15 People V Del Rosario

3/19/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 305
740 SUPREME COURT REPORTS ANNOTATED

People vs. Del Rosario
*
G.R. No. 127755. April 14, 1999.
PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs.

JOSELITO DEL ROSARIO y PASCUAL, accused
appellant.
Criminal Law; Exempting Circumstances; A person who acts

under the compulsion of an irresistible force, like one who acts
under the impulse of an uncontrollable fear of equal or greater
injury is exempt from criminal liability because he does not act
with freedom.—A person who acts under the compulsion of an
irresistible force, like one who acts under the impulse of an
uncontrollable fear of equal or greater injury, is exempt from
criminal liability because he does not act with freedom. Actus me
invito factus non est meus actus. An act done by me against my
will is not my act. The force contemplated must be so formidable
as to reduce the actor to a mere instrument who acts not only
without will but against his will. The duress, force, fear or
intimidation must be present, imminent and impending, and of
such nature as to induce a wellgrounded apprehension of death
or serious bodily harm if the act be done. A threat of future injury
is not enough. The compulsion must be of such a
_________________
* EN BANC.
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VOL. 305, APRIL 14, 1999 741
character as to leave no opportunity for the accused for escape or

selfdefense in equal combat.
http://www.central.com.ph/sfsreader/session/0000015ae57eda84ba300d19003600fb002c009e/t/?o=False 1/23
Same; Same; It is natural for people to be seized by fear when

threatened with weapons, even those less powerful than a gun,
such as knives and clubs.—As a rule, it is natural for people to be
seized by fear when threatened with weapons, even those less
powerful than a gun, such as knives and clubs. People will
normally, usually and probably do what an armed man asks them
to do, nothing more, nothing less. In the instant case, del Rosario
was threatened with a gun. He could not therefore be expected to
flee nor risk his life to help a stranger. A person under the same
circumstances would be more concerned with his personal welfare
and security rather than the safety of a person whom he only saw
for the first time that day.
Same; Evidence; Conspiracy; In conspiracy, there is need for
concurrence of wills or unity of action and purpose or for common
and joint purpose and design.—A conspiracy in the statutory
language exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
The objective of the conspirators is to perform an act or omission
punishable by law. That must be their intent. There is need for
“concurrence of wills” or “unity of action and purpose” or for
“common and joint purpose and design.” Its manifestation could
be shown by “united and concerted action.”
Same; Same; Same; Mere knowledge, acquiescence or
approval of the act, without the cooperation or agreement to
cooperate, is not enough to constitute one a party to a conspiracy,
but there must be intentional participation in the transaction with
a view to the furtherance of the common design and purpose.
—Admittedly, direct proof is not essential to establish conspiracy.
Since by its nature conspiracy is planned in utmost secrecy, it can
rarely be proved by direct evidence. Consequently, the presence of
the concurrence of minds which is involved in conspiracy may be
inferred from proof of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by
their acts towards the accomplishment of the same unlawful
object, each doing a part so that their combined acts, though
apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred
742
though no actual meeting among them to concert is proved. That

would be termed an implied conspiracy. Nevertheless, mere
knowledge, acquiescence or approval of the act, without the
cooperation or agreement to cooperate, is not enough to constitute
one a party to a conspiracy, but that there must be intentional
participation in the transaction with a view to the furtherance of
the common design and purpose. Conspiracy must be established,
not by conjectures, but by positive and conclusive evidence. In
fact, the same degree of proof necessary to establish the crime is
required to support a finding of the presence of a criminal
conspiracy, which is, proof beyond reasonable doubt.
Same; Same; Same; Mere companionship does not establish
conspiracy.—In this case, the trial court stated that “there is no
evidence that the accused came to an agreement concerning the
commission of the felony and decided to commit the same.”
Therefore, in order to convict the accused, the presence of an
implied conspiracy is required to be proved beyond reasonable
doubt. However, the fact that del Rosario was with the other
accused when the crime was committed is insufficient proof to
show cabal. Mere companionship does not establish conspiracy.
The only incriminating evidence against del Rosario is that he
was at the scene of the crime but he has amply explained the
reason for his presence and the same has not been successfully
refuted by the prosecution. As stated earlier, he feared for his
safety and security because of the threat made by his coaccused
that he would be killed should he shout for help. No complicity
can be deduced where there is absolutely no showing that the
accused directly participated in the overt act of robbing and
shooting although he was with the persons who robbed and killed
the victim.
Same; Constitutional Law; Investigations; Custodial
investigation includes the practice of issuing an invitation to a
person who is investigated in connection with an offense he is
suspected to have committed.—Custodial investigation is the stage
where the police investigation is no longer a general inquiry into
an unsolved crime but has begun to focus on a particular suspect
taken into custody by the police who carry out a process of
interrogation that lends itself to elicit incriminating statements.
It is wellsettled that it encompasses any question initiated by law
enforcers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. This
concept of custodial investigation has been
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VOL. 305, APRIL 14, 1999 743

