People v. Nelmida

EN BANC
[G.R. No. 184500. September 11, 2012.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

WENCESLAO NELMIDA @ "ESLAO," and RICARDO AJOK @
"PORDOY," accused-appellants.
DECISION
PEREZ, J : p
The subject of this present appeal is the Decision 1 dated 18 June 2008 of
the Court of Appeals in CA-G.R. HC No. 00246, affirming the Decision 2 dated 30
September 2005 of the Regional Trial Court (RTC) of Kapatagan, Lanao del
Norte, Branch 21, in Criminal Case No. 21-910, finding herein appellants
Wenceslao Nelmida @ "Eslao" (Wenceslao) and Ricardo Ajok @ "Pordoy"
(Ricardo) guilty beyond reasonable doubt of double murder with multiple
frustrated murder and double attempted murder, thereby sentencing them to
suffer the penalty of reclusion perpetua. Appellants were likewise ordered to
indemnify, jointly and severally, the heirs of each of the deceased victims, i.e.,
Police Officer 3 Hernando P. dela Cruz (PO3 Dela Cruz) and Technical Sergeant
Ramon Dacoco (T/Sgt. Dacoco), the amount of P50,000.00 each as moral
damages and P50,000.00 each as civil indemnity for the death of each of the
said victims. Similarly, appellants were directed to pay, jointly and severally,
Mayor Johnny Tawan-tawan the amount of P50,000.00 for and as attorney's
fees, as well as the costs of the suit.
Appellants and their co-accused Samuel Cutad @ "Sammy" (Samuel),

Brigido Abais @ "Bidok" (Brigido), Pedro Serafico @ "Peter" (Pedro), Eduardo
Bacong, Sr. (Eduardo, Sr.), Eduardo Bacong, Jr. @ "Junjun" (Eduardo, Jr.),
Alejandro Abarquez (Alejandro), Ruben Bartolo @ "Yoyoy Bulhog" (Ruben),
Arnel Espanola @ "Toto Ilongo" (Arnel), Alfredo Paninsuro @ "Tambok"
(Alfredo), Opao Casinillo (Opao) and other John Does, were charged in an
Amended Information 3 dated 3 October 2001 with the crime of double murder
with multiple frustrated murder and double attempted murder, the accusatory
portion of which reads:
That on or about the 5th day of June 2001, at SAN MANUEL, Lala,
Lanao del Norte, Philippines and within the jurisdiction of this
Honorable Court, the above-named [appellants and their co-accused],
conspiring, confederating and mutually helping one another, armed
with assorted high-powered firearms and hand-grenade, did then and
there willfully, unlawfully and feloniously, with treachery, evident
premidation (sic), taking advantage of their superiority in strength and
in numbers, and with intent to kill, ambush, attack, assault and use
personal violence upon the persons of the following, namely[:]
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1. [PO3 Dela Cruz], [Philippine National Police (PNP)];
2. [T/Sgt. Dacoco], [Philippine Army (PA)];

3. [Private First Class (PFC)] Haron Angni, PA;
4. [PFC] Gador 4 Tomanto, PA;
5. Juanito Ibunalo; cHEATI
6. Mosanif 5 Ameril;
7. Macasubar 6 Tandayao;
8. Mayor Johnny Tawantawan; 7 and
9. Jun Palanas
by then and there firing and shooting them with said high-powered
firearms thereby inflicting upon the persons of [PO3 De la Cruz],
[T/Sgt. Dacoco], [PFC] Haron Angni, [PFC] Ga[p]or Tomanto, Juanito
Ibunalo, M[o]sani[p] Ameril and [Macasuba] Tandayao gunshot
wounds which were the direct and immediate cause of the death of
[PO3 De la Cruz and T/Sgt. Dacoco] and the serious wounding of said
[PFC] Haron Angni, [PFC] Ga[p]or Tomanto, Juanito Ibunalo, Mosani[p]
Ameril and [Macasuba] Tandayao that without the medical assistance
would have caused their deaths, while Mayor Johnny Tawan[-]tawan
and Jun Palanas were not hit. 8
When arraigned, appellants Wenceslao and Ricardo, assisted by their

counsel de parte 9 and counsel de oficio, 10 respectively; and their co-accused
Samuel, likewise assisted by counsel de oficio, 11 all entered separate pleas of
NOT GUILTY to the crime charged. The rest of the accused in this case,
however, remained at large. Trial on the merits ensued thereafter.
Meanwhile, or on 21 January 2003, however, the prosecution filed a
Motion to Discharge Accused [Samuel] to Be Utilized as State Witness, 12 which
the court a quo granted in an Order dated 12 February 2003. 13 Also, upon
motion of the prosecution, the court a quo issued another Order dated 17
March 2003, 14 directing the release of Samuel from detention following his
discharge as state witness.
As such, Samuel, together with 13 more witnesses, namely, Macasuba
Tandayao (Macasuba), Mosanip Ameril (Mosanip), PFC Gapor Tomanto (PFC
Tomanto), Merlina dela Cruz (Merlina), Senior Police Inspector Renato Salazar
(Senior P/Insp. Salazar), PFC Haron Angni (PFC Angni), Senior Police Officer 4
Raul Torres Medrano (SPO4 Medrano), Senior Police Officer 1 Ferdinand Suaring
(SPO1 Suaring), Senior Police Officer 2 Ivan Mutia Evasco (SPO2 Evasco), Senior
Police Officer 4 Emmie Subingsubing (SPO4 Subingsubing), Juanito Ibunalo
(Juanito), Senior Police Officer 3 Tommy Umpa (SPO3 Umpa), and Mayor Johnny
Tawan-tawan (Mayor Tawan-tawan), testified for the prosecution.
The factual milieu of this case as culled from the testimonies of the
aforesaid prosecution witnesses is as follows:

On 5 June 2001, Mayor Tawan-tawan of Salvador, Lanao del Norte,
together with his security escorts composed of some members of the Philippine
Army, Philippine National Police (PNP) and civilian aides, to wit: (1) T/Sgt.
Dacoco; (2) PFC Angni; (3) PFC Tomanto; (4) PO3 Dela Cruz; (5) Juanito; (6)
Mosanip; (7) Macasuba; and (8) a certain Jun, respectively, were in Tubod,
Lanao del Norte. In the afternoon, the group went home to Salvador, Lanao del
Norte, on board the yellow pick-up service vehicle of Mayor Tawan-tawan with
Plate No. JRT 818 driven by Juanito. Sitting at the passenger seat of the
aforesaid vehicle was Mayor Tawan-tawan while those at the back seat were
Mosanip, Jun, and Macasuba, who was sitting immediately behind Juanito. Those
seated on a wooden bench installed at the rear (open) portion of the said
yellow pick-up service vehicle were PFC Tomanto, PFC Angni, PO3 Dela Cruz
and T/Sgt. Dacoco. PFC Tomanto and PFC Angni were sitting beside each other
facing the right side of the road while PO3 Dela Cruz and T/Sgt. Dacoco were
both seated behind PFC Tomanto and PFC Angni facing the left side of the road.
15 HATICc
At around 3:00 p.m. of the same day, appellants, together with their
aforenamed co-accused, brought Samuel to a waiting shed in Purok 2, San
Manuel, Lala, Lanao del Norte, the one located on the left side of the road going
to Salvador, Lanao del Norte. Samuel was instructed by appellants and their co-
accused to stay in the said waiting shed while they assembled themselves in a
diamond position on both sides of the road, which is more or less five (5)
meters away from the shed. Then, appellants and their co-accused
surreptitiously waited for the vehicle of the group of Mayor Tawan-tawan. 16
A few minutes later, Samuel saw the yellow pick-up service vehicle of
Mayor Tawan-tawan approaching towards the direction of Salvador, Lanao del
Norte. The moment the yellow pick-up service vehicle of Mayor Tawan-tawan
passed by the aforesaid waiting shed, appellants and their co-accused opened
fire and rained bullets on the vehicle using high-powered firearms. Both
Macasuba, who was sitting immediately behind the driver, and PFC Tomanto,
who was then sitting on the rear (open) portion of the yellow pick-up service
vehicle, saw appellant Wenceslao on the right side of the road firing at them in
a squatting position using an M-16 armalite rifle. Macasuba was also able to
identify appellants Ricardo, Pedro, Eduardo, Sr., Eduardo, Jr., Brigido and
Alfredo as among the ambushers. Mayor Tawan-tawan ordered Juanito to keep
on driving to avoid greater casualties. The vehicle stopped upon reaching the
army and Civilian Armed Forces Geographical Unit (CAFGU) detachment in
Curva, Miagao, Salvador, Lanao del Norte. Mayor Tawan-tawan then asked
assistance therefrom. 17
Immediately after the ambush, appellants and their co-accused ran

towards the house of Samuel's aunt located, more or less, 10 meters away
from the site of the ambush to get their bags and other stuff. The house of
Samuel's aunt was the place where appellants and their co-accused stayed
prior to the incident. Samuel followed appellants and their co-accused to the
house of his aunt. Thereafter, appellants and their co-accused hurriedly ran
towards Barangay Lindongan, Municipality of Baroy, Lanao del Norte. 18
On the occasion of the ambush, two security escorts of Mayor Tawan-
tawan, namely, PO3 Dela Cruz and T/Sgt. Dacoco, died, while others suffered
injuries. In particular, Macasuba was slightly hit on the head by shrapnel;
Mosanip sustained injury on his shoulder that almost severed his left arm; PFC
Tomanto was hit on the right and left sides of his body, on his left leg and knee;
PFC Angni was hit on his left shoulder; and Juanito was hit on his right point
finger, right head and left hip. Mayor Tawan-tawan and Jun were not injured. 19
HTSaEC
All the victims of the ambush, except Macasuba, were brought to Bontilao
Country Clinic in Maranding, Lala, Lanao del Norte, and were later transferred
to Mindanao Sanitarium and Hospital in Tibanga, Iligan City. PO3 Dela Cruz,
however, died before reaching the hospital while T/Sgt. Dacoco died in the
hospital. PFC Tomanto stayed at Mindanao Sanitarium and Hospital for 13 days
before he was transferred to Camp Evangelista Hospital in Patag, Cagayan de
Oro City, and then in a hospital in Manila and Quezon City. PFC Angni stayed for
seven (7) days in Mindanao Sanitarium and Hospital before he was transferred
to Camp Evangelista Hospital, where he was confined for one (1) month. PFC
Angni was transferred to V. Luna Hospital in Quezon City and was confined
therein for two (2) months. 20
On the other hand, Mayor Tawan-tawan, Macasuba and the members of
the CAFGU went back to the site of the ambush but appellants and their co-
accused were no longer there. Not long after, SPO4 Medrano, Chief of Police of
Salvador Municipal Police Station, Salvador, Lanao del Norte, and his troops
arrived. It was while inside the Salvador Municipal Police Station that SPO4
Medrano heard gunfire and he came to know that the group of Mayor Tawan-
tawan was ambushed prompting him and his troops to go to the scene of the
crime. Mayor Tawan-tawan informed SPO4 Medrano that appellant Wenceslao
was one of those responsible for the ambush. SPO4 Medrano and his troops,
then, conducted an investigation during which he noticed Samuel at the scene
of the crime. Upon interrogation Samuel denied any involvement in the
ambush. Even so, SPO4 Medrano still found Samuel suspicious, hence, he and
his fellow police officers arrested him and turned him over to a certain SPO4
Micabalo, Chief of Police of Lala, Lanao del Norte. Samuel was then brought to
Lala Municipal Jail in Lanao del Norte. Subsequently, SPO4 Medrano, together
with the members of the CAFGU, PNP and the rest of the troops who were at the
scene of the crime, found a trail of footprints believed to be from the culprits.
They conducted a hot pursuit operation towards Barangay Lindongan,
Municipality of Baroy, Lanao del Norte, where appellants and their co-accused
were believed to have fled. They were able to recover an M-16 armalite rifle
caliber 5.26 concealed near a nipa hut. SPO4 Medrano then sent a Spot Report
and a follow-up report about the ambush. He did not, however, reveal the
identity of appellant Wenceslao so that with a warrant of arrest, appellant
Wenceslao could be arrested at the earliest possible time. SPO4 Medrano also
informed the provincial headquarters about the incident through a radio
message. 21
The following day, or on 6 June 2001, Samuel informed SPO1 Suaring,

