Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 184500               September 11, 2012

PEOPLE OF THE PIIILIPPINES, Plaintiff-Appellee,

vs.
WENCESLAO NELMIDA @ "ESLAO," and RICARDO AJOK @ "PORDOY," Accused-Appellants.

DECISION

PEREZ, J.:

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 Decision2 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 ₱ 50,000.00 each as moral
damages and ₱ 50,000.00 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 ₱
50,000.00 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:

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 Gador4 Tomanto, PA;

5. Juanito Ibunalo;

6. Mosanif5 Ameril;

7. Macasubar6 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 Gapor Tomanto, Juanito Ibunalo,
Mosanip 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 Gapor Tomanto, Juanito Ibunalo, Mosanip 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

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

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

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

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. 33

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 2001, 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

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 ₱ 50,000.00 as moral damages and another sum of ₱ 50,000.00
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 ₱ 50,000.00 as moral damages plus ₱ 50,000.00 for and by way of civil indemnity
ex delicto; and to pay, jointly and severally, Ex-Mayor Johnny Tawantawan the amount of ₱
50,000.00 for and as attorney’s fees, and the costs of suit.

The Armalite rifle with defaced serial number, the hand grenade and the Garand 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 appellantsshall 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;

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

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 Resolution44 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 Manifestation45 stating that it will no longer file a supplement to its Consolidated
Appellee’s Brief46 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;

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 Wenceslaobased on jurisprudence
on "alibi" 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

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:

x x x 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,
"mere 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:

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 Rudywill 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.

xxxx

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.

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. Garcia90 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.

In 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. Garcia95 and People v. Pincalin96 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: nonetheless,
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
Lawas and 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.

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 x x x
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,
x x x 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 63104 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
51106 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
64108 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 correccional, 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 ₱ 50,000.00 and moral damages also in the amount of ₱ 50,000.00 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 ₱ 30,000.00 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 ₱ 25,000.00 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 ₱ 40,000.00 each in
conformity with this Court’s ruling in People v. Mokammad. 119

The award of ₱ 25,000.00 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 ₱ 25,000.00 to each of them.1âwphi1

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 ₱ 30,000.00 to conform to
current jurisprudence.120

This Court likewise affirms the award of ₱ 50,000.00 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 ₱ 30,000.00 and ₱ 25,000.00, 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 ₱ 40,000.00 each as moral damages, ₱ 25,000.00
each as temperate damages and ₱ 30,000.00 each as exemplary damages.

Costs against appellants.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 199892               December 10, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARTURO PUNZALAN, JR., Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision 1 dated April 29, 2011 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 02816 denying the appeal of appellant Arturo Punzalan, Jr. of the Decision 2 dated March 21,
2007 of the Regional Trial Court (RTC) of fba, Zambales and affirming his conviction for the complex
crime of double murder with multiple attempted murder, with certain modifications on the civil liability
imposed on appellant.3

In August 2002, Seaman 1st Class (SN1) Arnulfo Andal, SN1 Antonio Duclayna, SN1 Evelio Bacosa,
SN1 Cesar Domingo, SN1 Danilo Cuya, and SN1 Erlinger Bundang were among the members of the
Philippine Navy sent for schooling at the Naval Education and Training Command (NETC) at San
Miguel, San Antonio, Zambales. On August 10, 2002, at around 5:00 or 6:00 in the afternoon, they
went to the "All-in-One" Canteen to have some drink. Later, at around 10:00 in the evening, they
transferred to a nearby videoke bar, "Aquarius," where they continued their drinking session. Shortly
thereafter, a heated argument between SN1 Bacosa and appellant ensued regarding a flickering light
bulb inside "Aquarius."4 When SN1 Bacosa suggested that the light be turned off ("Patayin ang ilaw"),
appellant who must have misunderstood and misinterpreted SN1 Bacosa’s statement belligerently
reacted asking, "Sinong papatayin?," thinking that SN1 Bacosa’s statement was directed at him. 5 SN1
Cuya tried to pacify SN1 Bacosa and appellant, while SN1 Bundang apologized to appellant in behalf
of SN1 Bacosa. However, appellant was still visibly angry, mumbling unintelligible words and
pounding his fist on the table.6

To avoid further trouble, the navy personnel decided to leave "Aquarius" and return to the NETC
camp. They walked in two’s, namely, SN1 Bundang and SN1 Domingo in the first group, followed by
the group of SN1 Bacosa and SN1 Cuya, and SN1 Andal and SN1 Duclayna in the last group, with
each group at one arm’s length distance from the other. 7 Along the way, they passed by the NETC
sentry gate which was being manned by SN1 Noel de Guzman and F1EN Alejandro Dimaala at that
time.8 SN1 Andal and SN1 Duclayna even stopped by to give the sentries some barbecue before
proceeding to follow their companions.9

Soon after the navy personnel passed by the sentry gate, SN1 De Guzman and F1EN Dimaala
flagged down a rushing and zigzagging maroon Nissan van with plate number DRW 706. The
sentries approached the van and recognized appellant, who was reeking of liquor, as the driver.
Appellant angrily uttered, "kasi chief, gago ang mga ‘yan!," while pointing toward the direction of the
navy personnel’s group. Even before he was given the go signal to proceed, appellant shifted gears
and sped away while uttering, "papatayin ko ang mga ‘yan!"10 While F1EN Dimaala was writing the
van’s plate number and details in the logbook, he suddenly heard a loud thud. Meanwhile, SN1 De
Guzman saw how the van sped away towards the camp and suddenly swerved to the right hitting the
group of the walking navy personnel prompting him to exclaim to F1EN Dimaala, "chief, binangga ang
tropa!" SN1 De Guzman then asked permission to go to the scene of the incident and check on the
navy personnel.11

When they were hit by the vehicle from behind, SN1 Cuya and SN1 Bacosa were thrown away
towards a grassy spot on the roadside. They momentarily lost consciousness. 12 When they came to,
they saw SN1 Duclayna lying motionless on the ground. 13 SN1 Cuya tried to resuscitate SN1
Duclayna, while SN1 Bacosa tried to chase the van. 14

SN1 Domingo was not hit by the van as he was in the first group and was pushed away from the path
of the speeding van. He was able to see the vehicle’s plate number. He also tried to chase the van
with SN1 Bacosa but they turned around when the vehicle made a U-turn as they thought that it
would come back for them. The vehicle, however, sped away again when other people started to
arrive at the scene of the incident.15

SN1 De Guzman found SN1 Cuya administering cardiopulmonary resuscitation (CPR) on SN1
Duclayna. He also saw the misshapen body of SN1 Andal lying some 50 meters away, apparently
dragged there when the speeding van hit SN1 Andal. SN1 Cuya instructed SN1 De Guzman to get an
ambulance but the car of the officer on duty at that time arrived and they boarded SN1 Duclayna’s
body to the vehicle to be brought to the hospital. 16 The other injured navy personnel, namely, SN1
Cuya, SN1 Bacosa, and SN1 Bundang, were brought to the infirmary for treatment. 17

Members of the local police soon arrived at the scene of the crime. Senior Police Officer (SPO) 1
Roberto Llorico, the police investigator, found the bloodied lifeless body of SN1 Andal lying on the
side of the road. SPO1 Llorico was informed that appellant was the suspect. Fortunately, one of the
responding officers was appellant’s neighbor and led SPO1 Llorico to appellant’s place where they
found appellant standing near his gate. Appellant appeared drunk and was reeking of alcohol. They
also saw the van parked inside the premises of appellant’s place. Its front bumper was damaged.
When they asked appellant why he ran over the navy personnel, he simply answered that he was
drunk. The police officers then invited appellant to the police station and brought the van with them. 18

A post mortem examination was conducted on the bodies of SN1 Andal and SN1 Duclayna by Dr.
Jericho Cordero of Camp Crame Medical Division. Dr. Cordero’s findings were that the injuries
sustained by SN1 Andal were fatal and caused by a hard blunt object that hit his body. The force of
the impact was such that the internal organs like the kidneys, mesentery and spleen were also fatally
injured. SN1 Andal died of cardiorespiratory arrest as a result of massive blunt traumatic injuries to
the head, thorax and abdomen. On the other hand, SN1 Duclayna sustained fatal injuries to the head
and liver. The head and neck injuries were such that a lot of blood vessels were ruptured and the
fractures were embedded in the brain. The laceration on the liver, also a mortal injury, was a blunt
traumatic injury.19

As regards the other navy personnel, SN1 Cuya suffered lacerated wounds on the head and different
parts of the body for which he was confined at the infirmary for about eighteen (18) days; 20 SN1
Bacosa sustained injuries on his knee and left hand and stayed in the infirmary for a day; 21 and SN1
Bundang suffered injuries to his right foot.22

Appellant was thereafter charged under an Information 23 which reads as follows:

That on or about the 10th day of August 2002, at about 11:00 o’clock in the evening, in Brgy. West
Dirita, Municipality of San Antonio, Province of Zambales, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with intent to kill, while driving and in control of a Nissan Van
with plate no. DRW 706, did there and then wil[l]fully, unlawfully and feloniously, bump, overrun,
smash and hit from behind with the use of the said van, the following persons: Antonio Duclayna,
Arnulfo Andal, Evelio Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, all members of
the Philippine [N]avy then assigned at the Naval Education and Training Command in San Antonio,
Zambales, thereby inflicting upon them the following physical injuries, to wit:

DANILO CUYA:

"Head Injury, grade 1 (Lacerated wound 5.0 cm, accipitoparietal area, (L) and lacerated wound,
Lower lip) 2 to VA"

EVELIO BACOSA:

"Multiple abrasion, wrist, volar surface (L), 2nd digit, abrasion, dorsun, (L) foot"

ERLINGER BUNDANG:

"Abrasion, medial maleolus, (R)"

ARNULFO ANDAL:

"Head Injury, Grade IV; (Depressed Fracture, Frontal: Lacerated wounds, 8.0 cm 3.0 cm. forehead,
and 5.0 cm parietal, (R);

Avulsion, medial aspect, upper arm to elbow, hip and enguinal area, (L);

Multiple abrasion, anterior and posterior chest, knees and (R) footsecondary to VA"

ANTONIO DUCLAYNA:

"Head Injury, Grade IV (Lacerated wound, Contusion, Hematoma (R) Parietal) secondary to VA"

which act of said accused directly caused the death of Arnulfo Andal and Antonio Duclayna, and in so
far as Danilo Cuya, Evelio Bacosa and Erlinger Bundang were concerned, said accused performed all
the acts of execution which would produce the crime of Murder as a consequence, but nevertheless,
did not produce said crime by reason of cause/s independent of his will, that is, by the timely and able
medical assistance rendered to said Danilo Cuya, Evelio Bacosa and Erlinger Bundang, which
prevented their death, and finally as to Cesar Domingo, said accused commenced the commission of
the acts constituting Murder directly by overt acts, but was not able to perform all the acts of
execution by reason of some cause other than accused’s own desistance, that is due to the timely
avoidance of the van driven by accused, and that the commission of the crimes was attended with
treachery, evident premeditation, cruelty and use of a motor vehicle, and by deliberately and
inhuman[ely] augmenting the suffering of the victim Arnulfo Andal, to the damage and prejudice of
Danilo Cuya, Evelio Bacosa, Erlinger Bundang and Cesar Domingo and the family and heirs of the
deceased Arnulfo Andang and Antonio Duclayna.

When arraigned, appellant maintained his innocence. 24

After pre-trial, trial ensued and the prosecution presented evidence to establish the facts stated
above.
In his defense, appellant testified that in the evening of August 10, 2002, he was drinking with Marvin
Acebeda and Romeo Eusantos at the "Aquarius" videoke bar. When he sang, the navy personnel
who were also inside the bar laughed at him as he was out of tune. He then stood up, paid his bills
and went out. After a while, Acebeda followed him and informed him that the navy personnel would
like to make peace with him. He went back inside the bar with Acebedo and approached the navy
personnel. When SN1 Bacosa appeared to reach out for appellant’s hand, appellant offered his hand
but SN1 Bacosa suddenly punched appellant’s right ear. To avoid further altercation, appellant left the
bar with Acebeda in tow. Appellant went home driving his van, with the spouses Romeo and Alicia
Eusantos who hitched a ride as passengers. When they passed by the sentry, somebody threw
stones at the van. When he alighted and inspected the vehicle, he saw that one of the headlights was
broken. Thereafter, he saw SN1 Bacosa and another man approaching him so he went back inside
the van but the duo boxed him repeatedly on his shoulder through the van’s open window. When he
saw the four other navy personnel coming towards him, he accelerated the van. During the whole
incident, Romeo was asleep as he was very drunk while Alicia was seated at the back of the van.
Upon reaching appellant’s home, the spouses alighted from the van and proceeded to their place.
After 20 minutes, police officers arrived at appellant’s house and told him that he bumped some
people. Appellant went with the police officers to the police station where he was investigated and
detained.25

Appellant’s only other witness was Alicia Eusantos. She testified that she and her husband hitched a
ride with appellant in the evening of August 10, 2002. She did not notice any unusual incident from
the time they rode the vehicle until they alighted from it. She learned about the incident on the
following day only when her statement was taken by the police. 26

After the parties have rested their respective cases, the RTC of Iba, Zambales found appellant guilty
and rendered a Decision dated March 21, 2007 with the following dispositive portion:

IN VIEW THEREOF, accused ARTURO PUNZALAN, JR. is found GUILTY beyond reasonable doubt
of the complex crime of Double Murder qualified by treachery with Attempted Murder attended by the
aggravating circumstance of use of motor vehicle and is hereby sentenced to suffer the penalty
of Reclusion Perpetua.

