Art 15-20 Cases Crim Law

G.R. No. 76338-39 February 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RENATO TAC-AN Y HIPOS, accused-appellant. FELICIANO, J.:

Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City, convicting him of qualified illegal possession of a firearm and ammunition in Criminal Case No. 4007 and of murder in Criminal Case No. 4012 and imposing upon him the penalty of death in both cases.

On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of Presidential Decree No. 1866, committed as follows:

That, on or about the 14th day of December 1984, in the City of Tagbilaran Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, while acting under the influence of drugs and without any license or permit from the proper authorities, did then and there willfully, unlawfully and feloniously have ill his possession, custody and control an unlicensed firearm, a SMITH & WESSON Airweight caliber .38 revolver with Serial Number 359323 with Five (5) spent shells and Five (5) live ammunitions and without any justifiable cause and with intent to kill, used the said firearm and ammunitions to shoot one Francis Ernest Escano III hitting and inflicting upon the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS � Head & Chest (through and through);

Head Entrance � 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port � 1.3 x 0.3 cm.; Right Cheek. 3.5 cm. above the right external meatus;

Chest Entrance � 0.3 x 1 cm. � Right Infrascapular Area at the level of the 7th Intercostal Rib (Back); Exist � 0.3 cm. dia; above the right nipple;

Y-shape laceration, check at the right angle of the mouth, Right

Dimensions: 3 x 1.2 cm. x 1.8

which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the Republic of the Philippines.

Acts committed contrary to the provisions of Section 1, paragraph 2 of the Presidential Decree No. 1866. 1

On 11 January 1985, an amended information 2 for murder was also filed against appellant reading as follows:

That, on or about the 14th day of December, 1984 in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause and with intent to kill, evident pre-meditation treachery, while acting under the influence of drugs, with cruelty and deliberately augmenting the suffering of the victim, did then and there willfully, unlawfully and feloniously attack, assault and shot one Francis Ernest Escano with the use of an unlicensed SMITH & WESSON Airweight caliber .38 revolver with Serial Number 359323 hitting and inflicting upon the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS � Head and Chest (Through & Through);

Head Entrance � 14 x 2.2 cm., Left Fronto-temporal Area; Port � l.3 x 0.3 cm., Right Cheek, 3.5 cm., above the right external meatus;

Chest Entrance � 0.3 x 1 cm. � right Infrascapular Area at the level of the 7th Inter-Costal Rib (back); exit � 0.3 cm. dia; above the right nipple

Y-shape laceration, cheek at the angle of the mouth, Right

Dimensions: 3 x 1.2 cm. x 1.8.

which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the heirs of the deceased namely: Judge & Mrs. Francisco Rey H. Escano, in the amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, in relation to Section 17 of Batas Pambansa Blg. 179, with the qualifying aggravating circumstances of evident premeditation, treachery and acting under the influence of dangerous drugs and cruelty.

Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated upon motion of the prosecution and tried jointly. On 31 July 1986, the trial court rendered a decision 3 convicting appellant under both informations. The dispositive portion of the decision read as follows:

WHEREFORE, all the foregoing premises considered, decision is hereby rendered in Criminal Case No. 4007 finding the accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of Illegal Possession of Firearms and Ammunitions qualified with Murder under Section 1, paragraphs 1 and 2 of Presidential Decree No. 1866 and hereby sentences said Renato Tac-an y Hipos to suffer the penalty of DEATH. Further, decision is also rendered in Criminal Case No. 4012 finding the same accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of Murder under Article 248 of the Revised Penal Code, in relation to Batas Pambansa Blg. 179 and P.D. 1866. Appreciating the aggravating circumstance of evident premeditation (treachery used to qualify the crime to murder) and the special aggravating circumstances of acting while under the influence of dangerous drugs and with the use of an unlicensed firearm and with insult to a person in authority and there being no mitigating circumstance to offset them, and sentences the said Renato Tac-an y Hipos to suffer the penalty of DEATH. The accused is likewise ordered to indemnify the heirs of the deceased Francis Ernest Escano in the amount of THIRTY THOUSAND PESOS (P30,000.00); to pay actual compensatory damages in the amount of ONE HUNDRED EIGHT THOUSAND THREE HUNDRED TEN PESOS (P108,310.00); to pay moral damages to Judge Francisco Escano, Jr., the sum of ONE HUNDRED THOUSAND PESOS (P100,000.00) and to Mrs. Lydia Escano the sum of ONE HUNDRED THOUSAND PESOS (P100,000.00) for the mental anguish and suffering each experienced because of the death of Francis Ernest. All such amount shall earn legal interest from the time this decision shall become final and executory until fully satisfied. The accused shall also pay the costs.

SO ORDERED.

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Immediately after promulgation of the decision, appellant signified his intention to appeal to this Court, although the same was subject to automatic review by this Court.

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

I. The lower court erred in believing the prosecution's version of the case instead of according full faith and credence to the defendant's version.

II. The trial court erred in not holding that Renato Tac-an was justified in shooting the deceased.

III. The trial court erred in not holding that in (sic) the least the defendant acted in incomplete self-defense in shooting the deceased.

IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the defendant inasmuch as said decree was enforceable only during the existence of the Martial Law Regime.

V. The trial court erred in not holding that the defendant was placed twice in jeopardy for having been prosecuted for violation of P.D. 1866 despite his being prosecuted for murder in an information which alleges that the accused used an unlicensed firearm in killing the deceased.

VI. The trial court erred in not adjudging the defendant innocent of murder.

From the record, the facts may be collated and summarized as follows:

Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased Francis Ernest Escano III, fifteen (15) years old, were classmates in the third year of high school of the Divine Word College in Tagbilaran City. They were close friends, being not only classmates but also members of the same gang, the Bronx gang. Renato had been to the house where Francis and his parents lived, on one or two occasions. On those occasions, Francis' mother noticed that Renato had a handgun with him. Francis was then advised by his mother to distance himself from Renato. 4

Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour. Sometime in September 1984, Renato and Francis quarrelled with each other, on which occasion Francis bodily lifted Arnold Romelde from the ground. Arnold was friend and companion to Renato. The quarrel resulted in Renato and Francis being brought to the high school principal's office. The strained relationship between the two (2) erstwhile friends was aggravated in late November 1984 when Francis teamed that Renato, together with other members of the Bronx gang, was looking for him, apparently with the intention of beating him up. Further deterioration of their relationship occurred sometime in the first week of December 1984, when graffiti appeared on the wall of the third year high school classroom and on the armrest of a chair in that classroom, deprecating the Bronx gang and describing Renato as "bayot" (homosexual) 5 Renato attributed the graffiti to Francis.

At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high school building to attend his English III class. Renato placed his scrapbook prepared for their Mathematics class on his chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a question. Upon returning to his chair, he found Francis sitting there, on the scrapbook. Renato was angered by what he saw and promptly kicked the chair on which Francis was seated. Francis, however, explained that he had not intentionally sat down on Renato's scrapbook. A fistfight would have ensued but some classmates and two (2) teachers, Mrs. Baluma and Mr. Damaso Pasilbas, intervened and prevented them from assaulting each other. After the two (2) had quieted down and apparently shaken hands at the instance of Mrs. Baluma, the latter resumed her English III class. Francis sat on the last row to the extreme right of the teacher while Renato was seated on the same last row at the extreme left of the teacher. While the English III class was still going on, Renato slipped out of the classroom and went home to get a gun. He was back at the classroom approximately fifteen (15) minutes later. 6

The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in Room 15 when Renato suddenly burst into the room, shut the door and with both hands raised, holding a revolver, shouted "Where is Francis?" Upon sighting Francis seated behind and to the light of student Ruel Ungab, Renato fired at Francis, hitting a notebook, a geometry book and the armrest of Ruel's chair. Francis and Ruel jumped up and with several of their classmates rushed forward towards the teacher's platform to seek protection from their teacher. Renato fired a second time, this time hitting the blackboard in front of the class. Francis and the other students rushed back towards the rear of the room. Renato walked towards the center of the classroom and fired a third time at Francis, hitting the concrete wall of the classroom. Francis and a number of his classmates rushed towards the door, the only door to and from Room 15. Renato proceeded to the teacher, s platform nearest the door and for the fourth time fired at Francis as the latter was rushing towards the door. This time, Francis was hit on the head and he fell on the back of Ruel and both fell to the floor. Ruel was pulled out of the room by a friend; Francis remained sprawled on the floor bleeding profusely. 7

Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo Baluma, apparently unaware that it was Renato who had gunned down Francis, approached Renato and asked him to help Francis as the latter was still alive inside the room. Renato thereupon re-entered Room 15, closed the door behind him, saying: "So, he is still alive. Where is his chest?" Standing over Francis sprawled face down on the classroom floor, Renato aimed at the chest of Francis and fired once more. The bullet entered Francis' back below the right shoulder, and exited on his front chest just above the right nipple. 8

Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato proceeded to the ground floor and entered the faculty room. There, he found some teachers and students and ordered them to lock the door and close the windows, in effect holding them as hostages. He also reloaded his gun with five (5) bullets. After some time, a team of Philippine Constabulary troopers led by Capt. Larino Lazo arrived and surrounded the faculty room. With a hand-held public address device, Capt. Lazo called upon Renato to surrender himself Renato did not respond to this call. Renato's brother approached Capt. Lazo and volunteered to persuade his brother to give up. Renato's father who, by this time had also arrived, pleaded with Renato to surrender himself Renato then turned over his gun to his brother through an opening in the balustrade of the faculty room. Capt. Lazo took the gun from Renato's brother, went to the door of the faculty room, entered and placed Renato under arrest. 9

Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis but could not open the door which Renato had locked behind him. One of the students entered the room by climbing up the second floor on the outside and through the window and opened the door from the inside. The teachers and students brought Francis down to the ground floor from whence the PC soldiers rushed him to the Celestino Gallares Memorial Hospital. 10 Francis died before reaching the hospital.

Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer deposited the revolver recovered from Renato which was an Airweight Smith and Wesson .38 caliber revolver, with Serial No. 359323, as well as the five (5) live bullets removed from the said revolver, and the five (5) empty cartridges which Renato had turned over to him. Ballistic examination conducted by Supervising Ballistician, Artemio Panganiban, National Bureau of Investigation, Cebu, showed that the empty cartridge cases had been fired from the revolver recovered from Renato. 11

Appellant at the outset assails the trial court for having believed the prosecution's version of the facts instead of the version offered by the appellant. The trial court took into account, inter alia, the positive and direct testimony of:

1. Mrs. Liliosa Baluma who testified as to, among other things, the events which took place inside her English III classroom immediately before the shooting;

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2. Ruel Ungab � a fifteen (15) year old classmate of Renato and Francis, who had fallen on the floor with Francis when the latter was finally hit by Renato;

3. Damaso Pasilbas � the Mathematics teacher who was holding his class when Renato had burst into Room 15 and started firing at Francis; and

4. Napoleon Jumauan � another sixteen (16) year old, classmate of Renato and Francis who was inside the classroom when Renato had started firing at Francis and who was only about a foot away from the head of Francis when Renato, having re-entered Room 15, had fired at Francis as the latter was sprawled on the floor of the classroom.

After careful examination of the record, we find no reason to disagree with the conclusion of the trial court that Renato had indeed shot and killed Francis under the circumstances and in the manner described by these witnesses.

1. The claim of self-defense.

Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he shot Francis. For a claim of self-defense to be sustained, the claimant must show by clear and convincing evidence that the following requisites existed:

a) unlawful aggression on the part of the victim;

b) reasonable necessity of the means employed by the accused to repel the aggression; and

c) lack of sufficient provocation on the part of the accused. 12

Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's English III class, Francis had approached him:

(Atty. Seno, Defense Counsel)

Q: How did it happened (sic) that you had a conversation with Francis?

(Renato)

A: While the class was going on, Mrs. Baluma was writing on the blackboard.

Q: Then what happened?

A: While our teacher was writing on the blackboard Francis suddenly got near me.

Q: And what happened when Francis approached you?

A: He said, 'So you are brave now you had a (sic) guts to fight against me.'

Q: And what else did he say?

A: He said, 'Go home, get your firearm because I will go home to get a gun.'

Q: Was that all that he told you?

A: He further said, 'You go home get your firearm, if you won't go home and get a gun, I will go to your place and kill you including your parents, brothers and sisters.'

Q: And after that where did Francis go?

A: Before the bell rang he went ahead. 13

(Emphasis supplied)

We note at the outset that there was no evidence before the Court, except Renato's own testimony, that Francis had uttered the above statements attributed to him by Renato. Although there had been about twenty-five (25) other students, and the teacher, in the classroom at the time, no corroborating testimony was offered by the defense. In the second place, assuming (arguendo merely) that Francis had indeed made those statements, such utterances cannot be regarded as the unlawful aggression which is the first and most fundamental requirement of self-defense. Allegedly uttered in a high school classroom by an obviously unarmed Francis, such statements could not reasonably inspire the "well grounded and reasonable belief" claimed by Renato that "he was in imminent danger of death or bodily harm." 14 Unlawful aggression refers to an attack that has actually broken out or materialized or at the very least is clearly imminent: it cannot consist in oral threats or a merely threatening stance or posture. 15 Further as pointed out by the Solicitor General, Francis was obviously without a firearm or other weapon when Renato returned and burst into Room 15 demanding to know where Francis was and forthwith firing at him repeatedly, without the slightest regard for the safety of his other classmates and of the teacher. There being no unlawful aggression, there simply could not be self-defense whether complete or incomplete, 16 and there is accordingly no need to refer to the other requirements of lawful self-defense.

2. The claim that P.D. No. 1866 is inapplicable.

As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed firearm, a Smith and Wesson Airweight.38 caliber revolver with five (5) spent bullets and five (5) live ones and with having used such firearm and ammunition to shoot to death Francis Ernest Escano III, in violation of Section 1 of P.D. No. 1866.

Section 1 of P.D. No. 1866 provides, in relevant part, that:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. � The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. (Emphasis supplied)

Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D. No. 1866] issuance no longer exists." He argues that P.D. No. 1866 was enforceable only during the existence of martial law, and that when martial law was "lifted in 1979," the

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reason for the "existence" of P.D. No. 1866 faded away, with the result that the "original law on firearms, that is, Section 2692 of the [Revised] Administrative Code, together with its pre-martial law amendments, came into effect again thereby replacing P.D. No. 1866." 17

There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it was intended to remain in effect only for the duration of the martial law imposed upon the country by former President Marcos. Neither does the statute contain any provision that so prescribes its lapsing into non-enforceability upon the termination of the state or period of martial law. On the contrary, P.D. No. 1866 by its own terms purported to "consolidate, codify and integrate" all prior laws and decrees penalizing illegal possession and manufacture of firearms, ammunition and explosives in order "to harmonize their provisions as well as to update and revise certain provisions and prior statutes "in order to more effectively deter violators of the law on firearms, ammunitions and explosives." 18 Appellant's contention is thus without basis in fact.