broadened by RA 7438 to include “the practice of issuing an

‘invitation’ to a person who is investigated in connection with an
offense he is suspected to have committed.”
Same; Criminal Procedure; Arrests; In essence, Sec. 5, par. (a),
Rule 113, requires that the accused be caught in flagrante delicto
or caught immediately after the consummation of the act.—It must
be recalled that del Rosario was arrested by SPO4 De Leon during
the police raid at the place of “Jun” Marquez at Brgy. Dicarma on
14 May 1996. In People vs. Sucro we held that when a police
officer sees the offense, although at a distance, or hears the
disturbances created thereby, and proceeds at once to the scene
thereof, he may effect an arrest without a warrant on the basis of
Sec. 5, par. (a), Rule 113, since the offense is deemed committed in
his presence or within his view. In essence, Sec. 5, par. (a), Rule
113, requires that the accused be caught in flagrante delicto or
caught immediately after the consummation of the act. The arrest
of del Rosario is obviously outside the purview of the aforequoted
rule since he was arrested on the day following the commission of
the robbery with homicide.
Same; Same; Same; Requisites before a warrantless arrest can
be effected.—On the other hand, Sec. 5, par. (b), Rule 113,
necessitates two (2) stringent requirements before a warrantless
arrest can be effected: (1) an offense has just been committed;
and, (2) the person making the arrest has personal knowledge of
facts indicating that the person to be arrested had committed it.
Same; Same; Same; Even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect and any objection
thereto is waived when the person arrested submits to arraignment
without any objection.—However, the conspicuous illegality of del
Rosario’s arrest cannot affect the jurisdiction of the court a quo
because even in instances not allowed by law, a warrantless
arrest is not a jurisdictional defect and any objection thereto is
waived when the person arrested submits to arraignment without
any objection, as in this case.
AUTOMATIC REVIEW of a decision of the Regional Trial

Court of Cabanatuan City, Br. 27.
744

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiffappellee.

Leovillo C. Agustin Law Offices for accusedappellant.
BELLOSILLO, J.:
ON AUTOMATIC REVIEW is the decision of the court a

quo finding accused Joselito del Rosario y Pascual guilty as
coprincipal in the crime of Robbery with Homicide and
sentencing him to death, and to pay the heirs of victim
Virginia Bernas P550,000.00 as actual damages 1
and
P100,000.00 as moral and exemplary damages.
Joselito del Rosario y Pascual, Ernesto Marquez alias
“Jun,” Virgilio Santos alias “Boy Santos” and John Doe
alias “Dodong” were charged with the special complex
crime of Robbery with Homicide for having robbed Virginia
Bernas, a 66year old businesswoman, of P200,000.00 in
cash and 2jewelry and on the occasion thereof shot and
killed her. 3
While accused Joselito del Rosario pleaded not guilty,
Virgilio “Boy” Santos and John Doe alias “Dodong”
remained at large. Ernesto “Jun” Marquez was killed in a
police encounter. Only Joselito del Rosario was tried.
These facts were established by the prosecution from the
eyewitness account of tricycle driver Paul Vincent Alonzo:
On 13 May 1996 between 6:00 and 6:30 in the evening,
Alonzo stopped his tricycle by the side of Nita’s Drugstore,
General Luna St., Cabanatuan City, when three women
flagged him. Parked at a distance of about one and ahalf (1
1/2) meters in front of him was a tricycle driven by accused
Joselito del Rosario. At that point, Alonzo saw two (2) men
and a woman grappling for possession of a bag. After
taking hold of the bag one of the two men armed with a gun
started chasing a man
__________________
1 Decision penned by Judge Feliciano V. Buenaventura, RTCBr. 27,

Cabanatuan City.
2 Rollo, p. 24.
3 Id., p. 25.
745
VOL. 305, APRIL 14, 1999 745

who was trying to help the woman, while the other

snatcher kicked the woman sending her to the ground.
Soon after, the armed man returned and while the woman
was still on the ground he shot her on the head. The bag
taken by the man was brought to the tricycle of accused del
Rosario where someone inside received the bag. The armed
man then sat behind the driver while his companion
entered the sidecar. When the tricycle sped away Alonzo
gave chase and was able to get the plate number of the
tricycle. He also recognized the driver, after which he went
to the nearest
4
police headquarters and reported the
incident.
Accused Joselito del Rosario gave his own version of the
incident:5 At around 5:30 in the afternoon
6
he was hired for
P120.00 by a certain “Boy” Santos, his coaccused. Their
original agreement was that he would 7
drive him to a
cockpit at the Blas Edward Coliseum. However despite
their earlier arrangement Boy Santos directed him to
proceed to the market place to fetch “Jun”8 Marquez and
“Dodong” Bisaya. He (del Rosario) acceded. Marquez and
Bisaya boarded in front of the 9 parking lot of Merced
Drugstore at the public market. Subsequently, he was
asked to proceed and stop at the corner of Burgos and
General Luna Sts. where Bisaya alighted on the pretext of
buying a cigarette. The latter then accosted the victim
Virginia Bernas and grappled with her for the possession of
her bag. Jun Marquez
10
alighted from the tricycle to help
“Dodong” Bisaya. Accused del Rosario tried to leave and
seek help but “Boy Santos” who stayed inside the tricycle
prevented him from leaving and threatened in fact to shoot
him.
_________________
4 TSN, 9 July 1996, pp. 39; 11 July 1996, pp. 2728, 3132.
5 Id., 4 September 1996, p. 15.
6 Id., p. l0.
7 Id., p. 15.
8 Id., 12 September 1996, p. 6.
9 See Note 4, p. 16.
10 See Note 7, p. 8.
746

