People vs. Lebumfacil, G.R. No. L-32910 March 28, 1980

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32910 March 28, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUDILLO LEBUMFACIL alias RUDY RODRIGUEZ alias ROMEO LEBUMFACIL, JR. y RODRIGUEZ, CIRILO QUIMNO alias LOLOY LAGUION and ROSENDO SALVADOR, defendants-appellants.

Pio Sepulveda and Providencio P. Abragan for appellants.

Office of the Solicitor General for appellee.

PER CURIAM:

Automatic review of the judgment of the trial court in Criminal Case No. 1551, dated August 25, 1975, finding accused Rudillo Lebumfacil, Cirilo Quimno, alias Loloy Laguion and Rosendo Salvador guilty of the murder of Pablo Chua, and imposing upon appellants Rudillo Lebumfacil and Cirilo Quimno the penalty of death, and on appellant Rosendo Salvador the penalty of reclusion perpetua, in addition to their civil liabilities in the amount of P12,000.

The facts, as found by the trial court, are as follows:

During the last week of February 1968, apellant Rosendo Salvador went to the office of the Misamis Mahogany Timber Company to see its manager, Pablo Chua, in order to collect his unpaid claim for deliveries of gravel and sand to the company. The office was located at the Garcia Building in Iligan City. After Salvador had conferred with the manager and on his way out of thebuilding, Segundo Bolocon, the security guard, inrequired from him whether he was able to collect his claim. Appellant Salvador answered in the negative, further informing Bolocon that he would return the following day. The following day, Rosendo Salvador returned to the office of the company to see Pablo Chua. He was not able, however, to see Chua as the security guard, Segundo Bolocon, informed him that he was instructed by the manager not to allow him to enter the office Salvador then protested that such action was unjustified since he was there to collect the money that was due to him. According to Bolocon, he told Salvador that he was instructed by Pablo Chua to inform him that he should submit his claim to Atty. Garcia, legal counsel of the company, Salvador, however, retorted that his business was not with Atty. Garcia but with the manager. Bolocon then replied that Salvador should, therefore, file his case in court. Salvador, however, countered that without any affidavit or document to support his claim, his action would be futile. It was at this instance when Bolocon allegedly heard Salvador utter: "These people will regret this incident. There are many ways of killing a chicken!" Later in the day, Bolocon informed Pablo Chua that Salvador was mad at him, but Chua did not say anything.

At about 2:30 o'clock in the afternoon of March 23, 1968, Rudillo Lebumfacil, Rosendo Salvador and Cirilo Quimno were seen by Rolando Mendoza conversing and drinking "tuba" in the store of a certain Roquina at Hinaplanon in Iligan City. Mendoza testified that at about 2:00 o'clock he went to the store of Ester Capangpangan to buy cigarettes. After buying cigarettes he sat on a stone between the store of Capangpangan and the store of Roquina for nearly two hours. Mendoza claimed that he overheard Rosendo Salvador telling his two co-appellants in a loud voice: "'This afternoon will be payday and Pablo Chua will pass by, you take care of him", and to this, appellant Rudillo Lebumfacil purportedly replied: "Areglado boss." After a while, Mendoza saw the car of Pablo Chua approaching, proceeding towards the compound of the Misamis Mahogany Timber Company at Pigsoutan. When the car of Pablo Chua passed in front of the store of Roquina, Cirilo Quimno went out of the store and signalled the driver at the car to stop. Pablo Chua, upon seeing Quimno, directed the driver. Bonifacio Anob, not to stop and to proceed to the company compound. The three appellants then transferred to the store of Agapito Cabisay where they resumed their drinking of "tuba". Mendoza declared that he followed appellants by walking towards the store of Dering Soledad which was about twelve (12) meters from the store of Cabisay. It was there where he (Rolando Mendoza) allegedly heard appellant Rosendo Salvador say twice or thrice in a loud voice: "When the car comes back, you take care of him." Some hours later, at about 4:00 o'clock in the afternoon, the car of Pablo Chua came out of the company compound. Cirilo Quimno shouted and signalled the driver to stop. According to Bonifacio Anob, Chua ordered him to stop the car, after which Chua alighted and walked towards Cirilo Quimno. Anob declared that at this juncture Quimno said: "Why did you suspect me of juncturing your tires and stealing some spare parts?" Pablo Chua replied: "No, I am not blaming you, you just go to the office and we will talk about it." But Quimno retorted: "Now that you are here, we will kill you." At that instance, Quimno placed his hand on his hunting knife and approached Chua. Chua stepped back, drew his .22 Caliber Magnum (Exhibit "C") and fired a warning shot into the air. When Quimno released his hold on the hunting knife, Pablo Chua approached Quimno, patted him on the shoulder, and said: "You just go to the office and we will talk about it there". After saying this, Pablo Chua returned to his car. When Chua was about to board the car, appellant Rudillo Lebumfacil suddenly approached Chua from behind and grabbed his gun. After wresting the possession of the gun, Lebumfacil aimed the revolver at Pablo Chua saying: "Now, you cannot do anything, I have your gun with me." Pablo Chua raised both his arms in surrender saying: " I have no fault, you are not my enemy, don't, don't." At that moment, Quimno shouted to Rudillo Lebumfacil "Go ahead kill him." It was at this instance when Lebumfacil allegedly turned towards Rosendo Salvador and the latter nodded his head. Lebumfacil then fired point blank at Chua, hitting the victim on the chest. Chua fell on the ground, and while he was trying to raise his head, Lebumfacil shot him again. The bullet penetrated the skull of the victim just below the right eye. Lebumfacil and Quimno fled towards the direction of Pigsoutan aboard a "Sanbar" (a small utility vehicle). Rosendo Salvador also left the scene of the crime. Bonifacio Anob drove Chua's car to Iligan City where he reported the shooting to the police authorities.

At about 8:00 o'clock in the evening of March 23, 1968, Dr. Wilfredo Jagdon, Medico-Legal Officer of the Iligan City Police Department, performed the autopsy on the deceased. According to Dr. Jagdon, he found two bullet wounds, one below the right eye and the other on the right chest, and both wounds were without exit. The cause of death was shock due to hemorrhage. The autopsy report (Exhibit "A"), issued by Dr. Jagdon is hereunder quoted as follows:

NAME — PABLO CHUA

Findings:

1. GUNSHOT WOUND OF ENTRANCE — 1 inch below the right eye, 3 mm. in diameter, with regular inverted edges, surrounded with gunpowder marks, directed antero-posteriorly and obliquely to the medial side to a distance of 4 inches without exist.