3. The claim of double jeopardy.

It is also contended by appellant that because he had already been charged with illegal possession of a firearm and ammunition in Criminal Case No. 4007, aggravated by the use of such unlicensed firearm to commit a homicide or murder, he was unconstitutionally placed in jeopardy of punishment for the second time when he was charged in Criminal Case No. 4012 with murder "with the use of an unlicensed [firearm]," in violation of Article 248 of the Revised Penal Code in relation to Section 17 of B.P. Blg. 179.

It is elementary that the constitutional right against double jeopardy protects one against a second or later prosecution for the same offense, and that when the subsequent information charges another and different offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in themselves are quite different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second jeopardy.

We note that the information in Criminal Case No. 4007 after charging appellant with unlawful possession of an unlicensed firearm and ammunition, went on to state that said firearm and ammunition had been used to shoot to death Francis Ernest Escaño III. We note also that the amended information in Criminal Case No. 4012 after charging appellant with the unlawful killing of Francis Ernest Escaño III, stated that the killing had been done with the use of an unlicensed firearm. We believe these additional allegations in the two (2) informations did not have the effect of charging appellant with having committed the same offense more than once.

However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial court did take into account as a "special aggravating circumstance" the fact that the killing of Francis had been done "with the use of an unlicensed firearm." In so doing, we believe and so hold, the trial court committed error. There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. 19

In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition or disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the increase of the imposable penalty for unlawful possession or manufacture, etc. of the unlicensed firearm where such firearm was used to destroy human life. Although the circumstance that human life was destroyed with the use of the unlicensed firearm is not an aggravating circumstance under Article 14 of the Revised Penal Code, it may still be taken into account to increase the penalty to death (reclusion perpetua, under the 1987 Constitution) because of the explicit provisions of P.D. No. 1866. As noted earlier, the unlawful possession of an unlicensed firearm or ammunition is an offense punished under a special law and not under the Revised Penal Code.

4. The claim that there was no treachery.

Appellant contends that there was no treachery present because before any shot was fired, Renato had shouted "where is Francis?" Appellant in effect suggests his opening statement was a warning to Francis and that the first three (3) shots he had fired at Francis were merely warning shots. Moreover, building upon his own testimony about the alleged threat that Francis had uttered before he (Renato) left his English III class to go home and get a gun, appellant argues that Francis must have anticipated his return and thus had sufficient time to prepare for the coming of the appellant. 20 Appellant's contention, while ingenious, must be rejected. The trial court made a finding of treachery taking explicit account of the following factors:

1. Room 15 of the Divine Word College High School Department Tagbilaran City, is situated in the second floor of the building. It is a corner room and it has only one (1) door which is the only means of entry and exit;

2. At the time of the attack, the deceased was seated on his chair inside his classroom and was writing on the armrest of his chair and also talking to Ruel Ungab and while their teacher, Mr. Damaso Pasilbas was checking the attendance. The deceased was not aware of any impending assault neither did he have any means to defend himself;

3. The accused used an airweight Smith & Wesson .38 caliber revolver in shooting to death the defenseless and helpless Francis Ernest Escaño;

4. The attack was so sudden and so unexpected. the accused consciously conceived that mode of attack;

5. The accused fired at Francis again and again and did not give him a chance to defend himself. After the deceased was hit on the head and fell to the floor while he was already sprawled and completely defenseless the accused fired at him again and the deceased was hit on the chest;

6. The deceased was not armed. He was totally defenseless. He was absolutely not aware of any coming attack. 21

The Court also pointed out that Renato must have known that Francis while inside Room 15 had no means of escape there being only one (1) door and Room 15 being on the second floor of the building. Renato in effect blocked the only exit open to Francis as he stood on the teacher's platform closest to the door and fired as Francis and Ruel sought to dash through the door. Renato's question "where is Francis?" cannot reasonably be regarded as an effort to warn Francis for he shot at Francis the instant he sighted the latter, seated and talking to Ruel Ungab. That Renato fired three (3) shots before hitting Francis with the fourth shot, can only be ascribed to the indifferent markmanship of Renato and to the fact that Francis and the other students were scurrying from one part of the room to the other in an effort to evade the shots fired by Renato. The cumulative effect of the circumstances underscored by the trial court was that the attack upon Francis had been carried out in a manner which disabled Francis from defending himself or retaliating against Renato. Finally, the circumstance that Renato, having been informed that Francis was still alive, re-entered Room 15 and fired again at Francis who lay on the floor and bathed with his own blood, manifested Renato's conscious choice of means of execution which directly and especially ensured the death of his victim without risk to himself. 22 We are compelled to agree with the trial court that treachery was here present and that, therefore, the killing of Francis Ernest Escaño III was murder.

5. The claim that there was no evident premeditation.

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The trial court also found the presence of evident premeditation and appreciated the same as a generic aggravating circumstance. Here, it is the urging of the appellant that the requisites of evident premeditation had not been sufficiently shown. In order that evident premeditation may be taken into account, there must be proof of (a) the time when the offender formed his intent to commit the crime; (b) an action manifestly indicating that the offender had clung to his determination to commit the crime; and (c) of the passage of a sufficient interval of time between the determination of the offender to commit the crime and the actual execution thereof, to allow him to reflect upon the consequences of his act. 23 The defense pointed out that barely fifteen (15) minutes had elapsed from the time Renato left his English III class and the time he returned with a gun. While there was testimony to the fact that before that fatal day of 14 December 1984, anger and resentment had welled up between Francis and Renato, there was no evidence adequately showing when Renato had formed the intention and determination to take the life of Francis. Accordingly, we must discard evident premeditation as an aggravating circumstance.

6. The claim that the killing was not done under the influence of a dangerous drug.

Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:

SEC. 17. The provisions of any law to the contrary notwithstanding, when a crime is committed by an offender who is under the influence of dangerous drugs, such state shall be considered as a qualifying aggravating circumstance in the definition of a crime and the application of the penalty provided for in the Revised Penal Code.

The trial court found that Francis was killed by Renato while the later was under the influence of a dangerous drug, specifically marijuana, and took that into account as a "special aggravating circumstance". No medical evidence had been submitted by the prosecution to show that Renato had smoked marijuana before gunning down Francis. Fourteen (14) days had elapsed after December 14, 1984 before Renato was medically examined for possible traces of marijuana; the results of the examination were negative. Defense witness Dr. Rogelio Ascona testified that in order to have a medically valid basis for determining the presence of marijuana in the human system, the patient must be examined within twenty-four (24) hours from the time he is supposed to have smoked marijuana. 24 The prosecution had presented Orlando Balaba, a student at the Divine Word College, High School Department, who testified that he found Renato and one Jaime Racho inside the men's room of the High School Department sucking smoke from a hand-rolled thing that look like a cigarette, that he had asked Renato what that was and that Renato had replied damo (marijuana). 25 While the testimony of Orlando Balaba was corroborated by two (2) other prosecution witnesses, we believe that Orlando Balaba's testimony was incompetent to show that what Renato and Jaime Racho were smoking inside the men's room was indeed marijuana. It was pointed out by apellant that Orlando Balaba had never smoked nor smelled marijuana.

In the absence of medical evidence, the Court took into account certain detailed factors as circumstantial evidence supporting the testimony of Orlando Balaba. These circumstances were:

The circumstance of place where the killing was committed, the circumstance of the manner of the attack, the circumstance of holding hostage some teachers and students inside the faculty room, the circumstance of terrifying an entire school, the circumstance that sitting on a scrapbook is too insignificant as to arouse passion strong enough to motivate a killing, are circumstantial evidences that gave the court no room for doubt that prosecution witnesses Orlando Balaba, Benjamin Amper and Allan de la Serna truthfully told the court that they saw the accused smoking marijuana inside the comfort room at 1:45 in the afternoon of December 14, 1984. ... . 26

The above circumstances pointed to by the trial court may be indicative of passionate anger on the part of Renato; we do not believe that they necessarily show that Renato had smoked marijuana before entering his English III class. In the absence of competent medical or other direct evidence of ingestion of a dangerous drug, courts may be wary and critical of indirect evidence, considering the severe consequences for the accused of a finding that he had acted while under the influence of a prohibited drug. The Court considers that the evidence presented on this point was simply inadequate to support the ruling of the trial court that Renato had shot and killed Francis while under the influence of a prohibited drug.

7. The claim that appellant had voluntarily surrendered.

Appellant contends that he had voluntarily surrendered and that the trial court should have considered that mitigating circumstance in his favor. The trial court did not, and we consider that it correctly refused to do so. Firstly, Renato surrendered his gun, not himself, 27 by handing over the weapon through the balustrade of the faculty room. Secondly, he surrendered the gun to his brother, who was not in any case a person in authority nor an agent of a person in authority. 28 Thirdly, Renato did not surrender himself he was arrested by Capt. Lazo. The fact that he did not resist arrest, did not constitute voluntary surrender. 29 Finally, if it be assumed that Renato had surrendered himself, such surrender cannot be regarded as voluntary and spontaneous. Renato was holed up in the faculty room, in effect holding some teachers and students as hostages. The faculty room was surrounded by Philippine Constabulary soldiers and there was no escape open to him. He was not entitled to the mitigating circumstance of voluntary surrender.

8. Whether or not the crime was committed in contempt of or with insult to the public authorities.

The trial court held that the shooting to death of Francis had been done "in contempt of or with insult to the public authorities:

Under Republic Act 1978, as amended, a teacher of a public or private school is considered a person in authority. The fact that Mr. Damaso Pasilbas, the teacher in mathematics, was already checking the attendance did not deter the accused from pursuing his evil act, The accused ignored his teacher's presence and pleas. Not yet satisfied with the crime and terror he had done to Francis and the entire school, the accused entered the faculty room and held hostage the teachers and students who were inside that room. To the court, this act of the accused was an insult to his teachers and to the school, an act of callus disregard of other's feelings and safety and completely reprehensible. 30

We believe the trial court erred in so finding the presence of a generic aggravating circumstance. Article 152 of the Revised Penal Code, as amended by Republic Act No. 1978 and Presidential Decree No. 299, provides as follows:

Art. 152. Persons in authority and agents of persons in authority. � Who shall be deemed as such. � In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority.

A person who by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as a barrio councilman, barrio policeman and barangay leader and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority.

In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority. (As amended by P.D. No. 299, September 19, 1973 and Batas Pambansa Blg. 873, June 12, 1985).

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Careful reading of the last paragraph of Article 152 will show that while a teacher or professor of a public or recognized private school is deemed to be a "person in authority," such teacher or professor is so deemed only for purposes of application of Articles 148 (direct assault upon a person in authority), and 151 (resistance and disobedience to a person in authority or the agents of such person) of the Revised Penal Code. In marked contrast, the first paragraph of Article 152 does not identify specific articles of the Revised Penal Code for the application of which any person "directly vested with jurisdiction, etc." is deemed "a person in authority." Because a penal statute is not to be given a longer reach and broader scope than is called for by the ordinary meaning of the ordinary words used by such statute, to the disadvantage of an accused, we do not believe that a teacher or professor of a public or recognized private school may be regarded as a "public authority" within the meaning of paragraph 2 of Article 14 of the Revised Penal Code, 31 the provision the trial court applied in the case at bar.

ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the following manner and to the following extent only:

1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion perpetua;

2. In Criminal Case No. 4012 � (a) the aggravating circumstances of evident premeditation and of having acted with contempt of or insult to the public authorities shall be DELETED and not taken into account; and (b) the special aggravating circumstances of acting while under the influence of dangerous drugs and with the use of an unlicensed firearm shall similarly be DELETED and not taken into account. There being no generic aggravating nor mitigating circumstances present, the appellant shall suffer the penalty of reclusion perpetua.

The two (2) penalties of reclusion perpetua shall be served successively in accordance with the provisions of Article 70 of the Revised Penal Code. As so modified, the decision of the trial court is hereby AFFIRMED. Costs against appellant.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-35022 December 21, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RICARDO VERZOLA & JOSEFINA MOLINA, accused-appellants.

Alberto Benesa for appellants.

Office of the Solicitor General for appellee.

ANTONIO, J.:

Appeal by Ricardo Verzola and Josefina Molina from the decision of the Court of First Instance of Abra, finding them guilty of the crime of Murder and sentencing them, respectively, viz.: Verzola, as principal, to suffer the penalty of life imprisonment, to indemnify the offended party in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay 3/4 of the costs; and Molina, as an accessory after the fact, to suffer an indeterminate penalty of six (6) years of prision correccional as maximum, and to pay 1/4 of the indemnity and costs.

At about 10:00 o'clock on the night of September 28, 1969, Bernardo Molina was clubbed to death by Ricardo Verzola in the presence of appellant Josefina Molina inside Molina's house at Barrio Lipcan, Bangued, Abra. The body of the victim was subsequently carried by the two appellee to the ground and left at the foot of the stairs. Appellant Verzola then went to his house, changed his clothes and threw his bloodstained sweater undershirt and underwear, including the piece of wood be used in clubbing the deceased, inside their toilet. Afterwards, he went to the municipal building and reported to the police authorities that Bernardo had died in an accident. The police authorities. together with the Municipal Health Officer, the Municipal Judge and a photographer went to Lipcan to conduct the investigation. They found the body of the deceased Bernardo Molina sprawled at the foot of the bamboo ladder (Exhibit "I"). Blood had oozed from the mouth, nose and ears. There were bloodstains on the floor of the bedroom of the house, on the mat, as well as on the beddings of the deceased. The bloodstains led to the bamboo ladder where some of the stains could be found on the steps of the ladder. When questioned by the police, Josefina revealed that the assailant of her husband was Ricardo Verzola. Upon her request, she was brought to the Office of the Chief of Police of Bangued, where at about 2:00 o'clock in the morning of September 29, 1969 she gave a written statement narrating the circumstances surrounding the incident in question and pointing to appellant Verzola as the assailant of her husband (Exhibits 'K" and "9"). In that extra-judicial statement, she stated that immediately after 10:00 o'clock in the evening of September 28. 1969, appellant Ricardo Verzola went to their house in Barrio Lipcan, Bangued Abra. entered the room where she was sleeping with her husband, Bernardo Molina, woke her up and had carnal knowledge of her; that when Bernardo Molina woke up and attempted to rise from the floor, that was the moment when Verzola clubbed Bernards, hitting him on the head several times that afterwards, she heard the sound of a body being dragged downstairs and the voice of Verzola saying that he was leaving and warning her not to say anything about the incident. She looked out of the door and saw her husband already lying prostrate at the foot of the stairs. This statement was sworn to by her before Municipal Judge Francisco T. Valera.