member of PNP Lala Municipal Police, Lala, Lanao del Norte, that there were
electrical supplies and radio antenna in San Manuel, Lala, Lanao del Norte, left
by the malefactors. SPO1 Suaring, together with Samuel, Senior P/Insp. Salazar,
SPO4 Subingsubing and a certain SPO4 Sumaylo, proceeded to San Manuel,
Lala, Lanao del Norte, where they found the materials near the National
Irrigation Administration (NIA) canal, which is 30 meters away from the house of
Samuel's aunt. These were photographed. 22
Later, SPO2 Evasco, who was assigned at Lala Police Station, received a
call from Barangay Kagawad Renato Senahon (Brgy. Kgwd. Senahon) that a
black backpack was found in Mount Curay-curay, Rebe, Lala, Lanao del Norte,
which is two (2) kilometers away from the highway. Immediately, SPO2 Evasco
and Brgy. Kgwd. Senahon went to the location. Upon inspection, they recovered
from the backpack an army camouflage with name cloth, one Garand pouch
and one fragmentation grenade cacao type. SPO2 Evasco then brought these to
the police station in Maranding, Lala, Lanao del Norte, and turned it over to
Senior P/Insp. Salazar. 23
On 8 June 2001, Samuel executed his sworn statement identifying
appellants and their co-accused as the persons responsible for the ambush of
Mayor Tawan-tawan and his companions. Samuel was, thereafter, incarcerated
at the Bureau of Jail Management and Penology (BJMP) in Tubod, Lanao del
Norte. 24 caIETS
On 29 August 2001, or more than two (2) months after the ambush,
appellant Wenceslao was arrested while he was in Katipa, Lopez Jaena, Misamis
Occidental. Appellant Ricardo, on the other hand, was arrested on 20
December 2001 while working in Puting Bato in Sapad, Lanao del Norte. It was
Senior P/Insp. Salazar who effected the arrest of the appellants. 25
Appellants denied having any involvement in the ambush. Appellant
Wenceslao presented as witnesses Armida Nelmida (Armida), Jeffrey Paninsuro
(Jeffrey), Luzviminda Apolinares (Luzviminda), Rudy Alegado (Rudy), Sergeant
Teofanis Garsuta (Sgt. Garsuta) and Master Sergeant Pio Cudilla (M/Sgt.
Cudilla). Appellant Ricardo, on the other hand, did not present any witness
other than himself.
Appellant Wenceslao testified that on 5 June 2001, he was in their house

with his family. At around 1:00 p.m., he went outside their house to clean the
pigsty and feed the pigs. Then, at around 2:30 p.m., Jacob Pepito, Rudy and a
certain Romy, who is a military personnel, arrived to get a copy of the election
returns of the 15 May 2001 elections upon the orders of Tanny Pepito, a
gubernatorial candidate. He told them that he has no copy of the returns. He
then advised them to get it to Atty. Aldoni Umpa (Atty. Umpa) who has a copy.
At that time, he, Jacob Pepito and Romy were outside the house while his wife
and nieces were just eight (8) to 10 meters away from them. After 10 minutes,
his visitors left. 26 Suddenly, appellant Wenceslao heard gunfire coming from
the direction of the house of Mayor Tawan-tawan. His nephew, Jeffrey,
approached and informed him that Mayor Tawan-tawan and the latter's group
were ambushed. After about one (1) or two (2) minutes, he again heard gunfire.
This time the bullets were already hitting the roof and walls of their house. He
then instructed Jeffrey, who is also a CAFGU member, to report the said
incident and to ask help from the members of the Philippine Army stationed at
Camp Allere, Salvador, Lanao del Norte. 27
When Jeffrey left, appellant Wenceslao stayed at their house. He did not
know where his wife and the rest of the women, who were in their house, went
after the gunburst. After more or less 15 minutes, he walked barefooted and
unarmed towards Camp Allere. There he saw M/Sgt. Cudilla and he informed
the former regarding the incident happened in their house. Not long after, a
certain Captain Esmeralda (Capt. Esmeralda), Commanding Officer of Bravo
Company of the Philippine Army, arrived. He also approached and informed
Capt. Esmeralda about the incident in their house. Capt. Esmeralda then
ordered his men to board the samba and a six-by-six truck to fetch appellant
Wenceslao's wife and relatives in Poblacion, Salvador, Lanao del Norte. A six-
by-six truck returned to Camp Allere carrying appellant Wenceslao's wife and
relatives. 28 AEDcIH
On the evening of 5 June 2001, appellant Wenceslao, together with his

wife and daughter, slept in his father's house located, more or less, 100 meters
away from Camp Allere and stayed there for five (5) days. Appellant
Wenceslao's wife then requested for transfer to their son's house in
Kolambugan, Lanao del Norte, as she could no longer sleep because of what
happened at their house. Thus, they went to their son's house in Kolambugan,
Lanao del Norte, and stayed there for eight (8) days. During that period of time,
he did not hear of any case filed against him. No policemen even bothered to
arrest him. His wife, however, was still afraid, so they left the house of their son
and moved to Katipa, Lopez Jaena, Misamis Occidental. They stayed there until
he was arrested on 29 August 2001. 29
Appellant Wenceslao, however, disclosed that it would only take, more or
less, a 15 minute-vehicle ride from his residence in Poblacion, Salvador, Lanao
del Norte, to the site of the ambush in San Manuel, Lala, Lanao del Norte. Also,
from his house to Camp Allere it would only take, more or less, 5 minute-
vehicle ride. Appellant Wenceslao also admitted that he ran for the vice-
mayoralty position in Salvador, Lanao del Norte, against Rodolfo Oban during
the 2001 elections. Way back in the 1998 elections, he ran for mayoralty
position in the same locality against Mayor Tawan-tawan but he lost. On both
occasions, he and Mayor Tawan-tawan were no longer in the same political
party. Similarly, during the term of Mayor Tawan-tawan in 1998, appellant
Wenceslao revealed that he and his son were charged with illegal possession of
firearm. 30
Other defense witnesses, namely, Armida, Jeffrey and Luzviminda, who
are appellant Wenceslao's wife, nephew and niece, respectively, corroborated
appellant Wenceslao's testimony on all material points. They all denied that
appellant Wenceslao has something to do with the ambush of Mayor Tawan-
tawan and his group. Nonetheless, Armida admitted that there is a road
connecting San Manuel, Lala, Lanao del Norte, to Salvador, Lanao del Norte.
There are also vehicles for hire plying the route of Salvador, Lanao del Norte, to
San Manuel, Lala, Lanao del Norte, and vice-versa. 31
Another defense witness, Rudy, corroborated appellant Wenceslao's
testimony with respect to the fact that on 5 June 2001, he, together with Jacob
Pepito and a certain member of the army intelligence group, went to the house
of appellant Wenceslao to get the election returns. However, he could not recall
anything unusual that happened while he was in the house of appellant
Wenceslao. They left the house of appellant Wenceslao at around 2:45 p.m.
Still, no unusual incident happened thereafter. Rudy similarly revealed that he
did not go inside the house of appellant Wenceslao but merely waited for Jacob
Pepito and a member of the army intelligence group inside their vehicle parked
at a distance of, more or less, three (3) meters from the house of appellant
Wenceslao. As such, he did not hear the subject of the conversation between
appellant Wenceslao, Jacob Pepito and a member of the army intelligence
group. 32
Sgt. Garsuta, who also testified for the defense, stated that in the
afternoon of 5 June 2001, while he was at the legislative hall in Pigcarangan,
Tubod, Lanao del Norte, to secure the canvass of the elections, they received a
radio call from M/Sgt. Cudilla informing them that Mayor Tawan-tawan was
ambushed and the house of appellant Wenceslao was strafed. Thereafter, Capt.
Esmeralda called them to board a six-by-six truck and to proceed to Salvador,
Lanao del Norte. As they passed by San Manuel, Lala, Lanao del Norte, they
stopped to get some information from the police officers therein. They
proceeded to Camp Allere in Salvador, Lanao del Norte. They arrived at Camp
Allere at around 4:30 p.m. to 4:35 p.m. and there he saw appellant Wenceslao
waiting and talking to 1st Sgt. Codilla. Appellant Wenceslao then requested that
his family and some personal effects be taken from his house. Thus, Capt.
Esmeralda ordered them to board a six-by-six truck and to proceed to appellant
Wenceslao's house. Upon reaching the house of appellant Wenceslao, nobody
was there. Suddenly, appellant Wenceslao's wife came out from the nearby
house. Then they ordered her to board a six-by-six truck after taking some
personal belongings of appellant Wenceslao in the latter's house. 33THADEI
M/Sgt. Cudilla alleged that at around, more or less, 3:00 p.m. of 5 June
2001, while he was at their command post at Camp Allere, Salvador, Lanao del
Norte, his detachment commander, a certain T/Sgt. Quijano, called and
informed him through radio that an ambush incident happened in his area of
responsibility, i.e., Curva Miagao, Salvador, Lanao del Norte. He advised T/Sgt.
Quijano to verify the incident. M/Sgt. Cudilla then called Capt. Esmeralda to
inform the latter about the said ambush incident. He, thereafter, prepared a
perimeter defense in the camp. In the second call of T/Sgt. Quijano, the latter
told him that Mayor Tawan-tawan was ambushed. After about 15 minutes,
M/Sgt. Cudilla heard gunbursts from Poblacion, Salvador, Lanao del Norte.
Later, more or less, 10 civilians arrived at Camp Allere.
M/Sgt. Cudilla further confirmed that on 5 June 2004, also at around 3:00
p.m., he saw appellant Wenceslao at the back of the stage inside Camp Allere
near Km. Post one. Appellant Wenceslao then informed him of the strafing
incident in his house. When their commanding officer arrived, appellant
Wenceslao approached the former. Thereafter, a platoon was organized
heading towards Poblacion, Salvador, Lanao del Norte. 34
Appellant Ricardo, for his part, maintained that on 5 June 2001, he was
also in his house in Purok 5, Poblacion, Salvador, Lanao del Norte, attending to
his wife and children because his wife had just given birth in April 2001. In the
afternoon thereof, he heard a gunburst somewhere in Poblacion, Salvador,
Lanao del Norte, followed by some commotion in the street. Later, his brother,
Joji Ajok, arrived and informed him that appellant Wenceslao was shot in his
house. 35
Appellant Ricardo also confirmed that on the early evening of 5 June

