Jariol vs. Sandiganbayan, G.R. No. L-52095-52116, August 13, 1990

Republic of the Philippines
SUPREME COURT
Manila

G.R. No. L-52095-52116 August 13, 1990

ANTOLIN JARIOL, JR., petitioner,
vs.
HON. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

Francis M. Zosa and Loreto N. Pono for petitioner.

FELICIANO, J.:

In this Petition for Review by certiorari, petitioner Antolin Jariol, Jr. assails the Decision of the Sandiganbayan dated 29 November 1979 finding him, along with several others, guilty on twenty-two (22) counts of estafa through falsification of public and commercial documents and sentencing him to the penalties specified in that Decision.

The background facts which are uncontested are set out in the Decision of the Sandiganbayan in the following terms:

The Ministry of Public Highways is divided into thirteen (13) regions and each region is in turn subdivided into districts. One of these regions is Region VII based in Cebu City and covers the Province of Cebu, Negros Oriental, Bohol, and Sub-province of Siquijor and the cities in said provinces, namely: the Cities of Cebu, Danao, Mandawe, Lapu-Lapu and Toledo in the Province of Cebu, the Cities of Bais, and Dumaguete in the province of Negros Oriental and Tagbilaran City in the Province of Bohol. Region VII is subdivided into fifteen (15) Highway Engineering districts. namely: Cebu First, Cebu 2nd, Danao City, Mandawe City, Lapu-lapu City, Toledo City, Cebu City, Bohol 1st, Bohol 2nd, Tagbilaran City, Bais City, Kanolaon City, Dumaguete City, Negros Oriental and Siquijor.

[B]ased on the standard operating procedure of the funding of the different offices of the national government, the said regions are funded in the following manner:

The Ministry of the Budget at the beginning of each quarter releases to the Ministry of Public Highways the corresponding Advices of Allotment (AAs), which is the authority to obligate, and the Cash Disbursement Ceiling (CDC), which is the authority to disburse. The Ministry or Central Office will now release Sub-Advices of Allotment (SAAs) to the various regional offices, with the Central Office retaining a portion of the allotment for its own use. The Sub-Allotment Advice (SAA) released to the various regional offices is addressed to the regional director and is accompanied by an Advice of Cash Disbursement Ceiling (ACDC). Upon receipt thereof, the Chief Accountant of the region debits the receivable accounts and credits the allotments in the Journal Voucher. Thereafter, Letters of Advice of Allotment (LAAS) based on the program of work submitted by the district and Advices of Cash Disbursement Ceiling (ACDCs) are prepared by the region for release to the different districts composing the region. The LAAs and the ACDCs are signed by the Regional Director addressed to the District Engineer but are usually received by an authorized liaison officer of the district. With the receipt of the LAAs and the ACDCs, the district is now equipped with authority to incur obligations and authority to disburse. As a matter of procedure, however, upon receipt of the LAA, a Requisition for Supplies or Equipment (RSE) is prepared by the Property Custodian wherein the District Accountant certifies as to the availability of funds. The Project Engineer prepares a Request for Obligation of Allotment (ROA) which is likewise certified as to availability of funds by the District Accountant. The Requisition for Supplies or Equipment, together with a copy of the program of work, is transmitted to the Regional Director for approval and returned to the district. If approved canvass bid forms are sent to different contractors or suppliers for them to quote prices for the materials or supplies called for in the approved Requisition for Supplies or Equipment. After all the bid forms are submitted, they are opened on specified dates and the determination of the lowest quoted price is made. This is reflected in the Abstract of Sealed Quotations. A Purchase Order is now prepared in favor of the winning bidder or contractor. Deliveries then are made by the contractor and, thereafter, General Vouchers, supported by delivery receipts and tally sheets which are consolidated in the Inspection Report and other supporting documents, are processed for the payment of the deliveries. Finally, the corresponding check is prepared and released to the contractor.

At the end of the month, the District Accountant prepares several reports including the Report of Obligations Incurred (ROI) and the Report of Checks Issued by Deputized Disbursing Officer (RCIDDO) which are submitted to the region. These reports form the bases of the trial balance prepared by the regions for submission to the Central Office. The different regional trial balances are then consolidated in a single trial balance prepared by the Central Office for the entire Ministry of Public Highways which is then submitted to the Commission on Audit.

xxx xxx xxx

It also appears undisputed that with the exception of Neis, who claimed that he was then on leave from December 19, 1977 to May 31, 1978, after he was re-assigned to the 2nd Highway Engineering District of Bohol, all the accused government officials actually discharged the functions pertaining to their office as alleged in the informations during the period that the supposed crimes were committed; that the Letters of Advice of Allotment under which the disbursements in question were made are Exhibits "R", "R-1" to "R- 118" with a total amount of P6,530,000.00 all addressed to the Danao City HED and signed and sent by Assistant Regional Director Bagasao, acting for and in the absence of the Regional Director, that the General Vouchers in support of the disbursements are Exhibits "LL", "LL-1" to "LL-125", all charged against Project No. NC-0782, for the repair of the Cebu North Hagnaya Wharf Road and/or its shoulders which is about ten (10) kilometers long running from Km. 27.7 to Km. 38.6; and that the checks, Exhibits "W-1" to "W- 124", were actually issued and cashed for the payment of the aforesaid vouchers. ¹

From 1 January 1978 to 25 August 1978, a team from the Commission on Audit led by Maria Athena C. Flores, Manager, Performance Audit Office, audited the operations of Regional Office No. 7 of the Ministry of Public Highways and the Danao City Highways Engineering District ("HED") and found many irregularities. These irregularities consisted, among other things, of: (a) fake allotments for payment of fake obligations, and fake Cash Disbursement Ceilings (CDCs) for fake authorities to disburse; (b) conversion of the fake allotments and fake CDCS to actual payments for fake payrolls, overpaid payrolls, fictitious deliveries, double payments, overpricing and underdeliveries; and (c) manipulations of the actual payments, manipulations by Journal Vouchers, manipulations of accounting records to conceal payments, fake allotment obligations under fake Cash Disbursement Ceilings as represented by Journal Vouchers.

As a result of such auditing and investigation, one hundred twenty-six (126) uniformly worked informations — uniformly worded, that is, except with respect to the amounts involved, the names of the persons changed and the dates of the commission — were filed with the respondent Sandiganbayan, against certain named government officials of Regional Office No. 7, Ministry of Public Highways and the Danao City HED and certain named private persons, including petitioner herein Antolin Jariol, Jr., who had been private suppliers of materials in respect of the questioned transactions. The total amount involved in these one hundred twenty-six (126) cases was P6,237,018.00. Petitioner was charged in twenty-two (22) of the one hundred twenty-six (126) informations. The twenty-two (22) informations were docketed as Criminal Cases Nos. 118, 122, 123, 127, 129, 132, 133, 134, 135, 136, 137, 140, 143, 144, 146, 148, 149, 150, 152, 156, 170 and 172. The informations were typically set forth in the following terms:

That in, about and during the period from May 2, 1978 up to and including June 11, 1978 in Danao City and within the jurisdiction of this Honorable Court, the accused Jose Bagasao and Rolando Mangubat, assistant Director and Chief Accountant of Region VII, Ministry of Public Highways, respectively conniving with each other with the deliberate intent of defrauding the Philippine Government, and with the indispensable cooperation, assistant and connivance of the accused Angelina Escano, Finance Officer of the same office; Delia Preagido, Assistant Chief Accountant of the same office; Gualberto Toledo, District Auditor of the Commission on Audit (COA) assinged to Danao City HED; Milagros Pisao, Chief Acccountant of the same office; Romeo Andrino, Senior Civil Engineer of the Danao City HED; Adolfo Sucalit, Assistant District Engineer of the same HED; Antolin Jariol, Jr. a supplier; Florencio Masecampo, Administrative Officer of the Danao City HED; Juan Doe, Pedro Doe, Jesus Doe, Juana Doe, whose identities are still unknown all taking advantage of their official positions committed in relation to their respective offices, with the exception of Antolin Jariol, Jr., and mutually helping one another did then and there wilfully and feloniously falsify the followmg documents, to wit:

1. Letter of advice and allotment (LAA #107-0782-193A-78 dated May 16, 1978

2. Request for obligation of allotment (ROA) #101-4-202-77

3. Abstract of Sealed Quotations dated May 2, 1978

4. Purchase Orders dated May 29, 1978

5. Delivery Receipts (15)

6. Report of Inspection undated

7. General Voucher No. 780618

by making it appear that Region No. VII of the Ministry of Public Highways regularly issued a letter of advice of allotment to the Davao City HED to purchase 147 m.t. of the bituminous concrete surface course for use in the prepare of Cebu North Hagnaya Wharf road by making it appear further: That the proper request for obligation of allotment was prepared and approved; that the proper bidding among the suppliers was conducted; that the corresponding purchase order was prepared in favor of the lowest bidder; and that the ordered construction materials were duly delivered and inspected when, in truth and in fact, as all the respondents knew, the foregoing were false and incorrect and that because of these falsifications, the said accused were able to collect from the Danao City HED the amount of FORTY-NINE THOUSAND NINE HUNDRED EIGHTY PESOS (P49,980.00) Philippine Currency in payment of the non-existent deliveries and, once in possession of the same amount, the accused misappropriated, converted and misapplied the said amount for their own personal needs to the damage and prejudice of the Philippine Government in the total amount of FORTY-NINE THOUSAND NINEHUNDRED EIGHTY PESOS (P49,980.00) Philippine Currency. ²