At about 4:00 o'clock that same morning, appellant Verzola was picked up by the police and brought to the municipal building, and there he also executed a written statement (Exhibit "L") admitting that he clubbed the victim several times. Thus, in his extra-judicial confession of September 29, 1969, the following statements appear

6. Q:�You stated that you killed Bernardo Molina inside his house, will (you) relate the true events or what happened when you killed him?

A:�Yes, sir.

Last night at the stated hour in Barrio Lipcan, Bangued, Abra, inside the house of Bernardo Molina I went and when I was under their house that was the time when I pricked with a bamboo twig just under the place where Josephina Molina, wife of Bernardo Molina was laying down, and I noticed that she was awake, and not long afterwards she came down and came to my place, and that was the time when we did everything that wanted both of us to do, but before that in the night, Josephina Molina told me 'THAT HER HUSBAND WAS PLANNING TO KILL ME and just after we were through what both of us did, Josephina went upstairs inside (the) house, and because I cannot withstand anymore the plan of her husband to kill me that was why I went upstairs and I went direct inside their room and I saw Bernardo Molina lying down sleeping, and that was the time when I clubbed him three times at the nape, and when he did not move anymore that was the time when we both with Josephine Molina throw him downstairs of their house. After that I went home.

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7. Q:-What is the weapon that you used in clubbing Berno Molina'

A:�-A wooden club which is rounded and about two palms in length, Sir.

Q:�You stated that while you were under the house of Bernardo Molina and you pricked with bamboo twig in awakening Josephina Molina and not long afterwards she came down and went to you hat is your relationship with Josephina Molina the wife of Bernardo Molina?

A:�Josephina Molina is my paramour.

Q:�How long have you been in that relationship with Josephina Molina?

A:�What I know is that it is already about 10 years, Sir. Because her daughter who is already 12 years old was still small.

Q:�With this relationship that you have with Josephina Molina did not her husband Bernardo Molina notice, so that Josephina told you that her husband was planning to kill you?

A:�Probably he had already, Sir. Because that is what his wife told me.

Q:�Who witnessed when you killed Bernardo Molina that you know'

A:�It was only Josephina the wife of Bernardo Molina, Sir.

Q:�What did Josephina say when you delivered club blows at her husband?

A:�'That is enough he is dead, let us bring him down', that is what she said, Sir.

Q:�Therefore, you want to say that you and Josephina Molina the wife of Bernardo helped each other in this killing?

A�I told her when she was going up, I'LL GO AHEAD OF HIM and what she answered to me, IT IS UP TO YOU', Sir.

Q:�And where was Josephina while you were clubbing Bernardo, if you remember?

A:�She was there lying down, and when Bernardo did not move she said that is enough.

Q:�What was your clothing when you went to club Bernardo Molina and also your trousers that you used?

A:�-Sweater with long sleeves colored light gray and white shorts, Sir.

Q:�Where are these sweater and shorts?

A�I dropped it inside our toilet, Sir.

Q:-And where is that club that you said you used in clubbing Bernardo Molina?

A�I also dropped it inside our toilet, Sir.

Q:�Is it not correct that you kill Bernardo Molina because he surprised you while you were beside his wife inside their room that night?

A:�No, Sir.

Q:�So that in this where you clubbed to death Bernardo Molina you admit as your guilt?

A:�Yes, Sir.

Q:�Do you have something more to add to this statement of yours?

A:�-No more, Sir. Unless there are more questions to me.

Q:�Were you forced, intimated, instructed or you were mauled in this where you made your statement?

A:�No, Sir.

Q:-Do You want to sign this statement of yours?

A�Yes. Sir." (Exhibit "Translation")

After execution his aforesaid written statement, he was brought to the residence of Judge Francisco T. Valera. Judge Valera sent the n out of his house, a Verzola of his constitutional rights, then read to him the contents of his aforementioned extrajudicial confession After satisfying himself that the statement was given voluntarily, he administered the oath to all appellant. Appellant Verzola then guided the po authorities to his house where, in their presence, he retrieved from the toilet his bloodstained clothes as well as the piece of wood which he used in clubbing the deceased.

Dr. Luis P. Bringas Municipal Health Officer of Bangued, Abra, who conducted the autopsy, testified that the died not instantaneously as a result of cardio-respiratory failure caused by "cerebral compressions and hemorrhages". The deceased sustained the following wounds:

LACERATED WOUND NO. I:�7 Cm. in length with irregular borders or edges extremities, the deeper tissues unevenly divided with tags of tissues showing in the wound. The edges and surrounding parts bruised and some hairs were found in the wound. Situated 6 Cm. in level of the posterior outer upper part of left Helix of the left ear, extending slantingly downwards below to middle portion of Occipital region.

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LACERATED WOUND NO. II:-6 Cm. in length situated 3 Cm. lateral to Lacerated Wound No. I, placed horizontally form mid point of the Lacerated Wound. The characteristics of the wound is the same as the above wounds.

LACERATED WOUND NO. III:-Same characteristics as of the above wounds. 5 Cm. in length situated 2 Cm. below Lacerated Wound No. II, extending slightly to the right side.

LACERATED WOUND NO. IV:-4.5 Cm. in length same as the characteristics of the other wounds above, but extending opposite Lacerated Wound No. I only from the right side." (Exhibit 'A").

He also declared that on the basis of the tion and direction of the w the t must have been behind the victim and said wounds were while the victim was lying in prone position, face downwards.

Both appellants admit that ft was appellant Verzola who the fatal blows on the victim. Versola, however, after impugning the (Exhibit "L'), claims that he did so in self- defense. Thus, V veracity of the facts contained in his extrajudicial confession testified that while he was feeding his two cows in front of his house at about 10:00 o'clock on the night of September 28, 1969, he heard cries for help coming from the direction of the house of Bernardo Molina- Upon recognize it to be the voice of the wife of Bernardo, he proceeded to the couples house. Upon reaching the yard of said house he heard the loud voice of a man. Thus that some intruder had entered the Molina's residence, he to am himself. At the threshold of the ladder, he picked up a pan of a plow (Exhibit B) At the door of the room, he heard the man say: 'Vulva of your mother, I will kill you." As he entered the room, he saw his co-appellant Josefina Mo in a comer, being maltreated by Bernardo Molina. After noticed his presence, he said: "Vulva of your mother, I will kill all of you." At that juncture, Bernardo stooped to pick up a bolo from the floor. As Bernardo was still bending towards the Mm V struck him twice with the piece of wood, hitting the head of the victim, causing him to fall. After he had fallen, he tried to revive the victim by ng the head of the latter on his lap will it, saying: "Hoy, Hoy, Hoy". He explained that this was the reason why there were bloodstains on his clothes. When Josefina asked him what happened, he replied that Bernardo met an accident. At his suggestion, they both carried the body of the victim down the stairs because according to him they wanted to bring the body to the hospital. As the hospital was too far and it was too dark, they left the body on the ground. After instructing Josefina to go and summon persons to help the victim , he went home. After changing his clothes and throwing his bloodstained clothing inside their toilet, he went to the municipal building in Bangued, Abra, and reported to the guard that there was a person who met an accident in Lipcan.

His co-appellant, Josefina Molina, also testified that during the first week of September, 1969 she had a quarrel with her husband because of Bernardo's o theft men, namely, Bocarile Santos Beloy and appellant Ricardo Verzola; that on the night in question, she and her husband had another quarrel and in the course thereof, she was boxed and strangled by her husband, causing her. to shout for help; that after a while, as she was crouching in a comer of the house, with her face covered, she heard a thud As she looked up, she noticed that Verzola was already inside their room, squatting on the floor and holding on his lap the head of her husband, that while Verzola was shaking the head of the deceased, he was saying: "Hoy, Hoy, Hoy." She c that out of fear, she assisted Verzola in carrying the body of Bernardo at the foot of the stairs where Verzola left her. After looking at the wounds of her husband, she became afraid and went up the house where her children were sleeping.

Both appellants c that they were not aware of the contents of their extra- judicial confessions as they were made to sign them by the police authorities without being able to read their contents.

There can be no question that once an accused has admitted the killing of a human being, the burden is on him to establish the existence of any circumstance which may justify the killing or at least attenuate the offense committed. To establish his exculpation, or the justification for the act, he must prove such affirmative allegation by clear, satisfactory and convincing evidence. 1 He must rely on the strength of his own evidence and not on the weakness of that for the prosecution for even if that were weak, it could not be disbelieved after the accused himself had admitted the killing. 2 It is evident that no such proof was adduced by appellant Verzola.

To begin with, the conduct of appellant Verzola lately after he committed the crime is incompatible with the reaction of one who killed another in legitimate self-defense. Although he claims that he brought the

victim down the stairs in order to bring him to the hospital, yet when he was able to get a jeep he did not utilize it for that purpose but instead used it in going to town. Moreover, although appellant Verzola was present at the scene of the crime when the police authorities were investigating the case, he kept quiet about the incident. It was only from Josefina Molina that the police learned for the first time that Verzola was the assailant of the deceased. Even then, Josefina had to request the police authorities to bring her to the poblacion so that she could talk more freely about the killing For his part, Verzola attempted to conceal his participation in the crime by hiding inside his toilet his bloodstained clothes and the weapon that he used in clubbing the deceased . These actuations of appellant Verzola reveal a behaviour which is incompatible with the reaction of one who acted in legitimate self-defense. 3 More significant however, are the undisputed physical facts of the case, such as nature, character and location of the wounds sustained by the deceased and the presence of the bloodstains on the beddings of the victim. These facts and circumstances belie the claim of the appellant that he clubbed the victim in self- defense. On the contrary, they sufficiently indicate that the fatal injuries were inflicted upon the victim when the latter was lying defenseless on the floor, as he was either sleeping or was just beginning to wake up.

Although appellant Josefina Molina admitted in her extra-judicial statement (Exhibits "K", "K- 1 " to "K-91) that she was the paramour of her co- appellant for over a year, there is no proof that she had knowledge of the criminal design of her co-appellant. Neither has she cooperated with him by previous or simultaneous acts, much less is there any showing that she supplied the principal with material or moral aid. Her only participation was in assisting her co-appellant in bringing the body of the deceased to the ground. The question, therefore, is whether or not by said overt act she could be held criminally responsible as an accessory.

An accessory does not participate in the criminal design, nor cooperate in the commission of the felony, but, with knows of the commission of the crime, he subsequently takes part in three (3) ways: (a) by profiting from the effects of the crime; (b) by concealing the body, effects or instruments of the crime in order to prevent its discovery; and (c) by assisting in the escape or concealment of the principal of the crime, provided he acts with abuse of his public functions or the principal is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive or is known to be habitually guilty of some other crime. The main difference separating accessories after the fact the responsibility of the accessories is subsequent to the consummation of the crime and subordinate to that of the principal.

According to the trial court, " the bringing down of the body of the victim ... was to destroy the body of the crime, or its effect that as to make it appear that the death of the victim was caused by an accident. We disagree. There is no iota of proof that Josefina Molina ever attempted "to destroy the body of the crime" or to make it appear that death of the victim was accidental. It must be noted that Josefina testified that she helped her co- appellant bring the body of the deceased down the stairs because of fear. Even if she assisted her co-appellant without duress, simply Verzola in bringing the body down the house to the foot of the stairs and leaving said body for anyone to see, cannot be classified as an attempt to or destroy the body of the crime the effects or instruments thereof, must be done to prevent the discovery of the crime. In the case at bar, the body was left at the foot of the stairs at a place where it was easily visible to the public. Under such circumstances there could not have been any attempt on the part of Josefina to conceal or destroy the body of the crime-

WHEREFORE, in view of the foregoing, the judgment, insofar as appellant Verzola is concerned, is hereby AFFIRMED. The judgment against Josefina Molina is, however, reversed and said appellant is ACQUITTED with proportionate costs de oficio.

Barredo, Aquino, Concepcion Jr. and Guerrero, JJ., concur.

Fernando (Chairman) and Santos, JJ., are on leave.

Guerrero, J., was designated to sit in the Second Division.

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Manila

EN BANC

G.R. No. 133489 & G.R. No. 143970 January 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RONALD a.k.a "ROLAND" GARCIA y FLORES,* RODANTE ROGEL y ROSALES, ROTCHEL LARIBA y DEMICILLO, and GERRY B. VALLER, accused-appellants.

PER CURIAM:

In Crim. Case No. Q-96-68049 accused-appellants Ronald a.k.a Roland Garcia y Flores, Rodante Rogel y Rosales, Rotchel Lariba y Demicillo and Gerry B. Valler, along with a certain Jimmy Muit, were charged with and convicted of kidnapping for ransom and were sentenced each to death, except aforementioned Jimmy Muit who has remained at large, for obvious reasons, and to indemnify their victim Romualdo Tioleco P200,000.00 and to pay the costs.1

In a related case, Crim. Case No. Q-96-68050, which was decided jointly with Crim. Case No. Q-96-68049, accused-appellants Rotchel Lariba and Rodante Rogel were also found guilty of illegal possession of firearms and ammunition and each sentenced to an indeterminate prison term of four (4) years, nine (9) months and eleven (11) days of prision correccional as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor as maximum, and to pay a fine of P30,000.00 plus the costs.2 No notice of appeal3 was filed in this criminal case; nonetheless, for reasons herein below stated, we take cognizance of the case.

Atty. Romualdo Tioleco was jogging alone at Gilmore Avenue, New Manila, Quezon City, at about 5:30 o'clock in the morning of 5 October 1996.4 He was heading towards 4th Avenue when he noticed a blue car parked at the corner of this street.5 As he was about to cross 4th Avenue, the car lurched towards him and stopped.6 Two (2) men quickly alighted from the car.7 One of them pointed a gun at Atty. Tioleco while the other hit his back and pushed him into the back seat of the car.8 Once inside, he saw two (2) other men, one on the driver's seat and the other on the back seat directly behind the driver.9 He found out later the identities of the driver whom he undoubtedly recognized during the abduction to be accused-appellant Gerry Valler, and of the other person on the passenger seat behind Valler as accused-appellant Roland "Ronald" Garcia.10 He described the man who disembarked from the car and who pushed him inside to be 5'5" or 5'6" in height, medium built, and the other, who threatened him with a gun, at 5'4" or 5'5" in height, dark complexioned and medium built although heftier than the other.11 These two (2) persons have since the commission of the crime have remained at large.