2001, he and his family transferred to the house of his parents-in-law at Camp
Allere, Salvador, Lanao del Norte. He so decided when he heard rumors that the
supporters of Atty. Umpa, the political rival of Mayor Tawan-tawan in the 2001
local elections, were being persecuted. Being one of Atty. Umpa's supporters,
he got scared, prompting him to bring his family to Camp Allere. They stayed
there until the following morning and then he left alone for Ozamis City,
Misamis Occidental, and stayed there for three (3) months. Thereafter, he
moved to Puting Bato in Sapad, Lanao del Norte, where he worked in the farm
of his friend. He stayed there until he was arrested on 20 December 2001. 36 cACTaI
Nevertheless, appellant Ricardo divulged that there was never an

instance that Atty. Umpa was harassed or intimidated by the group of Mayor
Tawan-tawan. He claimed that only Atty. Umpa's supporters were harassed. He
also revealed that prior to the ambush incident, there was never an instance
that he was threatened by the group of Mayor Tawan-tawan. He just presumed
that Atty. Umpa's supporters were being harassed by the people of Mayor
Tawan-tawan because others were already harassed. 37
Finding the testimonies of the prosecution witnesses, most of whom were
victims of the ambush, to be credible, categorical, straightforward, spontaneous
and consistent, coupled with their positive identification of the appellants as
among the perpetrators of the crime and their lack of ill-motive to falsely testify
against them, vis-à-vis the defense of denial and alibi proffered by the latter,
the trial court rendered its Decision on 30 September 2005 finding appellants
guilty beyond reasonable doubt of double murder with multiple frustrated
murder and double attempted murder and imposing upon them the penalty of
reclusion perpetua. The dispositive portion of the aforesaid trial court's Decision
states:
WHEREFORE, in view of the foregoing considerations, judgment
is hereby rendered finding [herein appellants Wenceslao and
Ricardo] GUILTY beyond reasonable doubt of the crime of
double murder with multiple frustrated murder and double
attempted murder, and the Court hereby sentences them to
suffer the indivisible prison term of reclusion perpetua; to pay,
jointly and severally, the heirs of the late [PO3 Dela Cruz] the amount
of P50,000.00 as moral damages and another sum of P50,000.00 for
and by way of civil indemnity ex delicto; to pay, jointly and severally,
the heirs of the late [T/Sgt. Dacoco] the sum of P50,000.00 as moral
damages plus P50,000.00 for and by way of civil indemnity ex delicto;
and to pay, jointly and severally, Ex-Mayor Johnny Tawantawan the
amount of P50,000.00 for and as attorney's fees, and the costs of suit.
The Armalite rifle with defaced serial number, the hand grenade
and the [G]arand pouch are hereby ordered turned-over to the Firearm
and Explosive Unit of the PNP Headquarters, Pigcarangan, Tubod,
Lanao del Norte, for proper disposition as authorized by law.
The full period of the preventive imprisonment of the [appellants]
shall be credited to them and deducted from their prison term provided
they comply with the requirements of Article 29 of the Revised Penal
Code. [Appellant Wenceslao] was arrested on 29 August 2001 and
detained since then up to the present. While [appellant Ricardo] was
arrested on 20 December 2001 and detained since then up to the
present.
Let the records of this case be sent to the archive files without
prejudice on the part of the prosecution to prosecute the case against
the other accused who remain at-large, as soon as said accused are
apprehended. 38 [Emphasis supplied].
Unperturbed, appellants separately appealed the aforesaid trial court's

Decision to the Court of Appeals via Notice of Appeal, 39 and, thereafter,
submitted their respective appeal briefs.
In his brief, appellant Wenceslao assigned the following errors:
I.
THE TRIAL COURT ERRED IN DECLARING THAT THE TESTIMONIES OF

THE PROSECUTION WITNESSES ARE CREDIBLE AND NOT
ORCHESTRATED LIES INTENDED TO FALSELY IMPUTE THE CRIMINAL
LIABILITY TO [APPELLANT WENCESLAO][;] DHAcET
II.
THE TRIAL COURT ERRED IN DECLARING THAT THE INCONSISTENCIES
OF PROSECUTION WITNESSES ARE HONEST INCONSISTENCIES ON
MINOR AND TRIVIAL POINTS[;]
III.
THE TRIAL COURT ERRED IN RULING THAT [APPELLANTS WENCESLAO
AND RICARDO] FAILED TO CAST ILL-MOTIVE ON THE PART OF
PROSECUTION WITNESSES AND THAT THESE WITNESSES HAD NO
IMPROPER AND NEFARIOUS MOTIVE IN TESTIFYING AGAINST THE
[APPELLANTS][;]
IV.
THE TRIAL COURT FAILED TO APPRECIATE THE TESTIMONY OF THE
MILITARY MEN WHO ARE NEUTRAL, IMPARTIAL AND OBJECTIVE
WITNESSES[;]
V.
THE TRIAL COURT ERRED IN RULING THAT [APPELLANT WENCESLAO]
ABSCONDED AND IN IMPUTING MALICE ON THE ACT OF [APPELLANT
WENCESLAO] IN TEMPORARILY LEAVING HIS RESIDENCE[;]
VI.
THE LOWER COURT ERRED IN CONVICTING [APPELLANT WENCESLAO]
OF THE CRIME CHARGED BASED ON TESTIMONIES WHICH ARE OF
DOUBTFUL VERACITY[;]
VII.
THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OF
[APPELLANT WENCESLAO] BASED ON JURISPRUDENCE WHICH ARE
NOT APPLICABLE IN THE CASE AT BAR[.] 40
While appellant Ricardo, in his brief, raised this lone assignment of error:
THE COURT A QUO GRAVELY ERRED IN CONVICTING [APPELLANT
RICARDO] DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT. 41 aHTcDA
On 18 June 2008, the Court of Appeals rendered its now assailed Decision
affirming appellants' conviction of the crime charged. The Court of Appeals held
that the evidence on record disclosed that the alleged inconsistencies pointed
to by appellant Wenceslao refer only to minor matters. The same did not
damage the credibility of the prosecution witnesses, particularly that of PFC
Tomanto, PFC Angni, Juanito and Mayor Tawan-tawan. Honest inconsistencies
on minor and trivial points serve to strengthen rather than destroy the
credibility of a witness to a crime. Moreover, since the prosecution witnesses
positively identified appellants in open court as among the perpetrators of the
ambush, the same must prevail over the alleged inconsistencies, as well as the
defense of denial and alibi interposed by the appellants. Denial is a negative
and self-serving assertion that cannot overcome the victim's affirmative,
categorical and convincing testimony. In the same way, for alibi to prosper, it
must be established by positive, clear and satisfactory proof that it was
impossible for the accused to be at the scene of the crime at the time of its
commission and not merely assert that he was somewhere else. As in the
present case, the trial court took judicial notice of the distance of seven (7)
kilometers between Salvador, Lanao del Norte, where appellants reside, and
San Manuel, Lala, Lanao del Norte, where the ambush incident took place.
Appellants, therefore, could not successfully invoke alibi as a defense because
it was not physically impossible for them to have been at the scene of the
crime. 42 The Court of Appeals then decreed as follows:
WHEREFORE, in the light of the foregoing, the separate
APPEALS are DENIED, and the appealed Decision is hereby
AFFIRMED. 43
Still undaunted, appellants elevated the aforesaid Decision of the Court of

Appeals to this Court via Notice of Appeal.
In a Resolution 44 dated 19 November 2008, the Court required the

parties to simultaneously submit their respective supplemental briefs, if they so
desire. In lieu thereof, the Office of the Solicitor General filed a Manifestation 45
stating that it will no longer file a supplement to its Consolidated Appellee's
Brief 46 dated 14 December 2006 there being no transactions, occurrences or
events which have happened since the appellate court's Decision was
rendered.
Appellants, on the other hand, filed their separate Supplemental Briefs, 47
which were a mere rehash of the arguments already discussed in their
respective Appellant's Briefs 48 submitted before the appellate court. In his
Supplemental Brief, appellant Wenceslao reiterates that: the trial court and the
Court of Appeals committed reversible errors when they decided a question of
substance which is not in accord with established facts and the applicable laws.
49 He, once again, enumerated the following errors committed by the appellate
court, thus:
I.
The court a quo and the Court of Appeals gravely erred when they
ruled that the inconsistencies committed by the prosecution
witnesses are on minor and trivial points when these inconsistencies
are indicative of the innocence of [appellant Wenceslao][;]HAIDcE
II.
The trial court and the Court of Appeals failed to consider as
indicative of innocence of [appellant Wenceslao] the fact that the
authorities did not include in the police report the name of [appellant
Wenceslao] and did not arrest him immediately after the ambush, or
within a couple of months from the date of the ambush[;]
III.
The trial court and the Court of Appeals committed reversible error
when they deliberately refused or failed to consider and appreciate
the testimonies of the military officers who are neutral, impartial, and
objective witnesses[;]
IV.
Both the trial court and the Court of Appeals miserably failed to
consider the evidence for the defense despite the clear and
unmistakable proof of their honesty and integrity[;]
V.
The trial court and the Court of Appeals clearly and deliberately
[misinterpreted] the facts and [misapplied] the laws regarding "flight"
as an alleged indication of guilt[;]
VI.
The trial court and the Court of Appeals convicted [appellant

Wenceslao] based on jurisprudence on " a l i b i " which are not
applicable in the case at bar 50 [Emphasis and italicized omitted].
Appellant Wenceslao contends that a thorough perusal of the testimonies

of the prosecution witnesses would show these are tainted with glaring
inconsistencies, which are badges of lies and dishonesty, thus, casting doubts
on their credibility.
The inconsistencies referred to by appellant Wenceslao are as follows: (1)
whether PFC Tomanto and PFC Angni were already with Mayor Tawan-tawan
from Salvador, Lanao del Norte, to Tubod, Lanao del Norte, and vice-versa, or
they merely hitched a ride in Mayor Tawan-tawan's vehicle on their way home
to Salvador, Lanao del Norte; (2) if so, the place where PFC Tomanto and PFC
Angni hitched a ride in Mayor Tawan-tawan's vehicle; (3) the officer from whom
PFC Tomanto and PFC Angni got permission in order to go home to Salvador,
Lanao del Norte; (4) PFC Angni allegedly knew appellant Wenceslao prior to the
ambush incident on 5 June 2001 and he even saw appellant Wenceslao as
among the perpetrators of the ambush, yet, he did not mention the name of
the former in his affidavit; (5) Mayor Tawan-tawan should have mentioned the
name of appellant Wenceslao as one of those responsible in the ambush
incident when he reported the same to SPO4 Medrano; (6) SPO4 Medrano
should have included the name of appellant Wenceslao in the Spot Reports he
transmitted to the Provincial Police Office of the PNP and should have
immediately caused his arrest if he truly participated in the ambush incident;
(7) it would no longer be necessary to discharge Samuel and to make him as
state witness if the victims of the ambush incident, indeed, saw the
perpetrators of the crime; and (8) if appellant Wenceslao was one of the
ambushers, Samuel would not have failed to mention the former in his sworn
statement.
Appellant Wenceslao believes that the afore-enumerated inconsistencies

only proved that he has no participation in the ambush of Mayor Tawan-tawan
and his companions. The declaration of his innocence is thus called for.
Appellant Wenceslao further imputes ill-motive and malice on the
testimonies of the prosecution witnesses in testifying against him. The motive
was to remove him, being the only non-Muslim leader, in the Municipality of
Salvador, Lanao del Norte, who has the courage to challenge the reign of Mayor
Tawan-tawan and his clan. It was also an act of revenge against him for
opposing Mayor Tawan-tawan during the 1998 elections. As to Samuel's motive,
appellant Wenceslao claims that it was for self-preservation, freedom, leniency
and some other consideration. Evidently, after Samuel's testimony, the latter
was released from jail.
Appellant Wenceslao maintains that he was not at the ambush site on 5

