G.R. No. 134298           August 26, 1999

RAMON C. TAN, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

PARDO, J.:

The case before the Court is an appeal via certiorari from a decision of the Court of Appeals * affirming that of the Regional Trial Court of Manila, Branch 19, ** convicting petitioner of the crime of fencing.

Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass screws were missing. She conducted an inventory and discovered that propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole from the complainant's warehouse some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez asked the complainant's forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop.

On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the Regional Trial Court, Manila, Branch 19, an information against petitioner charging him with violation of Presidential Decree No. 1612 (Anti-Fencing Law) committed as follows:

That on or about the last week of February 1991, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep, acquire and possess several spare parts and items for fishing boats all valued at P48,130.00 belonging to Rosita Lim, which he knew or should have known to have been derived from the proceeds of the crime of theft.

Contrary to law.

Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime charged and waived pre-trial. To prove the accusation, the prosecution presented the testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez.

On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile witnesses and petitioner himself. The testimonies of the witnesses were summarized by the trial court in its decision, as follows:

ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B). That sometime in February 1991, after one of her employees left the company, she discovered that some of the manufactured spare parts were missing, so that on February 19, 1991, an inventory was conducted and it was found that some welding rods and propellers, among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person who

recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same.1âwphi1.nêt

When presented on rebuttal, she stated that some of their stocks were bought under the name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and stated further that whether the stocks are bought under the name of the said corporation or under the name of William Tan, her husband, all of these items were actually delivered to the store at 3012-3014 Jose Abad Santos Street and all paid by her husband.

That for about one (1) year, there existed a business relationship between her husband and Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise bought from the former brass woods, and that there is no reason whatsoever why she has to frame up Mr. Tan.

MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries from November 1990 up to February 1991. That sometime in the third week of February 1991, together with Gaudencio Dayop, his co-employee, they took from the warehouse of Rosita Lim some boat spare parts, such as bronze and stainless propellers, brass screws, etc. They delivered said stolen items to Ramon Tan, who paid for them in cash in the amount of P13,000.00. After taking his share (one-half (1/2) of the amount), he went home directly to the province. When he received a letter from his uncle, Victor Sy, he decided to return to Manila. He was then accompanied by his uncle to see Mrs. Lim, from whom he begged for forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit prepared by a certain Perlas, a CIS personnel, subscribed to before a Notary Public (Exhibits C and C-1).

VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita Lim, the former being the nephew of his wife while the latter is his auntie. That sometime in February 1991, his auntie called up and informed him about the spare parts stolen from the warehouse by Manuelito Mendez. So that he sent his son to Cebu and requested his kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and bring Mendez back to Manila. When Mr. Mendez was brought to Manila, together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the pier after which they proceeded to the house of his auntie. Mr. Mendez admitted to him having stolen the missing items and sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied the same.

ROSITA LIM, when called to testify as a hostile witness, narrated that she owns Bueno Metal Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio Dayop left, her husband, William Tan, conducted an inventory and discovered that some of the spare parts worth P48,000.00 were missing. Some of the missing items were under the name of Asia Pacific and William Tan.

MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated that he received a subpoena in the Visayas from the wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on April 8, 1991. That he consented to come to Manila to ask forgiveness from Rosita Lim. That in connection with this case, he executed an affidavit on April 12, 1991, prepared by a certain Atty. Perlas, a CIS personnel, and the contents thereof were explained to him by Rosita Lim before he signed the same before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo, Manila (Exhibits C and C-1).

That usually, it was the secretary of Mr. Tan who accepted the items delivered to Ramon Hardware. Further, he stated that the stolen items from the warehouse were placed in a sack and he talked to Mr. Tan first over the phone before he delivered the spare parts. It was Mr. Tan himself who accepted the stolen items in the morning at about 7:00 to 8:00 o'clock and paid P13,000.00 for them.

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila.

He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by Mrs. Lim are not under her name and the other two (2) are under the name of William Tan, the husband, all in all amounting to P18,000.00. Besides, the incident was not reported to the police (Exhibits 1 to 1-g).

He likewise denied having talked to Manuelito Mendez over the phone on the day of the delivery of the stolen items and could not have accepted the said items personally for everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It is not possible for him to be at his office at about 7:00 to 8:00 o'clock in the morning, because he usually reported to his office at 9:00 o'clock. In connection with this case, he executed a counter-affidavit (Exhibits 2 and 2-a).1

On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found guilty beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise known as Presidential Decree No. 1612, and sentences him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00.

Costs against the accused.

SO ORDERED.

Manila, Philippines, August 5, 1996.

(s/t) ZENAIDA R. DAGUNAJudge

Petitioner appealed to the Court of Appeals.

After due proceedings, on January 29, 1998, the Courts of Appeals rendered decision finding no error in judgment appealed from, and affirming the same in toto.

In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June 16, 1998, the Court of Appeals denied the motion.

Hence, this petition.

The issue raised is whether or not the prosecution has successfully established the elements of fencing as against petitioner.2

We resolve the issue in favor of petitioner.

"Fencing, as defined in Section 2 of P.D. No. 1612 is "the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."3

"Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon things."4

The crime of theft is committed if the taking is without violence against or intimidation of persons nor force upon things.5

"The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft."6

Before the enactment of P.D. No. 1612 in 1979, the fence could only be prosecuted as an accessory after the fact of robbery or theft, as the term is defined in Article 19 of the Revised Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the principal.7

P.D. No. 1612 was enacted to "impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft." Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.8 The State may thus choose to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is malum prohibitum, and P.D. No. 1612 creates a presumption of fencing9 and prescribes a higher penalty based on the value of the property.10

In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows:

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and

4. There is on the part of the accused, intent to gain for himself or for another.11

Consequently, "the prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged."12

Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense.13 "It is an ancient principle of our penal system

that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9)."14

In this case, what was the evidence of the commission of theft independently of fencing?

Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, crime of robbery or theft has been committed.

There was no sufficient proof of the unlawful taking of another's property. True, witness Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant to petitioner. However, an admission or confession acknowledging guilt of an offense may be given in evidence only against the person admitting or confessing.15 Even on this, if given extra-judicially, the confessant must have the assistance of counsel; otherwise, the admission would be inadmissible in evidence against the person so admitting.16 Here, the extra-judicial confession of witness Mendez was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may such extra-judicial confession be considered evidence against accused.17 There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.18 Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed."19 The "essential elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against persons or force upon things (U.S. vs. De Vera, 43 Phil. 1000)."20 In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.21 In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.22

What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold him. "One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind's grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence."23

Without petitioner knowing that he acquired stolen articles, he can not be guilty of "fencing".24

Consequently, the prosecution has failed to establish the essential elements of fencing, and thus petitioner is entitled to an acquittal.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. C.R. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No. 92-108222 of the Regional Trial Court, Manila.1âwphi1.nêt

Costs de oficio.

SO ORDERED.

G.R. No. 149368             April 14, 2004

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

DECISION

CORONA, J.:

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

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

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

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

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

CONTRARY TO LAW.2

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

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

To establish appellant’s guilt, the prosecution presented the following witnesses: Charlita Tallada, the victim’s mother; Patricia Turlao, the victim’s aunt; appellant Dacillo’s neighbors, Jovelyn Dagmil, Augusto Cesar Arara,

Roche Abregon, Resna Abregon, Allan Castanares, Jupiter Campaner; police officers SPO2 Rodolfo Taburda and SPO1 Avelino Alcobus, and medico-legal officer Dr. Danilo P. Ledesma.

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

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

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

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

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

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

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

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

At 5:00 p.m. the same day, witnesses Roche, Resna, and Rachel were gathering seashells under appellant’s house when they saw droplets of blood and pus dripping from appellant’s comfort room. They immediately reported it to their aunt who in turn instructed her husband to get a stick and poke the sacks covering the comfort room. However, the husband instead climbed up the house and was greeted by the stink emanating from the corner where he saw a tomb-like structure. They immediately reported the matter to barangay officials who called the police.13

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

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

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

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

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

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

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

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

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

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

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

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

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

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

His immediate confinement to the national penitentiary is hereby ordered.

Costs de oficio.

SO ORDERED.18

Thus, this automatic review.

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

I

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

II

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

Appellant admitted that he had a hand in the killing of Rosemarie but attempted to downgrade his participation in the crime by claiming he only held Rosemarie’s legs as Pacot was strangulating her. The rule is that any admission made by a party in the course of the proceedings in the same case does not require proof to hold him liable therefor. Such admission may be contradicted only by showing that it was made through palpable mistake or no such admission was in fact made. There was never any such disclaimer by appellant.

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

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

1. they participated in the criminal resolution and

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

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

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

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

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

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

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

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

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

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

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

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

Regarding the award of P50,000 as civil indemnity to the heirs of the victim, appellant claims that said amount was awarded by the trial court as payment for actual damages. This claim is misleading. As aptly pointed out by the Solicitor General, the amount was granted by the trial court by way of indemnity ex delicto to compensate for the death of the victim which prevailing jurisprudence fixes at P50,000.27 The award of such indemnity requires no proof other than the death of the victim and the accused’s responsibility therefor.28

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

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

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

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

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

In People vs. Catubig,31 we explained that:

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

Thus, the award of exemplary damages is warranted under Art. 2230 of the Civil Code in view of the presence of the aggravating circumstance of abuse of superior strength. Imposition of exemplary damages is also justified under Art. 2229 of the Civil Code in order to set an example for the public good.32 For this purpose, we believe that the amount of P25,000 may be appropriately awarded.

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

Costs de oficio.

SO ORDERED.

G.R. No. 178058               July 31, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.JESSIE MALIAO y MASAKIT, NORBERTO CHIONG y DISCOTIDO and LUCIANO BOHOL y GAMANA, Accused,JESSIE MALIAO y MASAKIT, Accused-Appellant.

D E C I S I O N

QUISUMBING, J.:

For automatic review before this Court is the Decision1 dated August 2, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01299 affirming with modification the Decision2 dated January 29, 2003 of the Regional Trial Court (RTC) of Olongapo City, Branch 75. The trial court had found accused Norberto Chiong, Luciano Bohol, and accused-appellant Jessie Maliao guilty beyond reasonable doubt as principals of the crime of rape with homicide.lavvphil

In a Second Amended Information3 dated April 28, 1998, Jessie Maliao, Norberto Chiong, and Luciano Bohol were charged of the crime of rape with homicide before the RTC of Olongapo City, as follows:

That on or about the seventeenth (17th) day of March, 1998, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, with lewd design, and by means of force, violence or intimidation applied upon the person of one AAA,4 a minor who is six (6) years of age, did then and there willfully, unlawfully and feloniously have carnal knowledge with said AAA, and in pursuance of their conspiracy and acting simultaneously or otherwise, and with the qualifying circumstances of treachery, [evident] premeditation and taking advantage of their superior number and strength to the said victim who is a minor and of tender age and with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack, strangle and hit with a wooden stool said AAA which directly caused her death shortly thereafter, to the damage and prejudice of the parents of said AAA.