2. GUNSHOT WOUND OF ENTRANCE — 3d intercostal space, right chest, 4 inches below the mid clavicular line, directed antero-posteriorly towards the right thoracic vertebra, the bullet lodge at the right paravertebral muscle at the level of the 5th thoracic vertebra, piercing the right upper lobe of the lungs and the pulmonary vessels contributing to the intrathoracic hemorrhage.

3. Primary flacidity — present.

Cause of death — shock due to intrathoracic and intracranial hemorrhage secondary to bullet column.

He also recovered a slug from the back of the deceased at the vertebral column.

At about 2:00 o'clock in the early morning of July 3, 1968, the police authorities of Iligan City began the manhut for Lebumfacil and Quimno. A posse of constabulary soldiers and policemen proceeded to Bario Taparak, Iligan City, to look for Rudillo Lebumfacil who was reportedly hiding there with his family. After surrounding the house and after ordering Lebumfacil to surrender, the latter came out of his hideout and gave himself up. The police authorities searched his hideout and found a caliber .22 Magnum under the bed. This firearm turned out to be the licensed revolver of Pablo Chua (Exhibit "C"), which was used by appellant Rudillo Lebumfacil in shooting the victim. When Lebumfacil was questioned regarding the whereabouts of his companions, he revealed that Cirilo Quimno was hiding in Maria Cristina. Quimno was later found by the police authorities hiding inside a house in Maria Cristina. After searching the house, the police officers found a .22 Caliber "paltik" revolver (Exhibit "D") under the pillow of Quimno. The two appellants were then brought to the police headquarters at Iligan City where they were investigated. In that investigation, appellant Quimno executed a sworn statement (Exhibit "K"), stating in part, as follows:

Q. Do you have any knowledge as to the death of PABLO CHUA?

A. Same person was shot to death by RUDILLO LEBUMFACIL (Alias RUDY RODRIGUEZ) (affiant pointing to the person answering to said name) with the use of a revolver cal. 22 Magnum wrested from PABLO CHUA hitting the victim two consecutive times.

Q. Why did RUDILLO shoot PABLO CHUA? Do you know the reason why?

A. PABLO CHUA accused us of an offense which we both had not done.

Q. How did RUDILLO shoot PABLO CHUA?

A. While we were at Hinaplanon, Iligan City, we saw Mr. CHUA riding in his Mercedes Benz, so I signaled the driver to stop about 20 meters away, in order to stop and inquire from him why he accused us of slashing his tire. Upon nearing us CHUA pulled out his revolver Cal. .22 Magnum and fired at my person and then the driver made a sudden stop and backed the car towards us and then alighted from his car with same revolver pointed at me, uttering the following remarks: "AKALA KO HOLD-UP NA ITO", in return, I answered him "DILI SIR, DILI HOLD-UP KAY WALA KAMI'Y ARMAS." After that he said the following words in Tagalog,. "KAYA KITANG BAYARAN". After saying those Tagalog, I told him in Visayan: "MOPATAY KA DIAY TAO SIR, NGA DILI MAN AKO MUHILABOT NIMO". He tapped me on the right shoulder and later on I walked away about 5 meters from him. I turned back because I heard some clicking. RUDILLO and PABLO grappled with each other for the revolver Cal. .22 Magnum pointed to RUDILLO by CHUA and after a struggle, RUDILLO easily grabbed the revolver Cal. .22 Magnum and fired the same at the person of CHUA hitting him on the breast and the second time on the right eye. After the shooting we immediately fled away.

In the afternoon of July 5, 1968, Rudillo Lebumfacil was investigated by Special Counsel Hector Obach, in the presence of the City Mayor and Assistant City Fiscal Padilla. The questions of the investigator and the answers given by the appellant were taken down by a stenographer in the Mayor's office. After the statements were transcribed, Special Counsel Obach, together with City Judge Pompeyo Palarca, proceeded to the city jail where the typewritten statement was given to Lebumfacil. When he was asked to sign the statement, the latter refused and claimed that he was advised by his counsel not to sign the statement. The stenographer testified during the trial on the statements of Lebumfacil (Exhibit "E").

Both Quimno and Lebumfacil had been previously convicted by final judgment of homicide. Thus, Cirilo Quimno was previously convicted of homicide by the Court of First Instance of Lanao on August 3, 1953. After serving the sentence in the national penitentiary, he was released on parole on December 23, 1960. Lebumfacil was also previously convicted by the same court of the crime of homicide on November 18, 1957. In view of his minority, however, he was confined at Welfareville, Mandaluyong, Rizal.

Appellant Lebumfacil admitted having shot the deceased Pablo Chua with the latter's .22 Caliber Magnum revolver. He, however, insisted that he did so in self-defense. He declared that after Pablo Chua alighted from his car, he immediately shot at Cirilo Quimno, alias Loloy Laguion who was then eight (8) meters away, but failed to hit him. Cirilo Quimno then told Chua that he had no bad intentions and at the same time raised his hands. Pablo Chua then approached Cirilo and they conversed with each other. Afterwards, Chua patted the back of Cirilo, then turned his back and walked towards his car. Upon reaching his car, Pablo Chua allegedly aimed his revolver at Lebumfacil, who was then six (6) meters away, saying that Lebumfacil was one of those who destroyed his truck. When Lebumfacil denied the accusation, Chua allegedly answered: " I can afford to pay for your life which is just worth one shipment of logs." Chua then walked towards Lebumfacil, still aiming his gun at him, and said: "I can kill you and I can afford to pay you." It was at that juncture when Lebumfacil allegedly grabbed the revolver of Chua. After wresting the gun from Chua's possession, he stepped back and shouted at Chua in Tagalog: "Mr. Chua, wala ka nang magagawa", at the same time pointing the revolver at Pablo Chua. When Pablo Chua rushed towards him, that was the time he shot Chua. After Chua fall he again shot him because of his anger. He admitted that at the time he shot Chua for the second time, the latter was already lying prostrate on the ground. Appellant Quimno's testimony followed Lebumfacil's narration of the incident.