All one hundred twenty-six (126) cases were tried jointly by agreement of the parties. On 29 November 1979, the Sandiganbayan rendered a Decisions ³ acquitting accused Rosilo Neis, Rafael Alberio and Ernesterio Sabare on grounds of reasonable doubt. All the other accused, including petitioner, were found guilty. Thus, petitioner was sentenced, in each of the twenty-two (22) cases in which he was included as an accused, to suffer an indeterminate penalty ranging from eight (8) years, eight (8) months and one (1) day of prision mayor as minimum to ten (10) years, eight (8) months and one (1) day of prision mayor as maximum, to pay a fine of P3,500.00 and jointly and severally to indemnify the Republic of the Philippines the amount of P49,980.00 representing the amount of which it was defrauded.

Petitioner filed with the Sandiganbayan a separate motion for reconsideration. Without waiting, however, for resolution of his motion, petitioner filed the present Petition. The issues raised by petitioner were summarized by him in the following terms:

I. Did the prosecution prove the essential elements of the complex crime of estafa through the falsification of public and commercial documents as charged in the 22 informations against herein petitioner?

II. Did not respondent court fail to consider the laws on contract of sale and contract of agency which are the applicable laws in the twenty two (22) transactions subject of these criminal cases, and therefore, should have acquitted the accused?

III. Did not respondent court commit grave abuse of discretion in not complying with Rule 119, Section 9 of the Rules of Court in discharging two (2) co-accused, Milagros Pisao and Dulcisimo Lucenas and who were utilized as state witnesses? and

IV. Has not the respondent Sandiganbayan committed grave abuse of discretion in continuing with the hearings of the above entitled cases knowing fully well that a petition for certiorari in the case of Rufino V. Nuñez vs. Sandiganbayan and the People of the Philippines, G.R. Nos. 50581-617 is still pending decision with this Honorable Court seeking relief under the "equal protection" ex post facto law and due process" clauses of the Constitution? ⁴

In his issues 1 and 2, petitioner basically disputes the sufficiency of the evidence adduced by the prosecution during the trial and upon which the Sandiganbayan relied in rendering its Decision. He insists that he did not participate, connive or assist and conspire in the preparation of the fake public and commercial documents utilized in the defrauding of the Republic of the Philippines. Petitioner claims that he made actual deliveries of the ready-mixed asphalt and cites affidavits and testimonies of witnesses, both of the prosecution and of the defense, in his Petition.

Presidential Decree No. 1486, as amended by P.D. No. 1606, which created the Sandiganbayan, specified that decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by this Court in accordance with Rule 45 of the Rules of Court. And Rule 45 of the Revised Rules of Court provides, in Section 2, that only questions of law may be raised in the Petition for Review and these must be distinctly set forth. Thus, in principle, findings of fact of the Sandiganbayan are not to be reviewed by this Court in a petition for review on certiorari. There are, of course, certain exceptions to this general principle. ⁵ Here, reading petitioner's Petition for Review and Memorandum in the most favorable possible light, petitioner may be seen to be in effect asserting that the Sandiganbayan misapprehended certain acts in arriving at its factual conclusions.

We have examined the assertions of petitioner on this score and found, first of all, that the arguments he makes before this Court and the allegedly favorable testimony pointed to by him were already made and adduced by him before the Sandiganbayan and considered and rejected by that court. Referring in particular to the question of whether deliveries of asphalt and other materials had been made by petitioner and his co-accused suppliers, the Sandiganbayan held:

On the second issue, whether or not there were deliveries of materials made and for which General Vouchers, Exhibits "LL", "LL-1 to "LL-125", were approved and checks, Exhibits "W-1 to "W-124", were drawn in payment thereof and actually cashed, this Court is of the firm belief that except for negligible deliveries to show semblance of deliveries, there were no deliveries made to justify payments as stated in the different vouchers and checks in question.

State witness Lucenas, who, as Property Custodian of the Danao City HED, requisitions materials and supplies and oversees the properties of the government entrusted to him, recommends approval of all the Requisitions for Supplies or Equipment and signs the Report of Inspection of materials delivered as having received the same, spontaneously and categorically declared with marked fluency and ease, that in all the one hundred twenty six (126) General Vouchers and Reports of Inspection signed by him, he has not received any material in the Wharf Road, and that it was only upon instruction of Masecampo that he signed the General Vouchers and supporting documents, some in their office already filled up and the rest in the house of Masecampo in blank (TSN, pp. 215 to 234, August 7, 1979 healing). Lucenas became more convincing in the thorough cross examination to which he was subjected wherein he remained firm and unshaken in his claim of non-delivery of construction materials in the Wharf Road. The aforesaid testimony of Lucenas was corrobarated by Salengua, Danao City Public Works Supervisor, who testified that he did not notice asphalting in the Wharf Road (TSN, p. 30, May 30, 1979 hearing); by Abdulia Rondina, Secretary-Treasurer of Barangay Maslog, one of the barangays traversed by the Wharf Road, that there was no repair or delivery of construction materials noted by her from January to June 1978 (TSN, p. 199-120, May 30, 1979 hearing); and finally by NBI Agent Nereo Joaquin that in November 1978, in the course of his investigation of these anomalies, he inspected the items of deliveries stated in the General Vouchers and "found out that there were no deliveries made as alleged in the vouchers" and that although "in the voucher it was made to appear that materials were needed in those places, we found out that there is no need to put those materials in this portion of the highway, because that highway is in a very good condition" made of "concrete and asphalt and that the shoulders of the highway were also in good condition" (TSN, pp. 65 to 68, July 25, 1979 hearing). The testimony of Joaquin becomes more convincing by his detailed report (Exhibits "CCC", "CCC-l" to "CCC-9") showing the date of the supposed deliveries, the vouchers covering them, the kilometer posts where the supposed deliveries were made, the quantity of the supposed deliveries and the contractors who supposedly made them.

The ocular inspection likewise indubitably demonstrated that there was no need to deliver to the Wharf Road 123, 683 cubic meters of gravel surface for the highway is partly asphalted and concreted and in good condition and if said volume of materials had been applied on the shoulders of the road, then in the works of Engr. Abesamis, the shoulders of the road, both sides, will be about two meters higher than the surface of the road (TSN, p. 294, July 25, 1979 hearing). The truth, however, as the ocular inspection showed, the shoulder of the Road, except a few meters which seem to have just been repaired, is in good condition for a long time judging from the age of vegetation which may have been in existence long before 1978; that some portions of the Wharf Road have no shoulder, either the road immediately adjoins the private lot like in the city proper of Danao or no shoulder at all because it is already the sea. And with respect to the 8,232 metric tons of bituminous concrete surface course, that no delivery at all was made is shown by the lack of necessity for such volume of material for more than five (5) km. of the Wharf Road is concreted and in good condition; and the fact that during the ocular inspection there was no overlaying of premix of the Wharf Road including the concrete portion which started last April 1979 shows that actually there was no application of bituminiuos concrete surface course, for had it been so, there would have been no need of the overlaying again of asphalt. Said overlaying of premix in April 1979 is even quite intriguing as it ends to conceal the true condition of the Wharf Road in 1978. ⁶ (emphasis supplied)

Petitioner next claims that "simple contracts of sale" were entered into by supplier Jariol Enterprises with the government, after having won the bid therefor, to deliver one hundred forty-seven (147) tons of ready-mixed asphalt at the Cebu North Hagnaya Wharf Road at the price P340.00 per metric ton. Petitioner then contends that the ready-mixed asphalt was in fact delivered and spread at "several places within the jurisdiction of Danao City" and "not at the Cebu North Hagnaya Wharf Road at the instance and on the orders of the officials and/or employees of the Danao City Highways Engineering District. ⁷ Petitioner claims those officials or employees instructed Jariol Enterprises to deliver the asphalt instead to certain barangay roads and selected spots such as a basketball court, and pleads that petitioner cannot be held liable as he simply complied with the instructions of the vendee.

The above argument of petitioner was met squarely by the Sandiganbayan in its Decision, by pointing out, among other things, that no public bidding had in fact taken place, and that had actual deliveries of asphalt and other materials been in fact made, there would have been absolutely no reason to engage in and fabricate the series of irregularities and forgeries which had been independently shown. ⁸ The Sandiganbayan said:

. . . If there was really an honest-to-goodness requisition of supplies and their eventual deliveries there would have been no need to commit the string of irregularities consisting of:

(1) The issuance of fake Letters of Advice of Allotment as previously discussed from which the disbursements were taken.

