G.R. No.

L-54445 May 12, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO NUNAG, ARNEL MANDAP, alias "Bubot", EFREN SALANGSANG, DANILO
CARPIO and DIOSDADO MANALILI, accused-appellants.
The Solicitor General for plaintiff- appellee.
Victorino M. David for accused-appellants except Arnel Mandap.
Feliciano G. Mandap for Arnel Mandap.

PADILLA, J .:
Accused-appellants Mario Nunag, Arnel Mandap alias "Bubot", Efren Salangsang, Danilo
Carpio, and Diosdado Manalili were charged before the Court of First Instance of Pampanga
with the crime of Rape committed as follows:
That on or about the second week of May, 1978, in the Municipality of Minalin,
province of Pampanga, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, with lewd design, conspiring and confederating together
and mutually helping one another, and armed with deadly weapon, by means of
violence and intimidation, did then and there willfully, unlawfully and feloniously
have carnal knowledge of the complainant Lorenza Lopez, against her will, and
in a backyard, near a ricefield.
All contrary to law, and with the aggravating circumstances [sic] that the said
offense was committed at night time.
The complainant, Lorenza Lopez, a resident of Barangay San Nicolas, Minalin, Pampanga, then
about fifteen and a half years old, declared that in the second week of May 1978, at about 7:30
o'clock in the evening, she was watching a television program in the house of her neighbor,
Carmen Laxamana. She stood outside the house and peeped through an open window. As she
was standing there, she saw the accused Mario Nunag, one of her neighbors, coming towards
her. Mario Nunag was staggering and appeared to be drunk. The moon was bright and she
readily recognized him.
Mario Nunag came to her and asked her to go with him. But she refused, so that Nunag held
her by the hand and poked a knife at her stomach and threatened to kin her. Nunag then placed
something in her mouth and led her to a nearby ricefield, about 15 meters behind the house of
Carmen Laxamana.
1
Very soon thereafter, they were joined by the other accused Arnel Mandap, Efren
Salangsang, Danio Carpio and Diosdado Manalili, who were also very well known to her. After conferring
in whispers, Arnel Mandap and Efren Salangsang held her hands, while Danilo Carpio and Diosdado
Manalili held her feet, and forced her to he on the ground. She struggled to free herself, but the accused
held her tightly.
Mario Nunag then undressed her and had sexual intercourse with her, at the same time fondling
her breasts. She felt pain in her vagina. After Mario Nunag had finished, Arnel Mandap followed.
After Arnel Mandap had finished, she lost consciousness and regained it while Diosdado
Manalili was abusing her.
Then, the five accused left, after warning her not to report the incident to anybody, otherwise,
they would kill her, her parents and brothers. The complainant felt pains and aches all over her
body, especially in her breasts and vagina.
2
She rested for a while and when the pains had
somewhat subsided, she went home. She did not report the incident to anybody for fear of what the
accused might do to her and her family.
3

After the incident, the complainant missed her menstruation when it became due and noticed
that her stomach was getting bigger. Nevertheless, she did not tell anybody. However, on 4
August 1978, her mother noticed her condition and asked her about it. She did not tell her
mother at first, but, when her mother and brothers got angry, she told them that she had been
raped by the five accused. They asked her why she did not inform them earlier and she replied
that she was afraid because the accused had threatened to kill her and her family if she should
tell anyone of the incident.
4

Lorenza Lopez was brought to the Central Luzon General Hospital at San Fernando,
Pampanga, after which a complaint was lodged with the police authorities.
5

On 10 October 1978, she gave birth prematurely to female twins, baptized Merlin and Maria
Lopez who both died after a few hours.
6

The appellant Mario Nunag admitted having sexual intercourse with the complainant. However,
he denied the charge of rape. He also claimed that he had sexual intercourse with the
complainant at a date different from that mentioned by the complainant. He declared that at
about 9:00 o'clock in the evening of 22 May 1978, while he was sleeping atop a wooden bed at
the backyard of their neighbor, Carmen Laxamana, he was awakened by the complainant who
touched his penis and embraced and kissed him. He felt lascivious and got the motorcycle of his
cousin and brought the complainant to a ricefield in barrio Sta. Rita, Minalin, Pampanga, and
had sexual intercourse with her. After the intercourse, the complainant asked him for some
money and he gave her P4.00. Then he went home.
7

The accused-appellant Efren Salangsang also admitted having sexual intercourse with the
complainant. He denied the charge of rape. He declared that while he was watching a
basketball game on the TV set of Carmen Laxamana on 20 June 1978, the complainant came
to him and led him to the backyard of Carmen Laxamana where they had sexual intercourse. He
also stated that after the intercourse, the complainant asked for some money and he gave her
the amount of P2.50.
8

The accused-appellant Diosdado Manalili also admitted that he had sexual intercourse with the
complainant, but not during the first or the second week of May 1978. He declared that he had
sexual intercourse with the complainant at about 9:00 o'clock in the evening of 30 June 1978.
According to him, he was in the store of one Tess Carpio when the complainant entered the
store and told him that she had something to tell him. She led him to the backyard of Carmen
Laxamana and asked him to have sexual intercourse with her. But, he refused. However, the
complainant took hold of his penis and he had to capitulate.
9

The accused-appellant, Danilo Carpio, upon the other hand, denied having sexual intercourse
with the complainant at any time, although sometime in October 1976, while he was watching a
television program from outside the house of Carmen Laxamana, the complainant came to him
and placed her hands inside the pocket of his pants and extracted therefrom some coins
amounting to P1.00. After getting the money, the complainant asked him to fondle her breast,
which he did.
10

The accused-appellant Arnel Mandap also claimed that he did not have sexual intercourse with
the complainant at any time. He declared that while he had known the complainant for some
time, he was not close to her. However, in the evening of 20 June 1978, at about 8:00 o'clock
while he was watching a television program through the window of the house of Carmen
Laxamana, the complainant who was standing beside him, suddenly took hold of his penis and
invited him to the backyard of Carmen Laxamana. He agreed and when he rejoined the
complainant, he found the complainant already lying down on the ground. He lifted her skirt and
inserted his finger inside her vagina. He also fondled her breast. But, when he saw that her
stomach was already quite big, he became afraid and left. As he was leaving, the complainant
asked him for some money, but he had none to give her. On his way back to the place where he
was watching TV, he met Efren Salangsang going towards the backyard of Carmen
Laxamana.
11

However, the trial judge, Hon. Felipe B. Kalalo, found the accused guilty of the charge and
sentenced them, as follows:
... accused Mario Nunag, Arnel Mandap and Efren Salangsang to
suffer RECLUSION PERPETUA, and upon the accused Danilo Carpio and
Diosdado Manalili, who were both above sixteen and below eighteen years of
age at the time of the commission of the offense, the indeterminate penalty of
from TEN (10) YEARS of prision mayor, as minimum, to SEVENTEEN ( 7)
YEARS AND FOUR (4) MONTHS of reclusion temporal, as maximum, and for all
the accused to indemnify the victim Lorenza Lopez in the sum of Eighty
Thousand Pesos (P80,000.00) representing moral damages and Twenty
Thousand Pesos (P20,000.00) as exemplary damages, all to be paid jointly and
severally, without subsidiary imprisonment in case of insolvency; and, to pay the
costs.
Accused Mario Nunag, Efren Salangsang, Danilo Carpio and Diosdado Manalili
shall be credited with the time they have been under preventive imprisonment in
the service of their sentence pursuant to existing law.
12

From this judgment, all the five (5) accused appealed to this Court. They assail the trial court for
giving credence to the testimony of the complainant, which they claim to be concocted and
fraught with irreconciliable contradictions.
There is no merit in the appellants' appeal. We find no cogent reason for altering the trial court's
appreciation of the credibility of the testimony of the complainant. Thus, the variance between
the testimony of the complainant in court and her sworn statement,
13
as to the exact date when
she was raped, if this be so, does not materially affect her main claim that the five (5) appellants had
sexual intercourse with her, against her will.
Besides, it would appear that the complainant had no motive whatsoever to testify falsely
against the appellants, some of whom were her very close neighbors, and impute to them the
commission of so grave a crime.
This Court has consistently held that the testimony of a rape victim as to who abused her is
credible where she has no motive to testify against the accused.
14

It further appears that the complainant is a poor barrio girl, then about 15 years and a half in age
when she testified in court, who looked timid and inexperienced in the ways of the world. It is,
therefore, quite improbable that she would fabricate matters and thereby undergo the travails of
a public trial exposing herself to humiliation and embarrassment by unraveling nasty matters
against her virginity by lodging against the appellants so grave and serious a charge, if not
true.
15

Moreover, the complainant was straight-forward and consistent in her testimony and described
in detail the manner by which she was dragged by Mario Nunag from the place where she was
watching a television program outside the house of their neighbor and brought to a secluded
place where she was sexually abused by the five (5) appellants, one after another, without her
consent. She could not shout because Mario Nunag had placed something in her mouth and
had pointed a knife at her stomach. She could not also escape or run away from her attackers
because the appellants held her arms and legs while one of them was abusing her. She could
not have been mistaken in identifying the appellants because they are very well known to her
and the moon was bright.
The appellants make capital of the failure of the complainant to immediately report the incident
to the authorities. But, this failure to report the incident to the authorities earlier had been
satisfactorily explained. The complainant declared that she was afraid to report the incident
because the accused-appellants, two of whom were her very close neighbors, had warned her
not to report the incident to anybody or else she and her family would be killed.
Finally, the accused-appellants contend that it was improbable for them to have raped the
complainant in the second week of May 1978, as claimed by her, because she was found to be
about 6 to 7 months pregnant when she was examined by Dr. Teresita Santos on 3 August
1978; and 7 to 8 months on the family way when Dr. Ricardo Naguit examined her on 4 October
1978.
This contention is without merit. The findings of Drs. Teresita Santos and Ricardo Naguit cannot
be given due weight and credence because the said findings are based upon the supposition
that the complainant was carrying only one child in her womb. Dr. Teresita Santos said:
Court:
Q In this particular case Dra. you stated that you were able to
determine the age of the fetus because of the abdominal size?
A Yes, Your Honor.
Q And in your determination you only based on the fact that there
is only one fetus inside?
A Yes, Your honor.
16

Dr. Ricardo Naguit declared that had he known that the complainant was carrying twins, his
findings would have been different. His testimony reads as follows:
Q When you examined Lorenza Lopez on 4 October 1978 and
found that she was between 7 and 8 months pregnant, you
assumed that there was only one fetus inside of the womb, is it
not?
A Yes, sir, I assumed there was only one fetus.
Q That is why you concluded, considering the size of the
abdomen or gestation size of Lorenzo Lopez, it was between 7 to
8 months?
Atty. Santos
He did not conclude but he presumed.
Court
Reform the question.
Fiscal Pangilinan
Q If a woman, like the case of Lorenza Lopez, when you
examined her on 4 October 1978 with that size of the womb or
stomach of Lorenzo Lopez, if only you knew already that the fetus
inside her womb were twins, would your assumption that she was
between 7 and 8 months pregnant still be true?
A Well, if I knew really, but then it is really very hard to determine
in that period the presence of double pregnancy. I think there is
fifty percent error in determining the presence of double
pregnancy in woman pregnant for the first time.
Court
The Question of the Fiscal is supposing there are twins inside
as in fact there were, would your findings be the same, that the
fetus of the woman is 7 to 8 months pregnant? This is
hypothetical.
A The findings will no longer be the same, sir.
Q Why?
A Because there will be relative increase in the height of the fetus
by affection.
Q If there are two?
A Yes, sir.
Q In what way?
A The presence of double pregnancy, it is but natural that there
will be relative increase in the size of the uterus because of the
presence of two babies there or the height of the fundus.
17

The Solicitor General recommends that each accused be found guilty of five (5) distinct and
separate crimes of rape, because each accused is responsible, not only for the act of rape
committed personally or individually by him, but also for the act of rape committed by the others,
all five (5) accused having conspired, confederated together and mutually helped one another. It
would appear, however, that there is no conclusive evidence that the accused-appellants Danilo
Carpio and Efren Salangsang had sexual intercourse with the complainant, since the
complainant said that she lost consciousness after the second man (Arnel Mandap) the first
being Mario Nunag had sexually abused her and she regained consciousness while
Diosdado Manalili was abusing her sexually, and that she merely asumed that Danilo Carpio
and Efren Salangsang had also sexually abused her. Her testimony reads as follows:
Q You better remember your answer to the Court. After you were
abused by the second accused Arnel Mandap, you said you lost
consciousness and you regained consciousness when the fifth
accused Diosdado Manalili was sexually abusing you. Does the
Court understand that when Efren Salangsang and Danilo Carpio
were sexually abusing you, you did not yet regain your
consciousness?
A Yes, Your Honor.
Court
Q In other words, you are not in a position to state whether
accused Efren Salangsang and Danilo Carpio abused you
because you stated you lost consciousness at that time. You even
do not know who succeeded Arnel Mandap?
A Because during all the time that they were having sexual
intercourse with me, they were holding my feet and that two of
them were holding my hands. I lost my consciousness after Arnel
Mandap had sexual intercourse with me and I know that Efren
Salangsang and Danilo Carpio had also sexual intercourse with
me, sir.
Q How did you come to know that when you lost consciousness
Be sincere now with the Court. How did you come to know that
Danilo Carpio. and Efren Salangsang abused you when you said
you lost consciousness?
A They had also sexual intercourse with me because they were in
the company of the three (3) accused, your Honor.
Q So your declaration before the Court that Danilo Carpio and
Efren Salangsang abused you also was only your presumption
because they were in the company of the three (3) accused?
A Yes, your Honor.
18

Consequently, each of the five (5) accused-appellants must be found guilty of three (3) distinct
and separate crimes of rape, the first three, namely, Mario Nunag, Arnel Mandap and Diosdado
Manalili, by direct act and participation and the other two, namely Danilo Carpio and Efren
Salangsang, by indispensible cooperation
Accused-appellants Mario Nunag, Arnel Mandap and Efren Salangsang are each sentenced to
suffer three (3) penalties of reclusion perpetua while accused-appellants Diosdado Manalili and
Danilo Carpio, both being above sixteen (16) years and below eighteen (18) years at the time of
the commission of the offenses, are each sentenced to suffer three (3) indeterminate penalties
of ten (10) years of prision mayor, as minimum, and seventeen (17) years and four (4) months
of reclusion temporal, as maximum.
WHEREFORE, except for the modification above indicated, the judgment appealed from is
AFFIRMED in all other respects, with costs against the appellants.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, and Regalado, JJ., concur.
Sarmiento, J., is on leave.

Footnotes
1 T.s.n. of Jan. 17,1979, pp. 15-19; tsn of Feb. 5, 1979, pp. 13-15.
2 T.s.n. of January 17, 1979, pp. 20-38, tsn of February 26, 1979, pp. 34-36.
3 Id., pp. 38-41.
4 Id., pp. 42-46.
5 Id., pp. 47-48.
6 Id., pp. 48-52; also Exhs. A and A-1.
7 T.s.n. of June 6, 1979, pp. 12-20.
8 T.s.n. of June 11, 1979, pp. 18-19.
9 T.s.n. of June 13, 1979, pp. 7-12.
10 T.s.n. of July 3, 1979, pp. 17-21.
11 T.s.n. of Sept. 20, 1979, pp. 34-44.
12 Original Record, pp, 141-142.
13 Exhibit 4.
14 People vs. Lopez, G.R. No. L-47299, Feb. 19, 1986, 141 SC 385, 390.
15 People vs. Daing, G.R. No. L-40574, Nov. 29, 1984, 133 SC 448, 459.
16 T.s.n. of March 14, 1979, pp. 17-18.
17 T.s.n. of August 1, 1979, pp. 38-40.
18 T.s.n. of Feb. 26, 1979, pp. 34-36.