Appellant Rosendo Salvador, upon the other hand, denied any involvement in the commission of the crime. He declared that he was in good terms with the deceased; that four (4) months earlier Chua gave him a lift in his pickup car and that he went to the office of Chua to accompany one Quilino Sumli whom he recommended for employment in the Misamis Mahogany Timber Company. He admitted, however, that the previous manager of the Misamis Mahogany Timber Company failed to pay him for the sand and gravel which he had previously delivered, hence, he tried to collect the payment from Bob Neri. The latter, however, informed him that he would indorse his claim to Chua, who in turn, advised him to make his complaint in writting, which he did. On this claim, Chua told him that he would verify the record of his claim in Manila before he would make the payment. He was, therefore, advised to wait for at least two (2) months. He testified that in the afternoon of March 23, 1968, while he was on his way to the quarry, he saw his co-appellants Rudillo Lebumfacil and Cirilo Quimno in the store of Agapito Cabisay. He acceded to the invitation of Quimno to drink with them because Quimno is his brother-in-law. After drinking alcoholic drinks with them, he started to leave, for Iligan City. As he was about to leave, he saw Quimno raising his hands to stop an oncoming car. He advised Quimno not to stop the car, but Quimno replied: "Don't mind me because you do not know what it is all about. " It was then that he saw the car stop and Pablo Chua alight therefrom already holding a gun in his hand. As Chua walked towards Quimno, he shot the latter from a distance of ten (10) to twenty (20) meters. He declared that Quimno immediately raised both of his hands while he ran to the store. He heard Quimno tell Chua that his intention was not bad and that he was not armed. Afterwards, Chua approached Quimno, tapped the latter's shoulder and said: "There is no case", and Chua returned to his car. When Chua was walking towards his car, he shouted at Lebumfacil and pointed his gun at him. Lebumfacil then grabbed the gun. After grabbing the gun, he aimed it at Chua and when the latter tried to wrest the gun from his possession, Lebumfacil shot Chua on the chest. After the shooting, he (Rosendo Salvador) ran away and fled to his house.

Relying on the version given by the prosecution and rejecting the claim of self-defense of Lebumfacil, the trial court fouind appellants Rudillo Lebumfacil, Cirilo Quimno and Rosendo Salvador guilty beyond reasonable doubt of the crime of murder. Taking into consideration the circumstance of recidivism, ¹ the trial court imposed upon Lebumfacil and Quimno the penalty of death, while Rosendo Salvador was sentenced to suffer the penalty of reclusion perpetua. All accused were further ordered to indemnify the heirs of the victim Pablo Chua, jointly and severally, in the amount of 12,000.00 and each to pay one-third (1/3) of the costs.

We agree with the trial court that appellant Rudillo Lebumfacil has not convincingly proven his claim of self-defense. There could not have been any reason for Pablo Chua to accuse Lebumfacil of having slashed the tire of the truck of the Misamis Mahogany Timber Company, considering that only appellant Cirilo Quimno was suspected of this offense and Pablo Chua did not even know appellant Lebumfacil. It is clear from the evidence of the prosecution and of the defense that Pablo Chua was apparently satisfied with the explanation given by Quimno because as found by the trial court "Pablo Chua patted his shoulder and told him that there is no more case and Chat they parted in good terms with Pablo Chua walking back towards his car." Equally unpersuasive is the claim of Lebumfacil that while Pablo Chua was approaching him and while he was at a distance of less than a meter he said: "I could kill you and I can afford to pay you", and because of this Lebumfacil grabbed the revolver of Pablo Chua. First, because Chua had no reason to threaten Lebumfacil; and secondly, if Chua wanted to shoot Lebumfacil he could have easily done so before the latter could grab his revolver. It is well-settled that self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. ² The action of Lebumfacil in the shooting of the deceased is characterized by treachery. After Pablo Chua was completely disarmed he pleaded with Lebumfacil, thus! "I have no fault, you are not my enemy, don't kill me", but Cirilo Quimno shouted to appellant Lebumfacil: "Go ahead, kill him now." Although Chua's hands were still raised Lebumfacil shot him twice, the first shot hitting the victim at the region of the breast and after the victim fell on the ground and he was trying to raise his head, Lebumfacil shot him again, the bullet penetrating below the right eye of the victim. In a previous case, this Court held that where the accused fired ten shots at the unarmed victim after asking the latter to raise his hands sidewise, which the latter did, there was treachery. ³ Similarly, in People v. Barba, ⁴ where the victim had his hands upraised, pleading in a loud voice, "Do not kill me; investigate first what was my fault" and the accused fired a second shot mortally wounding the victim, this Court held that the killing was treacherous.

We are not satisfied, however, that the evidence of the prosecution has established to a degree beyond reasonable doubt the criminal involvement of appellant Rosendo Salvador. While it is possible that Salvador had harbored ill-feelings against Chua for his failure to collect the sums due to him, this alone is not sufficient to hold him liable as a co-conspirator. Conspiracy must be shown to exist as clearly and convincingly as the commission of the crime itself. ⁵

To implicate Salvador, the prosecution relied principally on the testimony of Rolando Mendoza, former employee of the deceased and at the time of his testimony, driver-operator of the Iligan Fire Department. The infirmity of Mendoza's testimony lies in its improbability. It is well-settled that where the testimony of the witness is clouded with uncertainty and improbability or unworthy of belief, the Court may disregard it. ⁶ Considering that Rolando Mendoza's alleged purpose was only to purchase cigarettes at 2:00 o'clock in the afternoon of March 23, 1968, it is quite unusual that instead of going back to his work after purchasing the cigarettes he would still waste his time by sitting on a stone for about two (2) hours or until 4:00 o'clock in the afternoon. He claims that while sitting on the stone he heard appellants who were allegedly twelve (12) meters away from him plotting the crime in question. It is not in accord with common experience and the normal conduct of man for one planning a heinous offense to reveal his criminal plans publicly. And this was precisely the story foisted by Mendoza upon the court, because he claims that Salvador, in a voice that could be heard at a distance of fifteen (15) meters, told the two other appellants: "Since this afternoon is payday, Pablo Chua will pass by, you take care of him. When Pablo Chua will pass by, you take care of him. When Pablo Chua returns, take care of him." This he allegedly did, not only once but two or three times. It must be recalled that when Salvador allegedly uttered these remarks, there were other people inside the store of Pito.

It has been said that the credit to be given the testimony of a witness may depend very much upon the accuracy of his memory, as well as upon his disinterestedness and honesty. In the case at bar, Mendoza appears deficient on this score.

Thus during the cross examination, Mendoza pleaded forgetfulness not only once or twice but several times on the fact of his previous conviction by final judgment of the crime of illegal possession of firearms.

ATTY. QUIJANO:

xxx xxx xxx

Q. Before you came to Iligan City, you have gone to Cotabato, is that correct?

A. Yes, sir.

Q. As a matter of fact, you have gone to Kidapawan, Cotabato?

A. I was there.

Q. As a matter of fact, when you were in Cotabato you were convicted of a crime?

ATTY. LOPEZ:

I object to that question, Your Honor, they cannot prove the nature of that crime.

COURT:

Witness may answer.

A. I do not know.

Q. Do you understand my question? When you were in Cotabato, you were convicted of a crime and was sentenced to serve the the penalty?

A. Yes, sir.

xxx xxx xxx

Q. Before you were accepted as fireman, you naturaly submitted an application to the mayor's office, is that correct'?

A. Yes, sir.

Q. Did you state in your application that you were convicted of a crime of illegal possession of firearm?

ATTY. LOPEZ:

Objection, Your Honor.

COURT:

Let the witness answer the question.