For the death of SN1 Antonio Duclayna and SN1 Arnulfo Andal, civil indemnity of ₱50,000.00 each is
awarded to their heirs. This is in addition to the amount of moral damages at ₱50,000.00 each for the
emotional and mental sufferings, plus ₱12,095.00 to the heirs of Duclayna representing actual
damages.

Accused is likewise ordered to pay SN1 Evelio Bacosa, SN1 Cesar Domingo, SN1 Danilo Cuya and
SN1 Erlinger Bundang ₱30,000.00 each or an aggregate amount of ₱120,000.00 as indemnity for
their attempted murder.27

Appellant filed an appeal with the Court of Appeals. In his brief, 28 appellant claimed that the trial court
erred in not finding that he may not be held criminally liable as he merely acted in avoidance of
greater evil or injury, a justifying circumstance under paragraph 4, Article 11 of the Revised Penal
Code. His act of increasing his vehicle’s speed was reasonable and justified as he was being
attacked by two men whose four companions were also approaching. He asserted that the attack
against him by the two navy personnel constituted actual and imminent danger to his life and limb.
The sight of the four approaching companions of his attackers "created in his mind a fear of greater
evil," prompting him to speed up his vehicle to avoid a greater evil or injury to himself. According to
appellant, if he accidentally hit the approaching navy men in the process, he could not be held
criminally liable therefor. The instinct of self-preservation would make one feel that his own safety is
of greater importance than that of another. 29
Appellant further faulted the trial court in appreciating the qualifying circumstance of treachery. He
asserted that nothing in the records would show that he consciously or deliberately adopted the
means of execution. More importantly, treachery was not properly alleged in the Information. 30

The Office of the Solicitor General (OSG), on behalf of the People of the Philippines, refuted the
arguments of appellant and defended the correctness of the RTC Decision. In its brief, 31 the OSG
claimed that the trial court rightly rejected appellant’s defense of avoidance of greater evil or injury.
Appellant’s version of the events did not conform to the physical evidence and it was not consistent
with the testimony of his own witness.

The OSG also argued that treachery was appropriately appreciated by the trial court. The Information
was written in a way that sufficiently described treachery where "the unsuspecting victims were
walking towards their barracks and totally unprepared for the unexpected attack from behind." 32

After considering the respective arguments of the parties, the Court of Appeals rendered the assailed
Decision dated April 29, 2011 with the following decretal portion:

WHEREFORE, the instant Appeal is Denied. The assailed Decision, dated March 21, 2007, of the
Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-3492-I,
is AFFIRMED with MODIFICATION, in that Accused-Appellant is hereby ordered to pay the heirs of
SN1 Antonio Duclayna and SN1 Arnulfo Andal civil indemnity of Php75,000, moral damages of
Php75,000, temperate damages of Php25,000 and exemplary damages of Php30,000. In addition to
the foregoing damages, Accused-Appellant is as well held liable to pay the heirs of SN1 Andal the
amount of Php2,172,270.21 to represent the amount of loss of earning capacity of SN1 Andal.

Accused-Appellant is likewise ordered to pay the surviving victims, SN1 Evelio Bacosa, SN1 Cesar
Domingo, SN1 Danilo Cuya and SN1 Erlinger Bundang, moral and exemplary damages in the
amount of Php40,000 and Php30,000, respectively. Award of temperate damages in the amount of
Php25,000 is proper in favor of SN1 Bacosa, SN1 Cuya and SN1 Bundang for the unsubstantiated
amount of pecuniary losses they suffered on account of the injuries they sustained. SN1 Cesar
Domingo, however, is not entitled to temperate damages. 33

Hence, this appeal.

Both appellant and the OSG adopted the respective briefs they filed in the Court of Appeals. 34

Is appellant guilty of the complex crime of murder with frustrated murder?

After a thorough review of the records of this case and the arguments of the parties, this Court affirms
appellant’s conviction.

Both the RTC and the Court of Appeals found the evidence presented and offered by the prosecution
credible and that the "prosecution witnesses had overwhelmingly proved beyond reasonable doubt
the culpability of the Accused-Appellant." 35 The Court of Appeals correctly observed that prosecution
witnesses F1EN Dimaala and SN1 De Guzman "positively identified accused-appellant as the one
who hit and ran over the victims."36 The Court of Appeals further found:

The testimonies of the prosecution witnesses, taken together, inevitably showed the criminal intent of
the Accused-Appellant to inflict harm on the victims. They testified on the incident in a clear, concise,
corroborative, and straightforward manner. Thus, their testimonies must prevail over the testimony
given by the Accused-Appellant which, on the other hand, was neither substantiated nor supported by
any evidence.
The prosecution witnesses testified that they actually saw how Accused-Appellant ran over the
victims who were walking inside the NETC camp on the night of August 10, 2002. Accused-Appellant,
who was driving his van from behind, suddenly bumped and ran over the victims. The victims were
thrown away, resulting in the instantaneous death of SN1 Duclayna and SN1 Andal and causing
injuries to the other victims.

xxxx

Accused-Appellant’s version of the crime, upon which the justifying circumstance of avoidance of
greater evil or injury is invoked, is baseless. This is because his assertions anent the existence of the
evil which he sought to be avoided [did] not actually exist as [they] neither conformed to the evidence
at hand nor [were] [they] consistent with the testimony of his own witness, Alicia Eusantos x x x.

xxxx

Accused-Appellant’s own witness, Alicia Eusantos, not only failed to corroborate his claim but also
belied Accused-Appellant’s claim that he was attacked by the Philippine Navy personnel. Alicia
Eusantos categorically stated that she did not witness any unusual incident in the evening of August
10, 2002 while on board the Nissan Urvan Van driven by Accused-Appellant while they were cruising
the access road going to the NETC compound. Accused-Appellant’s claim, therefore, is more
imaginary than real. The justifying circumstance of Avoidance of Greater Evil or Injury cannot be
invoked by the Accused-Appellant as the alleged evil sought to be avoided does not actually exist. 37

Moreover, whether or not petitioner acted in avoidance of greater evil or injury is a question of fact. It
is an issue which concerns doubt or difference arising as to the truth or the falsehood of alleged
facts.38 In this connection, this Court declared in Martinez v. Court of Appeals39 :

[T]he well-entrenched rule is that findings of fact of the trial court in the ascertainment of the credibility
of witnesses and the probative weight of the evidence on record affirmed, on appeal, by the CA are
accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable
reason to deviate from the said findings.

This Court has combed through the records of this case and found no reason to deviate from the
findings of the trial and appellate courts. There is nothing that would indicate that the RTC and the
Court of Appeals "ignored, misconstrued, misunderstood or misinterpreted cogent facts and
circumstances of substance, which, if considered, will alter the outcome of the case." 40

Under paragraph 4, Article 11 of the Revised Penal Code, to successfully invoke avoidance of greater
evil as a justifying circumstance, 41 the following requisites should be complied with:

(1) the evil sought to be avoided actually exists;

(2) the injury feared be greater than that done to avoid it; and

(3) there be no other practical and less harmful means of preventing it.

The RTC and the Court of Appeals rejected appellant’s self-serving and uncorroborated claim of
avoidance of greater evil. The trial and appellate courts noted that even appellant’s own witness who
was in the van with appellant at the time of the incident contradicted appellant’s claim. Thus, the RTC
and the Court of Appeals concluded that the evil appellant claimed to avoid did not actually exist. This
Court agrees.
Moreover, appellant failed to satisfy the third requisite that there be no other practical and less
harmful means of preventing it. Under paragraph 4, Article 11 of the Revised Penal Code, infliction of
damage or injury to another so that a greater evil or injury may not befall one’s self may be justified
only if it is taken as a last resort and with the least possible prejudice to another. If there is another
way to avoid the injury without causing damage or injury to another or, if there is no such other way
but the damage to another may be minimized while avoiding an evil or injury to one’s self, then such
course should be taken.

In this case, the road where the incident happened was wide, some 6 to 7 meters in width, 42 and the
place was well-lighted.43 Both sides of the road were unobstructed by trees, plants or
structures.44 Appellant was a driver by occupation.45 However, appellant himself testified that when he
shifted to the second gear and immediately stepped on the accelerator upon seeing the four navy
personnel approaching from in front of him, 46 he did not make any attempt to avoid hitting the
approaching navy personnel even though he had enough space to do so. He simply sped away
straight ahead, meeting the approaching navy personnel head on, totally unmindful if he might run
them over.47 He therefore miserably failed to resort to other practical and less harmful available
means of preventing the evil or injury he claimed to be avoiding.

The appreciation of treachery as a circumstance that qualified the killing of SN1 Duclayna and SN1
Andal and the attempted killing of the others is also correct. This Court agrees with the following
disquisition of the Court of Appeals:

We find that the RTC correctly appreciated the existence of treachery in the commission of the
offense. Treachery qualifies the killing to murder. 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 especially to ensure its execution, without risk to himself arising from any defense
which the offended party might make. The elements of treachery are: (1) the employment of means of
execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the
means of execution was deliberate or consciously adopted.

Accused-Appellant’s act of running over the victims with his van from behind while the victims were
walking inside the NETC camp was a clear act of treachery. The victims were not given any warning
at all regarding the assault of the Accused-Appellant. The victims were surprised and were not able to
prepare and repel the treacherous assault of Accused-Appellant. The prosecution witnesses testified
that after they had flagged down Accused-Appellant’s van, the latter accelerated and upon reaching
the middle of the road, it suddenly swerved to the right hitting the victims who were startled by the
attack.

xxxx

A close review of the information would disclose that the qualifying circumstance of treachery was
stated in ordinary and concise language and the said act was described in terms sufficient to enable a
layman to know what offense is intended to be charged, and enables the court to pronounce proper
judgment.

We quote pertinent portion of the information, which reads:

"x x x the said accused, with intent to kill, while driving and in control of a Nissan Van with plate No.
DRW 706, did then and there willfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, x x x."
Applying the Supreme Court’s discussion in People vs. Batin, citing the case of Balitaan v. Court of
First Instance of Batangas, to wit:

"The main purpose of requiring the various elements of a crime to be set forth in an Information is to
enable the accused to suitably prepare his defense. He is presumed to have no independent
knowledge of the facts that constitute the offense. x x x.

It is often difficult to say what is a matter of evidence, as distinguished from facts necessary to be
stated in order to render the information sufficiently certain to identify the offense. As a general rule,
matters of evidence, as distinguished from facts essential to the description of the offense, need not
be averred. For instance, it is not necessary to show on the face of an information for forgery in what
manner a person is to be defrauded, as that is a matter of evidence at the trial.

We hold that the allegation of treachery in the Information is sufficient. Jurisprudence is

replete with cases wherein we found the allegation of treachery sufficient without any further
explanation as to the circumstances surrounding it."

Clearly, We find that the information is sufficient as it not merely indicated the term treachery therein
but also described the act itself constituting treachery. Such statement, without a doubt, provided the
supporting facts that constituted the offense, sufficiently alleging the qualifying circumstance of
treachery when it pointed out the statement, "smash and hit from behind." 48 (Emphases supplied;
citations omitted.)

The essence of treachery is the sudden and unexpected attack by the aggressor on unsuspecting
victims, depriving the latter of any real chance to defend themselves, thereby ensuring its commission
without risk to the aggressor, and without the slightest provocation on the part of the victims. 49 The six
navy personnel were walking by the roadside, on their way back to their camp. They felt secure as
they have just passed a sentry and were nearing their barracks. They were totally unaware of the
threat to their life as their backs were turned against the direction where appellant’s speeding van
came. They were therefore defenseless and posed no threat to appellant when appellant mowed
them down with his van, killing two of them, injuring three others and one narrowly escaping injury or
death. Beyond reasonable doubt, there was treachery in appellant’s act. This was sufficiently alleged
in the Information which not only expressly mentioned treachery as one of the circumstances
attending the crime but also described it in understandable language:

[T]he said accused, with intent to kill, while driving and in control of a Nissan Van with plate no. DRW
706, did then and there willfully, unlawfully and feloniously, bump, overrun, smash and hit from
behind with the use of said van, the following persons: Antonio Duclayna, Arnulfo Andal, Evelio
Bacosa, Danilo Cuya, Erlinger Bundang and Cesar Domingo, x x x. 50 (Emphasis supplied.)