(2) The issuance of Requests for Obligation of Allotments in support of the General Vouchers when the Letters of Advice of Allotment to which they refer are fake, hence, they must necessarily be also fake.

(3) The Inspection Reports supporting the vouchers and signed by Lucenas as having received the materials supposedly delivered therein were signed by Lucenas in the office already filled up or in the house of Masecampo in blanks, as stated before, when actually there were no such deliveries.

(4) The absence or lack of actual bidding as testified to by Lucenas (TSN, p. 239, August 7, 1979 hearing; TSN, p. 23, August 8, 1979 hearing) when according to COA Regional Director, Region VII, Sofronorio Flores, the mode of procurement adopted was by public bidding (TSN, p. 54, July 23,1979 hearing). The Abstract of Sealed Quotations attached to the General Voucher was one of the supporting documents of the voucher that Masecampo told him to sign in the office or in his Masecampos house. Contractors who appeared in the Abstract of Sealed Quotations to have bidded like Adlawan, Nadela and Chavez testified that they did not participate or submit any bid to the Danao City HED (TSN, p. 33, July 25, 1979 hearing; TSN, pp. 273, 286, July 17, 1979 hearing). The claim of the defense that they dispensed with the bidding, except in eight instances, as it will favor the government in the light of the continuing increase of prices is without merit, for the other contractors may submit bids lower than the existing lowest bid as they may be satisfied with a profit lower than that realized by the winning bidder.

(5) The signing in one day by Pisao of several General Vouchers and the Requisition for Supplies or Equipment, the Requests for Obligation of Allotments and the Purchase Orders in support thereof wherein she certified to the availability of funds with all the other signatures appearing therein already there and the duplicate of the corresponding checks already cashed attached pursuant to the instructions of Masecampo. And when Pisao called the attention of Masecampo to the irregularity, the latter replied "No, no do not be afraid because this is kept in secret, nobody knows what is going on" (TSN, pp. 52 to 55, August 7, 1979 hearing).

(6) The giving of money on different occasions by Masecampo to Lucenas in the total amount of from P90,000.00 to P100,000.00 (TSN, p. 157, August 8, 1979 hearing) and P100,000.00 plus to Pisao (TSN, p. 80, August 6,1979 hearing) for having signed the vouchers and supporting documents, and to the other accused like Andrino and other personnel of the district like Carmen Mata, Adereta Labador, Magdalena Landero, Teofilo Cencio and Arturo Pepito at P1,800.00 per voucher (TSN, pp. 82-83, August 6, 1979 hearing). This giving of money is unusual in ordinary transactions for it would indeed be contrary to human nature for a businessman dealing with the government to throw away his hard earned profits like in these cases to the government officials or employees who helped him as if they were his partners in the transaction. For obvious reasons, it is but natural for the persons so implicated to deny having received the amount claimed to have been given them. But the fact remains that Pisao appears not to be a very disreputable person to make baseless accusations. ⁹ (Emphasis supplied)

In addressing the claim that the asphalt and other materials had been delivered and used for barangay roads instead of the specified project, i.e., the Cebu North Hagnaya Wharf Road, the Sandiganbayan held:

We credit, however, the accused with 20 truckload deliveries of gravel and sand for prosecution witnesses Barangay Captain Lauro claimed that he saw 10 truckloads of gravel and sand along the highway in Barangay Sabang and Barangay Captain Olimpio Nuñez of Looc, testified that he saw the same quantity in Barangay Looc. Other than that, the accused cannot be credited for any delivery. The deliveries claimed to have been made by them in the different barangays or near the City Hall of Danao cannot be favorably considered as deliveries covered by the transactions in question, for had they really been so, then why should they be brought to the said barangays when it is crystal-clear in all of the Requisitions for Supplies or Equipment that they are for the use in the repair of the Wharf Road with its very kilometer numbers where to be used clearly indicated. The claim of the accused, therefore, that the phrase Cebu North Hagnaya Wharf Road includes even barangay and city road as long as they are within the territorial limits of Danao City has no leg to stand on. A typical example is requisition Exhibit "LL-1" where it is there stated: "For use in the repair of road shoulders along Cebu North Hagnaya Wharf Road, Km. 29.0 to Km. 33.0 with exceptions. This is in accordance with the approved program of work." The claim, like that of Nuñez that deliveries to the barangays were made despite the contract to deliver only in the Wharf Road because of the directive of Engr. Sucalit (TSN, p. 92, September 18, 1979 hearing) is flimsy for there was no modification of the contract to deliver to that effect before or subsequent to the delivery. The testimony of Sucalit that he ordered deliveries of the materials to several barangay roads because of persistent demands of the barangay residents through resolution, personal request from the City Mayor, resolution of the City Council and the Memorandum of the Director of the Bureau of Construction and Maintenance, MPH (TSN, p. 378, Sept. 17, 1979 hearing) is devoid of merit for there were then funds for these barangay roads as testified to by accused Alberto (TSN, pp. 19-21, Sept. 3, 1979 hearing) and NBI Agent Nereo Joaquin (TSN, p. 76, July 25, 1979 hearing). And in the valid Letters of Advice of Allotment issues for the Danao City HED, there was actually P30, 000. 00 alloted for repair, reconstruction, restoration of Barangay roads and bridges (Exhibit "KK"). Their testimonies are also supported by Section 6 of P.D. No. 702, which clearly states as follows:

SECTION 5. Appropriations — All national funds appropriated and programmed by the Department of Public Highways for the construction, rehabilitation, betterment, improvement and maintenance of barangay roads and bridges including the shares of provinces, cities, municipalities and the allocation for the maintenance of farm-to-market or feeder roads and bridges within a barangay area, from the Highway Special Fund, shall be released to the Department of Public highways which shall then sub-allot them to the barangay but construction and maintenance shall be under the supervision of the Department of Public Highway through the Bureau of Barangay Road.

Moreover, the various requests of the different barangay councils to improve or repair their barangay roads (Exhibits "121-A-Sucalit", "122-A-Sucalit", "123-A-Sucalit", "124-A-Sucalit") and the request of Mayor Ramon D. Durano, Jr. for the repair of the barangay road of Tuburan Sur were all made in 1977. If Sucalit, therefore, desires to favorably respond to those requests then he should have made the documents pertaining thereto like the Requisition for Supplies or Equipment, Report of Inspection and the General Voucher reflect such fact, if there is nothing wrong about it. Why will he resort to falsification of public by making it appear that the materials are for the Wharf Road when his intention was for the repair or improvement of the barangay roads? Queer, indeed! Besides, the telegram-memorandum relied upon by Sucalit (Exhibit "49-Sucalit") was clearly only for 1977. The truth of the matter, however, is that said telegram-memorandum is immaterial as there is no appropriation or funds alloted to consider in these cases because the Letter of Advice of Allotment are all fake.

The delivery receipts and tally sheets presented by De los Angeles (Exhibits "3-A-De los Angeles" to "21-A-De los Angeles"). Gabison (Exhibits "5-A-Gabison" to "4-A-Gabison"), Nuñez (Exhibits "3-Nunez", "3-A-Nunez" to "3-Q-Nunez", "3-A-1- Nuñez" to "3-A-17-Nunez "thru "40 Nuñez", "40-A-Nuñez" to "40-P-Nuñez" to "40-A-1 Nunez" to "40-A-16 Nuñez )and Jariol (Exhibits "12", "12-A", to "12-Z", 12-AA" to"12-ZZ", "12-AAA" to "12-ZZZ," 12-AAAA" to "12-DDDD") are feeble to prove the deliveries in question for said receipts do not reflect that they were actually delivered in the Wharf Road. The integrity of said receipts is even destroyed by the foregoing discussion especially the testimony of Lucenas, Salengua and NBI Agent Joaquin that there was actually no delivery in the Wharf Road. They may be last attempts to make regular what was apparently irregular, to make existing, what has not existed at all considering that there was no showing that they produced during the preliminary investigation of these cases. ¹⁰ (Emphasis supplied)

Thus, it appears to the Court that petitioner has failed to show any misapprehension of facts on the part of the Sandiganbayan.

Petitioner, in his effort to clear himself of criminal liability, contends that the criminal charges should have been brought against Jariol Enterprises rather than against himself since he had merely acted as agent of Jariol Enterprises. It is not disputed that Jariol Enterprises is a sole proprietorship owned by petitioner's father and of which petitioner was the manager. A sole proprietorship does not, of course, possess any juridical personality separate and apart from the personality of the owner of the enterprise and the personality of the persons acting in the name of such proprietorship. It follows that Jariol Enterprises was not a principal that petitioner Antolin Jariol, Jr. merely represented as an agent. Petitioner must be held directly liable for his acts and involvement in the fraudulent and simulated transactions which are the subject of the one hundred twenty-six (126) cases before the Sandiganbayan. Moreover, if it be assumed (though arguendo only) that Jariol Enterprises possessed separate juridical personality, criminal responsibility must still be borne by the officers actually managing or operating the enterprise, in this case petitioner Antolin Jariol, Jr. ¹¹ An artificial and juristic person can neither act with the mens rea which is essential for criminal liability nor be confined in a jail.