CONTRARY TO LAW.5

During arraignment on May 26, 1998, Maliao, Chiong and Bohol pleaded not guilty.6 Thereafter, trial proceeded.

The prosecution presented the oral testimonies of Dr. Ronaldo Mendez, Senior Medico-Legal Officer of the National Bureau of Investigation (NBI), Dennis Alonzo, SPO2 Norberto Maninang, Jr., SPO3 Orlando Reyes, NBI Forensic Biologist I Pet Byron Buan, Atty. Alreuela Bundang Ortiz, Danilo Agrabio, Armando Tadeo, and Roel Santos. It also presented the testimonies of BBB and CCC, AAA’s mother and grandaunt, respectively. The defense presented the testimony of accused Jessie Maliao.

The facts, culled from the records, are as follows:

AAA was born on December 21, 1991.7 She was the daughter of BBB and DDD who reside at Block 12, Lot 6, Gordon Heights, Olongapo City.8

AAA left her house at about 8:00 p.m. on March 17, 1998 to watch a television show in the adjacent house of her grandaunt, CCC. She was then wearing a white blouse, as testified to by BBB, her mother. Both BBB and CCC subsequently left to go to a mini-carnival. When CCC returned to her house, AAA was no longer there. When BBB and her husband, DDD, returned home, AAA was not yet in the house. The spouses looked for AAA in their neighborhood but they did not find her.9

At about noontime of the following day, March 18, 1998, the naked and lifeless body of AAA was found between two banana plants in a vacant lot near her house. The matter was reported to the police authorities of Precinct 5, Sta. Rita, Olongapo City. An investigation was conducted by the police authorities and a cartographic sketch of the suspect was prepared by an artist of the NBI.10

On March 21, 1998, the desk officer of Police Precinct 5 received a telephone call from a concerned citizen reporting that a bloodstained shirt was found in a vacant lot which was being used as a carnival. SPO2 Norberto Maninang, Jr., SPO4 Bonifacio Chavez and SPO2 Godofredo Ducut proceeded to the area and they found the t-shirt hanging on a plant. A police officer called for BBB, the mother of AAA, and she identified the t-shirt as the one worn by AAA in the evening of March 17, 1998. As the police officers were conducting an investigation in the area, SPO2 Maninang noticed a man who looked like the person in the cartographic sketch which he was carrying at the time. The police officers arrested the man who turned out to be accused-appellant Jessie Maliao. Upon interrogation, Maliao told the police officers that he was bothered by his conscience.11

On March 21, 1998, Maliao executed an extrajudicial confession before SPO3 Orlando C. Reyes. Before proceeding with the investigation, SPO3 Reyes advised Maliao of his constitutional rights in the presence of Atty. Areuela Bundang Ortiz. Maliao declared that he went home at about 10:00 p.m. of March 17, 1998 after having a drinking session with accused Bohol and Chiong and several others. After twenty minutes, Bohol and Chiong, together with AAA, arrived in his house and they asked him if he still wanted to drink but he declined the invitation. Bohol, Chiong and AAA then entered his house. He narrated he went out of his house because he did not want to drink anymore. But when he heard a groan, he went back inside his house and saw Bohol on top of AAA who was already naked while Chiong was seated on the wooden bed watching. When Bohol stood up, Chiong laid on top of AAA. Maliao confessed he just stood beside a cabinet and masturbated. He then watched Chiong stand up, take a small stool and use it to hit AAA on the chest and head. Bohol and Chiong then carried the bloodied body of AAA and told him to clean the room. He wiped the bloodstains in the room, on the clothes of AAA, and on the wooden bed and small stool. He threw the t-shirt of AAA at the lot behind his house and placed her short pants inside a sack which contained garbage. He also threw the curtains he used in wiping bloodstains at his house and hid the small stool. He did not know where Bohol and Chiong brought the body of AAA but was aware that the body was found the following day in a vacant lot in front of his house. After AAA was found, Bohol approached him and told him not to say anything or else he would be killed. He saw Chiong standing near a store. Maliao identified the t-shirt, curtains, small stool and wooden bench and human figures representing Bohol and AAA while the former was on top of the latter.12

Dr. Ronaldo B. Mendez, Medico-Legal Officer of the NBI, performed the autopsy on the body of AAA on March 20, 1998. He stated in his autopsy report that AAA’s cause of death was traumatic head injury.13 He testified that AAA sustained numerous abrasions and contusions on different parts of her body, hematoma on the forehead and scalp, fractures on the skull and complete laceration of her hymen at the 3 o’clock and 6 o’clock positions.14

After the prosecution rested its case, the accused Bohol and Chiong filed a Motion for Express Leave of Court to File Judgment on Demurrer which the RTC denied.

Among the accused, only Maliao put up a defense.

On January 29, 2003, the RTC rendered a decision finding all the accused guilty beyond reasonable doubt and sentenced them to suffer three death penalties, as follows:

WHEREFORE, finding all accused guilty beyond reasonable doubt as charged, this Court hereby sentences them each to suffer three (3) death penalties. They are further ordered jointly and severally to indemnify in the amount of P100,000.00 … the heirs of the victim; P100,000.00 for moral damages and to pay the costs of the proceedings.

SO ORDERED.15

Pursuant to People v. Mateo,16 this case was first referred to the Court of Appeals for appropriate action and disposition.

The Court of Appeals, in a Decision dated August 2, 2006, affirmed with modification the decision of the RTC by finding accused Maliao guilty not as principal but as an accomplice to the crime as well as modifying the damages awarded. The dispositive portion of the decision reads:

WHEREFORE, the Decision appealed from is AFFIRMED with MODIFICATION, by finding accused-appellants Norberto Chiong y Discotido and Luciano Bohol y Gamana guilty as principals in the crime of rape with homicide and sentencing each of them to two (2) reclusion perpetua, and finding accused-appellant Jessie Maliao y Masakit guilty as accomplice in the same crime and sentencing him to an indeterminate penalty of 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.