Use of motor vehicle was also properly considered as an aggravating circumstance. Appellant
deliberately used the van he was driving to pursue the victims. Upon catching up with them, appellant
ran over them and mowed them down with the van, resulting to the death of SN1 Andal and SN1
Duclayna and injuries to the others. 51 Thereafter, he continued to speed away from the scene of the
incident. Without doubt, appellant used the van both as a means to commit a crime and to flee the
scene of the crime after he committed the felonious act.

The felony committed by appellant as correctly found by the RTC and the Court of Appeals, double
murder with multiple attempted murder, is a complex crime contemplated under Article 48 of the
Revised Penal Code:
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.

Appellant was animated by a single purpose, to kill the navy personnel, and committed a single act of
stepping on the accelerator, swerving to the right side of the road ramming through the navy
personnel, causing the death of SN1 Andal and SN1 Duclayna and, at the same time, constituting an
attempt to kill SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo. 52 The crimes of murder and
attempted murder are both grave felonies53 as the law attaches an afflictive penalty to capital
punishment (reclusion perpetua to death) for murder while attempted murder is punished by prision
mayor,54 an afflictive penalty.55

Under Article 248 of the Revised Penal Code, as amended, murder is punishable by reclusion
perpetua to death. Article 6356 of the same Code provides that if the penalty prescribed is composed
of two indivisible penalties, as in the instant case, and there is an aggravating circumstance the
higher penalty should be imposed. Since use of vehicle can be considered as an ordinary aggravating
circumstance, treachery, by itself, being sufficient to qualify the killing, the proper imposable penalty –
the higher sanction – is death. However, in view of the enactment of Republic Act No.
9346,57 prohibiting the imposition of the death penalty, the penalty for the killing of each of the two
victims is reduced to reclusion perpetua without eligibility for parole.58 The penalty of reclusion
perpetua thus imposed by the Court of Appeals on appellant for the complex crime that he committed
is correct.

The awards of ₱75,000.00 civil indemnity and ₱75,000.00 moral damages to the respective heirs of
SN1 Andal and SN1 Duclayna are also proper. These awards, civil indemnity and moral damages,
are mandatory without need of allegation and proof other than the death of the victim, owing to the
fact of the commission of murder.59

Moreover, in view of the presence of aggravating circumstances, namely the qualifying circumstance
of treachery and the generic aggravating circumstance of use of motor vehicle, the award of
₱30,000.00 exemplary damages to the respective heirs of the deceased victims is also correct. 60 In
addition, it cannot be denied that the heirs of the deceased victims suffered pecuniary loss although
the exact amount was not proved with certainty.1âwphi1 Thus, the award of ₱25,000.00 temperate
damages to the heirs of each deceased victim is appropriate. 61

As it was proven that, at the time of his death, SN1 Andal had a monthly income of ₱13,245.55, 62 the
grant of ₱2,172,270.21 for loss of earning capacity is in order. 63

As to the surviving victims, SN1 Cuya, SN1 Bacosa, SN1 Bundang and SN1 Domingo, the Court of
Appeals correctly granted each of them ₱40,000 moral damages for the physical suffering, fright,
serious anxiety, moral shock, and similar injuries caused to them by the incident. 64 And as the crime
was attended by aggravating circumstances, each of them was properly given ₱30,000 exemplary
damages.65

Finally, those who suffered injuries, namely, SN1 Cuya, SN1 Bacosa and SN1 Bundang, were
correctly awarded ₱25,000 temperate damages each for the pecuniary loss they suffered for
hospitalization and/or medication, although no receipts were shown to support said loss. 66

WHEREFORE, the appeal is hereby DENIED. The Decision dated April 29, 2011 of the Court of
Appeals in CA-G.R. CR.-H.C. No. 02816 affirming the conviction of appellant Arturo Punzalan, Jr. for
the complex crime of double murder with multiple attempted murder, imposing upon him the penalty
of reclusion perpetua and ordering him to pay the following:
 (a) To the respective heirs of SN1 Arnulfo Andal and SN1 Antonio Duclayna:

(i) ₱75,000.00 civil indemnity;

(ii) ₱75,000.00 moral damages;

(iii) ₱30,000.00 exemplary damages; and

(iv) ₱25,000.00 temperate damages;

(b) To the heirs of SN1 Andal, ₱2,172,270.21 for loss of earning capacity;

(c) To each of the surviving victims, SN1 Danilo Cuya, SN1 Evelio Bacosa, SN1 Erlinger
Bundang and SN1 Cesar Domingo:

(i) ₱40,000.00 moral damages; and

(ii) ₱30,000.00 exemplary damages; and

(d) To SN1 Cuya, SN1 Bacosa and SN1 Bundang, ₱25,000.00 temperate damages each
is AFFIRMED.

SO ORDERED.
 FIRST DIVISION

G.R. No. 194629, April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff–Appellee, v. DANTE DULAY, Accused–Appellant.

DECISION

REYES, J.:

For review is the Decision1 dated May 26, 2010 of the Court of Appeals (CA) in CA–G.R. CR–H.C.
No. 03584 which affirmed the Decision2 dated September 30, 2008 of the Regional Trial Court (RTC)
of Cabarroguis, Quirino, Branch 31, finding accused–appellant Dante Dulay (Dulay) guilty beyond
reasonable doubt of the complex crime of Murder and Frustrated Murder.

The following are the antecedent facts:chanRoblesvirtualLawlibrary

[Dulay] entered a plea of “not guilty” to the indictment which reads as follows:
"That on or about 6:30 in the evening of December 30, 2002 in Ligaya, Aglipay, Quirino, Philippines
and within the jurisdiction of this Honorable Court, the above–named accused by using a grenade
and by means of explosion, did then and there willfully and unlawfully and after removing the safety
pin of the said grenade, throw it at the house of Orlando Legaspi Sr., producing a land explosion and
as a consequence[,] the shrapnels hit ORLANDO LEGASPI SR. to [sic] the different parts of his body
that caused his death.

That on the same occasion, said accused armed with the same grenade and by means of explosion
did then and there willfully and unlawfully threw the grenade after removing its safety pin at the house
of ORLANDO LEGASPI SR. causing loud explosion as the shrapnel of the grenade hit ORLANDO
LEGASPI, JR. Thus accused performed all the acts of execution that would produce the crime of
murder as a consequence but did not produce it because of timely medical assistance rendered unto
ORLANDO LEGASPI JR. which prevented his death.

Acts contrary to law.”

The records reveal that in the evening of 30 December 2002 at around 6:30, Orlando Jr. (or simply
“Junior” ), a child about six years of age, was outside the kitchen of their house located in Ligaya,
Aglipay, Province of Quirino. His father, the late Orlando Sr., was also somewhere in the yard and
was asking Junior to hand him a chair. They had just finished dinner and were intending to watch the
television later.

Wondering why the dog was barking loudly, Mrs. Engracia Legaspi peeped from inside the kitchen
and noticed Dulay’s dog in the vicinity. She surmised that its master, [Dulay], was also present.
Junior’s elder sister, Melanie went out to look for the dog–leash to transfer the mutt to another area.

Using the flashlight he was constantly prohibited from playing with, Junior directed a beam towards
the grassy area where he discovered [Dulay] whom he recognized because of the characteristic
“mumps” below his left ear. Melanie also saw [Dulay] as he was staring at Orlando Sr. Their uncle
Dante suddenly threw something that resembled a ball, towards the cemented part of the yard. It
turned out to be a grenade, and it landed about seven meters from where Junior and his father were.
[Dulay] then went away on his bicycle towards the direction of his house, x x x.
When the grenade exploded, Junior was hurt in his pelvic area, while his father was fatally hit by
shrapnel, causing his death. Melanie rushed to the succor of her bloodied father, barely noticing
Junior who was likewise lying on the ground, but was still conscious and crying. Engracia hollered for
help from the neighborhood. Because of the firecrackers in that New Year’s Eve, people did not
readily render assistance, until they realized the intensity of the explosion that shook the ground.

Police operatives who arrived at the crime scene instructed the assisting neighbors to locate the
grenade fragments. In the early morning of 31 December 2002, three of the male neighbors
continued the search and found a grenade safety lever, along with a torn–out pair of rubber shoes in
the road near Dulay’s house. Examining the rubber shoes which turned out to belong to the latter, the
three men further recovered a grenade ring pin from inside the left shoe.

Orlando Sr. was rushed to the hospital but he expired shortly thereafter. His Certificate of
Death states that he died of cardio–respiratory arrest due to hemorrhagic shock due to “transection of
the right kidney, perforation of the duodenum, pancreas and stomach due to grenade blast injury.”

[Dulay’s] alibi consists of his purported trip from the house of his uncle Onofre Dulay in Gamis to his
friend, Joel Ritualo in another barangay, Dibul. According to his story, he was Onofre’s caretaker
while the latter was in Manila. Since he had no electricity in Gamis, he went on a bike to Ritualo to
have his Motolite battery recharged. While waiting for the recharging to finish, he went on a drinking
spree with Ritualo and another man, Pepito Maluret, until around 7:30 p.m. when he bid the two
liquor–companions goodbye. With the energized battery in tow, he left, but Ritualo insisted on
accompanying him to the road as he was already drunk. Not long afterwards, Ritualo hailed the
passenger jeepney that passed them which was driven by his uncle, witness Robert Daileg.

In convicting Dulay, the trial court noted that Junior had no ill–motive to testify falsely against his
uncle. Against the self–serving alibi of the appellant, the prosecution witnesses positively identified
the perpetrator because they were familiar with him, the court added. 3 (Citations omitted)

The RTC found Dulay guilty beyond reasonable doubt of the complex crime of Murder with Attempted
Murder. The dispositive portion of the RTC ruling is as follows:chanRoblesvirtualLawlibrary

WHEREFORE, in view of the foregoing consideration, the Court finds accused Dante
Dulay GUILTY beyond reasonable doubt with the complex crime of Murder with Attempted Murder
and is hereby sentenced to Reclusion Perpctua.

1. He is further ordered to pay the heirs Orlando Legaspi Sr., the sum of [P]50,000[.00] as civil
indemnity, and moral damages in the amount of [P]50,000.00[.]

2. Also he must pay [P]30,000[.00] pesos as moral damages to Orlando Legaspi, Jr.

3. [P]115,956[.00] as actual expenses/damage [s] for the hospitalization of the two victims,
namely: Orlando Legaspi, Sr., and Orlando Legaspi, Jr.

SO ORDERED[.]4

On appeal, the CA affirmed the conviction with modification.  The fallo of the judgment
reads:chanRoblesvirtualLawlibrary
WHEREFORE, in view of the foregoing, the challenged Decision is AFFIRMED with MODIFICATION.
Accordingly, the accused–appellant is convicted of the complex crime of murder and frustrated
murder and is sentenced to suffer:chanRoblesvirtualLawlibrary

1) the penalty of reclusion perpetua without eligibility for parole;

2) the award of actual damages in the amount of [P] 115,956.00 for the hospital expenses of the two
victims;
3) the award of civil indemnity for the death of Orlando Sr., in the increased amount of [P]75,000.00;
4) the award of moral damages in the respective amounts of |P]75,000.00 and [P]55,000.00 for
Orlando Senior and Junior; [and]
5) the award of exemplary damages in the amount of [P]30,000.00 each for both Orlando Senior and
Junior.

IT IS SO ORDERED.5

The CA held that pursuant to Republic Act No. 9346, the penalty of death which would have been
imposable is properly reduced to reclusion perpetua but the RTC erred in stating in the body of the
decision that Dulay was guilty as well of “frustrated murder” as charged in the Information with
respect to the bomb–injured Orlando Legaspi, Jr. (Junior), and yet convicted him in the dispositive
part only of “attempted murder.” The prosecution was able to establish that all acts of execution, not
merely preparatory acts, were performed to produce the felony as a consequence, but Junior
nevertheless survived for reasons independent of the will of the perpetrator; that is, the timely medical
assistance to him.6

The records of this case were then elevated to this Court pursuant to CA Resolution 7 dated August 5,
2010, which gave due course to Dulay’s notice of appeal.

Our Ruling

"It is settled that this Court will not interfere with the trial court’s assessment of the witnesses'
credibility, absent any indication or showing that the trial court overlooked some material facts or
gravely abused its discretion, especially where, as in this case, such assessment is affirmed by the
CA. In the present case, we see no compelling reason to disturb the factual findings of the courts a
quo”

Dulay averred that he was in Dibul, Saguday, Quirino, when the crime occurred. While defense
witness Robert Daileg (Daileg) testified that Dulay rode as a passenger in the former’s jeepney from
Dibul to Gamis one night, Daileg cannot even remember the exact date when this occurred.
Consequently, Daileg cannot adequately support Dulay’s version of facts that the latter was
somewhere else that fateful night.