A. I cannot remember. ⁷ (Emphasis supplied.)

He even conveniently forgot the very simple matter of whether or not he voted in Iligan City in the elections of November 1967. It should be noted that he was testifying in 1968 and yet his memory on whether he voted or not in the 1967 elections had already abandoned him.

ATTY. SEPULVEDA.

xxx xxx xxx

Q. You testified in the preliminary investigation of this case before Judge Palarca is that correct?

A. Yes, sir.

Q. And before I go to that point, you voted in the City of Iligan?

A. I cannot remember.

Q. In 1967, there was an election in November of that year, were you in Iligan City?

ATTY. LOPEZ:

Objection, Your Honor, that is a question of incriminating the witness, Your Honor please.

COURT:

Let the witness answer the question.

A. I cannot remember. ⁸ (Emphasis supplied).

Indeed, it has been observed that no class of testimony is perhaps more unreliable and a more frequent cause of error in courts of justice than the narration of conversations real or pretended. ⁹ And here is a witness who claims to have overheard and allegedly was able to recall the conversation among the appellants in connection with their plans to commit the crime in question and yet he forgets significant events of his life. He claims to have witnessed a shocking incident wherein he saw his former employer shot in cold blood yet unexplainably forgets to inform the police authorities about it. He knew or could have known that the police were investigating the crime since his office in the Iligan Fire Department was adjacent to that of the police. The police had already begun its investigation of the crime on the very day of the occurrence, questioned witnesses on March 23, 24 and 25, 1968, amongst whom were Bonifacio Anob, Segundo Bolocon, Antonio Lomboy and appellant Rosendo Salvador. Indicative of the fact that neither the police nor the prosecution knew of the existence of this witness at that time is the fact that he was never investigated by the police, and that the list of witnesses in the information for murder against Rudillo Lebumfacil and Cirilo Ladion filed by the City Fiscal of Iligan City on March 25, 1968 (Exhibit "4") and in the Amended Information filed by the same City Fiscal on July 12, 1968, does not include the name of Mendoza as a witness of the State. As a matter of fact, it was only on August 8, 1968 or five (5) months after this incident when Rolando Mendoza appeared for the first time as a witness for the prosecution. No explanations had been given why a supposedly vital and important witness was not presented either to the police investigators when they were investigating the crime or to the court who was conducting the preliminary investigation. The long and unexplained silence of a vital witness may well give rise to suspicions as to his motive for breaking that silence. It places in doubt his credibility and creates the suspicion that he is actuated by sinister and ulterior motives. ¹⁰

The circumstance that this same witness Rolando Mendoza executed on September 20, 1969 an affidavit before Notary Public Narciso Adeva (Exhibit "8") repudiating his testimony in court further casts doubts on the integrity of this witness. In this statement he stated under oath that he falsely implicated appellant Salvador upon instruction of the lawyer of the Misamis Mahogany Timber Company because of his fear that his brother, Rogelio Mendoza, and his father, Delfin Mendoza, would be removed from their jobs with the Misamis Mahogony Timber Company. This affidavit was executed in the presence of two witnesses, Romeo Roa and Antipas Quilacio, and bears the Residence Certificate No. A-3868493, dated April 14, 1969 of Mendoza. While he repudiated this affidavit about eleven (11) days later or on October 1, 1969, when he was presented in court and testified that he signed the document "because they pushed me around in a room and they told me that if I will not sign in this document, they will have me killed", such repudiation is not impressive considering his admission that when he appeared before Notary Public Narciso Adeva to subscribed the affidavit, he did not reveal this alleged threat to his person, much less file any criminal or administrative charge against the persons purportedly involved.

The attempt of the other witness, Bonifacio Anob, to implicate Salvador is equally unavailing. It is true that this witness saw the incident in question but his testimony that Lebumfacil turned his face towards Salvador and Salvador nodded his head after which Lebumfacil shot the victim, appear to be an afterthought.

This is shown by the fact that when this witness was investigated by the police in the evening of March 24, 1968 regarding the incident in question, he never mentioned about this alleged involvement of appellant Salvador. Thus, he declared in that investigation as follows:

Q. Will you relate how the incident took place?

A. I was driving Mr. PABLO CHUA to Pigsoutan, Iligan City, and I understood he was bringing payroll money there. When we reached Hinaplanon, Iligan City, CIRILO LADION alias "LOLOY", raised a hand and shouted "PARA", MR. CHUA ordered me to drive on saying he feared that was a hold up attempt. After delivering the money at Pigsoutan we headed back city ward and when we reached Hinaplanon, CIRILO LADION again appeared by the side of the road and again shouted "PARA", I saw that he stood up beside some persons seated around a table and drinking from glasses at a small tuba store. I recognized the same persons as ROSENDO SALVADOR, RUDY LEBUMFACIL and others, and a few seconds after MR. CHUA told me to stop the car, I did, around a distance of 15 meters from where CIRILO LADION had signalled us to stop. MR. PABLO CHUA then got out of the car and he was met by CIRILO LADION. As LADION got near, I saw him point a finger at MR. CHUA and heard him say "KARON NIA KANA PATYON KA NAMO", and I observed as he talked that he was holding something at his waist which I saw was the handle of some bladed weapon he was armed with. At this outburst Mr. PABLO CHUA drew his revolver and fired to the air. CIRILO LADION seeing this took his hand away from his weapon at the waist. Then I heard LADION and MR. CHUA talking. They did so for around five minutes and as they talked MR. PABLO CHUA became amiable and observed him smiling at LADION whom he patted on the shoulder. I noticed RUDY LEBUMFACIL walked towards them from the tuba store, proceed stealthily to the back of MR. PABLO CHUA and treacherously wrest the gun being held by MR. CHUA. I saw LEBUMFACIL then point the gun at MR. CHUA who began to put his arms before him and I heard him saying "WALA AKONG KASALANAN, HINDI KITA KALABAN, HUWAG, HUWAG". Plainly I heard CIRILO LADION say to LEBUMFACIL "SIGI PATYA NA" then I heard the gun go off, saw MR. CHUA fell to the ground and as he lay there I saw LEBUMFACIL aim the gun downwards and fire another shot at MR. CHUA.

Q. What happened after that!

A. I put the car into gear and rushed away driving fast city ward and proceeded to the Police headquarters where I reported what I saw. (Exhibit "3").

It is true that, ordinarily, evidence taken on affidavit, being taken ex parte, is almost always incomplete, but the narration of the declarant in this affidavit appears sufficiently detailed to preclude the possibility that such an important matter was not included thru oversight, apart from the fact that this affidavit was executed before the Special Counsel, two days after the incident, and the declarant had, therefore, the opportunity to fully reflect on the details of the incident. Upon the other hand, Quimno admits that Bonifacio Anob is an eyewitness. Anob's testimony that when Chua raised his hands Quimno told Lebumfacil "go ahead, kill him" has not been successfully rebutted.