Meanwhile, “Dodong” Bisaya succeeded in taking the

victim’s bag, but before boarding the tricycle “Jun”
Marquez mercilessly shot the victim on the head while she
was lying prone on the ground. After the shooting,

“Dodong” Bisaya boarded the sidecar of the tricycle while
“Jun” Marquez rode behind del Rosario and ordered him to
start the engine and drive towards Dicarma. While inside
his tricycle, del Rosario overheard his passengers saying
that they would throw11
the bag at Zulueta St. where there
were cogon grasses. Upon arriving at Dicarma, the three
(3) men alighted and warned del Rosario not to inform the
police authorities about the
12
incident otherwise he and his13
family would be harmed. Del Rosario then went home.
Because of the threat, however, he did not report the
matter to the owner 14 of the tricycle nor to the barangay
captain and the police.
As earlier stated, the court a quo found accused Joselito
del Rosario guilty as charged and sentenced him to death.
He now contends in this automatic review that the court a
quo erred in: (1) Not finding the presence of threat and
irresistible force employed upon him by his coaccused
Virgilio “Boy” Santos, Ernesto “Jun” Marquez and
“Dodong” Bisaya; (2) Not considering his defense that he
was not part of the conspiracy among coaccused “Boy”
Santos, “Jun” Marquez and “Dodong” Bisaya to commit the
crime of Robbery with Homicide; (3) Not considering the
violations on his constitutional rights as an accused; and,
(4) Not considering that there was no lawful warrantless
arrest within
15
the meaning of Sec. 5, Rule 113, of the Rules
of Court.
The conviction of del Rosario must be set aside. His
claim for exemption from criminal liability under Art. 12,
par. 5, Revised Penal Code as he acted under the
compulsion of an irresistible force must be sustained. He
was then unarmed
_______________
11 TSN, 28 August 1996, pp. 37.

12 Id., 13 September 1996, p. 21.
13 See Note 10, p. 7.
14 See Note 7, p. 16.
15 Appellant’s Brief, pp. 5657.
747
VOL. 305, APRIL 14, 1999 747

and unable to protect himself when he was prevented at

gunpoint by his coaccused from leaving the crime scene
during the perpetration of the robbery and killing, and was

only forced
16
to help them escape after the commission of the
crime.
But the trial court ruled that his fear was merely
speculative, fanciful and remote, hence, could not be
considered uncontrollable; and that a gun pointed at him
did not constitute irresistible force because17
it fell short of
the test required by law and jurisprudence.
We disagree. A person who acts under the compulsion of
an irresistible force, like one who acts under the impulse of
an uncontrollable fear of equal or greater injury, is exempt
from criminal liability because he does not act with
freedom. Actus me invito factus non est meus actus. An act
done by me against my will is not my act. The force
contemplated must be so formidable as to reduce the actor
to a mere instrument who acts not only without will but
against his will. The duress, force, fear or intimidation
must be present, imminent and impending, and of such
nature as to induce a wellgrounded apprehension of death
or serious bodily harm if the act be done. A threat of future
injury is not enough. The compulsion must be of such a
character as to leave no opportunity18for the accused for
escape or selfdefense in equal combat.
As a rule, it is natural for people to be seized by fear
when threatened with weapons, even those less powerful
than a gun, such as knives and clubs. People will normally,
usually and probably do what an armed man asks them to
do, nothing more, nothing less. In the instant case, del
Rosario was threatened with a gun. He could not therefore
be expected to flee nor risk his life to help a stranger. A
person under the same circumstances would be more
concerned with his per
_________________
16 Id., p. 82.
17 See Note 1, p. 75.
18 People v. Lorena, G.R. No. 54414, 9 July 1984, 130 SCRA 311.
748

sonal welfare and security rather than the safety 19

of a
person whom he only saw for the first time that day.
Corollary with the defense of del Rosario, we hold that
the trial court erred when it said that it was “Boy” Santos
who left the tricycle to chase the companion of the victim

and 20then shot the victim on the head, instantly killing
her. A careful and meticulous scrutiny of the transcripts
and records of the case, particularly the testimonies of
witness Alonzo and del Rosario himself, reveals that it was
“Jun” Marquez who ran after the victim’s helper and fired
at the victim. Witness Alonzo testified on direct
examination—
Q: What was that unusual incident that transpired in that

place at that time?
A: I saw two men and a lady grappling for the possession
of a bag, sir x x x x
Q: What happened after the bag of the lady was grabbed
by the two men?
A: One helper of the lady was chased by the other man, sir.
Q: Who was that man who chased the helper of the lady?
A: He was the one holding the gun, sir x x x x
Q: What happened when the bag of the woman was
already taken by the two men who grappled the same
from her?
A: The man who chased the helper of the lady returned to
the scene while the other man was then kicking the lady
who in turn fell to the ground, sir.
________________
19 Rollo, pp. 407408.

