EN BANCG.R. No. L-5371 March 26, 1953THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.AQUINO MINGOA,defendant-appellant.REYES,J.:Found short in his accounts as officer-in-charge of the office of the municipal treasurer of Despujols, Romblon, and unable to produce the missing fund amounting to P3,938 upon demand by the provincial auditor, the defendant Aquino Mingoa was prosecuted for the crime of malversation of public funds in the Court of First Instance of Romblon, and having been found guilty as charged and sentenced to the corresponding penalty, he appealed to the Court of Appeals. But that court certified the case here on the ground that it involved a constitutional question.The evidence shows that it is not disputed that upon examination of his books and accounts on September 1, 1949, defendants, as accountable officer, was found short in the sum above-named and that, required to produce the missing fund, he was not able to do so. He explained to the examining officer that some days before he had, by mistake, put the money in a large envelope which he took with him to show and that he forgot it on his seat and it was not there anymore when he returned. But he did not testify in court and presented no evidence in his favor.We agree with the trial judge that defendant's explanation is inherently unbelievable and cannot overcome the presumption of guilt arising from his inability to produce the fund which was found missing. As His Honor observes, if the money was really lost without defendant's fault, the most natural thing for him to do would be to so inform his superiors and apply for release from liability. But this he did not do. Instead, he tried to borrow to cover the shortage. And on the flimsy excuse that he preferred to do his own sleuthing, he even did not report the loss to the police. Considering further as the prosecution points out in its brief, that defendant had at first tried to avoid meeting the auditor who wanted to examine his accounts, and that for sometime before the alleged loss many teachers and other employees of the town had not been paid their salaries, there is good ground to believe that defendant had really malversed the fund in question and that his story about its loss was pure invention.It is now contended, however, that lacking direct evidence of actual misappropriation the trial court convicted defendant on mere presumptions, that is, presumptions of criminal intent in losing the money under the circumstances alleged and presumptions of guilt from the mere fact that he failed, upon demand to produce the sum lacking. The criticism as to the first presumption is irrelevant, for the fact is that trial court did not believe defendant's explanation that the money was lost, considering it mere cloak to cover actual misappropriation. That is why the court said that "whether or not he (defendant) is guilty of malversation for negligence is of no moment . . . " And as to the other presumption, the same is authorized by article 217 of the Revised Penal Code, which provides:The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall beprima facieevidence that he has put such missing funds or property to personal use.The contention that this legal provision violates the constitutional right of the accused to be presumed innocent until the contrary is proved cannot be sustained. The question of the constitutionality of the statute not having been raised in the court below, it may not be considered for the first time on appeal. (Robbvs.People, 68 Phil., 320.)In many event, the validity of statutes establishing presumptions in criminal cases is now settled matter, Cooley, in his work on constitutional limitations, 8th ed., Vo. I, pp. 639-641says that "there is no constitutional objection to the passage of law providing that the presumption of innocence may be overcome by contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence." In line with this view, it is generally held in the United States that the legislature may enact that when certain facts have been proven they shall beprima facieevidence of the existence of the guilt of the accused and shift the burden of proof provided there be rational connection between that facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience. (See annotation on constitutionality of statutes or ordinances making one fact presumptive orprima facieevidence of another, 162 A.L.R. 495-535; also, Statevs.Brown, 182 S.E., 838, with reference to embezzlement.) The same view has been adopted here as may be seen from the decisions of this court in the U.S.vs.Tria, 17 Phil., 303; U.S.vs.Luling, 34 Phil., 725; andPeople vs. Merilo, G.R. No. L-3489, promulgated June 28, 1951.The statute in the present case creates a presumption of guilt once certain facts are proved. It makes the failure of public officer to have duly forthcoming, upon proper demaand, any public funds or property with which he is chargeableprima facieevidence that he has put such missing funds or property to personal use. The ultimate fact presumed is that officer has malversed the funds or property entrusted to his custody, and the presumption is made to arise from proof that he has received them and yet he has failed to have them forthcoming upon proper demand. Clearly, the fact presumed is but a natural inference from the fact proved, so that it cannot be said that there is no rational connection between the two. Furthermore, the statute establishes only aprima faciepresumption, thus giving the accused an opportunity to present evidence to rebut it. The presumption is reasonable and will stand the test of validity laid down in the above citations.There being no reversible error in the decision appealed from, the same is hereby affirmed, with costs.

EN BANCG.R. No. L-53586 January 30, 1982THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.PONCIANO LUMAGUE, JR., MARIO LUMAGUE, ROLANDO LUMAGUE and JUANITO LUMAGUE,accused whose death sentences are under review.PER CURIAM:This is a murder case. Early in the morning of July 25, 1977, Antonio A. Regalado, 39, a credit investigator of the Social Security System, was maliciously killed in the Marikit Sub. division, Marikina, Rizal.The postmortem examination revealed that he had fourteen incised wounds, two lacerated wounds, ten punctured wounds and ten stab wounds, orthirty-six woundsin all, eight of which were fatal because they affected his vital organs like his lungs, liver, heart and intestines (Exh. A). The wounds were located in different parts of his body: front and back, head, arms, legs, abdomen, knees, chest and shoulders (Exh. B). Obviously, he had been assaulted by more than one person.The incised and stab wounds were caused by a bladed weapon such as a kitchen knife. The lacerated wounds were caused by a blunt instrument such as a piece of wood or iron bar. The punctured wounds were caused by a pointed instrument such as an icepick.Elma Icater Regalado, a thirty-nine year-old businesswoman, the victim's widow, testified that she spent P 25,000 for the funeral of her husband and for miscellaneous obligations (Exh. J to J-8). Aside from his widow, the deceased was survived by his two children, Ian, 4 and Shiela, 6. In her letter to General Romeo C. Espino, she said (Exh. K):In our own little world, my husband and I planned the future of our children.Ma. Shiela was to be a nurse while L. Ian, ... was to be a doctor according to his wish. We planned and rejoiced in our little hopes even when life was difficult, until last July 25, 1977 at about 0030 Hrs. when a gang of hoodlums pounced upon my husband and his companions while they were on their way home and robbed him and brutally and mercilessly murdered him, and with him, the beautiful dreams we had for our children.Even a mad dog or an abominable criminal did not deserve his manner of death! He, who never harmed anybody nor spanked his children out of love, lay there in a muddy street of the Marikit Subdivision, gasping for breath and calling our ... son even as his assailants took turns in stabbing him and pummeling him with a garden hoe that broke at the handle as it hit my helpless husband as he lay on the ground.Our house that was once a happy home when he was around is no longer the same since he has gone. Our little girl, Ma. Shiela, eats her breakfast silently with tears streaming down her face; our son L. Ian keeps asking me when his father will wake up, and I, will never get used to the emptiness and the void that he has left behind.The Marikina police could not solve the crime. At the request of Mrs. Regalado, General Espino referred the case to the Constabulary criminal investigation service (CIS) at Camp Crame.As a result of the investigation, the four Lumague brothers, Ponciano, Jr., 27, Rolando, 25, Mario, 23, and Juanito 21, and their brother-in-law, Rodolfo de la Cruz, were charged with murder for the killing of Regalado. Ponciano, Rolando and Mario were arrest on August 20, 1977. Juanito was arrested on October 10, 1977 when the prosecution had already finished the presentation of its evidence against his three brothers. De la Cruz is at large.The Lumague brothers came from a family of five boys and five girls. They grew up in the slum area of Tondo, Manila. Their parents were natives of La Union. The father, a convict, was killed by a member of the Oxo gang (p. 138, Record).Even before the Lumague brothers were implicated in the killing of Regalado, Rolando had been charged in the municipal court of San Fernando, La Union with frustrated murder and slight physical injuries (Exh. L and M). In the same court, Ponciano was charged with frustrated homicide (Exh. P). He was also charged in the provincial fiscal's office of La Union with direct assault of an agent of a person in authority and robbery (Exh. R and S).Ponciano is married with four children. He used to