On the basis of the foregoing, Rudillo Lebumfacil and Cirilo Quimno should be the only ones held criminally responsible for the offense of murder. Since appellants Rudillo Lebumfacil and Cirilo Quimno had earlier been convicted of homicide by the Courts of First Instance of Cebu and Lanao del Norte, respectively, the aggravating circumstance of recidivism ¹¹ must be applied and the penalty for murder in its maximum period, which is death, should be imposed. ¹²

WHEREFORE, the Court finds Rudillo Lebumfacil and Cirilo Quimno guilty beyond reasonable doubt of the crime of murder and AFFIRMS the sentence of death imposed upon them by the trial court, in addition to their civil liabilities in the sum of P12,000.00. Appellant Rosendo Salvador is hereby ACQUITTED on the ground of reasonable doubt.

SO ORDERED.

Teehankee, Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

Footnotes

1 Article 248, in conjunction with Article 64, paragraph 3, Revised Penal Code.

2 People v. Jorge, No. 47919, April 8, 1941, 71 Phil. 451.

3 People v. Lasafin, L-5874, Feb. 11, 1953, 92 Phil. 668, 670.

4 No. L-7136, November 30, 1955.

5 People v. Custodia, L-30463, Oct. 30, 1972, 47 SCRA 289; People v. Llamera, L-21604-5-6, May 25, 1973, 51 SCRA 48; and People v. Geronimo, L-35700, Oct. 15, 1973, 53 SCRA 246.

6 98 C.J.S. 340-341.

7 T.S.N., Hearings, on Nov. 18, 19, 20, 1968, pp. 52-54.

8 Ibid, pp. 79-80.

9 11 Moore on Facts, 1005.

10 U. S. v. Cardona, No. 11686, Mar. 15, 1917, 36 Phil. 438.

11 Article 9, Revised Penal Code.

12 Art. 64, par. 3, in relation to Art. 248, Revised Penal Cod

People vs. Mercado, G.R. No. L-33492, March 30, 1988

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-33492 March 30, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
EFREN MERCADO, defendant-appellant.

PADILLA, J.:

This is an appeal from the decision * rendered by the defunct Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, dated 11 March 1971, in Criminal Case No. CCC-564-Rizal, entitled: "People of the Philippines, plaintiff, versus Efren Mercado, accused," the dispositive part of which reads as follows:

WHEREFORE, finding the accused, Efren Mercado, GUILTY, beyond reasonable doubt, of the crime of Murder as defined under Article 248 of the Revised Penal Code, as charged in the information, the Court hereby sentences him to suffer the penalty of RECLUSION PERPETUA; to indemnify the heirs of the deceased Dominador Salvador, Jr., the amount of P12,000.00; to pay the amount of P5,000.00 as moral damages and another P5,000.00 as exemplary damages; and to pay the costs.

The facts of the case, as summarized in the People's Brief, are as follows:

At about 10:00 o'clock in the evening of December 23, 1970, the deceased Dominador Salvador, Jr. and his friends were in their house preparing to caroling. Among those with the deceased were Ding Cristobal, Rod Cristobal, Teody Pangilinan, Emilio Fuerte and Leonardo Calvento. (t.s.n., pp. 2-3, January 14, 1971) From the house of Dominador Salvador they proceeded to the house of Mr. Aguilar a place which is more or less 16 to 25 meters from the place of the deceased Dominador Salvador, Jr. (t.s.n., p. 3, January 15, 1971), In going to the place of Mr. Aguilar they were to pass through an "eskinita" a small road (t.s.n., p. 3, January 15, 1971). Mr. Aguilar lives in Real street, a national road.

When they went to the place of Mr. Aguilar, Dominador Salvador, Jr. and Leonardo Calvento went ahead of the group. The group walked in a regular manner, not too slow but not too fast. On their way to Mr. Aguilar's place they heard slanderous words directed at them and when they looked around to ascertain who uttered the slanderous words, stones were suddenly hurled against them. Those who hurled the stones belonged to the group of the accused Efren Mercado (t.s.n., p. 4, January 15, 1971). Emilio Fuerte who was one of those who went caroling was hit by a stone about one (1) inch in a diameter (t.s.n., p. 5, January 15, 1971) and because he was not hurt very much and, finding that the guitar which they brought along with them had a broken string, the group returned to the place of Dominador Salvador, Jr. to repair the guitar (t.s.n., p. 6, January 15, 1971). It took the deceased and his group ten (10) minutes to repair the guitar after which they proceeded to go caroling again.

Upon reaching a comer, they saw the group of the accused Efren Mercado waiting for them (t.s.n., p. 6, January 15, 1971). The group of the accused again stoned the group of the deceased and because of this, deceased (and Leonardo Calvento) approached the group of the accused to inquire from them why they were stoned (t.s.n., p. 6-7, January 15, 1971).

Deceased and Leonardo Calvento were followed by Emilio Fuerte. While Emilio Fuerte was in front of the store he saw Efren Mercado grab the deceased and gave him a thrust with his right hand. At first Leonardo Calvento who was with the deceased thought that the deceased was not stabbed but when they were leaving the place of the incident the victim stated the following words, "May tama ako," and later he saw blood on the right chest of the victim. The victim was brought to the San Juan De Dios Hospital where he died on arrival. A necropsy report was made on the victim by Dr. Roberto Garcia and the following wounds were found:

POST-MORTEM FINDINGS

Pallor, integument conjunctivae and nailbeds, stab wound, chest, right, anterior aspect, infraclavicular region, at the level of the 1st intercostal space, right, 6.5 cms. from the anterior mediam line, 1.7 cm. in size, oriented downward and laterally, edges, clean-cut, upper extremity sharp, lower extremity, contused, directed downwards, backwards, and medially, involving among other things, the soft tissues, thru the lst intercostal space, right grazing the lower order of the 1st rib, into the right thoracic cavity, perforating the upper lobe right lung, into the middle mediastinum penetrating the superior vena cava with approximate depth, 12.0 cms.

Hemothorax, right -1,920 cc.

Brain and other visceral organs, pale.