20 The decision reads (p. 74) x x x they rode in the tricycle of the
accused and went near NITA’S DRUG STORE at Juan Luna Street,
Cabanatuan City; while there, JUN MARQUEZ and DODONG BISAYA
waylaid VIRGINIA BERNAS, grappled with her for the possession of the
bag; while they were grappling, BOY SANTOS saw the male helper of
VIRGINIA BERNAS and he ran after him and in a few seconds returned
to the place where he found the victim VIRGINIA BERNAS lying down;
BOY SANTOS shot the victim and from there, they fled to Dicarma,
Cabanatuan City, where JUN MARQUEZ, DODONG BISAYA and BOY
SANTOS alighted from the tricycle x x x x
749
VOL. 305, APRIL 14, 1999 749

Q: What happened to the lady who fell to the ground?
A: The man who chased the helper of the lady returned and
then shot the woman who was then lying on the ground,
sir x x x x
Q: What about the bag, what happened to the bag?
A: The bag was taken to a motorcycle, sir.
Q: Will you please state before the Court what you noticed
from the tricycle which was at a distance of about one
and a half meter?
A: There was a passenger inside the tricycle, sir x x x x
Q: What happened to that woman that was shot by the
man who grappled for the possession of the bag?
A: She was no longer moving and lying down, sir.
Q: After the shooting by one of the two men of the woman
what else happened?
A: They went away, sir x x x x
Q: Will you please tell the Court in what portion of the
tricycle did these men sit in the tricycle?
A: The man who was holding the gun sat himself behind 21
the driver while the other man entered the sidecar, sir.
On the continuation of his direct examination, after an

ocular inspection on the crime scene conducted by the trial
court, witness Alonzo categorically stated—
Q: Will you please tell us where in particular did you see

the accused who was then holding the gun fired at the
victim?
A: At the time one man was kicking the victim it was then
his other companion holding a gun chased the helper of
the deceased going towards Burgos Avenue, sir.
Q: What happen (sic) afterwards?
A: The man with the gun returned and then while the
victim was lying down in 22
this spot the man holding a
gun shot the victim, sir.
__________________
21 TSN, 9 July 1996, pp. 47.

22 Id., 11 July 1996, pp. 2728.
750

On crossexamination, the same witness further clarified—
Q: So, you saw the two other accused returned back to the
tricycle?
A: Yes, sir.
Q: And one of their companion was already inside the
tricycle?
xxxx
Court: There was somebody inside the tricycle where the
handbag was given.
xxxx
A: Yes, sir.
Q: And the one who sat at the back of the tricycle driver
was the person with the gun?
A: Yes, sir.23
On the other hand, accused Del Rosario declared during

the direct examination that—
Q: x x x x On the evening of May 13, 1996 you were the

driver of the tricycle as testified to by Eduardo
Nalagon?
A: Yes, sir.
Q: Now, you also heard that there was a shoot out near the
Cathedral and the Nita’s Drugstore at Gen. Tinio St.?
A: Yes, sir.
xxxx
Court: At that time you were seated at the tricycle, which
tri
cycle was used by the assailants?
A: Yes, sir.
Q: Then what did you do?
A: I tried to escape, sir, but I was stopped by them.
Q: When you said “they” to whom are you referring?
A: Boy Santos and Jun Marquez, sir.
Q: And at that time where was Boy Santos?
A: He was inside the tricycle, sir.
__________________
23 Id., pp. 3132.
751
VOL. 305, APRIL 14, 1999 751

Q: And what about Jun Marquez?

A: He alighted from the tricycle and helped him grabbed
(sic) the bag of the victim.
Q: And was the bag grabbed and by whom?
A: Yes, sir, by Dodong Visaya was able to grab the bag.
Q: And after that what happened?
A: Both of them rode inside my tricycle, sir.
Court: Did you not see any shooting?
A: There was, sir.
Q: Who was shot?
A: Jun Marquez shot the woman, sir x x x x
Q: When the bag of the woman was being grabbed you
know that what was transpiring was wrong and illegal?
A: Yes, sir.
Q: But you did not try to leave?
A: I tried to leave but Boy Santos who was inside my
tricycle prevented me.
Q: During that time before you leave (sic) how many
firearms did you see?
A: Two firearms, sir, one in the possession of Boy (Jun?)
Marquez and one in the possession of Boy Santos x x x x
Q: And at the time when the shooting took place where

was Boy Santos?
A: He was still inside my tricycle, sir.
Q: And during the shooting when Boy Santos was inside
the tricycle and when you tried to escape that was the
time when Boy Santos threatened you if you will escape
something will happen to your family?
A: Yes, sir.
Q: After the shooting who first boarded the tricycle, Boy
(Jun?) Marquez or Dodong Visaya?
A: Dodong Visaya, sir.
Q: And immediately thereafter Jun Marquez boarded your

tricycle sitting at your back?
24
A: Yes, sir.
________________
24 Id., 28 August 1996, pp. 36.
752