be a shoe repairman. He finished grade four. Rolando is married with three children. He finished grave five. He used to be a tricycle driver. Mario is married with three children. He finished grade three. He was jobless.The probation officers found the Lumague brothers to have marked criminal tendencies and to have a propensity for anti-social behavior (p. 139, Record).Trial of Ponciano, Rolando and Mario Lumague. These three brothers were tried first because the other two accused, Juanito Lumague and Rodolfo de la Cruz, were at large. According to the prosecution, in July, 1977, the Lumague brothers, with their mother, Morales, and their sister and brother-in-law, Rodolfo de la Cruz, were renting from Walter Romero Gutierrez a shack or "barong-barong" in the Marikit Subdivision in Marikina near the residence of Virgilio Pacunayen.At about eleven o'clock in the evening of July 24, 1977, Regalado, with his friends, Roberto Asuncion, Gerardo A. Ducha, Lorenzo Gravador and Rogelio Bautista, had a drinking spree at the Havana Pub and Beerhouse located at Barrio Concepcion, Marikina, Metro Manila. Each of the five drank three bottles of beer. They watched the floor show.Shortly after midnight, the group left that place and, as it was curfew time, they decided to walk to Bautista's house in the subdivision about a kilometer away and sleep there. (Regalado was a resident of 5-C Annapolis Street, Cubao, Quezon City, a neighbor of Asuncion who resided at 5-D Annapolis Street.)What happened while the group was walking was testified to by two eyewitnesses, Asuncion, 30, and Pacunayen, 21, a high school graduate, who, as noted above, was residing at a house near the shack where the Lumague family was staying and who claimed to have been a victim of an assault perpetrated by the members of the Lumague family in June, 1977.Asuncion testified that he and Regalado were walking together. Gravador was ahead of them. Bautista and Ducha followed Regalado and Asuncion. While walking on the street in front of the shack occupied by the Lumague family and Pacunayen's house, Asuncion heard Ducha shouting that Bautista had been stabbed. When Asuncion looked behind, he noticed that Ducha and Bautista were running because they were being pursued by two persons.Asuncion's impulse was to follow Bautista and Ducha but after taking a few steps, he turned around and looked at the place where he had left Regalado. He saw Mario Lumague beating Regalado on the back with a hoe (Exh. D). Asuncion was about two fathoms away. Regalado fell on the ground face down. Asuncion got a stone and threw it at Mario.Mario pulled Regalado to a dark grassy place near the lighted street. Four persons approached Regalado. Asuncion Identified three of them as the brothers Ponciano, Mario and Rolando Lumague. Ponciano hit Regalado many times with his fist and struck him on the back with an adobe stone.Rolando also threw an adobe stone at the head of Regalado and boxed him many times. Juanito repeatedly stabbed Regalado. Rodolfo de la Cruz clobbered Regalado with a club ("pamalo") about two feet long.Then, Mario who was armed with a hoe turned his attention to Asuncion, Ducha and Bautista who fled upon his approach. Mario pursued them. He did not overtake them. Shortly thereafter, the five assailants left the place where they had assaulted Regalado.Asuncion approached Regalado who was bloodied all over but was still breathing. Asuncion directed Bautista to fetch a vehicle. Ducha went to the police station. "Then a taxicab passed by, Asuncion hailed it and placed Regalado inside the taxicab. He was brought to the E, Rodriguez Hospital but was already dead on arrival thereat.Asuncion's testimony is a confirmation of his sworn statements dated August 8 and 22, 1977 before the Constabulary investigator of the CIS police intelligence section at Camp Crame (Exh. C and C-2).Pacunayen, the other prosecution witness, a neighbor of the Lumague family, who was acquainted with the members thereof, testified that at past midnight on July 25, 1977 he was in the balcony of his house overlooking the lighted street.He witnessed the assault on Regalado which was perpetrated by the four Lumague brothers and their brother-in-law Rodolfo de la Cruz. Pacunayen, who was at a distance of fifteen meters from the scene of the assault, corroborated the particulars thereof as narrated by Asuncion. Pacunayen's testimony is a confirmation of his sworn statement dated August 9, 1977 before the Constabulary investigator of the CIS police intelligence section at Camp Crame (Exh. G).Ducha, who, like Gravador and Bautista, did not testify, executed sworn statements dated August 1 1 and 22, 197 7 before the Constabulary CIS investigator (Exh. E and F). Ducha, 25, a high school graduate, narrated how he and Bautista encountered a person who tried to stab Bautista. Then, Ducha saw another person beating Regalado with a hoe. At a confrontation, Ducha Identified Mario as the wielder of the hoe Ponciano as the one who assaulted Regalado with an adobe stone and Rolando as the one who boxed Regalado (pp. 79-83, Record).Another documentary evidence of the prosecution is the hardly legible sworn statement of Mario Lumague taken by the same Constabulary investigator (Exh. H, pp. 87-90, Record).The investigator, before interrogating Mario, warned him that anything that he would say regarding the death of Regalado would be used against him in court and that he (Mario) had the rights (1) to remain silent and not to answer any question that would be prejudicial to him, (2) to have counsel, (3) to be investigated in the presence of his lawyer and (4) to have counselde oficioif he could not afford to hire his own lawyer.Then, the investigator asked Mario whether after being apprised of his constitutional rights he was willing to give a voluntary statement and to sign an acknowledgment that he understood his constitutional rights. Mario answered in the affirmative. He then signed the following certification, amounting to a waiver of his constitutional rights, which formed part of his statement:Ito ay nagpapatunay na nauunawaan kong lahat ang aking mga karapatan na napaliwanag sa akin ng inbestigador gaya ng pagbibigay ng salaysay na kusang loob, at hindi na rin kukuha ng abogado dahil katotohanan lamang ang aking sasabihin. (Exh. H-1 p. 87, Record.)Mario's version in his statement is that he and Juanita were in the Havana Pub and Beer Garden from seven to ten o'clock in the evening of July 25 (should be 24), 1977. At around eleven o'clock, when Mario was already in his residence at the Marikit Subdivision (where he lived with his brothers, mother and brother-in-law) he heard a shout coming from the street in front of the house and the sound of an object hitting the roof ("kalabog") and he saw Juanito going out of the house.Then, later, Beth, the sister of his brother-in-law, informed Mario that some persons had ganged up against Juanita. Mario came out of the house and allegedly saw Juanita prostrate on the street in front of their house. Mario reentered the house, got a hoe and helped Juanita in resisting his four assailants who were holding stones and assaulting Juanita. Mario clubbed on the head the person holding Juanita. Juanito got a kitchen knife from the house and repeatedly stabbed the person whom Mario had clubbed on the head and who was sitting on the ground. The assaulted person fell on the ground. Mario and Juanito ran away.Mario in his statement disclosed that the persons staying in the house at the Marikit Subdivision were Rodolfo de la Cruz and his wife Hermenegilda (Mario's sister), Ildefonsa or Perlita Lumague, Reynaldo Lumague, Beth de la Cruz, Lita Lumague (Mario's wife) and Juanito (No. 32, Exh. H).Mario said that only he himself and Juanita assaulted Regalado but he (Mario) was not sure whether he was the only one who killed Regalado(No. 40, Exh. H).The version of the defense is that Juanita Lumague was the sole assaulted of Regalado. Ponciano, Rolando and Mario presented as witnesses their mother Emerenciana Morales and Angelita Ramos, Eleno Gomez and Winnie Camacho to prove their defense of alibi.Emerenciana, a sixty-nine year-old widow, testified that in July, 1977 she resided with the spouses Hermenegilda Lumague and Rodolfo de la Cruz in the house which they had been renting for three months in the Marikit Subdivision. In the evening of July 24, 1977 she went to bed at eleven o' clock. She was awakened because of the noise caused by some persons who were passing near the house and who were challenging the Ilocanos to a fight. She came out of the house and saw five men who were very noisy.She advised them to go home because it was already very late. They allegedly answered that they did not observe the curfew and they cursed the President for enforcing it. Emerenciana said that the five men pushed her towards the door of her house and she fell on the ground. She was allegedly stoned by the five noisy individuals. She was hit in the cheek, chest, left foot and front part of her body. A woman named Marilou (Angelita) was also stoned and her foot was injured ("nipilay") (412).Emerenciana admitted that when the incident happened she, her children and son-in-law were staying in the house but when asked to clarify her answer she said that her daughter Hermenegilda, son-in-law Rodolfo de la Cruz and her grandchildren were staying in the house (398). She declared that she did not know who killed Regalado and that when Regalado was killed her four sons "were not there" (399), meaning that Rolando, Ponciano and Juanito were in the province, Mario was in Tondo and Rodolfo was in the house (400-3). When pressed by counsel de oficio to clarify the whereabouts of Juanito, Emerenciana answered that Juanita arrived in the house when Emerenciana was pushed by the five persons (4069).Emerenciana categorically declared