The accused-appellants are further ORDERED to pay the heirs of AAA the amounts of P200,000.00 as civil indemnity, P200,000.00 as moral damages and P50,000.00 as exemplary damages, with the principals being solidarily liable for P150,000.00 as civil indemnity, P150,000.00 as moral damages and P35,000.00 as exemplary damages and subsidiarily for the accomplice, and the accomplice being liable for P50,000.00 as civil indemnity, P50,000.00 as moral damages and P15,000[.]00 as exemplary damages and subsidiarily for the civil liability of the principals.

SO ORDERED.17

From the Court of Appeals, the case was then elevated to this Court for automatic review. In separate Manifestations, appellee, through the Office of the Solicitor General (OSG), and appellant Maliao, through the Public Attorney’s Office (PAO), informed the Court that they were no longer filing supplemental briefs and will merely adopt their briefs before the Court of Appeals as their supplemental briefs.

Accused-appellant Maliao raises the following issues:

I.

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II.

THE COURT A QUO GRAVELY ERRED IN ADMITTING IN EVIDENCE THE ALLEGED EXTRAJUDICIAL CONFESSION OF THE ACCUSED-APPELLANT.

III.

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR.18

The only issue to be resolved is: Was accused-appellant Maliao’s guilt as accomplice in the crime of rape with homicide proven beyond reasonable doubt?

The appeal, in our view, lacks merit. Appellant Maliao’s conviction as accomplice in the crime of rape with homicide must be sustained.

The Court of Appeals correctly held that despite the inadmissibility of his extrajudicial confession, Maliao is not entitled to an acquittal. Citing People v. Culala,19 the Court of Appeals rightfully noted that the extrajudicial confession of an accused who was assisted by a Municipal Attorney during the custodial investigation is not admissible in evidence because the latter cannot be considered an independent attorney.201avvph!1

However, in spite of the inadmissibility of his extrajudicial confession, Maliao is not entitled to an acquittal because when he testified on cross-examination, he admitted that all the answers he gave to the questions propounded on him by the police investigator are true and correct of his own personal knowledge.

On cross-examination, Maliao implicitly admitted, to wit:

Q: Now, in this sketch[,] there is a figure, who made this sketch?

A: [(Maliao)]: I, myself, sir.

Q: And also there is [the] name AAA nakahiga, who wrote [these] words?

A: Me, sir.

Q: And the other human figure, thereof there appears an arrow pointed to Luciano – nakadapa, who wrote these words?

A: I was the one, sir.

Q: And there is also a word "papag" who wrote this?

A: I, sir.

Q: And you also sketch[ed] the papag?

A: Yes, sir.

Q: Will you please explain to us why you said Luciano-nakadapa and AAA-nakahiga?

A: Because I have seen [the] incident in my house.

Q: So, you saw Luciano on top of AAA?

ATTY. ABELLERA:

Objection, the description is nakadapa not on top, your honor.

Q: So, when you said Luciano-nakadapa, Luciano was on top of AAA?

A: Yes, sir.

Q: Now, where were you in this sketch if you will be required to point your distance from Luciano and AAA when you saw them in that specific position?

A: I was beside the aparador, sir.

Q: More or less how many f[ee]t or meters?

A: Around 1 ½-arm leng[th].

Q: You testified that you have several companions in having a drinking spree?

A: Yes, sir.

Q: And eventually you left your house together with certain persons, who are these persons?

A: Luciano Bohol and Norberto Chiong, sir.

Q: And [the] two co-accused of yours arrived with a girl?

A: Yes, sir.

Q: And then after the incident happened and during the investigation, you depicted that in your sketch the persons of AAA and Luciano Bohol?

A: Yes, sir.

Q: Now, in all events that happened in your house, you want to impress the court that you have nothing to do with the incident?

A: None, sir.

Q: Now, you pinpointed Norberto Chiong what was he doing at that time?

A: He was just inside our house.

Q: What do you mean inside the house was it together with Luciano Bohol and AAA?

A: He was with Luciano Bohol and AAA.

x x x x

Q: So who brought AAA to your house?

A: Luciano Bohol and Norberto Chiong, sir.

Q: So what did you do when you saw the scene that Luciano was on top of AAA?

ATTY. ABELLERA:

Objection, your honor.

Q: Were you the one who lead the Police Investigator to recover the wooden stool?

A: Yes, sir.

Q: Were you the one who lead the Police to recover the t-shirt worn by AAA?

A: No, sir.

Q: What about some pieces of clothes?

A: Yes, sir.

Q: Why did you lead the Police to recover [the] pieces of clothes?

A: Because they told me to help them, sir.

Q: And where did you find [the] pieces of clothes?

A: The pieces of clothes were recovered at the other side of the fence.

Q: The fence of your house?

A: Yes, sir.

Q: Do you know who [threw] [the] pieces of clothes at the fence?

A: Yes, sir. I, myself.

Q: Why did you throw [the] pieces of clothes?

A: Because of my fear, sir.

Q: And [those were] the clothes worn by AAA during that time?

A: Yes, sir.

Q: What time were you investigated by Police Investigator Reyes?

A: Around 11 or 12:00, sir.

Q: But the final investigation was only terminated at around 4:30 p.m.?

A: Yes, sir.

Q: And it was the time when Atty. Bundang arrived?

A: Atty. Bundang arrived at around 5 to 6 and it was already dark, sir.