For the defense of alibi to prosper, the appellant must prove that he was somewhere else when the
offense was committed and that he was so far away that it was not possible for him to have been
physically present at the place of the crime or at its immediate vicinity at the time of its
commission.9 Since Dulay was not able to prove that he was in Dibul when the crime was committed,
both the CA and the RTC were correct in disregarding his alibi. Junior and Melanie, Junior’s elder
sister, on the other hand, have both positively identified Dulay as the assailant. On this score, this
Court has held in a number of cases that denial and alibi are weak defenses, which cannot prevail
against positive identification.10

As regards the crime committed against Junior, the Court is in accord with the CA’s conclusion that
Dulay is guilty of frustrated murder. The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony; and (2) that the felony is not
produced due to causes independent of the perpetrator’s will.”

Applying the foregoing to the case at bar, Dulay has performed all acts of execution in throwing the
grenade which could have caused Junior’s death as a consequence, but because of immediate
medical assistance, a cause independent of Dulay’s will, Junior survived. 12

The Court thus affirms the CA decision, with modification on the awarded indemnities.

First, the Court retains the award by the CA of P75,000.00 as moral damages, exemplary damages at
P30,000.00 and civil indemnity at P75,000.00 to the heirs of Orlando Legaspi, Sr. (Orlando, Sr.) in
conformity with our ruling in People v. Barde.13 Next, the Court awards moral and exemplary
damages to Junior in the amounts of P50,000.00 and P20,000.00, respectively. Furthermore, the
Court upholds the CA’s award of P115,956.00 as actual damages for the hospital expenses of both
Orlando Sr. and Junior. Lastly, the Court imposes an interest of six percent (6%) per annum on the
award of civil indemnity and all damages from the date of finality of judgment until fully paid consistent
with prevailing jurisprudence.14

WHEREFORE, the appeal is DENIED. The Decision dated May 26, 2010 of the Court of Appeals in
CA–G.R. CR–H.C. No. 03584 is AFFIRMED WITH MODIFICATION in that accused–appellant Dante
Dulay is ordered: (a) to pay the heirs of Orlando Legaspi, Sr. the amount of P75,000.00 as civil
indemnity; P75,000.00 as moral damages and P30,000.00 as exemplary damages; (b) to pay
Orlando Legaspi, Jr., the amount ofP50,000.00 as moral damages and P20,000.00 as exemplary
damages; and (c) to pay P115,956.00 as actual damages for the hospital expenses of both Orlando
Legaspi, Sr. and Orlando Legaspi, Jr. An interest of six percent (6%) per annum is imposed on the
award of civil indemnity and all damages from the date of finality of this judgment until fully paid.

SO ORDERED.
 EN BANC

G.R. No. 109266 December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner,

vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE OF
THE PHILIPPINES, respondents.

Amado M. Santiago, Jr. for petitioner.

The Solicitor General for the People of the Philippines.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the
Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis
Garchitorena of the Sandiganbayan, disqualified from acting in said criminal case; and (b) the
Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp.
2-35 and pp. 36-94).

On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with
violation of Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, allegedly committed by her favoring "unqualified" aliens with the benefits of the
Alien Legalization Program (Rollo, p. 36).

On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R. No.
99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from
proceeding with Criminal Case No. 16698 on the ground that said case was intended solely to harass
her as she was then a presidential candidate. She alleged that this was in violation of Section 10,
Article IX-C of the Constitution which provides that "(b)ona fide candidates for any public office shall
be free from any form of harassment and discrimination." The petition was dismissed on January 13,
1992.

On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which
motion was set for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).

On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is
a member, set the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)

On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a
pending motion for inhibition, and that petitioner intended to file a motion for a bill of particulars (Rollo,
pp. 43-44).
On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the arraignment
(Rollo, p. 45).

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The motion
stated that while the information alleged that petitioner had approved the application or legalization of
"aliens" and gave them indirect benefits and advantages it lacked a list of the favored aliens.
According to petitioner, unless she was furnished with the names and identities of the aliens, she
could not properly plead and prepare for trial.

On November 12, 1992 and upon motion of petitioner in G.R.

No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan
(First Division) to reset the arraignment to a later date and to dispose of the two incidents pending
before it (Re: disqualification of Presiding Justice Garchitorena and the motion for the bill of
particulars).

At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated
categorically that they would file only one amended information against petitioner.

However, on December 8, 1992, the prosecution filed a motion to

admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).

On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March 11,
1993, denying the motion for his disqualification (Rollo, pp. 151-164).

On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32
Amended Informations and ordering petitioner to post the corresponding bail bonds within ten days
from notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32 Amended Informations was set
for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).

Hence, the filing of the instant petition.

Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March
25, 1993, ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case
until the question of his disqualification is finally resolved by this Court and from enforcing the
resolution dated March 11, 1993, ordering petitioner to post bail bonds for the 32 Amended
Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).

Re: Disqualification of the Sandiganbayan Presiding Justice

The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is
letter in the July 29, 1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of
the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his public statements . . . when he sits in judgment on
the merits of the case . . ." (Rollo, pp. 16-17).

The letter in question was written in response to an item in Teodoro Benigno's column in the July 22,
1992 issue of the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that said order reflected a "perverse morality" of the
Sandiganbayan and the lack of "legal morality" of its Presiding Justice, thus:
 I cannot, for example accept the legal morality of Sandiganbayan Justice Francis
Garchitorena who would stop Miriam Defensor Santiago from going abroad for a
Harvard scholarship because of graft charges against her. Some of the most perfidious
Filipinos I know have come and gone, left and returned to these shores without Mr.
Garchitorena kicking any kind of rumpus. Compared to the peccadilloes of this country's
outstanding felons, what Miriam is accused of is kindergarten stuff. The Sandiganbayan
Supremo got a lot of headlines for stopping Miriam but I contend this is the kind of
perverse morality we can do without (Rollo, p. 156).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads
as follows:

(c) Mrs. Santiago has never informed any court where her cases are pending of her
intention to travel, whether the Regional Trial Court where she is charged with soliciting
donations from people transacting with her office at Immigration or before the
Sandiganbayan where she is charged with having favored unqualified aliens with the
benefits of the Alien Legalization Program nor even the Supreme Court where her
petition is still pending (Rollo, p. 158).

In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena

that petitioner had been charged before the Sandiganbayan "with having favored unqualified aliens
with the benefits of the Alien Legalization Program."

The statement complained of was just a restatement of the Information filed against petitioner in
Criminal Case No. 16698 in connection with which the hold-departure order was issued. Said
Information specified the act constituting the offense charged, thus:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, in
Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Miriam
Defensor-Santiago, being then the Commissioner of the Commission on Immigration
and Deportation, with evident bad faith and manifest partiality, did then and there
willfully, unlawfully and criminally approve the application for legalization of aliens who
arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324
dated April 13, 1988 which does not allow the legalization of the same, thereby causing
undue injury to the government and giving unwarranted benefits and advantages to said
aliens in the discharge of the official and administrative functions of said accused (Rollo,
p. 36).

It appears that petitioner tried to leave the country without first securing the permission of the
Sandiganbayan, prompting it to issue the hold-departure order which Benigno viewed as uncalled for.
The letter of Presiding Justice Garchitorena, written in defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing criminal charges in court, with no exception,
have to secure permission to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no occasion for the letter had
Benigno not written his diatribe, unfair at that, against the Sandiganbayan.

Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan
sits in three divisions with three justices in each division. Unanimity among the three members is
mandatory for arriving at any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character
of the Sandiganbayan thus renders baseless petitioner's fear of prejudice and bias on the part of
Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).
Re: Claim of denial of due process

Petitioner cannot complain that her constitutional rights to due process were violated by reason of the
delay in the termination of the preliminary investigation. According to her, while the offense was
allegedly committed "on or before October 17, 1988", the information was filed only on May 9, 1991
and the amended informations on December 8, 1992 (Rollo, p. 14).

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there

indeed was an unexplained inaction on the part of the public prosecutors inspite of the simplicity of
the legal and factual issues involved therein.

In the case at bench, there was a continuum of the investigatory process but it got snarled because of
the complexity of the issues involved. The act complained of in the original information came to the
attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of
the Manila Standard. Immediately thereafter, the investigatory process was set in motion. The
investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of
petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela Llana but
on request of petitioner herself the investigation was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft
resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo the
hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the
Ombudsman in March 1991.

We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698
(G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary
investigation and the filing of the information against her in those petitions. a piece-meal presentation
of issues, like the splitting of causes of action, is self-defeating.

Petitioner next claims that the Amended Informations did not charge any offense punishable under
Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under
Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted
the policy of approving applications for legalization of spouses and unmarried, minor children of
"qualified aliens" even though they had arrived in the Philippines after December 31, 1983. she
concludes that the Sandiganbayan erred in not granting her motion to quash the informations (Rollo,
pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information
(People v. Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion
that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in the
Philippines after January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in "evident bad faith and manifest partiality in the execution of her official
functions."
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of
R.A. No. 3019.

The claims that the acts complained of were indeed authorized under Executive Order No. 324, that
petitioner merely followed in good faith the policy adopted by the Board of Commissioners and that
the aliens were spouses or unmarried minor children of persons qualified for legalization of stay, are
matters of defense which she can establish at the trial.

Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue
injury to any party, including the Government," there are two ways of violating Section 3 (e) of R.A.
No. 3019. These are: (a) by causing undue injury to any party, including the Government; and (b) by
giving any private party any unwarranted benefit, advantage or preference.

In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

The use of the distinctive term "or" connotes that either act qualifies as a violation of
Section 3 (a). In other words the act of giving any private party any unwarranted benefit,
advantage or preference is not an indispensable element of the offense of "causing any
undue injury to any party" as claimed by petitioners although there may be instances
where both elements concur.

Re: Delito continuado

Be that as it may, our attention was attracted by the allegation in the petition that the public
prosecutors filed 32 Amended Informations against petitioner, after manifesting to the Sandiganbayan
that they would only file one amended information (Rollo, pp. 6-61). We also noted that petitioner
questioned in her opposition to the motion to admit the 32 Amended Informations, the splitting of the
original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore proceed to inquire
deeper into the validity of said plant, which petitioner failed to pursue with vigor in her petition.

We find that, technically, there was only one crime that was committed in petitioner's case, and
hence, there should only be one information to be file against her.

The 32 Amended Informations charge what is known as delito continuado or "continued crime" and
sometimes referred to as "continuous crime."

In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the
concept of delito continuado has been a vexing problem in Criminal Law — difficult as it is to define
and more difficult to apply.

According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed
during a period of time; unity of penal provision violated; and unity of criminal intent or purpose, which
means that two or more violations of the same penal provisions are united in one and same instant or
resolution leading to the perpetration of the same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality

there is only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code,
1957 ed., p. 102; Penal Science and Philippine Criminal Law, p. 152).

Padilla views such offense as consisting of a series of acts arising from one criminal intent or
resolution (Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting only one offense the following
cases:

(1) The theft of 13 cows belonging to two different owners committed by the accused at
the same time and at the same period of time (People v. Tumlos, 67 Phil. 320 [1939] ).

(2) The theft of six roosters belonging to two different owners from the same coop and
at the same period of time (People v. Jaranillo, 55 SCRA 563 [1974] ).

(3) The theft of two roosters in the same place and on the same occasion (People v. De
Leon, 49 Phil. 437 [1926] ).

(4) The illegal charging of fees for services rendered by a lawyer every time he collects
veteran's benefits on behalf of a client, who agreed that the attorney's fees shall be paid
out of said benefits (People v. Sabbun, 10 SCRA 156 [1964] ). The collection of the
legal fees were impelled by the same motive, that of collecting fees for services
rendered, and all acts of collection were made under the same criminal impulse (People
v. Lawas, 97 Phil. 975 [1955] ).

On the other hand, we declined to apply the concept to the following cases:

(1) Two estafa cases, one of which was committed during the period from January 19 to
December 1955 and the other from January 1956 to July 1956 (People v. Dichupa, 113
Phil. 306 [1961] ). The said acts were committed on two different occasions.

(2) Several malversations committed in May, June and July, 1936, and falsifications to
conceal said offenses committed in August and October 1936. The malversations and
falsifications "were not the result of only one purpose or of only one resolution to
embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ).

(3) Two estafa cases, one committed in December 1963 involving the failure of the
collector to turn over the installments for a radio and the other in June 1964 involving
the pocketing of the installments for a sewing machine (People v. Ledesma, 73 SCRA
77 [1976] ).

(4) 75 estafa cases committed by the conversion by the agent of collections from
customers of the employer made on different dates (Gamboa v. Court of Appeals, 68
SCRA 308 [1975]).

The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied to
crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up claims
for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).

Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless
the latter provide the contrary. Hence, legal principles developed from the Penal Code may be
applied in a supplementary capacity to crimes punished under special laws.