Stomach - 1/2 filled with partly digested rice and food materials

CAUSE OF DEATH — Stab wound of the chest, right. ¹

The accused-appellant admits having stabbed the deceased, but claims self- defense. His account of the incident is as follows:

... It appears that in the evening of December 23, 1970, accused Efren Mercado had to go to the house of his employer, Larry Salvador, at Real Street, Las Pinas Rizal. He had two companions at the time, who were left outside when he went into the house of his employer. When he came out, his two companions complained to him that they were "napagiinitan" by a group of persons, who were later Identified to be Dominador Salvador and his "barkada." This group of Dominador Salvador threw firecrackers at the two companions of the accused. To avoid any incident, the accused told his companions to go home, and he himself went home. On the way home, he saw some persons, numbering twelve in all, chasing two other persons. He Identified the pursued persons as his two companions so he intervened and tried to stop the pursuers. The pursuers turned on the accused, attacking him with piece of chain and a piece of bamboo. To defend himself, the accused whipped out a knife and brandished it before his attackers, to frighten them. He had no intention to injure anyone, only to stop his attackers and to defend himself. After the attackers ran away, the accused proceeded home. Later, in the evening, he was brought to the police department and subsequently charged for the death of one Dominador Salvador. ²

The trial court, after analyzing the evidence, rejected the defense of the accused, because of the positive and unqualified Identification by prosecution witnesses Leonardo Calvento and Emilio Fuerte that the accused-appellant was the unlawful aggressor and slayer of the victim; and, besides, according to the trial court, the act of the appellant of running away from the scene of the crime, after the commission thereof, is "repugnant" to the appellant's claim of innocence "for if it is really true that he was forced to slay the victim to save his life, then he could have surrendered to the police authorities right after the commission of the crime or given himself to any member of the barrio council, where he is residing as is ordinarily done in urban areas." ³

We agree with the trial court that the accused-appellant has not convincingly proven his claim of self-defense. His defense is based solely upon his testimony, whereas, the version of the prosecution is supported by the testimonies of Leonardo Calvento and Emilio Fuerte both of whom were with the deceased on the night in question and witnessed the commission of the offense. It is well-settled that self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that precludes any vestige of criminal aggression on the part of the person invoking it, ⁴ and the Court has ruled that the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but, in itself, is extremely doubtful, ⁵ and cannot overcome the version of the prosecution supported by the testimony of two eye-witnesses who saw the incident. ⁶

The accused-appellant, in this appeal, assails the trial court for giving more weight to the testimony of the prosecution witnesses despite certain errors, inconsistencies and contradictions in their declarations.

We have examined the record of the case with great care and find no reason to set aside the findings of fact of the trial court, which are supported by documentary evidence and the testimony of witnesses who have no reason whatsoever to testify falsely against the accused-appellant. Moreover, the rule is well-settled that, where the issue is one of credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, unless it has plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case. Herein appellant failed to demonstrate that his case falls under such exception which would justify this Court to overturn the findings of fact of the trial court.

The accused-appellant further assails the trial court for denying his motion to dismiss dated 28 January 1971. The appellant contends that the prosecution failed to prove a prima facie case against him so that the trial court should have granted his e motion to dismiss.

The contention is not well-taken. Judicial action on a motion to dismiss or demurrer to the evidence is left to the exercise of sound judicial discretion. Unless there is a grave abuse thereof, amounting to lack of jurisdiction, the trial court's denial of a motion to dismiss may not be disturbed. In the instant case, the trial court, after hearing the evidence presented by the prosecution, was convinced that said evidence was sufficient to warrant a finding of guilty vis-a-vis the accused. As a matter of fact, the Court is convinced that the accused-appellant is criminally liable for the death of Dominador Salvador, Jr. even without the admission of the accused-appellant.

The crime committed, however, as pointed out by counsel for the accused- appellant and confirmed by the Solicitor General, is Homicide and not Murder. We cite with approval the following disquisition of the Solicitor General:

We agree that the defendant should have been convicted of Homicide instead of Murder. The circumstance alleged in the information to qualify the crime of murder is treachery. There is treachery or "alevosia" if the "offender commits any of the crimes against person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make."

A perusal of the evidence adduced by the prosecution reveals that the stabbing incident was preceded by the "uttering of slanderous remarks and followed by stoning." (t.s.n., pp. 4-5, January 14, 1971 and t.s.n., pp. 4, 5, 6, January 15, 1971). Because of the stoning, the deceased approached the group of the accused and (t.s.n., p. 6, January 14, 1971) it was at that time when the deceased was inquiring from the group of the accused the reason why they were stoned that he (deceased) was stabbed.

The utterance of slanderous remarks followed by the stoning incident is a warning to the deceased and Ms group of the hostile attitude of the group of the appellant and these should have placed the deceased and his companions on their guard. (People vs. Gonzales, 76 Phil. 2173; People vs. Luna, 76 Phil. 107; People vs. Sagayno, 95 SCRA 366).

Further, the prosecution evidence also discloses that the place of the wound indicated that the accused was facing the deceased. (p. 8, t.s.n., January 12, 1971)

All these circumstances negative "alevosia".

We also find merit in the submission of the accused-appellant that the trial court erred in finding that he (accused) had fled from the scene of the crime. Pat. Artemio Talampas of the Las Pinas police declared that he arrested the accused in the latter's house, which is located about 40 meters away from the scene of the stabbing incident; that the accused was at the time talking with his friends; and that when he confronted the accused with the knife, the accused readily admitted ownership, thereof, as well as his having stabbed Dominador. ⁷ These circumstances negate flight.

As recommended by the Solicitor General, the penalty to be imposed upon the accused-appellant shall be eight (8) 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. However, the indemnity to be paid to the heirs of the victim shall be increased to P30,000.00, in line with recent decisions.

WHEREFORE, with the modifications above indicated, the judgment appealed from is hereby AFFIRMED. With costs against the defendant-appellant.

SO ORDERED.

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

Footnotes

* Penned by Judge Onofre A. Villaluz.

1 Appellee's Brief, pp. 2-5.

2 Appellant's Brief, pp. 2-3.

3 Trial Court decision, p. 16, Rollo, p. 24.

4 People vs. Lebumfacil, G.R. No. L-32910, March 28, 1980, 96 SCRA 573.

5 People vs. Maranan, G.R. Nos. L-47228-32, L-46587, Dec. 15, 1986, 146 SCRA 243.

6 People vs. Empeno, G.R. No. L-27610, May 28, 1970, 33 SCRA 40.

7 T.S.N. of Jan. 12, 1971, pp. 17-18,

People vs. Rey, G.R. No. 80089, April 13, 1989

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80089 April 13, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SATURNINO REY, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Julius L. Abela for defendant-appellant.

