11. People vs. Oliva

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR OLIVA @ Ka Ambot, EDGAR MANLAPAZ, BOCOY SEACHON, METCHEL IBAYA, JOEL CINCO, AMY INOPIA @ Ka Jinky, Ka Nelly, JOHN DOE and PETER DOE, Ka Yoli, Ka Gerson, NOLI SALCEDO @ Ka Tony, BOGOY MANLAPAZ, VIRGILIO PANGUILINAN @ Ka Ariel, Ka Riza, Ka Liza, accused.

OSCAR OLIVA and NOLI SALCEDO, accused-appellants.

D E C I S I O N

QUISUMBING, J.:

On appeal is the decision rendered on June 17, 1992, by the Regional Trial Court of Masbate, Masbate, Branch 48, in Criminal Case No. 5132, finding appellants guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to solidarily pay the heirs of the victim P50,000 as civil indemnity.

On November 17, 1986, Assistant Provincial Fiscal Jesus Castillo filed an information for kidnapping which reads:

The undersigned 2nd Assistant Provincial Fiscal accuses Edgar Manlapaz (at large), Bogoy Seachon (at large), Metchel Ibaya (at large), Joel Cinco, Amy Inopia alias ‘Ka Jinky’ (at large), Alias Ka Ambot, Alias Ka Nelly, John Doe and Peter Doe of the crime of Kidnapping, committed as follows:

That on or about May 26, 1986, in the morning thereof, at barangay Mapeña, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this court, the above-named accused confederating together and helping one another with the used of force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap, detain and keep one Jacinto Magbojos alias ‘Dagoy’ against the latter’s will.

Contrary to law.[1]

First to be arraigned was Joel Cinco who entered a plea of not guilty to the abovequoted charge.  On March 31, 1987, upon motion of the prosecution and with consent of Cinco, the trial court ordered the provisional dismissal of the case.  The case against the rest of the accused who were at large was ordered archived.

On October 21, 1988, the prosecution filed a motion to reinstate the case with motion to amend and admit amended information charging Oscar Oliva alias Ka Ambot as one of the co-accused in the kidnapping.[2] The trial court admitted the amended information.  On February 1, 1989, Oscar Oliva was arraigned and entered a plea of not guilty.

On March 1, 1989, the remains of the victim were exhumed.  On May 9, 1989, Assistant Provincial Prosecutor Juan Gallego filed a second motion to admit amended information, this time, charging the accused with kidnapping with murder.  The trial court admitted the said information which reads:

The undersigned 4th Asst. Prov’l. Prosecutor accuses Oscar Oliva alias ‘Ka Ambot’, Edgar Manlapaz, Bocoy Seachon, Metchel Ibaya, Joel Cinco, Amy Inopia alias ‘Ka Jinky’, alias ‘Ka Nelly’, John Doe, and Peter Doe, ‘Ka Yoli’, ‘Ka Gerson’, Noli Salcedo alias ‘Ka Tony’, Bogoy Manlapaz, Virgilio Panguilinan alias ‘Ka Ariel’, ‘Ka Riza’, ‘Ka Liza’, of the crime of Kidnapping with Murder, committed as follows:

That on or about May 26, 1986, in the morning thereof, at Barangay Mapeña, Municipality of Masbate, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring together, confederating with and mutually helping one another with the use of force, violence and intimidation, did then and there willfully, unlawfully and feloniously kidnap, detain and keep one Jacinto Magbojos alias ‘Dagoy’ against the latter’s will, and with intent to kill, with treachery, evident premeditation and use of superior strength, did then and there willfully, unlawfully and feloniously took turns in stabbing and shooting the victim in the different parts of his body causing his instantaneous death.

CONTRARY TO LAW.[3]

Upon arraignment, appellants Oliva and Salcedo, assisted by their respective counsel, entered a plea of not guilty to the charge.  Thereafter, trial on the merits ensued. Subsequently, the trial court rendered judgment, convicting Oliva and Salcedo of murder but acquitting Joel Cinco of the offense charge, thus:

WHEREFORE, the Court finds the accused Oscar Oliva alias Ka Ambot and Noli Salcedo alias Ka Nelly GUILTY of the crime of murder established by proof beyond reasonable doubt and hereby sentences said accused both Oscar Oliva and Noli Salcedo the penalty of RECLUSION PERPETUA and to pay jointly and solidarily the amount of P50,000.00 to the heirs of the late Jacinto Magbojos, Jr. without subsidiary imprisonment in case of insolvency and to pay the costs.

WHEREFORE, the Court finds no sufficient evidence to warrant the conviction beyond reasonable doubt against accused Joel [C]inco and hereby renders a judgment of ACQUITTAL in favor of accused JOEL CINCO.  His immediate release is hereby ordered unless he is legally detained for another distinct crime.