June 2001 as can be gleaned from the testimonies of M/Sgt. Cudilla and Sgt.
Garsuta.
Lastly, appellant Wenceslao argues that his flight was not an indication of
guilt. He justified his temporary absence from his residence by stating that it
was because of the traumatic experience of his wife, who had no peace of mind
since their house was riddled with bullets by lawless elements without any
cause.
With all the foregoing, the resolution of this appeal hinges primarily on the
determination of credibility of the testimonies of the prosecution witnesses.
Time and again, this Court held that when the issues revolve on matters
of credibility of witnesses, the findings of fact of the trial court, its calibration of
the testimonies of the witnesses, and its assessment of the probative weight
thereof, as well as its conclusions anchored on said findings, are accorded high
respect, if not conclusive effect. This is so because the trial court has the
unique opportunity to observe the demeanor of witnesses and is in the best
position to discern whether they are telling the truth. 51 Moreover, credibility, to
state what is axiomatic, is the sole province of the trial court. In the absence of
any clear showing that it overlooked, misunderstood or misapplied some facts
or circumstances of weight and substance that would have affected the result
of the case, the trial court's findings on the matter of credibility of witnesses
will not be disturbed on appeal. 52 A careful perusal of the records of this case
revealed that none of these circumstances is attendant herein.
The affirmance by the Court of Appeals of the factual findings of the trial
court places this case under the rule that factual findings are final and
conclusive and may not be reviewed on appeal to this Court. No reason has
been given by appellants to deviate from the factual findings arrived at by the
trial court as affirmed by the Court of Appeals.
In the present case, most of the prosecution witnesses, i.e., Macasuba,
Mosanip, PFC Tomanto, PFC Angni, Juanito and Mayor Tawan-tawan, were
victims of the 5 June 2001 ambush incident. As such, they actually witnessed
what exactly happened on that fateful day, especially Macasuba and PFC Angni,
who vividly saw appellant Wenceslao on the right side of the road and in a
squatting position firing at them with his M-16 armalite rifle. Macasuba and PFC
Angni, having seated behind the driver and on the rear (open) portion of the
yellow pick-up service vehicle, respectively, both facing the right side of the
road, were in such a position to see without any obstruction how appellant
Wenceslao rained bullets on their vehicle with his M-16 armalite rifle while they
were traversing the road of San Manuel, Lala, Lanao del Norte, on their way
home to Salvador, Lanao del Norte. Macasuba was also able to identify
appellant Ricardo, Pedro, Eduardo, Sr., Eduardo, Jr., Brigido and Alfredo as
among the perpetrators of the ambush.
It bears stressing that the ambush happened at around 3:00 p.m., in

broad daylight, such that it would not be impossible for Macasuba and PFC
Angni to have seen and identified their assailants, particularly appellant
Wenceslao, who was once chief of Civilian Home Defense Force (CHDF), then
municipal councilor and twice elected vice-mayor of Salvador, Lanao del Norte,
i.e., 1992 and 1995 elections, and appellant Ricardo, who is a resident of
Poblacion, Salvador, Lanao del Norte. 53 IHDCcT
The aforesaid assertions of Macasuba and PFC Angni were equally

confirmed by Samuel, an accused-turned-state-witness, who, in his testimony
before the open court, narrated how appellants and their co-accused, Pedro,
Eduardo, Sr., Eduardo, Jr., Brigido, Alfredo, Alejandro, Ruben, Arnel, and Opao,
brought him in the waiting shed in Purok 2, San Manuel, Lala, Lanao del Norte;
assembled themselves in a diamond position on both sides of the road;
surreptitiously waited for the vehicle boarded by Mayor Tawan-tawan and his
group; and executed the ambush from the moment the vehicle boarded by
Mayor Tawan-tawan and his group passed by the aforesaid waiting shed.
Samuel was in an advantageous position to substantiate the identities of

the appellants and their co-accused as the perpetrators of the ambush because
he was near the scene of the crime, i.e., merely five (5) meters away therefrom.
This is aside from the fact that appellants and their co-accused were the very
same people who brought him to the site of the ambush. Appellants and their
co-accused likewise stayed for a long period of time in the house of Samuel's
aunt prior to the ambush incident and Samuel is very well-acquainted with
these people for he himself resided therein. 54
Given the foregoing, it is beyond any cavil of doubt that prosecution

witnesses, Macasuba, PFC Angni and Samuel, have firmly established the
identities of appellants as the perpetrators of the ambush. In addition, their
testimonies on who and how the crime was committed were characterized by
the trial court as simple and candid. Even their answers to questions were
simple, straightforward and categorical. Such simplicity and candidness in their
testimonies only prove that they were telling the truth, thus, strengthening
their credibility as witnesses.
Now, as regards the inconsistencies pointed out by appellant Wenceslao

that allegedly cast doubt on the credibility of the prosecution witnesses, this
Court finds them frivolous, trivial, minor, irrelevant and have nothing to do with
the essential elements of the crime charged, i.e., double murder with multiple
frustrated murder and double attempted murder. In the same manner, they do
not detract from the fact that Mayor Tawan-tawan and his group, which
includes PFC Tomanto and PFC Angni, were ambushed by appellants and their
co-accused on 5 June 2001 while on board the yellow pick-up service vehicle as
it passed by the waiting shed in Purok 2, San Manuel, Lala, Lanao del Norte.
And, said ambush resulted in the death of PO3 Dela Cruz and T/Sgt. Dacoco and
injuries to Macasuba, Mosanip, PFC Tomanto, PFC Angni and Juanito.
It is axiomatic that slight variations in the testimony of a witness as to
minor details or collateral matters do not affect his or her credibility as these
variations are in fact indicative of truth and show that the witness was not
coached to fabricate or dissemble. An inconsistency, which has nothing to
do with the elements of a crime, is not a ground to reverse a
conviction. 55
Similarly, PFC Angni and Samuel's failure to name appellant Wenceslao in
their affidavits/sworn statements as one of the ambushers does not necessarily
render their testimonies implausible and unworthy of belief.
Inconsistencies between the sworn statement and direct testimony given

in open court do not necessarily discredit the witness. An affidavit, being taken
ex-parte, is oftentimes incomplete and is generally regarded as inferior to the
testimony of the witness in open court. Judicial notice can be taken of the fact
that testimonies given during trial are much more exact and elaborate than
those stated in sworn statements, which are usually incomplete and inaccurate
for a variety of reasons. More so, because of the partial and innocent
suggestions, or for want of specific inquiries. In addition, an extrajudicial
statement or affidavit is generally not prepared by the affiant himself but by
another who uses his own language in writing the affiant's statement, hence,
omissions and misunderstandings by the writer are not infrequent. Indeed, the
prosecution witnesses' direct and categorical declarations on the witness stand
are superior to their extrajudicial statements. 56 Similarly, the failure of a
witness to immediately disclose the name of the culprit does not necessarily
impair his or her credibility. 57
A meticulous perusal of Samuel's sworn statement reveals that he

categorically mentioned therein the name of appellant Wenceslao as one of the
ambushers. In his sworn statement, Samuel specifically stated that during the
ambush, he saw appellant Wenceslao at the other side of the road, just a few
meters away from the bridge, who, at that time armed with an M-16 rifle, was
likewise firing towards the group of Mayor Tawan-tawan. 58 Above all, both PFC
Angni and Samuel positively identified appellant Wenceslao in open court as
one of those responsible for the ambush of Mayor Tawan-tawan and his group.
59 Such open court declaration is much stronger than their affidavits/sworn
statements.
Mayor Tawan-tawan's failure to disclose to SPO4 Medrano the name of
appellant Wenceslao as one of those responsible in the ambush and SPO4
Medrano's failure to include the name of appellant Wenceslao in the Spot
Reports he transmitted to the Provincial Police Office of the PNP would not inure
to appellant Wenceslao's benefit.
As can be gleaned from the transcript of stenographic notes, when Mayor

Tawan-tawan and SPO4 Medrano met at the scene of the crime, the former
immediately told the latter that appellant Wenceslao was one of the
ambushers. 60 This belied the claim of appellant Wenceslao that Mayor Tawan-
tawan did not tell SPO4 Medrano that he (appellant Wenceslao) was among the
ambushers. Also, SPO4 Medrano provided an explanation 61 for his failure to
state in his Spot Reports the name of appellant Wenceslao as one of the
ambushers. And, even granting that his explanation would not have been
satisfactory, still, SPO4 Medrano's failure to mention appellant Wenceslao's
name in his Spot Reports was not fatal to the cause of the prosecution. More
especially because appellant Wenceslao was positively identified by the
prosecution witnesses as one of the perpetrators of the crime.
Even the discharge of Samuel to become state witness does not negate
the fact that prosecution witnesses, Macasuba and PFC Angni, indeed, saw
appellants as among the perpetrators of the crime. To note, appellants were
not the only persons accused of the crime; they were many including Pedro,
Eduardo, Sr., Eduardo, Jr., Brigido, Alfredo, Alejandro, Ruben, Arnel, and Opao.
In order to give justice to the victims of the ambush, especially those who have
died by reason thereof, all persons responsible therefor must be penalized.
Since Samuel knew all those who have participated in the ambush incident, his
testimony as to the other accused in this case is material to strengthen the
case of the prosecution against them. Unfortunately, the other accused in this
case remained at large until now.
As aptly observed by the trial court, thus: DTIaHE
. . . The Court is convinced without equivocation on the veracity

of the testimonies of the prosecution eyewitnesses who are all in one
pointing to [herein appellant Wenceslao] as one of those who
participated in the ambush, and on the veracity of the testimonies of
the two prosecution eyewitnesses — [Macasuba and Samuel] — to the
effect that [appellant Ricardo] was among the people who perpetrated
the said ambush.
The testimonies of these witnesses were simple and candid. The

simplicity and candidness of their testimonies only prove that they
were telling the truth. Their answers to questions were simple,
straightforward and categorical; spontaneous, frank and consistent.
Thus, a witness who testifies categorically, spontaneously, frankly and
consistently is a credible witness. 62
Appellant Wenceslao's allegations of ill-motive and malice on the part of

prosecution witnesses, including Samuel, have no leg to stand on.
The records are bereft of any evidence to substantiate the claim of

appellant Wenceslao that the motive of the prosecution witnesses in testifying
against him was to remove him as the only non-Muslim leader in the
Municipality of Salvador, Lanao del Norte, and that it was an act of revenge for
opposing Mayor Tawan-tawan during the 1998 elections. Appellant Wenceslao
failed to present an iota of evidence to support his aforesaid allegations. As
properly stated by the Court of Appeals, "[m]ere allegation or claim is not proof.
Each party must prove his own affirmative allegation." Also, it must be
emphasized that during the 1998 elections, it was Mayor Tawan-tawan who
won the mayoralty position. It is, therefore, highly implausible for Mayor Tawan-
tawan, who emerged as the victor, to take revenge against the losing
candidate, appellant Wenceslao. As such, appellant Wenceslao failed to prove
any ill-motive on the part of the prosecution witnesses. It is settled that where
the defense fails to prove that witnesses are moved by improper motives, the
presumption is that they were not so moved and their testimonies are therefore
entitled to full weight and credit. 63
To repeat, most of the prosecution witnesses are victims of the ambush.