PADILLA, J.:

Saturnino Rey was charged with the crime of Murder before the Regional Trial Court of Capiz, committed as follows:

That on or about 8:40 o'clock in the evening of May 28, 1983, at Poblacion, Pilar, Capiz, Philippines, within the jurisdiction of this Court, the above-named accused armed with a .45 caliber pistol, did then and there, wilfully, unlawfully and feloniously shoot one NICOLAS PAGAYUNAN in a sudden and in unexpected manner, thereby inflicting upon the latter a gunshot wound above the nipple and sternum, right, thru and thru which caused his death thereafter; ¹

After trial, Judge Rodrigo V. Cosico found the following facts to have been established:

... On the evening of May 28, 1983, which was a fiesta day, while Rosette Pagayunan, a teacher at the San Esteban Elementary School, was preparing to cook food at her house, she found out that there was no water. Accordingly, Mrs. Pagayunan instructed her two (2) children, Babette and Nicolas, to get water from the faucet of the accused Saturnino Rey, also a public school teacher. At that time, Mr. Rey's faucet was allegedly the only one with water at the neighborhood because of the long drought. Nicolas was then a nineteen-year old fourth year high school student at the Colegio de la Purisima Concepcion, Roxas City. Babette and Nicolas proceeded towards the house of Mr. Rey to get water. Babette and Nicolas found Roban Rey, son of the accused, near the faucet. Roban was sitting atop the steps of the kitchen stairway talking with Nicolas. While Nicolas was standing beside the faucet waiting for his pail to be filled with water, he was shot twice by Saturnino Rey from the window of his bedroom which was about four (4) meters away. The shooting was witnessed by Roban Rey and Babette Pagayunan, who was about three (3) meters away from the faucet. After he was hit, Nicolas said to Roban: "I was hit." Soon after, Nicolas fell in front of Roban Roban went up their house and told Saturnino Rey: "Daddy you hit Colas." Babette went home and reported the shooting incident to her mother who fainted. The Pagayunan sisters and their group went to the place to get the body of Nicolas, who was taken to the Medicare Hospital in Pilar, Capiz, where he was given a first-aid treatment. Thereafter, Nicolas was taken to Roxas City but died before reaching the hospital.

On the morning of May 29, 1983, Patrolmen Jose Ballera and Hanzel Villareal conducted an investigation at the place of the shooting incident and found an empty shell (Exh. C) below the window of the room of Saturnino Rey. During the investigation, Roban Rey, in the presence of the police investigators and Romeo Bacalocos, pointed to the direction of the window of the room of his father, Saturnino Rey, as the place where the firing came from. ²

The trial court found the defendant-appellant guilty, as charged, and sentenced him to suffer the penalty of reclusion perpetua to indemnify the heirs of the victim in the amount of P30,000.00, to pay the heirs of the victim the amount of P50,000.00 for moral damages and to pay the costs.

From this judgment, the accused Saturnino Rey appealed. His counsel assails the trial court for completely believing the testimony of the prosecution witnesses. Counsel points to certain facts and circumstances of weight and substance which the trial court allegedly overlooked, misapplied or misinterpreted, and which, if considered, will materially alter the result, to wit: "1) the fact that it was summer and the water system connections, particularly those in the higher level of the town, were not functioning; 2) the fact that the water faucet at the backyard of the accused-appellant was not functioning, not merely because the water pressure was too weak for the faucet to function but also because the water connection had been disconnected (t.s.n., p. 283); 3) the fact that the houses of both the deceased and the accused-appellant and their immediate neighborhood are on the same higher level of the town; 4) the fact that the household of the accused-appellant were getting their water supply from Martin Cunada, their nearest neighbor, because he had a water pump, several water storage tanks, and a well; 5) the fact that the immediate neighbors of the Pagayunans had wells, water storage tanks, as well as water system connections and some of their neighbors were relatives and close friends of the Pagayunans; 6) the fact that the Pagayunans were known and seen to obtain their water supply from these immediate neighbors; 7) the fact that the Pagayunans (who were relatively new in the neighborhood) had never drawn water from the faucet of the accused-appellant; 8) the fact that the house of the accused-appellant was at least 120 meters away from the house of the deceased; 9) the fact that the only access to the accused-appellant's bedroom window from the outside was through the shuttered gate of the wire-enclosed vegetable garden; 10) the fact that the six-foot-high chicken and barb-wire fence of the vegetable garden was covered with climbing plants, thereby blocking the view from the windows as well as from the outside into the bedroom; 11) the fact that the accused- appellant's house was of the bungalow type and the sill of the bedroom window was only about 3.5 feet from the ground; 12) the fact that the deceased was found just below or near the bedroom window and within the enclosed vegetable garden, not only by members of the accused-appellant's family but also by Martin Cunada, a friend and barkada of the deceased, who happened to be passing by just after gunfire sounded; 13) the fact that Martin Cunada, who stayed for some five minutes at the scene of the incident right after the shooting, did not see Babette Pagayunan or any other member of the deceased's family anywhere in the vicinity; 14) the fact that after the shooting only Babette Pagayunan of the Pagayunan household was seen with the deceased and the Rey children at the Medicare Hospital and in Roxas City; 15) the fact that none of the four water containers the deceased allegedly brought with him to the accused-appellant's backyard faucet was ever found or seen before, during, or after the shooting; 16) the fact that except for Dr. Buenvenida, all the other four (4) witnesses of the prosecution concocted some material portions of their testimonies; 17) the fact that in a small rural town in the interior the inhabitants sup and sleep early; and 18) the fact that it was the night of the town fiesta and older folks tend to be more security-conscious." ³

The appeal is without merit. The circumstances enumerated by the counsel for the appellant are of little importance because the accused-appellant, Saturnino Rey, had admitted having fired the shot that killed the deceased Nicolas Pagayunan. His testimony in court reads, as follows:

Q Now, will you please inform the Honorable Court at about 8:40 in the night of May 28, 1983 where you were and what you were doing.

A I was inside my room of my house.

Q And what were you doing.

A I was lying down.

Q Did you have any companion in your room that night and at that time?

A Yes, sir.

Q Inform the court who were your companions.

A My child aging four years of age with my second wife.

Q What happened while you were in your room that night and that time with your child?

A There was a person who opened my window, the window of my room where I was lying down.

Q Now do you know who was that person who opened the window of your room where you were, lying down?

A No, sir. At first I did not know.

Q Will you please describe to the Honorable Court the room where you were staying in and the window which was opened?

A The frontage of my house is facing (witness pointing to the western direction). The elevation of the flooring is one foot. The height of the window from the floor is this high (witness referring to the window of the courtroom estimated to be 2 1/2 feet).

Q After you noticed that a person opened your window, the window of your bedroom, what happened?

A I felt for my pistol.

Q What happened after that?

A I sat on the bed and asked, Who are you?'

Q And did you receive an answer after asking who was that person?

A No, sir.

Q What happened after you received no answer?

A I fired a shot.

Q How many times did you fire your pistol?

A Twice.

Q By the way, how wide was that window in your room?

A About 1 1/2 meters wide.

Q And did you see anybody to whom or at whom you fired your pistol?

A The first shot that I fired was upward, on the air.

Q My question to you is, did you see any person outside the window?