that Ponciano never resided with her in Marikina (410-11). She testified that when Juanita was boxed by the men, a fight ensued between them and Juanita. She admitted that Juanita had previously been confined in the Madrigal Rehabilitation Center for having been involved in a homicide case with his brother-in-law, Maximino Dacanay.Angelita Ramos, 20, a helper of Emerenciana, testified that Pacunayen used to go to Emerenciana's house. In the afternoon of July 24, 1977, Ponciano was not in the house in Marikina but was in Bauang, La Union, Mario was in Tondo and Rolando was in Barrio Ambangonan, Pugo, La Union,but Juanita was in Emerenciana's house in the Marikit Subdivision, Marikina.Angelita corroborated Emerenciana's, testimony that at about midnight on July 24 five persons passed by Emerenciana's house and challenged the Ilocanos to step out. Emerenciana came out of the house and told the five persons to go home. She was pushed by the five persons and she fell on the ground.At that juncture, Juanita and Pacunayen arrived. Regalado allegedly boxed Juanita. The five persons threw stones and the witness, Angelita, was hit in the ankle. Pacunayen assaulted Regalado with a hoe Regalado fell on the ground face down. Pacunayen repeatedly stabbed Regalado (461).Because Angelita was not available for cross-examination, her testimony on direct examination was stricken out of the record (506).Eleno Gomez, 50, a farmer, a resident of Barrio Quinavite, Bauang, La Union, and a first cousin of Julian Camacho, who in turn is a first cousin of the Lumague brothers, testified that in the evening of July 24, 1977 he acted as guard at a dance held on the occasion of a wedding in Barrio Quinavite and that Ponciano, Rolando and Mario were present at that dance (475). Juanita and De la Cruz were not present at that dance. A few moments later, Gomez testified that Rolando and Mario were not present at the wedding party (489).Winnie Camacho, a twenty-three year-old housewife, whose husband is a first cousin of Rolando, testified that on July 24 and 25,1977 Rolando was at her house in Barrio Ambangonan, Pugo. He planted rice on July 24. The next day he went fishing in the river.Decision in the case of Ponciano, Rolando and Mario Lumague.At the conclusion of Winnie's testimony on January 31, 1978, defense counsel Galvan announced that he would present the accused as witnesses at the next hearing scheduled on February 24. That hearing was not held. The case was reset for March 14. No hearing was held on that date for reasons not shown in the record.On that date, the trial court issued an order requiring the prosecution to present its memorandum within ten days and giving defense counsel Galvan five days within which to file a reply memorandum. It scheduled on April 18 the promulgation of its sentence.The prosecution in a motion dated March 20, 1978 offered its Exhibits L to S which were marked during the cross-examination of the defense witnesses. Galvan objectived to Exhibits L, M and N. He did not make not attached to the motion.The prosecution filed its memorandum on April 5. Galvan was furnished with a copy thereof. He did not submit his reply memorandum. As scheduled, the death sentence against Pnciano, Rolando and Mario was "dictated and promulgated in open court" on April 18, 1978.The trial court convicted Ponciano, Rolando and Mario Lumague of murder, sentenced each of them to death and ordered them to pay solidarily to the heirs of Regalado an indemnity of thirty-two thousand pesos. Treachery and abuse of superiority were considered qualiffying circumstances. Cruelty was appreciated as a generic aggravating circumstances. Cruelty was appreciated as a generic aggravating circumstances. The trial court did not give credence to the alibis of the accused.The trial court in its decision explained that the defense waived its right to present further evidence after it failed to present such evidence in spite of numerious postponements and when defense counsel failed to appear in court despite due notice (p. 286, Record).Galvan filed on April 24 a motion for reconsideration. He complained that the accused were denied due process of law because they were not given a chance to testify in their behalf. The motion was denied. The trial court in its order of April 28, 1978 directed the clerk of court to forward the record of the case to this Court.Separate trial and decision in Juanito Lumague's case. As priorly noted, Juanito was arrested in Barrio ambangonan, on October 10, 1977 when the prosecution had finished the presentation of its evidence against his brothers Ponciano, Roland and Mario. When arraigned on October 19, Juanito pleaded not guilty. He was given a separate trial.At the hearing on June 28, 1978, when the medico-legol officer was testify for the second time in the separate trial for Juanito, Benjamin Santos, Juanito's counsel, interrupted the testimony of the medico-legal and manifested that Juanito was withdrawing his plea of not guilty and changing it to a plea of guilty. The doctor's testimony was suspended. Juanita was placed on the witness stand. He took his oath and was interrogated as follows:Court to Juanito Lumague: Do you confirm and affirm that you are changing your plea of not guilty to that plea of guilty? A. Yes, sir. I was not able to talk.Q. by Court: You were not able to talk because you were arrested. ...A. No, your Honor. The reason at that time I was asking but I was not able to reason out thatI was the one who committed the crime.Court: Why did you not tell the lawyer of your brother that you (are) the only one to be presented by the defense lawyer? A. I stated so, your Honor.Court: Did anybody intimidate, coerce you or promise you of (any) leniency for changing that plea of not guilty to that plea of guilty?- A.No. your Honor. (550-552)The trial court then ordered the resumption of the presentation of evidence against Juanita. The medico-legal officer was cross-examined by Juanito's counsel Asuncion and Elma 1. Regalado testified again. The prosecution formally offered in evidence against Juanita the same Exhibits A to K which it had already presented during the trial of Ponciano, Rolando and Mario Lumague.Juanito's counsel did not present any evidence. On July 5, 1978, the trial court rendered in Juanito's case a decision similar to its previous decision. It convicted him of murder, sentenced him to death and ordered him to pay the same indemnity (p. 281, Record).Ruling.In this automatic review of the fear death sentences, counselde oficiocontends that the trial court erred in not giving the four accused a chance to present other witnesses and to testify in their behalf, in admitting the extrajudicial confession of Mario Lumague, in giving credence to the testimonies of the prosecution witnesses and in convicting the accused of murder.With respect to Juanita Lumague, who withdrew his plea of not guilty, who was tried separately and whose guilt was also established by means of the evidence presented against him, we find that the counsel's contentions are devoid of merit. Juanito's guilt was proven beyond reasonable doubt. His plea of guilty and the evidence introduced by the prosecution destroyed the presumption of innocence in his favor.There is conclusive evidence that he was the one who stabbed Regalado. In doing so, he conspired with the other assailants of the victim particularly with the assailant who treacherously struck Regalado on the back with a hoe Even Juanito's mother admitted that he took part in the assault (408-9, 413-4). And, of course, the fact that Juanita was a fugitive from justice for several months is an indication of his guilt.The trial court correctly held that the killing was murder qualified by treachery and abuse of superiority and aggravated by cruelty. Hence, death is the proper penalty. Juanito's plea of guilty is not mitigating because it was made after the prosecution had commenced the presentation of its evidence.With respect to the other three accused, Ponciano, Mario and Rolando Lumague, who pleaded not guilty and who were tried ahead of Juanito, there is merit in their contention that they were denied due process of law because they were not given a chance to testify in their behalf and to present additional evidence.An accused has the constitutional right "to be heard by himself and counsel" and the right "to testify as a witness in his own behalf ". The denial of such rights is a denial of due process, as held in People vs. Santiago, 46 Phil. 734. See People vs. Abuda, L-30009, February 27, 1971, 37 SCRA 789.Due process of law in a criminal prosecution consists of a law creating or defining the offense, an impartial tribunal of competent jurisdiction. accusation in due form. notice and opportunity to defend, trial according to established procedure, and discharge unless found guilty (16A C.J.S. 617).The constitutional right of the accused to be heard in his defense is inviolate. "No court of justice under our system of government has the power to deprive him of that right." (Abriol vs. Homeres, 84 Phil. 525, 534).Fundamental fairness, which is the essence of due process, requires that the three accused should be allowed to testify on their defenses and to present additional evidence to prove their innocence.WHEREFORE, we affirm the trial court's separate decision dated July 5, 1978,sentencing Juanito Lumague to death.Its prior decision ofApril 18, 1978,sentencing to death Ponciano, Mario and Rolando, all surnamed Lumague, isset aside.It is directed to receive the additional evidence of the said accused, subject to the right of the prosecution to present rebuttal evidence and the right of the accused to present surrebuttal evidence. The evidence already presented subsists and should be taken into account in the rendition of another decision. Costsde oficio.SO ORDERED.