SO ORDERED.[4]

The prosecution evidence, upon which the finding of guilt beyond reasonable doubt was based, is summarized by the trial court as follows:

…In the early morning of May 26, 1986, Jacinto Magbojos Jr. left their house to count coconuts at his father’s coconut land uphill.  At about 8:00 o’clock that same morning, Joel Cinco, Michell Ibaya both out-of-school youth came to the house of the latter.  After being informed by one of the Magbojos children that Jacinto went uphill for an errand, Joel Cinco and his companions immediately left.  At about 10:30 o’clock that morning, Jacinto Magbojos Jr. arrived home.  At about that time, Mrs. Magbojos was cooking.  Suddenly, four persons arrived and entered the house.  A few minutes later, her husband Jacinto was hogtied by tying his hands at his back and Mr. Magbojos was told by the group to go out.  The group with Jacinto Magbojos Jr. passed through the kitchen door while Mrs. Magbojos and the children passed the other door to the apple tree downstairs.  The group took Jacinto Magbojos Jr. away and they walked towards the western direction.

Earlier that day, Arturo Inopia, a farmer and also a resident of barangay Mapiña, Masbate, had visitors in his house at about 8:30 or 9:00 o’clock in the morning, namely: “Ka Ambot”, who turned to be Oscar Oliva, “Ka Nelly” who was later identified as Noli Salcedo, “Ka Jinky” and Jun Pangilinan who were all in green (fatigue) uniforms and armed, and Bogoy Manlapaz and Joel Cinco - the latter two being unarmed and without uniforms. Arturo Inopia asked why they were in his house, and “Ka Ambot” replied that they have a mission to get Jacinto Magbojos Jr.  After hearing the report of Jun de los Reyes, the group of “Ka Ambot” left for the barangay center of Mapiña, Masbate but only after “Ka Ambot” gave a stern warning to Arturo Inopia not to report to the police authorities, otherwise, he (Inopia) will be killed.  Later, at about noon of that same day, May 26, 1986, he was informed by his brother-in-law, Julito Soler, that they got Dagoy Magbojos.

Elpidio Labajata, likewise a farmer, a resident of and a neighbor to Jacinto Magbojos Jr., that same morning of May 26, 1986, also went to the mountain to collect the corn he loaned to Jose Balatucan.  In going to Balatucan’s house, he passed by the residence of Arturo Inopia where he saw several persons, four of whom were in fatigue uniforms and carrying firearms.  In the group were Jun Pan[g]ilinan, Joel Cinco, Oscar Oliva and Noli Salcedo.  When he returned home that same day, he met six (6) persons, two of whom were Jacinto Magbojos Jr. and Julio (Bagoy) Seachon.  He noticed that Jacinto Magbojos Jr. was hogtied by coralon ropes and appeared very

weak and with abrasions on both sides of his face and can hardly talk.  He recalled that at that time, Jacinto Magbojos Jr. was wearing white shorts with green linings and a red T-shirt.  He was investigated by Oscar Oliva and he was asked where he resides and whether he knew Jacinto Magbojos Jr.  When he answered affirmatively, he was also hogtied by Oscar Oliva.  However, he pleaded for his life and fortunately, he was released but with the condition that he will leave Mapiña, Masbate.

Sometime in early 1989, Renato Magbojos, a policeman assigned to INP, Dimasalang, Masbate and an elder brother of Jacinto Magbojos Jr., met Levelito Tubieron, a resident of barangay Cancahurao, Baleno, Masbate, on board the “MV Misamis Occidental”.  Levelito Tubieron was bound for Manila and told Renato that he knew the place where his brother Jacinto Jr. was buried.  Tubieron further told Renato Magbojos that he was present when Jacinto Jr. was buried because he was the one who was asked by the group of Oscar Oliva to accompany them to the burial site – in the land owned by Jeremias Bello at sitio Cabuluan, Barangay Cancahurao, Baleno, Masbate. On March 1, 1989, the remains of Jacinto Magbojos Jr. were exhumed from a shallow graveyard, a dry sand beside the hill at sitio Cabuluan. The digging itself of the grave was done by Levelito Tubieron, assisted by Tito Bello, PTA president, and witnessed by no less than Elena Bello, the acting barangay captain of Cancahurao, police officers led by Sgt. Gener Magbojos and Pat. Virgilio Cabuhat and some barangay residents.  Recovered from the graveyard were human bones, a T-shirt, a pair of short pants, coralon rope, a brief and black rubber band.  On the witness stand, these personal belongings were identified to be those worn by the victim Jacinto Magbojos Jr. on that fatal day of May 26, 1986 by no less than his (ex) wife, Erlinda Gonzaga.  After they were examined by Dr. Emilio Quemi, the remains of the late Jacinto Magbojos Jr. were buried at the Masbate New Cemetery.[5]