On crossexamination, accused further stated—
Q: After stopping in that place for one minute what else

happened?
A: I saw Dodong Bisaya grabbing the bag of the woman,
sir.
Q: How about your two companions, what are (sic) they
doing while Dodong Bisaya was grabbing the bag of the
woman?
A: Jun Marquez was helping Dodong Bisaya, sir.
Q: What happened after Jun Marquez helped Dodong
Bisaya?
A: I heard a gunshot and I saw the woman lying down
xxxx
Q: You could have ran away to seek the help of the police
or any private persons?
A: I was not able to ask for help because Boy Santos
pointed his gun to me, sir.
Q: Was the gun being carried by Boy Santos, is the one that
is used in shooting the old woman?
A: No, sir x x x x
Q: Where was Boy Santos when Dodong Bisaya and Jun
Marquez were grappling for the possession of the
handbag?
25
A: He was then inside the tricycle, sir x x x x
Q: Mr. Witness, you testified that the reason why you just
cannot leave the area where the incident occurred is
because a gun was pointed to you by Boy Santos and he
was telling you that you should not do anything against
their will, they will kill you and your family will be
killed also, is that correct?
A: Yes, sir.
Q: Now, is it not a fact that at the time you stop (sic) your
tricycle which was loaded by your other three coaccused
in this case, all of them alighted and that Boy Santos
ran after a helper of the victim going towards the public
market along Burgos Street?
_________________
25 Id., 12 September 1996, pp. 910.
753
VOL. 305, APRIL 14, 1999 753

A: He did not alight from the tricycle, sir.

Court: Are you quite sure of that?
26
A: Yes, sir.
Del Rosario maintains that “Boy” Santos never left the

tricycle and that the latter pointed his gun at him and
threatened to shoot if he tried to escape. He also asserts
that it was “Jun” Marquez who shot the victim and sat
behind him in the tricycle.
From the narration of witness Alonzo, these events stood
out: that after the bag of the victim was grabbed, her male
helper was chased by a man holding a gun; that the
gunwielder returned and shot the victim and then sat
behind the driver of the tricycle; and, that the bag was
given to a person who was inside the tricycle. Taking the
testimony of witness Alonzo in juxtaposition with the
testimony of del Rosario, it can be deduced that “Jun”
Marquez was the person witness Alonzo was referring to
when he mentioned that a helper of the lady was chased
“by the other man,” and that this “other man” could not be
“Boy” Santos who stayed inside the tricycle and to whom
the bag was handed over. This conclusion gives credence to
the claim of del Rosario that “Boy” Santos never left the
tricycle, and to his allegation that “Boy” Santos stayed
inside the tricycle precisely to threaten him with violence
and to prevent him from fleeing; that there could have been
no other plausible reason for “Boy” Santos to stay in the
tricycle if the accused was indeed a conspirator; that “Boy”
Santos could have just left the tricycle and helped in the
commission of the crime, particularly when he saw the
victim grappling with “Dodong” Bisaya and resisting the
attempts to grab her bag; and, that “Boy” Santos opted to
remain inside the tricycle to fulfill his preordained role of
threatening del Rosario and insuring
27
that he would not
escape and leave them behind. Even if the tricycle of del
Rosario was only parked one meter and a half (11/2) in
front of the tricycle of witness Alonzo,
_______________
26 Id., 13 September 1996, p. 2.

27 Comment on Appellee’s Brief, pp. 1213.
754

the latter still could not have totally seen and was not privy
to events that were transpiring inside the vehicle, i.e., the
pointing of the gun by “Boy” Santos at del Rosario
simultaneously with the robbing and shooting of the victim.
From the exhibits submitted by the prosecution panel the
back of the28 sidecar of del Rosario tricycle was not
transparent.
There is no doubt that the fear entertained by del
Rosario because of the gun directly pointed at him was real
and imminent. Such fear rendered him immobile and
subject to the will of Boy Santos, making him for the
moment an automaton without a will of his own. In other
words, in effect, he could not be any more than a mere
instrument acting involuntarily and against his will. He is
therefore exempt from criminal liability since by reason of
fear of bodily harm he was compelled against his will to
transport his coaccused away from the crime scene.
On the issue of conspiracy, the trial court anchored del
Rosario’s conviction on his participation in the orchestrated
acts of “Boy” Santos, “Jun” Marquez and “Dodong” Bisaya.
According to the trial court, del Rosario facilitated the
escape of the other malefactors from the crime scene and
conspiracy between accused and his passengers was
evident because “while the grappling of the bag, the
chasing of the helper of the victim and the shooting that led
to the death of Virginia Bernas were happening, accused
Joselito del Rosario was riding on 29
his tricycle and the
engine of the motor was running;” that the “accused did
not deny that the tricycle driven by him and under his
control was hired and used by his coaccused in the
commission of the crime; neither did he deny his failure to
report to the authorities the incident of robbery,
30
killing and
fleeing away from the scene of the crime.”
We disagree with the trial court. A conspiracy in the
statutory language exists when two or more persons come
to an agreement concerning the commission of a felony and
decide
__________________
28 Exhibits P7 and P9.