A Yes, sir.

Q Were you able to discern the facial features of the person you saw at the window?

ATTY. PATRICIO:

Objection, your Honor.

COURT:

All right, reform.

ATTY. ABELA:

Q How well did you see the person you saw at your window?

A Silhouette.

Q Will you be able to recognize the person you saw at your window that night?

A No, sir.

Q And what was the person you saw at your window doing when you fired the shot?

A You mean the first shot?

Q The first shot what was the person doing.?

A After he pushed the shutter of the window he put his hand down.

Q And at that time you fired the second shot what was the man doing.?

A I was looking at him and he had the action of drawing something and that was the time I fired the second shot.

Q By the way how close was the man to your window that night?

A Just like this, from myself up to Atty. Abela (distance estimated to be 1 1/2 meters).

Q My question to you is, how close was that man to the window of your room?

A He was right at the window.

Q And what part of the body of that man can be seen by you?

A From the waist.

Q And how far were you seated on your bed, how far was your bed from the wall of the window?

A About one foot.

Q What happened after you fired the second shot directed at that man at your window?

A I gave out an alarm to my children. ⁴

Having invoked self-defense, it was incumbent upon the defendant-appellant to prove by clear and convincing evidence the fact that he acted in self-defense. The defendant must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if it were weak, it could not be disbelieved after the accused himself admitted the killing. ⁵ In this regard, defendant-appellant failed to discharge the burden reposed upon him by law to prove self-defense. The trial court found that the testimony of the defendant-appellant gave evasive and ambiguous answers before the court. ⁶ We have examined the record of the case and we find no cogent reason to disturb said findings of the trial court. The witnesses for the prosecution had no evil motive to testify falsely against the appellant.

Besides, defendant-appellant's testimony, even if true, does not establish a case of self-defense. There is no evidence of unlawful aggression on the part of the deceased. The defendant-appellant merely testified that he saw a person open the window of his bedroom and when he inquired who the person was and received no answer, he fired a shot into the air then, when said person lifted his right arm chest high, ⁷ he fired the second shot. The interval between the two shots was only about three (3) to five (5) seconds. ⁸ For unlawful aggression to be appreciated in self-defense, there must be an actual sudden and unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude. ⁹ The raising of the right arm chest high alone by an unarmed person cannot be considered unlawful aggression. Absent unlawful aggression on the part of the deceased, there cannot be self-defense on the part of the accused.

The defendant-appellant also failed to rebut the presumption that the shooting was done with criminal intention. His conduct after the shooting incident was inconsistent with the conduct of a person who had innocently shot a person by accident. It would appear that he did not do anything to help his victim who was lying down on the ground, bleeding and moaning. He did not go down from his house even after finding that the person he had shot was Nicolas Pagayunan. Instead, he uttered curses. ¹⁰ Then, very early the next morning, at about 5:30 o'clock, he left his house and stayed with his brother in a neighboring municipality, ¹¹ and did not go home even to help the police in their investigation. ¹² Flight is an indication of a guilty mind.

The defendant-appellant also contends that treachery or alevosia was not charged in the information filed against him, or proven by the evidence presented by the prosecution at the trial.

The contention is without merit. The information filed in this case specifically stated that the accused, Saturnino Rey, armed with a.45 caliber pistol, wilfully, unlawfully and feloniously shot Nicolas Pagayunan "in a sudden and unexpected manner." This is sufficient allegation of treachery because a sudden and unexpected attack, without the slightest provocation on the person of the one attacked is the essence of treachery or alevosia. It is not necessary that the information should use specifically the word "alevosia" or treachery. It is sufficient if the information alleges facts in clear and explicit language which would show treachery or alevosia without the use of the specific word. ¹³

Treachery in the shooting of Nicolas Pagayunan was established by the testimony of Babette Pagayunan who declared that the accused-appellant suddenly and without warning shot the deceased as the latter was waiting for his pail to be filled with water and while talking to the son of the accused-appellant. The attack was sudden, unexpected, without warning, and without giving the victim an opportunity to defend himself or repel the aggression. In fact, the deceased did not sense any danger that he would be shot by the defendant-appellant as there was no previous grudge or misunderstanding between them.

The claim of the defendant-appellant that he had fired a warning shot into the air appears to be an afterthought. Babette Pagayunan categorically declared that her brother, Nicolas Pagayunan, was hit on the first shot. Her testimony, on cross examination, reads as follows:

Q How many shots did Saturnino Rey the accused, direct to your brother?

A Two shots were delivered by Saturnino Rey. The first shot hit my brother. I did not know whether the second shot hit my brother. After the first shot my brother staggered towards Roban. ¹⁴

Besides, the shots were fired in rapid succession so that the first shot could not serve as a warning shot. Babette Pagayunan stated:

Q How long after the first shot did you hear the second shot?

A Seconds only. The interval was seconds.

Q So that the second shot came right after the first shot?

A Yes, sir. ¹⁵

The defendant-appellant, Saturnino Rey, also testified, as follows:

Q You testified a while ago that you fired two shots. How long after you fired the first shot that you also fired the second shot?

A The interval was only seconds.

Q About two seconds?

A Three seconds or more.

Q But it could not be more than five seconds, right?

A No, sir. ¹⁶

As the People's counsel observed, if the version of the defendant-appellant were true, the empty shell would have fallen near the defendant-appellant's bed, inside his room, and not outside the house where Pat. Hanzel Villareal found it; and that the first shot would have hit a part of the house.

The trial court, therefore, correctly found the offense committed by the defendant-appellant to be murder, qualified as it was by treachery.

WHEREFORE, the judgment appealed from is AFFIRMED With costs against the appellant.

SO ORDERED.

Melencio-Herrera, J., (Chairman), Paras, Sarmiento, Regalado, JJ, With reservations as to the penalty only consistent with my dissent in P. vs. Millora.

Footnotes

1 Rollo, p. 15.

2 Id., pp. 26-27.

3 Appellant's Brief, pp. 62-64.

4 T.s.n. of October 27, 1986, pp, 4-6.

5 People vs. Llamera, G.R. No. L-21604-06, May 25, 1973, 51 SCRA 48, 57, and cases cited therein.

6 Decision, pp. 3-4.

7 T.s.n. of October 27, 1986, p. 16.

8 T.s.n of March 26, 1987, p. 17.

9 People vs. Pasco, Jr., G.R. No. L-45715-16, June 24, 1985, 137 SCRA 137.

10 T.s.n. of March 26, 1987, pp. 22-25.

11 Id., P. 11.

12 Id., p. 16.

13 Sec. 9, Rule 110, Rules of Court.

14 T.s.n. of November 27,1984, pp. 67-68.

15 Id., p. 68.

16 T.s.n. of March 26, 1987, p. 17

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.