo, Garcia-Hernandez, attending the fiesta where he cooked for the accused Saludes. Upon query by Dalde and Palaca why their carabaos were found at his place, accused Taer, according to Dalde and Palaca replied that the carabaos reached his place tied together without any person in company. According to accused Taer, what he told Dalde and Palaca was that the carabaos were brought to his place by the accused Namocatcat who asked him to tell anybody looking for them that they just strayed thereat.

The 2 carabaos were taken by Dalde and Palaca from accused Taer's possession on that day, December 15.7

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The Court of Appeals would consider these as proof of the existence of conspiracy:

Altho (sic) accused Taer admitted that before December 6, 1981, he had not met accused Namocatcat since 1975 and had not previously tended any carabao belonging to Namocatcat, it is unbelievable that Taer was not suspicious of the origin of the 2 male carabaos which to say the least were delivered to him to be tended under strange circumstances, to wit, at the unholy hour of 2:00 o'clock dawn after a travel of 14 kilometers' in the dead of the night. He unreservedly accepted the charge of tending them with the agreement as to the sharing of the produce out of said carabaos (sic) use. If, as he asserted, Namocatcat left the carabaos with him with the word that if anybody would look for them he was to tell that the carabaos just strayed into his other carabaos (sic), the more Taer ought to be more suspicious as to the origin of said carabaos, yet, since that dawn delivery on December 6, 1981, until they were retrieved from his possession, he never apprised the barangay captain, living just 2 kilometers away from his house, about the matter. He continued to hold on to the stolen carabaos until they were recovered 10 days later.

Ordinarily, one would not hold on to a thing he suspects to be stolen to obviate any criminal responsibility or implication. But accused Taer did the opposite-a clear indication that he and accused Namocatcat did have some kind of an unlawful agreement regarding the stolen carabaos. He did not even reveal immediately to the authorities that the carabaos delivered to him by Namocatcat were stolen and he tried his best to keep under cover Namocatcat's Identity.

The Court, therefore, finds that conspiracy between accused Namocatcat and Taer in the theft of the carabaos has been established beyond doubt. 8

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We disagree with the findings of the respondent court; they are mere suspicions and speculations. The circumstances adverted to above do not establish conspiracy beyond reasonable doubt.

There is conspiracy when two or more persons come to an agreement regarding the commission of an offense and decide to commit it. Although the facts may show a unity of purpose and unity in the execution of the unlawful objective, essential however is an agreement to commit the crime and a decision to commit it. 9

Only recently we emphasized the rule that:

Conspiracy must be established not by conjectures, but by positive and conclusive evidence. The same degree of proof necessary to establish the crime is required to support a finding of the presence of criminal conspiracy, which is, proof beyond reasonable doubt. 10

Thus mere knowledge, acquiescence to, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the intentional participation in the transaction with a view to the furtherance of the common design and purpose.

At most the facts establish Taer's knowledge of the crime. And yet without having participated either as principal or as an accomplice, for he did not participate in the taking of the carabaos, he took part subsequent to the commission of the act of taking by profiting himself by its effects. Taer is thus only an accessory after the fact.

Article 19 of the Revised Penal Code states:

Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the crime; 11

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person who received any property from another, and used it, knowing that the same property had been stolen is guilty as an accessory because he is profiting by the effects of the crime." By employing the two carabaos in his farm, Taer was profiting by the objects of the theft. 12

On the conspiracy charge, the most cogent proof that the prosecution could ever raise was the implication made by the accused Namocatcat (he did not appeal his conviction to the Court of Appeals) in his affidavit of confession. 13

However, the settled rule is that the rights of a party can not be prejudiced by an act, declaration, or omission of another. 14

The testimony, being res inter alios acta, can not affect another except as provided in the Rules of Court. This rule on res inter alios acta specifically applies when the evidence consists of an admission in an extrajudicial confession or declaration of another because the defendant has no opportunity to cross-examine the co-conspirator testifying against him. 15

Since this is the only evidence of the prosecution to prove the conspiracy with Namocatcat, this uncorroborated testimony can not be sufficient to convict Taer.

The offense for which Taer is accused is covered by Articles 308, 309, and 310, as amended by "Me Anti-Cattle Rustling Law of 1974. 1116 The penalty imposed on the principal for the crime of cattle rustling is:

Sec. 8. Penal provisions. — Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be imposed. 17

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Inasmuch as Taer's culpability is only that of an accessory after the fact, under Art. 53 of the Revised Penal Code, the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed.

The penalty two degrees lower than that imposed under the first sentence of Section 8 of PD No. 533 isarresto mayor maximum or 4 months and one day to 6 months to prision correccional medium or 2 years 4 months and 1 day to 4 years and 2 months. In addition, the Revised Penal Code provides that when the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, the courts shag observe the rule that when there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. 18 Hence the imposable penalty would be prision correccional minimum or 6 months and 1 day to 2 years and 4 months imprisonment.

Since the maximum term of imprisonment exceeds one year, we apply the Indeterminate Sentence Law. 19

This law provides that the maximum term of imprisonment shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said code which

is prision correccionalminimum or 6 months and 1 day to 2 years and 4 months. And the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower would be in the range of destierro maximum or 4 years 2 months and 1 day to 6 years to arresto mayor medium or 2 months and 1 day to 4 months.

WHEREFORE, the decision rendered by the Regional Trial Court of Tagbilaran and affirmed by the respondent Court of Appeals is hereby MODIFIED in that the herein JORGE TAER is convicted as an accessory of the crime of cattle-rustling as defined and penalized by PD No. 533 amending Arts. 308, 309, and 310 of the Revised Penal Code and he will serve the minimum penalty within the range of arresto mayormedium, which we shall fix at 4 months imprisonment and the maximum penalty of prision correccionalminimum which we shall fix at 2 years.

With costs.

SO ORDERED.