G.R. No. L-20911 October 30, 1967
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SULPICIO DE LA CERNA, ET AL., defendants.
SULPICIO DE LA CERNA, SERAPIO MAQUILING, TEODORO LIBUMFACIL, GODOFREDO
ROTOR, SEVERINO MATCHOCA, and ANTONIO BAUTISTA, defendants-appellants.
Godofredo Galindez for defendants-appellants.
Office of the Solicitor General for plaintiff-appellee.
BENGZON, J.P., J .:
Sixteen persons, among them herein appellants, were indicted by the provincial fiscal in the
Court of First Instance of Cotabato for double murder for the fatal shooting of Rafael and
Casiano Cabizares,
1
father and son, in Barrio Cebuano, municipality of Tupi, province of
Cotabato, on February 3, 1958. All pleaded not guilty.
In the course of the trial, after the prosecution had rested the People's case, the accused filed a
motion to dismiss on the ground, inter alia, that the fiscal, after conducting his own preliminary
investigation, included in the charge the other accused who were already dropped therefrom by
the Municipal Court. The trial court denied said motion but acquitted accused Gaspar Bautista,
Agapito Avellana, Cesar Abapo and Eriberto Matchoca for insufficiency of evidence against
them.
The defense then presented its evidence. While at this stage, accused Segundo de la Cerna
died and the charge against him was dropped.
After trial, the lower court, on January 3, 1962 promulgated its decision. Acquitted were
Guillermo Esperanza, Concordio Pardillo, Deogracias Pardillo, Andres Abapo and Joaquin
Libumfacil.
Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling,
as principals, and Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro
Libumfacil, as accomplices.
For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and Serapio
Maquiling as principals, and Ramon Alquizar as accessory.
A motion to reconsider by the convicted accused failed to move the lower court. So the said
accused followed up with their notice of appeal. Two days later accused Ramon Alquizar was
allowed to withdraw his intended appeal. And during the pendency of the appeal in this Court,
accused Serapio Maquiling moved to withdraw his appeal also, and this was granted on August
8, 1967.
The present appeal, therefore, involves only Sulpicio de la Cerna as principal for the killing of
both Rafael and Casiano Cabizares; and Teodoro Libumfacil, Godofredo Rotor, Severino
Matchoca and Antonio Bautista asaccomplices for the killing of Rafael Cabizares.
The first question is procedural. It appears that when the municipal court finished with the
preliminary investigation, it opined that only appellant Sulpicio de la Cerna was guilty while the
rest of the accused were not. The fiscal, however, without seeking a review of the findings of the
court, conducted his own investigation and, afterwards, indicted all the accused. It is contended
that this was serious error. The objection, however, was raised only after the prosecution had
already rested its case. Hence, whatever procedural defect there was, had been waived by the
appellants by their failure to raise it before entering their pleas.
2

Appellants next assail the lower court for relying on the prosecution witnesses who gave, in
substance, the following narration of facts and circumstances:
Early in the morning of February 3, 1958, Rafael Cabizares, accompanied by his wife, Hospicia,
his brothers Margarito and Romualdo, and his sons Gumercindo, Marcelo, Casiano, Juan and
Lamberto, left Barrio Cebuano headed for the poblacion of Tupi, Cotabato, bringing five sacks of
corn loaded on a bull cart to be milled in Tupi. Juan, Marcelo and Lamberto, who were all
minors, were then going to school. Upon approaching a hilly part, they had to stop since the
carabao could not pull the bull cart uphill. Rafael then requested his two brothers and his son
Gumercindo to accompany him up the hill and carry on their backs the sacks of corn. With
Rafael leading, the four proceeded uphill.
As the four approached Sulpicio de la Cerna's house on top of the hill and were about to put
down the sacks of corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, who
fell down. Sulpicio then ordered his companions to burn his house so that they would have an
excuse. Meanwhile, Casiano, Gumercindo, Marcelo and Romualdo brought the wounded Rafael
Cabizares to the house of the latter's father, Demetrio, 100 meters away. Felisa Bastismo,
Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time.
After the group reached the house, Rafael's wounds were washed with hot water and then he
was brought inside the third room of the house. Subsequently, appellant Sulpicio and the other
accused arrived at the premises, armed with firearms, bolos and canes. They stoned the house
and trust their bolos thru the bamboo walls and flooring. Finding that there were women inside
the house, the accused ordered them to get out or else they would be killed also. As Felisa
Bastismo and Ursula Cabizares alighted from the besieged house, Marcelo Cabizares followed
them, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he was
able to escape to the nearby forest.
Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he got
from appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room.
At this moment, Casiano Cabizares jumped down from the house thru the kitchen door and ran
away. Serapio Maquiling followed him and shot the latter at the back, killing him a few meters
away from Demetrio's house. Appellant Sulpicio de la Cerna then got back the carbine, climbed
up the house and fired once more at Rafael, who was now lying down on the floor, killing him
finally. Thereafter, the cadaver of Casiano Cabizares was tied to a bamboo pole, carried by
accused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the burned house
of Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael's
house.
The post mortem examination
3
conducted that very same day showed that Casiano Cabizares
died from a gunshot wound, the bullet entering the back and passing out in front, while Rafael
Cabizares sustained three gunshot wounds of entrance, one gunshot exit wound, and one stab
wound. Dr. Bienvenido Garcia, the Municipal Health Officer, explained that the bullet which
caused the first wound located in front, at the left lower abdomen, did not go thru at the back but
split into two parts after entering the body. However, these two parts were already palpable on
the left buttock of the decedent from which they were extracted. The bullet which caused the
second wound located directly at the back lodged in the 11th thoracic vertebra. The third bullet
entered near the left breast and went out at the right lumbar region.
The prosecution also presented proof that prior to the incident, a land dispute arose between
Rafael and some of the accused,
4
and that he had filed complaints
5
with the Agrarian Court
against the latter, the trial of which cases was scheduled on February 10, 1958.
Appellants would have this Court believe that they are innocent. The four appellants convicted
as accomplices insist they were never at the vicinity of the killing. On the other hand, appellant
Sulpicio de la Cerna claims that both Rafael and Casiano were killed in self-defense.
Sulpicio's version of what transpired is this:
In the morning of February 3, 1958, Guillermo Esperanza and Sulpicio de la Cerna had just
roasted corn in the latter's house when Rafael, Casiano, and others, all armed with bolos and
canes, arrived. Rafael demanded of Sulpicio to come down for a confrontation. The latter's
refusal to do so angered Rafael who threw his cane at Sulpicio and ordered his companions to
surround the house, thrust their bolos thru it and burn it. Because the house was on fire, and
fearing that he would be killed, Sulpicio alerted Guillermo Esperanza got his carbine and fired
indiscriminately at his attackers to drive them away. When Rafael and Casiano were hit, their
companions fled. Guillermo Esperanza and Sulpicio then got down from the burning house and
left, passing by the prostrate bodies of the decedents. Sulpicio proceeded to the house of one
Pedro Esperanza to drink water and while there, he saw a jeep coming loaded with policemen
to whom be surrendered himself and his carbine. Expectedly Guillermo Esperanza gave the
same version as above-narrated.
Said appellant's version cannot be accepted. The autopsy reports contradict Sulpicio's claim
that he shot the decedents frontally while he was up in his house. For both deceased each
sustained a gunshot wound directly at the back. Moreover Casiano's wound of entry located
along the 12th rib is lower than the wound of exit located along the 6th rib
6
showing that
the bullet flight path was upwards, not downwards. A gun fired from the elevated flooring
7
of a
house like Sulpicio's, and aimed downwards, could not have caused such wounds. Lastly,
Rafael's cadaver bore a stab wound on the left side. Appellant's version could not account for
this.
While on the one hand nothing was found around the burned house of appellant Sulpicio de la
Cerna, such as the alleged cane thrown by Rafael, nor any other weapon or stones which may
indicate agression or violence, on the other, bloodstains were found inside Demetrio Cabizares'
house
8
and also on the ground at the spot where, according to the prosecution,
9
Casiano fell
when shot by Serapio Maquiling. An empty carbine shell (Exh. I) was also found by Dr. Garcia in
the kitchen. In this regard, his testimony is not hearsay, as appellant contends, for although Dr.
Garcia did not personally pick it up, he saw the empty shell taken from the floor and handed
over to his companions before finally reaching him.
10
While Casiano's body was found near
Sulpicio's burned' house, even appellant's own witness
11
admitted having found Rafael's body
inside Demetrio's house right after the incidents occurred. Appellant's supposition that Rafael's
companions must have returned and carried away his body can hardly be accepted since there
is no reason why they would not also bring back Casiano's body.
Moreover, we find it hard to believe that Sulpicio, after felling the decedents and dispersing the
latter's companions would still leave his house when it was not yet totally burned, as he himself
admitted. The natural thing for him to have done were it true that it was decedents who set
fire to it was to put down the fire and save his house. Anyway his life was no longer in
danger.
Lastly, Sulpicio has more reason to resent and kill Rafael than the latter would have as to him.
The source of the possible motive is the same: land trouble between Rafael Cabizares and
Sulpicio's father, and the ejectment suit instituted before the Agrarian Court against the latter by
the former. Considering that Rafael was the prevailing party in the land dispute before the
NARRA, it is quite hard to believe that he would be the one entertaining a grudge against those
over whom he had prevailed. Rather, it was the accused, who were defeated and who were now
facing an ejectment suit which was set for hearing, that harbored resentment against the
deceased.
Furthermore, all the foregoing considerations fit well into the prosecution's version. We have
gone over the testimonies of the prosecution witnesses and found them credible. That most of
them are related to the victim does not necessarily impair their credibility.
12
Appellants however
invite our attention to inconsistencies and improbabilities allegedly abounding in their
testimonies. We shall consider each witness and their testimonies separately.
1. Romualdo Cabizares He was with his brother Rafael when the latter was shot near
Sulpicio's house and was among those who brought Rafael to their father's (Demetrio) house
100 meters away. He did not go up the house since he had to go back and evacuate his family
to a forest 400 meters away. Having done so, he went back and saw the incidents around
Demetrio's house from a place covered with corn plants just 25 meters away.
Appellants point out that his statements on the whereabouts of Conrado Pardillo were
inconsistent, leading the lower court to disbelieve him and acquit Pardillo. We find no
inconsistency since Pardillo's going to Rafael's house with the other accused was after the
events in Demetrio's premises had taken place.
13
The lower court acquitted Pardillo not because
it disbelieved Romualdo but rather, taking his testimony as true, the court held that the facts
proved were insufficient to tack criminal liability on Pardillo.
14

This witness was able to observe the events around Demetrio's house. Even if the corn plants
where he hid were sparse, because of the 25-meter distance from the accused whose
attentions were focused on Demetrio's house, and considering that he was in a hidden
place
15
while the accused were in the open field, Romualdo could see them without their
noticing him. It is true that the forest where Romualdo took his family was 400 meters away, but
the accused took some time before they followed to Demetrio's house and Romualdo ran
back after hiding his family.
16

2. Margarito Cabizares He was beside his brother Rafael at the hill top when the latter was
shot by Sulpicio. When he tried to hide near some banana clumps, Guillermo Esperanza
stabbed him, hitting him near the left shoulder and causing him to fall unconscious. Shortly later
when he recovered consciousness, he followed Rafael who was being brought to Demetrio's
house but he was told by Rafael to save himself so he went to a forest 400 meters away where
he saw the goings-on around Demetrio's house.
Appellants state that nothing much can be gathered from his testimony. However, they overlook
the obvious fact that Margarito was an eyewitness to the shooting of Rafael near Sulpicio's
house. Although he lost consciousness after being stabbed, it was momentary only, the wound
not being very serious.
17
It was not impossible for him to have observed activities around
Demetrio's house at a distance of 400 meters. Witness Bonifacio Barro corroborates him on this
point.
18
Lastly, he need not be a ballistics expert to recognize gunshot bursts.
3. Gumercindo Cabizares He was with his father Rafael at the hill top. He warned his father
just before Sulpicio fired the carbine. After Rafael was hit, he helped carry him to Demetrio's
house but did not stay there since he was told by Rafael to go to Dadiangas to call the P.C.
Appellants claim that his testimony regarding a conversation with Juan Cabizares on the way
downhill is contradicted by Juan himself who stated that he was not with those who brought
Rafael to Demetrio's house. We fail to see any contradiction. Juan did not deny having
conversed with Gumercindo. And what the latter said was that after meeting Juan, they went
ahead and Juan probably followed behind.
19
We do not think it is stupidity for a son to warn his
father of imminent danger as Gumercindo did and to come to the latter's aid despite
danger. We prefer to consider such behavior as "courage under fire."
4. Marcelo Cabizares He was near the bullcart downhill and when he heard gun shots, he
went uphill. There he helped carry his father Rafael to his grandfather Demetrio's house. After
the accused arrived in the latter's house, the women were ordered to get out. He followed
Ursula Cabizares and Felisa Bastismo on the way down but he was held by Pardillo and boxed
by Serapio Maquiling. Still, he was able to escape.
Appellants point out to two statements of his, one wherein he was able to identify all the
accused and the other, wherein he was able to name only four of them, alleging material
inconsistency. The statements however referred to different situations. The first was when all
the accused arrived at Demetrio's place, and the second statement refers to those whom
Marcelo Cabizares saw when he came down from the house.
20
He was able to run away after
Serapio Maquiling boxed him because he was freed from the hold of Pardillo and Serapio.
21
On
redirect, he clarified that he left Demetrio's house in the morning.
22

5. Juan Cabizares He also stayed with the bullcart downhill and when he heard gun shots, he
went uphill and saw his father wounded. He then followed behind the group carrying Rafael to
Demetrio's house and while inside the house, saw the killing of Rafael and Casiano.
Juan did not lie when he said his father was shot by Sulpicio for altho he did not see the actual
shooting, he had good reasons to conclude that Sulpicio fired the shot since he saw the latter,
shortly after the shooting, holding the carbine which was still pointed at Rafael.
23
Anyway, his
testimony on the point is merely corroborative of the others who were eyewitnesses. He was
able to identify Serapio Maquiling as the one who first shot his father in Demetrio's house
although Serapio was behind the bamboo partition, since there were openings in it enabling one
to see thru and he peeped thru it.
24
The measurements in the third room (3 m x 4 m) are
compatible with Juan's statement that Sulpicio was 1-1/2 m away from Rafael when the third
shot was fired since Sulpicio did not go inside the room but fired from the window
outside.
25
Juan was competent to testify on what occurred outside the house since he was also
peeping thru the slits in the bamboo walls.
26

6. Felisa Bastismo She was the mother of Rafael Cabizares. She was with Ursula Cabizares
and Segundino Cabizares inside Demetrio's house when the wounded Rafael was brought in.
After Rafael's wounds were washed, Felisa went down from the house with Ursula, as ordered
by the accused. And in the corn fields nearby, she witnessed the killing of Casiano.
Appellants make much of Felisa's testimony referring to Rafael's "wounds" when he was
brought in the house, and argue that Rafael had been shot at least twice already. But Felisa did
not examine the wound of Rafael. Neither did she state how many wounds he had. The
substance of her testimony is only that Rafael was wounded when he arrived. As to the
impossibility for the stones to go thru the broken window shutter (Exh. K), Felisa admitted that
she merely heard the sound when they fell on the floor.
27
Surely, appellant cannot seriously
contend that one has to see stones going thru the house to know that it is being stoned.
Anyway, it is not impossible for a large stone hurled against a bamboo shutter to cause a hole
therein measuring 14" x 1 ." And assuming that such hole appears more to have been cut by a
bolo and forced open, Felisa testified that the accused also thrust their bolos thru the walls.
28

It is not impossible for Felisa to have seen Casiano's shooting for she lay flat on the
ground after having witnessed it already.
29
She also explained why she was alone in the corn
fields although she left the house together with Ursula. Being 76 years old, she was slower than
Ursula, and she stumbled while fleeing so she was able to reach up to the corn fields only.
30
As
to Juan's arrival, the testimonies of the other witnesses are uniform that the group carrying
Rafael arrived in Demetrio's house first and Juan, who followed behind, arrived
afterwards.
31
Juan corroborates Felisa that he helped carry Rafael to the third room.
32
Marcelo
probably noticed Juan only after Rafael had been brought to the third room, leading him to say
that Juan arrived after Rafael was brought there.
33