We turn to petitioner's contention that the Sandiganbayan committed grave abuse of discretion in discharging the two (2) co-accused Milagros Pisao and Dulcisimo Lucenas, who were utilized as state witnesses. It appears to the Court that the requirements set out in Section 9 of Rule 119 of the Revised Rules of Court for the discharge of an accused for utilization as a state witness, were sufficiently complied with. ¹² The existence of the five (5) requirements there listed is for the trial court to determine and if that court is satisfied that the discharge of one or more co-accused so that they could testify for the prosecution is proper, that court may issue the order of discharge. Once a co-accused is discharged and the released witness actually testifies, any legal deficiency that might have attended the discharge of the witness from the information does not impact upon the admissibility and credibility of the testimony given, provided such testimony is otherwise admissible and credible. ¹³

Finally, petitioner ascribes grave abuse of discretion to the Sandiganbayan in continuing with the hearing of the cases before it despite pendency of a petition for certiorari filed before the Supreme Court by co-accused Rufino Nuñez. Although the Court originally issued a temporary restraining order preventing the Sandiganbayan from continuing with the proceedings against Rufino Nuñez, by reason of which trial of the co-accused including petitioner was suspended, that restraining order was lifted on 11 July 1979. Upon the lifting of that restraining order, the Sandiganbayan proceeded with the trial of the one hundred twenty-six (126) cases before it. This final claim of petitioner was made in the hope that he could benefit from the constitutional law issues which had been raised by Rufino Nuñez before the Supreme Court: that the statute creating the Sandiganbayan had violated the equal protection and due process clauses of the Constitution as well as the constitutional prohibition of ex post facto legislation. This Court settled those issues in 1982 when it promulgated its decision in Nunez v. Sandiganbayan, ¹⁴ sustaining that statute as valid and constitutional.

WHEREFORE, for all the foregoing, the Petition for Review is hereby DENIED for lack of merit and the Decision of the Sandiganbayan appealed from is hereby AFFIRMED with respect to petitioner Antolin Jariol, Jr. Costs against petitioner.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Sarmiento, J., is on leave.

Footnotes

1 Rollo, pp. 68-71.

2 Petition for certiorari, Rollo, pp. 7-8.

3 Rollo, pp. 50-148.

4 Petition, Rollo, pp. 34,

5 Palma Gil v. People, G.R. No. 73642, 1 September 1989; Sacay v. Sandiganbayan, 142 SCRA 593 (1986); Cesar v. Sandiganbayan, 134 SCRA 105 (1985).

6 Rollo, pp. 80-83.

7 Memorandum for Petitioner, Rollo, p. 358.

8 In Mangubat v. Sandiganbayan, 147 SCRA 478 (1987) and Gabison, et al. v. Sandiganbayan, 151 SCRA 61 (1987), the Court in effect affirmed the finding of the Sandiganbayan concerning the existence of these irregularities.

9 Rollo, pp. 83-86.

10 Rollo, pp. 86-89.

11 West Coast Life Insurance, Co. v. Hurd, 27 Phil. 401 (1914).

12 Section 9, Rule 119 of the Revised Rules of Court provides: "Sec. 9. Discharge of one of several defendants to be witnesses for the prosecution. — When two or more persons are charged with the commission of a certain offense, the competent court, at any time before they have entered upon their defense, may direct one or more of them to be discharged with the latter's consent that he or they may be witnesses for the government when in the judgment of the court: '

(a) There is absolute necessity for the testimony of the defendant whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said defendant;

(c) The testimony of said defendant can be substantially corroborated in its material points;

(d) Said defendant does not appear to be the most guilty;

(e) Said defendant has not at any time been convicted of any offense involving moral turpitude.'"

13 People v. de Leon, 108 Phil. 800 (1960); People v. Bautista, etc., et.al., 106 Phil 39 (1959) ; umted states vs. Alabat, 38 Phil. 698 (1918).

14 111 SCRA 433. This ruling was reiterated in Calubaquib v. Sandiganbayan, 177 SCRA 493 (1982); De Guzman v. People 199 SCRA 337 (1982); Rodrigueez v. Sandiganbayan, 120 SCRA 659 (1983); Alviar v. Sandiganbayan, 137 SCRA 63 (1985) ; and Mangubat v. Sandiganbayan, supra.

People vs Sazon, G.R. No. 89684, September 18, 1990

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 89684 September 18, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GERARDO SAZON, alias "INSIK," accused-appellant.

The Solicitor General for plaintiff-appellee.

Benjamin P. Sorongon for accused-appellant.

REGALADO, J.:

For the death of Wilfredo Longno, alias, "Inday," on September 17, 1983 at Barangay Progreso, Lapuz, La Paz, Iloilo City, herein accused-appellant Gerardo Sazon, alias "Insik," and Cornelio Altejos, alias "Toto," were charged with murder before the Regional Trial Court of Iloilo, ¹ in an amended information dated October 18, 1983. ² However, only herein accused was arraigned, and pleaded not guilty, since Cornelio Altejos was not apprehended and has since remained at large.

After trial, appellant was found guilty and sentenced to serve the penalty of reclusion perpetua. He was further ordered to pay the heirs of the deceased the amount of P16,628.40 representing hospital bills, expenses for the coffin, tomb, wake and attorney's fees, and P30,000.00 as indemnity for the death of the victim.

The antecedental facts which led to the filing of the criminal action below are herein under set forth as synthesized by the court a quo from the testimonies of the witnesses, ³ and as clarified and amplified by us from the transcripts of the notes of the hearings.

On September 15, 1983, in the barangay aforementioned, a certain Ernesto Romualdez was accosted by appellant near the barangay hall for allegedly circulating the rumor that appellant and his companions were engaged in stealing. Upon confrontation, appellant boxed Romualdez which caused the latter to fall. Wilfredo Longo, who was then present at the scene, approached and helped the fallen Romualdez and pushed appellant away. This apparently angered appellant who, in his native dialect said "Andam ka lang Inday kay patyon ta guid," ("Watch out Inday for I will kill you") to which Longno retorted, "Just do it."

Two days later, or on September 17, 1983, at about 8:00 o'clock P.M., appellant and his cousin, Cornelio Altejos, were drinking softdrinks at the shire of Gloria Aposaga when Longno passed by. Thereupon, appellant and Altejos left their softdrinks half-assumed and followed Longno.

Longno eventually reached the bench near the public faucet where the group of Massulini Dullete, Samuel Canoso and Nathaniel Ramos were sitting. He joined the group in their conversation by saying, "Upon ako dira." ("I'll go with what you say."). Shortly thereafter, appellant and Altejos arrived and appellant accosted and pointed a gun at Longno, saying, "Maano ka?" ("What are you going to do?"). Longno then faced appellant and said, "Brod, tiruha lang." ("Brod, just shoot.")

Apparently irked by the response, appellant fired the gun, hitting Longno in the left forearm. Dullete, Canoso and Ramos then scampered for safety as appellant and the wounded Longno grappled for the gun. It was while the two were thus struggling that Altejos stabbed Longno in the chest, after which both appellant and Altejos ran away.

Longno then came out of the footwalk shouting, "Tay tiniro ako ni Insik, binuno ako ni Toto." ("Father, I was shot by Insik and stabbed by Toto."). He was able to run about thirty (30) meters before he fell. His father, Julio Longno, ran to his son who was then lying sprawled on the ground. Rushed to the St. Paul's Hospital, Wilfredo Longno died. Later, it was established that the cause of death was hemorrhage, secondary to stab wound.