The question of whether a series of criminal acts over a period of time creates a single offense or
separate offenses has troubled also American Criminal Law and perplexed American courts as
shown by the several theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of
several things, whether belonging to the same or different owners, at the same time and place
constitutes but one larceny. Many courts have abandoned the "separate larceny doctrine," under
which there is a distinct larceny as to the property of each victim. Also abandoned was the doctrine
that the government has the discretion to prosecute the accused or one offense or for as many
distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).

The American courts following the "single larceny" rule, look at the commission of the different
criminal acts as but one continuous act involving the same "transaction" or as done on the same
"occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW
1119; State v. Larson, 85 Iowa 659, 52 NW 539).

An American court held that a contrary rule would violate the constitutional guarantee against putting
a man in jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed
that the doctrine is a humane rule, since if a separate charge could be filed for each act, the accused
may be sentenced to the penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179).

In the case at bench, the original information charged petitioner with performing a single criminal act
— that of her approving the application for legalization of aliens not qualified under the law to enjoy
such privilege.

The original information also averred that the criminal act : (i) committed by petitioner was in violation
of a law — Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done
on a single day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of the original information, except
that instead of the word "aliens" in the original information each amended information states the name
of the individual whose stay was legalized.

At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they would
file only one amended information embodying the legalization of stay of the 32 aliens. As stated in the
Order dated November 12, 1992 of the Sandiganbayan (First Division):

On the matter of the Bill of Particulars, the prosecution has conceded categorically that
the accusation against Miriam Defensor Santiago consists of one violation of the law
represented by the approval of the applications of 32 foreign nationals for availment
(sic) of the Alien Legalization Program. In this respect, and responding directly to the
concerns of the accused through counsel, the prosecution is categorical that there will
not be 32 accusations but only one . . . (Rollo, p. 59).

The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e.,
on or about October 17, 1988. The strong probability even exists that the approval of the application
or the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as when the
approval was embodied in the same document.

Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the
Government suffered a single harm or injury. The Sandiganbayan in its Order dated November 13,
1992 stated as follows:

. . . Equally, the prosecution has stated that insofar as the damage and prejudice to the
government is concerned, the same is represented not only by the very fact of the
 violation of the law itself but because of the adverse effect on the stability and security
of the country in granting citizenship to those not qualified (Rollo, p. 59).

WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the
Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal
Case No. 16698 is MODIFIED in the sense that the Office of the Special Prosecutor of the Office of
the Ombudsman is directed to consolidate the 32 Amended Informations (Criminal Cases Nos. 18371
to 18402) into one information charging only one offense under the original case number, i.e., No.
16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED insofar as
to the disqualification of Presiding Justice Francis Garchitorena is concerned.

SO ORDERED.
532 Phil. 414

CALLEJO, SR., J.:

Appellant Roberto Quiachon was charged with the crime of qualified rape committed as follows:

On or about May 12, 2001, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused, by means of force and intimidation, did then and there willfully, unlawfully, and feloniously
have sexual intercourse with one Rowena Quiachon y Reyes, his daughter, 8 years old, a deaf-mute
minor, against her will and consent.

Contrary to law.[1]
The case was docketed as Criminal Case No. 120929-H. At his arraignment, appellant, duly assisted
by counsel, entered a plea of not guilty. Trial ensued.

The prosecution presented the following witnesses: Rowel Quiachon, 11-year old son of appellant;
Rowena Quiachon, the victim and appellant's daughter; Dr. Miriam Sta. Romana Guialani; and SPO2
Noel Y. Venus.

Rowel testified that he is appellant's son. He averred, however, that he no longer wanted to use his
father's surname describing him as "masama" for raping his (Rowel's) sister Rowena. Rowel
recounted that he used to sleep in the same bedroom occupied by his father, sister and youngest
sibling. Rowel slept beside his youngest sibling while their father, appellant, and Rowena slept
together in one bed.

On the night of May 12, 2001, Rowel saw his father on top of his sister Rowena and they were
covered by a blanket or "kumot." His father's buttocks were moving up and down, and Rowel could
hear Rowena crying. He could not do anything, however, because he was afraid of their father. Rowel
remained in the room but the following morning, he, forthwith, told his mother's sister Carmelita
Mateo, whom he called Ate Lita, about what he had witnessed. Together, Carmelita and Rowel went
to the police to report what had transpired. During the police investigation, Rowel executed a sworn
statement in Tagalog and signed it using the surname Mateo. [2]

Rowena, through sign language, testified that her father had sexual intercourse with her and even
touched her breasts against her will. She was only eight years old at the time. She cried when she
was asked if she was hurt by what appellant did to her. She consistently declared that she does not
love her father and wants him to be punished for what he did to her. [3]

Dr. Miriam Sta. Romana Guialani of the Philippine National Police (PNP) General Hospital Health
Services testified that she received a letter request from the PNP Crime Laboratory to conduct an
examination on Rowena. While she was about to proceed with the forensic interview, she noticed that
Rowena was deaf and mute, hence, could not verbally communicate her ordeal. Dr. Guialani
proceeded to conduct a physical examination and, based thereon, she submitted her medico-legal
report.

Dr. Guialani, as indicated in her report, found that Rowena had a "contusion hematoma" on her left
cheek, which was compatible with her claim that she was slapped by her father. Rowena also had an
"ecchymosis" or "kissmark" at the antero-lateral border of her left breast as well as ano-genital
injuries suggestive of chronic penetrating trauma.

Dr. Guialani explained that although the external genitalia did not show any sign of sexual abuse,
when it was opened up, the following were discovered: "markedly hyperemic urethra and peri-
hymenal area with fossa navicularis and markedly hyperemic perineum, markedly hyperemic urethra
layer up to the peri-hymenal margin up to the posterior hymenal notch with attenuation." Further, the
labia was "very red all throughout, with hymenal notch with attenuation, a pale navicular fossa and a
very red perineum."[4] All these, according to Dr. Guialani, were compatible with the recent chronic
penetrating trauma and recent injury which could have happened a day before the examination. She
pointed out that the hymenal attenuation sustained by Rowena was almost in the 6 o'clock notch. [5]

For its part, the defense presented the lone testimony of appellant Roberto Quiachon.

He testified that, on May 13, 2001, he was invited to the barangay hall by their barangay chairman.

He did not know then the reason for the invitation. At the barangay hall, he was surprised to see the
two sisters of his deceased live-in partner and his two children. He was shocked to learn that his
daughter Rowena had accused him of raping her. Thereafter, he was taken to the Karangalan Police
Station. He suffered hypertension and was brought to the hospital. When he recovered, he was taken
to the Pasig City Police Station and, thereafter, to jail.

Appellant claimed that Rowena is not deaf but only has a minor speech handicap. He denied raping
Rowena and alleged that Virginia Moraleda and Carmelita Mateo, both sisters of his deceased
common-law wife, held a grudge against him because he abandoned his family and was not able to
support them. His common-law wife died of cancer and her relatives were allegedly all interested in
his house and other properties. The said house was being leased and they were the ones getting the
rental income. Further, the nephew of his deceased partner was sending financial support of US$100
a month for his child.

According to appellant, even before the death of his common-law wife, his son Rowel was already
hostile to him because he was closer to his daughters. He disclaimed any knowledge of any reason
why his children, Rowel and Rowena, accused him of a very serious offense. [6]

After consideration of the respective evidence of the prosecution and defense, the Regional Trial
Court of Pasig City, Branch 159, rendered its Decision [7] dated September 9, 2003, finding appellant
guilty beyond reasonable doubt of the crime of qualified rape defined and penalized under Articles
266-A and B[8] of the Revised Penal Code. The decretal portion of the decision reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape, he is hereby
sentenced to suffer the maximum penalty of DEATH, including its accessory penalties, and to
indemnify the offended party in the amount of P75,000.00 as compensatory damages, PI00,000.00
as moral damages, and P50,000.00 as exemplary damages.

SO ORDERED.[9]
The case was automatically elevated to this Court by reason of the death penalty imposed on
appellant. However, pursuant to our ruling in People v. Mateo,[10] the case was transferred and
referred to the Court of Appeals (CA).

Upon review, the CA rendered its Decision [11] dated August 25, 2005, affirming with modification the
decision of the trial court. In affirming appellant's conviction, the CA held that there was no
justification to make a finding contrary to that of the trial court with respect to the credibility of the
witnesses. The CA particularly pointed out that the trial court, after having "meticulously observed"
the prosecution witness Rowel and complainant Rowena, had declared that "their narration palpably
bears the earmarks of truth and is in accord with the material points involved. When the testimony of
a rape victim is simple and straightforward, unshaken by rigid cross-examination, and unflawed by an
inconsistency or contradiction as in the present case, the same must be given full faith and credit." [12]
Moreover, the CA ruled that the testimonies of Rowel and Rowena recounting the bestial act
perpetrated by appellant on the latter were corroborated by physical evidence as presented by Dr.
Guialani in her medico-legal report.

On the other hand, the CA noted that appellant could only proffer a bare denial. On this matter, it
applied the salutary rule that denial is not looked upon with favor by the court as it is capable of easy
fabrication. Consequently, the CA held that appellant's bare denial could not overcome the
categorical testimonies of the prosecution witnesses, including Rowena, the victim herself.

The CA believed that Rowena could not possibly invent a charge so grave as rape against her father
because "it is very unlikely for any young woman in her right mind to fabricate a story of defloration
against her own father, undergo a medical examination of her private parts, and subject herself to the
trauma and scandal of public trial, put to shame not only herself but her whole family as well unless
she was motivated by a strong desire to seek justice for the wrong committed against her." [13]

In sum, the CA found that the trial court correctly found appellant guilty beyond reasonable doubt of
the crime of qualified rape and in imposing the supreme penalty of death upon him. In the Pre-Trial
Order dated September 10, 2001, the prosecution and the defense agreed on the following stipulation
of facts:

1. The minority of the victim who is eight (8) years old;

2. That the accused is the father of the victim; and
3. The victim is a deaf-mute.[14]

According to the CA, the qualifying circumstances of the victim's minority and her relationship to the
offender were alleged in the Information and were duly proved during trial. These circumstances, i.e.,
minority of the victim and her relationship to appellant, are special qualifying circumstances in the
crime of rape that warrant the imposition of the supreme penalty of death.

The CA, however, modified the trial court's decision with respect to the damages awarded to conform
to prevailing jurisprudence. The decretal portion of the CA decision reads:

WHEREFORE, the assailed Decision dated September 9, 2003 of the Regional Trial Court of Pasig
City, Branch 159, in Criminal Case No. 120929-H finding the accused-appellant Roberto Quiachon y
Bayona guilty beyond reasonable doubt of qualified rape and imposing upon him the DEATH penalty
is AFFIRMED, with the MODIFICATION that the accused-appellant is also ordered to pay the victim,
Rowena Quiachon, the amount of P75,000 as civil indemnity; P75,000 as moral damages; and
P25,000 as exemplary damages.

In accordance with A.M. No. 00-5-03-SC which took effect on October 15, 2004, amending Section
13, Rule 124 of the Revised Rules of Criminal Procedure, let the entire records of this case be
elevated to the Supreme Court for review.

Costs de oficio.

SO ORDERED.[15]
In this Court's Resolution dated December 13, 2005, the parties were required to submit their
respective supplemental briefs. The Office of the Solicitor General manifested that it would no longer
be filing a supplemental brief. Similarly, appellant, through the Public Attorney's Office, manifested
that he would no longer file a supplemental brief.
After a careful review of the records of the case, the Court affirms the conviction of appellant.