Appellant Oliva claimed that he had no participation in the commission of the crime.  In summary, he testified that:

[He] has been in Manila since last week of December 1985. He boarded the ship from Masbate in the company of one Natividad Querbo, a resident of Nabangig, Palanas, Masbate, and went with her to Valenzuela, Bulacan.  He stayed with Natividad Querbo in the house of the younger brother of the latter at Kinalagan, Valenzuela, Bulacan.  After the EDSA revolution, he came home to Masbate and stayed in the third district as NPA commanding officer.  Earlier, in 1982 or 1983, Oscar Oliva has been a territorial commander.  In 1988, he was promoted and handled the so called REFO RECOM V organization tasked to unite Masbateños in the labor front, with the

restaurant of Q-Mart, Makati and Manila as their centers of activities.  This lasted for one (1) month. Later, Oscar Oliva was summoned by one Sotero Llamas to report to Bicol.  He was reprimanded sometime in June 1986.  In July 30, 1988, he surrendered to Lt. Colonel Pansepane of the 2nd Infantry Brigade, Philippine Army at Matacon, Polangui, Albay and thereafter stayed at Mahayahay, Talusan, Zamboanga del Sur where his wife has an elder sister.  From there, they went to Manila, then Navotas.  Oscar came back to Masbate to follow up his application papers for amnesty.  During that period, he was granted by the Philippine Constabulary a safe conduct pass for one (1) month.  While transacting with the local office of the Department of Social Welfare and Development, he was invited by the commanding officer of the PC-INP command through Lt. Poses.  He reported to the PC camp and it was there where he was informed that a case has been filed against him.  He was not, however, showed a copy of the warrant for his arrest.  Oscar Oliva admitted on the witness stand that when he was promoted to the position of Intelligence Officer, his entire jurisdiction is the entire Masbate territory.  It was during the ceasefire agreed by and between the government and the CPP-NPA insurgents that he was able to reach barangay Mapiña and to conduct “pulong-pulong”.  He likewise stated in open court that Levelito Tubieron is in the list of “shoot-to-kill” order, while Arturo Inopia is allegedly a member of the (dreaded) group called “Walang Patawad”, having pretended as an NPA member for business extortion.[6]

Appellant Salcedo also maintained his innocence.  He gave his own version of the story as follows:

On May 26, 1986, he was in Metro Manila working as a furniture polisher in the shop owned by a certain Captain Condor.  He left Masbate for Manila sometime in 1985, and returned to Masbate in 1987 to visit his parents, after which he again went to Manila.  In 1988, he came home to Masbate, and engaged himself in farming at Lagta, Baleno.  He said he had no knowledge of the incident involving Jacinto Magbojos Jr. and he does not know him, nor does he know Oscar Oliva neither Joel Cinco.  He was apprehended on August 5, 1988 at the house of his cousin Arturo Sulat, neighbor of Ben Albao, likewise a cousin, at barangay Kinamaligan, Masbate, Masbate.  On that day he was arrested, Noli Salcedo was on his way to Baleno. When he was already on board the police vehicle, he jumped out and attempted to escape from his captors.  Unfortunately, he fell outbalanced and the police officers fired several shots at him and he was hit at the right foot and on the left thigh.  He was brought to the Masbate Provincial Hospital where he was treated for about three (3) months.  He stated that he has not gone to

barangay Mapiña which is about five (5) kilometers away from Lagta, Baleno, and would take approximately five hours walking.[7]

On the basis of the evidence presented by the prosecution, the court found Oliva and Salcedo guilty beyond reasonable doubt of murder, not kidnapping with murder.  However, Joel Cinco was acquitted.  Hence, insisting on their innocence, Oliva and Salcedo instantly appealed.[8]

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

[I]

THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR IN TRYING THE ACCUSED-APPELLANT OSCAR OLIVA OF THE CRIME OF KIDNAPPING WITH MURDER AND CONVICTING HIM OF MURDER, CONSIDERING ITS FULL KNOWLEDGE OF THE PROSECUTION AS WELL AS DEFENSE EVIDENCE THAT SAID OSCAR OLIVA IS A MEMBER OF THE COMMUNIST PARTY OF THE PHILIPPINES AND A COMMANDER OF THE NEW PEOPLES ARMY. GRANTING WITHOUT ADMITTING THAT HE CAN LAWFULLY BE PRESUMED AS THE KILLER OF THE VICTIM.  ALTHOUGH THE SAME IS NOT ALLOWED BY THE CONSTITUTION AND THE RULES OF COURT AND JURISPRUDENCE, AND ABOVE ALL, NOT WARRANTED BY EVIDENCE, IF AT ALL HE SHOULD BE PROSECUTED FOR A CRIME, HE MAY BE SO PROSECUTED FOR THE CRIME OF REBELLION WHICH ABSORBS THE CRIME OF KIDNAPPING OR MURDER, HENCE, THE DECISION APPEALED FROM SHOULD BE SET ASIDE.