Appellant's version of the incident, however, differs. He admits having shot Longno but pleads self-defense. He claims that on September 17, 1983, he left the house of his father-in-law at about 8:00 o'clock P.M. with his cousin, Altejos. The latter had asked for help to have a .22 caliber revolver repaired and appellant was taking the revolver to a policeman friend of his. On their way, appellant saw Longno from a distance. Upon his approach, Longno allegedly said, "Insik, I heard that you are not afraid of me. Maybe you want to be taught a lesson." ⁴

Appellant claims that the deceased had a revolver tucked in his waist and was about to draw the same. He, therefore, parried the gun but it fired hitting one of appellant's left fingers which was later amputated. It was then that appellant pulled out his gun and shot Longno in the forearm. Appellant and Longno afterwards grappled for the gun. Altejos allegedly tried to separate appellant and Longno but he was brushed aside by the latter. In the course of their struggle, Altejos then shouted to appellant, "I stabbed Inday, run," and so he and Altejos ran away. ⁵

Appellant, in his brief, makes the following assignment of errors:

1. The trial court erred in not acquitting the accused-appellant for having acted in complete self-defense.

2. The trial court erred in convicting the accused-appellant of the crime of murder and in imposing the penalty of reclusion perpetua when the prosecution has not established by competent evidence the existence of conspiracy and the presence of the aggravating circumstances of evident premeditation and abuse of superior strength. ⁶

Appellant's version does not inspire credence. Well-entrenched is the rule that where the accused invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself. He must rely on the strength of his own evidence and not on the weakness of the prosecution. For, even if the prosecution evidence is weak, it could not be disbelieved after the accused himself had admitted the killing. ⁷

It is a statutory and doctrinal requirement that for the justifying circumstance of self-defense, the presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself. ⁸

In the present case, the burden of evidence having been shifted, we hold that the defense failed to establish the primary element of unlawful aggression on the part of the victim and, therefore, the plea of self-defense must fail. The narrations of the sequence of events by the accused, and by the lone alleged eyewitness for the defense, Jose Randera, are unconvincing primarily on account of their inherent inconsistency and conflict with each other.

Appellant on cross-examination testified as follows:

Q How far were you from Inday Longno when he allegedly fired a shot at you?

A One (1) meter.

Q At one (1) meter distance did (sic) you not able to recognize what kind of a gun was that allegedly used by Inday Longno?

A No, sir, at first I only saw the handle of the gun and I did not see the body of the gun.

Q But you can recognize between a pistol and a revolver?

A Yes, sir.

Q What was that allegedly used by Inday Longno, was that a pistol or a revolver?

A Because immediately after he said those words 'Maybe you want to learn a lesson he immediately drew his gun and I was able to parry.

xxx xxx xxx

Q When you fired at Inday Longno hitting him on his left arm near the elbow, was he still holding that gun he used in shooting you hitting you at the left palm?

A No, sir, because of too much force the gun fell.

Q Did you not pick up the gun?

A No, sir. ⁹

On the other hand, defense eyewitness Jose Randera stated in his testimony:

ATTY. SORONGON: (To the witness)

Q While Wilfredo Longno alias Inday was pointing a gun at Gerardo Sazon alias Insik, what was Gerardo Sazon doing?

WITNESS JOSE RANDERA:

A When Inday said something, Insik Sazon brushed aside the gun and the gun fired.

xxx xxx xxx

Q You said, that Wilfredo Longno alias Inday pointed a gun at Gerardo Sazon alias Insik, with what hand was he holding that gun when he was pointing that gun to Gerardo Sazon?

WITNESS JOSE RANDERA:

A His right hand.

ATTY. SORONGON (To the witness)

Q You said that Gerardo Sazon brushed aside the gun which was being pointed to him, what hand did Gerardo Sazon used (sic) in brushing that gun?

A His left hand.

Q When Gerardo Sazon brushed aside the gun pointed to him, what else if any did he do?

A Insik also drew a gun and shot Inday,

COURT: (To the witness)

Q What hand?

A Right hand. He drew a gun with his right hand and shot Inday.

xxx xxx xxx

ATTY. SORONGON (To the witness)

Q You said that there was a brushing, who was brushing aside and who was brushed aside?

WITNESS JOSE RANDERA:

Q Inday parried Cornelio Artejos (sic).

COURT: (To the witness)

Q And, what happened next?

Cornelio Artejos (sic) pulled out a knife and stabbed Inday.

Q This happened when Inday was already hit by Sazon?

A Yes, sir.

ATTY. SORONGON (To the witness)

Q When Cornelio Artejos (sic) stabbed Wilfredo Longno alias Inday, what was Gerardo Sazon and Wilfredo Longno doing if they were doing anything.?

A They were graffling of (sic) the weapon.

Q You are referring to whose weapon they were graffling (sic) at that time?

A Inday's weapon. ¹⁰

The testimonies aforequoted reveal an inconsistency on the matter of the gun for which appellant and the victim supposedly grappled. While appellant claimed that the victim's weapon fell to the ground, witness Randera stated that appellant and the victim still grappled for the latter's gun. The latter statement is itself difficult to imagine since appellant at that precise moment was also allegedly holding with his right hand the gun which he used in shooting Longno.

It is necessary to stress that such inconsistency cannot be considered a minor detail since the homogeneity of the answers to the inquiry could very well have established the existence of not only a single gun. Had this prevarication not been exposed, said testimonies could have bolstered the defense theory that the victim himself carried a gun which he used to assault the appellant and thus establish the element of unlawful aggression contrived by the defense.

Furthermore, the credibility of witness Randera is shattered by this finding of the trial court which is sustained by the evidence:

The testimony of security guard Jose Randera deserves scant consideration not only because he admitted that he was one of those threatened by the deceased Wilfredo Longno but also because he wilfully falsified the truth when he testified that the deceased was shot and hit by the accused on the body and that he saw blood come out just below the right breast of the deceased. The physical evidence in this case showed that there was no wound on the right breast of the deceased nor on any part of his body. The gunshot wound sustained by the deceased was only on his left forearm. Considering that he testified that there were no other persons there during the incident except the accused, the deceased and Cornelio Altejos when the overwhelming weight of evidence is that there were a lot of other people during the incident (this) showed that this witness had small regard for the truth. ¹¹

Coming back to appellant's representations in court, his vacillation as to what he allegedly did after Altejos stabbed the victim is another instance which renders his version highly suspect. While stating on direct examination that he ran to the main road, ¹² he claimed on cross-examination that he only walked a short distance and then went to the hospital upon seeing that his hand was wounded. ¹³ The latter statement is itself inconsistent with his earlier declaration during the same proceeding that he was brought by a policeman to the hospital. ¹⁴ This irresolution on the part of the appellant was obviously to avoid any imputation of guilt against him arising from his flight. ¹⁵

At any rate, unlawful aggression on the part of the victim is further negated by the physical evidence in the case. Again, we quote the trial court with approval:

The testimony of the accused Gerardo Sazon that the deceased was armed with a gun and fired at him is not borne out by the physical evidence in this case. The paraffin test conducted on the cadaver of the deceased showed that the hands of the deceased were negative for gunpowder residues indicating that he did not fire a gun during the incident. The other parts of his body like his forearm and his abdomen bore strong traces of gunpowder residues because of the burst of the gun of the accused. The court is convinced beyond reasonable doubt that there was only one gun during the incident and that the gun belonged to and/or was used by the accused Gerardo Sazon. That a part of one of his fingers was blown off at very close range, according to Dr. Ely Canja strongly indicated that the accused accidentally hit his finger when he and the deceased grappled for the possession of the gun. ¹⁶

In contrast, appellant was found positive for the presence of gunpowder residues (nitrates). While the presence or absence of nitrates cannot indeed be considered conclusive proof that one has or has not fired a gun, the following testimony on direct examination by prosecution witness Zenaida Sinfuego a forensic chemist whose expertise on the matter was sufficiently established, yields this verification:

Atty. E. Original:

Q Now, have you conducted also a paraffin examination on the person of Wilfredo Longno?

COURT:

Q On the cadaver?

Atty. E. Original:

Q On the cadaver?

A Yes, Sir.

Q Have you brought with you the result of that examination?

A Yes, Sir.

Q Now I have here a carbon original of Chemistry Report No. C-200-83, result of the paraffin test on the cadaver of Wilfredo Longno, please compare this carbon original to the original copy in your possession whether it is the same?

A The same.

xxx xxx xxx

Q This report says specimen submitted, one pair of paraffin casts taken from the left and right hands of the cadaver of one Wilfredo Longno, one piece of paraffin cast taken from left forearm of same subject and one piece paraffin last taken from the left side of the abdomen. Purpose of laboratory examination: to determine the presence of gunpowder residues (nitrates) on the above-mentioned specimens. Findings, cast from hands-negative for the presence of gunpowder residues (nitrates). Cast from forearm-positive for the presence of gunpowder residues (nitrates) in the 1 1/2 in, 2 1/2 in, 3 in, and 4 in radius. Cast from the left side of the abdomen-positive for the presence of gunpowder residues (nitrates) in the center and in the 1 and 2 in radius. In the layman's language Mrs. Sinfuego, will you please explain to the Honorable Court these findings 1, 2 and 3?

A Casts from the hands, negative for the presence of gunpowder residues that means that, no blue specks were found in the hands of the cadaver.

COURT:

Q Before we go on, what is the implication when the finding is negative?

A Probably, the subject never fired a gun.

Q Within what time-span?

A The gunpowder will stay only within three days.

Q When was this examination conducted?

A Last September 18,1983.

Q Now before we go on, on that Chemistry Report which has been marked as Exhibit 'D' regarding the paraffin test conducted on the right hand of the accused Gerardo Sazon, your finding there states, positive for gunpowder residues, what is the implication?