7. Ursula and Segundino Cabizares Both were in Demetrio's house with Felisa Bastismo.
They saw the arrival of the accused and the stoning and thrusting of bolos thru the wallings.
One of the bolos wounded Segundino Cabizares on the left thigh. Ursula Cabizares hid in a
palay container but when they were ordered to get out, she and Felisa Bastismo left and
returned later in the afternoon.
While Ursula was evidently mistaken when she said that Margarito was also in the house, the
error is immaterial. Contrary to appellants' contention, she saw Serapio Maquiling on her way
down the house.
34
As to whether the other accused besides appellant Antonio Bautista were
armed with bolos, she stated she did not know since she only saw the bolo tips penetrating thru
the wallings.
35
Her positive statement that She saw appellant Godofredo Rotor
36
prevails, of
course, over the negative testimony of Maximo Caa.
Appellants argue that since Segundino Cabizares was fearful, he could not have been moving
inside the besieged house of Demetrio, peeping every now and then thru the openings in the
walls and observing the accused. They seem to forget however that different people react
differently even when apprehensive. Thus, Segundino's restlessness inside the house is neither
unnatural or ridiculous to believe.
8. Bonifacio Barro He was with Fiscal Daproza and Sgt. Paladin inside Demetrio's house a
few days after February 3, 1958 and upon orders of the Fiscal, he took out part of the flooring
(Exh. K), the bamboo slatch (Exhs. L and L-1) and the stones (Exhs. M, M-1 and M-2).
His statement that Exhs. M, M-1 and M-2 were some of the stones Fiscal Daproza found on the
roof of Demetrio's house corroborates the other prosecution witnesses who testified that the
accused stoned the house. He also stated that there were other stones inside the house,
corroborating Romualdo Cabizares.
37

9. Dr. Bienvenido Garcia As municipal health officer, he performed the autopsy on Rafael
and Casiano Cabizares on February 3, 1958. He found Casiano's body near the burned house
of Sulpicio de la Cerna, and Rafael's, inside Demetrio's house. In the latter house, he also saw
a bullet hole on the floor (Exh. J-1) and a carbine shell (Exh. 1).
Appellants would cavil on Dr. Garcia's statement that he saw Exh. J (part of the flooring) only in
court. What he said however was that he saw it as cut already from the floor only in court.
38
His
statements as to the room dimensions (3-4 m x 4-5 m) and the distance of Rafael's body to the
partition (1 m or 2 ft.) are approximations only and not exact measurements.
39
A difference of a
few insignificant meters is to be expected. Lastly, his statements that the bullet hole (Exhibit J-1)
was on the floor coincides with Barro's testimony that Exh. J was cut from the flooring.
40

From all the foregoing, it is apparent that the so-charged inconsistencies and improbabilities in
the testimonies are without substantial and significant basis. Hence, the lower court's findings
should stand, especially since they involve an appreciation of the evidence and credibility of the
witnesses.
We now proceed to the criminal liability of the appellants.
The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the
first shot, fired by him, was not attended with treachery since there is evidence that Rafael was
warned by his son Gumercindo just before he was hit in the lower abdomen.
41
However, even
assuming the argument to be tenable, the second shot, by Serapio Maquiling, was definitely
treacherously fired since Rafael was then in the third room of Demetrio's house, wounded and
defenseless. The treachery here has to be independently considered due to the sufficient lapse
of time
42
from the first shot, in which the following events intervened: (1) the bringing of Rafael to
Demetrio's house 100 meters away after being hit; (2) the washing of his wounds and his being
brought to the third room to rest; (3) the arrival of the accused and their ordering the two women
to get out. It was only after the women left that Serapio climbed up the kitchen and fired the
second shot at Rafael.
Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling
since both were acting as co-conspirators pursuant to their understanding in the meeting held
the day before in Andres Abapo's house, as will be shown presently. Anyway, the third shot,
fired by Sulpicio, was treacherously done. Rafael was then flat on the floor and although still
alive, was completely defenseless, having been shot twice already. The portion of Dr. Garcia's
testimony
43
cited by appellants shows that Rafael died after the third shot hit him
Q. After wound No. 1 was inflicted, is it possible that Rafael Cabizares was still
alive?
A. Rafael Cabizares was still alive.
Q. After inflicting wound No. 2, is it possible that Rafael Cabizares was still alive?
A. He was still alive.
Q. When wound No. 3 was inflicted, was he still alive by your conclusion?
A. He was dead.
Q. What makes you conclude that he was already dead when wound No. 3 was
inflicted?
A. Because wound No. 3 is mortal.
thus corroborating Juan Cabizares' testimony that his father was still alive after the second shot
wounded him.
Evident premeditation was also present in this case. The previous plan to kill Rafael Cabizares
was testified to by witness Maximo Caa who was present in the meeting of February 2, 1958,
in the house of Andres Abapo. Of the many persons present, he recognized only appellants
Sulpicio de la Cerna, Antonio Bautista, Severino Matchoca and Serapio Maquiling. Bautista told
the group that the purpose of the meeting was to plan the killing of Rafael Cabizares. Then both
he and Serapio Maquiling signified their willingness to execute it. Appellant Sulpicio also offered
to do it provided his family would be taken care of. To this offer, Bautista and Maquiling replied
that they would take care of Sulpicio's family. Caa testified further that none of those attending
voiced out any objection but all agreed to the plan. Caa was also present in the early morning
of February 3, 1958, when Matchoca, accompanied by Bautista, gave the magazine of bullets to
Godofredo Rotor. He was likewise with the accused when Rafael was shot at the hill top, and
when he (Rafael) and Casiano were killed in Demetrio's place.
However, one year and ten months after he had testified for the prosecution, witness Caa was
presented as a defense witness. As such, he completely retracted on his previous testimony,
explaining that all what he had stated was false since he was not in Tupi on February 2 and 3,
1958. Gaudencio Esperanza, presented to corroborate him, testified that in August, 1958,
Hospicia Cabizares, widow of Rafael, went to the former's house where Caa was staying, and
gave the latter P50.00 to testify falsely for the prosecution. On rebuttal, Hospicia Cabizares
denied this.
44

We have thus two sets of testimonies by Caa completely at variance with each other. Now the
rule is that mere retraction by a prosecution witness does not necessarily vitiate the original
testimony otherwise credible.
45
The proper thing for the trial court to do is to weigh and compare
both testimonies. Here, the lower court, after having done so, accepted Caa's testimony for the
prosecution. In this, it did not err.
Firstly, the original testimony is positive and replete with details, and Caa withstood a long and
thorough cross-examination which could not have been so, if the story were merely fabricated.
Secondly, Caa's narration of the shooting incident was fully corroborated by the other
prosecution witnesses. Lastly, the charged inconsistencies and improbabilities therein are too
insignificant to affect the substance thereof.
On the other hand, in his subsequent testimony,
46
Caa was evasive and most of his answers
were: I don't remember" or "I don't know". His statement that he was in Marbel on February 2
and 3, 1958 is not only uncorroborated but even contradicted by two prosecution witnesses who
saw him with the accused on February 3, 1958.
47
Caa was also in sincere, claiming that his
conscience bothered him greatly but he admitted that he could not sleep only in the
mornings
48
and notwithstanding the serious predicament he was in because of the
inconsistent statements made in open court he was even smiling.
49
Moreover, according to
Gaudencio Esperanza, who is the father-in-law of Serapio Maquiling, Caa was only
constrained to testify falsely when he was bribed by Rafael's widow, Hospicia Cabizares,
sometime in August, 1958. This pretense can not be believed since a month prior to that, or on
July 28, 1958, Caa had already executed an affidavit (Exh. V) incriminating the appellants. It
also appears highly improbable for Rafael's widow to go to the house of a relative of the
accused and in his presence openly bribe Caa, a resident therein. Lastly, it is hard to believe
that although Gaudencio Esperanza knew of this incident, he told the defense counsel about it
only after Caa had already testified for the defense and had been incarcerated to face a
charge of perjury.
50
The impulse of a man similarly situated would have been to relate such
matter at once to his accused relatives. Gaudencio's failure to do so makes of his story a
worthless fabrication.
There being a previous direct conspiracy one day before the killing, evident premeditation is
duly established.
51
This qualifying circumstance is further buttressed by the following actuations
of appellant on February 3, 1958: (1) Upon seeing Rafael near his house, Sulpicio told his
companions to get ready since the one they were awaiting was there already. And then he shot
at Rafael. (2) As Rafael was being brought to Demetrio's house, Sulpicio ordered his
companions to burn his house so they would have an excuse already. (3) With the other
appellants, he pursued the wounded Rafael to Demetrio's house where after they had stoned
the same and thrust their bolos thru its wallings, they ordered the women folk to leave lest they
be killed also; and (4) after Serapio had already shot at Rafael, Sulpicio still fired a third shot,
finally killing Rafael. All these still overtly show appellant's determination to end Rafael's life.
The killing, therefore, was properly qualify as murder.
However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares
notwithstanding a conspiracy between him and Serapio Maquiling. The conspiracy was to kill
Rafael only and no one else. Nothing was said or agreed upon about the members of Rafael's
family. In fact, in executing their plan appellants let the two women inside Demetrio's house
leave unhurt and they did no harm to the remaining companions of Rafael in the house. Their
target was solely Rafael Cabizares. And the rule has always been that co-conspirators are liable
only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of
the co-conspirators or which are not the necessary and logical consequence of the intended
crime, only the actual perpetrators are liable.
52
Here, only Serapio killed Casiano Cabizares. The
latter not even going to the aid of his father Rafael but was fleeing away when shot.
Although Serapio got the carbine from Sulpicio, the latter cannot be considered a principal by
indispensable cooperation or an accomplice. There is no evidence at all that Sulpicio was aware
Serapio would use the rifle to kill Casiano. Presumably, he gave the carbine to Serapio for him
to shoot Rafael only as per their agreement. Neither is there concrete proof that Sulpicio abetted
the shooting of Casiano. Sulpicio might have been liable if after the shooting of Rafael, Serapio
returned the carbine to him but upon seeing Casiano fleeing, immediately asked again for the
carbine and Sulpicio voluntarily gave it to him. Serapio's criminal intention then would be
reasonably apparent to Sulpicio and the latter's giving back of the rifle would constitute his
assent thereto. But such was not the case. Sulpicio, therefore, must be acquitted for the killing
of Casiano Cabizares.
Appellants Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil all
put up alibi as their defense. This the trial court rejected but it held them liable as accomplices
only, finding reasonable doubt on their guilt as co-principals. Appellants would again advance
their respective alibis here.
Appellant Rotor claims that at dawn on February 3, 1957, he went alone to the spring in Barrio
Cebuano to fetch water and after staying awhile there, started back home. On the way back, his
mother met him and told him not to go home because of an incident (the killing of the
decedents) so he went instead to Simeon Navajas' house and stayed there until February 18,
1958.
The prosecution, however, proved that in the early morning of February 3, 1958, Rotor was with
Maximo Caa fetching water in the spring. On their way home, they met appellants Bautista and
Matchoca. The latter gave Rotor a carbine magazine with bullets, saying: "Here is the magazine
of the bullets and give it to Sulpicio de la Cerna." And appellant Bautista said: "Please hurry.
Give it to Sulpicio de la Cerna because we will follow later on." Shortly afterwards, Caa went
with him to Sulpicio's house where he gave the magazine to Sulpicio, saying: "Here are some
bullets supposed to be given to you."
53

Rotor was seen outside downstairs of Sulpicio's house later that morning by Margarito and
Gumercindo Cabizares. After Sulpicio had fired at Rafael, Rotor got the pistol from appellant
Libumfacil and fired also at Rafael.
54
This appellant was also seen by Romualdo, Ursula and
Segundino Cabizares as among those who arrived at Demetrio's house.
55
When Ursula
Cabizares alighted from the house, she saw Rotor outside holding a pistol which he gave to
Libumfacil commenting that it was stuck.
56
After the killing of the decedents, Romualdo
Cabizares saw him with the group following the cadaver of Casiano Cabizares which was being
brought near Sulpicio's burned house.
57

In the face of the overwhelming positive identification of six prosecution witnesses, Rotors
uncorroborated alibi must fail. Although he was not present or did not participate in the meeting
of February 2, 1968, his presence in the situs of the shootings on February 3, 1958 was not
merely passive. His active participation shooting at Rafael and carrying a pistol which has
a direct connection with the criminal design against Rafael Cabizares makes him a principal by
indirect conspiracy, not an accomplice only. Motive is not wanting. Rotor admitted that his wife
is the sister of Sulpicio's wife
58
and the evidence shows that his father had a land dispute with
Rafael Cabizares and was a respondent in the case before the Agrarian Court.
59

Appellant Bautista claims that on February 2, 1958, he left Barrio Cebuano for Tupi (5 kms.
away) to get a truck to load his corn. That afternoon, he returned to Cebuano where they loaded
corn but he could not return to Tupi as the truck would not start, so he slept at home. Early the
next day, February 3, 1958, they pushed the truck to start it. Later, appellant Matchoca arrived
and helped them. He also rode in the truck but upon reaching an uphill road, it stopped again.
They were able to recharge its batteries from a tractor that happened to pass by. They
continued the trip and finally arrived in the poblacion of Tupi at about 8:00 A.M. Several months
later, while he was at Sergio Rotor's house, his child told him that a P.C. soldier was waiting at
home, so instead of going home, he had a conference with Andres Abapo, Ramon Alquizar,
Roberto Matchoca (son of Severino) and Agapito Avellana. They all decided to proceed to Tupi
and surrender to the Mayor.
Appellant Matchoca related the same incident told by Bautista regarding the trip to Tupi. He
then claimed to have returned to Barrio Cebuano about noontime and there learned of the
incident. The next day, he evacuated his family to avoid trouble.
The prosecution, however, has established that these two appellants were in the meeting held
in Abapo's house on February 2, 1958. They openly participated therein. Their meeting with
appellant Rotor early the following morning has also been established thru the testimony of
Maximo Caa.
These two were also seen outside Sulpicio's house. Bautista was carrying a bolo and a cane
and was heard shouting at Rafael thus: "Rafael, you cannot reach the trial because we will kill
you."
60
Gumercindo Cabizares also heard Matchoca shouting: "Go ahead, shoot. We will kill him
so that he will not reach the day of the hearing."
61

Bautista and Matchoca were among those who went to Demetrio's house.
62
The former thrust
his bolo thru the bamboo wallings hitting Segundino Cabizares.
63
When Ursula Cabizares came
down from the house, she saw Bautista holding a bolo.
64
Romualdo, on the other hand, claimed
having seen him holding a firearm.
65
After the killings had taken place, Bautista went with the
group that proceeded back to Sulpicio's burned house whereas Matchoca marched with the
other group headed for Rafael's house.
66

The positive identification of the several prosecution witnesses must prevail over the alibis
proferred by these appellants. Their presence and active participation in the meeting in Abapo's
house make them actual conspirators in the killing of Rafael. They were also present and
zealously participating in the execution of their criminal design, giving a carbine magazine and
instructions to appellant Rotor, threatening Rafael and giving encouragement to Sulpicio to
shoot at the latter. They were among those who laid siege to Demetrio's house and left together
with the others after finally accomplishing their criminal deeds as agreed upon. Appellants
Bautista and Matchoca are therefore also liable as co-principals in Rafael's murder. Regarding
motive, it was proved that both were among those involved in the land conflict with Rafael
Cabizares and were among the respondents in the case before the Agrarian Court.
Appellant Libumfacil's story is that in the morning of February 3, 1958 he was in the Menzi Area
about 6 kilometers from Barrio Cebuano. That afternoon, he returned to the poblacion of Tupi.
To corroborate him, Lauro Esconde stated that he saw Libumfacil that day working on the
latter's farm lot in the Menzi area.
However, Maximo Caa saw appellant Libumfacil outside Sulpicio's house when the former
arrived there with appellant Rotor in the morning of February 3, 1958. Libumfacil had a pistol
which he also fired at Rafael.
67
Gumercindo Cabizares also saw him holding a pistol which he
gave to Rotor who then took a shot at Rafael.
68

Appellant Libumfacil was seen by Caa again among those who went with the other accused
downhill from Sulpicio's house to Demetrio's house.
69
The other prosecution witnesses saw him
also around Demetrio's house, armed with a pistol.
70
He was among those who stoned the
house.
71
When Ursula Cabizares alighted therefrom, she saw appellant Libumfacil outside,
conversing with Rotor and receiving from the latter a pistol which had gotten stuck. After the
incidents in Demetrio's house, Libumfacil went with appellants Rotor and Bautista to Sulpicio's
burned house.
72

Libumfacil's alibi, though corroborated, cannot overcome the positive identification of the eight
prosecution witnesses who saw him. Although he was not present in Abapo's house on
February 2, 1958, he was present at Sulpicio's house and in the premises of Demetrio's house
with the other accused and appellants. He was armed, had fired at Rafael also, and took part in
the stoning of Demetrio's house where Rafael was brought. His actuations manifest that he was
aware of the criminal design of the original conspirators that he approved of it and carried it out,
thus showing that his presence at the scene of the crime was not merely passive.
Consequently, he is a co-principal in Rafael's murder. And motive is not wanting. It was
established that his mother had a land conflict with Rafael
73
and that his step-father Diosdado
Esperanza was one of the respondents in the case before the Agrarian Court.
We find therefore all five appellants guilty as co-principals in the murder of Rafael Cabizares.
The aggravating circumstance of treachery, applicable against appellant Sulpicio de la Cerna
only, is offset by his voluntary surrender after the incident. This mitigating circumstance however
can not benefit the remaining appellants who did not voluntarily surrender. For all the
appellants, therefore, the penalty for Rafael Cabizares' murder must be imposed in the medium
period. For the killing of Casiano Cabizares, appellant Sulpicio de la Cerna must be acquitted.
WHEREFORE, the judgment appealed from is modified as follows:
(a) Appellants Sulpicio de la Cerna, Godofredo Rotor, Antonio Bautista, Severino
Matchoca and Teodoro Libumfacil are hereby found guilty as principals for the murder of
Rafael Cabizares and sentenced to each suffer reclusion perpetua, to indemnify, jointly
and severally, the heirs of Rafael Cabizares the sum of P6,000.00 and to pay the costs;
(b) Appellant Sulpicio de la Cerna is hereby acquitted for the murder of Casiano
Cabizares.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.