In reviewing rape cases, this Court has always been guided by three (3) well-entrenched principles:
(1) an accusation for rape can be made with facility and while the accusation is difficult to prove, it is
even more difficult for the person accused, though innocent, to disprove; (2) considering that in the
nature of things, only two persons are usually involved in the crime of rape, the testimony of the
complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must
stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the
evidence for the defense.[16] Accordingly, the primordial consideration in a determination concerning
the crime of rape is the credibility of complainant's testimony. [17]

Likewise, it is well settled that when it comes to the issue of credibility of witnesses, the trial court is in
a better position than the appellate court to properly evaluate testimonial evidence having the full
opportunity to observe directly the witnesses' deportment and manner of testifying. [18]

In this case, as correctly found by the CA, there is nothing on the record that would impel this Court to
deviate from the well-entrenched rule that appellate courts will generally not disturb the factual
findings of the trial court unless these were reached arbitrarily or when the trial court misunderstood
or misapplied some facts of substance and value which, if considered, might affect the result of the
case.[19]

In convicting the appellant, the trial court gave full faith and credence to the testimonies of Rowel and
Rowena. The trial court observed that Rowel and Rowena "never wavered in their assertion that
accused sexually abused Rowena. Their narration palpably bears the earmarks of truth and is in
accord with the material points involved." [20] Further, the trial court accorded great evidentiary weight
to Rowena's testimony. It justifiably did so as it characterized her testimony to be "simple,
straightforward, unshaken by a rigid cross-examination, and unflawed by inconsistency or
contradiction."[21]

Significantly, Rowel and Rowena's respective testimonies were corroborated by Dr. Guialani's
medico-legal report:[22]

Contusion hematoma about 3x4 cm noted at the left

mandibular area of the left cheek compatible with
PERTINENT PHYSICAL
the disclosed slapping of the cheek by her father;
FINDINGS/PHYSICAL INJURIES
2x2 cm ecchymosis (kissmark) noted at the antero-
lateral border of the left breast
ANO-GENITAL EXAMINATION
Tanner 2
Pubic hair - none
Labia majora - no evident sign of injury at the time of
EXTERNAL GENITALIA
examination
Labia minora - no evident sign of injury at the time of
examination
URETHA
Markedly hyperemic urethra meatus and periurethral
AND
area
ERIURETHRAL AREA
PERIHYMENAL
AREA Markedly hyperemic perihymenal area, and pale
AND fossa navicularis
FOSSA NA VICULARIS
 Tanner 2
Annular hymen; hymenal notch noted at 5 o 'clock
HYMEN
with attenuation of the hymenal rim from 5 o 'clock to
7 o 'clock; very hyperemic hymen
PERINEUM Hyperemic perineum
Whitish, foul-smelling discharge, minimal in amount
DISCHARGE
noted
IE AND SPECULUM EXAM Not indicated
ANAL EXAMINATION No evident sign of injury at the time of examination;
REMARKS
FORENSIC EVIDENCE
None
COLLECTED
LABORATORY Requested a) Urinalysis
EXAMINATION b) Gram Stain of Vaginal smear
IMPRESSIONS
No verbal disclosure of sexual abuse (pt is a deaf-mute)

For referral to NCMH for evaluation of developmental stage and competence to appear in court.

Presence of contusion hematoma on the Left Cheek (slapmark) and ecchymosis on the antero-lateral
border of the left breast show clear evidence of Physical Abuse.

Ano-genital findings suggestive of chronic penetrating trauma.

Dr. Guialani explained during her testimony that the foregoing findings were consistent with Rowena's
claim of sexual abuse. Specifically, her internal genitalia showed signs of sexual abuse such as:
"markedly hyperemic urethra and peri-hymenal area with fossa navicularis, markedly hyperemic
perineum, markedly hyperemic urethra layer up to the peri-hymenal margin up to the posterior
hymenal notch with attenuation." Further, Rowena's labia was "very red all throughout, with hymenal
notch with attenuation, a pale navicular fossa and a very red perineum." [23] All these, according to Dr.
Guialani, were compatible with the recent chronic penetrating trauma and recent injury which could
have happened a day before the examination. She pointed out that the hymenal attenuation
sustained by Rowena was almost in the 6 o'clock notch. [24] Dr. Guialani, likewise, confirmed that
Rowena was deaf and mute.

Viewed against the damning evidence of the prosecution, appellant's simple denial of the charge
against him must necessarily fail. The defense of denial is inherently weak. A mere denial, just like
alibi, constitutes a self-serving negative evidence which cannot be accorded greater evidentiary
weight than the declaration of credible witnesses who testify on affirmative matters. [25]

All told, the trial court and the CA correctly found appellant guilty of raping his daughter Rowena
pursuant to Article 266-B of the Revised Penal Code. The special qualifying circumstances of the
victim's minority and her relationship to appellant, which were properly alleged in the Information and
their existence duly admitted by the defense on stipulation of facts during pre-trial, [26] warrant the
imposition of the supreme penalty of death on appellant.

However, in view of the enactment of Republic Act (R.A.) No. 9346 [27] on June 24, 2006 prohibiting
the imposition of the death penalty, the penalty to be meted on appellant is reclusion perpetua in
accordance with Section 2 thereof which reads:

SECTION 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of
the penalties of the Revised Penal Code.
The aforequoted provision of R.A. No. 9346 is applicable in this case pursuant to the principle in
criminal law, favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to
accused are given retroactive effect. This principle is embodied under Article 22 of the Revised Penal
Code, which provides as follows:

Retroactive effect of penal laws. - Penal laws shall have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62
of this Code, although at the time of the publication of such laws, a final sentence has been
pronounced and the convict is serving the same.[28]
However, appellant is not eligible for parole because Section 3 of R.A. No. 9346 provides that
"persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced
to reclusion perpetua by reason of the law, shall not be eligible for parole."

With respect to the award of damages, the appellate court, following prevailing jurisprudence,
[29]
 correctly awarded the following amounts: P75,000.00 as civil indemnity which is awarded if the
crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00 as
moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to
an award of moral damages even without proof thereof, and; P25,000.00 as exemplary damages in
light of the presence of the qualifying circumstances of minority and relationship.

Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A.
No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination
in People v. Victor,[30] the said award is not dependent on the actual imposition of the death penalty
but on the fact that qualifying circumstances warranting the imposition of the death penalty attended
the commission of the offense. The Court declared that the award of P75,000.00 shows "not only a
reaction to the apathetic societal perception of the penal law and the financial fluctuations over time
but also the expression of the displeasure of the court of the incidence of heinous crimes against
chastity."

Notwithstanding the abolition of the death penalty under R.A. No. 9364, the Court has resolved, as it
hereby resolves, to maintain the award of P75,000.00 for rape committed or effectively qualified by
any of the circumstances under which the death penalty would have been imposed prior to R.A. No.
9346.

IN LIGHT OF ALL THE FOREGOING, the Decision dated August 25, 2005 of the Court of Appeals
finding appellant Roberto Quiachon guilty beyond reasonable doubt of the crime of qualified rape
is AFFIRMED with MODIFICATION that the penalty of death meted on the appellant is reduced
to reclusion perpetua pursuant to Republic Act No. 9346.

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-

Martinez, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
Corona. J., on leave.
532 Phil. 368

AZCUNA, J.:
For review is the Decision rendered by the Court of Appeals on June 15, 2005 in CA-G.R. CR. No.-
H.C. No. 00767, entitled "People of the Philippines v. Nicanor Salome," affirming the decision, dated
April 3, 2001, of the Regional Trial Court of Virac, Catanduanes, Branch 43, in Criminal Case No.
2536, finding appellant guilty beyond reasonable doubt of the crime of rape against thirteen-year old
Sally Idanan, and imposing upon him the death penalty.

The antecedents are:

On February 18, 1998, upon the complaint of Sally Idanan, an information was filed against appellant
under the name Canor Sabeniano. Appellant, however, filed a motion for reinvestigation on the
ground that his name is Nicanor Salome and not Canor Sabeniano.

An amended information was filed on August 26, 1998 accusing CANOR SABENIANO also known as
NICANOR SALOME, of the crime of RAPE defined and penalized under Article 335 of the revised
Penal Code, as amended by Republic Act 7659, committed as follows:
That on or about or within the period comprised between July 1, 1997 to July 31, 1997 in the morning,
in [B]arangay Lourdes, [M]unicipality of Pandan, [P]rovince of Catanduanes, Philippines, within the
jurisdiction of the Honorable Court, the said accused, by means of force and intimidation, and with the
use of a bladed weapon, willfully, unlawfully and feloniously, did lie and succeeded in having carnal
knowledge of SALLY IDANAN, a minor who was then 13 years old at the time of the commission of
the offense.

That the commission of the crime was aggravated by dwelling the fact that the crime was committed
inside the house of the offended party.

CONTRARY TO LAW.[1]
Sally Idanan, fifteen years old, single, and a resident of Lourdes, Pandan, Catanduanes testified
before the trial court that she personally knew appellant because they used to be neighbors. In 1997,
they transferred residence but appellant would frequently pass by their place. [2]

Sometime in July of 1997, Sally, then thirteen years old, was sleeping with her three-year old brother
inside their house when appellant entered their house. She was awakened by the presence of the
latter who, allegedly, was poking a knife at the base of her neck. While holding the knife with one
hand, appellant undressed her with his other hand. He threatened her that he would kill her and her
family if she would tell anyone about the incident. After undressing her, appellant forced her to lie
down. He removed his shorts and underwear. He then spread her legs and inserted his penis into her
vagina.

According to Sally, she just closed her eyes while appellant had his way with her. She did not call for
help because she was afraid that nobody would be in the next house which was about 800 meters
away.[3]

She cannot remember how long appellant remained on top of her but before he left, he reiterated his
threat to kill her and her family if she told anybody of what happened. After that, she would frequently
see appellant but the latter never spoke to her.

Fearful for her life and for her family's safety, she did not inform anyone of the incident. Although it
entered her mind that she could be pregnant, she left her province to work as a domestic helper in the
house of SPO2 Constantino B. Saret in West Crame, San Juan, Manila.

On November 12, 1997, she had a pelvic ultrasound examination which confirmed her pregnancy.
[4]
 Upon learning this, she reported the rape incident to the police on November 17, 1997. She
executed a sworn statement and filed a complaint.

A criminal complaint for rape was initiated before the Municipal Circuit Trial Court (MCTC) of Pandan-
Caramoran, Pandan, Catanduanes. Appellant pleaded not guilty to the charge during the
arraignment.

Evidence for the prosecution consisted primarily of Sally's narration of the incident, and the testimony
of Ma. Luz T. Santos, Medico Legal Officer of the Philippine National Police (PNP) Crime Laboratory,
on the medico-legal report issued by Dr. Anthony Joselito Llamas [5] who examined Sally.

Ma. Luz T. Santos, while referring to the medical report, explained that the hymen has a deep healed
laceration at 6:00 o'clock position but she cannot determine as to the time when it was
inflicted. [6] Due to the fact that the vaginal canal was still narrow with prominent rugosities, Sally has
not yet given birth although she was 18 to 19 weeks pregnant counting from the last day of her
menstruation which was on July 5, 1997. On cross-examination, Santos declared that she was
uncertain as to the exact date of sexual intercourse that caused the pregnancy of Sally, and that said
act may have occurred days before or after July 5, 1997 on account of the fact that the life span of an
average sperm cell lasts for three days.[7]

Evidence for the defense, on the other hand, consisted of the testimonies of appellant, Salvador
Villarey and Manny Torralba.

Appellant denied having raped Sally and offered the defense of alibi. He claimed that in the month of
July 1997, he went fishing at the sea of Gigmoto, Catanduanes on three different days but could not
exactly remember when. Villarey and Torralba corroborated the fact that they went fishing with
appellant in July of 1997. They maintained, however, that while they had been appellant's fishing
companions, they would go their separate ways after fishing and were not aware of appellant's
activities after that.

On April 3, 2001, the trial court rendered its decision convicting appellant of the crime of rape and
sentencing him as follows:
WHEREFORE, finding the accused Nicanor Salome also known as Canor Sabediano GUILTY
beyond reasonable doubt of the crime of Rape with the use of a deadly weapon, committed inside the
dwelling of the offended party, as defined and penalized under Article 335 of the Revised Penal
Code, as amended by Republic Act No. 7659, he is hereby sentenced to suffer the penalty of
DEATH, to give monthly support in the sum of Two Thousand (P2,000.00) Pesos to the offspring of
complainant Sally Idanan born on April 11, 1998, and to indemnify Sally Idanan in the sum of Fifty
Thousand (P50,000.00) Pesos, without subsidiary imprisonment in case of insolvency.

SO ORDERED.[8]
Due to the imposition of death penalty on appellant, the case was directly elevated to this Court for
review. Subsequently, however, the case was referred to the Court of Appeals for intermediate review
pursuant to our ruling in People v. Mateo.[9]

The Court of Appeals, after reviewing the case, rendered its Decision on June 15, 2005 affirming the
conviction of appellant, with modifications:
WHEREFORE, the Decision dated April 3, 2001 of the trial court is affirmed subject to the following
modifications:

The award of civil indemnity on the amount of P50,000.00 is

(1)
increased to P75,000.00; and,
Appellant is ordered to pay private complainant moral damages
(2)
of P75,000.00 and exemplary damages of P25,000.00.

Pursuant to A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to
govern Death Penalty Cases) which took into effect on October 15, 2004, this case is elevated and
certified to the Supreme Court for its automatic review.