While inside the car Atty. Tioleco was made to crouch on the leg room.12 As it sped towards a destination then unknown to the victim, the men on board feigned to be military men and pestered him with the accusation of being a drug pusher and the threat of detention at Camp Crame.13 As they were psyching him down, "they started putting blindfold on [him] and packaging tape on [his]face and handcuffed [him] on the back of [his] body."14 His eyeglasses were taken off "when they were putting blindfold on [him] x x x."15 Then they divested him of his other personal belongings, e.g., his keys, wristwatch, etc.16

The car cruised for thirty (30) to forty-five (45) minutes.17 When it finally stopped, Atty. Tioleco was told to alight, led to a house and then into a room.18 He remained blindfolded and handcuffed throughout his ordeal and made to lie down on a wooden bed.19 During his captivity, one of the kidnappers approached him and told him that he would be released for a ransom of P2 million20 although the victim bargained for an amount between P50,000.00 and P100,000.00 which according to him was all he could afford. While still under detention, one of his abductors told him that they had mistaken him for a Chinese national and promised his release without ransom.21 But he was just being taken for a ride since the kidnappers had already begun contacting his sister Floriana Tioleco.

Floriana was at her office when her mother called up about her brother's kidnapping.22 Floriana hurried home to receive a phone call from a person who introduced himself as "Larry Villanueva" demanding P3 million for Atty. Tioleco's ransom.23 Several other calls to Floriana were made during the day and in one of those calls the ransom was reduced to P2 million.24 Around 7:00 o'clock in the evening of the same day, 5 October 1996, P/Sr. Insp. Ronaldo

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Mendoza of the Presidential Anti-Crime Commission (PACC) arrived at Floriana's house to monitor her brother's kidnapping upon the request of her friends.25 Floriana received the following day about eight (8) phone calls from the kidnappers still demanding P2 million for her brother's safe release.26

By the end of the day on 7 October 1996 Floriana was able to raise only P71,000.00,27 which she relayed to the kidnappers when they called her up.28 They finally agreed to set her brother free upon payment of this amount, which was short of the original demand.29 The pay-off was scheduled that same day at around 8:00 o'clock in the evening at Timog Avenue corner Scout Tuazon in Quezon City near the "Lighthaus" and "Burger Machine."30 Upon instruction of P/Sr. Insp. Mendoza, Floriana together with only two (2) female friends proceeded to this meeting place.31 They reached there at 8:40 o'clock in the evening and waited for the kidnappers until about 10:30 or 11:00 o' clock that evening.32

Meanwhile, P/Sr. Insp. Mendoza relayed the information about the pay-off and other relevant facts to P/Chief Insp. Gilberto Cruz at the PACC headquarters.33 With the information from P/Sr. Insp. Mendoza, P/Chief Insp. Cruz, together with P/Chief Insps. Winnie Quidato and Paul Tucay with P/Sr. Insp. Nilo Pagtalunan, immediately went to Timog Avenue corner scout Tuazon near the "Lighthaus" and "Burger Machine" in Quezon City.34 They surveyed this site and saw a blue Toyota Corona with three (3) persons on board suspiciously stopping about five (5) meters from Floriana and her friends and remaining there for almost two (2) hours.35

Floriana and her friends left the "pay-off site" after waiting for two (2) hours more or less;36 so did the blue Toyota Corona almost simultaneously.37 No payment of ransom took place.38 P/Chief Insp. Cruz then ordered P/Chief Insps. Quidato and Tucay and their subordinates to tail this car which they did all the way to the De Vega Compound at Dahlia Street in Fairview, Quezon City.39 This compound consisted of one bungalow house and was enclosed by a concrete wall and a steel gate for ingress and egress.40 They posted themselves thirty (30) to forty (40) meters from the compound to reconnoiter the place.41 Meanwhile, the kidnappers explained in a phone call to Floriana that they had aborted the pay-off on account of their belief that her two (2) companions at the meeting place were police officers.42 But she assured them that her escorts were just her friends.43

At around 1:00 o'clock in the afternoon of 8 October 1996 Floriana received a call from the kidnappers at her house44 who wanted to set another schedule for the payment of the ransom money an hour later or at 2:00 o'clock.45 This time the rendezvous would be in front of McDonald's fastfood at Magsaysay Boulevard in Sta. Mesa, Manila.46 She was told by the kidnappers that a man would go near her and whisper "Romy" to whom she would then hand over the ransom money. Floriana agreed to the proposal. With her two (2) friends, she rushed to the place and brought with her the P71,000.00.47 About this time, the same blue Toyota Corona seen at the first pay-off point left the De Vega Compound in Fairview.48 A team of PACC operatives under P/Chief Insp. Cruz again stationed themselves in the vicinity of McDonald's.49

Floriana arrived at the McDonald's restaurant and waited for a few minutes.50 Not long after, the blue Toyota Corona was spotted patrolling the area.51 The blue car stopped and, after dropping off a man, immediately left the place. The man approached Floriana and whispered "Romy" to her.52 She handed the money to him who took it.53 Floriana identified this man during the trial as accused-appellant Roland (Ronald) Garcia.54

The PACC operatives tried to follow the blue car but were prevented by traffic.55 They were however able to catch up and arrest Garcia who was in possession of the ransom money in the amount of P71,000.00.56 They brought him inside their police car and there apprised him of his custodial rights.57 Garcia informed the PACC operatives that Atty. Tioleco was being detained inside the De Vega compound in Fairview.58 With this information, P/Chief Insp. Cruz ordered P/Chief Insps. Tucay and Quidato who had been posted near the compound to rescue the victim.59

The two (2) PACC officers, together with their respective teams, entered the compound and surged into the bungalow house where they saw two (2) men inside the living room.60 As one of the PACC teams was about to arrest the two (2) men, the latter ran towards a room in the house where they were about to grab a .38 cal. revolver without serial number loaded with six (6) rounds of ammunitions and a .357 cal. revolver with six (6) live ammunitions.61 The other PACC team searched the house for Atty. Tioleco and found him in the other room.62 The two (2) men were arrested and informed of their custodial rights. They were identified in due time as accused-appellants Rodante Rogel and Rotchel Lariba.63

P/Chief Insp. Cruz arrived at the De Vega compound64 and coordinated with the proper barangay authorities.65 While the PACC operatives were completing their rescue and arrest operations, the house phone rang.66 Accused-appellant Rogel answered the call upon the instruction of P/Chief Insp. Cruz.67 Rogel identified the caller to be accused-appellant Valler who was then driving towards the De Vega compound.68 In the same phone call, Valler also talked with accused-appellant Garcia to inquire about the ransom money.69

Then a blue Toyota Corona arrived at the De Vega compound.70 Valler alighted from the car and shouted at the occupants of the house to open the gate.71 Suspicious this time, however, he went back to his car to flee.72 But the PACC operatives pursued his car, eventually subduing and arresting him.73 The operations at the De Vega Compound ended at 8:30 in the evening and the PACC operatives, together with Atty. Tioleco and the accused-appellants, left the De Vega compound and returned to their headquarters in Camp Crame, Quezon City.74 The ransom money was returned intact to Atty. Tioleco.75

When arraigned, accused-appellants Ronald "Roland" Garcia, Rodante Rogel, Rotchel Lariba and Gerry Valler pleaded not guilty to the charge of kidnapping for ransom in Crim. Case No. Q-96-68049, although during the trial Garcia admitted complicity in the abduction of Atty. Tioleco and in the receipt of the ransom money from the victim's sister Floriana.76 In Crim. Case No. Q-96-68050 for illegal possession of firearms and ammunition, Rodante Rogel and Rotchel Lariba also pleaded not guilty.77

During the trial, Gerry Valler denied being part of the kidnapping for ransom and asserted that he was at the De Vega compound where he was arrested on 8 October 1996 solely to pay for the fighting cocks he had bought from one Jimmy Muit, alleged owner of the compound.78 Accused Ronald Garcia, despite his admission to the crime, nevertheless disowned any role in planning the crime or knowing the other accused-appellants since his cohorts were allegedly Jimmy Muit and two (2) others known to him only as "Tisoy" and "Tony."79 He also alleged that it was Jimmy Muit's red Toyota car that was used in the crime.80

Explaining their presence at the De Vega compound at the time they were arrested, Rogel claimed that he was employed as a helper for breeding cocks in this compound81 while Lariba's defense focused on an alleged prior agreement for him to repair Jimmy Muit's car.82

Accused-appellants filed separate appellants' briefs. In the brief submitted by the Public Attorneys Office in behalf of accused-appellants Garcia, Rogel and Lariba, they argue that the crime of kidnapping for ransom was not committed since Atty. Tioleco was released from detention by means of the rescue operation conducted by the PACC operatives and the ransom money subsequently recovered.83 They conclude that their criminal liability should only be for slight illegal detention under Art. 268, of The Revised Penal Code. Accused-appellants Rogel and Lariba further assert that they could not be held guilty of illegal possession of firearms and ammunition since neither was in complete control of the firearms and ammunition that were recovered when they were arrested and no evidence was offered to prove responsibility for the presence of firearms and ammunition inside the room.84

The brief filed for accused-appellant Gerry B. Valler asserts the same defense he made at the trial that he was at the De Vega compound only to pay his debts to Jimmy Muit,85 arguing that Atty. Tioleco did not have the opportunity to really recognize him so that his identification as the driver of the car was tainted by police suggestion, and that P/Chief Insp. Cruz' testimony is allegedly replete with inconsistencies that negate his credibility.86

Encapsulated, the issues herein focun on (a) the "ransom" as element of the crime under Art. 267 of The Revised Penal Code, as amended; (b) the sufficiency of the prosecution evidence to prove kidnapping for ransom; (c) the degree of responsibility of each accused-appellant for kidnapping for ransom; and, (d) the liability for illegal possession of firearms and ammunition under RA 8294, amending PD 1866.

First. We do not find any quantum of merit in the contention that kidnapping for ransom is committed only when the victim is released as a result of the payment of ransom. In People v. Salimbago87 we ruled -

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No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victim's freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed "for the purpose of extorting ransom." Considering therefore, that the kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present.

So the gist of the crime, as aptly stated in American jurisprudence from which was derived the crime of kidnapping for ransom,88 is "not the forcible or secret confinement, imprisonment, inveiglement, or kidnapping without lawful authority, but x x x the felonious act of so doing with intent to hold for a ransom the person so kidnapped, confined, imprisoned, inveigled, etc."89

It is obvious that once that intent is present, as in the case at bar, kidnapping for ransom is already committed. Any other interpretation of the role of ransom, particularly the one advanced by accused-appellants, is certainly absurd since it ironically penalizes rescue efforts of kidnap victims by law enforcers and in turn rewards kidnappers for the success of police efforts in such rescue operations. Moreover, our jurisprudence is replete with cases, e.g., People v. Chua Huy,90 People v. Ocampo91 and People v. Pingol,92 wherein botched ransom payments and effective recovery of the victim did not deter us from finding culpability for kidnapping for ransom.1�wphi1.n�t

Second. Issues of sufficiency of evidence are resolved by reference to findings of the trial court that are entitled to the highest respect on appeal in the absence of any clear and overwhelming showing that the trial court neglected, misunderstood or misapplied some facts or circumstances of weight and substance affecting the result of the case.93 Bearing this elementary principle in mind, we find enough evidence to prove beyond reasonable doubt the cooperation of all accused-appellants in the kidnapping for ransom of Atty. Tioleco.

Truly incriminating is the judicial confession of accused-appellant Garcia of his participation in the commission of the crime. He admitted that he took part in actually depriving Atty. Tioleco of his liberty94 and in securing the ransom payment from Floriana Tioleco.95 He could not have been following mechanically the orders of an alleged mastermind, as he claims, since by his own admission he was neither threatened, forced or intimidated to do so96 nor mentally impaired to resist the orders.97 In the absence of evidence to the contrary, he is presumed to be in full possession of his faculties and conscience to resist and not to do evil.

We cannot also give credence to Garcia's asseveration that the persons still at large were his co-conspirators. This posture is a crude attempt to muddle the case as discerned by the trial court from his demeanor when he testified -

Because he had been caught in flagrante delicto, Roland Garcia admitted his participation in the crime charged. From his testimony, however, there appears a veiled attempt to shield Gerry Valler from conviction. First, Garcia claimed that the car they used was reddish in color (TSN, October 20, 1997, pp. 9, 19 & 20). Then he added that the owner of the car was Jimmy Muit and not Gerry Valler (TSN, October 20, 1997, p. 9). Next, he said that there was no conspiracy and he did not know then Gerry Valler, Rodante Rogel and Rogel Lariba until they were placed together in Camp Crame (Ibid., p. 22).

The Court however cannot simply accept this part of his story. To begin with, his repeated reference to the color of the car as reddish is quite suspicious. He conspicuously stressed the color of the car in three (3) instances without being asked. The transcripts of the notes bear out the following:

ATTY. MALLABO: Did you use any vehicle while you were there at Gilmore Street?

A: Yes, sir.

Q: What kind of vehicle was that?

A: Jimmy's car, a Toyota, somewhat reddish in color x x x x

Q: By the way, what car did you use when you were roaming around Quezon City on October 6 in the evening?

A: Jimmy's car, which was somewhat red in color. Reddish.

Q: And what car did you use the following day when you took the bag? The same car?

A: The same car, the Toyota car which was somewhat reddish in color.

Such a clear attempt to mislead and deceive the Court with such unsolicited replies cannot succeed. On October 8, 1996, in the vicinity of McDonald's, he was seen alighting from the blue Toyota Corona (TSN, March 17, 1997, pp. 28-32). As earlier pointed out, the blue Toyota Corona car is owned by Gerry Valler who was the one driving it in the afternoon of the same day to the De Vega compound (TSN, April 28, 1997, pp. 64-67; and November 10, 1997, pp. 22-28). Gerry Valler was also identified by Atty. Tioleco as the driver of the dark blue car used in his abduction (TSN, April 10, 1997, pp. 10-11; and TSN, April 14, 1997, pp. 21-27).98

Accused-appellant Valler's profession of innocence also deserves no consideration. Various circumstances indubitably link him to the crime. For one, he was positively identified by Atty. Tioleco to be the driver of the dark blue Toyota car used in the abduction on 5 October 1997, which car was seen again twice during the occasions for ransom payment. This was followed by a telephone call made by Valler to the house where Atty. Tioleco was being detained and in fact talked with accused-appellant Rogel to tell him that he was coming over99 and with accused-appellant Garcia to ask from him about the ransom supposedly earlier collected.100 Given the overwhelming picture of his complicity in the crime, this Court cannot accept the defense that he was only trying to pay his debts to Jimmy Muit when he was arrested.