FIRST DIVISIONG.R. No. L-35707 May 31, 1979CRISPINO FLORES,petitioner,vs.HON. G. JESUS B. RUIZ, Presiding Judge, Court of First Instance of Cagayan, PROVINCIAL WARDEN of Cagayan and LEONARDO MANDAC, represented by his Heirs, thru the Widow DOLORES VDA. DE MANDAC,respondents.DE CASTRO,J:This is a Petition for certiorari and/or Habeas Corpus filed by petitioner Crispin Flores on October 24, 1972 after he has been allegedly arrested and detained illegally by Order of the respondent Judge, dated June 20, 1972, finding him guilty of indirect contempt. (Annex A, Petition, p.11, Rollo).From the records of this case, it appears that petitioner was actually arrested on August 28, 1972 and has since been detained in the Provincial Jail of Cagayan until his release by virtue of a bond of P500.00 which he was allowed to file by this Court in its Resolution dated October 31, 1972 (p. 33, Rollo), which he must have filed as he had precisely asked to be bailed, pending his appeal from the Order of the respondent judge dated August 10, 1972. (Annex E to Petition, p. 24, Rollo). The reason for the delayed arrest is that petitioner was given a period up to August 1, 1972 "to inform the court whether or not he relinquishes his possession over the land in question."The land in question was levied upon and sold on execution on November 28, 1978 to satisfy the award of damages in favor of Leonardo Mandac, plaintiff in Civil Case No. 1616 of the Court of First Instance of Cagayan against petitioner and his father, Doroteo Flores, as defendants and the losing parties in said case. They failed to redeem the property sold to the heirs of Leonardo Mandac in the auction sale. Hence, the respondent court ordered petitioner to place in possession the heirs of Leonardo Mandac who had in the meantime died. For his refusal to vacate the land in favor of the heirs of Mandac, contempt proceedings were instituted against petitioner on motion of Atty. Antonio N. Laggui as counsel of the aforementioned heirs. As previously stated, these contempt proceedings led to his arrest and detention.Petitioner, however, questions the legality of the proceedings for not having been assisted by counsel during the hearing of the motion for contempt, and for not having been duly informed of the contempt charge by being furnished a copy of the motion, or properly "arraigned" before trial. Thus, petitioner claims to have been deprived due process of law which voided the proceedings against him as for lack of jurisdiction of the court to inflict the penalty imposed on him, citingSantiago vs. Alikpala, L-25133, September 28, 1968, 25 SCRA 356.Further, petitioner contends that his act of not surrendering possession of his levied property does not constitute contempt, citing the case of Faustino Lagrimas vs- JP of Camiling, et al., L-14345, July 20, 1961, 2 SCRA 793, andChinese Commercial Property Co. vs. Martinez, et al.,L-8565, November 30, 1962, 6 SCRA 851.1. On the issue of whether petitioner was denied due process as he claims, both respondent judge and private respondents deny the claim of petitioner, of having been so denied, private respondents even quoting from the transcript of the stenographic notes the following:COURT: Is the defendant Crispin Flores in Court?(Interpreter calls out the name of Crispin Flores, and answered that he is present).( The Court addresses Crispin Flores).Q. Who is going to represent you in this case?A. I have a lawyer but he was not able to come.Q. Did you notify him?A. Yes, sir, but he was not able to come today.Q. Are you willing to go into trial in this case even in the absence of your lawyer?A. Yes, sir.Q. Do you need the assistance of any lawyer?A. No more, anyway I can answer.(pp. 1 and 2, tsn Barias June 19, 1972).The veracity of the alleged proceedings as indicated above is denied by petitioner, alleging that no such proceedings took place, and that, in any event, the transcript was not signed by the stenographer. What happened according to him, is that I when respondent judge had learned that he was without counsel, he told him (petitioner) to deliver possession of the premises to the private respondents, and for this purpose gave him ten (10) days to carry out that mandate. In spite of the plan of petitioner that the hearing on that date be postponed so that his counsel of record could appear for him or that a new counsel would be hired to appear in his behalf, the respondent judge, however, demurred, and with the assistance of a certain Atty. Joshua Pastores, petitioner was made to sign an understanding to deliver up the premises within the period indicated by the judge on pain of being imprisoned." (Petitioner's Memorandum, pp. 79-80, Rollo).The right of the accused to counsel in criminal proceedings has never been considered subject to waiver. The practice has always been for the trial court to provide the accused with a counselde officio,if he has no counsel of his own choice, or cannot afford one. This is because The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence and this can happen more easily to persons who are ignorant or uneducated. It is for this reason that his right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own. (People vs. Holgado, 85 Phil. 752; See also Aguador vs. Enerio 37 SCRA 140).On the basis of the aforequoted ruling, it cannot be disputed that the respondent court failed in its duty designed to satisfy the constitutional right of an accused to counsel. Petitioner, as the respondent in the contempt charge, a proceedings that partake of the nature of a criminal prosecution, was thus denied due process. This is more so as petitioner does not appear to have been duly notified of the contempt charge, nor was properly "arraigned," since he was not assisted by counsel during the hearing (Santiago vs. Alikpala,supra). Admittedly with a counsel of record, petitioner could not have willingly submitted to go to trial when his counsel failed to appear. It is certainly much easier to believe, that, as petitioner alleges, he asked for postponement, because of the absence of his counsel, but that the respondent judge denied the plea, a fact not expressly traversed in the respondent judge's comment (p. 56, Rollo). Neither has he denied the allegation in the petition that there was a denial of petitioner's right to due process for not having been duly informed of the contempt charge, nor was his counsel furnished a copy thereof, as he is entitled to one as a matter of right and as a matter-of duty of the court. All that respondent judge said in his comment is that "defendant Flores has been granted his day in court to defend himself from the charges presented by reason of his contumacious acts." (p. 56, Rollo).We are, therefore, constrained to hold that the proceedings on the contempt charge has been vitiated by lack of due process, entitling petitioner to the writ of habeas corpus he seeks.Habeas corpus is a high prerogative writ. It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. Such defects results in the absence or loss of 'jurisdiction and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. This writ may issue even if another remedy which is less effective may be availed of by the defendant.In Harden vs. The Director of Prisons(81:741/1948/), Justice Tuason, speaking for the Court, explicitly announced that "deprivation of any fundamental or constitutional rights" justify a proceeding for habeas corpus, on the ground of lack of jurisdiction.Abriol vs. Homeres(84 Phil. 525) is even more categorical. In that case, the action of a lower court, denying the accused the opportunity to present proof for his defense, his motion for dismissal failing, was held by this Court as a deprivation of his right to due process. As was made clear by the opinion of Justice Ozaeta: 'No court of justice under our system of government has the power to deprive him of that right. If the accused does not waive his right to be heard but on the contrary invokes the right, and the court denies it to him, that court no longer has jurisdiction to proceed; it has no power to sentence the accused without hearing him in his defense; and the sentence thus pronounced is void and may be conaterany attacked in a habeas corpus proceeding. (Santiago vs. Alikpala,supra.)2. We also find as not clearly established by the pleadings and annexes, the legal basis for the pronouncement of guilt for contempt against petitioner. What would constitute contempt is the re-entry of the defeated party into the premises after possession thereof has been delivered to the prevailing party by the sheriff in enforcement of the writ of execution (Rom vs. Cobadora, L-24764, July 17, 1969, 28 SCRA 758, 763; Chinese Commercial Property Co. vs. Martinez, et. al., L-18565, November 30, 1962, 6 SCRA 848; Faustino Lagrimas vs. JP of Camiling, et. al., L-14345, July 20,1961, 2 SCRA 793). Thus, in the order of the respondent judge, dated September 28, 1972, (Annex G to Petition, pp. 30-31, Rollo), it was stated that:By virtue of the writ of execution of the decision in this case the plaintiffs were placed in possession over the parcel described in paragraph 3 of the complaint. Sometime in March, 1969, defendants invaded the land and since then, they refused to vacate same. Plaintiffs, on July 2, 1969, filed the first motion for contempt against the defendants.The other properties of defendants were levied, foreclosed and sold to defendants on November 28, 1968 in a public auction to satisfy the damages awarded in the same judgment. The defendants failed to redeem the bidded properties within the one year from the registration of the certificate of sale of the land, and yet defendants refused to vacate same land for which plaintiffs filed the second motion for contempt on December 17, 1971.The Court did not pass upon the first motion for contempt but gave due course to the second motion for contempt.It is altogether clear that