A The implication states positive, that Sazon have (sic) fired a gun.

Q Within what time-span?

A Within three days.

Q Within three days?

A Within three days.

Q From the examination?

A Three days from the subject firing of a gun.

Q And when was the examination conducted?

A Last September 19,1983, Your Honor.

Q September?

A Nineteen.

Q So he could have fired a gun on September 17,1983?

A I think that depends, Your Honor on the requesting party.

Q I am asking you if it was possible that he fired a gun which left the powder burns, was it possible that he fired a gun on September 17?

A Yes, Your Honor. ¹⁷

On cross-examination, Sinfuego further testified as follows:

Q Is it possible for a person who has not fired a firearm and could be (sic) positive for nitrates?

A Yes, Sir.

Q In what instance?

A For example, if he is near to the person firing a gun it is possible that it was carried by the wind.

Q So that is the only case wherein you find nitrates on the person who has not fired a gun?

A Also from the fertilizer.

Q You mean, a person handling fertilizers could also be positive for nitrates?

A Yes, Sir but we have to consider also the time of reaction, from contaminance (sic) for the nitrates will take effect between two to three minutes.

COURT:

Q Can you determine on your examination whether the nitrates found was (sic) the nitrates left by gunpowder residues or by fertilizer can you distinguish that?

A Yes, Sir.

Q And this (sic) nitrates found on the hands of the accused, could you determine where did it (sic) come from?

A Gunpowder residues. ¹⁸

Parenthetically, it is true that the bad moral character of the offended party may be proven in evidence to establish in any reasonable degree the probability of the offense charged, ¹⁹ e.g., the quarrelsome nature of the victim may tend to establish that he started the unlawful aggression. Nonetheless, such evidence, seeking to establish as it does only a probability, cannot prevail over facts sufficiently proven by the prosecution during the trial belying such aggression. These observations find application in the instant case where the defense presented and now argue on character evidence consisting of criminal charges involving minor offenses which had been filed against the deceased, but not one of which resulted in conviction and were in fact dismissed except for one case which was sent to the archives. ²⁰

Obviously, whether or not appellant acted in self-defense is essentially a question of fact. Being so and in the absence of any showing that the Court a quo failed to appreciate facts or circumstances of weight and substance that would have altered its conclusion, the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies. No compelling reason, therefore, lies for this Court to disturb the trial court's finding that appellant did not act in self-defense. ²¹

The Court, however, holds that appellant, albeit guilty, can only be convicted of homicide and not murder. The trial court correctly held that the killing was not accompanied by treachery. It, however, ruled that there was evident premeditation on the part of appellant. We find the records sorely wanting in evidence to support the latter conclusion.

The fact that appellant told the deceased that he would kill him and that two days later, after the deceased passed by the store where appellant and Altejos were drinking softdrinks the latter followed the former and inflicted the fatal blows, cannot adequately sustain a conclusion of premeditated killing.

To justify its attendance, the prosecution must prove (1) the time when the offender determined to commit the crime, (2) an act manifestly indicating that the culprit has clung to his determination, and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect upon the consequences of his act. ²²

In the case at bar, the first and second elements are lacking. The angry outburst of appellant in that incident of September 15, 1983, warning the victim that the former would kill him, does not convince us that, under the circumstances therein, appellant as of that time had already decided to kill the victim. A homicidal premeditation is studiedly conceived and not impulsively adopted just like that and, worse, publicly announced. It was more of a spontaneous expression of resentment or bravado on the part of appellant.

Again, the circumstance that appellant and Altejos were by chance at the store when the victim passed by cannot be taken as manifestly indicating that appellant had clung to his determination to kill the victim. No evidence was presented to show that appellant purposely waited there for the deceased. Nor was there any showing that the deceased frequently passed by the same route as to warrant and explain appellant's waiting for the former at that place. Indeed, that the meeting may have been purely accidental is not a remote possibility. We are more inclined to believe that it was the belligerent and defiant demeanor of the victim when confronted by appellant near the public faucet that precipitated assault.

Under such considerations and there being no other evidence to prove that the death of the victim was the result of meditation, calculation or reflection, evident premeditation cannot be appreciated to qualify the killing to murder. ²³ The circumstances qualifying or aggravating the act must be proved in an evident and incontestable manner. They must be proved as conclusively as the acts constituting the offense. ²⁴ Thus, for the same reason, the aggravating circumstance of abuse of superior strength cannot be appreciated in this case. Superior strength may aggravate or qualify a crime, only if it is clearly shown that there was deliberate intent to take advantage of it. ²⁵ In the absence of any evidence to show that the accused purposely sought to use their superior strength to their advantage in the present case, a finding to that effect by the trial court cannot be sustained.

Finally, the fact that appellant did not inflict the mortal wound upon the deceased is of no moment, since the existence of conspiracy was satisfactorily shown by the evidence. The coordinated acts of appellant and Altejos of immediately following the victim and jointly confronting him thereafter reveal a concordance and unity of thought which resulted in the encounter. The circumstances that after the accused shot the victim in the forearm and, while he and the victim were grappling for appellant's gun, Altejos stabbed the victim to death, indicate closeness and coordination of their action geared towards a common purpose, that is, to kill the victim. ²⁶ Proof of a previous agreement to commit the crime is not absolutely essential to establish a conspiracy. It is sufficient that the accused be shown to have acted in concert pursuant to the same objective, ²⁷ as such circumstance is invariably indicative of a conspiratorial agreement.

It bears mention, at this point, that while we have ruled out evident premeditation in the case, this does not negate the existence of a conspiracy. True, conspiracy generally involves evident premeditation, but this circumstance requires for its raison d' etre a sufficient time in a juridical sense for the accused to meditate and reflect on the consequences of his intended action. Such time element is not an indispensable requirement for a conspiracy to exist. ²⁸ Consequently, we find that there was a conspiracy between appellant and Altejos although, for lack of conclusive showing, we cannot consider evident premeditation against appellant.

The rule is that where a conspiracy is proven, a showing as to who inflicted the fatal wound is not required to sustain a conviction. ²⁹ The act of one in killing the victim becomes the act of all the accused. Insofar as Cornelio Altejos is concerned, however, the trial court never acquired jurisdiction over him and he can neither be convicted nor exculpated herein. References in this judgment to him are, therefore, obiter and with no binding effect on him. ³⁰

WHEREFORE, the judgment of the trial court is MODIFIED. Accused-appellant Gerardo Sazon is declared GUILTY beyond reasonable doubt of the crime of homicide and is hereby sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal.

The award by the lower court of the items of civil liability to be paid by accused-appellant to the heirs of the deceased is hereby MODIFIED by disallowing the grant of attorney's fees for lack of basis, and increasing the death indemnity to P50,000.00 in accordance with the policy adopted by the Court en banc on August 30,1990.

SO ORDERED.

Melencio-Herrera (Chairman), Padilla and Sarmiento, JJ., concur.

Paras, J., is on leave.

Footnotes

1 Judge Sixto R. Guanzon, presiding.

2 Original record, 15.

3 Rollo, 32-35.

4 Ibid., 38-39.

5 Ibid., 39.

6 Ibid., 56.

7 People vs. Bayocot, G.R. No. 55285, June 28, 1989.

8 People vs. Batas, et al., G.R. Nos. 84277-78, August 2, 1989.

9 TSN, March 1, 1988,16-17.

10 TSN, September 17,1985,10-14.

11 Rollo, 40.

12 TSN, October 12, 1987, 244.

13 TSN, March 1, 1988, 270.

14 Ibid., 264.

15 See U.S. vs. Alegado, 25 Phil. 510 (1913).

16 Rollo, 41-42.

17 TSN, February 8, 1984, 30-32.

18 Ibid., 34-35.

19 Section 51, Rule 130, Rules of Court.

20 TSN, February 26, 1988, 231-233.

21 People vs. Alvarez, etc., 163 SCRA 745 (1988).

22 People vs. Talla, et al., G.R. No. L-44414, January 18, 1990.

23 U.S. Vs. Balagtas, et al., 19 Phil. 164 (1911).

24 People vs. Tiongson, 130 SCRA 614 (1984); People vs. Atienza, 148 SCRA 147 (1987).

25 People vs. Salcedo, et al., 172 SCRA 78 (1989).

26 People vs. Kindo, et al., 95 SCRA 553 (1980).

27 People vs. Abueg, 145 SCRA 622 (1986); People vs. Cantre, et al., G.R. No. 70743, June 4,1990.

28 People vs. Custodia, et al., 97 Phil. 698 (1955); People vs. Arcamo, etc., et al., 105 SCRA 707 (1981).

29 People vs. Tala, et al., 141 SCRA 240 (1986).

30 People vs. Eswan, et al., G.R. No. 84713, June 4, 1990.

People vs. Cantuba, G.R. No. 79811 March 19, 1990

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 79811 March 19, 1990

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

The Office of the Solicitor General for plaintiff-appellee.