Footnotes
1
Originally, there were two informations but upon motion of the accused, they were
consolidated and jointly tried in the same proceedings.
2
Sec. 10, Rule 113, now Rule 117, Rules of Court; Oca v. Jimenez, L-17777, June 29,
1962.
3
Exhs. A-B and E-F.
4
See Exh. T.
5
Exhs. N-1, N-2 and O.
6
Exh. B.
7
The flooring was about 5 ft. high from the ground (t.s.n. Millares 842.).
8
T.s.n. (Ibero) p. 960.
9
T.s.n. (Ibero) pp. 88-89; 193.
10
T.s.n. (Ibero) pp. 38, 51-52 .
11
Pat. Absalon Tabar, t.s.n. (Ibero) p. 937.
12
People v. Constantino, L-23558, Aug. 10, 1967.
13
T.s.n. (Ibero) pp. 129-130.
14
See Appellant's brief, p. 154.
15
Maximo Caa testified that a person inside the corn stalks could not be seen (t.s.n.
[Ibero] p. 274).
16
T.s.n. (Ibero) p. 167.
17
See Exh. P.
18
T.s.n. (Ibero) p. 529.
19
T.s.n. (Ibero) pp. 569-570.
20
T.s.n. (Ibero) pp. 454-455; 473-475.
21
T.s.n. (Ibero) pp. 490-491.
22
T.s.n. (Ibero) p. 498.
23
T.s.n. (Ibero) p. 67.
24
T.S.n. (Ibero) pp. 98-101.
25
T.s.n. (Ibero) pp. 107-108.
26
T.s.n. (Ibero) p. 104.
27
T.s.n. (Ibero) p. 430.
28
T.s.n. (Ibero) p. 410.
29
T.s.n. (Ibero) p. 414.
30
T.s.n. (Ibero) p. 412, .
31
T.s.n. (Ibero) pp. 79, 110, 308-309, 408-409, 449, 545, 569-570; (Millares), p. 10.
32
T.s.n. (Ibero) pp. 80, 418.
33
T.s.n. (Ibero) pp. 451-452.
34
T.S.n. (Ibero) p. 339.
35
T.s.n. (Ibero) p. 347.
36
T.s.n. (Ibero) pp. 345-346.
37
T.s.n. (Ibero) pp. 144, 519-520.
38
T.s.n. (Ibero) p. 41.
39
T.s.n. (Ibero) pp. 43-45.
40
T.s.n. (Ibero) pp. 43, 518.
41
T.s.n. (Ibero) p. 556.
42
See U.S. v. Baluyot, 40 Phil. 385.
43
T.s.n. (Ibero) p. 50.
44
T.s.n. (Millares) pp. 73, 75.
45
People v. Urbina, 97 Phil. 515; People v. Alcaraz, 103 Phil. 533.
46
T.s.n. (Ibero) pp. 1126-1189.
47
T.s.n. (Ibero) pp. 331-332; 558-559.
48
T.s.n. (Ibero) p. 1189.
49
T.s.n. (Ibero) p. 1186.
50
T.s.n. (Millares) pp. 107-108.
51
U.S. v. Cornejo, 28 Phil. 457; People v. Bangug 52 Phil. 87.
52
People v. Hamiana, 89 Phil. 225; People v. Daligdig, 89 Phil. 598; People v. Umali, 96
Phil. 185; People v. Dueas, L-15307, May 30, 1961; See also I Reyes, The Rev. Penal
Code, 432-433.
53
T.s.n. (Ibero) pp. 205-209.
54
T.s.n. (Ibero) pp. 366-368, 403, 539, 542.
55
T.s.n. (Ibero) pp. 169-170, 311; (Millares) pp. 10, 25.
56
T.s.n. (Ibero) pp. 316, 345-346, 354; Romualdo also saw Rotor holding a firearm, t.s.n.
(Ibero) p. 170.
57
T.s.n. (Ibero) p. 129.
58
T.s.n. (Ibero) p. 744.
59
See Exhs. T and N-1.
60
T.s.n. (Ibero) pp. 366-367; 539, 542-543.
61
T.S.n. (Ibero) pp. 543, 565.
62
T.s.n. (Ibero) pp. 218-219, 312-A-313, 473; (Millares) pp. 10, 25.
63
T.s.n. (Millares) p. 13.
64
T.s.n. (Ibero) pp. 316, 318.
65
T.s.n. (Ibero) pp. 169-170.
66
T.s.n. (Ibero) pp. 129-130.
67
T.s.n. (Ibero) pp. 210, 259-262.
68
T.s.n. (Ibero) pp. 539, 542.
69
T.s.n. (Ibero) p. 270.
70
T.s.n. (Ibero) pp. 62, 70, 215, 312-,A 474; (Millares) pp. 10, 25.
71
T.s.n. (Ibero) p. 169.
72
T.s.n. (Ibero) p. 129.
73
T.s.n. (Ibero) p. 765.

G.R. No. L-20911 October 30, 1967
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SULPICIO DE LA CERNA, ET AL., defendants.
SULPICIO DE LA CERNA, SERAPIO MAQUILING, TEODORO LIBUMFACIL, GODOFREDO
ROTOR, SEVERINO MATCHOCA, and ANTONIO BAUTISTA, defendants-appellants.
Godofredo Galindez for defendants-appellants.
Office of the Solicitor General for plaintiff-appellee.
BENGZON, J.P., J .:
Sixteen persons, among them herein appellants, were indicted by the provincial fiscal in the
Court of First Instance of Cotabato for double murder for the fatal shooting of Rafael and
Casiano Cabizares,
1
father and son, in Barrio Cebuano, municipality of Tupi, province of
Cotabato, on February 3, 1958. All pleaded not guilty.
In the course of the trial, after the prosecution had rested the People's case, the accused filed a
motion to dismiss on the ground, inter alia, that the fiscal, after conducting his own preliminary
investigation, included in the charge the other accused who were already dropped therefrom by
the Municipal Court. The trial court denied said motion but acquitted accused Gaspar Bautista,
Agapito Avellana, Cesar Abapo and Eriberto Matchoca for insufficiency of evidence against
them.
The defense then presented its evidence. While at this stage, accused Segundo de la Cerna
died and the charge against him was dropped.
After trial, the lower court, on January 3, 1962 promulgated its decision. Acquitted were
Guillermo Esperanza, Concordio Pardillo, Deogracias Pardillo, Andres Abapo and Joaquin
Libumfacil.
Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling,
as principals, and Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro
Libumfacil, as accomplices.
For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and Serapio
Maquiling as principals, and Ramon Alquizar as accessory.
A motion to reconsider by the convicted accused failed to move the lower court. So the said
accused followed up with their notice of appeal. Two days later accused Ramon Alquizar was
allowed to withdraw his intended appeal. And during the pendency of the appeal in this Court,
accused Serapio Maquiling moved to withdraw his appeal also, and this was granted on August
8, 1967.
The present appeal, therefore, involves only Sulpicio de la Cerna as principal for the killing of
both Rafael and Casiano Cabizares; and Teodoro Libumfacil, Godofredo Rotor, Severino
Matchoca and Antonio Bautista asaccomplices for the killing of Rafael Cabizares.
The first question is procedural. It appears that when the municipal court finished with the
preliminary investigation, it opined that only appellant Sulpicio de la Cerna was guilty while the
rest of the accused were not. The fiscal, however, without seeking a review of the findings of the
court, conducted his own investigation and, afterwards, indicted all the accused. It is contended
that this was serious error. The objection, however, was raised only after the prosecution had
already rested its case. Hence, whatever procedural defect there was, had been waived by the
appellants by their failure to raise it before entering their pleas.
2

Appellants next assail the lower court for relying on the prosecution witnesses who gave, in
substance, the following narration of facts and circumstances:
Early in the morning of February 3, 1958, Rafael Cabizares, accompanied by his wife, Hospicia,
his brothers Margarito and Romualdo, and his sons Gumercindo, Marcelo, Casiano, Juan and
Lamberto, left Barrio Cebuano headed for the poblacion of Tupi, Cotabato, bringing five sacks of
corn loaded on a bull cart to be milled in Tupi. Juan, Marcelo and Lamberto, who were all
minors, were then going to school. Upon approaching a hilly part, they had to stop since the
carabao could not pull the bull cart uphill. Rafael then requested his two brothers and his son
Gumercindo to accompany him up the hill and carry on their backs the sacks of corn. With
Rafael leading, the four proceeded uphill.
As the four approached Sulpicio de la Cerna's house on top of the hill and were about to put
down the sacks of corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, who
fell down. Sulpicio then ordered his companions to burn his house so that they would have an
excuse. Meanwhile, Casiano, Gumercindo, Marcelo and Romualdo brought the wounded Rafael
Cabizares to the house of the latter's father, Demetrio, 100 meters away. Felisa Bastismo,
Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time.
After the group reached the house, Rafael's wounds were washed with hot water and then he
was brought inside the third room of the house. Subsequently, appellant Sulpicio and the other
accused arrived at the premises, armed with firearms, bolos and canes. They stoned the house
and trust their bolos thru the bamboo walls and flooring. Finding that there were women inside
the house, the accused ordered them to get out or else they would be killed also. As Felisa
Bastismo and Ursula Cabizares alighted from the besieged house, Marcelo Cabizares followed
them, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he was
able to escape to the nearby forest.
Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he got
from appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room.
At this moment, Casiano Cabizares jumped down from the house thru the kitchen door and ran
away. Serapio Maquiling followed him and shot the latter at the back, killing him a few meters
away from Demetrio's house. Appellant Sulpicio de la Cerna then got back the carbine, climbed
up the house and fired once more at Rafael, who was now lying down on the floor, killing him
finally. Thereafter, the cadaver of Casiano Cabizares was tied to a bamboo pole, carried by
accused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the burned house
of Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael's
house.
The post mortem examination
3
conducted that very same day showed that Casiano Cabizares
died from a gunshot wound, the bullet entering the back and passing out in front, while Rafael
Cabizares sustained three gunshot wounds of entrance, one gunshot exit wound, and one stab
wound. Dr. Bienvenido Garcia, the Municipal Health Officer, explained that the bullet which
caused the first wound located in front, at the left lower abdomen, did not go thru at the back but
split into two parts after entering the body. However, these two parts were already palpable on
the left buttock of the decedent from which they were extracted. The bullet which caused the
second wound located directly at the back lodged in the 11th thoracic vertebra. The third bullet
entered near the left breast and went out at the right lumbar region.
The prosecution also presented proof that prior to the incident, a land dispute arose between
Rafael and some of the accused,
4
and that he had filed complaints
5
with the Agrarian Court
against the latter, the trial of which cases was scheduled on February 10, 1958.
Appellants would have this Court believe that they are innocent. The four appellants convicted
as accomplices insist they were never at the vicinity of the killing. On the other hand, appellant
Sulpicio de la Cerna claims that both Rafael and Casiano were killed in self-defense.
Sulpicio's version of what transpired is this:
In the morning of February 3, 1958, Guillermo Esperanza and Sulpicio de la Cerna had just
roasted corn in the latter's house when Rafael, Casiano, and others, all armed with bolos and
canes, arrived. Rafael demanded of Sulpicio to come down for a confrontation. The latter's
refusal to do so angered Rafael who threw his cane at Sulpicio and ordered his companions to
surround the house, thrust their bolos thru it and burn it. Because the house was on fire, and
fearing that he would be killed, Sulpicio alerted Guillermo Esperanza got his carbine and fired
indiscriminately at his attackers to drive them away. When Rafael and Casiano were hit, their
companions fled. Guillermo Esperanza and Sulpicio then got down from the burning house and
left, passing by the prostrate bodies of the decedents. Sulpicio proceeded to the house of one
Pedro Esperanza to drink water and while there, he saw a jeep coming loaded with policemen
to whom be surrendered himself and his carbine. Expectedly Guillermo Esperanza gave the
same version as above-narrated.
Said appellant's version cannot be accepted. The autopsy reports contradict Sulpicio's claim
that he shot the decedents frontally while he was up in his house. For both deceased each
sustained a gunshot wound directly at the back. Moreover Casiano's wound of entry located
along the 12th rib is lower than the wound of exit located along the 6th rib
6
showing that
the bullet flight path was upwards, not downwards. A gun fired from the elevated flooring
7
of a
house like Sulpicio's, and aimed downwards, could not have caused such wounds. Lastly,
Rafael's cadaver bore a stab wound on the left side. Appellant's version could not account for
this.
While on the one hand nothing was found around the burned house of appellant Sulpicio de la
Cerna, such as the alleged cane thrown by Rafael, nor any other weapon or stones which may
indicate agression or violence, on the other, bloodstains were found inside Demetrio Cabizares'
house
8
and also on the ground at the spot where, according to the prosecution,
9
Casiano fell
when shot by Serapio Maquiling. An empty carbine shell (Exh. I) was also found by Dr. Garcia in
the kitchen. In this regard, his testimony is not hearsay, as appellant contends, for although Dr.
Garcia did not personally pick it up, he saw the empty shell taken from the floor and handed
over to his companions before finally reaching him.
10
While Casiano's body was found near
Sulpicio's burned' house, even appellant's own witness
11
admitted having found Rafael's body
inside Demetrio's house right after the incidents occurred. Appellant's supposition that Rafael's
companions must have returned and carried away his body can hardly be accepted since there
is no reason why they would not also bring back Casiano's body.
Moreover, we find it hard to believe that Sulpicio, after felling the decedents and dispersing the
latter's companions would still leave his house when it was not yet totally burned, as he himself
admitted. The natural thing for him to have done were it true that it was decedents who set
fire to it was to put down the fire and save his house. Anyway his life was no longer in
danger.
Lastly, Sulpicio has more reason to resent and kill Rafael than the latter would have as to him.
The source of the possible motive is the same: land trouble between Rafael Cabizares and
Sulpicio's father, and the ejectment suit instituted before the Agrarian Court against the latter by
the former. Considering that Rafael was the prevailing party in the land dispute before the
NARRA, it is quite hard to believe that he would be the one entertaining a grudge against those
over whom he had prevailed. Rather, it was the accused, who were defeated and who were now
facing an ejectment suit which was set for hearing, that harbored resentment against the
deceased.
Furthermore, all the foregoing considerations fit well into the prosecution's version. We have
gone over the testimonies of the prosecution witnesses and found them credible. That most of
them are related to the victim does not necessarily impair their credibility.
12
Appellants however
invite our attention to inconsistencies and improbabilities allegedly abounding in their
testimonies. We shall consider each witness and their testimonies separately.
1. Romualdo Cabizares He was with his brother Rafael when the latter was shot near
Sulpicio's house and was among those who brought Rafael to their father's (Demetrio) house
100 meters away. He did not go up the house since he had to go back and evacuate his family
to a forest 400 meters away. Having done so, he went back and saw the incidents around
Demetrio's house from a place covered with corn plants just 25 meters away.
Appellants point out that his statements on the whereabouts of Conrado Pardillo were
inconsistent, leading the lower court to disbelieve him and acquit Pardillo. We find no
inconsistency since Pardillo's going to Rafael's house with the other accused was after the
events in Demetrio's premises had taken place.
13
The lower court acquitted Pardillo not because
it disbelieved Romualdo but rather, taking his testimony as true, the court held that the facts
proved were insufficient to tack criminal liability on Pardillo.
14