[II]

THAT GRANTING WITHOUT ADMITTING THAT THE ACCUSED-APPELLANT OSCAR OLIVA COULD BE SEPARATELY PROSECUTED FOR THE CRIME OF KIDNAPPING WITH MURDER WHICH CRIMES ARE ABSORBED BY THE CRIME OF REBELLION AND COMMITTED IN FURTHERANCE THEREOF, THE HONORABLE LOWER COURT COMMITTED A REVERSIBLE ERROR IN CONVICTING HIM OF THE CRIME OF MURDER BASED MERELY ON ALLEGED CIRCUMSTANTIAL EVIDENCE, AND WHICH, MISERABLY, DOES NOT PROVE BEYOND REASONABLE DOUBT THAT HE WAS THE ONE WHO KILLED THE VICTIM, SINCE THE ALLEGED WITNESS TO THE KILLING AND/OR BURIAL OF THE VICTIM IN THE ALLEGED PERSON OF LEVILITO TUBIERON WAS NEVER PRESENTED BY THE PROSECUTION TO TESTIFY IN COURT IN ORDER TO CONFIRM THE HEARSAY TESTIMONY OF PAT. RENATO MAGBOJOS.[9]

For his part, Salcedo imputes only one error on the trial court, as follows:

THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT NOLI SALCEDO GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.[10]

The issue for resolution is whether or not the trial court erred in giving credence to the prosecution evidence and convicting appellants for the crime of murder, then sentencing them to reclusion perpetua.

First, Oliva asserts that he should have been charged with rebellion instead of kidnapping with murder considering that he is a member of the Communist Party of the Philippines and a Commander of the New People’s Army.  He claims that the killing was committed in furtherance of rebellion, hence, it should be absorbed in rebellion.

Oliva’s contention that he should have been charged with and tried for rebellion lacks factual and legal basis, hence, bereft of merit.  True, one can be convicted only of rebellion where the murders, robberies and kidnapping were committed as a means to or furtherance of rebellion. Corollarily, offenses which were not committed in furtherance of the rebellion, but for personal reasons or other motives, are to be punished separately even if committed simultaneously with the rebellious acts.[11] In the instant case, there was no evidence at all to show that the killing of Jacinto Magbojos Jr. was in connection with or in furtherance of their rebellious act.  Besides, it was not indubitably proved that Oliva was indeed a member of the New People’s Army.

Second, Oliva contends that there are no sufficient circumstances to prove beyond reasonable doubt that he took part in the commission of the crime.  He claims that it was not conclusively established that he is Ka Ambot.[12]

For his part, Salcedo contends the trial court erred in ruling that he was one of the perpetrators of the crime.[13]

The foregoing contentions are related and so we shall discuss these together.

True, there is no direct evidence as to who actually killed the victim.  Nevertheless, direct evidence of the commission of the crime is not the only matrix whereby the trial court may draw its conclusions and findings of guilt.  It is settled that conviction may be based on circumstantial evidence provided that the following requisites must concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Circumstantial evidence is of a nature identically the same with direct evidence.  It is equally direct evidence of minor facts of such a nature that the mind is led intuitively or by a conscious process of reasoning to the conviction that from them some other fact may be inferred.  No greater degree of certainty is required when the evidence is circumstantial than when it is direct.  In either case, what is required is that there be proof beyond reasonable doubt that the crime was committed and that the accused committed the crime.[14]

As noted by the trial court and the Solicitor General, the evidence is replete with details to prove the fact of death of the victim and to sustain the guilt of appellants. These are:

(1) Arturo Inopia declared that at about 8:30 A.M. on May 26, 1986, Ka Ambot, Ka Nelly, Ka Jinky, Jun Panguilinan, who were all armed, Bogoy Manlapaz and Joel Cinco dropped by at his house in Mapina, Masbate and told him that they have a mission to get Jacinto Magbojos Jr..