with respect to the parcel described in paragraph 3 of the complaint, the Mandacs were placed in possession thereof but subsequently, the petitioner herein invaded the land and had since refused to leave it. With respect, however, to the land in question, petitioner never vacated the same; there was, therefore, no re-entry to speak of. According to petitioner, the sheriff who tried to enforce the writ of possession never succeeded in locating the specific land to be delivered to the Mandacs to be able to claim having placed the latter in possession of the land. (pp. 77- 78, Rollo). Where the defeated party asked to vacate the premises by the judgment of the court, refuses to vacate the same on being ordered by the sheriff enforcing a writ of execution or possession, no contempt is committed, as held in Goyena deQuizon vs. Philippine National Bank, et al., G. R. No. L-2851, January 31, 1950, cited inChinese Commercial Property Co. vs. Martinez, et al., supra.In the case ofRom vs. Cobadora,L-24764, July 17, 1969, 28 SCRA 758, Justice Teehankee, speaking for the court said:The order of execution issued by the lower court is address solely and exclusively to the sheriff, who under the above-cited rules is called upon to oust the defeated party from the property and make the delivery or restitution by placing the prevailing party in possession of the property, and mere refusal or unwillingness on the part of the defeated party to relinquish the property, would not constitute contempt.3. There is, likewise, an allegation in the petition that the Motion for Contempt was filed by the counsel of Leonardo Mandac after the latter's death, and therefore, the motion was unauthorized and without legal standing. From what has been said above that petitioner is not guilty of contempt, the challenge against the legality of the motion for contempt need not be inquired into. In fairness, however, to private respondent from his allegation in his Answer that 7. Atty. Pedro N. Laggui had authority to file the motion for contempt against the Petitioner on June 30, 1969; at that time, Leonardo Mandac was still alive. Atty. Antonio N. Laggui likewise had authority to file the motion for contempt against the Petitioner on December 17, 1971 no longer as counsel for the deceased Leonardo Mandac for at that time he was already dead but as counsel for his wife and children in whose favor the corresponding deed of sale of the parcels of land sold at auction on November 28, 1968, was executed by the Sheriff on February 12, 1970, pursuant to the Order dated January 21, 1970. (Answer, p. 69, Rollo).We have no hesitation to say that the Motion for Contempt has been filed with proper authority.For all the foregoing, the present petition should be, as it is, hereby granted, thereby setting aside the order of the respondent judge finding petitioner guilty of indirect contempt. No pronouncement as to costs.SO ORDERED.

SECOND DIVISIONG.R. No. L-29015 April 29, 1975THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.FELIPE MALUNSING, ET AL., defendants, MANUEL VILLEGAS,defendant-appellant.FERNANDO,J.:It was the failure of the lower court to respect the constitutional right to counsel,1so it is alleged, that is the basis for seeking the reversal of a conviction for murder of appellant Manuel Villegas.2There is more than ample support in the records for the charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly manifested in the opening of the trial that appellant intimated to him that he had his own lawyer.3There was an admission that he did appear for him in the preliminary investigation but only because there was no other counsel.4Parenthetically, it may be observed that while in the original complaint there were two other accused with the same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such preliminary investigation, no doubt due to the efforts of this particular lawyer, possibly a kinsman, they "were both discharged for lack of probable cause."5To resume, the lower court at this stage then asked whether the appellant notified Attorney Pajarito about his change of mind. When he answered in the negative, the Court stated: "All right, you have a lawyer who is appearing for you."6It is to the credit of such counsel that he had reservations about the matter, stating that as the accused had manifested that he had dispensed with his services, his representation might later on be questioned.7The court was not sufficiently impressed. Appellant was informed that "the Court will give you a lawyer. Atty. Pajarito is appointed as counsel de oficio for you. We will proceed with the trial."8After marking it of record that he was appointed as such counsel de oficio, the attorney was asked whether he wanted to confer with appellant. This was the answer: "I think I know the case."9The Court then immediately proceeded with the hearing, having the first witness called.10In the decision itself, there is this meaningful admission by the court: "No evidence was presented for and in behalf of Manuel Villegas."11This is how the matter was characterized in the brief of appellant: "The prosecution during the trial presented its witnesses, and likewise all the defendants, ... except the appellant Manuel Villegas, took the witness stand and testified for and in their defense. The appellant is a very old man, ignorant and unlettered; during the entire proceedings in the case, the appellant while present did not know what was going on; the trial court never apprised the appellant of his fundamental right to be assisted by a lawyer; the trial court did not even bother inquiring why the appellant Manuel Villegas did not take the witness stand, [something out of the ordinary as] all defendants, except the appellant, had testified; and the trial court went on throughout the proceedings of the case without knowing why the appellant did not testify, that if the appellant testified what would his testimony be like, what would be his demeanor during his testimony, ..."12Hence, his insistence that no deference was shown to the constitutional right to counsel. We are inclined to agree and we reverse. Considering, however, the gravity of the offense charged, instead of an acquittal, there should be a new trial with all the safeguards thrown around an accused.1. That would be to vindicate a fundamental safeguard which in this case, perhaps from a desire of the lower court to proceed with the trial and thus ease what could be a congestion in its sala, was inadvertently disregarded. It is not enough that a counselde oficiowas appointed, especially so as here, where the accused had indicated that he wanted a lawyer of his choice, a decision prompted moreover by the fact that he had lost confidence in the member of the bar thus designated. Nor is it to manifest respect for this right if the counselde oficiothus named, instead of conferring with the accused, would just blithely inform the judge that he was already fully prepared for his exacting responsibility. It was unintended, of course, but the result could not rightly be distinguished from pure travesty. Appellant could then rightfully invoke this constitutional guarantee. Inasmuch as it is intended to assure a just and fair proceeding, he is entitled at the most to a new trial where he can be duly represented either by a counsel of his choice or by one appointedde oficio, one who would discharge his task in a much more diligent and conscientious manner and would not readily assume that he need not bother himself unduly with familiarizing himself further with all aspects of the case. For only in such a way may there be an intelligent defense. If the matter be viewed thus, there is no unfairness to the state either. It can still see to it that a person against whom a probable cause had been found would have to stand trial, but, to repeat, with all the constitutional safeguards.2. It would not be amiss to refer to the opinion of Chief Justice Moran inPeople v. Holgado,13where the importance of this right was stressed. Thus: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign onede oficiofor him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own."14There are a number of American Supreme Court decisions to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly summed up the matter thus: "[The accused] needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment."15What is more, it is one of the worthwhile innovations of the present Constitution that even at the stage of custodial interrogation when the police agencies are investigating a man's possible connection with a crime, he is already entitled to counsel.16In a true sense, that is merely to underscore the historical fact that even under the organic acts17prior to the 1935 Constitution, there was an awareness of the importance of the right to counsel.18This is not of course to assert that this Court in the past had invariably accorded it an interpretation favorable to the stand of an accused. Thus inUnited States v. Labial,19a 1914 decision, it was held that the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to counsel is not sufficient ground for the reversal of a conviction. When Labial was affirmed inUnited States v. Escalante,20decided in 1917, Justice Malcolm was moved to file a vigorous dissent. It suffices to recall his conformity to the view of Cooley that this is "perhaps the privilege most important to the person accused of crime.21It is in that spirit, or something akin to it, that the framers of the 1935 Constitution approached the subject. Of even greater relevance is the fact that the present fundamental law has, as above indicated, vitalized still further its worth and significance.WHEREFORE, the lower court decision of December 4, 1967 insofar as it found Manuel Villegas guilty of the crime of murder is reversed and a new trial ordered forthwith for such accused. This decision is immediately executory. No costs.