This witness was able to observe the events around Demetrio's house. Even if the corn plants
where he hid were sparse, because of the 25-meter distance from the accused whose
attentions were focused on Demetrio's house, and considering that he was in a hidden
place
15
while the accused were in the open field, Romualdo could see them without their
noticing him. It is true that the forest where Romualdo took his family was 400 meters away, but
the accused took some time before they followed to Demetrio's house and Romualdo ran
back after hiding his family.
16

2. Margarito Cabizares He was beside his brother Rafael at the hill top when the latter was
shot by Sulpicio. When he tried to hide near some banana clumps, Guillermo Esperanza
stabbed him, hitting him near the left shoulder and causing him to fall unconscious. Shortly later
when he recovered consciousness, he followed Rafael who was being brought to Demetrio's
house but he was told by Rafael to save himself so he went to a forest 400 meters away where
he saw the goings-on around Demetrio's house.
Appellants state that nothing much can be gathered from his testimony. However, they overlook
the obvious fact that Margarito was an eyewitness to the shooting of Rafael near Sulpicio's
house. Although he lost consciousness after being stabbed, it was momentary only, the wound
not being very serious.
17
It was not impossible for him to have observed activities around
Demetrio's house at a distance of 400 meters. Witness Bonifacio Barro corroborates him on this
point.
18
Lastly, he need not be a ballistics expert to recognize gunshot bursts.
3. Gumercindo Cabizares He was with his father Rafael at the hill top. He warned his father
just before Sulpicio fired the carbine. After Rafael was hit, he helped carry him to Demetrio's
house but did not stay there since he was told by Rafael to go to Dadiangas to call the P.C.
Appellants claim that his testimony regarding a conversation with Juan Cabizares on the way
downhill is contradicted by Juan himself who stated that he was not with those who brought
Rafael to Demetrio's house. We fail to see any contradiction. Juan did not deny having
conversed with Gumercindo. And what the latter said was that after meeting Juan, they went
ahead and Juan probably followed behind.
19
We do not think it is stupidity for a son to warn his
father of imminent danger as Gumercindo did and to come to the latter's aid despite
danger. We prefer to consider such behavior as "courage under fire."
4. Marcelo Cabizares He was near the bullcart downhill and when he heard gun shots, he
went uphill. There he helped carry his father Rafael to his grandfather Demetrio's house. After
the accused arrived in the latter's house, the women were ordered to get out. He followed
Ursula Cabizares and Felisa Bastismo on the way down but he was held by Pardillo and boxed
by Serapio Maquiling. Still, he was able to escape.
Appellants point out to two statements of his, one wherein he was able to identify all the
accused and the other, wherein he was able to name only four of them, alleging material
inconsistency. The statements however referred to different situations. The first was when all
the accused arrived at Demetrio's place, and the second statement refers to those whom
Marcelo Cabizares saw when he came down from the house.
20
He was able to run away after
Serapio Maquiling boxed him because he was freed from the hold of Pardillo and Serapio.
21
On
redirect, he clarified that he left Demetrio's house in the morning.
22

5. Juan Cabizares He also stayed with the bullcart downhill and when he heard gun shots, he
went uphill and saw his father wounded. He then followed behind the group carrying Rafael to
Demetrio's house and while inside the house, saw the killing of Rafael and Casiano.
Juan did not lie when he said his father was shot by Sulpicio for altho he did not see the actual
shooting, he had good reasons to conclude that Sulpicio fired the shot since he saw the latter,
shortly after the shooting, holding the carbine which was still pointed at Rafael.
23
Anyway, his
testimony on the point is merely corroborative of the others who were eyewitnesses. He was
able to identify Serapio Maquiling as the one who first shot his father in Demetrio's house
although Serapio was behind the bamboo partition, since there were openings in it enabling one
to see thru and he peeped thru it.
24
The measurements in the third room (3 m x 4 m) are
compatible with Juan's statement that Sulpicio was 1-1/2 m away from Rafael when the third
shot was fired since Sulpicio did not go inside the room but fired from the window
outside.
25
Juan was competent to testify on what occurred outside the house since he was also
peeping thru the slits in the bamboo walls.
26

6. Felisa Bastismo She was the mother of Rafael Cabizares. She was with Ursula Cabizares
and Segundino Cabizares inside Demetrio's house when the wounded Rafael was brought in.
After Rafael's wounds were washed, Felisa went down from the house with Ursula, as ordered
by the accused. And in the corn fields nearby, she witnessed the killing of Casiano.
Appellants make much of Felisa's testimony referring to Rafael's "wounds" when he was
brought in the house, and argue that Rafael had been shot at least twice already. But Felisa did
not examine the wound of Rafael. Neither did she state how many wounds he had. The
substance of her testimony is only that Rafael was wounded when he arrived. As to the
impossibility for the stones to go thru the broken window shutter (Exh. K), Felisa admitted that
she merely heard the sound when they fell on the floor.
27
Surely, appellant cannot seriously
contend that one has to see stones going thru the house to know that it is being stoned.
Anyway, it is not impossible for a large stone hurled against a bamboo shutter to cause a hole
therein measuring 14" x 1 ." And assuming that such hole appears more to have been cut by a
bolo and forced open, Felisa testified that the accused also thrust their bolos thru the walls.
28

It is not impossible for Felisa to have seen Casiano's shooting for she lay flat on the
ground after having witnessed it already.
29
She also explained why she was alone in the corn
fields although she left the house together with Ursula. Being 76 years old, she was slower than
Ursula, and she stumbled while fleeing so she was able to reach up to the corn fields only.
30
As
to Juan's arrival, the testimonies of the other witnesses are uniform that the group carrying
Rafael arrived in Demetrio's house first and Juan, who followed behind, arrived
afterwards.
31
Juan corroborates Felisa that he helped carry Rafael to the third room.
32
Marcelo
probably noticed Juan only after Rafael had been brought to the third room, leading him to say
that Juan arrived after Rafael was brought there.
33

7. Ursula and Segundino Cabizares Both were in Demetrio's house with Felisa Bastismo.
They saw the arrival of the accused and the stoning and thrusting of bolos thru the wallings.
One of the bolos wounded Segundino Cabizares on the left thigh. Ursula Cabizares hid in a
palay container but when they were ordered to get out, she and Felisa Bastismo left and
returned later in the afternoon.
While Ursula was evidently mistaken when she said that Margarito was also in the house, the
error is immaterial. Contrary to appellants' contention, she saw Serapio Maquiling on her way
down the house.
34
As to whether the other accused besides appellant Antonio Bautista were
armed with bolos, she stated she did not know since she only saw the bolo tips penetrating thru
the wallings.
35
Her positive statement that She saw appellant Godofredo Rotor
36
prevails, of
course, over the negative testimony of Maximo Caa.
Appellants argue that since Segundino Cabizares was fearful, he could not have been moving
inside the besieged house of Demetrio, peeping every now and then thru the openings in the
walls and observing the accused. They seem to forget however that different people react
differently even when apprehensive. Thus, Segundino's restlessness inside the house is neither
unnatural or ridiculous to believe.
8. Bonifacio Barro He was with Fiscal Daproza and Sgt. Paladin inside Demetrio's house a
few days after February 3, 1958 and upon orders of the Fiscal, he took out part of the flooring
(Exh. K), the bamboo slatch (Exhs. L and L-1) and the stones (Exhs. M, M-1 and M-2).
His statement that Exhs. M, M-1 and M-2 were some of the stones Fiscal Daproza found on the
roof of Demetrio's house corroborates the other prosecution witnesses who testified that the
accused stoned the house. He also stated that there were other stones inside the house,
corroborating Romualdo Cabizares.
37

9. Dr. Bienvenido Garcia As municipal health officer, he performed the autopsy on Rafael
and Casiano Cabizares on February 3, 1958. He found Casiano's body near the burned house
of Sulpicio de la Cerna, and Rafael's, inside Demetrio's house. In the latter house, he also saw
a bullet hole on the floor (Exh. J-1) and a carbine shell (Exh. 1).
Appellants would cavil on Dr. Garcia's statement that he saw Exh. J (part of the flooring) only in
court. What he said however was that he saw it as cut already from the floor only in court.
38
His
statements as to the room dimensions (3-4 m x 4-5 m) and the distance of Rafael's body to the
partition (1 m or 2 ft.) are approximations only and not exact measurements.
39
A difference of a
few insignificant meters is to be expected. Lastly, his statements that the bullet hole (Exhibit J-1)
was on the floor coincides with Barro's testimony that Exh. J was cut from the flooring.
40

From all the foregoing, it is apparent that the so-charged inconsistencies and improbabilities in
the testimonies are without substantial and significant basis. Hence, the lower court's findings
should stand, especially since they involve an appreciation of the evidence and credibility of the
witnesses.
We now proceed to the criminal liability of the appellants.
The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the
first shot, fired by him, was not attended with treachery since there is evidence that Rafael was
warned by his son Gumercindo just before he was hit in the lower abdomen.
41
However, even
assuming the argument to be tenable, the second shot, by Serapio Maquiling, was definitely
treacherously fired since Rafael was then in the third room of Demetrio's house, wounded and
defenseless. The treachery here has to be independently considered due to the sufficient lapse
of time
42
from the first shot, in which the following events intervened: (1) the bringing of Rafael to
Demetrio's house 100 meters away after being hit; (2) the washing of his wounds and his being
brought to the third room to rest; (3) the arrival of the accused and their ordering the two women
to get out. It was only after the women left that Serapio climbed up the kitchen and fired the
second shot at Rafael.
Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling
since both were acting as co-conspirators pursuant to their understanding in the meeting held
the day before in Andres Abapo's house, as will be shown presently. Anyway, the third shot,
fired by Sulpicio, was treacherously done. Rafael was then flat on the floor and although still
alive, was completely defenseless, having been shot twice already. The portion of Dr. Garcia's
testimony
43
cited by appellants shows that Rafael died after the third shot hit him
Q. After wound No. 1 was inflicted, is it possible that Rafael Cabizares was still
alive?
A. Rafael Cabizares was still alive.
Q. After inflicting wound No. 2, is it possible that Rafael Cabizares was still alive?
A. He was still alive.
Q. When wound No. 3 was inflicted, was he still alive by your conclusion?
A. He was dead.
Q. What makes you conclude that he was already dead when wound No. 3 was
inflicted?
A. Because wound No. 3 is mortal.
thus corroborating Juan Cabizares' testimony that his father was still alive after the second shot
wounded him.
Evident premeditation was also present in this case. The previous plan to kill Rafael Cabizares
was testified to by witness Maximo Caa who was present in the meeting of February 2, 1958,
in the house of Andres Abapo. Of the many persons present, he recognized only appellants
Sulpicio de la Cerna, Antonio Bautista, Severino Matchoca and Serapio Maquiling. Bautista told
the group that the purpose of the meeting was to plan the killing of Rafael Cabizares. Then both
he and Serapio Maquiling signified their willingness to execute it. Appellant Sulpicio also offered
to do it provided his family would be taken care of. To this offer, Bautista and Maquiling replied
that they would take care of Sulpicio's family. Caa testified further that none of those attending
voiced out any objection but all agreed to the plan. Caa was also present in the early morning
of February 3, 1958, when Matchoca, accompanied by Bautista, gave the magazine of bullets to
Godofredo Rotor. He was likewise with the accused when Rafael was shot at the hill top, and
when he (Rafael) and Casiano were killed in Demetrio's place.
However, one year and ten months after he had testified for the prosecution, witness Caa was
presented as a defense witness. As such, he completely retracted on his previous testimony,
explaining that all what he had stated was false since he was not in Tupi on February 2 and 3,
1958. Gaudencio Esperanza, presented to corroborate him, testified that in August, 1958,
Hospicia Cabizares, widow of Rafael, went to the former's house where Caa was staying, and
gave the latter P50.00 to testify falsely for the prosecution. On rebuttal, Hospicia Cabizares
denied this.
44

We have thus two sets of testimonies by Caa completely at variance with each other. Now the
rule is that mere retraction by a prosecution witness does not necessarily vitiate the original
testimony otherwise credible.
45
The proper thing for the trial court to do is to weigh and compare
both testimonies. Here, the lower court, after having done so, accepted Caa's testimony for the
prosecution. In this, it did not err.
Firstly, the original testimony is positive and replete with details, and Caa withstood a long and
thorough cross-examination which could not have been so, if the story were merely fabricated.
Secondly, Caa's narration of the shooting incident was fully corroborated by the other
prosecution witnesses. Lastly, the charged inconsistencies and improbabilities therein are too
insignificant to affect the substance thereof.
On the other hand, in his subsequent testimony,
46
Caa was evasive and most of his answers
were: I don't remember" or "I don't know". His statement that he was in Marbel on February 2
and 3, 1958 is not only uncorroborated but even contradicted by two prosecution witnesses who
saw him with the accused on February 3, 1958.
47
Caa was also in sincere, claiming that his
conscience bothered him greatly but he admitted that he could not sleep only in the
mornings
48
and notwithstanding the serious predicament he was in because of the
inconsistent statements made in open court he was even smiling.
49
Moreover, according to
Gaudencio Esperanza, who is the father-in-law of Serapio Maquiling, Caa was only
constrained to testify falsely when he was bribed by Rafael's widow, Hospicia Cabizares,
sometime in August, 1958. This pretense can not be believed since a month prior to that, or on
July 28, 1958, Caa had already executed an affidavit (Exh. V) incriminating the appellants. It
also appears highly improbable for Rafael's widow to go to the house of a relative of the
accused and in his presence openly bribe Caa, a resident therein. Lastly, it is hard to believe
that although Gaudencio Esperanza knew of this incident, he told the defense counsel about it
only after Caa had already testified for the defense and had been incarcerated to face a
charge of perjury.
50
The impulse of a man similarly situated would have been to relate such
matter at once to his accused relatives. Gaudencio's failure to do so makes of his story a
worthless fabrication.
There being a previous direct conspiracy one day before the killing, evident premeditation is
duly established.
51
This qualifying circumstance is further buttressed by the following actuations
of appellant on February 3, 1958: (1) Upon seeing Rafael near his house, Sulpicio told his
companions to get ready since the one they were awaiting was there already. And then he shot
at Rafael. (2) As Rafael was being brought to Demetrio's house, Sulpicio ordered his
companions to burn his house so they would have an excuse already. (3) With the other
appellants, he pursued the wounded Rafael to Demetrio's house where after they had stoned
the same and thrust their bolos thru its wallings, they ordered the women folk to leave lest they
be killed also; and (4) after Serapio had already shot at Rafael, Sulpicio still fired a third shot,
finally killing Rafael. All these still overtly show appellant's determination to end Rafael's life.
The killing, therefore, was properly qualify as murder.
However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares
notwithstanding a conspiracy between him and Serapio Maquiling. The conspiracy was to kill
Rafael only and no one else. Nothing was said or agreed upon about the members of Rafael's
family. In fact, in executing their plan appellants let the two women inside Demetrio's house
leave unhurt and they did no harm to the remaining companions of Rafael in the house. Their
target was solely Rafael Cabizares. And the rule has always been that co-conspirators are liable
only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of
the co-conspirators or which are not the necessary and logical consequence of the intended
crime, only the actual perpetrators are liable.
52
Here, only Serapio killed Casiano Cabizares. The
latter not even going to the aid of his father Rafael but was fleeing away when shot.
Although Serapio got the carbine from Sulpicio, the latter cannot be considered a principal by
indispensable cooperation or an accomplice. There is no evidence at all that Sulpicio was aware
Serapio would use the rifle to kill Casiano. Presumably, he gave the carbine to Serapio for him
to shoot Rafael only as per their agreement. Neither is there concrete proof that Sulpicio abetted
the shooting of Casiano. Sulpicio might have been liable if after the shooting of Rafael, Serapio
returned the carbine to him but upon seeing Casiano fleeing, immediately asked again for the
carbine and Sulpicio voluntarily gave it to him. Serapio's criminal intention then would be
reasonably apparent to Sulpicio and the latter's giving back of the rifle would constitute his
assent thereto. But such was not the case. Sulpicio, therefore, must be acquitted for the killing
of Casiano Cabizares.
Appellants Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil all
put up alibi as their defense. This the trial court rejected but it held them liable as accomplices
only, finding reasonable doubt on their guilt as co-principals. Appellants would again advance
their respective alibis here.
Appellant Rotor claims that at dawn on February 3, 1957, he went alone to the spring in Barrio
Cebuano to fetch water and after staying awhile there, started back home. On the way back, his
mother met him and told him not to go home because of an incident (the killing of the
decedents) so he went instead to Simeon Navajas' house and stayed there until February 18,
1958.
The prosecution, however, proved that in the early morning of February 3, 1958, Rotor was with
Maximo Caa fetching water in the spring. On their way home, they met appellants Bautista and
Matchoca. The latter gave Rotor a carbine magazine with bullets, saying: "Here is the magazine
of the bullets and give it to Sulpicio de la Cerna." And appellant Bautista said: "Please hurry.
Give it to Sulpicio de la Cerna because we will follow later on." Shortly afterwards, Caa went
with him to Sulpicio's house where he gave the magazine to Sulpicio, saying: "Here are some
bullets supposed to be given to you."
53