He later identified Oliva and Salcedo as the same persons whom he  knew as Ka Ambot and Ka Nelly respectively.[15]

(2) Erlinda Gonzaga, the victim’s wife, testified that at about 10:30 A.M. on that day, four persons with long firearms entered their house, hogtied her husband, and forcibly took away the latter.  She also stated that at that time her husband was wearing white short pants with green lining and red Adidas t-shirt.[16]

(3) Elpidio Labajata testified that while he was on his way to the mountain in the morning of the same day, he saw Oliva, Salcedo, Jun Panguilinan, Joel Cinco and two others in the house of Inopia. He also said that four of them had long guns.  He also declared that when he returned home in the afternoon, he met the victim and Julio Seachon in the custody of Oliva, Salcedo and two other persons.  He noticed that the victim was hogtied by coralon rope and appeared very weak and with abrasions on both sides of his face.  He recalled that the victim was wearing red t-shirt and white short pants with green lining.[17]

(4) The victim was never seen alive again.

(5) The red shirt and white short pants together with the skeleton recovered from the shallow grave in Baleno, Masbate are the same clothing worn by the victim on the day he was abducted.  The victim’s brother also identified the bracelet recovered from the grave as one belonging to the victim.[18] Also recovered was the rope used to hogtie the victim.

(6) Dr. Emilio Quemi, a government physician, issued a certificate of death attesting to the death of Jacinto Magbojos Jr.[19]

Concededly, there were no eyewitnesses who testified regarding the actual killing of the victim.  Nonetheless, the abovecited circumstances taken together constitute in our view one unbroken chain leading to the fair and reasonable conclusion that appellants, to the exclusion of others, are responsible for the victim’s death.

Appellants’ claim that their identities were not positively established are belied by the testimonies of witnesses.  Inopia had seen Ka Ambot, Ka Nelly, Ka Jinky and Jun Panguilinan three times prior to the incident.  He used to give them food and he also attended the pulong-pulong conducted by Ka Ambot. In fact, even Oliva admits that he knows Inopia as one of the members of the group called Walang Patawad.[20] Certainly, Inopia knows Ka Ambot and Ka Nelly although earlier he did not know their real names. For his part, Labajata had seen Ka Ambot and Ka Nelly on several occasions before the incident. He saw them again in the morning on the day of the incident at the house of Inopia. In the afternoon, he met them again and this time, the victim was in their custody.  He was also investigated and then hogtied though later released by Ka Ambot after pleading for his life.[21] For sure, Labajata had gained familiarity with Ka Ambot and Ka Nelly, hence, recognition was facilitated.

Appellants also insist that the prosecution should have presented in court Levelito Tubieron who was allegedly the one tasked by the perpetrators to bury the body of the victim. In our view, this failure is not fatal to the case of the prosecution. The prosecution has discretion to determine whom it should present as its witness. Note that what Tubieron told Patrolman Renato Magbojos, the victim’s brother, is the location where the victim was buried. Note further that the victim’s remains were later dug up and recovered in said place. The fact of death and the identity of the victim were established by other duly proved circumstances.

Now, with regard to appellants’ alibi. Oliva would like us to believe that he was in Metro Manila when the crime was committed. He said that he went there sometime in 1985 and returned to Masbate after the EDSA revolution.[22] Likewise, Salcedo claimed that from 1985 to 1987 he was in Metro Manila, working as a furniture polisher. He declared that he had no knowledge of the incident until he was apprehended.[23]

In order that alibi will prevail, the defense must establish by positive, clear and satisfactory  proof that it was physically impossible for the accused  to have been at the scene of the crime at the time of its commission, and not merely that the accused were somewhere else.[24] This, appellants failed to show. As regards Oliva, his admission that he went back to Masbate after the EDSA revolution would not rule out his presence in the scene of the crime during its commission. Note that the EDSA revolution took place in the last week of February 1986. Hence, it was not impossible for him to be in the crime scene on May 26, 1986. With regard to Salcedo, aside from his own declaration that he was in Metro Manila at the time of the incident, no other evidence was presented to support his alibi. Besides, Oliva and Salcedo were positively identified as among the perpetrators of the crime. Accordingly, their alibis must fail.

However, we cannot agree with the finding of the trial court that the killing was qualified by treachery. To appreciate treachery, two conditions must be present, to wit: (1) the employment of means of execution that give the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were deliberately or consciously adopted.[25] The settled rule is that treachery cannot be presumed but must be proved by clear and convincing evidence or as conclusively as the killing itself.[26] In the case at bar, although the fact of death and the identity of the victim and the identity of the perpetrators were established, there is no proof at all on how the killing was done. Thus, absent any particulars as to the manner in which the aggression commenced or how the act which resulted in the death of the victim unfolded, treachery cannot be appreciated.[27] Similarly, the circumstances of evident premeditation and use of superior strength alleged in the information cannot be appreciated as there is no evidence on record sufficient to prove the same.