29 Rollo, p. 74.
30 Id., p. 75.
755
VOL. 305, APRIL 14, 1999 755

to commit it. The objective of the conspirators is to perform

an act or omission punishable by law. That must be their
intent. There is need for “concurrence of wills” or “unity of
action and purpose” or for “common and joint purpose and
design.” Its manifestation
31
could be shown by “united and
concerted action.”
Admittedly, direct proof is not essential to establish
conspiracy. Since by its nature conspiracy is planned in
utmost secrecy, it can rarely be proved by direct evidence.
Consequently, the presence of the concurrence of minds
which is involved in conspiracy may be inferred from proof
of facts and circumstances which, taken together,
apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons
aimed by their acts towards the accomplishment of the
same unlawful object, each doing a part so that their
combined acts, though apparently independent, were in
fact connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment, a
conspiracy may be inferred though no actual meeting
among them to concert32
is proved. That would be termed an
implied conspiracy. Nevertheless, mere knowledge,
acquiescence or approval of the act, without the cooperation
or agreement to cooperate, is not enough to constitute one a
party to a conspiracy, but that there must be intentional
participation in the transaction with a view to the
furtherance of the common design and purpose. Conspiracy
must be established, not by conjectures, but by positive and

conclusive evidence. In fact, the same degree of proof
necessary to establish the crime is required to support a
finding of the presence of a criminal
33
conspiracy, which is,
proof beyond reasonable doubt.
_________________
31 People v. Taaca, No. L35652, 29 September 1989, 178 SCRA 56.

32 People v. Orodio, G.R. No. 57519, 13 September 1988, 165 SCRA 316.
33 People v. Furugganan, G.R. Nos. 9019196, 28 January 1991, 193
SCRA 471.
756

In the instant case, while del Rosario admits that he was at

the locus criminis as he was the driver of the getaway
vehicle, he nonetheless rebuts the imputation of guilt
against him by asserting that he had no inkling of the
malevolent design of his coaccused to rob and kill since he
was not given any briefing thereof. He was merely hired by
Boy Santos to drive to an agreed destination and he was
prevented at gunpoint from leaving the scene of the crime
since he was ordered to help them escape.
In this case, the trial court stated that “there is no
evidence that the accused came to an agreement
concerning the commission
34
of the felony and decided to
commit the same.” Therefore, in order to convict the
accused, the presence of an implied conspiracy is required
to be proved beyond reasonable doubt. However, the fact
that del Rosario was with the other accused when the
crime was committed is insufficient proof to show 35cabal.
Mere companionship does not establish conspiracy. The
only incriminating evidence against del Rosario is that he
was at the scene of the crime but he has amply explained
the reason for his presence and the same has not been
successfully refuted by the prosecution. As stated earlier,
he feared for his safety and security because of the threat
made by his coaccused that he would be killed should he
shout for help. No complicity can be deduced where there is
absolutely no showing that the accused directly
participated in the overt act of robbing and shooting
although he36
was with the persons who robbed and killed
the victim.
That del Rosario did not disclose what he knew about

the incident to the authorities, to his employer or to the
barangay captain does not affect his credibility. The
natural hesitance of most people 37
to get involved in a
criminal case is of judicial notice. It must be recalled that
del Rosario was merely a
_________________
34 See Note 1, p. 73.

35 See Note 33, p. 481.
36 Ibid.
37 People v. Estocada, No. L31024, 28 February 1977, 75 SCRA 295.
757
VOL. 305, APRIL 14, 1999 757

tricycle driver with a family to look after. Given his quite

limited means, del Rosario understandably did not want to
get involved in the case so he chose to keep his silence.
Besides, he was threatened with physical harm should he
squeal. Del Rosario further contends that there was
violation of his right to remain silent, right to have
competent and independent counsel preferably of his own
choice, and right to be informed of these rights 38
as
enshrined and guaranteed in the Bill of Rights. As
testified to by SPO4 Geronimo de Leon, the prosecution
witness who was the team leader of the policemen who
investigated the 13 May incident, during his cross
examination—
Upon finding the name of the owner of the tricycle, they

proceeded to Bakod Bayan in the house of the barangay captain
where the owner of the tricycle was summoned and who in turn
revealed the driver’s name and was invited for interview. The
driver was accused Joselito del Rosario who volunteered to name
his passengers on May 13, 1996. On the way to the police station,
accused informed them of the bag and lunch kit’s location and the
place where the holduppers may be found and they reported
these findings to their officers, Capt. Biag and Capt. Cruz. After
lunch, they proceeded to Brgy. Dicarma composed of 15 armed
men where a shootout transpired that lasted from 1:00 to 4:00
o’clock in the afternoon. After a brief encounter, they went inside
the house where they found Marquez dead holding a magazine
and a gun. While all of these were happening, accused del Rosario
was at the back of the school, after which they went back to the
police station. The investigator took the statement of the accused

on May 14, 1996, and was only subscribed on May 22, 1996. All
the while, he was detained in the police station as ordered by the
Fiscal. His statements were only signed on May 16, 1996. He also
executed a waiver of his detention. His Sinumpaang
39
Salaysay was
done with the assistance of ExJudge Talavera.
_______________
38 Rollo, p. 224.
39 Id., p. 27.
758