Ernesto P. Pangalangan for defendants-appellants.

PARAS, J.:

The accused-appellants Pio Cantuba and Pedrito Lalaguna together with co-accused Gualberto Versales (alias Berting), Satur Gerbuela, Ricardo Baco, Rogelio Penales (alias Pugo), Romeo Totong Labuyo and Mayor Moises Espinosa were charged with the crime of Murder under Art. 248 of the Revised Penal Code in an amended information which reads as follows:

That on or about December 23, 1981 in the municipality of Masbate, province of Masbate, Philippines, and within the jurisdiction of the Honorable Court, the said accused, confederating with each other, did then and there willfully, unlawfully and feloniously, with evident premeditation and with night-time as a means to better facilitate the commission of the crime, attack, assault and use personal violence upon one ATTY. ADOLFO CELERA, by then and there shooting him at several parts of his body, thereby inflicting upon the latter, mortal wounds which are the direct and immediate cause of his death thereafter.

Contrary to law. (p. 124, Rollo)

The accused Cantuba, Lalaguna, Versales, Gerbuela, Baco and Mayor Moises Espinosa pleaded not guilty upon arraignment. Penales and Labuyo remained at large and were not arraigned.

The defense, in a motion for an order requiring the Prosecuting Fiscal or Fiscals in this case to conduct another investigation and thereafter to include in the Amended Information all persons, who appear responsible therefor, moved for the inclusion of one Pat. Torrecampo, a confessed participant in the alleged crime, as one of the accused. Although the motion was granted by the court, the issue was eventually rendered moot and academic when the trial was completed without the Prosecuting Fiscals having complied with the court's order.

On April 27, 1987, the trial court rendered a decision, the dispositive portion of which states:

WHEREFORE, premises considered, we find accused PIO CANTUBA and PEDRITO LALAGUNA, guilty beyond reasonable doubt of the crime of Murder, and hereby sentences each of them to suffer the penalty of RECLUSION PERPETUA, to indemnify jointly and solidarily the heirs of Atty. Celera in the sum of One Hundred Thousand (P100,000.00) Pesos, and to pay the costs.

Accused GUALBERTO VERSALES, SATUR GERBUELA and MAYOR MOISES R. ESPINOSA, are hereby ACQUITTED, for insufficiency of evidence to establish guilt beyond reasonable doubt, with the consequent cancellation of their bailbonds.

The case against accused RICARDO BACO who is already dead is DISMISSED.

The case against ROMEO alias TOTONG LABUYO and ROGELIO PENALES alias PUGO who, up to the present are at large, is hereby placed in the ARCHIVES.

SO ORDERED. (pp. 66-67, Rollo)

The trial court gave credence to the testimonies of the prosecution witnesses Margie Rotor, Romulo Tama and Pat. Rodolfo Torrecampo and on the basis of their testimonies the facts as hereunder narrated are reconstructed by the Solicitor General, as follows:

On December 21, 1981, Patrolman Rodolfo Torrecampo, then under suspension but working as the bodyguard of Mayor Moises Espinosa, went to Dagusungan, Milagros, Masbate to fetch one Romeo "Totong" Labuyo, the "encargo" of Mayor Espinosa's ranch, and to Pulang-Bato, Masbate, Masbate to fetch Pio Cantuba, the mayor's "sidekick" in his cockpit (TSN, Sept. 3, 1985, pp. 335, 337; TSN, September 2, 1985, p. 297).

On December 23, 1981, all three went to the provincial jail to secure the release of Ricardo Baco, a detention prisoner (TSN, Sept. 3, 1985, pp. 338, 342). Together with Baco, they proceeded to the house of Saturnino Gerbuela, a provincial guard, but the latter was not at home (Id., p. 343). They left Baco behind to wait for Gerbuela with instructions that they both should proceed to Sunrise Disco Pub a 6:00 p.m. (Id.). Torrecampo, Labuyo and Cantuba went to the Bel-Air Theater to kill time staying there for about two hours before proceeding to the Sunrise Disco Pub (Id., pp. 344, TSN, November 7, 1985, p. 446). Ricardo Baco was already at the Sunrise Disco Pub when they arrived (TSN, September 3, 1985, p. 345).

Torrecampo told the group to wait outside while he checked inside the pub to see if Atty. Adolfo Celera was inside (Id., p. 345). As the pub was dark, he could not confirm Atty. Celera's presence (Id., p. 346). Coming out of the pub, Torrecampo explained to Cantuba, Labuyo and Baco how they would kill Atty. Celera. He handed to Labuyo a .45 cal. pistol and to Baco a knife (machete) (Id., pp. 346-347). Torrecampo described the features of the victim to Baco (Id., p. 346) and instructed Cantuba, who knew Atty. Celera, to signal Baco and Labuyo as soon as he sees their victim approaching (TSN, November 7, 1985, p. 446).

Atty. Adolfo Celera was a practicing lawyer and had run for public office (Id., p. 450). He had been the lawyer for the complainant in a rape case brought against Mayor Espinosa, formerly Governor of Masbate (TSN, January 23, 1985, p. 75, TSN, October 21, 1987, pp. 3-4), who at the time of Atty. Celera's death had filed a case against the latter for moral damages (TSN, September 2, 1985, p. 294). After the trial of the damage suit began, Atty. Celera confided to his wife that Mayor Espinosa had warned him that should he lose the suit a "miracle" would happen (TSN, October 21, 1985, pp. 4, 5). Subsequently, Atty. Jolly Fernandez (later Assemblyman), who collaborated with Atty. Celera in the rape case against Mayor Espinosa, was "bombed" as he left the court on December 2, 1981 (Id., pp. 6, 7).

On the evening of December 23, 1981, Atty. Celera, together with Margie Rotor and Ave Refil, attended the Christmas party of the Bureau of Land Transportation (BLT). They left the place after staying for one hour and took a tricycle to Pil-Tel, a local long distance telephone company. Atty. Celera went inside Pil-Tel while his companions waited outside. Margie Rotor noticed that there were also three other people standing outside Pil-Tel (Id., p. 59) one of them she recognized as Pio Cantuba a long time acquaintance (Id., p. 60). After 5 minutes, Atty. Celera came out of Pil-Tel and then headed for the Sunrise Disco Pub (TSN, January 23, 1985, pp. 56, 58, 61) just across the street from Pil-Tel. (Id., p. 58, 59; TSN, June 10, 1985, p. 135). Ave Refil was called by somebody and Atty. Celera and Margie Rotor went inside the Pub and ordered a bottle of White Castle and before they had consumed its contents Atty. Celera told her that he will go home already (Id., p. 62)

Margie Rotor accompanied Atty. Celera to the gate of the pub where they stood facing the street waiting for a tricycle, with Margie Rotor standing at the right side of Atty. Celera (TSN, January 23, 1985, p. 63). The gate was lighted by a long flourescent lamp. Near them, by the side of Carandang Optical, Margie Rotor noticed a man standing by a blue Yamaha Motorbike with a butterfly sticker (Id., p. 71). She also noticed that Pio Cantuba and his two companions were still standing near the wall of Pil-Tel (Id., p. 63; TSN, January 24, 1985, p. 133). Then the three dispersed. Pio Cantuba walked towards UCPB which was to her left and then Cantuba returned and headed towards where she and Atty. Celera were standing (Id., p. 64). One of Cantuba's companions who was wearing white t-shirt and maong pants, whom Margie Rotor recognized in the courtroom and turned out to be Ricardo Baco, circled behind them (Id., p. 64).

As Cantuba slowly approached them, Margie Rotor saw that Cantuba was holding a gun (Id., p. 65). Then she heard a gunfire (TSN, September 3, 1985, p. 348) and Atty. Celera staggered. Then Ricardo Baco rushed from behind and stabbed Atty. Celera twice on the left chest (Id., p. 349; TSN, January 23, 1985, p. 66). Atty. Celera fell to the ground, groaning (Id., p. 67).

As Cantuba and Baco were fleeing, Margie Rotor saw a "tricycle" speeding towards the fallen victim (Id., p. 68) but Margie Rotor was able to pull his body out of its path (Id., p. 69). The glaring lights of the vehicle made it difficult for her to make out and identify the rider (Id., p. 68). However, 17 year old Romulo Tama, a bystander who had also seen the blue Yamaha motorbike with a butterfly sticker near Carandang Optical, saw the rider, whom he recognized as Pedrito Lalaguna, start the engine and speed away right after Atty. Celera fell to the ground mortally wounded (TSN, June 10, 1985, pp. 131, 132).