EN BANCG.R. No. 137288 December 11, 2001PEOPLE OF THE PHILIPPINES,appellee,vs.DANILO ABINO y ADVINCULA,appellant.PANGANIBAN,J.:Rape, particularly incestuous rape, is reprehensible and abominable. However, to convict the accused and to sentence him to death requires proof beyond reasonable doubt of the elements of the crime and the qualifying circumstances specifically alleged in the information. Conviction always rests on the strength of the evidence of the prosecution, never on the weakness or the absence of that of the defense.The CaseFor automatic review by this Court is the Decision1dated January 20, 1999, promulgated by the Regional Trial Court (RTC) of Calamba, Laguna (Branch 34) in Criminal Case No. 5793-98-C, finding Danilo Abino y Advincula guilty of rape beyond reasonable doubt. We quote the decretal portion of the Decision:"ACCORDINGLY, this Court finds accused Danilo Abino y Advincula GUILTY beyond reasonable doubt of the crime of rape as defined and penalized under Article 335 of the Revised Penal Code, as amended, and hereby sentences him to suffer the penalty of death."Accused is further directed to indemnify the offended party, Daniela Abino, the sum of FIFTY THOUSAND (P50,000.00) PESOS as and for moral damages."With costs against the accused."2The Information3against appellant reads as follows:"That on or about April 6, 1996, in the Municipality of Los Baos, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused did then and there have carnal knowledge of his daughter, the minor DANIELA ABINO y MERCADO, who was then asleep and unconscious, against her will and consent, to her damage and prejudice."With the assistance of his counsel,4appellant pleaded not guilty when arraigned on July 10, 1998.5In due course, the latter was tried and convicted of qualified rape.The Facts Version of the ProsecutionThe Office of the Solicitor General summarized the evidence for the prosecution in this wise:6"1. Fourteen-year old Daniela Abino lived with her father, appellant Danilo Abino, at Agua Santa, an old resort located in Bambang, Los Baos, Laguna. Appellant was a member of the Los Baos task force on market security, assigned to night shift duty at the market. Daniela's mother no longer lived with them as she had another family."2. On the evening of April 6, 1996, appellant came home drunk. He took a bath and told Daniela to prepare his things for the market. Daniela obeyed him and went to the second floor of their house to fix her father's things. Appellant followed Daniela clad only in his underwear with a towel wrapped around his waist. He embraced Daniela and pressed his penis against her buttocks. Daniela pulled herself away from appellant and went downstairs."3. When appellant went down, Daniela told him that she was no longer going with him to his office. Appellant said nothing and left for work. Daniela stayed at the first floor of their house until she decided to go to bed and went upstairs."4. Daniela was fast asleep in her bed when she felt somebody on top of her and kissing her. She opened her eyes and saw appellant who was naked. Daniela found herself naked too as she no longer had her panty and shorts on. When Daniela woke up and moved, appellant stood up, dressed himself and then left. Daniela felt intense pain in her vagina and cried."5. Daniela put on her panty and tried to sleep, but sleep escaped her and she kept on crying. The following morning, she prepared herself for school and cooked rice. Daniela, however, did not go to school that day and stayed at home."6. Daniela did not immediately tell anybody about what appellant did to her. She stayed with him for about seventeen months more or until September 1997. However, Daniela eventually decided to run away from home because she was afraid that appellant might molest and hurt her again."7. Daniela stayed in a canteen near 'Star City' in Manila. After her stint at the canteen, Daniela worked for one Mando Parr in Pasay City. She, however, left his employ. In December of 1997, Daniela found herself in Baguio City where she met a social worker who placed her in the custody of the Department of Social Welfare and Development."8. On December 17, 1997, Daniela was brought by one Aileen Edades of the Commission on Human Rights to the City Health Office in San Pablo City. There she was examined by Dr. Azucena I. Bandoy, the Assistant City Health Officer of San Pablo City."9. Dr. Bandoy found that Daniela's sex organ bore a '3rd and 9 o'clock old healed laceration scar' and that the scar was caused by the insertion of a foreign body, specifically, 'the penis or a male organ,' into Daniela's vagina. According to Dr. Bandoy, the laceration might have been inflicted 'a year ago'."Version of the DefenseOn the other hand, the Public Attorney's Office presents appellant's version of the incident simply as follows:7"Danilo Abio y Advincula testified that the allegation in the complaint is not true. The only reason why the complainant filed the rape charge against him is that he is a very strict father, that's the reason why the complainant is angry with him."Ruling of the Trial CourtThe courta quofound complainant's testimony "strong, credible and competent." It "could not fathom any justifiable reason why she at so young an age would accuse her own father and portray the latter as a beast who deflowered her if the same be not true." Finding carnal knowledge to have taken place between them, it sentenced appellant to death.Hence, this automatic review before us.8Assignment of ErrorsIn his Brief, appellant faults the court a quo with the following alleged errors:9"The lower court erred in convicting the accused based on the incredible and inconsistent testimony of Daniela Abio."The lower court gravely erred in convicting the accused despite failure of the prosecution to prove his guilt beyond reasonable doubt."Basically, the assigned errors boil down to the sole issue of whether the prosecution evidence proves appellant's guilt beyond reasonable doubt of the crime charged.The Court's RulingThe appeal is meritorious.Main Issue: Sufficiency of EvidenceAt the time of the alleged commission of the acts stated in the Information, the Revised Penal Code, as amended by Section 11 of RA 7659, specifies how rape may be committed, as follows:"Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:1. By using force or intimidation;2. When the woman is deprived of reason or otherwise unconscious; and3. When the woman is under twelve years of age or is demented."The crime of rape shall be punished byreclusion perpetua."Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall bereclusion perpetuato death."When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death."When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall bereclusion perpetuato death."When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death."The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim.2. when the victim is under the custody of the police or military authorities.3. when the rape is committed in full view of the husband, parent, any of the children of other relatives within the third degree of consanguinity.4. when the victim is a religious or a child below seven (7) years old.5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation."Insofar as it is relevant to the present case, the law states that once the crime of rape is proven, the circumstance of father-daughter relationship between the victim and the offender raises the penalty to death. Such relationship, which must be both alleged in the information and proven by the evidence, does not by itself operate to convert carnal knowledge to rape. It bears emphasizing that the law requires that the elements of rape be proven first before the circumstance of relationship can be appreciated to increase the penalty.In the present case, the Information alleges that the crime of rape was committed under paragraph number two of Article 335 of the Revised Penal Code. Hence, before appellant can be convicted thereof, two elements must concur: (1) he had carnal knowledge of complainant, Daniela; and (2) she was unconscious when it happened.The prosecution sought to prove the element of unconsciousness through the testimony of Daniela that on the night of April 6, 1996, she was asleep. As to the element of carnal knowledge, it presented only the following circumstantial evidence:1. On the night of April 6, 1996, Daniela woke up to find her father on top of her, but he promptly got off when she "opened her eyes."2. Thereafter she felt pain in her vagina.3. After seventeen months, she left home and wandered from place to place for several more months, until she met a social worker in Baguio.4. She was then examined and found to have old healed hymenal lacerations at the 3 and the 9 o'clock positions and a yellowish white discharge, which indicated infection due to coitus several times with an infected male.10An examination of Daniela's entire testimony compels us to reverse the RTC's hasty conclusion of rape based only on its circumstantial finding of carnal knowledge between appellant and Daniela. Contrary to the courta