We find nothing substantive in Valler's attempt to discredit the victim's positive identification of him on the trifling observation that Atty. Tioleco was too confused at the time of his abduction to recognize accused-appellant's physical features accurately. It is truly evident from the testimony of Atty. Tioleco that his vision and composure were not impaired by fear or shock at the time of his abduction and that he had the opportunity to see vividly and remember unerringly Valler's face -

Q: Where were these two unidentified men positioned inside the car?

A: One of them was at the driver's seat and the other one was immediately behind the driver's seat.

Q: Now, could you please describe to this honorable court the person who was seated on the driver's seat?

A: He has a dark complexion, medium built and short hair at that time.

Q: If you see that person again will you be able to identify him sir?

A: Yes, sir.

Q: And if he's present in the courtroom will you be able to point to him?

A: Yes, sir.

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Q: At this juncture your honor we would like to request with the court's permission the witness be allowed to step down from the witness stand and approach the person just described and tap him on his shoulder.

COURT INTERPRETER: Witness stepping down from the witness stand and approached the person he had just described and tapped him on his shoulder and who when asked to identify himself he gave his name as Gerry Valler.101

Even on cross-examination, Atty. Tioleco was steadfast in his reference to Gerry Valler -

Q: What stage was that when your eyeglasses were grabbed by these persons inside the car?

A: That was after the other accused entered the vehicle and the car zoomed away, that was when they were putting a blindfold on me, that was the time when they started removing my eyeglasses, sir x x x x102

Q: So when you were inside the car, you had difficulty seeing things inside the car because you were not wearing your eyeglasses?

A: No, sir, that is not correct, because they were close, so I can see them x x x x103

Q: And as a matter of fact, it was the PACC operatives who informed you that the person being brought in was also one of the suspects, am I correct?

A: That is not correct, sir. They said that, but I know that is one of the suspects because he was the person who was driving the vehicle at the time I got kidnapped. So I know him.

Q: So you saw him at the time you were kidnapped that is why you were able to identify him when he was ushered in?

A: When he was brought into the kitchen I saw him. When I saw him, I knew he was one of the suspects.

Q: When you saw him, he was in handcuffs?

A: Yes, sir, that is correct.

Q: You were informed that his name is Gerry Valler?

A: When he went inside the house and the kitchen, they started interviews, that is where I learned his name, Gerry Valler x x x x104

Q: But I thought that when you were pushed inside the car, you were pushed head first, how can you easily describe this person driving the vehicle and the person whom you now identified as Roland Garcia?

A: Even if they pushed my head, there was an opportunity for me to see the face of the accused.105

As we held in People v. Candelario,106 it is the most natural reaction for victims of crimes to strive to remember the faces of their assailants and the manner in which the craven acts are committed. There is no reason to disbelieve Atty. Tioeleco's claim that he saw the faces of his abductors considering that they brazenly perpetrated the crime in broad daylight without donning masks to hide their faces. Besides,

there was ample opportunity for him to discern their features from the time two (2) of his kidnappers approached and forced him into their car and once inside saw the other two (2), including Gerry Valler, long enough to recall them until he was blindfolded.

The victim's identification of accused-appellant Valler is not any bit prejudiced by his failure to mention Valler's name in his affidavit. It is well-settled that affidavits are incomplete and inaccurate involving as they do mere passive mention of details anchored entirely on the investigator's questions.107 As the victim himself explained -

Q: Now, in Question No. 5 and I quote x x x Why did you not identify here the name of the driver as one Gerry Valler?

A: Because they never asked me the name. They just asked me to narrate what happened. Had they asked me the name, I could have mentioned the name.108

In light of the positive identification by the victim of accused-appellant Valler, the latter's denial must fall absolutely. Clearly, positive identification of the accused where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over his defense.109 When there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.110

Finally, we do not see any merit in Valler's enumeration of alleged inconsistencies in the testimony of P/Chief Insp. Gilbert Cruz concerning (a) the time and place of meeting between the PACC operatives and Floriana Tioleco; (b) the schedule of the first and second ransom pay-offs; (c) the number of Floriana Tioleco's companions during the aborted first pay-off; (d) the number of occupants in the blue Toyota car; and, (e) the PACC operatives' recognition of Floriana Tioleco during the ransom payments. This is an argument that clutches at straws. For one, the purported inconsistencies and discrepancies involve estimations of time or number, hence, the reference thereto by the witness would understandably vary. Furthermore, they are too minor to warrant the reversal of the judgment of conviction. They do not affect the truth of the testimonies of witnesses nor do they discredit their positive identification of accused-appellants. On the contrary, such trivial inconsistencies strengthen rather than diminish the prosecution's case as they erase suspicion of a rehearsed testimony and negate any misgiving that the same was perjured.111

We also do not believe that accused-appellants Rogel and Lariba are innocent bystanders in this case. It taxes the mind to believe Rogel's defense that as a caretaker of the place where Atty. Tioleco was detained, he observed nothing unusual about this incident. An innocent man would have immediately reported such dastardly act to the authorities and refused to sit idly by, but a guilty person in contrast would have behaved otherwise as Rogel did.112

Accused-appellant Lariba's defense is similarly incredible. He joins Gerry Valler in proclaiming that he too was allegedly at the wrong place at the wrong time for the wrong reason of just wanting to tune up the car of Jimmy Muit. But for all these assertions, he failed to produce satisfactory evidence that he was indeed there to repair such car. Of all the days he could have discharged his work, he chose to proceed on 8 October 1997 when the kidnapping was in full swing. There was even no car to repair on the date that he showed up. Like the submission of Rogel, Lariba's defense falls completely flat for he could have so easily observed the kidnapping of Atty. Tioleco that was taking place in the house of Jimmy Muit.

In sum, accused-appellants cannot rely upon the familiar phrase "reasonable doubt" for their acquittal. As demonstrated by the fastiduous references of Valler to alleged inconsistencies of P/Chief Insp. Cruz, not all possible doubt is reasonable since in the nature of things everything relating to human affairs is open to some imaginary dilemma. As we have said in People v. Ramos,113 "it is not such a doubt as any man may start by questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question any conclusion derived from testimony. Reasonable doubt must arise from the evidence adduced or from the lack of evidence, and it should pertain to the facts constitutive of the crime charged." Accused-appellants have not shown the presence of

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such fatal defects in this case. Clearly, all the elements and qualifying circumstances to warrant conviction for the crime of kidnapping for ransom and serious illegal detention have been established beyond reasonable doubt.

Third. We go into the criminal liability of each accused-appellant. There is no doubt that Gerry Valler and Ronald Garcia are principals by direct participation and co-conspirators in the kidnapping for ransom of Atty. Tioleco. Their respective participation in perpetrating the crime cannot be denied. As regards their liability as co-conspirators, we find the same to have also been shown beyond reasonable doubt. Conspiracy exists when two or more persons come to agreement concerning the commission of a felony and decide to commit it for which liability is joint.114 Proof of the agreement need not rest on direct evidence as the felonious covenant itself may be inferred from the conduct of the parties before, during, and after the commission of the crime disclosing a common understanding between them relative to its commission.115 The acts of Valler and Garcia in coordinating the abduction, collection of ransom and detention of their victim indubitably prove such conspiracy.

Lariba and Rogel were caught inside the house where Atty. Tioleco was detained. P/Chief Insp. Paul Tucay testified on their involvement -

Q: Okey, when you stormed the place, do you know where these two men were?

A: The two men were seated at the sala during that time, sir.

Q: They were seated at the sala when you entered the place?

A: Yes, sir.

Q: What happened after entering the gate?

A: We announced that we were police officers of the Presidential Anti-Crime Commission.

Q: Do you know what happened with these two men during that time?

A: They were caught by surprise and they were about to run to the first room.

Q: What happened when these two men who were at the living room or at the sala, when they ran to the first room?

A: We surprised them and cornered them in that room.

Q: What about the team of Major Quidato, where did they proceed?

A: Major Quidato's team proceeded to the second room where Atty. Tioleco was being kept.

Q: According to you, you gave chase to these two men who were earlier in the sala and they ran upon your announcement that you were police officers?

A: When we cornered them in that room, they were about to grab the two revolvers loaded with six (6) rounds of ammunitions.

Q: Where were these revolvers placed, Mr. Witness?

A: They were placed on top of a cabinet, which, when you enter in the room, is placed on the right side of the room.

Q: How many revolvers were you able to recover?

A: There were two revolvers.

Q: And can you please describe these revolvers to this Honorable Court?

A: Yes, sir x x x x The revolvers confiscated on that raid are one (1) .38 caliber revolver without serial number loaded with 6 rounds of ammunition, live ammo, one .357 also loaded with 6 rounds of live ammunitions.116

Correlating the above testimony with the other evidence, it is clear that at the time Lariba and Rogel were caught, Atty. Tioleco had already been rendered immobile with his eyes blindfolded and his hands handcuffed. No evidence exists that he could have gone elsewhere or escaped. At the precise moment of their apprehension, accused-appellants Lariba and Rogel were unarmed although guns inside one of the rooms of the house were available for their use and possession.

Assessing these established circumstances in the manner most favorable to Lariba and Rogel, we conclude that they were merely guarding the house for the purpose of either helping the other accused-appellants in facilitating the successful denouement to the crime or repelling any attempt to rescue the victim, as shown by the availability of arms and ammunition to them. They thus cooperated in the execution of the offense by previous or simultaneous acts by means of which they aided or facilitated the execution of the crime but without any indispensable act for its accomplishment. Under Art. 18 of The Revised Penal Code, they are mere accomplices.

In People v. De Vera117 we distinguished a conspirator from an accomplice in this manner -

Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense.

In the instant case, we cannot deny knowledge on the part of Lariba and Rogel that Valler and Garcia had kidnapped Atty. Tioleco for the purpose of extorting ransom and their cooperation to pursue such crime. But these facts without more do not make them co-conspirators since knowledge of and participation in the criminal act are also inherent elements of an accomplice.118 Further, there is no evidence indubitably proving that Lariba and Rogel themselves participated in the decision to commit the criminal act. As the evidence stands, they were caught just guarding the house for the purpose of either helping the other accused-appellants in facilitating the success of the crime or repelling any attempt to rescue the victim as shown by the availability of arms and ammunition to them. These items contrast starkly with the tried and true facts against Valler and Garcia that point to them as the agents ab initio of the design to kidnap Atty. Tioleco and extort ransom from his family.1�wphi1.n�t

Significantly, the crime could have been accomplished even without the participation of Lariba and Rogel. As stated above, the victim had been rendered immobile by Valler and Garcia before the latter established contacts with Floriana Tioleco and demanded ransom. The participation of Lariba and Rogel was thus hardly indispensable. As we have held in Garcia v. CA, "in some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character."119 At any rate, where the quantum of proof required to establish conspiracy is lacking and doubt

JMQ 13

created as to whether the accused acted as principal or accomplice, the balance tips for the milder form of criminal liability of an accomplice.120

We are not unaware of the ruling in People v. Licayan that conspiracy can be deduced from the acts of the accused-appellants and their co-accused which show a concerted action and community of interest. By guarding Co and Manaysay and preventing their escape, accused-appellants exhibited not only their knowledge of the criminal design of their co-conspirators but also their participation in its execution.121 But the instant case is different. Considering the roles played by Lariba and Rogel in the execution of the crime and the state the victim was in during the detention, it cannot be said beyond reasonable doubt that these accused-appellants were in a real sense detaining Atty. Tioleco and preventing his escape. The governing case law is People v. Chua Huy122 where we ruled -

The defendants' statements to the police discarded, the participation of the other appellants in the crime consisted in guarding the detained men to keep them from escaping. This participation was simultaneous with the commission of the crime if not with its commencement nor previous thereto. As detention is an essential element of the crime charged, as its name, definition and graduation of the penalty therefor imply, the crime was still in being when Lorenzo Uy, Tan Si Kee, Ang Uh Ang, William Hao and Young Kiat took a hand in it. However, we are not satisfied from the circumstances of the case that the help given by these accused was indispensable to the end proposed. Our opinion is that these defendants are responsible as accomplices only.

Fourth. In the beginning, we noted that neither Lariba nor Rogel who were both convicted of illegal possession of firearms and ammunition in Crim. Case No. Q-96-68049 filed a notice of appeal in accordance with established procedures, although the records show that accused-appellant Gerry Valler needlessly did so exclusively in his behalf.123 But in light of the enactment of RA 8294 amending PD 1866 effective 6 July 1997,124 and our ruling in People v. Ladjaalam125 followed in Evangelista v. Siztoza,126 we nonetheless review this conviction to give effect to Art. 22 of The Revised Penal Code mandating in the interest of justice the retroactive application of penal statutes that are favorable to the accused who is not a habitual criminal.127

In Ladjaalam we ruled that if another crime was committed by the accused he could not be convicted of simple illegal possession of firearms under RA 8294 amending PD 1866 -

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor x x x x

The trial court's ruling and the OSG's submission exemplify the legal community's difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows:

Sec. 1. - Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered

powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup d'etat.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

x x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other crime" is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance x x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.

The Court is aware that this ruling effectively exonerates accused-appellants x x x of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second, it is only prision correccional. Indeed, an accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence necessarily arises from the language of RA 8294 the wisdom of which is not subject to review by this Court.128

Accordingly, we are constrained to dismiss Crim. Case No. Q-96-68049 and set aside the judgment of conviction therein since accused-appellants Rotchel Lariba and Rodante Rogel

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cannot be held liable for illegal possession of firearms and ammunitions there being another crime - kidnapping for ransom - which they were perpetrating at the same time.

In fine, we affirm the conviction of Gerry Valler and Ronald "Roland" Garcia as principals and Rotchel Lariba and Rodante Rogel as accomplices for the crime of kidnapping for ransom and serious illegal detention. This Court is compelled to impose the supreme penalty of death on Valler and Garcia as mandated by Art. 267 of The Revised Penal Code, as amended by RA 7659.

The penalty imposable on Lariba and Rogel as accomplices is reclusion perpetua, the penalty one degree lower than that prescribed for the crime committed pursuant to Art. 52 in relation to Art. 61, par. (1), of the Code. We however set aside the judgment in Crim. Case No. Q-96-68049 convicting Lariba and Rogel of illegal possession of firearms and ammunition in light of the foregoing discussion.