Margie Rotor, Patrolman Igloso and Nino, a waiter at Sunrise Disco Pub, took Atty. Celera to the Masbate Provincial Hospital in a tricycle (TSN, June 23, 1985, pp. 69, 70). Atty. Celera sustained a gunshot in the left lumbar area, or at the left back just above the waistline, with no exit wound, and two stab wounds on the left side of his body, one over the "epig. area" and the other between the 6th and 7th ribs between sternal and mid-clavicular lines or just below the nipple (TSN, July 30, 1985, p. 259; September 2, 1985, pp. 291-292). Adolfo Juancho Celera, Jr., eldest son of the deceased, also rushed to the hospital and saw the doctor remove a .45 cal. slug from his father's right torso (TSN September 2, 1985, p. 288). Atty. Celera died in the hospital.

Technical Stg. Randolf Arizala, together with Col. Cesar Veloso immediately investigated the reported shooting of Atty. Celera (TSN, November 26, 1984, p. 13). Arizala saw the slug that was extracted from the deceased (Id., pp. 14, 15). As a result of an on-the-spot investigation, Sgt. Arizala traced the blue Yamaha motorcycle to Ernesto Lampago and found the vehicle at the latter's address in Masbate, Masbate (Id., pp. 16, 18). While the rear tire was deflated, Sgt. Arizala observed that the engine was still warm (Id., p. 17). Sgt. Arizala impounded the vehicle (Id., p. 18).

That same evening, at around nine o'clock in the evening, Romeo Gerona, went out of his sister's house to buy cigarettes (TSN, July 30, 1985, pp. 266, 267). On the way, a tricycle with four persons on board passed him and then stopped in front of the house of Mayor Espinosa (Id., p. 267). He recognized two of them — Pugo Penales and Pio Cantuba (Id., pp. 267, 268). (pp. 4-9, Appellee's Brief; p. 124, Rollo)

Now Appellants Pio Cantuba and Pedrito Lalaguna filed the instant appeal assigning the following errors:

I

The Lower Court erred in finding that accused, Pio Cantuba, fired the fatal shot that snuffed the life of deceased Adolfo Celera, despite overwhelming evidence to the contrary.

II

The Lower Court erred in convicting accused, Pedrito Lalaguna, despite the fact that the only evidence against him considered solely of having been seen driving a motorbike away from the scene of the crime.

III

The Lower Court erred in disregarding the constitutional right of the accused to be presumed innocent until proven guilty beyond reasonable doubt. (p. 3, Appellee's Brief)

It is the contention of accused-appellant that even if he (Cantuba) did approach the victim with a gun in his hand, it was never established that the fatal shot came from his gun.

The contention is untenable. First, the factual points marshalled by the appellants do not engender reasonable doubt as to his (Cantuba) culpability. Second, even assuming that he (Cantuba) never fired his gun, he would still be principally liable as a co-consipirator in the killing of Atty. Celera under the principle that the act of a conspirator is the act of all co-conspirators. The degree of actual participation in the commission of the crime is immaterial in a conspiracy.

With regard to the alleged conflicting testimonies of the two principal witnesses, Margie Rotor and Pat. Torrecampo, as to who really fired upon Atty. Celera, the Court is convinced that the testimony of Margie Rotor is more credible than that of Torrecampo because when witness Margie Rotor heard the gunfire, it was after she saw Pio Cantuba holding a gun while walking towards them. This court finds that the only competent persons to identify the person who fired the gun are the witnesses present at the scene of the crime. Witness Margie Rotor who was standing right beside the victim is more believable than Torrecampo who was standing across the street. When contradictory statements refer only to minor details, this does not destroy their credibility. Their inconsistency in minor details is proof that they were not rehearsed.

With respect to the sworn statement of Ricardo Baco claiming that it was Totong Labuyo who shot Atty. Celera remain hearsay evidence and, therefore, inadmissible since Baco was never presented to allow the prosecution to cross-examine him. Moreover, it was physically impossible for Baco to see who actually fire the gun because Baco went the opposite direction and encircled Rotor and the victim from behind. His eyes were fixed on the victim and not on the gunwielder who was at a distance from the victim.

It is well settled rule that when the main thrust of the appeal is that of the credibility of the witnesses for the prosecution is assailed, and appellant failed to demonstrate why this court should depart from the cardinal principle that the findings of the trial court on the matter of credibility should not be disturbed on appeal due to its superior advantage in observing the conduct and demeanor of the witnesses while testifying unless some fact or circumstance may have been overlooked that may affect the result of the case.

Anent the second assignment of error, it is the contention of the accused-appellant Pedrito Lalaguna that the lower court erred in convicting him despite the fact that the only evidence against him consisted solely of having been seen driving a motorbike away from the scene of the crime.

We do not agree with the appellant's claim that his participation in Atty. Celera's murder is tenuous because the records show otherwise. Both prosecution witnesses Margie Rotor and Romulo Tama testify to one motorbike or "tricycle" that was speeding at precisely the same time, i.e., immediately after Atty. Celera had fallen to the ground as a result of the gunshot and stab wounds.

Accussed-appellant Lalaguna points out that Margie Rotor did not testify against him. This statement is misleading. Margie Rotor testified against the rider of the speeding "tricycle" as a participant in the ambush because he was bent on running over the fallen Atty. Celera. The only element missing in her testimony is the identity of the rider because of the glare of the vehicle's lights. This however, was supplied by Romulo Tama who recognized the rider to be Pedrito Lalaguna, whom he had known even before the incident. Their testimonies as to the motorbike aspect of the incident corroborate each other. They both distinctly remember the noticeable speed of the vehicle and that it happened after Atty. Celera had fallen to the ground. By reason of their relative vantage points, this court finds each witness naturally recalling details which the other would not have noticed. This is indicative of credible and unadulterated testimony. Slight variations in the testimony of two witnesses strengthen their credibility (People v. Villamil, 135 SCRA 610).

Accused-appellant further calls the attention of this court to the fact that Pat. Torrecampo did not mention him (Pedrito Lalaguna) as among his companions when the former directed the killing. This court finds this fact not exculpatory.

It does not in any way contradict the testimonies of Margie Rotor and Romulo Tama that appellant Lalaguna was at the scene of the crime and tried to run down the victim. Appellant Lalaguna's identity and participation had been sufficiently established, and his motives become inconsequential (People v. Soriano, 134 SCRA 542).

The trial court correctly convicted appellant Lalaguna as a co-conspirator as the circumstances of his participation indubitably showed unity of purpose and unity in the execution of the unlawful acts as can be gleaned from the fact that, Lalaguna knew of the plot to assassinate Atty. Celera as he too had been ordered to scout for a man who could do the job (TSN, Sept. 3, 1985, pp. 355-356). He also knew exactly the place where the killing was to take place and also the date and approximate time of the assault. At the very least, therefore, he had to know about the Torrecampo plot and decided to join its execution. From the legal viewpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its execution. (People v. Caday, 28 SCRA 388; People v. Sy, 113 SCRA 207)

Appellant Lalaguna insists that the act of driving a motorbike is an equivocal act. This would be correct only if the testimony of Romulo Tama were considered in isolation from the testimony of Margie Rotor, Pat. Torrecampo and Sgt. Rodolfo Arizala which clearly indicate that Lalaguna drove the vehicle to run down the victim and that he shared in the criminal intent to do away with Atty. Celera. Therefore, the criminal culpability of appellant Pedrito Lalaguna had been clearly established.

Relative to the last assigned error, the state has satisfactorily discharged its burden of proving the guilt of the appellants beyond reasonable doubt. Appellants' discussion of their third assignment of error seems to imply that the decision was premised on the weakness of the arguments and evidence for the defense. However, an unprejudiced reading of the decision and the points already discussed will readily show otherwise.

Be it noted that the questioned judgment tried very well to rebut the defense of alibi of Pio Cantuba and Pedrito Lalaguna. Appellants' defense of alibi is jurisprudentially weak (People v. Onquillano, 149 SCRA 442; People v. Acelajado, 148 SCRA 142). As they were not able to demonstrate by convincing evidence that it was physically impossible for them to have been at the scene of the crime at the time it was committed. Moreover, the defense of alibi is generally accepted with caution, because under certain circumstances might exonerate the accused on the ground of impossibility of participation, or at the very least, raise a reasonable doubt. In the case at bar, both appellants claimed that on the night and time of the incident they were not at the vicinity of the Sunrise Disco Pub where the alleged crime was committed, as they were then in the house of Asst. Provincial Treasurer Manlapaz playing "pusoy". But considering the admitted fact that the distance between the house of Asst. Provincial Treasurer Manlapaz where the accused claimed to be, is only 300 meters away from the Sunrise Disco Pub, where the crime was perpetrated, there is no physical impossibility for both accused to be at the scene of the crime. Accordingly, such defense merits no serious consideration. Moreover, both accused were positively identified by prosecution witnesses Margie Rotor, Rodolfo Torrecampo and Romulo Tama. Accused Pio Cantuba, as the person who fired the gun and Pedrito Lalaguna, as the rider of the speeding motorbike or "tricycle" who was bent on running over the fallen body of Atty. Celera.

WHEREFORE, the decision of the trial court is hereby AFFIRMED, with costs against the appellants.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.