Q: Mr. Jessie Maliao, is it not a fact that before the commencement of the investigation, you asked the Police Officer to call Atty. Alinea [who] [was] the best friend of your father when he was in [the] mines?

A: Yes, sir.

ATTY. ALINEA:

No more questions.

ATTY. ABELLERA:

Q: Mr. [W]itness, you said that you were the one who lead the Police to recover the stool of AAA and this was recovered near your place, is that correct?

A: Yes, sir.

Q: And did you go with them when you recovered those clothes?

A: Yes, sir.

Q: And when you went to that place do you know [who your companions were]?

A: Yes, sir.

Q: And when you went to that place do you know [who your companions were]?

A: Yes, sir.

Q: Who are they?

A: Maninang, delos Reyes, Ducot and other Police Officers, sir.

Q: Were you accompanied by Atty. Ortiz in going to that place?

A: No, sir.

ATTY. ABELLERA:

That’s all, your honor.

COURT:

Q: During the incident subject matter of this case, you [stated] that [the blood were] scattered in your house?

A: Yes, sir.

Q: And you were the one who wiped it off?

A: Yes, sir.

Q: And [you] used the curtains in wiping it off?

A: Yes, sir.

Q: And were those curtains included when [you] pointed the wooden stool to the Police?

A: Yes, sir.21

Section 4, Rule 129 of the Revised Rules of Court on Evidence provides that an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Maliao admitted he saw Bohol and Chiong rape AAA; that Chiong picked up a wooden stool and hit AAA with it on the chest and head; that Bohol and Chiong carried the bloodied body of AAA, instructed him to clean the floor and then they went out of the house; that he cleaned the room by wiping the bloodstains; and that he threw the t-shirt of AAA, placed the latter’s short pants inside a sack containing garbage, threw the curtains which he used in wiping the bloodstains, and hid the wooden stool. He likewise admitted that he led the police officers to the place where he threw the pieces of clothes which he used in wiping the bloodstains in his house and that he accompanied the police officers to his house and pointed to them the wooden stool which he hid.

To hold a person liable as an accomplice, two elements must concur: (1) community of design, which means that the accomplice knows of, and concurs with, the criminal design of the principal by direct participation; and (2) the performance by the accomplice of previous or simultaneous acts that are not indispensable to the commission of the crime.22 In this case, Maliao facilitated the commission of the crime by providing his own house as the venue thereof. His presence throughout the commission of the heinous offense, without him doing anything to prevent the malefactors or help the victim, indubitably show community of design and cooperation, although he had no direct participation in the execution thereof.

Having admitted his involvement in the crime and considering the weave of evidence presented by the prosecution, seamlessly linking Maliao’s participation in the heinous offense, as elucidated by the autopsy report and testimonies of other prosecution witnesses, no doubt can be entertained as to Maliao’s guilt. Beyond reasonable doubt, he is guilty as accomplice to the crime of rape with homicide.

WHEREFORE, the Decision dated August 2, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01299, including the sentence of guilt and the penalty imposed on accused-appellant Jessie Maliao, is hereby AFFIRMED. Costs de oficio.

SO ORDERED.

G.R. No. 125688             April 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.IGNACIO CUPINO, 1 VINCENT DEJORAS and RAMON GALOS a.k.a. Jun, accused, IGNACIO CUPINO and VINCENT DEJORAS, accused-appellants.

 

PANGANIBAN, J.:

Conspiracy must be established by proof beyond reasonable doubt. In the present appeal, the prosecution eyewitness testified that one of the appellants had joined the other accused in approaching the victim, but subsequently tried to prevent them from stabbing this same victim. Such dubious participation is insufficient to prove beyond reasonable doubt that the said appellant conspired with the others in committing the offense. Accordingly, the constitutional presumption of innocence must be upheld. He must be acquitted.

The Case

Vincent Dejoras and Ignacio Cupino 2 appeal the March 6, 1995 Decision 3 of the Regional Trial Court (RTC) of Cagayan de Oro City (Branch 25). Dejoras and Cupino, together with one Ramon Galos, 4 were convicted of robbery with murder and sentenced to reclusion perpetua.

On October 19, 1989, an Information 5 was filed by Fourth Assistant City Fiscal Petronio P. Pilien, charging the three as follows:

That on or about August 16, 1989, at more or less 9:45 in the evening . . ., at Patag Crossing, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with intent to kill[;] armed with a knife [with] which one of them was then conveniently provided[;] with treachery, evident premeditation, superior strength, did then and ther[e] wilfully, unlawfully and feloniously [through] accused (Ramon Galos alias Jun), . . . [stab] one Gromyco 6 Valliente 7 [hitting him] at the left/right portion of his arm and abdomen, thus inflicting mortal wounds upon [the] offended party's person which directly caused his instantaneous death.

Contrary to Article 248 in relation to Article 14 of the Revised Penal Code.