A further perusal of the transcript reveals that during the

encounter at Brgy. Dicarma, del Rosario was handcuffed by
the police because allegedly they had already gathered
enough evidence against40him and they were afraid that he
might attempt to escape.
Custodial investigation is the stage where the police
investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular
suspect taken into custody by the police who carry out a
process of interrogation that lends itself to elicit
incriminating statements. It is wellsettled that it
encompasses any question initiated by law enforcers after a
person has been taken into custody or otherwise deprived
41
of his freedom of action in any significant way. This
concept of
42
custodial investigation has been broadened by
RA 7438 to include “the practice of issuing an ‘invitation’
to a person who is investigated in connection with an offense
he is suspected to have committed.” Section 2 of the same
Act further provides that—
x x x x Any public officer or employee, or anyone acting under his

order or in his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter, in
a language known and understood by him, of his right to remain
silent and to have competent and independent counsel, preferably
of his own choice, who shall at all times be allowed to confer
privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own
counsel, he must be provided with a competent and independent
counsel by the investigating officer.
_______________
40 TSN, 3 July 1996, p. 5.

41 People v. Herson Tan y Verzo, G.R. No. 117321, 11 February 1998,
286 SCRA 207.
42 An Act Defining Certain Rights of Person Arrested, Detained or
Under Custodial Investigation As Well As the Duties of the Arresting,
Detaining and Investigating Officer and Providing Penalties for Violations
Thereof. Approved 15 May 1992.
759
VOL. 305, APRIL 14, 1999 759

From the foregoing, it is clear that del Rosario was

deprived of his rights during custodial investigation. From
the time he was “invited” for questioning at the house of
the barangay captain, he was already under effective
custodial investigation, but he was not apprised nor made
aware thereof by the investigating officers. The police
already knew the name of the tricycle driver and the latter
was already a suspect in the robbing and senseless slaying
of Virginia Bernas. Since the prosecution failed to establish
that del Rosario had waived his right to remain silent, his
verbal admissions on his participation in the crime even
before his actual arrest were inadmissible against him, as
the same transgressed the safeguards provided by law and
the Bill of Rights.
Del Rosario also avers that his arrest was unlawful since
there was no warrant therefor.
43
Section 5, Rule 113 of the
Rules of Court provides:
Sec. 5. Arrest without warrant; when lawful.—A peace officer or a

private person may, without a warrant, arrest a person: (a) When,
in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b)
When an offense has in fact been committed and he has personal
knowledge of facts indicating that the person to be arrested has
committed it; and, (c) When the person to be arrested is a prisoner
who has escaped from penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
It must be recalled that del Rosario was arrested by SPO4

De Leon during the police raid at the place of “Jun”
Marquez
44
at Brgy. Dicarma on 14 May 1996. In People vs.
Sucro we held that when a police officer sees the offense,
although at a distance, or hears the disturbances created

thereby, and proceeds at once to the scene thereof, he may
effect an arrest without a warrant on the basis of Sec. 5,
par. (a), Rule 113, since the offense is deemed committed in
his presence or
________________
43 Rollo, pp. 244245.

44 G.R. No. 93239, 18 March 1991, 195 SCRA 388.
760

within his view. In essence, Sec. 5, par. (a), Rule 113,

requires that the accused be caught in flagrante delicto or
caught immediately after the consummation of the act. The
arrest of del Rosario is obviously outside the purview of the
aforequoted rule since he was arrested on the day following
the commission of the robbery with homicide.
On the other hand, Sec. 5, par. (b), Rule 113,
necessitates two (2) stringent requirements before a
warrantless arrest can be effected: (1) an offense has just
been committed; and, (2) the person making the arrest has
personal knowledge of facts indicating that the person to be
arrested had committed it. Hence, there must be a large
measure of immediacy between the time the offense was
committed and the time of the arrest, and if there was an
appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be
secured. Aside from the sense of immediacy, it is also
mandatory that the person making the arrest must have
personal knowledge of certain facts indicating that the 45
person to be taken into custody has committed the crime.
Again, the arrest of del Rosario does not comply with these
requirements since, as earlier explained, the arrest came a
day after the consummation of the crime and not
immediately thereafter. As such, the crime had not been
“just committed” at the time the accused was arrested.
Likewise, the arresting officers had no personal knowledge
of facts indicating that the person to be arrested had
committed the offense since they were not present and
were not actual eyewitnesses to the crime, and they became
aware of his identity as the driver of the getaway tricycle
only during the custodial investigation.
However, the conspicuous illegality of del Rosario’s

arrest cannot affect the jurisdiction of the court a quo
because even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect and any
objection thereto is waived when
________________
45 Pamaran, Manuel R., The 1985 Rules of Criminal Procedure