SO ORDERED.[10]
Appellant assigns the following errors:
I

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE UNCONVINCING AND
IMPROBABLE TESTIMONY OF PRIVATE COMPLAINANT SALLY IDANAN; AND,

II

THE TRIAL COURT ERRED IN APPRECIATING DWELLING AS AN AGGRAVATING

CIRCUMSTANCE.
As a rule, the trial court's assessment of the credibility of witnesses is generally accorded the highest
degree of weight and respect, if not finality, for the reason that the trial judge has the unique
opportunity to observe the demeanor of witnesses while testifying. [11]

In giving credence to the Sally's testimony, the trial court noted that she did not have any improper
motive against appellant other than her desire to tell the truth and obtain redress from the criminal
act.[12]

In the commission of rape, it is usually only the rape victim who can attest to its occurrence, [13] and if
the lone testimony of the victim is credible, convincing and consistent with human nature and the
normal course of things, it is competent to establish the guilt of the accused. [14] This is even more so if
it involves the testimony of a rape victim of tender or immature age such as in the instant case. Thus,
if the victim is a young, immature girl, her testimony is given credence by the courts [15] because no
one would contrive a rape story, allow an examination of her private parts and subject herself to
scrutiny at a public trial if she is not motivated solely by a desire to have the culprit apprehended and
punished.[16]

Appellant asserts that the conduct of private complainant during and after the commission of the
offense militates against her credibility because it is inconsistent with human experience. She did not
shout nor offer any resistance as expected of a woman being sexually abused. She likewise kept the
incident to herself until she learned of her pregnancy three months later. Appellant further claims that
there is no evidence that he threatened her or her family or that he prevented her from reporting the
incident to anybody.[17]

The Court finds nothing incredible in Sally's behavior. She woke up with appellant poking a knife at
the base of her neck. The act of holding a knife, by itself, is strongly suggestive of force or at least
intimidation, and threatening the victim with a knife is sufficient to bring her to submission. The
victim's failure to shout for help or resist the sexual advances of the rapist does not negate the
commission of rape.[18] As noted by the trial court:
The fact that the accused did not shout or resist when her shorts and panty were removed because of
fear (TSN, Oct. 21, 1999, p. 12) does not lessen complainant's credibility. To an innocent girl who
was then barely thirteen (13) years old, the threat engendered in her a well-grounded fear that if she
dared resist or frustrate the bestial desires of the accused, she and her family would be killed.
Intimidation is addressed to the mind of the victim and is, therefore, subjective. It must be viewed in
the light of the victim's perception and judgment at the time of the commission of the crime and not by
any hard and fast rule. The workings of the human mind when placed under emotional stress are
unpredictable and people react differently. In such a given situation, some may shout; some may
faint; and some may be shocked into sensibility; while others may openly welcome the intrusion.
(People v. Cabradilla, 133 SCRA 413 (1984)). The test for its sufficiency under Article 335 of the
revised Penal Code is whether it produces a reasonable fear in the victim that if she resists or does
not yield to the bestial demands of the accused, that which the latter threatened to do would happen
to her, or those dear to her, in this case, her family. Where such degree of intimidation exists, and the
victim is cowed into submission as a result thereof, thereby rendering resistance futile, it would be
extremely unreasonable to expect the victim to resist with all her might and strength. And even if
some degree of resistance would nevertheless be futile, offering none at all cannot amount to consent
to the sexual assault. For rape to exist, it is not necessary that the force or intimidation employed in
accomplishing it be so great or of such character as could not be resisted; it is only necessary that the
force or intimidation be sufficient to consummate the purpose which the accused had in mind. (People
v. Savellano, 57 SCRA 320 (1974)).
Likewise, Sally's delay in reporting the incident to the authorities is understandable. It is not
uncommon for young girls to conceal for some time the assault against their virtue because of the
threats on their lives.[19] Failure, therefore, by the victim to file a complaint promptly to the proper
authorities would not necessarily destroy the truth per se of the complaint nor would it impair the
credibility of the complainant, particularly if such delay was satisfactorily explained. [20] As a matter of
fact, delay in reporting a rape case due to threats is justified. [21] As the Court held in People v.
Ballester:[22]
Neither can appellant find refuge in complainant's failure to promptly report the sexual assault to her
relatives. Long silence and delay in reporting the crime of rape has not always been construed as an
indication of a false accusation. In fact this principle applies with greater force in this case where the
offended party was barely twelve years old, and was therefore susceptible to intimidation and threats
of physical harm.
Not all rape victims can be expected to act conformably to the usual expectations of everyone.
Different and varying degrees of behavioral responses is expected in the proximity of, or in
confronting, an aberrant episode. It is settled that different people react differently to a given situation
or type of situation and there is no standard form of human behavioral response when one is
confronted with a strange, startling or frightful experience. [23]

Appellant further denies having raped Sally, asserting that he went fishing on three occasions in July
of 1997. Denial, however, is inherently a weak defense and cannot prevail over the positive
declarations of the victim.[24] For the defense of alibi and denial to prosper, appellant must prove by
positive, clear and satisfactory proof that it was physically impossible for him to have been physically
present at the scene of the crime or its immediate vicinity at the time of its commission. [25]

Here, appellant failed to show that it was physically impossible for him to be at the house of Sally
when the crime was committed. As the trial court aptly held:
The defense offered by the accused that he could not have raped the complainant because he went
fishing three (3) times in the month of July 1997 in Sicmil, Gigmoto, Catanduanes (TSN, February 8,
2000, p. 3) is sorely inadequate to overcome the evidence adduced by the prosecution relative to his
guilt, considering that his absence for only three (3) days could not prevent him from committing the
offense in the remaining twenty-eight (28) days of the month. In any event, a probe into the accused's
alibi readily yields the latter's inherent weakness. It is settled that for the defense of alibi to prosper,
the accused must establish the physical impossibility for him to have been present at the scene of the
crime at the time of its commission (People v. Cristobal, G.R. No. 116279, January 29, 1996) In the
instant case, the accused failed to demonstrate such impossibility.

The allegation in the Information that the offense was committed within the period comprised between
July 1, 1997 to July 31, 1997, sufficiently informs the accused of the approximate time of commission
of the offense and affords him opportunity to show that he could not have committed the crime on any
of the thirty-one (31) days of July 1997...

Additionally, Manny Torralba, one of the accused's fishing companions, declared that they went home
from fishing everyday (TSN, February 28, 2001, p. 6) and that every time they went home from
fishing, they parted ways as each went to his own home, and would not know what the accused
would be doing while he was at his own home (Idem, p. 9). Thus, even in those days when the
accused went to fish out at sea, the accused's presence in the house of the complainant where the
subject offense was committed was far from impossible.[26]
The Court notes that appellant does not deny the existence of the knife during the commission of the
rape. This Court sustains the finding that the trial court did not err in convicting appellant of the crime
of rape perpetrated with the use of a deadly weapon. The presentation of the knife is not necessary to
his conviction, in light of the victim's unwavering testimony as to how appellant, armed with a knife,
threatened and raped her.

This is consistent with this Court's ruling in People v. Degamo:[27]

It is settled that the non-presentation of the weapon used in the commission of rape is not essential to
the conviction of the accused. The testimony of the rape victim that appellant was armed with a
deadly weapon when he committed the crime is sufficient to establish the fact for so long as the victim
is credible. It must be stressed that in rape, it is usually only the victim who can attest to its
occurrence and that is why courts subject the testimony of the alleged victims to strict scrutiny before
relying on it for the conviction of the accused.
People v. Philippines Vitancur[28] also illustrates this principle:
The fact that the weapon with which complainant claimed she was intimidated by accused-appellant
could not be presented in court could not impeach private complainant's credibility as the weapon is
not essential to the prosecution of rape cases. What is important is that because of force and
intimidation, private complainant was made to submit to the will of accused-appellant. ... [T]he test is
whether the threat or intimidation produces in the mind of a reasonable person fear that if she persists
or does not yield to the desires of the accused, the threat will be carried out.
Appellant committed the crime of rape with the use of a bladed weapon, the imposable penalty of
which is reclusion perpetua to death in accordance with Article 335 of the Revised Penal Code, as
amended by R.A. No. 7659:
ARTICLE 335. When and how rape is committed. ï¿½ Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.

Whenever by reason of or on occasion of the rape, the victim has become insane, the penalty shall
be death.
In addition, and in relation to the second assignment of error, the crime of rape is aggravated by
dwelling.[29] As the Court of Appeals noted:
There is no question that the amended information sufficiently alleged "that the commission of the
crime was aggravated by dwelling the fact that the crime was committed inside the house of the
offended party." Accused-appellant does not dispute that the crime was committed inside the victim's
house. However, he posits that the prosecution must prove the absence of provocation by Sally.

It suffices to state that private complainant categorically testified that she was sleeping inside her
house when appellant came and perpetrated the crime. This is proof enough of the absence of
provocation on the part of private complainant. For a sleeping thirteen (13) - year old barrio girl
cannot possibly give any kind of provocation to appellant under the circumstances.

Since the crime of rape was committed by appellant with the use of a deadly weapon, punishable
by reclusion perpetua to death, the presence of the aggravating circumstance of dwelling, without the
presence of any mitigating circumstance, justified the trial court's imposition of the death penalty. [30]
The above ruling is in accordance with Article 63 of the Revised Penal Code which provides that in all
cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty
shall be applied when an aggravating circumstance, such as dwelling in this case, is present in the
commission of the offense.

In People v. Alfeche,[31] wherein the complainant, employed as a domestic helper, was inside the
house of her employer when she was raped by the appellant who was armed with a deadly weapon,
the Court considered dwelling as an aggravating circumstance in convicting the latter, and affirmed
the trial court's imposition of the greater penalty, which is death.

The Court of Appeals, in affirming the conviction of herein appellant and the imposition of the death
penalty, concluded that:
The Court, therefore, has no recourse but to apply the law and affirm the trial court's imposition of the
death penalty. This is without prejudice, of course, to the provisions of section 25, R.A. 7659
regarding the possible exercise of the pardoning power of the Office of the President upon the finality
of the death sentence.[32]
In light, however, of the passage of Republic Act No. 9346, entitled "An Act Prohibiting the Imposition
of Death Penalty in the Philippines," which was signed into law by President Gloria Macapagal-Arroyo
on June 24, 2006, the imposition of the death penalty has been prohibited. [33] The law provides:
SECTION 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act
No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act
Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six
Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws,
executive orders and decrees, insofar as they impose the death penalty are hereby repealed or
amended accordingly.

SECTION 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of
the penalties of the Revised Penal Code.

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences

will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act
No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
After a thorough review of the records, the Court agrees with the evaluation of the evidence by the
Regional Trial Court and the Court of Appeals. Pursuant to the new law, even as the Court sustains
the conviction of appellant, the penalty imposed upon him should be reduced to reclusion perpetua,
but appellant shall not be eligible for parole under the Indeterminate Sentence Law.

The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in
accordance with the ruling in People v. Sambrano[34] which states:
As to damages, we have held that if the rape is perpetrated with any of the attending qualifying
circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall
be P75,000 .... Also, in rape cases, moral damages are awarded without the need of proof other than
the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such
an award. However, the trial court's award of P50,000.00 as moral damages should also be increased
to P75,000 pursuant to current jurisprudence on qualified rape. Lastly, exemplary damages in the
amount of P25,000.00 is also called for, by way of example, and to protect the young from sexual
abuse.
It should be noted that while the new law prohibits the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still death and the offense is still heinous. Consequently,
the civil indemnity for the victim is still P75,000. On the other hand, the automatic appeal in cases
when the trial court imposes the death penalty will henceforth not apply, since its imposition is now
prohibited, so that there is a need to perfect an appeal, if appeal is desired, from a judgment of
conviction for an offense where the penalty imposed is reclusion perpetua in lieu of the death penalty
pursuant to the new law prohibiting its imposition.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR. No.-H.C. No. 00767, dated June
15, 2005, is hereby AFFIRMED insofar as the conviction of appellant and the amount of damages are
concerned. The sentence that shall be imposed upon appellant, however, is MODIFIED. In view of
Republic Act No. 9346 prohibiting the imposition of the death penalty, appellant is hereby sentenced
to reclusion perpetua without parole.

No costs.

SO ORDERED.
 EN BANC

G.R. No. 182748               December 13, 2011

ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what
distinguishes frustrated homicide from attempted homicide; and c) when an accused who appeals
may still apply for probation on remand of the case to the trial court.

The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated
homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-
2213.1

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000,
he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a
leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 ½ inches in diameter. Rufino fell unconscious
as Jesus fled.

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the
roadside. Ananias tried to help but someone struck him with something hard on the right temple,
knocking him out. He later learned that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking
outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital.

Dr. Albert Belleza issued a Medico-Legal Certificate 2 showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The doctor testified that these injuries were serious
and potentially fatal but Rufino chose to go home after initial treatment.

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He
testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who
were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than
reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the
back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself,
struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab
him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then
fled and hid in his sister’s house. On September 4, 2000, he voluntarily surrendered at the Tigaon
Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of
the incident. His three companions were all drunk. On his way home, Diomedes saw the three
engaged in heated argument with Arnel.

On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of
frustrated homicide and sentenced him to suffer imprisonment from two years and four months of
prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for
probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking
conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty
imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in
the absence of evidence to support it.3 Not satisfied, Arnel comes to this Court on petition for review.

In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to
submit their respective positions on whether or not, assuming Arnel committed only the lesser crime
of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.

Both complied with Arnel taking the position that he should be entitled to apply for probation in case
the Court metes out a new penalty on him that makes his offense probationable. The language and
spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argues
that under the Probation Law no application for probation can be entertained once the accused has
perfected his appeal from the judgment of conviction.