Arraigned on January 22, 1990, 8 both appellants entered a plea of not guilty. Trial ensued. Thereafter, the lower court rendered its assailed Decision, 9 the dispositive part of which we quote thus:

WHEREFORE, premises considered, this Court finds all the three accused in conspiracy with each other, GUILTY beyon[d] reasonable doubt of the crime of MURDER, qualified by treachery as principal by direct participation as punished under the Revised Penal Code. This Court hereby sentences the two accused, Vincent Dejoras and Ignacio Copino, the third accused being at large, to individually suffer the penalty of RECLUSION PERPETUA without the attendance of any mitigating circumstance and to jointly and severally pay indemnity to the heirs of the victim the sum of P50,000.00 for the death of Gromyko Valliente, P40,000.00 as actual damages and burial expenses, P20,000.00 moral damages, and to pay the costs. 10

In view of the penalty imposed, the appeal was filed directly with this Court. 11

The Facts

Version of the Prosecution

In its Brief, 12 the Office of the Solicitor General presents the facts in this wise:

At around 9:45 in the evening of August 16, 1989, during the celebration of the town fiesta of Patag, Cagayan de Oro City, accused Ramon Galos and Gromyko Valiente (herein victim) were having a heated argument in front of Dod's Store, which was owned by a certain Piloton, located at the crossing of Patag (Testimony of Silverio Bahian, TSN, September 6, 1990, pp. 4-5; Testimony of Ferdinand Bangayan, TSN, July 2, 1990, pp. 5-6).

Then, appellants Ignacio Cupino and Vincent Dejoras arrived, and a fistfight erupted. Cupino, Dejoras and Galos ganged up on Valiente who also fought back (Testimony of Silverio Bahian at pp. 6-7, supra; Testimony of Ferdinand Bangayan at p. 7, supra.). Beaten and outnumbered, Valiente ran away towards the direction of a small pathway leading to the store of a certain Major Grio, which was beside Dod's Store. The trio chased . . . him (Testimony of Ferdinand Bangayan at p. 10, id.). Galos caught up with Valiente and then stabbed him twice in the stomach with a small bolo (Testimony of Silverio Bahian at pp. 9-10, supra.).

With the bolo still embedded on his stomach, Valiente crawled along the pathway. Cupino also caught up with Valiente (pp. 11-12, id.). Then Cupino pulled the bolo from the victim's body and was about to stab the victim again when Dejoras tried to grab Cupino's hands, but instead Dejoras got hold of the

blade of the bolo and was injured in the process. Dejoras left, coming out of the pathway with his wounded right hand (pp. 12-13, id.).

Meanwhile, Cupino proceeded to stab the victim twice in the stomach. Afterward, Cupino and Galos fled from the scene of the crime (p. 14, id.). Valiente, who was seriously wounded and soaked in his own blood, cried for help. He was brought to a hospital but later died (p. 19, id.; Testimony of Ferdinand Bangayan at pp. 12-13, supra.).

The autopsy conducted on the victim's body revealed that he sustained four (4) stab wounds: one on the left subpostal margin, another wound on the right subpostal margin, and two (2) sutured wounds on the left cocital area. The wound that was inflicted on the pancreas of the victim was considered fatal since it caused the massive hemorrhage. The cause of death was attributed to massive intra-abdominal hemorrhage due to multiple stab wounds (Testimony of Dr. Apolinar Vacalares, TSN, February 13, 1991, pp. 6-7). 13

Version of the Defense

For their part, appellants submit the following as the facts of the case:

On August 16, 1999, Ignacio Copino celebrated the town fiesta of Patag, Cagayan de Oro City at home with his family and friends, one of whom was Vincent Dejoras. After eating dinner at around 7:00 p.m., Dejoras, together with his co-workers, headed for home. Copino decided to accompany the group and at the Patag crossing, he was able to convince Dejoras to go to the "perya" and gamble, as he had P30 with him.

The pair lost all of the P30 in the "pula-puti" game and decided to call it quits. On their way home, they saw Ramon Galos "alias Panit" and Grom[yk]o Valiente "alyas Bobong", two of their acquaintances, apparently having an altercation.

They were about two meters from Galos and Valiente when Galos suddenly said: "Nasi is here (referring to Copino), you hit him." (Transcript of Stenographic Notes, VINCENT DEJORAS, Hearing April 4, 1991, page 7). Galos then kicked Valiente and the latter fell down. Valiente was able to get up and run towards an alley at the back of Dod's store with Galos in close pursuit. Copino and Dejoras ran after the two with the intention to pacify the fighters. Galos was able to corner Valiente and once again, the two traded blows. When Copino and Dejoras were finally able to catch up with the two, they noticed that Valiente was already bleeding. Eyewitness Silverio Bahian later recounted that he saw Panit pull out a bolo and stab Bobong.1âwphi1.nêt

Dejoras, on his part, tried to stop Galos from inflicting more wounds and he too was wounded in the process. What happened was that instead of holding Galos' hand, he was able to hold the blade of the knife, thereby injuring himself. Galos then ran away. Upon the realization that his right hand was bloodied, and fearing that more harm would fall upon them, Copino and Dejoras too ran away.

Dejoras went to City Hospital to have his wound treated and then they went home. At midnight of the same day, a policeman went to his house and brought him to the OKK Police Station where he was booked into the police blotter. The following day, Copino and Dejoras learned that Gromyko Valiente had died. Together with their parents the[y] went to the Tourism Hall to have their statements taken by the police. 14

Ruling of the Trial Court

The trial court ruled that (1) appellants were guilty of murder, as the killing was qualified by treachery; (2) conspiracy was proven by the chain of circumstantial evidence submitted; and (3) the aggravating circumstance of superior strength was absorbed by treachery and may no longer be used to increase the penalty to its maximum period.

The Issues

Appellants aver that the court a quo committed the following errors:

I. In failing to appreciate the testimony of accused-appellants and in giving full weight and credit to the version of prosecution witnesses.

II. In holding that there was conspiracy between accused-appellants.

III. In holding that accused-appellants herein [were] guilty as charged. 15

We shall discuss the foregoing issues in the following sequence: (1) credibility of the prosecution evidence, (2) conspiracy and (3) proper penalty.

The Court's Ruling

This appeal is partly meritorious. We affirm the challenged Decision in regard to Ignacio Cupino, but reverse it in regard to Vincent Dejoras.