As regards the moral damages against accused-appellants to be paid by them in solidum, we find the amount of P200,000.00 to be reasonable compensation for the ignominy and sufferings Atty. Tioleco and his family endured due to accused-appellants' inhumane act of detaining him in blindfold and handcuffs and mentally torturing him and his family to raise the ransom money. The fact that they suffered the trauma of mental, physical and psychological ordeal which constitute the bases for moral damages under the Civil Code129 is too obvious to require still the recital thereof at the trial through the superfluity of a testimonial charade.

Following our finding that only Gerry Valler and Ronald "Roland" Garcia are principals by direct participation and conspirators while Rotchel Lariba and Rodante Rogel are accomplices, we apportion their respective responsibilities for the amount adjudged as moral damages to be paid by them solidarily within their respective class and subsidiarily for the others.130 Thus, the principals, accused-appellants Ronald "Roland" Garcia and Gerry Valler, shall pay their victim Atty. Romualdo Tioleco P150,000.00 for moral damages and the accomplices P50,000.00 for moral damages.

WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim. Case No. Q-96-68049 (G.R. No. 133489) accused-appellants RONALD "ROLAND" GARCIA y FLORES and GERRY B. VALLER are declared guilty as PRINCIPALS of kidnapping for ransom and serious illegal detention and are sentenced each to death, while accused-appellants RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO are convicted as ACCOMPLICES and are ordered to serve the penalty of reclusion perpetua with the accessories provided by law for the same crime of kidnapping for ransom and serious illegal detention. Accused-appellants are further ordered to pay moral damages in the amount of P200,000.00, with the principals being solidarily liable for P150,000.00 of this amount and subsidiarily for the civil liability of the accomplices, and the accomplices being solidarily liable for P50,000.00 for moral damages and subsidiarily for the civil liability of the principals.1�wphi1.n�t

Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the Decision of the court a quo convicting RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO of illegal possession of firearms and ammunition is REVERSED and SET ASIDE in light of the enactment of RA 8294 and our rulings in People v. Ladjaalam131 and Evangelista v. Siztoza.132

Four (4) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar.

In accordance with Art. 83 of The Revised Penal Code, as amended by Sec. 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellency's pardoning power. Costs against accused-appellants.

SO ORDERED.

[G.R. No. 134730. September 18, 2000]

FELIPE GARCIA, JR., petitioner, vs. THE HONORABLE COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

KAPUNAN, J.:

In two separate Informations filed before the Regional Trial Court of Manila, petitioner Felipe Garcia, Jr. was charged with frustrated murder in Criminal Case No. 91-93374 and with murder in Criminal Case 91-93375 committed as follows:

Criminal Case No. 91-93374:

That on or about November 3, 1990, in the City of Manila, Philippines, the said accused conspiring and confederating with two others who[se] true names, identities and present whereabouts are still unknown and helping one another, did then and there willfully,

JMQ 15

unlawfully and feloniously, with intent to kill and treachery, attack, assault and use personal violence upon one REYNALDO BERNARDO Y DEL ROSARIO @ “BOY PANCHANG”, by then and there shooting the latter with a revolver, hitting him on the neck, thereby inflicting upon the said REYNALDO D. BERNARDO @ “BOY PANCHANG” physical injuries which was necessarily fatal and mortal, thus performing all the acts of execution which would have produced the crime of murder, as a consequence but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to the said REYNALDO D. BERNARDO @ “BOY PANCHANG” which prevented his death.

Contrary to Law.i[1]

x x x

Criminal Case No. 91-93375

That on or about November 3, 1990, in the City of Manila, Philippines, the said accused, conspiring and confederating together with two others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery attack, assault and use personal force upon one FERNANDO B. LEAÑO Y BERNARDO @ “BAGGING”, by then and there shooting the latter with a revolver, hitting him on the head, thereby inflicting upon the said FERNANDO B. LEAÑO @ “BAGGING” gunshot wounds which was the direct and immediate cause of his death thereafter.

Contrary to Law.

x x xii[2]

The two cases were consolidated and tried jointly before Branch 49 of the Regional Trial Court of Manila.

Upon arraignment on 24 May 1991, the petitioner, assisted by counsel de parte, entered a plea of “Not Guilty” to both charges.iii[3]

Trial on the merits then ensued. Based on the evidence presented, the trial court summarized the events that led to the killing of Fernando Leaño and the near fatal injuries sustained by Reynaldo Bernardo as follows:

On November 3, 1990, at about 11:30 o'clock in the evening, Arnold Corpuz and Fernando Leaño, a 15-year old student, and their friends, were conversing along Mataas na Lupa Street, Paco, Manila. Fernando Leaño was on the side of the street. Momentarily, a pedicab, with Renato Garcia (Reneng Palayok), on board, passed by and, in the process, the right wheel of the pedicab ran over the right foot of Fernando Leaño. The pedicab failed to stop and continued on its way. Incensed, Fernando Leaño ran after the pedicab. Arnold Corpuz followed suit, at a distance of about three (3) meters away from the pedicab. When Fernando Leaño was about abreast with the pedicab, he uttered invectives but Renato Garcia retaliated and hurled invectives, too, at Fernando Leaño, saying 'Putang ina ninyo.' Fernando Leaño was then ahead of the pedicab when he looked back and saw, to his consternation, Renato Garcia placing his right hand on the right side of his waistline and about to pull out his gun. Afraid for his life, Fernando Leaño sped away from the pedicab, turned to an alley and ran to Mataas na Lupa Street, Paco, Manila, direct to the house of his uncle, Reynaldo Bernardo, at No. 1281 Mataas na Lupa, Paco, Manila (Exhibit 'E-1'). The pedicab slowed down a bit and then turned towards F. Muñoz Street, Paco, Manila. Arnold Corpuz followed Fernando Leaño to the alley and, when he saw him again, Fernando Leaño was conversing with his uncle, Reynaldo Bernardo, by the gate of the latter's house (Exhibit 'E-1'). Fernando Leaño reported to his uncle that Renato Garcia earlier uttered invectives at him and even tried to pull out his gun from the back portion of his waistline. Reynaldo Bernardo decided to have the incident reported to Police Station No. 5 of the Western Police District. Reynaldo Bernardo changed clothes, put on his shoes and, with Fernando Leaño and Arnold Corpuz, proceeded to the house of his mother, Esperanza del Rosario Bernardo (Exhibits 'E-2' and 'O-2') to borrow the latter's jeep, parked near the basketball court, along Mataas na Lupa Street, Paco, Manila, which they will use in going to the police station. The house of Reynaldo Bernardo was about twenty (20) meters away from the house of his mother.

The three (3) then turned left along Mataas na Lupa Street, towards the direction of the house of Esperanza del Rosario Bernardo. However, before they could reach her house, they had to pass by the intersection of F. Muñoz Street and Mataas na Lupa Street, Paco, Manila. The intersection was about

i

ii

iii

twenty-five (25) meters away from the house of the Accused and Renato Garcia and about fifty (50) meters away from the house of Gerardo Lugos, which was near the South Superhighway already.

When Reynaldo Bernardo, Fernando Leaño and Arnold Corpuz were near the corner of F. Muñoz and Mataas na Lupa Street, Paco, Manila, Reynaldo Bernardo saw the head of Gerardo Lugos who was peeping on the side corner of the vacant store, at the said corner of the street. However, Reynaldo Bernardo gave no significance to the incident, there being no feud or misunderstanding between him and Gerardo Lugos. When Reynaldo Bernardo, Fernando Leaño and Arnold Corpuz continued on their walk, Fernando Leaño and Reynaldo Bernardo were walking side by side, Fernando Leaño on the right side of his uncle, while Arnold Corpuz was three (3) meters behind the two (2) but tried to overtake them. When the three (3) passed by the first corner of F. Muñoz Street, Paco, Manila and Mataas na Lupa Street, Paco, Manila, Arnold Corpuz saw three (3) male persons, about seven (7) to ten (10) meters away on their left side, walking along F. Muñoz Street, Paco, Manila, going towards their direction, but did not as yet recognize them at the time. However, when the three (3) male persons were near the portion of the street near the store, which was lighted by the lights emanating from the Meralco post (Exhibit 'E'), Arnold Corpuz recognized the three (3) male persons. The first was Renato (Reneng Palayok) Garcia, who was then holding a .38 caliber revolver, with his two (2) hands raised on the level of his abreast, aimed at them. Behind Renato Garcia, towards his right side, was his younger brother, the Accused and behind the Accused, to his right side, was Jerry Lugos. The Accused and Jerry Lugos were armed with handguns, also aimed at Reynaldo Bernardo. When Reynaldo Bernardo, Fernando Leaño and Arnold Corpuz were about two (2) to three (3) meters from the intersection of F. Muñoz and Mataas na Lupa Streets, Paco, Manila, Reynaldo Bernardo turned, looked towards his left, and saw Renato Garcia, the Accused and Jerry Lugos, all armed and their guns aimed at him. Reynaldo Bernardo then started to sprint toward where Renato Garcia, the Accused and Jerry Lugos were but barely had Reynaldo Bernardo taken off when Renato Garcia fired his gun, once, at Reynaldo Bernardo and hit the latter on the left side of his neck (Exhibit 'B'). Renato Garcia was then only about two (2) meters way from Reynaldo Bernardo. When Renato Garcia fired at Reynaldo Bernardo, the Accused and Jerry Lugos looked around as if acting as lookouts. Reynaldo Bernardo placed his left palm on the left side of his neck which was hit, fell, at first, on a kneeling position and then, on the ground, face down (Exhibits 'E-3' and 'O'). Instinctively, after Reynaldo Bernardo was hit, he flung and swung his hand inward, outward and sideward and, in the process, hit Arnold Corpuz who was then about to give succor to Reynaldo Bernardo. Arnold Corpuz then fell on the ground, on a sitting position. Arnold Corpuz then stood up and then fell again on a kneeling position (Exhibit 'E-4'). In the meantime, too, Fernando Leaño rushed to his uncle and tried to lift him (Exhibit 'E-5'). Fernando Leaño was then on a kneeling position. In the meantime, too, Renato Garcia, the Accused and Jerry Lugos continued walking towards where Reynaldo Bernardo was sprawled and Fernando Leaño beside him and Arnold Corpus in front of Fernando Leaño. The body of Reynaldo Bernardo was between them. Three (3) successive shots then ensued. Arnold Corpuz then decided to lie down on the ground, face down, his face on the feet of Reynaldo Bernardo, to avoid being hit with his two (2) hands under his breast. Arnold Corpuz then raised his head a little and noticed that the front portion of the head of Fernando Leaño was bulging and Fernando Leaño falling down. It turned out that Fernando Leaño was felled (sic) by a gunshot wound at the back of his head. In the process, Arnold Corpuz saw Renato Garcia, the Accused and Jerry Lugos behind Fernando Leaño, still holding their guns. Renato Garcia, the Accused and Jerry Lugos then fled from the scene together. Arnold Corpuz also fled from the scene towards the house of Esperanza del Rosario Bernardo to plead for help. On the way, Arnold Corpuz met Dominador Bernardo, Jr., the brother of Reynaldo Bernardo who came from the basketball court. Dominador Bernardo, Jr. inquired why Arnold Corpuz was running and Arnold Corpuzz (sic) replied, thus: Tinamaan si Kuya Boy at Ferdie.' (pp. 214-216, id.)iv[4]

The victims were taken to the Medical Center Manila at about 12:00 midnight. Subsequently, Leaño was transferred to the Orthopedic Hospital, where he died in the morning of November 4, 1990.v[5]

Dr. Marcial Cenido performed an autopsy on the cadaver of Leaño and prepared a report with the following Post Mortem Findings:

EXTERNAL INJURIES AND EXTENSIONS INTERNALLY:

1. Gunshot wound, thru and thru with the following points of entry and exit:

Point of Entry - right occipital region, head, 58.5 inches from the heel, 3 cm. from the

JMQ 16

posterior midline, measuring 0.5 cm. x 0.3 cm. and with the contusion collar measures 1 cm. x 0.7 cm. and

Point of Exit - right forehead, 5 cm. from the anterior midline, 58 ¾ inches from the heel, and measures 1.3 cm. x 0.5 cm.

Course: Forwards, very slightly upwards and very slightly towards the lateral penetrating the cranial cavity and lacerating the right occipital, parietal and frontal lobes of the brain.

2. Hematoma, below the right eyebrow.

INTERNAL FINDINGS:

1. Laceration of the right occipital, parietal and frontal lobes of the brains and subrachnoid hemorrhage, and generalized pallor of the internal organs and tissues; and

2. Recovered from the stomach about a glassful of dark liquid with some rice and vegetables and without alcoholic odor.

CAUSE OF DEATH

Gunshot wound, right occipital region, head.vi[6]

On the other hand, Dr. Pedro P. Solis, Medico-Legal Officer of the Medical Center Manila, performed an operation on and gave medical treatment to Reynaldo Bernardo. The report he prepared showed the following findings:

Abrasion, 3 cm. x 2 cm. scalp, frontal region, left side; 3 cm. 3.5 cm x 1cm. lateral aspect, frontal region, left side. Wound, gunshot, circular in shape, 0.9 cm. in diameter, lateral aspect, neck left side, indise anterior triangle, directed medially, downwards and slightly backwards, penetrating soft tissues of the neck, involving external jugular vein, then making wound exist at right paravertebral area that the level of T3-T-4 and 3 cm. below the highest point of the shoulder.vii[7]

Based on the above established facts, the trial court rendered judgment, the dispositive portion reading as follows:

In view of all the foregoing, judgment is hereby rendered in the following cases to wit:

1. In People versus Felipe Garcia, Jr., Criminal Case No. 91-93374, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt of the crime of “Frustrated Homicide” and hereby sentences said Accused to an indeterminate penalty of from Four (4) Years and Two (2) months of Prision Correccional, as Minimum, to Eight (8) Years and One (1) Day of Prision Mayor, as Maximum, and to pay to Reynaldo Bernardo the amount of P115,631.00 as actual damages and P25,000.00 as moral damages;

2. In People versus Felipe Garcia, Jr. Criminal Case No. 91-93375, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt of the crime of "Homicide" and hereby metes on him an indeterminate penalty of from Eight (8) Years and One (1) Day of Prision Mayor, as Minimum to Fourteen (14) Years, Eight (8) Months and One (1) Day of Reclusion Temporal as maximum, and to pay to the heirs of Fernando Leaño the amount of P10,040.00 as actual damages and P50,000.00 by way of indemnity.viii[8]

Petitioner elevated his conviction to the Court of Appeals, which on 21 May 1998, affirmed in toto the decision of the trial court.ix[9] Hence, the present case, petitioner raising the following assignment of errors:

I

THE LOWER COURT GRAVELY ERRED IN EVALUATING EVIDENCE DIRECTED AGAINST SUSPECTS GERRY LUGOS AND RENATO GARCIA - INFERENTIALLY AGAINST ACCUSED-APPELLANT FELIPE GARCIA, JR., UNDER THE PRINCIPLE OF CONSPIRACY SO-CALLED.