Being the aggrieved parties, they all desire justice for what had happened to
them, thus, it is unnatural for them to falsely accuse someone other than the
real culprits. Otherwise stated, it is very unlikely for these prosecution
witnesses to implicate an innocent person to the crime. It has been correctly
observed that the natural interest of witnesses, who are relatives of the victims,
more so, the victims themselves, in securing the conviction of the guilty would
deter them from implicating persons other than the culprits, for otherwise, the
culprits would gain immunity. 64
Contrary to appellant Wenceslao's assertion, this Court is convince that

his and appellant Ricardo's flight from the scene of the crime immediately after
the ambush is an evidence of their guilt. It is noteworthy that after the ambush
incident, appellant Wenceslao immediately left his residence and moved to his
father's house, then to his son's house in Kolambugan, Lanao del Norte, and
lastly to Katipa, Lopez Jaena, Misamis Occidental, where he was arrested.
Appellant Ricardo did the same thing. From his residence in Poblacion,
Salvador, Lanao del Norte, he transferred to his parents-in-law's house, then he
left alone for Ozamis City, Misamis Occidental, and thereafter, moved to Puting
Bato in Sapad, Lanao del Norte, until he was arrested on 20 December 2001. If
appellants were truly innocent of the crime charged, they would not go into
hiding rather they would face their accusers to clear their names. Courts go by
the biblical truism that "the wicked flee when no man pursueth but the
righteous are as bold as a lion." 65
Appellants' respective explanations regarding their flight fail to persuade

this Court. It bears emphasis that after the alleged strafing of appellant
Wenceslao's house, all he did is to move from one place to another instead of
having it investigated by the authorities. Until now, the alleged strafing of his
house remains a mystery. If that strafing incident truly happened, he would be
much eager to know who caused it in order to penalize the author thereof.
Appellant Ricardo, on the other hand, was allegedly afraid of being persecuted
for being one of the supporters of Mayor Tawan-tawan's political rival. His fear,
however, was more imaginary than real. The aforesaid claim of appellant
Ricardo was uncorroborated, hence, cannot be given any considerable weight.
In light of the clear, positive and straightforward testimonies of

prosecution witnesses, coupled with their positive identification of appellants as
among the perpetrators of the ambush, appellants' defense of denial and alibi
cannot prosper.
As this Court has oft pronounced, both denial and alibi are inherently weak
defenses which cannot prevail over the positive and credible testimonies of the
prosecution witnesses that appellants committed the crime. 66 For alibi to
prosper, the requirements of time and place must be strictly met. It is not
enough to prove that appellants were somewhere else when the crime
happened. They must also demonstrate by clear and convincing evidence that
it was physically impossible for them to have been at the scene of the crime at
the approximate time of its commission. 67 Unless substantiated by clear and
convincing proof, such defense is negative, self-serving, and undeserving of
any weight in law. 68 A mere denial, like alibi, is inherently a weak defense and
constitutes self-serving negative evidence, which cannot be accorded greater
evidentiary weight than the declaration of credible witnesses who testify on
affirmative matters. 69
In this case, both appellants claimed that they were just in their
respective houses in Poblacion, Salvador, Lanao del Norte, when the ambush
incident happened and they have no involvement whatsoever in the
commission thereof.
To corroborate appellant Wenceslao's testimony, the defense presented

Armida, Jeffrey and Luzviminda, who are appellant Wenceslao's wife, nephew
and niece, respectively. This Court, however, cannot give credence to the
testimonies of these defense witnesses. Being appellant Wenceslao's relatives,
their testimonies are rendered suspect because the former's relationship to
them makes it likely that they would freely perjure themselves for his sake. The
defense of alibi may not prosper if it is established mainly by the appellant
himself and his relatives, and not by credible persons. 70 This Court further
quote with conformity the observation made by the trial court, viz.: IDaEHS
FURTHER, the testimonies of the above-named witnesses for

[herein appellant Wenceslao] were shattered by the testimony of
[Rudy], another witness for [appellant Wenceslao], who categorically
told the Court that during the time he and his companions Jacob Pepito
and a certain Romy were in the house of [appellant Wenceslao] in the
afternoon of 5 June 2001, there was no unusual incident that took
place, as well as no unusual incident that happened when they
left the house of [appellant Wenceslao] at about 2:45 in the
afternoon.
The foregoing testimony of [Rudy] clearly imparts that the visit of

[Rudy] and his companions to the house of [appellant Wenceslao], if
any, happened on another date. This will be so because if [appellant
Wenceslao] and his closely related witnesses are telling the truth that
Jacob Pepito, [Rudy] and Romy were in the house of [appellant
Wenceslao] talking about the said election returns during that fateful
afternoon, then definitely, [Rudy] should have had known of the
ambush incident, said incident being spreaded throughout or
shall we say, "the talk of the town" that afternoon of 5 June
2001.
If the ambush incident occurred on the day [Rudy] and his
companions visited [appellant Wenceslao], then, no doubt that
[Rudy] will tell the Court about it. But his testimony was
otherwise. 71 [Emphasis supplied].
In the same breath, appellant Ricardo's defense of denial and alibi cannot
be given any evidentiary value as it was unsubstantiated. Appellant Ricardo
never presented any witness to support his claim that he was simply inside
their house attending to his wife and children during the time that the ambush
incident happened. This Court reiterates that mere denial, if unsubstantiated by
clear and convincing evidence, is a self-serving assertion that deserves no
weight in law. Between the categorical and positive assertions of the
prosecution witnesses and the negative averments of the accused which are
uncorroborated by reliable and independent evidence, the former indisputably
deserve more credence and are entitled to greater evidentiary weight. 72
Withal, it was not physically impossible for the appellants to be at the

scene of the crime in the afternoon of 5 June 2001. As observed by the trial
court and the appellate court, Poblacion, Salvador, Lanao del Norte, where both
appellants' reside, is only about seven (7) kilometers away from San Manuel,
Lala, Lanao del Norte, where the ambush took place. 73
All told, this Court affirms the findings of the trial court and the appellate
court that, indeed, appellants were among the perpetrators of the ambush
against Mayor Tawan-tawan and his group. Prosecution witnesses' categorical,
positive and straightforward testimonies, coupled with their positive
identification of appellants as among the perpetrators of the crime, prevail over
appellants' defense of bare denial and alibi.
As to the crime committed. The trial court, as well as the appellate court,
convicted appellants of double murder with multiple frustrated murder and
double attempted murder. This Court believes, however, that appellants
should be convicted not of a complex crime but of separate crimes of
two (2) counts of murder and seven (7) counts of attempted murder as
the killing and wounding of the victims in this case were not the result of a
single act but of several acts of the appellants, thus, making Article 48 of the
Revised Penal Code inapplicable.
Appellants and their co-accused simultaneous act of riddling the vehicle

boarded by Mayor Tawan-tawan and his group with bullets discharged from
their firearms when the said vehicle passed by San Manuel, Lala, Lanao del
Norte, resulted in the death of two security escorts of Mayor Tawan-tawan, i.e.,
PO3 Dela Cruz and T/Sgt. Dacoco.
Article 248 of the Revised Penal Code provides:

ART. 248. Murder. — Any person who, not falling within the
provisions of article 246 shall kill another, shall be guilty of murder
and shall be punished by reclusion perpetua to death if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing means to weaken
the defense or of means or persons to insure or afford impunity.
xxx xxx xxx

5. With evident premeditation. [Emphasis supplied].
Treachery, which was alleged in the Information, attended the

commission of the crime. Time and again, this Court, in a plethora of cases,
has consistently held that there is treachery when the offender commits any of
the crimes against persons, employing means, methods or forms in the
execution thereof, which tend directly and specially to ensure its execution
without risk to himself arising from the defense that the offended party might
make. There are two (2) conditions that must concur for treachery to exist, to
wit: (a) the employment of means of execution gave the person attacked no
opportunity to defend himself or to retaliate; and (b) the means or method of
execution was deliberately and consciously adopted. "The essence of
treachery is that the attack is deliberate and without warning, done in
a swift and unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape." 74
The deadly successive shots of the appellants and their co-accused did
not allow the hapless victims, i.e., PO3 Dela Cruz and T/Sgt. Dacoco, any
opportunity to put up a decent defense. The attack was executed by appellants
and their-co-accused in such a vicious manner as to make the defense virtually
impossible. Under the circumstances, it is very apparent that appellants
had murder in their hearts when they waylaid their unwary victims. 75
Thus, as to the death of PO3 Dela Cruz and T/Sgt. Dacoco, appellants
should be held liable for murder.
The aggravating circumstance of abuse of superior strength, however,

cannot be appreciated as it is deemed absorbed in treachery. 76
Since the prosecution failed to prove the attending circumstance of

evident premeditation, the circumstance cannot likewise be appreciated. To
prove this aggravating circumstance, the prosecution must show the following:
(1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the offender clung to his determination; and (3) a
lapse of time, between the determination to commit the crime and the
execution thereof, sufficient to allow the offender to reflect upon the
consequences of his act. 77 None of these elements could be gathered from the
evidence on record.
As regards the victims Macasuba, Mosanip, PFC Tomanto, PFC Angni and
Juanito, although they were injured during the ambush and were all
hospitalized, except for Macasuba, it was not mentioned that their injuries and
wounds were mortal or fatal such that without the timely medical assistance
accorded to them, they would have died. 78 However, it does not necessarily
follow that the crimes committed against the aforenamed victims were simply
less serious physical injuries. Also, even though Mayor Tawan-tawan and Jun did
not sustain any injury during the ambush, it does not mean that no crime has
been committed against them. The latter were just fortunate enough not to
have sustained any injury on the occasion thereof. Since appellants were
motivated by the same intent to kill, thus, as to Macasuba, Mosanip,
PFC Tomanto, PFC Angni, Juanito, Mayor Tawan-tawan and Jun,
appellants should be held guilty of attempted murder. aHcACT
What brings this case out of the ordinary is the issue of applicability of
Article 48 of the Revised Penal Code. Its resolution would determine whether
the conviction of appellants must be for the separate crimes of two (2) counts
of murder and seven (7) counts of attempted murder or of the complex crime of
double murder with multiple frustrated murder and double attempted murder.
The concept of a complex crime is defined in Article 48 of the Revised