First Issue

Credibility of Prosecution Witnesses

Appellants challenge the trial court's assessment of the credibility of the prosecution witnesses. They argue that there are contradictions patent in their testimonies. We disagree. As we have repeatedly said, the trial court's assessment of the credibility of witnesses is generally binding upon us. 16 Alter a thorough review of the records before us, we find no reason to disagree with the trial court in finding no material inconsistency in the prosecution witnesses' testimonies.

Neither are we impressed with appellants' assertion that the evidence for the prosecution is weak. The claims of the defense are belied by the clear, credible and straightforward testimony of Prosecution Eyewitness Silverio Bahian, which we quote:

Q At this time, August 16, 1989, at more or less 9:45 p.m., what particular place in the store of Piloton?

A [In front] of the store.

x x x           x x x          x x x

Q What where you doing there?

A I was reading komiks.

x x x           x x x          x x x

Q While you were there at Piloton store, reading komiks, what happened if any?

A There was an argument between Bobong Valiente 17 and Panit. 18

x x x           x x x          x x x

Q Now, you said that there was an argument, where did this altercation [take] place?

A [In front] of me.

Q How far away from you? From where you are sitting, point to any object within the court room to indicate what you [meant by "in front"] of you?

A Less than a meter.

Q From where you are sitting, point to any object[.]

A This chair. This table or this chair I am sitting on. [In front] of me. Just very near me.

Q From what direction was this Bobong coming . . .?

A Going to the checkpoint.

Q What about the other person [with] whom he had an altercation?

A Going to the crossing.

Q What happened after they had an altercation?

A After their altercation, this Nasi 19 and Beni 20 were walking from the road.

Q Who is this Nasi?

A Nasi Copino.

Q Who is this Beni?

A Dejoras.

Q When these two came, Beni and Nasi, where were the two who were having an argument?

A Mr. Bahian approached the two who were having an altercation.

Q What about the person [with] whom he had an altercation? Where was he at that time?

A He followed him.

Q So, what happened after Bobong went to Nasi and Beni and the other person Panit?

A They ganged up [on] Bobong.

Q When you said they ganged up on Bobong, to whom are you referring . . .?

A Panit, Nasi and Beni.

Q From your place in relation to the place where they ganged up on Bobong, how far away was that?

A About three meters.

x x x           x x x          x x x

Q Where [was] this place in relation to you whe[n] they ganged up on Bobong?

A In the middle of the road.

Q And what was the condition of the road on that night of August 16, 1989 at 9:45 p.m.?

A It was bright.

Q Why do you say that it [was] "hayag"?

A Because there was a lamppost.

Q Where [was] this lamppost located in relation to you?

A [In front] of me.

Q So, what happened after they ganged up . . . this Nasi, Beni and Panit, as you said, they ganged up on Bobong? What happened?

A Since Bobong [could] not keep up a fight with the three, Bobong ran towards me.

Q What happened after Bobong ran towards you as you said?

A He was being held by Panit.

Q Will you demonstrate how he was h[e]ld by Panit?

A (Witness demonstrating by stretching his left arm and closing hi[s] fist and twisting it to his left side).

Q So, what happened after that? After he was held up and as you said twisted?

A Panit stabbed Bobong.

Q Will you please demonstrate again how Panit stabbed Bobong after he held him and[;] pulling him[,] he thrust the knife forward?

A (Witness demonstrating his right arm forward).

Q How many times was he stabbed by Panit? This Bobong?

A I think twice.

Q And where was this Bobong hit if he was hit?

A In the stomach.

Q What was used in the stabbing of Bobong by Panit?

A A small bolo.

Q Will you please describe the small bolo or what appears to be a bolo to you? How long was this?

A About 12 inches including the handle.

Q What about the blade? Was this double bladed or not?

A Single bladed.

ACP CABALLERO, JR.: (resuming).

Q Now, what happened after Bobong was held up by this Panit and stabbed twice as you said? What happened to Bobong?

A Bobong crawled going to a small alley.

Q You mentioned this alley. Now, from where you are situated then while reading komiks [on] this alley, how far was this from you?

A Just here.

(Witness stretching his left arm going to his left side)

Q What happened to the small bolo which was used in the stabbing? Do you know where was it at the time Bobong crawled?

A The small bolo was still embedded on the left portion just below the breast, solar plexus.

Q So, what happened after Bobong crawled[;] who was going to the area which you testified was just near you?

A Nasi caught up with him.

Q You mentioned, of course, . . . Nasi. Nasi who?

A Copino.

Q What happened after he was overtaken by Nasi Copino?

A Nasi pulled the small bolo.

Q What happened next after Nasi pulled the small bolo?

A When he was about to thrust the small bolo to the body of Bobong, his friend held his hand.

Q Who [was] this companion of Nasi that you are referring to who held up his hand?

A Beni.

Q Do you know the real name of Beni?

A It is only his nickname that I know.

Q Beni what?

A Dejoras.

Q What happened after the hand of Nasi was held up by Beni?

A It was the small bolo which was held by Beni.

Q Which part of the knife was held by Beni Dejoras?

A The blade.

Q So, what happened after he held the blade?

A Nasi pulled the small bolo, and that [was] why Beni was wounded.

Q What happened after Beni was injured?

A Beni went out.

Q And where was Nasi then at this time when Beni, as you said, went out?

A Nasi was still [in front] of Bobong.

Q Was he motionless [in front] of Bobong or what?

A He continued to stab Bobong.

Q Where was Bobong hit when he was stabbed by Nasi?

A At first, he was able to parry the thrust of Nasi.

Q So, what happened to Bobong after he parried the stab of Nasi?