The Issues Presented

The case essentially presents three issues:

1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone;

2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide;
and

3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced
probationable penalty, whether or not he may still apply for probation on remand of the case to
the trial court.

The Court’s Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-
defense when he hit Rufino back with a stone.

When the accused invokes self-defense, he bears the burden of showing that he was legally justified
in killing the victim or inflicting injury to him. The accused must establish the elements of self-defense
by clear and convincing evidence. When successful, the otherwise felonious deed would be excused,
mainly predicated on the lack of criminal intent of the accused. 4
In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the
person whom the offender killed or injured committed unlawful aggression; (2) that the offender
employed means that is reasonably necessary to prevent or repel the unlawful aggression; and (3)
that the person defending himself did not act with sufficient provocation. 5

If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent
or repel and the other two requisites of self-defense would have no basis for being appreciated.
Unlawful aggression contemplates an actual, sudden, and unexpected attack or an imminent danger
of such attack. A mere threatening or intimidating attitude is not enough. The victim must attack the
accused with actual physical force or with a weapon. 6

Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone
testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnel’s testimony that it was Rufino who started it. Arnel’s only other
witness, Diomedes, merely testified that he saw those involved having a heated argument in the
middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered
injuries in the hands of Rufino and his companions. 7

In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel was the
aggressor. Although their versions were mottled with inconsistencies, these do not detract from their
core story. The witnesses were one in what Arnel did and when and how he did it. Compared to
Arnel’s testimony, the prosecution’s version is more believable and consistent with reality, hence
deserving credence.8

Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated
homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have
resulted in death as in fact it did not?

The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life.
The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding
homicidal intent.9 And the intent to kill is often inferred from, among other things, the means the
offender used and the nature, location, and number of wounds he inflicted on his victim. 10

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked
Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the
wounds that Arnel inflicted on his victim, the Court is convinced that he intended to kill him.

The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In
Palaganas v. People,11 we ruled that when the accused intended to kill his victim, as shown by his
use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely
medical assistance, the crime is frustrated murder or frustrated homicide. If the victim’s wounds are
not fatal, the crime is only attempted murder or attempted homicide.

Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the
victim’s wounds. While Dr. Belleza testified that "head injuries are always very serious," 12 he could not
categorically say that Rufino’s wounds in this case were "fatal." Thus:

Q: Doctor, all the injuries in the head are fatal?

A: No, all traumatic injuries are potentially treated.

Q: But in the case of the victim when you treated him the wounds actually are not fatal on that
very day?

A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case
the patient preferred to go home at that time.

Q: The findings also indicated in the medical certificate only refers to the length of the wound
not the depth of the wound?

A: When you say lacerated wound, the entire length of the layer of scalp.

Q: So you could not find out any abrasion?

A: It is different laceration and abrasion so once the skin is broken up the label of the frontal
lo[b]e, we always call it lacerated wound, but in that kind of wound, we did not measure the
depth.13

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred
fracture or that he bled internally as a result of the pounding of his head. The wounds were not so
deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza
further testified:

Q: So, in the medical certificate the wounds will not require surgery?

A: Yes, Madam.

Q: The injuries are slight?

A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus –
the problem the contusion that occurred in the brain.

xxxx

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?

A: Head injury at least be observed within 24 hours, but some of them would rather go home
and then come back.

Q: So the patient did not stay 24 hours in the hospital?

A: No, Your Honor.

Q: Did he come back to you after 24 hours?

A: I am not sure when he came back for follow-up. 14

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution’s
claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel
liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender.

Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from
the judgment of the RTC convicting him for frustrated homicide.

But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the
maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto
mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new
penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to
the RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state
only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: "That no
application for probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction."15 Since Arnel appealed his conviction for frustrated homicide, he
should be deemed permanently disqualified from applying for probation.

But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to
such privilege; he certainly does not have. What he has is the right to apply for that privilege. The
Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to
apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or
not to grant him the privilege of probation, taking into account the full circumstances of his case.

Secondly, it is true that under the probation law the accused who appeals "from the judgment of
conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by
the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme
Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on
Arnel based on the trial court’s annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial
court’s judgment—even if this has been found in error. And, worse, Arnel will now also be made to
pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang
kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip).
Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would
dilute the ruling of this Court in Francisco v. Court of Appeals 16 that the probation law requires that an
accused must not have appealed his conviction before he can avail himself of probation. But there is
a huge difference between Francisco and this case.

In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral
defamation and sentenced him to a prison term of one year and one day to one year and eight
months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he
chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the
acquittal did not come, he wanted probation. The Court would not of course let him. It served him
right that he wanted to save his cake and eat it too. He certainly could not have both appeal and
probation.
The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his
conviction before he can avail himself of probation. This requirement "outlaws the element of
speculation on the part of the accused—to wager on the result of his appeal—that when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory the
appellate court’s affirmance of his conviction." 17

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for
probation. He did not have a choice between appeal and probation. He was not in a position to say,
"By taking this appeal, I choose not to apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation
under this Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains
that those who will appeal from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him.
He claimed that the evidence at best warranted his conviction only for attempted, not frustrated,
homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the
beginning to bring down the penalty to the level where the law would allow him to apply for probation.

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of
attempted homicide, is an original conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have found him guilty of the correct
offense and imposed on him the right penalty of two years and four months maximum.lavvphil This
would have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his.
The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory provisions. 18 As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he comes within its letter; to do so
would be to disregard the teaching in many cases that the Probation Law should be applied in favor
of the accused not because it is a criminal law but to achieve its beneficent purpose. 19

One of those who dissent from this decision points out that allowing Arnel to apply for probation after
he appealed from the trial court’s judgment of conviction would not be consistent with the provision of
Section 2 that the probation law should be interpreted to "provide an opportunity for the reformation of
a penitent offender." An accused like Arnel who appeals from a judgment convicting him, it is claimed,
shows no penitence.

This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however,
it convicted Arnel of the wrong crime, frustrated homicide, that carried a penalty in excess of 6 years.
How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not
commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would
be sending him straight behind bars. It would be robbing him of the chance to instead undergo
reformation as a penitent offender, defeating the very purpose of the probation law.

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct
penalty of two years and four months maximum, he would have had the right to apply for probation.
No one could say with certainty that he would have availed himself of the right had the RTC done
right by him. The idea may not even have crossed his mind precisely since the penalty he got was not
probationable.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for
probation when the new penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation?

WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31,
2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY
beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as moral damages,
without prejudice to petitioner applying for probation within 15 days from notice that the record of the
case has been remanded for execution to the Regional Trial Court of San Jose, Camarines Sur, in
Criminal Case T-2213.

SO ORDERED.

ROBERTO A. ABAD
 EN BANC

G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner,
vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, Respondents.

DECISION

TINGA, J.:

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the
Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the
Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the
elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on
the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was
sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already
granted probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the sentence
of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued
that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation
shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully
discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000
allegedly terminated his probation and restored to him all the civil rights he lost as a result of his
conviction, including the right to vote and be voted for in the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary
hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified
from running for Punong Barangay.

The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the
Comelec en banc, the Resolution of the First Division was affirmed. According to the Comelec en
banc, Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for
an offense involving moral turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence, are disqualified from running for any
elective local position. 5 Since Moreno was released from probation on December 20, 2000,
disqualification shall commence on this date and end two (2) years thence. The grant of probation to
Moreno merely suspended the execution of his sentence but did not affect his disqualification from
running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take
precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is
a much later enactment and a special law setting forth the qualifications and disqualifications of
elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code applies
only to those who have served their sentence and not to probationers because the latter do not serve
the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local
Government Code because it is a special law which applies only to probationers. Further, even
assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes
an implied pardon of his previous misconduct.

In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor
General argues that this Court in Dela Torre v. Comelec 7 definitively settled a similar controversy by
ruling that conviction for an offense involving moral turpitude stands even if the candidate was
granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and
remains totally unaffected notwithstanding the grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out
material differences between his case and Dela Torre v. Comelec which allegedly warrant a
conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for
violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of Sec.
40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for probation
nearly four (4) years after his conviction and only after appealing his conviction, such that he could
not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified
therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec.
40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase "within two (2)
years after serving sentence" found in Sec. 40(a) of the Local Government Code, which reads:

Sec. 40. Disqualifications. – The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence; [Emphasis supplied.]

....

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the
crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the first
part of the above-quoted provision. The question of whether Arbitrary Detention is a crime involving
moral turpitude was never raised in the petition for disqualification because the ground relied upon by
Mejes, and which the Comelec used in its assailed resolutions, is his alleged disqualification from
running for a local elective office within two (2) years from his discharge from probation after having
been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to
Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention
involves moral turpitude is not decisive of this case, the crucial issue being whether Moreno’s
sentence was in fact served.
In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the
grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code
was based primarily on the finding that the crime of fencing of which petitioner was convicted involves
moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase "within two
(2) years after serving sentence" should have been interpreted and understood to apply both to those
who have been sentenced by final judgment for an offense involving moral turpitude and to those who
have been sentenced by final judgment for an offense punishable by one (1) year or more of
imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both
parts of Sec. 40(a) of the Local Government Code.

The Court’s declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we
should add, ought to be considered an obiter in view of the fact that Dela Torre was not even entitled
to probation because he appealed his conviction to the Regional Trial Court which, however, affirmed
his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative
remedy of availing of the Probation Law, the purpose of which is to prevent speculation or
opportunism on the part of an accused who, although already eligible, did not at once apply for
probation, but did so only after failing in his appeal. 9

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase
"service of sentence," understood in its general and common sense, means the confinement of a
convicted

person in a penal facility for the period adjudged by the court. 10 This seemingly clear and
unambiguous provision, however, has spawned a controversy worthy of this Court’s attention
because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the
law to include even those who did not serve a day of their sentence because they were granted
probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not
serve the adjudged sentence having been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as
the accessory penalties of suspension from public office and from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from
the order granting probation the paragraph which required that petitioner refrain from continuing with
her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special disqualification from the
right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period 11 imposed upon Moreno were similarly suspended upon the grant
of probation.

It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put on
hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation
suspends the execution of the sentence. During the period of probation, 12 the probationer does not
serve the penalty imposed upon him by the court but is merely required to comply with all the
conditions prescribed in the probation order. 13

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case.
They focused on the fact that Moreno’s judgment of conviction attained finality upon his application
for probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec.
40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced
by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2)
years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of
the grant of probation which, we reiterate, should not be equated with service of sentence, should not
likewise be disqualified from running for a local elective office because the two (2)-year period of
ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position.
Sec. 16 of the Probation Law provides that "[t]he final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his
liability for any fine imposed as to the offense for which probation was granted." Thus, when Moreno
was finally discharged upon the court’s finding that he has fulfilled the terms and conditions of his
probation, his case was deemed terminated and all civil rights lost or suspended as a result of his
conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives
room for judicial interpretation, 14 our conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the
intended meaning of the phrase "service of sentence," i.e., whether the legislature also meant to
disqualify those who have been granted probation. The Court’s function, in the face of this seeming
dissonance, is to interpret and harmonize the Probation Law and the Local Government
Code. Interpretare et concordare legis legibus est optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity
conferred by the state, which is granted to a deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of which he was convicted. 15 Thus, the Probation
Law lays out rather stringent standards regarding who are qualified for probation. For instance, it
provides that the benefits of probation shall not be extended to those sentenced to serve a maximum
term of imprisonment of more than six (6) years; convicted of any offense against the security of the
State; those who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00;
those who have been once on probation; and those who are already serving sentence at the time the
substantive provisions of the Probation Law became applicable. 16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers
offenses punishable by one (1) year or more of imprisonment, a penalty which also covers
probationable offenses. In spite of this, the provision does not specifically disqualify probationers from
running for a local elective office. This omission is significant because it offers a glimpse into the
legislative intent to treat probationers as a distinct class of offenders not covered by the
disqualification.
Further, it should be mentioned that the present Local Government Code was enacted in 1991, some
seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the enumerated
disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to have knowledge
of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification from holding public
office. That it chose not to include probationers within the purview of the provision is a clear
expression of the legislative will not to disqualify probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception to
the Local Government Code. While the Local Government Code is a later law which sets forth the
qualifications and disqualifications of local elective officials, the Probation Law is a special legislation
which applies only to probationers. It is a canon of statutory construction that a later statute, general
in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special
provisions of such earlier statute. 17

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the
disqualification to include Moreno, the Comelec committed an egregious error which we here correct.
We rule that Moreno was not disqualified to run for Punong Barangay of Barangay Cabugao, Daram,
Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the
crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of
Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the
poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where
he said that "it would be far better to err in favor of popular sovereignty than to be right in complex but
little understood legalisms."

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en

banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well as
all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The
Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement
as to costs.

SO ORDERED.

DANTE O. TINGA