Penal Code which explicitly states that: 79
ART. 48. Penalty for complex crimes. — When a single act
constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its
maximum period. [Emphasis supplied].
In a complex crime, two or more crimes are actually committed, however,

in the eyes of the law and in the conscience of the offender they constitute only
one crime, thus, only one penalty is imposed. There are two kinds of complex
crime. The first is known as compound crime, or when a single act
constitutes two or more grave or less grave felonies while the other is known
as complex crime proper, or when an offense is a necessary means for
committing the other. The classic example of the first kind is when a single
bullet results in the death of two or more persons. A different rule governs
where separate and distinct acts result in a number killed. Deeply rooted is
the doctrine that when various victims expire from separate shots,
such acts constitute separate and distinct crimes. 80
Evidently, there is in this case no complex crime proper. And the

circumstances present in this case do not fit exactly the description of a
compound crime.
From its factual backdrop, it can easily be gleaned that the killing and
wounding of the victims were not the result of a single discharge of firearms by
the appellants and their co-accused. To note, appellants and their co-accused
opened fire and rained bullets on the vehicle boarded by Mayor Tawan-tawan
and his group. As a result, two security escorts died while five (5) of them were
wounded and injured. The victims sustained gunshot wounds in different parts
of their bodies. Therefrom, it cannot be gainsaid that more than one bullet had
hit the victims. Moreover, more than one gunman fired at the vehicle of the
victims. As held in People v. Valdez, 81 each act by each gunman pulling the
trigger of their respective firearms, aiming each particular moment at different
persons constitute distinct and individual acts which cannot give rise to a
complex crime. 82
Obviously, appellants and their co-accused performed not only a single

act but several individual and distinct acts in the commission of the crime.
Thus, Article 48 of the Revised Penal Code would not apply for it speaks only of
a "single act."
There are, however, several rulings which applied Article 48 of the
Revised Penal Code despite the fact that several acts were performed by
several accused in the commission of the crime resulting to the death and/or
injuries to their victims.
In People v. Lawas, 83 the members of the Home Guard, upon order of

their leader, Lawas, simultaneously and successively fired at several victims. As
a result, 50 persons died. It was there held that the killing was the result of
a single impulse as there was no intent on the part of the accused to
fire at each and every victim separately and distinctly from each
other. If the act or acts complained of resulted from a single criminal
impulse, it constitutes a single offense. However, "single criminal impulse"
was not the only consideration in applying Article 48 of the Revised Penal Code
in the said case because there was therein no evidence at all showing the
identity or number of persons killed by each accused. There was also no
conspiracy to perpetuate the killing, thus, collective criminal
responsibility could not be imputed upon the accused. Since it was
impossible to ascertain the number of persons killed by each of them,
this Court was "forced" to find all the accused guilty of only one
offense of multiple homicide instead of holding each of them
responsible for 50 deaths. 84
Significantly, there was no conspiracy in People v. Lawas. However, as

this Court held in People v. Remollino, 85 the Lawas doctrine is more of an
exception than the general rule.
There is conspiracy when two or more persons come to an agreement

concerning the commission of a felony and then decide to commit it. It arises
on the very instant the plotters agree, expressly or impliedly, to commit the
felony and forthwith decide to pursue it. Once established, each and every one
of the conspirators is made criminally liable for the crime actually committed by
any one of them. In the absence of any direct proof, the agreement to commit a
crime may be deduced from the mode and manner of the commission of the
offense or inferred from acts that point to a joint purpose and design, concerted
action, and community of interest. As such, it does not matter who
inflicted the mortal wound, as each of the actors incurs the same
criminal liability, because the act of one is the act of all. 86
The Information filed against appellants and their co-accused alleged

conspiracy, among others. Although the trial court did not directly state that a
conspiracy existed, such may be inferred from the concerted actions of the
appellants and their co-accused, to wit: (1) appellants and their co-accused
brought Samuel to a waiting shed located on the left side of the road where the
yellow pick-up service vehicle boarded by Mayor Tawan-tawan and his group
would pass; (2) appellants and their co-accused, thereafter, assembled
themselves on both sides of the road and surreptitiously waited for the
aforesaid yellow pick-up service vehicle; (3) the moment the yellow pick-up
service vehicle passed by the waiting shed, appellants and their co-accused
opened fire and rained bullets thereon resulting in the killing and wounding of
the victims; (4) immediately, appellants and their co-accused ran towards the
house of Samuel's aunt to get their bags and other stuff; (5) Samuel followed
appellants and their co-accused; and (6) appellants and their co-accused fled.
Conspiracy is very much evident from the afore-enumerated actuations of

the appellants and their co-accused. Clearly, their acts were coordinated. They
were synchronized in their approach to riddle with bullets the vehicle boarded
by Mayor Tawan-tawan and his group. They were motivated by a single criminal
impulse — to kill the victims. Indubitably, conspiracy is implied when the
accused persons had a common purpose and were united in its execution.
Spontaneous agreement or active cooperation by all perpetrators at the
moment of the commission of the crime is sufficient to create joint criminal
responsibility. 87
With the presence of conspiracy in the case at bench, appellants and their
co-accused had assumed joint criminal responsibility — the act of one is the act
of all. The ascertainment of who among them actually hit, killed and/or caused
injury to the victims already becomes immaterial. Collective responsibility
replaced individual responsibility. The Lawas doctrine, premised on the
impossibility of determining who killed whom, cannot, to repeat, be applied.
Interestingly, in People v. De los Santos, 88 People v. Abella, 89 People v.
Garcia 90 and People v. Pincalin, 91 this Court also applied Article 48 of the
Revised Penal Code even though several acts were performed by the accused
and conspiracy attended the commission of the crime. ICAcTa
I n People v. De los Santos, 92 a prison riot occurred for two consecutive

days inside the national penitentiary between the members of two gangs, i.e.,
Sigue-Sigue Sputnik and Oxo. As a result, nine (9) inmates were killed. Fourteen
(14) inmates were then convicted for the crime of multiple murder. The
existence of conspiracy in the commission of the crime was duly proven. There
was, however, no discussion why the accused were convicted of a complex
crime instead of separate crimes.
In a similar case of People v. Abella, 93 involving the massacre of certain

prisoners in the Davao Penal Colony and a reprise of a similar riot that occurred
in the national penitentiary on 16 February 1958 (subject of De los Santos), all
the accused were also convicted for the complex crime of multiple murder and
multiple frustrated murder. Conspiracy likewise attended the commission of the
crime. This Court applied the ruling in De los Santos and elucidated that the
ruling in the said case is predicated on the theory that "when for the attainment
of a single purpose which constitutes an offense, various acts are executed,
such acts must be considered only as one offense," a complex one. The
Lawas doctrine was equally applied although conspiracy had been duly proven.
This Court then stated that where a conspiracy animates several persons
with a single purpose "their individual acts in pursuance of that
purpose are looked upon as a single act — the act of execution —
giving rise to a complex offense. The felonious agreement produces a sole
and solidary liability: each confederate forms but a part of a single being." 94
People v. Garcia 95 and People v. Pincalin 96 have the same factual

background as De los Santos and Abella. They were the third and fourth cases,
respectively, of prison riots resulting to the killing of convicts by fellow convicts
while inside the national penitentiary. In Garcia, the accused were convicted for
the complex crime of multiple murder and double attempted murder, while in
Pincalin the accused were convicted for the complex crime of double murder
and frustrated murder. In both cases, this Court found conspiracy to have
attended the commission of the crime.
In applying Article 48 of the Revised Penal Code in Garcia and Pincalin,

this Court, gave the same justification as in Abella: that both cases were
covered by the rule that "when for the attainment of a single purpose,
which constitutes an offense various acts are executed, such acts
must be considered as only one offense, a complex one."
Correspondingly, "where a conspiracy animates several persons with a
single purpose, their individual acts done in pursuance of that purpose
are looked upon as a single act, the act of execution, giving rise to a
complex offense. Various acts committed under one criminal impulse may
constitute a single complex offense. 97
We however found no intention by this Court to establish as doctrine,
contrary to Lawas, that Article 48 is applicable even in cases where several acts
were performed by the accused and conspiracy attended the commission of
the crime. In Pincalin, this Court has already clarified that: [n]onetheless, this
Court further held that "in other cases where several killings on the same
occasion were perpetrated, but not involving prisoners, a different rule may be
applied, that is to say, the killings would be treated as separate offenses, as
opined by Mr. Justice Makasiar and as held in some decided cases." 98
De los Santos, Abella, Garcia and Pincalin, therefore, were exceptions to

the general rule stated in Article 48 which exceptions were drawn by the
peculiar circumstance of the cases.
It may be mentioned that in People v. Sanidad, 99 this Court, once again,
applied Article 48 of the Revised Penal Code although the circumstances of the
case were not the same as in Lawas, De los Santos, Abella, Garcia and Pincalin,
where this Court departed from the general rule.
In Sanidad, suddenly and without a warning, several accused unleashed a

volley of shots at the jeepney boarded by the victims. Miraculously, all
passengers, except Rolando Tugadi (Rolando), survived the ambush and
suffered only minor injuries. Conspiracy attended the commission of the crime.
Accused were convicted for the complex crime of murder and multiple
attempted murder. We there held that the case comes within the purview of
Article 48 of the Revised Penal Code. Citing L a w a s a n d Abella, it was
pronounced that although several independent acts were performed by the
accused, it was not possible to determine who among them actually killed
Rolando; and that there was no evidence that the accused intended to fire at
each and every one of the victims separately and distinctly from each other. On
the premise that the evidence clearly shows a single criminal impulse to kill
Marlon Tugadi's group as a whole, we repeated that where a conspiracy
animates several persons with a single purpose, their individual acts done in
pursuance of that purpose are looked upon as a single act, the act of execution,
giving rise to a single complex offense. 100
The reliance in Sanidad, on Lawas and Abella is incorrect.
The application of the Abella doctrine, has already been clarified in