Annotated, 1998 Ed., p. 204.
761
VOL. 305, APRIL 14, 1999 761

the person arrested submits46

to arraignment without any
objection, as in this case.
A transgression of the law has occurred. Unfortunately,
an innocent person lost her life and property in the process.
Someone therefore must be held accountable, but it will not
be accused Joselito del Rosario; we must acquit him. Like
victim Virginia Bernas, he too was a hapless victim who
was forcibly used by other persons with nefarious designs
to perpetrate a dastardly act. Del Rosario’s defense of
“irresistible force” has been substantiated by clear and
convincing evidence. On the other hand, conspiracy
between him and his coaccused was not proved beyond a
whimper of a doubt by the prosecution, thus clearing del
Rosario of any complicity in the crime charged.
WHEREFORE, the decision of the Regional Trial Court
of Cabanatuan City convicting accused JOSELITO DEL
ROSARIO Y PASCUAL of Robbery with Homicide and
sentencing him to death, is REVERSED and SET ASIDE,
and the accused is ACQUITTED of the crime charged. His
immediate RELEASE from confinement is ordered unless
held for some other lawful cause. In this regard, the
Director of Prisons is directed to report to the Court his
compliance herewith within five (5) days from receipt
hereof.
SO ORDERED.
Davide, Jr. (C.J.), Romero, Melo, Puno, Vitug,

Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, GonzagaReyes and YnaresSantiago, JJ.,
concur.
Judgment reversed and set aside, accusedappellant

acquitted and ordered released.
Note.—A person who invokes the exempting

circumstance of compulsion due to irresistible force must
prove his defense by clear and convincing evidence—the
compulsion must be of
_______________
46 Regalado, Florenz D., Remedial Law Compendium, 1995 Ed., p. 323.
762

Associated Labor Unions vs. Quisumbing
such character as to leave the accused no opportunity to

defend himself or to escape. (People vs. Dansal, 275 SCRA
549 [1997])
——o0o——
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15 People V Del Rosario

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15 People V Del Rosario

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3/19/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 305

740 SUPREME COURT REPORTS ANNOTATED

PEOPLE OF THE PHILIPPINES, plaintiff­appellee, vs.

Criminal Law; Exempting Circumstances; A person who acts

VOL. 305, APRIL 14, 1999 741

People vs. Del Rosario

character as to leave no opportunity for the accused for escape or

Same; Same; It is natural for people to be seized by fear when

742 SUPREME COURT REPORTS ANNOTATED

People vs. Del Rosario

though no actual meeting among them to concert is proved. That

VOL. 305, APRIL 14, 1999 743

People vs. Del Rosario

broadened by RA 7438 to include “the practice of issuing an

AUTOMATIC REVIEW of a decision of the Regional Trial

744 SUPREME COURT REPORTS ANNOTATED

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff­appellee.

ON AUTOMATIC REVIEW is the decision of the court a

1 Decision penned by Judge Feliciano V. Buenaventura, RTC­Br. 27,

VOL. 305, APRIL 14, 1999 745

who was trying to help the woman, while the other

746 SUPREME COURT REPORTS ANNOTATED

Meanwhile, “Dodong” Bisaya succeeded in taking the

was lying prone on the ground. After the shooting,

11 TSN, 28 August 1996, pp. 3­7.

VOL. 305, APRIL 14, 1999 747

and unable to protect himself when he was prevented at

during the perpetration of the robbery and killing, and was

748 SUPREME COURT REPORTS ANNOTATED

sonal welfare and security rather than the safety 19

who left the tricycle to chase the companion of the victim

Q: What was that unusual incident that transpired in that

19 Rollo, pp. 407­408.

VOL. 305, APRIL 14, 1999 749

Q: What happened to the lady who fell to the ground?

On the continuation of his direct examination, after an

Q: Will you please tell us where in particular did you see

21 TSN, 9 July 1996, pp. 4­7.

750 SUPREME COURT REPORTS ANNOTATED

On cross­examination, the same witness further clarified—

On the other hand, accused Del Rosario declared during

Q: x x x x On the evening of May 13, 1996 you were the

23 Id., pp. 31­32.

VOL. 305, APRIL 14, 1999 751

Q: And what about Jun Marquez?

Q: And at the time when the shooting took place where

Q: And immediately thereafter Jun Marquez boarded your

24 Id., 28 August 1996, pp. 3­6.

752 SUPREME COURT REPORTS ANNOTATED

On cross­examination, accused further stated—

Q: After stopping in that place for one minute what else

25 Id., 12 September 1996, pp. 9­10.

VOL. 305, APRIL 14, 1999 753

A: He did not alight from the tricycle, sir.

Del Rosario maintains that “Boy” Santos never left the

26 Id., 13 September 1996, p. 2.

754 SUPREME COURT REPORTS ANNOTATED

28 Exhibits P­7 and P­9.

VOL. 305, APRIL 14, 1999 755

to commit it. The objective of the conspirators is to perform

must be established, not by conjectures, but by positive and

31 People v. Taaca, No. L­35652, 29 September 1989, 178 SCRA 56.

PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs.

The Solicitor General for plaintiffappellee.

1 Decision penned by Judge Feliciano V. Buenaventura, RTCBr. 27,

11 TSN, 28 August 1996, pp. 37.

19 Rollo, pp. 407408.

21 TSN, 9 July 1996, pp. 47.

On crossexamination, the same witness further clarified—

23 Id., pp. 3132.

24 Id., 28 August 1996, pp. 36.

On crossexamination, accused further stated—

25 Id., 12 September 1996, pp. 910.

28 Exhibits P7 and P9.

31 People v. Taaca, No. L35652, 29 September 1989, 178 SCRA 56.

43 Rollo, pp. 244245.

Judgment reversed and set aside, accusedappellant