quo'spronouncement, Daniela was not convincing on very material points.Q Tell us on the night of April 6, 1996 where were you then?A I was in our house at Agua Santa.Q Where is this Agua Santa where you said you were then?A In Bambang sir.FISCAL:Q: Los Baos, Laguna?A Yes, sir.Q Were you alone in your house or did you have companions at that time?A None, sir.Q What time did you go to sleep that night of April 6, 1996?A I do not know the time sir.Q When asked if you ha[d] any companions on that night of April 6, 1996 you said you ha[d] no companions, tell us why were you alone on that night in your house?A Becaus[e] my father left.Q How about your mother, do you have any mother?A Yes, sir.Q Where was she on that night of April 6, 1996?A She already has another family.Q What time did you wake up that night of April 6, 1996?A I do not know.Q Were you able to continuously sleep the whole night of April 6, 1996?A No, sir.Q Why?A Because that night, my father who was dr[u]nk took his bath and after that he told me to fix his things in going to the office. So I went upstairs to fix his things and he followed me.ATTY. PADERAYON:Before the next question, we object to the answer, your honor, considering that is not responsive to the question.FISCAL:Q Where did he follow you?A To the second floor of our house.Q After your father followed you [o]n the second floor of your house, what did he do? if any?A He told me it was cold.Q After he embraced you, what happened?A "Yong ari niya idinikit sa puwet ko."Q After he did that to you, what did he do next?A "Umalis ako sa harap niya at bumaba [ako] ng hagdan." (Witness is crying)Q After you said you left and went down, what did your father do?A He dressed up and when he was already on the first floor, I told him that I will not go with him anymore [to] the office.Q Why? Did he ask you to go with him [to] the office?A Yes, sir, we are always together in his office and I am sleeping in his office.Q By the way, where [is] this office where you said your father is working?A Near the market sir.Q What is his work in the market?A Tax collector sir.Q After you told your father that you will not go with him anymore what did he tell you?A Nothing, he just left.Q On your part, what did you do after your father left?A I just stayed in the first floor of our house, up to . . . nigh[t] time and when . . . night time came I went to sleep.FISCAL:Q: Did your father come back that night?A Yes, sir.ATTY. PADERAYON:Leading, your honor.FISCAL:Q: Why did you know that your father went back that night?A I saw him that night.Q At what time did you see him and what was he doing at the time you saw him?A When I saw him that night I don't know what time was that[.] I returned to sleep and I was awakened and felt that someone was on my top.Q Were you able to recognize who was that somebody who was on your top?A Yes, sir.Q Who?A My father sir.Q What was your father doing at the time you said he was on top of you?A When I opened my eyes he left me.Q Can you tell us what your father was wearing when you said he was on top of you?A Pants and white t-shirt and [he] was wearing a vest.Q And when your father you said left what did you notice on your self?A My private part was painful.FISCAL:Q: Aside from the pain that you felt what else did you [notice] from your private part?A "Mahapdi" whenever I am urinating.Q When you said you felt pain after your father left, what were you wearing?A I was wearing my uniform.Q At the time your father left at the time you saw him, what were you wearing?A I was wearing skirt and shorts.Q So when you said you felt pain after you said your father was on top of [you] and then you left, what did you do?A I noticed my panty was yellowish and was hot "mainit ng konti".Q And when you noticed these things, what did you do?A I just cried.Q Where was your father at the time you said you were crying?A He returned to the market.Q Finally, what time did you wake up that morning?A I was not able to sleep then.Q The following morning, what did you do?A I cooked rice and prepared myself [for] school.Q Did you go to school the following day?A No, sir.FISCAL:Q: Why?A I felt lazy.Q What did you do that day of April 7 when you said you did not go to school?A Nothing sir. I just stayed in the house.11Then, on redirect examination, she testified:Q: Now you said that you woke up, your father was on top of you, what was he doing at that time when he was on your top?A: He was kissing me, sir.Q: And aside from kissing, what else x x x did [he do] to you?A: Nothing more, sir."12In attempting to clarify and consolidate its case against appellant, the prosecution succeeded only in destroying the testimony of its star witness. In the process, it further strengthened the premise that, other than lying on top of Daniela and kissing her, appellant did "nothing more" on April 6, 1996.The circumstantial evidence in the present case admits of the possibility that appellant could have had carnal knowledge of complainant. But we cannot affirm his death sentence on the basis alone of a mere possibility. Settled jurisprudence13requires proof beyond reasonable doubt, not mere possibility of the presence of all the elements of the crime charged.Here, the prosecution's contention that the element of carnal knowledge concurred with the element of unconsciousness is neither believable nor supported by evidence. There is no evidence to show that Daniela was knocked out, drugged, intoxicated, tired and worn out or in any similar condition that would induce such a heavy sleep. There was therefore nothing that would account for her insensitivity to appellant's supposed act of inserting his penis into her vagina, if this really happened on April 6, 1996.The prosecution claims that the painful vagina and the lacerated hymen are circumstantial evidence of carnal knowledge that occurred while Daniela was asleep on the night of April 6, 1996. If this were so, it follows that the purported penile penetration must have been deep enough to reach and lacerate her hymen at the 3 and the 9 o'clock positions. It is simply incredible that the pain that can reasonably be expected from such insertion of a penis into her young, virginal vaginal canal would fail to wake her up. How could she have slept through the entry of her father's penis into her vagina and its exit therefrom from beginning to end and awakened only after the alleged completion of the crime, as the prosecution would have us believe? It may have been possible if she had been drugged, but a case must rest on evidence, not on mere possibility."It is a legal truism that evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself."14"We have no test of the truth of human testimony, except in conformity with our knowledge, observation, and experience and whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance."15In the present case, the circumstances surrounding the prosecution's allegations are not in accord with human experience. "The proof against the accused must overcome not only "the test of reason and logic, but above all, that of experience."16It is more reasonable to believe, that, as Daniela herself testified, appellant kissed her on the night of April 6, 1996 but did nothing more; or, as can reasonably be inferred from the records, he had carnal knowledge of her, but she wasconscious and willing.Doctrinally, where "the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction."17It is claimed that appellant had carnal knowledge of his daughter on a day other than on April 6, 1996, and under some circumstance other than while she was asleep. Aside from speculation and conjecture, this argument finds no factual support. And even if true, such circumstance cannot convict him of the rape charged in the Information.Neither can we, in these proceedings, convict appellant of rape committed through intimidation as a result of his moral ascendancy, even if it were proven beyond reasonable doubt. He was charged and tried on an Information alleging rape of a woman who was "asleep and unconscious." Convicting him of rape done by intimidation would violate his constitutional right "to be informed of the nature and cause of the accusation against him."18Rape, particularly incestuous rape, is reprehensible and abominable. However, to convict the accused and to sentence him to death requires that (1) the prosecution's evidence for the elements of the crime and (2) the qualifying circumstances specifically alleged in the Information must pass the test of moral certainty. Absent the satisfaction of this stringent requirement, we must uphold appellant's constitutional right to be presumed innocent.WHEREFORE, the appeal is GRANTED and the assailed Decision is hereby REVERSED and SET ASIDE. Appellant Danilo Abino y Advincula is ACQUITTED on reasonable doubt. The director of the Bureau of Corrections is ordered to cause the immediate release of appellant, unless the latter is being lawfully held for another cause; and to inform the Court of the date of appellant's release, or the reasons for his continued confinement, within ten days from notice. No pronouncement as to costs.SO ORDERED.