Pincalin, thus: where several killings on the same occasion were perpetrated,
but not involving prisoners, a different rule may be applied, that is to say, the
killings would be treated as separate offenses. Since in Sanidad, the killings did
not involve prisoners or it was not a case of prisoners killing fellow prisoners.
As such, Abella would not apply.
To repeat, in Lawas, this Court was merely forced to apply Article 48 of

the Revised Penal Code because of the impossibility of ascertaining the number
of persons killed by each accused. Since conspiracy was not proven therein,
joint criminal responsibility could not be attributed to the accused. Each
accused could not be held liable for separate crimes because of lack of clear
evidence showing the number of persons actually killed by each of them.
Proven conspiracy could have overcome the difficulty. HIAESC
Our repeated ruling is that in conspiracy, the act of one is the act of all. It
is as though each one performed the act of each one of the conspirators. Each
one is criminally responsible for each one of the deaths and injuries of the
several victims. The severalty of the acts prevents the application of Article 48.
The applicability of Article 48 depends upon the singularity of the act, thus the
definitional phrase "a single act constitutes two or more grave or less grave
felonies." This is not an original reading of the law. In People v. Hon. Pineda, 101
the Court already recognized the "deeply rooted . . . doctrine that when various
victims expire from separate shots, such acts constitute separate and distinct
crimes." As we observed in People v. Tabaco, 102 clarifying the applicability of
Article 48 of the [Revised Penal Code], [this Court] further stated in [ Hon.]
Pineda that "to apply the first half of Article 48, . . . there must be singularity of
criminal act; singularity of criminal impulse is not written into the law." 103
With all the foregoing, this Court holds appellants liable for the
separate crimes of two (2) counts of murder and seven (7) counts of
attempted murder.
As to penalty. Under Article 248 of the Revised Penal Code, the penalty
imposed for the crime of murder is reclusion perpetua to death. There being
neither aggravating nor mitigating circumstance, the penalty to be imposed
upon appellants is reclusion perpetua for each count, pursuant to paragraph 2,
Article 63 104 of the Revised Penal Code. 105
Appellants are also guilty of seven (7) counts of attempted murder. The
penalty prescribed by law for murder, i.e., reclusion perpetua to death, should
be reduced by two degrees, conformably to Article 51 106 of the Revised Penal
Code. Under paragraph 2, Article 61, 107 in relation to Article 71 of the Revised
Penal Code, such a penalty is prision mayor. There being neither mitigating nor
aggravating circumstance, the same should be imposed in its medium period
pursuant to paragraph 1, Article 64 108 of the Revised Penal Code. 109 Applying
the Indeterminate Sentence Law in the case of attempted murder, the
maximum shall be taken from the medium period of prision mayor, which is 8
years and 1 day to 10 years, while the minimum shall be taken from the
penalty next lower in degree, i.e., prision correctional, in any of its periods, the
range of which is 6 months and 1 day to 6 years. This Court, therefore, imposed
upon the appellants the indeterminate penalty of 4 years and 2 months of
prision correccional, as minimum, to 10 years of prision mayor, as maximum,
for each count of attempted murder.
As to damages. When death occurs due to a crime, the following damages
may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2)
actual or compensatory damages; (3) moral damages; (4) exemplary damages;
and (5) temperate damages. 110
Article 2206 of the Civil Code provides that when death occurs as a result
of a crime, the heirs of the deceased are entitled to be indemnified for the
death of the victim without need of any evidence or proof thereof. Moral
damages like civil indemnity, is also mandatory upon the finding of the fact of
murder. 111 Therefore, the trial court and the appellate court properly awarded
civil indemnity in the amount of P50,000.00 and moral damages also in the
amount of P50,000.00 to the heirs of each deceased victims.
Article 2230 of the Civil Code states that exemplary damages may be
imposed when the crime was committed with one or more aggravating
circumstances. In this case, treachery may no longer be considered as an
aggravating circumstance since it was already taken as a qualifying
circumstance in the murder, and abuse of superior strength which would
otherwise warrant the award of exemplary damages was already absorbed in
the treachery. 112 However, in People v. Combate, 113 this Court still awards
exemplary damages despite the lack of any aggravating circumstance to deter
similar conduct and to serve as an example for public good. Thus, to deter
future similar transgressions, the Court finds that an award of P30,000.00 as
exemplary damages in favor of the heirs of each deceased victims is proper. 114
The said amount is in conformity with this Court's ruling in People v. Gutierrez.
115
Actual damages cannot be awarded for failure to present the receipts

covering the expenditures for the wake, coffin, burial and other expenses for
the death of the victims. In lieu thereof, temperate damages may be recovered
where it has been shown that the victim's family suffered some pecuniary loss
but the amount thereof cannot be proved with certainty as provided for under
Article 2224 of the Civil Code. 116 In this case, it cannot be denied that the heirs
of the deceased victims suffered pecuniary loss although the exact amount was
not proved with certainty. Thus, this Court similarly awards P25,000.00 as
temperate damages to the heirs of each deceased victims. 117
The surviving victims, Macasuba, Mosanip, PFC Tomanto, PFC Angni and
Juanito, are also entitled to moral, temperate and exemplary damages.
Ordinary human experience and common sense dictate that the wounds
inflicted upon the aforesaid victims would naturally cause physical suffering,
fright, serious anxiety, moral shock, and similar injuries. 118 It is only justifiable
to grant them moral damages in the amount of P40,000.00 each in conformity
with this Court's ruling in People v. Mokammad. 119
The award of P25,000.00 each as temperate damages to Macasuba,

Mosanip, PFC Tomanto, PFC Angni and Juanito is also in order. It is beyond
doubt that these victims were hospitalized and spent money for their
medication. As to Macasuba, although he was not confined in a hospital, it
cannot be gainsaid that he also spent for the treatment of the minor injuries he
sustained by reason of the ambush. However, they all failed to present any
receipt therefor. Nevertheless, it could not be denied that they suffered
pecuniary loss; thus, it is only prudent to award temperate damages in the
amount of P25,000.00 to each of them.
The award of exemplary damages is also in order. Thus, Macasuba,

Mosanip, PFC Tomanto, PFC Angni and Juanito are awarded exemplary damages
in the amount of P30,000.00 to conform to current jurisprudence. 120
This Court likewise affirms the award of P50,000.00 for and as attorney's
fees, as well as costs of the suit, in favor of Mayor Tawan-tawan.
WHEREFORE, premises considered, the Decision of the Court of Appeals

in CA-G.R. HC No. 00246 dated 18 June 2008 is hereby MODIFIED, as follows:
(1) appellants are found guilty beyond reasonable doubt of two (2) counts of
murder thereby imposing upon them the penalty of reclusion perpetua for each
count; (2) appellants are also found guilty beyond reasonable doubt of seven
(7) counts of attempted murder thereby imposing upon them the indeterminate
penalty of 4 years and 2 months of prision correccional, as minimum, to 10
years of prision mayor, as maximum, for each count; (3) other than the civil
indemnity and moral damages already awarded by the trial court and the
appellate court, appellants are further ordered to pay, jointly and severally,
exemplary and temperate damages in the amount of P30,000.00 and
P25,000.00, respectively, to the heirs of each deceased victims; and (4)
appellants are also directed to pay, jointly and severally, Macasuba, Mosanip,
PFC Tomanto, PFC Angni and Juanito the amount of P40,000.00 each as moral
damages, P25,000.00 each as temperate damages and P30,000.00 each as
exemplary damages.
Costs against appellants. SACTIH
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Brion, Peralta,

Bersamin, Del Castillo, Abad, Villarama, Jr., Mendoza, Reyes and Perlas-
Bernabe, JJ., concur.
Footnotes
1.Penned by Associate Justice Jane Aurora C. Lantion with Associate Justices
Rodrigo F. Lim, Jr. and Edgardo T. Lloren, concurring. Rollo , pp. 3-32.
2.Penned by Presiding Judge Jacob T. Malik. CA rollo, pp. 74-101.
3.Records, pp. 48-51.

4.Both in the Medical Certificate dated 3 January 2003 (see Records, p. 272) and in
the Transcript of Stenographic Notes dated 13 February 2003, Tomanto's first
name appears to be "Gador" and not "Gador."
5.Sometimes spelled as "Musanip" per his Affidavit-Complaint dated 11 June 2001
(see Records, p. 267) and "Mosanip" per Transcript of Stenographic Notes
dated 5 February 2003.
6.In the Transcript of Stenographic Notes dated 15 January 2003, Tandayao's first
name is "Macasuba" not "Macasubar."
7.Johnny Tawantawan was referred to as Mayor in the Amended Information

because at the time the ambush incident happened on 5 June 2001 he was
the incumbent Mayor of Salvador, Lanao del Norte, though at the time the
Amended Information was filed his term of office has already expired. Also,
his surname is spelled as "Tawan-tawan" in most of the documents attached
in this case.
8.Records, pp. 48-49.

9.Per Certificate of Arraignment dated 16 April 2002 and RTC Order dated 16 April
2002. Id. at 98 and 101-102.
10.Per Certificate of Arraignment dated 4 June 2002 and RTC Order dated 4 June
2002. Id. at 103 and 106.
11.Id.
12.Id. at 141-144.
13.Id. at 168-170.
14.Id. at 185-186.
15.Testimony of Macasuba Tandayao, TSN, 15 January 2003, pp. 6-7 and 14;
Testimony of Mosanip Ameril, TSN, 5 February 2003, pp. 10-11 and 20;
Testimony of PFC Gapor Tomanto, TSN, 13 February 2003, pp. 3-5 and 17-18;
TSN, Testimony of PFC Haron Angni, 30 April 2003, pp. 3-4; Testimony of
Juanito Ibunalo, TSN, 4 September 2003, pp. 9-10; Testimony of Mayor
Johnny Tawan-tawan, TSN, 27 November 2003, pp. 5 and 10.
16.Testimony of Macasuba Tandayao, id. at 10; Testimony of PFC Gapor Tomanto,

id. at 6; Testimony of Samuel Cutad, TSN, 17 March 2003, pp. 15 and 17.
17.Testimony of Macasuba Tandayao, id. at 7 and 9-11; Testimony of Mosanip
Ameril, TSN, 5 February 2003, pp. 11-12 and 17-18; Testimony of PFC Gapor
Tomanto, id. at 4-6; Testimony of Samuel Cutad, id. at 8-9 and 16; Testimony
of PFC Haron Angni, TSN, 30 April 2003, pp. 4-6; Testimony of Juanito Ibunalo,
TSN, 4 September 2003, pp. 14-16; Testimony of Mayor Johnny Tawan-tawan,
TSN, 27 November 2003, pp. 5-6.
18.Testimony of Samuel Cutad, id. at 9, 18-19 and 47.

19.Testimony of Macasuba Tandayao, TSN, 15 January 2003, pp. 8 and 16;
Testimony of Mosanip Ameril, TSN, 5 February 2003, p. 11; Testimony of PFC
Gapor Tomanto, TSN, 13 February 2003, p. 5; Testimony of PFC Haron Angni,
TSN, 30 April 2003, p. 6.
20.Testimony of Mosanip Ameril, id. at 12; Testimony of PFC Gapor Tomanto, TSN,
13 February 2003, p. 7; Testimony of PFC Haron Angni, TSN, 30 April 2003,
pp. 6-7; Testimony of Juanito Ibunalo, TSN, 4 September 2003, pp. 10 and 16.
21.Testimony of Samuel Cutad, TSN, 17 March 2003, p. 23; Testimony of SPO4
Raul Torres Medrano, id. at 4-7, 11-16 and 22.
22.Testimony of SPO1 Ferdinand Suaring, TSN, 14 August 2003, pp. 3-8.

23.Testimony of SPO2 Ivan Mutia Evasco, TSN, 14 August 2003, pp. 9-15.
24.Testimony of Samuel Cutad, TSN, 17 March 2003, pp. 31-44; Testimony of
Senior P/Insp. Renato Salazar, TSN, 26 March 2003, p. 8.
25.Testimony of Senior P/Insp. Salazar, id. at 3-5; Testimony of Wenceslao
Nelmida, TSN, 24 November 2004, p. 11; Testimony of Ricardo Ajok, TSN, 15
September 2004, p. 6.
26.Testimony of Wenceslao Nelmida, id. at 2-6 and 12; Testimony of Wenceslao
Nelmida, TSN, 4 January 2005, p. 5.
27.Testimony of Wenceslao Nelmida, TSN, 24 November 2004, p. 7.