To conclude, since no qualifying circumstance was proved in this case, the crime committed is only homicide, not murder. Under Article 249 of the Revised Penal Code, the applicable penalty for homicide is only reclusion temporal. As there were neither aggravating nor mitigating circumstances found by the trial court or shown after a review of the records, the penalty in this case shall be fixed in its medium period of reclusion temporal, which ranges from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years and 4 months. Further applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor as a minimum to reclusion temporal in its medium period as the maximum. The range of prision mayor is from 6 years and 1 day to 12 years. The span of reclusion temporal, medium, is from 14 years, 8 months and 1 day to 17 years and 4 months.

WHEREFORE, the assailed DECISION of the Regional Trial Court of Masbate, Masbate, Branch 48, in Criminal Case No. 5132, is hereby MODIFIED. Appellants Oscar Oliva and Noli Salcedo are hereby found GUILTY of HOMICIDE and sentenced to suffer a prison term of 10 years of the medium period of prision mayor, as minimum, to 15 years and 10 months and 1 day of the medium period ofreclusion temporal, as maximum, with accessory penalties provided by law, to indemnify the heirs of the deceased Jacinto Magbojos Jr. in the amount of P50,000.00. and to pay the costs.

SO ORDERED.

12. People vs. Lovedioro

G.R. No. 112235 November 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ELIAS LOVEDIORO y CASTRO, defendant-appellant.

 

KAPUNAN, J.:

Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the Daraga, Albay Public Market when a man suddenly walked beside him, pulled a .45 caliber gun from his waist, aimed the gun at the policeman's right ear and fired. The man who shot Lucilo had three other companions with him, one of whom shot the fallen policeman four times as he lay on the ground. After taking the latter's gun, the man and his companions boarded a tricycle and fled. 1

The incident was witnessed from a distance of about nine meters by Nestor Armenta, a 25 year old welder from Pilar, Sorsogon, who claimed that he knew both the victim and the man who fired the fatal shot. Armenta identified the man who fired at the deceased as Elias Lovedioro y Castro, his nephew (appellant's father was his first cousin) and alleged that he knew the victim from the fact that the latter was a resident of Bagumbayan.

Lucilo died on the same day of massive blood loss from multiple gunshot wounds on the face, the chest, and other parts of the body. 2 On autopsy, the municipal health officer established the cause of death as hypovolemic shock. 3

As a result of the killing, the office of the provincial prosecutor of Albay, on November 6, 1992 filed an Information charging accused-appellant Elias Lovedioro y Castro of the crime of Murder under Article 248 of the Revised Penal Code. The Information reads:

That on or about the 27th day of July, 1992, at more or less 5:30 o'clock in the afternoon, at Burgos Street, Municipality of Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with Gilberto Longasa, who is already charged in Crim. Case No. 5931 before RTC, Branch I, and three (3) others whose true identities are at present unknown and remain at large, conniving, conspiring, confederating and helping one another for a common purpose, armed with firearms, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously fire and shoot one SPO3 JESUS LUCILO, a member of the Daraga Police Station, inflicting upon the latter multiple gunshot wounds causing his death, to the damage and prejudice of his legal heirs.

After trial, the court a quo found accused-appellant guilty beyond reasonable doubt of the crime of Murder. The dispositive portion of said decision, dated September 24, 1993 states:

WHEREFORE, in view of all the foregoing considerations, this Court finds the accused ELIAS LOVEDIORO guilty beyond reasonable doubt as principal, acting in conspiracy with his co-accused who are still at large, of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences him to suffer the penalty of Reclusion Perpetua with all the accessories provided by law; to pay the heirs of the deceased SPO3 Jesus Lucilo through the widow, Mrs. Remeline Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos representing the civil indemnity for death; to pay the said widow the sum of Thirty Thousand (P30,000.00) Pesos representing reasonable moral damages; and to pay the said widow the sum of Eighteen Thousand Five Hundred Eighty-Eight (P18,588.00) Pesos, representing actual damages, without subsidiary imprisonment however, in case of insolvency on the part of the said accused.

With costs against the accused.

SO ORDERED.

Hence, the instant appeal, in which the sole issue interposed is that portion of trial court decision finding him guilty of the crime of murder and not rebellion.

Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as supporting his claim that he should have been charged with the crime of rebellion, not murder. In his Brief, he asseverates that Armenta, a police informer, identified him as a member of the New People's Army. Additionally, he contends that because the killing of Lucilo was "a means to or in furtherance of subversive ends," 4 (said killing) should have been deemed absorbed in the crime of rebellion under Arts. 134 and 135 of the Revised Penal Code. Finally, claiming that he did not fire the fatal shot but merely acted as a look-out in the liquidation of Lucilo, he avers that he should have been charged merely as a participant in the commission of the crime of rebellion under paragraph 2 of Article 135 of the Revised Penal Code and should therefore have been meted only the penalty of prison mayor by the lower court.