A Bobong fell down.

Q What happened after that?

A Nasi again stabbed Bobong.

Q And where was Bobong hit at this particular time?

A In the stomach.

Q So, what happened after that?

A Nasi ran away. 21

The above testimony clearly demonstrates the conspiracy between Ramon Galos and Appellant Ignacio Cupino. Both of them showed their common intent to kill Valliente. On the part of Galos, conspiracy was shown by his act of grabbing the fleeing victim, simultaneously drawing his small bolo or pisaw, and stabbing the latter twice. By running after the wounded victim, Cupino showed unity of purpose with Galos. When he eventually caught up with the victim, Cupino pulled out the bolo that was embedded in the body of the latter and used it to stab him again. Clearly, by the consonance of their deeds, both assailants conspired to kill Valliente. 22

We agree with the court a quo that treachery qualified the slaying to murder. By diverting the attention of Valliente to the approaching Dejoras and Cupino, Galos was obviously making sure that the victim could not defend himself. When Valliente turned his back, Galos began his attack, which eventually led to the stabbing of the former. Treachery was not necessarily precluded by either the occurrence of a tussle before the victim was killed 23 or by the frontal nature of the attack. 24 We also agree with the lower court that the aggravating circumstance of abuse of superior strength was absorbed by alevosia. 25

Second Issue

Conspiracy: Dejoras' Liability

Though we uphold the findings of the trial court with regard to Appellant Cupino, we differ with its conclusion that Appellant Dejoras was guilty.

It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt. 26 Conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes culpability under specific circumstances. 27 As such, it must be established as clearly as any element of the crime. The quantum of evidence to be satisfied is, we repeat, beyond reasonable doubt. 28

In People v. Elijorde, 29 a case with similar facts, we said:

Indeed, with respect to accused Reynaldo Punzalan, the Court cannot assert with moral certainty that he is guilty of murder. Conspiracy must be proved as indubitably as the crime itself through clear and convincing evidence, not merely by conjecture. To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. Hence, conspiracy, exists in a situation where at the time the malefactors were committing the crime, their actions impliedly showed unity of purpose among them, a concerted effort to bring about the death of the victim. In a great majority of cases, complicity was established by proof of acts done in concert, i.e., acts which yielded the reasonable inference that the doers thereof were acting with a common intent or design. Therefore, the task in every case is determining whether the particular acts established by the requisite quantum of proof do reasonably yield that inference. (Footnotes omitted)

Thus, in Elijorde we found one of the accused, a certain Punzalan, innocent under the circumstances. 30 Similarly, in the present case, we find Appellant Vincent Dejoras not guilty.

Unlike the trial court, we are quite mindful of the testimony of Prosecution Eyewitness Bahian regarding Appellant Dejoras' participation in that bloody incident on the eve of the fiesta. His answers to the propounded questions merely established that Dejoras joined Galos and Cupino when they approached the victim. The prosecution filled, however, to show, what Dejoras specifically did that proved his participation in the conspiracy. Rather, what the said eyewitness said was that Dejoras tried to prevent Cupino from stabbing the victim, clearly showing that he did not support the criminal intent and conspiracy of the other two accused. 31 These incontrovertible data lead to one conclusion: there is reasonable doubt on whether Dejoras conspired with Galos and Cupino in killing Valliente. We are therefore constrained to exonerate him. Indeed, guilt must be

proven beyond reasonable doubt. In this case, there is reasonable doubt on the culpability of Appellant Dejoras as a principal.1âwphi1

Dejoras cannot be held liable as an accomplice, either. 32 In Elijorde, 33 we said:

The cooperation that the law punishes is the assistance knowingly or intentionally rendered which cannot exist without previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable either as a principal by indispensable cooperation or as an accomplice that the accused must unite with the criminal design of the principal by direct participation.

The acts of Appellant Dejoras showed that he was not aware of his companions' intent to kill Valliente; at the very least, there is reasonable doubt as to his knowledge thereof. In any event, community of design, the first of the requisite elements that must be present before a person may be held liable as an accomplice, is lacking. 34

On the prosecution's theory that Dejoras may have inflicted injury on the victim when he joined in the fray, we have combed the records and found no basis for this speculation. We note that the eyewitness could not recount the details of the brawl, but merely provided a general picture, saying that everything happened so fast. 35 Hence, we find no basis for Appellant Dejoras' liability even for physical injuries. 36

Additional QuestionsPenalty and Damages

When the crime was committed, the penalty for murder was reclusion temporal (maximum) to death. 37 Since no generic modifying circumstance was proven, the trial court correctly sentenced Cupino to reclusion perpetua. 38

We increase to P50,000 the award for moral damages, in consonance with current jurisprudence. 39 The facts showing moral damages were proven during the trial. However, the established actual damages amount to only P30,000, not P40,000 as found by the lower court. 40 The award of P50,000 civil indemnity for the death of Gromyko Valliente is affirmed. 41

WHEREFORE, we AFFIRM the appealed Decision insofar as it found Appellant Ignacio Cupino GUILTY of MURDER and sentenced him to reclusion perpetua. Appellant Cupino is solely responsible for paying the heirs of the victim, Gromyko Valliente, the amounts of P50,000 as indemnity ex delicto, P30,000 as actual damages and P50,000 as moral damages. Appellant Vincent Dejoras is ACQUITTED and ordered RELEASED from custody IMMEDIATELY, unless he is being legally held for another cause. In this regard, the Director of the Bureau of Corrections is directed to report his compliance, within five (5) days from receipt hereof. Costs against Appellant Cupino.

SO ORDERED.1âwphi1.nêt