28.Testimony of Wenceslao Nelmida, id. at 8-10.
29.Testimony of Wenceslao Nelmida, id. at 10-11; Testimony of Wenceslao
Nelmida, TSN, 4 January 2005, pp. 6-8.
30.Testimony of Wenceslao Nelmida, id. at 4; Testimony of Wenceslao Nelmida, id.

at 4 and 13; Court of Appeals Decision dated 18 June 2008. Rollo, pp. 25-26.
31.Testimony of Armida Nelmida, TSN, 26 May 2004, pp. 2-10; Testimony of Jeffrey
Paninsuro, TSN, 9 June 2004, pp. 2-14; Testimony of Luzviminda Apolinares,
TSN, 7 July 2004, pp. 2-8.
32.Testimony of Rudy Alegado, TSN, 4 August 2004, pp. 2-17.
33.Testimony of Sgt. Teofanis Garsuta, TSN, 11 August 2004, pp. 2-6, 11.
34.Testimony of M/Sgt. Pio Cudilla, TSN, 8 September 2004, pp. 2-10.

35.Testimony of Ricardo Ajok, TSN, 15 September 2004, pp. 2-4.
36.Testimony of Ricardo Ajok, id. at 4-6.
37.Testimony of Ricardo Ajok, TSN, 13 October 2004, pp. 3 and 5.
38.CA rollo, pp. 100-101.

39.Records, pp. 463 and 465.
40.CA rollo, pp. 15-16.
41.Id. at 110.
42.Rollo, pp. 28-31.
43.Id. at 31.
44.Id. at 39-40.
45.Id. at 48-50.
46.CA rollo, pp. 176-201.
47.Rollo, pp. 55-60 and 62-116.

48.CA rollo, pp. 10-72 and 108-122.
49.Rollo, p. 71.
50.Id. at 71-72.
51.People v. Barde, G.R. No. 183094, 22 September 2010, 631 SCRA 187, 208-209.
52.People v. Bondoy, G.R. No. 79089, 18 May 1993, 222 SCRA 216, 229.
53.Testimony of Macasuba Tandayao, TSN, 15 January 2003, p. 5; Testimony of
Ricardo Ajok, TSN, 15 September 2004, p. 2.

54.Testimony of Samuel Cutad, TSN, 17 March 2003, pp. 9 and 12.
55.People v. Ignas, 458 Phil. 965, 988 (2003).
56.People v. Astudillo, 449 Phil. 778, 790-791 (2003).
57.People v. Vasquez, G.R. No. 123939, 28 May 2004, 430 SCRA 52, 66.
58.Sworn Statement of Samuel Cutad. Records, p. 13.
59.Testimony of PFC Haron Angni, TSN, 30 April 2003, p. 5; Testimony of Samuel
Cutad, TSN, 17 March 2003, p. 4.
60.Testimony of SPO4 Raul Torres Medrano, TSN, 17 July 2003, pp. 4 and 17.
61.SPO4 Medrano did not reveal the identity of appellant Wenceslao so that if
warrant of arrest would be issued against him, he could be arrested at the
earliest possible time (Testimony of SPO4 Raul Torres Medrano, TSN, 17 July
2003, p. 11).
62.CA rollo, p. 94.
63.People v. Emoy, 395 Phil. 371, 384 (2000).
64.People v. Reynes, 423 Phil. 363, 382 (2001).
65.People v. Cañedo, 390 Phil. 379, 396 (2000).

66.People v. Veloso, 386 Phil. 815, 825 (2000).
67.People v. Lacatan, 356 Phil. 510, 521 (1998).
68.People v. Barde, supra note 51 at 211.

69.People v. Arofo, 430 Phil. 475, 484-485 (2002).
70.People v. Maceda, 405 Phil. 698, 711 (2001).
71.CA rollo, pp. 96-97.

72.People v. Hilet, 450 Phil. 481, 490-491 (2003).
73.Rollo, p. 31.
75.People v. Sanidad, 450 Phil. 449, 462-463 (2003).

76.People v. Cawaling, 355 Phil. 1, 42 (1998).
77.Id.
78.As evidenced by the Medical Certificates issued to Mosanip Ameril, PFC Gapor
Tomanto, PFC Haron Angni and Juanito Ibunalo. Records, pp. 268-273.
79.People v. Bermas, 369 Phil. 191, 237 (1999).
80.People v. Gaffud, Jr., G.R. No. 168050, 19 September 2008, 566 SCRA 76, 88;
People v. Orias, G.R. No. 186539, 29 June 2010, 622 SCRA 417, 435.
81.364 Phil. 259 (1999).

82.Id. at 278.
83.97 Phil. 975 (1955).
84.Campanilla, The Revised Penal Code (Book One) 2007, pp. 916-917 citing
People v. Mision, G.R. No. 63480, 26 February 1991, 194 SCRA 432, 444-445;
People v. Orias, supra note 80 at 435-436 citing People v. Hon. Pineda, 127
Phil. 150, 155-156 (1967).
85.109 Phil. 607 (1960).

86.People v. Orias, supra note 80 at 433.
87.Id. at 434.
88.122 Phil. 55 (1965).
89.181 Phil. 285 (1979).

90.185 Phil. 362 (1980).
91.190 Phil. 117 (1981).
92.Supra note 88.

93.Supra note 89.
94.Id. at 311-313. (Emphasis supplied).
95.Supra note 90.

96.Supra note 91.
97.People v. Garcia, supra note 90 at 369-370 (emphasis supplied); People v.
Pincalin, supra note 91 at 125. (Emphasis supplied)
98.People v. Pincalin, id. at 126. (Emphasis supplied)
99.Supra note 75.

100.Id. at 463-464.
101.Supra note 84 at 154.
102.336 Phil. 771 (1997).

103.Id. at 802-803 citing People v. Hon. Pineda, supra note 84 at 154-155.
104.ART. 63. Rules for the application of indivisible penalties. — In all cases in
which the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may
have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
xxx xxx xxx

2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied.
105.People v. Molina, G.R. No. 184173, 13 March 2009, 581 SCRA 519, 540.
106.ART. 51. Penalty to be imposed upon principals of attempted crime. —
The penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to
commit a felony.
107.ART. 61. Rules for graduating penalties. — For the purpose of graduating
the penalties which, according to the provisions of articles 50 to 57,
inclusive, of this Code, are to be imposed upon persons guilty as principals of
any frustrated or attempted felony, or as accomplices or accessories, the
following rules shall be observed:
xxx xxx xxx
2. When the penalty prescribed for the crime is composed of two indivisible
penalties, or of one or more divisible penalties to be imposed to their full
extent, the penalty next lower in degree shall be that immediately following
the lesser of the penalties prescribed in the respective graduated scale.
108.ART. 64. Rules for the application of penalties which contain three
periods. — In cases in which the penalties prescribed by law contain three
periods, whether it be single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, the courts shall observe for the application of
the penalty the following rules, according to whether there are or are no
mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances, they
shall impose the penalty prescribed by law in its medium period.
109.People v. Molina, supra note 105 at 541.

110.Id. at 542.
112.People v. Elijorde, 365 Phil. 640, 652-653 (1999).

113.G.R. No. 189301, 15 December 2010, 638 SCRA 797.
114.People v. Buban, G.R. No. 170471, 11 May 2007, 523 SCRA 118, 134.
115.G.R. No. 188602, 4 February 2010, 611 SCRA 633, 647.

116.People v. Barde, supra note 51 at 220-221.
117.People v. Montemayor, 452 Phil. 283, 306-307 (2003); People v. Molina, supra
note 105 at 542-543.
119.G.R. No. 180594, 19 August 2009, 596 SCRA 497, 513.


People v. Nelmida

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People v. Nelmida

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EN BANC

[G.R. No. 184500. September 11, 2012.]

PEOPLE OF THE PHILIPPINES, plaintiﬀ-appellee, vs.

Appellants and their co-accused Samuel Cutad @ "Sammy" (Samuel),

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2. [T/Sgt. Dacoco], [Philippine Army (PA)];

4. [PFC] Gador 4 Tomanto, PA;

5. Juanito Ibunalo; cHEATI

When arraigned, appellants Wenceslao and Ricardo, assisted by their

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Immediately after the ambush, appellants and their co-accused ran

The following day, or on 6 June 2001, Samuel informed SPO1 Suaring,

Appellant Wenceslao testiﬁed that on 5 June 2001, he was in their house

On the evening of 5 June 2001, appellant Wenceslao, together with his

Appellant Ricardo also conﬁrmed that on the early evening of 5 June

Nevertheless, appellant Ricardo divulged that there was never an

Unperturbed, appellants separately appealed the aforesaid trial court's

THE TRIAL COURT ERRED IN DECLARING THAT THE TESTIMONIES OF

Still undaunted, appellants elevated the aforesaid Decision of the Court of

In a Resolution 44 dated 19 November 2008, the Court required the

The trial court and the Court of Appeals convicted [appellant

Appellant Wenceslao contends that a thorough perusal of the testimonies

Appellant Wenceslao believes that the afore-enumerated inconsistencies

Appellant Wenceslao maintains that he was not at the ambush site on 5

It bears stressing that the ambush happened at around 3:00 p.m., in

The aforesaid assertions of Macasuba and PFC Angni were equally

Samuel was in an advantageous position to substantiate the identities of

Given the foregoing, it is beyond any cavil of doubt that prosecution

Now, as regards the inconsistencies pointed out by appellant Wenceslao

Inconsistencies between the sworn statement and direct testimony given

A meticulous perusal of Samuel's sworn statement reveals that he

As can be gleaned from the transcript of stenographic notes, when Mayor

As aptly observed by the trial court, thus: DTIaHE

. . . The Court is convinced without equivocation on the veracity

The testimonies of these witnesses were simple and candid. The

Appellant Wenceslao's allegations of ill-motive and malice on the part of

The records are bereft of any evidence to substantiate the claim of

To repeat, most of the prosecution witnesses are victims of the ambush.

Contrary to appellant Wenceslao's assertion, this Court is convince that

Appellants' respective explanations regarding their ﬂight fail to persuade

In light of the clear, positive and straightforward testimonies of

To corroborate appellant Wenceslao's testimony, the defense presented

FURTHER, the testimonies of the above-named witnesses for

The foregoing testimony of [Rudy] clearly imparts that the visit of

Withal, it was not physically impossible for the appellants to be at the

Appellants and their co-accused simultaneous act of riddling the vehicle

Article 248 of the Revised Penal Code provides:

xxx xxx xxx

Treachery, which was alleged in the Information, attended the

The aggravating circumstance of abuse of superior strength, however,

Since the prosecution failed to prove the attending circumstance of

The concept of a complex crime is deﬁned in Article 48 of the Revised

In a complex crime, two or more crimes are actually committed, however,

Evidently, there is in this case no complex crime proper. And the

Obviously, appellants and their co-accused performed not only a single

In People v. Lawas, 83 the members of the Home Guard, upon order of

Signiﬁcantly, there was no conspiracy in People v. Lawas. However, as

There is conspiracy when two or more persons come to an agreement

The Information ﬁled against appellants and their co-accused alleged

Conspiracy is very much evident from the afore-enumerated actuations of

I n People v. De los Santos, 92 a prison riot occurred for two consecutive

In a similar case of People v. Abella, 93 involving the massacre of certain