II

THE LOWER COURT ERRED SERIOUSLY ERRED IN APPRECIATING THE FACTS AND CIRCUMSTANCES ESTABLISHED IN THE TRIAL AGAINST ACCUSED-APPELLANT AS CO-CONSPIRATOR THEREOF, AND,

III

THE LOWER COURT ERRED SERIOUSLY IN FINDING ACCUSED-APPELLANT GUILTY AS CO-PRINCIPAL IN HOMICIDE AND FRUSTRATED HOMICIDE GROUNDED ON CONSPIRACY WITH THIRD PERSONS “(GERRY LUGOS AND RENATO GARCIA) WHO ARE MERE SUSPECTS AND ‘STRANGERS’ IN THE TWO CASES AS THEY WERE NOT IMPLEADED THEREIN NOR CHARGED AS JOHN AND RICARDO DOES IN EITHER OR BOTH INFORMATIONS."x[10]

Petitioner asserts that since he alone was named in the information, "it would seem by implication from the narration in the information that it was being made to appear that the accused was in fact the gunman who acted in conspiracy with unknown persons. The evidence later presented proved otherwise and it turned out that it was Renato Garcia alone who shot and wounded Reynaldo Bernardo and shot and killed Fernando Leaño. It was not, therefore, in keeping with the evidence on record proper to convict the accused based merely on the theory that there was conspiracy when no sufficient evidence to support such fact exist."xi[11]

Contrary to petitioner’s argument, there is no irregularity in the information to warrant a reversal of the conviction. All material facts and essential elements of the crimes, for which petitioner is charged, were alleged therein. Conspiracy was alleged in the information. Thus, it is not necessary to allege with exactitude the specific act of the accused, as it is a well-settled doctrine that in conspiracy the act of one is the act of all.xii[12]

Neither is the fact that the two others allegedly in conspiracy with the petitioner were not named with particularity, nor tried and convicted, of any moment. An information alleging conspiracy can stand even if only one person is charged except that the court cannot pass verdict on the co-conspirators who were not charged in the information.xiii[13]

This Court does not doubt the guilt of the petitioner. The findings of a trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial judge over an appellate magistrate in the appreciation of testimonial evidence. Absent any showing that trial court’s calibration of the credibility was flawed, we are bound by its assessment.xiv[14]

An examination of the records will reveal that the prosecution witnesses positively identified the accused. Reynaldo Bernardo, who sustained injuries from a gunshot wound, narrated the incident as follows:

FISCAL PERALTA:

Where were you when this Fernando Leaño told you that a gun was poked on (sic) him?

WITNESS:

I was in our house, sir.

FISCAL PERALTA:

Can you still recall that (sic) time it was when this Fernando Leaño told you that a gun was poked on (sic) him?

WITNESS:

I think about 11:30 o’clock, sir.

FISCAL PERALTA:

And did you come to know as to what time or that date was that poking incident took place.

WITNESS:

On November 3, 1990, sir.

FISCAL PERALTA:

At what time was it, if you know?

WITNESS:

JMQ 17

I was told at about 11:30 o'clock, sir.

FISCAL PERALTA:

You said that at around 11:40 o'clock in the evening at the corner of Mataas na Lupa and F. Muñoz street, you were with two (2) men, can you recall of any unusual incident that happened at that corner?

WITNESS:

We were shot sir. "Pinagbabaril kami."

FISCAL PERALTA:

Who shot you if you can still recall?

WITNESS:

Reneng Palayok and his two (2) other companions by the name of Peping Palayok and Jerry Lugos, sir.

FISCAL PERALTA:

How far were you in relation to the place where these men shot you?

WITNESS:

About seven (7) meters away, sir, it is very near.

FISCAL PERALTA:

Can you still recall the relative positions of these men whom you said shot you and your position at the time that (sic) shots were fired?

ATTY. UY:

I object to the question, Your Honor, on the ground that the same is very leading.

FISCAL PERALTA:

I will reform, Your Honor. You said that you were about more or less seven (7) meters away from the men. Now, my question to you is, were you hit?

WITNESS:

Yes, sir.

FISCAL PERALTA:

And where were you hit?

WITNESS:

At my (sic) left side of my neck, sir.

FISCAL PERALTA:

And at the time that you were hit on the neck, where were these three (3) men at that time?

WITNESS:

They were on my left side, sir.

FISCAL PERALTA:

And what were these three (3) men actually doing at the time that they shot you?

WITNESS:

They were armed with guns, sir.

FISCAL PERALTA:

Have you known this Rene Palayok even before November 3, 1990?

WITNESS:

Yes, sir, since we were young.

FISCAL PERALTA:

What about this Peping Palayok, have you known also this Peping Palayok?

WITNESS:

Yes, sir, I have known him also since we were young.

FISCAL PERALTA:

How about this Jerry Lugos?

WITNESS:

Yes, sir, he is my childhood mate.

x x x

COURT:

Granted.

FISCAL PERALTA:

Now, Mr. Witness, after you were hit on the left side of your neck, what happened next?

WITNESS:

I fell down, sir, face down.

FISCAL PERALTA:

And when you fell down, face down, can you still recall what happened next?

WITNESS:

After that, sir, I heard shots.

FISCAL PERALTA:

Now, if you see again that Peping Palayok whom you said was one of those who shot you, will you still be able to recognize him?

WITNESS:

Yes, sir.

FISCAL PERALTA:

Will you please look inside the Court and point to him?

WITNESS:

That person, sir.

INTERPRETER:

Witness pointing to a person who, when asked, stated his name as Felipe Garcia, Jr.xv[15]

One of Bernardo’s companion, prosecution witness Arnold Corpuz, testified in this wise:

JMQ 18

FISCAL PERALTA:

Could you please tell to this Honorable Court why you were not able to reach the house of Reynaldo Bernardo?

WITNESS:

Because there were three (3) male persons who were waiting “nakaabang” for us, sir.

FISCAL PERALTA:

Why did you say that these three (3) men were waiting or “nakaabang” for you?

WITNESS:

Because while we were walking, they were already there holding guns, sir.

FISCAL PERALTA:

Do you know these persons who were holding guns?

WITNESS:

Yes, sir.

FISCAL PERALTA:

And who were these persons whom you said were waiting for you and holding guns?

WITNESS:

Reneng Palayok, Peping and Jerry Lugos, sir.

FISCAL PERALTA:

What is again the full name of this Rene(ng) Palayok, if you know?

WITNESS:

Renato Garcia, sir.

FISCAL PERALTA:

What about this Peping?

WITNESS:

Felipe Garcia, sir.xvi[16]

In the face of petitioner's positive identification, petitioner’s defense of alibi cannot hold water. No jurisprudence in criminal cases is more settled than the rule that alibi is the weakest of all defenses, and the same should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime.xvii[17]

The factual findings of the trial court that petitioner participated in the perpetration of the crime, such being supported by evidence on record, will not be disturbed by this Court. However, we are of the persuasion that the prosecution failed to prove with positive and competent evidence the fact that the act of the petitioner was direct or actually necessary to the commission of the crime.

The existence of conspiracy cannot be presumed. Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt.xviii[18] The mere fact that the petitioner had prior knowledge of the criminal design of the principal perpetrator and aided the latter in consummating the crime does not automatically make him a co-conspirator. Both knowledge of and participation in the criminal act are also inherent elements of an accomplice.xix[19] In his commentaries on the Revised Penal Code, Chief Justice Ramon Aquino explains:

The guilt of an accomplice should be predicated on an act that was done in furtherance of the commission of the crime by the principal. The accomplice must have known that the principal intended to commit a particular crime. In other words, he should have community purpose with the principal. xxxxx[20]

In the case of People vs. Tamayo,xxi[21] citing the Supreme Court of Spain, this Court made the following exposition on the characteristics of an accomplice:

xxx It is an essential condition to the existence of complicity, not only that there should be a relation between the acts done by the principal and those attributed to the person charged as accomplice, but it is furthermore necessary that the latter, with knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime in an efficacious way.

In cases of doubt as to whether persons acted as principals or accomplices, the doubt must be resolved in their favor and they should be held guilty as accomplices. xxii[22] Such principle was applied by this Court in the case of People v. Clemente:

In the case of appellants, Carlos and Pascual Clemente, while they joined their brother in the pursuit of the fleeing Matnog, and in the attack on him as he fell, yet the prosecution eyewitness was unable to assert positively that the two managed to hit the fallen man. There being no showing of conspiracy, and the extent of their participation in the homicide being uncertain, they should be given the benefit of the doubt, and consequently they are declared to be mere accomplices in the crime.xxiii[23]

After a circumspect examination of the evidence, we find that other than a showing that petitioner assisted Renato Garcia in the slaying of Fernando Leaño and the infliction of injuries upon Reynaldo Bernardo, the prosecution failed to present other evidence which would positively establish the existence of conspiracy. Thus, this Court is of the belief that petitioner-accused should only be held liable as an accomplice. This seems to be the more reasonable and safer course.

Even if we were to agree with the trial court that conspiracy existed between accused-petitioner and two other malefactors, in particular Renato Garcia, who was positively identified as the gunman, still this Court is of the conviction that the petitioner should only be held liable as an accomplice. petitioner’s participation was hardly indispensable. As the trial court pointed out, the petitioner merely acted as a “lookout.” The testimony of Arnold Corpuz is telling:

FISCAL PERALTA:

And what happened after you saw these three (3) men waiting for you armed with guns?

WITNESS:

They fired a gun once and “Kuya Boy” was hit, sir.

FISCAL PERALTA:

What part of the body of Boy was hit?

WITNESS:

Here, sir.

INTERPRETER:

Witness pointing to the left portion of his neck.

COURT:

I cannot understand that. You said that they fired once. How many fired?

WITNESS:

Only one, Your Honor.

FISCAL PERALTA:

Who was that person who fired the gun?

WITNESS:

JMQ 19

Mang Rey or Rey Palayok, sir.

FISCAL PERALTA:

And you said that there were three (3) of them. What did these Peping and Jerry Lugos do when Rene Palayok fired a gun that hit your “Kuya Boy”?

WITNESS:

They were behind Mang Rene, sir.

FISCAL PERALTA:

You said that they were behind Rene Palayok. What did they do afterwards after Rene fired a gun that hit your “Kuya Boy”?

ATTY. UY:

Very leading, Your Honor.

COURT:

May answer.

WITNESS:

They were looking around holding their guns as if they were acting as look outs , sir.

FISCAL PERALTA:

After your Kuya Boy was hit on the neck, what happened next?

WITNESS:

I saw Fernando went (sic) near his uncle so that he could lift his uncle, sir.

FISCAL PERALTA:

Was he able to lift his uncle Reynaldo Bernardo?

WITNESS:

Not anymore, sir, because there were continuous firing of guns about three (3) times.

FISCAL PERALTA:

What happened to Fernando Leaño when there was a continuous firing for at least three (3) times?

ATTY. UY:

Leading, Your Honor.

COURT:

May answer.

WITNESS:

He was hit on the back of his head, sir.

INTERPRETER:

Witness pointing to the right back portion of his head just behind his right ear.

FISCAL PERALTA:

And do you know who shot this Fernando Leaño?

WITNESS:

Yes, sir. It was Mang Rene.

FISCAL PERALTA:

What did the companions of Rene Palayok do when Rene Palayok shot Fernando Leaño?

ATTY. UY:

Very leading, Your Honor.

COURT:

May answer.

WITNESS:

They were acting as aide and they were following Rene Palayok, sir.xxiv[24]

As can be seen from the above testimony, petitioner's participation was hardly indispensable. In the case of People v. Nierra,xxv[25] this Court made the following ruling:

After a conscientious reflection on the complicity of Doblen and Rojas, we have reached the conclusion that they should be held guilty as accomplices. It is true, strictly speaking, that as co-conspirators they should be punished as co-principals. However, since their participation was not absolutely indispensable to the consummation of the murder, the rule that the court should favor the milder form of liability may be applied to them.

In some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character.

WHEREFORE, the herein questioned decision of the Court of Appeals affirming the decision of the Regional Trial Court is hereby MODIFIED to wit:

1. In People versus Felipe Garcia, Jr., Criminal Case No. 91-93374, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt as an ACCOMPLICE in the crime of “Frustrated Homicide” and hereby sentences said Accused to an indeterminate penalty of Four (4) months of Arresto Mayor, as Minimum, to Four (4) years and One (1) Day of Prision Correcional, as Maximum;

2. In People versus Felipe Garcia, Jr. Criminal Case No. 91-93375, judgment is hereby rendered finding the Accused guilty beyond reasonable doubt as an ACCOMPLICE in the crime of "Homicide” and hereby metes on him an indeterminate penalty of Two (2) Years of Prision Correccional, as Minimum, to Eight (8) Years and One (1) Day of Prision Mayor, as Maximum.

No pronouncement as to cost.

SO ORDERED.

JMQ 20


Manila

SECOND DIVISION

G.R. No. 146584 July 12, 2004

ERNESTO FRANCISCO y SPENOCILLA, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal via a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day of prision mayor maximum, as minimum, to twenty (20) years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter, and to pay the corresponding value of the subject pieces of jewelry.

The Indictment

The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993, the accusatory portion of which reads:

That in or about the month of November 1991, in the municipality of Meycauayan, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto Francisco y Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and feloniously buy, receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several pieces of jewelry, to wit:

One (1) pair of earrings (Heart Shape) --- P 400,000.00

One (1) White Gold Bracelet ---- 150,000.00

One (1) Diamond Ring ---- 100,000.00

One (1) Ring with Diamond ----

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

Contrary to law.3

The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial forthwith ensued.

The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.4 She was engaged in business as a general contractor under the business name J.C. Rodriguez Contractors. Macario Linghon was one of her workers. She and her husband, the former Municipal Mayor of Rodriguez, Rizal, acquired several pieces of jewelry which were placed inside a locked cabinet in a locked room in their main house. Jovita hid the key to the cabinet inside the room. The couple and their son resided inside a compound. They hired Pacita Linghon, Macario�s sister, as one of their household helpers us sometime in February 1989.5 Pacita swept and cleaned the room periodically. Sometime in May 1991, she left the employ of the Rodriguez family.

Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in Sitio Baloongan, Barangay Paltok, Meycauayan, Bulacan,6 and asked him to sell some pieces of jewelry. She told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to the shop of petitioner Ernesto "Erning" Francisco located at Pacheco Street, Calvario, Meycauayan, Bulacan,8 which had a poster outside that said, "We buy gold." Macario entered the shop, while Pacita stayed outside. Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed to buy the jewelry for P25,000, and paid the amount to Macario. He also gave Macario P300 as a tip.9

Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings. He agreed. He and a friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings for P18,000. The latter agreed and paid Macario the amount. Ernesto gave a P200 tip to Macario. After these transactions, Macario saw the petitioner in his shop for about five to six more times and received some amounts.11

Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was shocked when she opened the locked cabinet containing her jewelry, and found that the box was empty. She noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing were one pair of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring worth P100,000; one white gold bracelet with diamond stones worth P150,000; and one ring with a small diamond stone worth P5,000. She suspected that it was Pacita who stole her jewelry. She was, however, occupied with her business ventures that she had little time to gather evidence and charge Pacita.

On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion Linghon with the Counter-Intelligence Group of the Philippine National Police in Camp Crame, Quezon City. She stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings with diamond worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1) white gold bracelet with diamond stones worth P150,000; and, one (1) ring with a small diamond stone worth P5,000. She also averred that Pacita had stolen the pieces of jewelry, and that she and her mother Adoracion disposed of the same.

A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group, invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in

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connection with Jovita�s complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the petitioner as the person to whom she sold Jovita�s jewelry. On August 23, 1992, Pacita gave a sworn statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings with diamond, one white gold bracelet, one heart-shaped diamond ring, and one ring "with big and small stones" to "Mang Erning" of Meycauayan, Bulacan, for the total price of P50,000 to cover the cost of her father�s operation and for food. When asked about the full name of the person to whom the jewelry was sold, Pacita replied that she knew him only as "Mang Erning."

Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1 Roldan, Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the "Mang Erning" who had purchased the jewelry from her. The policemen alighted from their vehicle and invited the petitioner for questioning in Camp Crame. Upon his insistence, the petitioner was brought to the police station of Meycauayan, Bulacan. When they were at the police station, the petitioner, in the presence of SPO4 Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not to implicate him in the case. PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to go with them to Camp Crame, but the petitioner refused and demanded that the policemen first secure a warrant for his arrest should they insist on taking him with them.13

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal, Branch 76.14 The case was docketed as Criminal Case No. 2005. Adoracion was also charged with violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were consolidated and jointly tried.

Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him that he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the petitioner.

PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary investigation, Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the jewelry belonging to Jovita while she was cleaning the room in the house, and that she brought the jewelry home.16 The court found probable cause against the petitioner, and issued a warrant for his arrest.

On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the petitioner with violating P.D. No. 1612.

In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal, Branch 76, in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and Adoracion guilty of fencing under P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in these cases, as follows:

1. In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code, and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months of prision mayor as minimum to Eighteen (18) years, Two (2) months and Twenty (20) days of reclusion temporal as maximum, to return to complainant Jovita Rodriguez the unrecovered stolen pieces of jewelry subject of this case and if restitution is not possible, to indemnify the said complainant in the amount of P1,300,000.00; and to pay the costs.

2. In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable doubt of the offense of violation of PD 1612, otherwise known as the Anti-Fencing Law, and sentencing her to suffer imprisonment of Twelve (12) years of prision mayor; to indemnify complainant Jovita Rodriguez in the amount of P45,000.00; and to pay the costs.

SO ORDERED.17

The Case for the Petitioner

The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop located at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He had been in this business since 1980.18 He did not transact with Pacita regarding Jovita�s missing jewels.19 In fact, he did not even know Jovita and met her only during the preliminary investigation of the case before the MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he first saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter invited to Camp Crame for investigation.20 He saw Pacita again only during the preliminary investigation of the case.21 The petitioner also averred that he had no transaction with Macario of whatever nature.22

The petitioner further testified that when the policemen in civilian clothes approached him in his shop, they asked who "Mang Erning" was, as the sign in his shop carried such name. When he responded to the question, the policemen identified themselves as members of the police force. The petitioner then gave them his full name.23 When the policemen invited him for questioning, he refused at first. Eventually, he agreed to be interrogated at the municipal hall, where the policemen insisted on bringing him to Camp Crame. He told them that he would go with them only if they had a warrant of arrest.24 He denied ever offering any bribe to the policemen.25

On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable doubt of violating P.D. No. 1612. The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision mayor maximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the accessory penalties corresponding to the latter.

2. Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of the subject items of jewelries (sic):

one (1) pair of earrings, heart shaped P400,000.00

one (1) white gold bracelet 150,000.00

one (1) diamond ring 100,000.00

one (1) ring with diamond 5,000.00

TOTAL VALUE P655,000.00

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with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said amounts have been fully paid.

SO ORDERED.26

The petitioner appealed the decision to the Court of Appeals contending that:

I

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION WITNESSES ARE ALL HEARSAY EVIDENCE.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS NOT SUFFICIENT TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

III

THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic) OF PROSECUTION WITNESSES.

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE ALLEGED ACCUSED-APPELLANT�S OFFER OF BRIBE WITHOUT SHOW OF MONEY.

V

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27

On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.28

The Present Petition

In the present recourse, petitioner Ernesto Francisco asserts that:

The Court of Appeals erred in sustaining the trial court�s decision finding petitioner guilty beyond reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the Anti-Fencing Law.

The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of which consisted of hearsay evidence.29

The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond reasonable doubt. He avers that the prosecution failed to prove that Pacita stole the jewelry subject of the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and sold the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that the testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovita�s complaint for theft, are hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to him, Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that the testimony of Macario, the

principal witness of the prosecution, is inconsistent on substantial matters; hence, should not be given credence and probative weight.

On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able to prove all the elements of the crime charged. It asserts that the first element was proved through Pacita�s conviction for theft in Criminal Case No. 2005; the second element was shown to exist with moral certainty via the testimony of Macario identifying the petitioner as the one who bought the subject pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element was proven by evidence showing that the petitioner had been in the business of buying and selling jewelry for a long period of time, and that he had the expertise to know the correct market price of the jewelry he purchased from Macario and Pacita. The OSG asserts that the petitioner must have been put on his guard when the subject pieces of jewelry worth P655,000 were sold to him for only P50,000.30 It contends that the inconsistencies in the testimonies of the prosecution witnesses referred to by the petitioner were minor, and could not be made as a basis to disregard the trial court�s findings of facts, which are entitled to great respect and credit.31

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have shown that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and, (4) there is, on the part of the accused, intent to gain for himself or for another.32 Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property.33 The stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing.

We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the locked cabinet in the main house of her then employer. Jovita testified on her ownership of the jewelry and the loss thereof, and narrated that Pacita had access to the cabinet containing the pieces of jewelry.

We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal Case No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that Pacita had, indeed, stolen the jewelry. There is no showing that the said decision in Criminal Case No. 2005 was already final and executory when the trial court rendered its decision in the instant case.

On the second element of the crime, the trial and appellate courts held that the prosecution proved the same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos. 1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to the petitioner; the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita; the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos. 1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown by the transcripts of the stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court.

However, we find and so hold that �

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First. Jovita�s testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal cases. The well-entrenched rule is that only parties to a case are bound by a judgment of the trial court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not reiterate her testimony in the said criminal cases during the trial in the court a quo. The prosecution did not present Pacita as witness therein to testify on the admission she purportedly made to Jovita; hence, the petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations of a person are not admissible in evidence against a third party.35

Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841, as well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and cross-examine a witness against him.

Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario. However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacita�s declaration to the policemen, that the petitioner was the one who purchased the jewelry from her. It must be stressed that the policemen had no personal knowledge of the said sale, and, more importantly, Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-examine Pacita on the truth of what she told the policemen.

Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution and was cross-examined on his testimony during the preliminary investigation.

In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony of Macario during the preliminary investigation and trial in the court a quo.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to anchor a judgment of conviction, it is required that such testimony must be credible and reliable.36 In this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony during the preliminary investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent. He even admitted that some portions of his testimony on direct examination in the court a quo were inconsistent with his testimony on cross-examination and on re-direct examination. These admissions are buttressed by the records of the case, which show that such inconsistencies pertained to material points and not merely to minor matters. Thus, during the preliminary investigation in Criminal Case No. 92-13841, Macario admitted that on October 10, 1991, he and his sister Pacita sold two rings and one bracelet to the petitioner for P25,000, while in November 1991, he and Pacita sold a pair of earrings to the petitioner for P25,000. On direct examination in the court a quo, Macario testified that he and Pacita sold the earrings to the petitioner in May 1992, not in November 1991, and only for P18,000. On cross-examination, Macario testified that he and his sister Pacita went to the petitioner�s shop in Meycauayan, Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000. However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that when he transacted with the petitioner for the second time, he was with a friend, and not with his sister Pacita. On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4) pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on direct examination. He also testified that he and his sister sold the earrings in November 1991. Because of the contradicting accounts made by Macario, the court made the following observations:

Court

q According to you, you were "nalilito" but you gave the correct answer, you are not "nalilito" here but you gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang sabi mo.

a Because I am scare[d] here that�s why I gave the wrong answer.

q You better think about it.

a I was confused, Sir.37

The testimonies of Macario are even contrary to the averments of the Information, that the petitioner received the said jewelry from Pacita.

Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the jewelry to the petitioner that they belonged to a friend of hers.

Atty. Lerio

Q At that time you and your sister sold those jewels to "Mang Erning" did � do you know already [that] it was Mrs. Rodriguez who is the owner of those jewels?

A No, Sir, I do not know.

Q And who do you know was the owner of that jewels and that time you and your sister sold those jewels to "Mang Erning"?

A According to my sister, it is (sic) owned by a friend of hers.

Court

Q How did you come to know of this "Mang Erning?"

A Only at that time when we brought the jewels.

Q But previous to that, do you know him?

A No.38

Macario learned, after the case against Pacita had already been filed in the trial court, that the jewelry was, after all, owned by Jovita. However, he failed to inform the petitioner that the said jewelry was stolen. Following is the testimony of Macario:

Atty. Lerio

Q When you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all, informed (sic) "Mang Erning" about it?

Court

JMQ 24






Q No basis, when did you come to know that the jewels belong to Mrs. Rodriguez?

A In 1992, when my sister already had a case.

Q What did you do when you come (sic) to know about that?

A I was not able to do anything but just to help my sister with her case and also to help the case of Mrs. Rodriguez.

Atty. Lerio

Q After that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there any occasion where you (sic) able to inform "Mang Erning" that those jewels were owned by Mrs. Rodriguez?

A No more, I have no more time.39

The prosecution cannot even validly argue that the petitioner should have known which pieces of jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to adduce sufficient competent evidence to prove the value of the said stolen articles. The prosecution relied solely on the bare and uncorroborated testimony of Jovita, that they were worth P655,000:

Atty. Lerio

Q Now, will you tell this Court some of those jewels which you own?

A I own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white gold full of stones, diamond worth P150,000.00; 1-diamond ring with small stones worth P5,000.00. So, all in all, the jewelry is (sic) worth P665,000.00.40

When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely declared:

Atty. Lerio

Q Now again, when did you acquire those jewels if you can still remember?

A I remember several years ago when my husband is (sic) alive.

Court

Q Please tell the court, [is] the market value of the jewels the same today?

A No, that is (sic) the market value several years ago.

Q So, can you explain [if] the market value, more or less, [is] the same today?

A No. The price, if we will appraise now, is much bigger.41

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the price of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no such receipts. Thus:

Court

Q You bought it from [a] private person?

A Yes, Your Honor.

Atty. Bernal

Q What then is your proof that you bought these jewelries (sic) from a private person?

Atty. Lerio

That was already answered, Your Honor. She said, no receipt.42

In People v. Paraiso,43 we cited our ruling in People v. Marcos44 that an ordinary witness cannot establish the value of jewelry, nor may the courts take judicial notice of the value of the same:

�[A]nd as we have ruled in the case of People vs. Antonio Marcos, an ordinary witness cannot establish the value of jewelry and the trial court can only take judicial notice of the value of goods which are matters of public knowledge or are capable of unquestionable demonstration. The value of jewelry is not a matter of public knowledge nor is it capable of unquestionable demonstration and in the absence of receipts or any other competent evidence besides the self-serving valuation made by the prosecution, we cannot award the reparation for the stolen jewelry.45

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be concluded that the accused should have known that the property sold to him were stolen. This requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and, (b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends on the value of the property; otherwise, the court will fix the value of the property at P5.00, conformably to our ruling in People v. Dator:46

In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the bag and its contents at P100.00 based on the attendant circumstances of the case. More pertinently, in the case of People vs. Reyes, this Court held that if there is no available evidence to prove the value of the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed on the accused-appellant should be the minimum penalty corresponding to theft involving the value of P5.00.47

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of violating P.D. No. 1612 for the prosecution�s failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

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Puno, (Chairman), Quisumbing, Austria-


Manila

FIRST DIVISION

G.R. No. 134298 August 26, 1999

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

PARDO, J.:

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

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

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

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

Contrary to law.

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

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

ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B). That sometime in February 1991, after one of her employees left the company, she discovered that some of the manufactured spare parts were missing, so that on February 19, 1991, an inventory was conducted and it was found that some welding rods and propellers, among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person who recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same.1�wphi1.n�t

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

JMQ 26

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

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

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

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

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

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

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

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

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

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

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

Costs against the accused.

SO ORDERED.

Manila, Philippines, August 5, 1996.

(s/t) ZENAIDA R. DAGUNAJudge

Petitioner appealed to the Court of Appeals.

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

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

Hence, this petition.

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

We resolve the issue in favor of petitioner.

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

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

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

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

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

JMQ 27

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

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

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

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

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

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

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

Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense.13 "It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9)."14

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

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

There was no sufficient proof of the unlawful taking of another's property. True, witness Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant to petitioner. However, an admission or confession acknowledging guilt of an offense may be given in evidence only against the person admitting or confessing.15 Even on this, if given extra-judicially, the confessant must have the assistance of counsel; otherwise, the admission would be inadmissible in evidence against the person so

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admitting.16 Here, the extra-judicial confession of witness Mendez was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may such extra-judicial confession be considered evidence against accused.17 There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.18 Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed."19 The "essential elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against persons or force upon things (U.S. vs. De Vera, 43 Phil. 1000)."20 In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.21 In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.22

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

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

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

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. C.R. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No. 92-108222 of the Regional Trial Court, Manila.1�wphi1.n�t

Costs de oficio.

SO ORDERED.

JMQ 29

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