Rotor was seen outside downstairs of Sulpicio's house later that morning by Margarito and
Gumercindo Cabizares. After Sulpicio had fired at Rafael, Rotor got the pistol from appellant
Libumfacil and fired also at Rafael.
54
This appellant was also seen by Romualdo, Ursula and
Segundino Cabizares as among those who arrived at Demetrio's house.
55
When Ursula
Cabizares alighted from the house, she saw Rotor outside holding a pistol which he gave to
Libumfacil commenting that it was stuck.
56
After the killing of the decedents, Romualdo
Cabizares saw him with the group following the cadaver of Casiano Cabizares which was being
brought near Sulpicio's burned house.
57

In the face of the overwhelming positive identification of six prosecution witnesses, Rotors
uncorroborated alibi must fail. Although he was not present or did not participate in the meeting
of February 2, 1968, his presence in the situs of the shootings on February 3, 1958 was not
merely passive. His active participation shooting at Rafael and carrying a pistol which has
a direct connection with the criminal design against Rafael Cabizares makes him a principal by
indirect conspiracy, not an accomplice only. Motive is not wanting. Rotor admitted that his wife
is the sister of Sulpicio's wife
58
and the evidence shows that his father had a land dispute with
Rafael Cabizares and was a respondent in the case before the Agrarian Court.
59

Appellant Bautista claims that on February 2, 1958, he left Barrio Cebuano for Tupi (5 kms.
away) to get a truck to load his corn. That afternoon, he returned to Cebuano where they loaded
corn but he could not return to Tupi as the truck would not start, so he slept at home. Early the
next day, February 3, 1958, they pushed the truck to start it. Later, appellant Matchoca arrived
and helped them. He also rode in the truck but upon reaching an uphill road, it stopped again.
They were able to recharge its batteries from a tractor that happened to pass by. They
continued the trip and finally arrived in the poblacion of Tupi at about 8:00 A.M. Several months
later, while he was at Sergio Rotor's house, his child told him that a P.C. soldier was waiting at
home, so instead of going home, he had a conference with Andres Abapo, Ramon Alquizar,
Roberto Matchoca (son of Severino) and Agapito Avellana. They all decided to proceed to Tupi
and surrender to the Mayor.
Appellant Matchoca related the same incident told by Bautista regarding the trip to Tupi. He
then claimed to have returned to Barrio Cebuano about noontime and there learned of the
incident. The next day, he evacuated his family to avoid trouble.
The prosecution, however, has established that these two appellants were in the meeting held
in Abapo's house on February 2, 1958. They openly participated therein. Their meeting with
appellant Rotor early the following morning has also been established thru the testimony of
Maximo Caa.
These two were also seen outside Sulpicio's house. Bautista was carrying a bolo and a cane
and was heard shouting at Rafael thus: "Rafael, you cannot reach the trial because we will kill
you."
60
Gumercindo Cabizares also heard Matchoca shouting: "Go ahead, shoot. We will kill him
so that he will not reach the day of the hearing."
61

Bautista and Matchoca were among those who went to Demetrio's house.
62
The former thrust
his bolo thru the bamboo wallings hitting Segundino Cabizares.
63
When Ursula Cabizares came
down from the house, she saw Bautista holding a bolo.
64
Romualdo, on the other hand, claimed
having seen him holding a firearm.
65
After the killings had taken place, Bautista went with the
group that proceeded back to Sulpicio's burned house whereas Matchoca marched with the
other group headed for Rafael's house.
66

The positive identification of the several prosecution witnesses must prevail over the alibis
proferred by these appellants. Their presence and active participation in the meeting in Abapo's
house make them actual conspirators in the killing of Rafael. They were also present and
zealously participating in the execution of their criminal design, giving a carbine magazine and
instructions to appellant Rotor, threatening Rafael and giving encouragement to Sulpicio to
shoot at the latter. They were among those who laid siege to Demetrio's house and left together
with the others after finally accomplishing their criminal deeds as agreed upon. Appellants
Bautista and Matchoca are therefore also liable as co-principals in Rafael's murder. Regarding
motive, it was proved that both were among those involved in the land conflict with Rafael
Cabizares and were among the respondents in the case before the Agrarian Court.
Appellant Libumfacil's story is that in the morning of February 3, 1958 he was in the Menzi Area
about 6 kilometers from Barrio Cebuano. That afternoon, he returned to the poblacion of Tupi.
To corroborate him, Lauro Esconde stated that he saw Libumfacil that day working on the
latter's farm lot in the Menzi area.
However, Maximo Caa saw appellant Libumfacil outside Sulpicio's house when the former
arrived there with appellant Rotor in the morning of February 3, 1958. Libumfacil had a pistol
which he also fired at Rafael.
67
Gumercindo Cabizares also saw him holding a pistol which he
gave to Rotor who then took a shot at Rafael.
68

Appellant Libumfacil was seen by Caa again among those who went with the other accused
downhill from Sulpicio's house to Demetrio's house.
69
The other prosecution witnesses saw him
also around Demetrio's house, armed with a pistol.
70
He was among those who stoned the
house.
71
When Ursula Cabizares alighted therefrom, she saw appellant Libumfacil outside,
conversing with Rotor and receiving from the latter a pistol which had gotten stuck. After the
incidents in Demetrio's house, Libumfacil went with appellants Rotor and Bautista to Sulpicio's
burned house.
72

Libumfacil's alibi, though corroborated, cannot overcome the positive identification of the eight
prosecution witnesses who saw him. Although he was not present in Abapo's house on
February 2, 1958, he was present at Sulpicio's house and in the premises of Demetrio's house
with the other accused and appellants. He was armed, had fired at Rafael also, and took part in
the stoning of Demetrio's house where Rafael was brought. His actuations manifest that he was
aware of the criminal design of the original conspirators that he approved of it and carried it out,
thus showing that his presence at the scene of the crime was not merely passive.
Consequently, he is a co-principal in Rafael's murder. And motive is not wanting. It was
established that his mother had a land conflict with Rafael
73
and that his step-father Diosdado
Esperanza was one of the respondents in the case before the Agrarian Court.
We find therefore all five appellants guilty as co-principals in the murder of Rafael Cabizares.
The aggravating circumstance of treachery, applicable against appellant Sulpicio de la Cerna
only, is offset by his voluntary surrender after the incident. This mitigating circumstance however
can not benefit the remaining appellants who did not voluntarily surrender. For all the
appellants, therefore, the penalty for Rafael Cabizares' murder must be imposed in the medium
period. For the killing of Casiano Cabizares, appellant Sulpicio de la Cerna must be acquitted.
WHEREFORE, the judgment appealed from is modified as follows:
(a) Appellants Sulpicio de la Cerna, Godofredo Rotor, Antonio Bautista, Severino
Matchoca and Teodoro Libumfacil are hereby found guilty as principals for the murder of
Rafael Cabizares and sentenced to each suffer reclusion perpetua, to indemnify, jointly
and severally, the heirs of Rafael Cabizares the sum of P6,000.00 and to pay the costs;
(b) Appellant Sulpicio de la Cerna is hereby acquitted for the murder of Casiano
Cabizares.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.


Footnotes
1
Originally, there were two informations but upon motion of the accused, they were
consolidated and jointly tried in the same proceedings.
2
Sec. 10, Rule 113, now Rule 117, Rules of Court; Oca v. Jimenez, L-17777, June 29,
1962.
3
Exhs. A-B and E-F.
4
See Exh. T.
5
Exhs. N-1, N-2 and O.
6
Exh. B.
7
The flooring was about 5 ft. high from the ground (t.s.n. Millares 842.).
8
T.s.n. (Ibero) p. 960.
9
T.s.n. (Ibero) pp. 88-89; 193.
10
T.s.n. (Ibero) pp. 38, 51-52 .
11
Pat. Absalon Tabar, t.s.n. (Ibero) p. 937.
12
People v. Constantino, L-23558, Aug. 10, 1967.
13
T.s.n. (Ibero) pp. 129-130.
14
See Appellant's brief, p. 154.
15
Maximo Caa testified that a person inside the corn stalks could not be seen (t.s.n.
[Ibero] p. 274).
16
T.s.n. (Ibero) p. 167.
17
See Exh. P.
18
T.s.n. (Ibero) p. 529.
19
T.s.n. (Ibero) pp. 569-570.
20
T.s.n. (Ibero) pp. 454-455; 473-475.
21
T.s.n. (Ibero) pp. 490-491.
22
T.s.n. (Ibero) p. 498.
23
T.s.n. (Ibero) p. 67.
24
T.S.n. (Ibero) pp. 98-101.
25
T.s.n. (Ibero) pp. 107-108.
26
T.s.n. (Ibero) p. 104.
27
T.s.n. (Ibero) p. 430.
28
T.s.n. (Ibero) p. 410.
29
T.s.n. (Ibero) p. 414.
30
T.s.n. (Ibero) p. 412, .
31
T.s.n. (Ibero) pp. 79, 110, 308-309, 408-409, 449, 545, 569-570; (Millares), p. 10.
32
T.s.n. (Ibero) pp. 80, 418.
33
T.s.n. (Ibero) pp. 451-452.
34
T.S.n. (Ibero) p. 339.
35
T.s.n. (Ibero) p. 347.
36
T.s.n. (Ibero) pp. 345-346.
37
T.s.n. (Ibero) pp. 144, 519-520.
38
T.s.n. (Ibero) p. 41.
39
T.s.n. (Ibero) pp. 43-45.
40
T.s.n. (Ibero) pp. 43, 518.
41
T.s.n. (Ibero) p. 556.
42
See U.S. v. Baluyot, 40 Phil. 385.
43
T.s.n. (Ibero) p. 50.
44
T.s.n. (Millares) pp. 73, 75.
45
People v. Urbina, 97 Phil. 515; People v. Alcaraz, 103 Phil. 533.
46
T.s.n. (Ibero) pp. 1126-1189.
47
T.s.n. (Ibero) pp. 331-332; 558-559.
48
T.s.n. (Ibero) p. 1189.
49
T.s.n. (Ibero) p. 1186.
50
T.s.n. (Millares) pp. 107-108.
51
U.S. v. Cornejo, 28 Phil. 457; People v. Bangug 52 Phil. 87.
52
People v. Hamiana, 89 Phil. 225; People v. Daligdig, 89 Phil. 598; People v. Umali, 96
Phil. 185; People v. Dueas, L-15307, May 30, 1961; See also I Reyes, The Rev. Penal
Code, 432-433.
53
T.s.n. (Ibero) pp. 205-209.
54
T.s.n. (Ibero) pp. 366-368, 403, 539, 542.
55
T.s.n. (Ibero) pp. 169-170, 311; (Millares) pp. 10, 25.
56
T.s.n. (Ibero) pp. 316, 345-346, 354; Romualdo also saw Rotor holding a firearm, t.s.n.
(Ibero) p. 170.
57
T.s.n. (Ibero) p. 129.
58
T.s.n. (Ibero) p. 744.
59
See Exhs. T and N-1.
60
T.s.n. (Ibero) pp. 366-367; 539, 542-543.
61
T.S.n. (Ibero) pp. 543, 565.
62
T.s.n. (Ibero) pp. 218-219, 312-A-313, 473; (Millares) pp. 10, 25.
63
T.s.n. (Millares) p. 13.
64
T.s.n. (Ibero) pp. 316, 318.
65
T.s.n. (Ibero) pp. 169-170.
66
T.s.n. (Ibero) pp. 129-130.
67
T.s.n. (Ibero) pp. 210, 259-262.
68
T.s.n. (Ibero) pp. 539, 542.
69
T.s.n. (Ibero) p. 270.
70
T.s.n. (Ibero) pp. 62, 70, 215, 312-,A 474; (Millares) pp. 10, 25.
71
T.s.n. (Ibero) p. 169.
72
T.s.n. (Ibero) p. 129.
73
T.s.n. (Ibero) p. 765.

[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.
D E C I S I O N
CORONA, J .:
Before us on automatic review is the decision
[1]
of the Regional Trial Court of Davao
City, Branch 31, in Criminal Case No. 45,283-2000 convicting appellant Francisco
Dacillo y Timtimalias 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 appellants 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 appellants guilt, the prosecution presented the following witnesses:
Charlita Tallada, the victims mother; Patricia Turlao, the victims aunt; appellant
Dacillos 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 appellants 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 appellants, 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 appellants house calling Psst, psst . . .
Thinking the call was meant for her, she turned but instead saw Rosemarie walking
towards and entering appellants 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 appellants 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 womans personal belongings to barangay
tanod Allan Castaares 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 Rosemaries
already decomposing body.
[12]

At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering
seashells under appellants house when they saw droplets of blood and pus dripping
from appellants 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 appellants 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
victims 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 Rosemaries 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 2
nd
, 3
rd
, 4
th
, 5
th
, 6
th
and 7
th
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 Rosemaries 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 brothers 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 Rosemaries 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 appellants 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, appellants
admission that he participated in its commission by holding Rosemaries 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 appellants participation in the criminal resolve
by his own admission that, right after he was told by Pacot to close the door, he held
down Rosemaries 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 victims body; it was in fact
appellants idea to pour concrete on the body, prevailing over Pacots 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
court a 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 accuseds
responsibility therefor.
[28]

The award of P50,000 as moral damages is proper, supported as it was by the
testimony of Charlita Tallada, the victims mother, that Rosemaries 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.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.



[1]
Penned by Judge Wenceslao E. Ibabao.
[2]
Rollo, p. 30.
[3]
TSN, March 12, 2001 pp. 32-34.
[4]
Ibid., p. 36.
[5]
TSN, March 15, 2001, pp. 98-99.
[6]
Ibid., p. 101.
[7]
TSN, April 2, 2001, pp. 134-137.
[8]
TSN, March 12, 2001, p. 40.
[9]
Ibid., pp. 40-43.
[10]
TSN, April 2, 2001, pp. 215-217.
[11]
TSN, April 25, 2001, p. 244.
[12]
Ibid., pp. 17-18.
[13]
TSN, April 2, 2001, pp. 138-141.
[14]
Exhibits B, C and D, TSN, April 2, 2001, pp. 168-171.
[15]
Exhibit J, Folder of exhibits, p.10.
[16]
TSN, April 2, 2001, pp. 194-197, 203.
[17]
TSN, May 2, 2001, pp. 280-283.
[18]
Rollo, pp. 161-162.
[19]
Rollo, pp. 15, 19.
[20]
Reyes, The Revised Penal Code Annotated, 15
th
ed. 2001, citing People vs. Ong Chiat Lay, 60 Phil.
788, 790 [1934]; People vs. Tamayo, 44 Phil. 38, 45-46 [1922].
[21]
People vs. San Luis, 86 Phil. 485, 497 [1950]; People vs. Carpio, 191 SCRA 108, 118 [1990]; People
vs. Cruz, Jr., 191 SCRA 127, 135 [1990]; People vs. Sazon, 189 SCRA 700, 713 [1990].
[22]
People vs. Talla, 181 SCRA 133, 148 [1990].
[23]
People vs. Pablo, 349 SCRA 79 [2001].
[24]
People vs. Asis, 286 SCRA 64 [1998].
[25]
Exhibit J, Folder of exhibits, p.10.
[26]
People vs. Martinada, 194 SCRA 36, 45 [1991].
[27]
People vs. Callet, 382 SCRA 43 [2002].
[28]
People vs. Cayago, 312 SCRA 623 [1999].
[29]
TSN, March 5, 2001, p. 12.
[30]
People vs. Abrazaldo, 397 SCRA 137 [2003].
[31]
363 SCRA 621, 625 [2001].
[32]
People vs. Padlan, 290 SCRA 388, 406 [1998]; See also People vs. Nicolas, 400 SCRA 217, 228
[2003] citing People vs. Catubig, 363 SCRA 621, 635 [2001].


PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,




- versus -




RESTITUTO CARANDANG,
HENRY MILAN AND
JACKMAN CHUA,
Accused-Appellants.
G.R. No. 175926

Present:

CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
MENDOZA,
*
JJ.

Promulgated:


July 6, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


D E C I S I O N


LEONARDO-DE CASTRO, J .:


This is an appeal by Henry Milan and Jackman Chua from the Decision
[1]
of
the Court of Appeals in CA-G.R. CR.-H.C. No. 01934 dated May 10, 2006. Said
Decision affirmed that of the Regional Trial Court (RTC) convicting them and one
Restituto Carandang for two counts of murder and one count of frustrated murder
in Criminal Cases No. Q-01-100061, Q-01-100062 and Q-01-100063, the
Informations for which read:


Criminal Case No. Q-01-100061

That on or about the 5
th
day of April 2001, in Quezon City, Philippines,
the above-named accused, conspiring together, confederating with and mutually
helping one another, did then and there, willfully, unlawfully and feloniously with
intent to kill, taking advantage of superior strength and with treachery and evident
premeditation, attack, assault and employ personal violence upon the person of
PO2 DIONISIO ALONZO Y SALGO, by then and there shooting the latter
several times with the use of a firearm of unknown caliber hitting him on the
different parts of the body, thereby inflicting upon him serious and mortal gunshot
wounds which were the direct and immediate cause of his death, to the damage
and prejudice of the immediate heirs of said PO2 DIONISIO ALONZO Y
SALGO.

That the crime was committed in contempt of or with insult to the public
authorities.
[2]



Criminal Case No. Q-01-100062

That on or about the 5
th
day of April, 2001, in Quezon City, Philippines,
the above-named accused, conspiring together, confederating with and mutually
helping one another, did then and there, willfully, unlawfully and feloniously with
intent to kill, taking advantage of superior strength and with treachery and evident
premeditation, attack, assault and employ personal violence upon the person of
SPO2 WILFREDO RED Y PILAR, by then and there shooting the latter several
times with the use of a firearm of unknown caliber, hitting him on the different
parts of the body and as soon as the said victim fell on the ground, by placing a
hand grenade (sic) underneath the body which directly caused an explosion and
mutilated the body which directly caused the death of SPO2 WILFREDO RED Y
PILAR, to the damage and prejudice of the heirs of the victim in such amount as
may be awarded to them under the provisions of the Civil Code.

That the crime was committed in contempt of or with insult to the public
authorities.
[3]



Criminal Case No. Q-01-100063

That on or about the 5
th
day of April, 2001, in Quezon City, Philippines,
the above-named accused, conspiring together, confederating with and mutually
helping one another, with intent to kill with evident premeditation and with
treachery, did then and there willfully, unlawfully and feloniously, assault, attack
and employ personal violence upon the person of SPO1 WILFREDO
MONTECALVO Y DALIDA, by then and there shooting the latter with the use
of a firearm of unknown caliber, hitting him on his neck, thereby inflicting upon
him serious and mortal injuries, the offender thus performing all the acts of
execution which would have produced the crime of murder as a consequence, but
nevertheless did not produce it by reasons or causes independent of the will of the
perpetrators, that is the timely and able medical assistance rendered to said SPO1
WILFREDO MONTECALVO Y DALIDA, to the damage and prejudice of the
said offended party.

That the crime was committed in contempt of or with insult to the public
authorities.
[4]



On May 15, 2001, accused-appellants Carandang, Milan and Chua pleaded
not guilty to the crimes charged.

The prosecution evidence, culled from the testimonies of Senior Police
Officer (SPO) 1 Wilfredo Montecalvo, SPO1 Rodolfo Estores, Police Senior
Inspector (P/Sr. Insp.) Virgilio Calaro, P/Supt. Manuel Roxas and Dr. Wilson Tan,
yielded the following version of the facts:

In the afternoon of April 5, 2001, the drug enforcement unit of the La Loma
Police Station 1 received a request for assistance from the sister of accused Milan
regarding a drug deal that would allegedly take place in her house at Calavite St.,
Brgy. Salvacion, Quezon City. The station commander called SPO2 Wilfredo
Pilar Red and instructed him to talk to Milans sister, who was in their
office. SPO2 Red, accompanied by Police Officer (PO) 2 Dionisio Alonzo, SPO1
Estores and SPO1 Montecalvo, talked to Milans sister. Thereafter, SPO2 Red
formed a team composed of the officers who accompanied him during the
interrogation, with him as team leader. The team received further instructions
from the station commander then proceeded to Calavite Street aboard two vehicles,
a mobile patrol car and an unmarked car.
[5]


When the team reached the place at around 4:00 p.m.,
[6]
they alighted from
their vehicles and surrounded Milans house. SPO1 Montecalvos group went to
the left side of the house, while SPO2 Reds group proceeded to the right. The two
groups eventually met at the back of the house near Milans room. The door to
Milans room was open, enabling the police officers to see Carandang, Milan and
Chua inside. SPO2 Red told the group that the persons inside the room would not
put up a fight, making them confident that nothing violent would erupt. However,
when the group introduced themselves as police officers, Milan immediately shut
the door.
[7]


PO2 Alonzo and SPO2 Red pushed the door open, causing it to fall and
propelling them inside the room. PO2 Alonzo shouted Walang
gagalaw! Suddenly, gunshots rang, hitting PO2 Alonzo and SPO2 Red who
dropped to the floor one after the other. Due to the suddenness of the attack, PO2
Alonzo and SPO2 Red were not able to return fire and were instantly killed by the
barrage of gunshots. SPO1 Montecalvo, who was right behind SPO2 Red, was still
aiming his firearm at the assailants when Carandang shot and hit him. SPO1
Montecalvo fell to the ground. SPO1 Estores heard Chua say to Milan, Sugurin
mo na! Milan lunged towards SPO1 Montecalvo, but the latter was able to fire
his gun and hit Milan. SPO1 Estores went inside the house and pulled SPO1
Montecalvo out.
[8]


Reinforcements came at around 4:30 p.m. upon the arrival of P/Sr. Insp.
Calaro, Chief Operations Officer of the La Loma Police Station 1, and P/Supt.
Roxas, the Deputy Station Commander of Police Station 1 at the time of the
incident.
[9]
SPO1 Montecalvo was brought to the Chinese General Hospital. Milan
stepped out of the house and was also brought to a hospital,
[10]
but Carandang and
Chua remained holed up inside the house for several hours. There was a lengthy
negotiation for the surrender of Carandang and Chua, during which they requested
for the presence of a certain Colonel Reyes and media man Ramon Tulfo.
[11]
It
was around 11:00 p.m. to 12:00 midnight when Carandang and Chua
surrendered.
[12]
SPO2 Red and PO2 Alonzo were found dead inside the house,
their bodies slumped on the floor with broken legs and gunshot and grenade
shrapnel wounds.
[13]


Dr. Winston Tan, Medico-Legal Officer of the Philippine National Police
(PNP) Crime Laboratory, conducted the post-mortem examination of the bodies of
SPO2 Red and PO2 Alonzo. He found that the gunshot wounds of Red and
Alonzo were the cause of their deaths.
[14]


According to SPO1 Montecalvos account, Dr. Bu Castro of the Chinese
General Hospital operated on him, removing a bullet from the right portion of his
nape. SPO1 Montecalvos hospitalization expenses amounted to P14,324.48. He
testified that it was a nightmarish experience for him as he feared that he might be
paralyzed later on.
[15]


The defense presented the three accused as witnesses, testifying as follows:

Carandang claims that he had no firearm during the incident, and that it was
the police officers who fired all the shots. He was in Milans house during the
incident in order to ask Milan to accompany him to convert his cellular phones
SIM card. When he arrived at Milans place, he found Milan and Chua playing a
card game. A short time later, there was banging on the door. The door of the
house was destroyed and gunfire suddenly erupted, prompting him to take cover
under a bed. Chua cried out to him that he was hit and that he might lose
blood. Milan ran outside and sustained injuries as well. There was an explosion
near the door, causing burns on Carandangs left arm. Gunfire continued coming
from different directions for two to three minutes. Suddenly, the place became
dark as the lights went out.
[16]


Since gunshots were still heard every now and then, Carandang stayed in the
house and did not come out. Col. Tor, the new Chief of the Criminal Investigation
Division (CID) Sikatuna, negotiated for Carandang to come out. Carandang
requested for the presence of his wife, Col. Doroteo Reyes and media man Ramon
Tulfo. He went out of the house at around midnight when the three arrived.
[17]


Milan testified that he was at home in Calavite St. at the time of the
incident. He knew Carandang for seven months. Chua was their neighbor. While
playing a card game inside his room, they heard someone pounding at the
door. He stood and approached the door to check. The door was destroyed, and
two unidentified men barged in. Gunshots erupted. He was hit on the left side of
his body. He ran out of the room, leaving Chua and Carandang behind. As he was
doing so, he saw his mother lying down and shouting Itigil niyo ang putukan;
maraming matatanda dito! Milan was then hit on his left leg by another
gunshot.
[18]



Chua testified that he went to the house of Milan at around noontime of
April 4, 2001 to play a card game. They played inside Milans ground floor
room. Five to ten minutes later, Carandang arrived and laid down on the
bed. Chua did not pay much attention as Milan and Carandang discussed about
cellular phones. Later, they heard a loud banging in the door as if it was being
forced open. Milan stood up to see what was happening. Chua remained seated
and Carandang was still on the bed. The door was forcibly opened. Chua heard
successive gunshots and was hit on his left big toe. He ducked on the floor near
the bed to avoid being hit further. He remained in that position for several hours
until he lost consciousness. He was already being treated at the Chinese General
Hospital when he regained consciousness. In said hospital, a paraffin test was
conducted upon him.
[19]


P/Sr. Insp. Grace Eustaquio, Forensic Chemist of the PNP Crime
Laboratory, later testified that the paraffin test on Chua yielded a negative result
for gunpowder nitrates, but that performed on Carandang produced a positive
result. She was not able to conduct a paraffin test on Milan, who just came from
the operating room when she saw him. Milan seemed to be in pain and refused to
be examined.
[20]


On April 22, 2003, the trial court rendered its Decision
[21]
finding
Carandang, Milan and Chua guilty of two counts of murder and one count of
frustrated murder:

WHEREFORE, finding the accused RESTITUTO CARANDANG,
HENRY MILAN AND JACKMAN CHUA guilty beyond reasonable doubt of the
crime of murder described and penalized under Article 249 of the Revised Penal
Code in relation to Article 63 of the same Code, for the killing of SPO2 Wilfredo
Pilar Red and PO2 Dionisio Alonzo qualified by treachery and acting in
conspiracy with each other, they are hereby sentenced to suffer the penalty
of reclusion perpetua for each count of murder and to indemnify the heirs of the
victims, jointly and severally, as follows:

To the heirs of SPO2 Wilfredo Red:

1. P50,000.00 as civil indemnity;
2. P50,000.00 as moral damages;
3. P149,734.00 as actual damages; and
4. P752,580.00 as compensatory damages

To the heirs of PO2 Dionisio Alonzo:

1. P50,000.00 as civil indemnity;
2. P50,000.00 as moral damages;
3. P139,910.00 as actual damages; and
4. P522,960.00 as compensatory damages.

Likewise, finding the accused Restituto Carandang, Henry Milan and
Jackman Chua guilty beyond reasonable doubt of the crime of frustrated murder,
described and penalized under Article 249 in relation to Article 6, paragraph 2,
having acted in conspiracy with each other and applying the Indeterminate
Sentence Law, they are hereby sentenced to suffer imprisonment of six (6) years
of prision mayor to twelve (12) years and one (1) day of reclusion temporal, and
to indemnify the victim Wilfredo Montecalvo as follows:

1. P14,000.00 as actual damages;
2. P20,000.00 as moral damages;
3. P20,000.00 as reasonable attorneys fees; and
4. To pay the costs.
[22]



Carandang, Milan and Chua appealed to this Court.
[23]
The appeals were
separately docketed as G.R. Nos. 160510-12.
[24]
Pursuant, however, to the decision
of this Court in People v. Mateo,
[25]
the appeals were transferred
[26]
to the Court of
Appeals, where they were assigned a single docket number, CA-G.R. CR.-H.C.
No. 01934.

On May 10, 2006, the Court of Appeals rendered the assailed Decision
modifying the Decision of the trial court:

WHEREFORE, premises considered, the Decision of the Regional Trial
Court of Quezon City, Branch 76, in Criminal Case Nos. Q-01-100061-63 finding
accused-appellants guilty beyond reasonable doubt of two (2) counts of Murder
and one (1) count of Frustrated Murder is hereby AFFIRMED with
MODIFICATIONS as follows:

1) In Criminal Case Nos. Q-01-100061 and Q-01-100062, accused-
appellants are hereby ordered to pay the heirs of PO2 Dionisio S. Alonzo and
SPO2 Wilfredo P. Red an indemnity for loss of earning capacity in the amount
of P2,140,980.69 and P2,269,243.62, respectively; and
2) In Criminal Case No. Q-01-100063, accused-appellants are
hereby instead sentenced to suffer an indeterminate prison term of six (6) years
and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal, as maximum.

With costs against the accused-appellants.
[27]



Milan and Chua appealed to this Court anew.
[28]
Carandang did not appeal,
and instead presented a letter informing this Court that he is no longer interested in
pursuing an appeal.
[29]
On April 9, 2008, Milan and Chua filed a Supplemental
Appellants Brief to further discuss the Assignment of Errors they presented in
their September 28, 2004 Appellants Brief:

I.

The court a quo erred in holding that there was conspiracy among the appellants
in the case at bar.

II.

Assuming arguendo that conspiracy exists, the court a quo gravely erred in
convicting them of the crime of murder and frustrated murder instead of homicide
and frustrated homicide only, the qualifying circumstance of treachery not having
been duly proven to have attended the commission of the crimes charged.
[30]




The trial court had ruled that Carandang, Milan and Chua acted in
conspiracy in the commission of the crimes charged. Thus, despite the established
fact that it was Carandang who fired the gun which hit SPO2 Red, PO2 Alonzo and
SPO1 Montecalvo, all three accused were held equally criminally responsible
therefor. The trial court explained that Carandang, Milan and Chuas actuations
showed that they acted in concert against the police officers. The pertinent portion
of the RTC Decision reads:

Milan, Carandang and Chua were all inside the room of Milan. Upon
arrival of police officers Red, Alonzo and the others and having identified
themselves as police officers, the door was closed and after Alonzo and Red
pushed it open and as Alonzo shouted, walang gagalaw, immediately shots
rang out from inside the room, felling Alonzo, then Red, then Montecalvo. Chua
was heard by Estores to shout to Milan: Sugurin mo na (tsn, October 16, 2001,
page 8). And as Milan lunged at Montecalvo, the latter shot him.