THIRD DIVISIONG.R. No. 116736 July 24, 1997PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE,accused,BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA,accused-appellants.PANGANIBAN,J.:A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the resulting crime is more serious than that intended. Hence, an accused who originally intended to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a direct result of such concealment and burial. Nonetheless, in the present case, Appellant Garcia cannot be held liable as a principal because the prosecution failed to allege such death through drowning in the Information. Neither may said appellant be held liable as an accessory due to his relationship with the principal killer, Appellant Ortega, who is his brother-in-law.Statement of the CaseThis case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Manuel Garcia from the Decision,1dated February 9, 1994 written by Judge Adriano R. Osorio,2finding them guilty of murder.Appellants were charged by State Prosecutor Bernardo S. Razon in an Information3dated October 19, 1992, as follows:That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, without any justifiable cause, with treachery and evident premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab repeatedly with a pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA, thereby inflicting upon the latter serious physical injuries which directly caused his death.During arraignment, Appellants Ortega and Garcia, assisted by counselde oficio,4pleaded not guilty to the charge.5Accused "John Doe" was then at large.6After trial in due course, the courta quopromulgated the questioned Decision. The dispositive portion reads:7WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the Court hereby sentenced (sic) them to suffer the penalty ofRECLUSION PERPETUAand to pay the costs of suit.Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00.The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria8who took over from the Public Attorney's Office as counsel for the accused.The FactsEvidence for the ProsecutionThe trial court summarized the testimonies of the prosecution witnesses as follows:9Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San Andres were having a drinking spree in the compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking, accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined them. That victim Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That accused Benjamin Ortega, Jr. followed him and later they [referring to the participants in the drinking session] heard the victim Andre Mar shouted, "Don't, help me!" (Huwag, tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar Masangkay who was lying down in a canal with his face up and stabbing the latter with a long bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where they were having the drinking session [for the latter] to pacify his brother Benjamin, Jr. That Romeo Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to the well and dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight to the body of Andre Mar Masangkay inside the well. That Romeo Ortega warned him [Quitlong] not to tell anybody of what he saw. That he answered in the affirmative and he was allowed to go home. That his house is about 200 meters from Romeo Ortega's house. That upon reaching home, his conscience bothered him and he told his mother what he witnessed. That he went to the residence of Col. Leonardo Orig and reported the matter. That Col. Orig accompanied him to the Valenzuela Police Station and some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr. and Manuel Garcia were apprehended and were brought to the police station.On cross-examination, he said that he did not talk to the lawyer before he was presented as witness in this case. That he narrated the incident to his mother on the night he witnessed the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a] drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel Garcia were not yet in the place. That the stabbing happened between 12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as pork and shell fish. That he met the victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them at about 11:00 p.m. That there was no altercation between Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature and went to the back portion of the house. That he cannot see Andre Mar Masangkay from the place they were having the drinking session. That he did not see what happened to Andre Mar Masangkay. That he only heard Masangkay asking for help. That accused Manuel Garcia was still in the drinking session when he heard Masangkay was asking for help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back portion of the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin Ortega, Jr. on top stabbing the former. That he did not see any injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he did not do anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows that Andre Mar Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that occurred during the drinking session.PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred at Daangbakal near the subdivision he is living. That he relayed the information to the Valenzuela Police Station and a police team under police officer Param accompanied them to the place. That he asked the police officers to verify if there is a body of person inside the well. That the well was covered with stones and he asked the police officers to seek the help of theneighbors (sic) to remove the stones inside the well. That after the stones were removed, the body of the victim was found inside the well. That the lifeless body was pulled out from the well. That the body has several stab wounds. That he came to know the victim as Andre Mar Masangkay. That two men were arrested by the police officers.On cross-examination, he said that he saw the body when taken out of the well with several stab wounds. That Diosdado Quitlong told him that he was drinking with the victim and the assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call of nature.NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela Memorial Homes located at Macarthur Highway. That he prepared the autopsy report and the sketch of human head and body indicating the location of the stab wounds. That the cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in water. That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the back and there were contused abrasions around the neck and on the left arm. There was stab wound at the left side of the neck. That the contused abrasion could be produced by cord or wire or rope. That there is (an) incised wound on the left forearm. That the stab wounds which were backward downward of the body involved the lungs. That the victim was in front of the assailant. That the stab wound on the upper left shoulder was caused when the assailant was in front of the victim. That the assailant was in front of the victim when the stab wound near the upper left armpit was inflicted as well as the stab wound on the left chest wall. That the stab wound on the back left side of the body and the stab wound on the back right portion of the body may be produced when the assailant was at the back of the victim. That the assailant was in front of the victim when the stab wound[s] on the left elbow and left arm were inflicted. That the large airway is filled with muddy particles indicating that the victim was alive when the victim inhaled the muddy particles. The heart is filled with multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled with water or muddy particles. The brain is pale due to loss of blood. The stomach is one half filled with muddy particles which could [have been] taken in when submerged in water.On cross-examination, he said that he found 13 stab wounds on the body of the victim. That he cannot tell if the assailant or the victim were standing. That it is possible that the stab wounds was (sic) inflicted when both [referring to participants] were standing or the victim was lying down and the assailant was on top. That he cannot tell the number of the assailants.Evidence for the AppellantsAppellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o'clock in the morning, went home, changed his clothes and went to work.10After office hours, he and Benjamin Ortega, Jr. passed by the canteen at their place of work. After drinking beer, they left at eight o'clock in the evening and headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant Garcia's wife came and asked him to go home because their daughter was still sick. To alleviate his daughter's illness, he fetched his mother-in-law who performed a ritual called "tawas." After the ritual, he remained at home and attended to his sick daughter. He then fell asleep but was awakened by police officers at six o'clock in the morning of the following day.Maritess Garcia substantially corroborated the testimony of her husband. She however added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay, namely, aMangSerafin and Boyet Santos.11Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel Garcia.12According to him, between eleven and twelve o'clock in the evening, Masangkay left the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking place to urinate.13He went behind the house where he saw Masangkay peeping through the room of his sister Raquel. He ignored Masangkay and continued urinating.14After he was through, Masangkay approached him and asked where his sister was. He answered that he did not know. Without warning, Masangkay allegedly boxed him in the mouth, an attack that induced bleeding and caused him to fall on his back. When he was about to stand up, Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing him. Masangkay then gripped his neck with his left arm and threatened to kill him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed Masangkay's right hand which was holding the knife. Quitlong was able to wrest the knife from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left chest and in the middle of the stomach. Whenthe stabbing started, Ortega moved to the left side of Masangkay to avoid being hit.15Quitlong chased Masangkay who ran towards the direction of the well. Thereafter, Ortega went home and treated his injured left armpit and lips. Then, he slept.When he woke up at six o'clock the following morning, he saw police officers in front of his house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks where he was asked to sit, he saw the police officers lift the body of a dead person from the well. He came to know the identity of the dead person only after the body was taken to the police headquarters.16The Trial Court's DiscussionThe trial court explained its basis for appellants' conviction as follows:17The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar Masangkay who was still alive and breathing inside the deep well filled with water, head first and threw big stones/rocks inside the well to cover the victim is a clear indication of the community of design to finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim Andre Mar Masangkay was in no position to flee and/or defend himself against the three malefactors. Conspiracy and the taking advantage of superior strength were in attendance. The crime committed by the accused is Murder.Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)).Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of the deceased.The IssuesIn their ten-page brief, appellants fault the trial court with the following:18I. The trial court erred in holding that there is conspiracy on the basis of the prosecution's evidence that at the time both accused and one Romeo Ortega lifted the body of Andrew Masangkay from where he succumbed due to stab wounds and brought and drop said body of Andrew Masangkay to the well to commit murder;II. The trial court erred in finding and holding that Andrew Masangkay was still alive at the time his body was dropped in the well;III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of the crime charged; andIV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of homicide alone.On the basis of the records and the arguments raised by the appellants and the People, we believe that the question to be resolved could be simplified thus: What are the criminal liabilities, if any, of Appellants Ortega and Garcia?The Court's RulingWe find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant Garcia deserves acquittal.First Issue: Liability of Appellant OrtegaThe witnesses for the prosecution and defense presented conflicting narrations. The prosecution witnesses described the commission of the crime and positively identified appellants as the perpetrators. The witnesses for the defense, on the other hand, attempted to prove denial and alibi. As to which of the two contending versions speaks the truth primarily rests on a critical evaluation of the credibility of the witnesses and their stories. In this regard, the trial court held:19The Court has listened intently to the narration of the accused and their witnesses and the prosecution witnesses and has keenly observed their behavior and demeanor on the witness stand and is convinced that the story of the prosecution is the more believable version. Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility is reinforced by the fact that he has no reason to testify falsely against the accused. It was Diosdado Quitlong who reported the stabbing incident to the police authorities. If Quitlong stabbed and killed the victim Masangkay, he will keep away from the police authorities and will go in hiding. . . .Because the trial court had the opportunity to observe the witnesses' demeanor and deportment on the stand as they rendered their testimonies, its evaluation of the credibility of witnesses is entitled to the highest respect. Therefore, unless the trial