That the three acted in concert can be gleaned from their actuations. First,
when they learned of the presence of the police officers, they closed the
door. Not one of them came out to talk peacefully with the police
officers. Instead, Carandang opened fire, Alonzo and Red did not even have the
chance to touch their firearms at that instant.
[31]



In affirming this ruling, the Court of Appeals further expounded on the acts
of Milan and Chua showing that they acted in concert with Carandang, to wit:

In the present case, when appellants were alerted of the presence of the
police officers, Milan immediately closed the door. Thereafter, when the police
officers were finally able to break open said door, Carandang peppered them with
bullets. PO2 Alonzo and SPO2 Red died instantly as a result while SPO1
Montecalvo was mortally wounded. Then, upon seeing their victims helplessly
lying on the floor and seriously wounded, Chua ordered Milan to attack the police
officers. Following the order, Milan rushed towards Montecalvo but the latter,
however, was able to shoot him.

At first glance, Milans act of closing the door may seem a trivial
contribution in the furtherance of the crime. On second look, however, that act
actually facilitated the commission of the crime. The brief moment during which
the police officers were trying to open the door paved the way for the appellants
to take strategic positions which gave them a vantage point in staging their
assault. Thus, when SPO2 Red and PO2 Alonzo were finally able to get inside,
they were instantly killed by the sudden barrage of gunfire. In fact, because of the
suddenness of the attack, said police officers were not able to return fire.

Insofar as Chua is concerned, his participation in the conspiracy consisted
of lending encouragement and moral ascendancy to his co-conspirators as
evidenced by the fact that he ordered Milan to attack the already fallen police
officers with the obvious intention to finish them off. Moreover, he did not
immediately surrender even when he had the opportunity to do so but instead
chose to stay with Carandang inside the room until their arrest.
[32]



Milan and Chua object to the conclusion that they were in conspiracy with
Carandang due to their acts of closing the door and not peaceably talking to the
police officers. According to them, those acts were caused by their being
frightened by the police officers who were allegedly in full battle gear.
[33]
Milan
and Chua further assert that the fortuitous and unexpected character of the
encounter and the rapid turn of events should have ruled out a finding of
conspiracy.
[34]
They claim that the incident happened so fast, giving them no
opportunity to stop Carandang.
[35]


Appellants contest the factual finding that Chua directed Milan to go after
SPO1 Montecalvo, alleging that they were both unarmed and that there was no
way for Milan to attack an armed person. What really happened, according to
them, was that Milan ran out of the room for safety and not to attack SPO1
Montecalvo.
[36]
Milan claims that he was already injured in the stomach when he
ran out, and it was natural for him to seek safety.



Assuming arguendo that Chua uttered Sugurin mo na! to Milan, appellants
argue that no crime was committed due to the same as all the victims had already
been shot when said words were shouted.
[37]
Furthermore, it appears to have been
uttered as a result of indiscretion or lack of reflection and did not inherently carry
with it inducement or temptation.
[38]


In the Supplemental Brief, Milan and Chua point out that the assault on the
victims was the result of the impulsive act of Carandang and was not a result of
any agreement or a concerted action of all the accused.
[39]
They claim that when
the shootout ensued, Chua immediately dove down near the bed while Milan ran
out of the room out of fear.
[40]
It is allegedly hard to imagine that SPO1
Montecalvo with certainty heard Chua utter the phrase Sugurin mo
na, considering that the incident happened so fast, there were lots of gunshots.
[41]


To summarize, Milans and Chuas arguments focus on the lack of direct
evidence showing that they conspired with Carandang during the latters act of
shooting the three victims. However, as we have held in People v.
Sumalpong,
[42]
conspiracy may also be proven by other means:

Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Evidence need
not establish the actual agreement among the conspirators showing a
preconceived plan or motive for the commission of the crime. Proof of concerted
action before, during and after the crime, which demonstrates their unity of
design and objective, is sufficient. When conspiracy is established, the act of one
is the act of all regardless of the degree of participation of each.
[43]


In the case at bar, the conclusion that Milan and Chua conspired with
Carandang was established by their acts (1) before Carandang shot the victims
(Milans closing the door when the police officers introduced themselves, allowing
Carandang to wait in ambush), and (2) after the shooting (Chuas directive to
Milan to attack SPO1 Montecalvo and Milans following such
instruction). Contrary to the suppositions of appellants, these facts are not meant
to prove that Chua is a principal by inducement, or that Milans act of attacking
SPO1 Montecalvo was what made him a principal by direct participation. Instead,
these facts are convincing circumstantial evidence of the unity of purpose in the
minds of the three. As co-conspirators, all three are considered principals by direct
participation.

Appellants attempt to instill doubts in our minds that Chua
shouted sugurin mo na to Milan, who then ran towards SPO1 Montecalvo, must
fail. SPO1 Estoress positive testimony
[44]
on this matter prevails over the plain
denials of Milan and Chua. SPO1 Estores has no reason to lie about the events he
witnessed on April 5, 2001. As part of the team that was attacked on that day, it
could even be expected that he is interested in having only the real perpetrators
punished.

Furthermore, we have time and again ruled that factual findings of the trial
court, especially those affirmed by the Court of Appeals, are conclusive on this
Court when supported by the evidence on record.
[45]
It was the trial court that was
able to observe the demeanors of the witnesses, and is consequently in a better
position to determine which of the witnesses are telling the truth. Thus, this Court,
as a general rule, would not review the factual findings of the courts a quo, except
in certain instances such as when: (1) the conclusion is grounded on speculations,
surmises or conjectures; (2) the inference is manifestly mistaken, absurd or
impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no
citation of specific evidence on which the factual findings are based; (7) the
finding of absence of facts is contradicted by the presence of evidence on record;
(8) the findings of the Court of Appeals are contrary to the findings of the trial
court; (9) the Court of Appeals manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a different conclusion;
(10) the findings of the Court of Appeals are beyond the issues of the case; and
(11) such findings are contrary to the admissions of both parties.
[46]


Neither can the rapid turn of events be considered to negate a finding of
conspiracy. Unlike evident premeditation, there is no requirement for conspiracy
to exist that there be a sufficient period of time to elapse to afford full opportunity
for meditation and reflection. Instead, conspiracy arises on the very moment the
plotters agree, expressly or impliedly, to commit the subject felony.
[47]


As held by the trial court and the Court of Appeals, Milans act of closing
the door facilitated the commission of the crime, allowing Carandang to wait in
ambush. The sudden gunshots when the police officers pushed the door open
illustrate the intention of appellants and Carandang to prevent any chance for the
police officers to defend themselves. Treachery is thus present in the case at bar,
as what is decisive for this qualifying circumstance is that the execution of the
attack made it impossible for the victims to defend themselves or to retaliate.
[48]


The trial court correctly sentenced appellants to suffer the penalty
of reclusion perpetua in Criminal Case Nos. Q-01-100061 and Q-01-100062. The
penalty for murder under Article 248
[49]
of the Revised Penal Code is reclusion
perpetua to death. Applying Article 63
[50]
of the same Code, since there was no
other modifying circumstance other than the qualifying circumstance of treachery,
the penalty that should be imposed is reclusion perpetua.

In Criminal Case No. Q-01-100063, the Court of Appeals correctly modified
the penalty for the frustrated murder of SPO1 Montecalvo. Under Article 50
[51]
in
connection with Article 61, paragraph 2
[52]
of the Revised Penal Code, the penalty
for frustrated murder is one degree lower than reclusion perpetua to death, which
is reclusion temporal. Reclusion temporal has a range of 12 years and 1 day to 20
years. Its medium period, which should be applied in this case considering that
there is no modifying circumstance other than the qualifying circumstance of
treachery, is 14 years, 8 months and 1 day to 17 years and 4 months the range of
the maximum term of the indeterminate penalty under Section 1
[53]
of the
Indeterminate Sentence Law. The minimum term of the indeterminate penalty
should then be within the range of the penalty next lower toreclusion temporal, and
thus may be any term within prision mayor, the range of which is 6 years and 1
day to 12 years. The modified term of 6 years and 1 day of prision mayoras
minimum, to 14 years, 8 months and 1 day of reclusion temporal as maximum, is
within these ranges.

The civil liabilities of appellants should, however, be modified in
accordance with current jurisprudence. Thus, in Criminal Case Nos. Q-01-100061
and Q-01-100062, the award of P50,000.00 as civil indemnity for each victim must
be increased to P75,000.00.
[54]
In cases of murder and homicide, civil indemnity
of P75,000.00 and moral damages of P50,000.00 are awarded automatically,
without need of allegation and proof other than the death of the
victim.
[55]
Appellants are furthermore solidarily liable to each victim
for P30,000.00 as exemplary damages, which is awarded when the crime was
committed with an aggravating circumstance, be it generic or
qualifying.
[56]
However, since Carandang did not appeal, he is only solidarily
liable with Milan and Chua with respect to the amounts awarded by the Court of
Appeals, since the Court of Appeals Decision has become final and executory
with respect to him. The additional amounts (P25,000.00 as civil indemnity
and P30,000.00 as exemplary damages) shall be borne only by Milan and Chua,
who are hereby held liable therefor solidarily.

In Criminal Case No. Q-01-100063, the solidary liability of Milan and Chua
for moral damages to SPO1 Wilfredo Montecalvo is likewise increased
to P40,000.00, in accordance with prevailing jurisprudence.
[57]
An award
of P20,000.00 as exemplary damages is also warranted.
[58]
The additional amounts
(P20,000.00 as moral damages andP20,000.00 as exemplary damages) are likewise
to be solidarily borne only by Milan and Chua.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C.
No. 01934 dated May 10, 2006 is hereby AFFIRMED, with the
followingMODIFICATIONS:

1. In Criminal Case Nos. Q-01-100061 and Q-01-100062, appellants Henry
Milan and Jackman Chua are held solidarily liable for the amount
of P25,000.00 as civil indemnity and P30,000.00 as exemplary damages
to the heirs of each of the victims, PO2 Dionisio S. Alonzo and SPO2
Wilfredo P. Red, in addition to the amounts to which they are solidarily
liable with Restituto Carandang as held in CA-G.R. CR.-H.C. No.
01934. Thus, to summarize the rulings of the lower courts and this
Court:
a. The heirs of SPO2 Wilfredo Red are entitled to the following
amounts:
i. P75,000.00 as civil indemnity, P50,000.00 of which shall be
solidarily borne by Carandang, Milan and Chua, while P25,000.00
shall be the solidary liability of Milan and Chua only;
ii. P50,000.00 as moral damages to be solidarily borne
by Carandang, Milan and Chua;
iii. P149,734.00 as actual damages to be soldarily borne
by Carandang, Milan and Chua;
iv. P2,140,980.00 as indemnity for loss of earning capacity to be
solidarily borne by Carandang, Milan and Chua; and
v. P30,000.00 as exemplary damages to be solidarily borne
by Milan and Chua only;

b. The heirs of PO2 Dionisio Alonzo are entitled to the following
amounts:
i. P75,000.00 as civil indemnity, P50,000.00 of which shall be
solidarily borne by Carandang, Milan and Chua, while P25,000.00
shall be the solidary liability of Milan and Chua only;
ii. P50,000.00 as moral damages to be solidarily borne
by Carandang, Milan and Chua;
iii. P139,910.00 as actual damages to be solidarily borne
by Carandang, Milan and Chua;
iv. P2,269,243.62 as indemnity for loss of earning capacity to be
solidarily borne by Carandang, Milan and Chua;
v. P30,000.00 as exemplary damages to be solidarily borne
by Milan and Chua only;

2. In Criminal Case No. Q-01-100063, appellants Henry Milan and
Jackman Chua are held solidarily liable for the amount of P20,000.00 as
moral damages andP20,000.00 as exemplary damages to SPO1 Wilfredo
Montecalvo, in addition to the amounts to which they are solidarily liable
with Restituto Carandang as held in CA-G.R. CR.-H.C. No.
01934. Thus, to summarize the rulings of the lower courts and this
Court, SPO1 Wilfredo Montecalvo is entitled to the following
amounts:
i. P14,000.00 as actual damages to be solidarily borne
by Carandang, Milan and Chua;
ii. P40,000.00 as moral damages, P20,000.00 of which shall be
solidarily borne by Carandang, Milan and Chua, while P20,000.00
shall be the solidary liability ofMilan and Chua only;
iii. P20,000.00 as exemplary damages to be solidarily borne by Milan
and Chua only; and
iv. P20,000.00 as reasonable attorneys fees, to be solidarily borne
by Carandang, Milan and Chua.

3. Appellants are further ordered to pay interest on all damages awarded at
the legal rate of Six Percent (6%) per annum from date of finality of this
judgment.

SO ORDERED.




TERESITA J. LEONARDO-DE CASTRO
Associate Justice




WE CONCUR:




RENATO C. CORONA
Chief Justice
Chairperson





LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice





JOSE CATRAL MENDOZA
Associate Justice



CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.



RENATO C. CORONA
Chief Justice



*
Per Raffle dated June 27, 2011.
[1]
Rollo, pp. 3-22; penned by Associate Justice Martin S. Villarama, Jr. (now a member of this Court) with
Associate Justices Edgardo F. Sundiam and Japar B. Dimaampao, concurring.
[2]
Records, p. 2.
[3]
Id. at 6.
[4]
Id. at 10.
[5]
TSN, August 8, 2001, pp. 6-13.
[6]
TSN, November 12, 2001, p. 5.
[7]
TSN, August 8, 2001, pp. 14-18.
[8]
TSN, October 16, 2001, pp. 5-9.
[9]
TSN, September 10, 2001, pp. 5-7.
[10]
TSN, September 17, 2001, pp. 6-7.
[11]
Id. at 10-14.
[12]
TSN, September 10, 2001, p. 7.
[13]
TSN, September 17, 2001, pp. 15-16.
[14]
Records, pp. 91-92.
[15]
TSN, August 15, 2001, pp. 7-19.
[16]
TSN, December 10, 2001, pp. 4-11.
[17]
Id. at 7-9.
[18]
TSN, April 1, 2002, pp. 3-9.
[19]
TSN, April 22, 2002, pp. 4-15.
[20]
TSN, September 9, 2002, pp. 3-13.
[21]
Records, pp. 272-294.
[22]
Id. at 293-294.
[23]
CA rollo, pp. 58-59.
[24]
Id. at 64.
[25]
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
[26]
CA rollo, pp. 239-240.
[27]
Rollo, p. 21.
[28]
Id. at 23-24.
[29]
Id. at 29.
[30]
CA rollo, pp. 135-136.
[31]
Records, p. 287.
[32]
Rollo, p. 17.
[33]
CA rollo, p. 138.
[34]
Id. at 139-141.
[35]
Id. at 142-143.
[36]
Id. at 143-146.
[37]
Id. at 146-151.
[38]
Id. at 151.
[39]
Rollo, p. 54.
[40]
Id. at 53.
[41]
Id. at 54.
[42]
348 Phil. 501 (1998).
[43]
Id. at 524-525.
[44]
TSN, October 16, 2001, pp. 6-8.
[45]
People v. Barde, G.R. No. 183094, September 22, 2010.
[46]
Pelonia v. People, G.R. No. 168997, April 13, 2007, 521 SCRA 207, 219.
[47]
People v. Baldimo and Derilo, 338 Phil. 350, 375 (1997).
[48]
People v. Garin, 476 Phil. 455, 476 (2004).
[49]
Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another,
shall be guilty of murder and shall be punished by reclusion perpetua to death, if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense, or of means or persons to insure or afford impunity;
2. In consideration of a price, reward, or promise;
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or
assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin;
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic or any other public calamity;
5. With evident premeditation;
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
[50]
Art. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a
single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating
circumstances that may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance, the
greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed,
the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the commission of the act, the
courts shall reasonably allow them to offset one another in consideration of their number and importance,
for the purpose of applying the penalty in accordance with the preceding rules, according to the result of
such compensation.
[51]
Art. 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in degree
than that prescribed by law for the consummated felony shall be imposed upon the principals in a frustrated
felony.
[52]
Art. 61. Rules of graduating penalties. For the purpose of graduating the penalties which, according to
the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as
principals of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall
be observed:
x x x x
2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or
more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that
immediately following the lesser of the penalties prescribed in the respective graduated scale.
[53]
Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly imposed under the
rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same.
[54]
People v. Orias and Elarcosa, G.R. No. 186539, June 29, 2010, 622 SCRA 417, 437.
[55]
Id.
[56]
People v. Regalario, G.R. No. 174483, March 31, 2009, 582 SCRA 738, 761.
[57]
People v. Mokammad, G.R. No. 180594, August 19, 2009, 596 SCRA 497, 513-514.
[58]
Id.