Asserting that the trial court correctly convicted appellant of the crime of murder, the Solicitor General avers that the crime committed by appellant may be considered as rebellion only if the defense itself had conclusively proven that the motive or intent for the killing of the policeman was for "political and subversive ends." 5 Moreover, the Solicitor General contends that even if appellant were to be convicted of rebellion, and even if the trial court had found appellant guilty merely of being a participant in a rebellion, the proper imposable penalty is not prision mayor as appellant contends, but reclusion temporal, because Executive Order No. 187 as amended by Republic Act No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable for individuals found guilty as participants in a rebellion.

We agree with the Solicitor General that the crime committed was murder and not rebellion.

Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968, rebellion is committed in the following manner:

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other

armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or prerogatives. 6

The gravamen of the crime of rebellion is an armed public uprising against the government. 7 By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. 8 One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, 9 thus:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippine Islands or any part thereof," then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.

Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated.

In such cases, the burden of demonstrating political motive falls on the defense, motive, being a state of mind which the accused, better than any individual, knows. Thus, in People v. Gempes, 10 this court stressed that:

Since this is a matter that lies peculiarly with (the accused's) knowledge and since moreover this is an affirmative defense, the burden is on them to prove, or at least to state, which they could easily do personally or through witnesses, that they killed the deceased in furtherance of the resistance movement.

From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit, without any political motivation, it has been held that the crime would be separately punishable as a common crime and would not be absorbed by the crime rebellion. 11

Clearly, political motive should be established before a person charged with a common crime — alleging rebellion in order to lessen the possible imposable penalty — could benefit from the law's relatively benign attitude towards political crimes. Instructive in this regard is the case of Enrile v. Amin, 12 where the prosecution sought to charge Senator Juan Ponce Enrile with violation of P.D. No. 1829, 13 for allegedly harboring or concealing in his home Col. Gregorio Honasan in spite of the senator's knowledge that Honasan might have committed a crime. This Court held, against the prosecution's contention, that rebellion and violation of P.D 1829 could be tried separately 14 (on the principle that rebellion is based on the Revised Penal Code while P.D. 1829 is a special law), that the act for which the senator was being charged, though punishable under a special law, was absorbed in the crime of rebellion being motivated by, and related to the acts for which he was charged in Enrile vs. Salazar (G.R. Nos. 92163 and 92164) a case decided on June 5, 1990. Ruling in favor of Senator Enrile and holding that the prosecution for violation of P.D. No. 1829 cannot prosper because a separate prosecution for rebellion had already been filed and in fact decided, the Court said:

The attendant circumstances in the instant case, however constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense. 15

Noting the importance of purpose in cases of rebellion the court in Enrile vs. Amin  further underscored that:

[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately.

It follows, therefore, that if no political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice.

The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the instant case is striking. Two witnesses, both former NPA recruits identified the accused Ompad, alias "Commander Brando," a known hitman of the NPA, as having led three other members of the NPA in the liquidation of Dionilo Barlaan, a military informer, also in a rebel infested area. In spite of his notoriety as an NPA hitman, Ompad was merely charged with and convicted of murder, not rebellion because political motive was neither alleged nor proved.

As stated hereinabove, the burden of proof that the act committed was impelled by a political motive lies on the accused. Political motive must be alleged in the information. 17 It must be established by clear and satisfactory evidence. In People v. Paz and Tica we held:

That the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of proving clearly and satisfactorily. The lone uncorroborated assertion of appellant that his superiors told him of Dayrit being an informer, and his suspicion that he was one such, is neither sufficient or adequate to establish that the motivation for the killing was political, considering appellant's obvious interest in testifying to that effect. 18

Similarly, in People v. Buco, 19 the Court stressed that accused in that case failed to establish that the reason for the killing of their victim was to further or carry out rebellion. The evidence adduced by the defense therein simply showed that appellant Francisco Buco was ordered by Tomas Calma, alias "Commander Sol" to kill municipal mayor Conrado G. Dizon. However, the evidence likewise showed that Calma was induced by an acquaintance, a civilian, to order the killing on account of private differences over a ninety (90) hectare piece of land. The court attributed no political motive for the killing, though committed by known members of the Hukbalahap movement. 20

People v. Dasig 21 has a factual milieu almost similar to the instant case. There, the Court held that "the act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of a rebellion." In Dasig the Court however noted that the accused, who was charged with murder, not only admitted his membership with the NPA but also executed an extrajudicial confession to the effect that he was a member of an NPA "sparrow unit," a fact to which even the Solicitor General, in his brief therein was in agreement. The Solicitor General's brief in Dasig which this Court favorably quoted, noted that:

[T]he sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. 22

By contrast, the Solicitor General vigorously argues for a different result in the case at bench. He states that accused-appellant's belated claims to membership in the NPA were not only insubstantial but also self serving 23an averment to which, given a thorough review of the circumstances of the case, we fully agree. He states:

[In the case cited] the appellants, admittedly members of the NPA, clearly overcame the burden of proving motive or intent. It was shown that the political motivation for the killing of the victim was the fact that Ragaul was suspected as an informer for the PC. The perpetrators even left a letter card, a drawing on the body of Ragaul as a warning to others not to follow his example. It is entirely different in the case at bar where the evidence for the appellant merely contains self-serving assertions and denials not substantial enough as an indicia of political motivation in the killing of victim SPO3 Jesus Lucilo. 24

In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial confession to having participated in the killing of Lucilo as follows:

Q What was that incident if any, please narrate?

A July 27, 1992 at more or less 12:00 noon. I am at home, three male person a certainalias ALWIN, ALIAS SAMUEL and the other one unknown to me, fetched me and told me to go with them, so I asked them where, Alwin handed me a hand gun and same he stopped/call a passenger jeepney and told me board on said jeepney. (sic)

Q Please continue.

A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said jeep, so we walk towards Daraga Bakery we stopped walking due to it is raining, when the rain stopped we continue walking by using the road near the bakery. (sic)

Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near the bakery where did you proceed?

A I am not familiar with that place, but I and my companion continue walking, at more less 4:30 P.M. July 27, 1992 one of my companion told us as to quote in Bicol dialect, to wit: "AMO NA YADI AN TINAMPO PALUWAS" (This is the place towards the poblacion), so, I placed myself just ahead of a small store, my three (3) companions continue walking towards poblacion, later on a policeman sporting white T-shirt and a khaki pant was walking towards me, while the said policeman is nearly approaching me, ALWIN shot the said policeman in front of the small store, when the said policeman fell on the asphalted road, ALWIN took the service firearm of the said policeman, then we ran towards the subdivision, then my two (2) companions commanded a tricycle then we fled until we reached a

hill wherein there is a small bridge, thereafter Ka Samuel took the handgun that was handed to me by them at Pilar, Sorsogon. (sic)

Q Do you know the policeman that was killed by your companion?

A I just came to know his name when I reached home and heard it radio, that he is JESUS LUCILO. (sic)

Q What is your participation in the group?

A Look-out sir.

Q I have nothing more to asked you what else, if there is any? (sic)

A No more sir. 25

It bears emphasis that nowhere in his entire extrajudicial confession did appellant ever mention that he was a member of the New People's Army. A thorough reading of the same reveals nothing which would suggest that the killing in which he was a participant was motivated by a political purpose. Moreover, the information filed against appellant, based on sworn statements, did not contain any mention or allusion as to the involvement of the NPA in the death of SPO3 Lucilo. 26 Even prosecution eyewitness Nestor Armenta did not mention the NPA in his sworn statement of October 19, 1992. 27

As the record would show, allegations relating to appellant's membership in the NPA surfaced almost merely as an afterthought, something which the defense merely picked up and followed through upon prosecution eyewitness Armenta's testimony on cross-examination that he knew appellant to be a member of the NPA. Interestingly, however, in the same testimony, Armenta admitted that he was "forced" to pinpoint appellant as an NPA member. 28The logical result, of course, was that the trial court did not give any weight and credence to said testimony. The trial court, after all, had the prerogative of rejecting only a part of a witness' testimony while upholding the rest of it. 29 While disbelieving the portion of Armenta's testimony on appellant's alleged membership in the NPA, the trial court correctly gave credence to his unflawed narration about how the crime was committed. 30 Such narration is even corroborated in its pertinent portions, except as to the identity of the gun wielder, by the testimony of the appellant himself.

In any case, appellant's claim regarding the political color attending the commission of the crime being a matter of defense, its viability depends on his sole and unsupported testimony. He testified that, upon the prodding of aliasAlwin and alias Samuel, he joined the NPA because of the organization's goals. 31 He claimed that his two companions shot Lucilo because he "had offended our organization," 32 without, however, specifying what the "offense" was. Appellant claimed that he had been a member of the NPA for five months before the shooting incident. 33

As correctly observed by the Solicitor General, appellant's contentions are couched in terms so general and non-specific 34 that they offer no explanation as to what contribution the killing would have made towards the achievement of the NPA's subversive aims. SPO3 Jesus Lucilo, a mere policeman, was never alleged to be an informer. No acts of his were specifically shown to have offended the NPA. Against appellant's attempts to shade his participation in the killing with a political color, the evidence on record leaves the impression that appellant's bare allegations of membership in the NPA was conveniently infused to mitigate the penalty imposable upon him. It is of judicial notice that in many NPA infested areas, crimes have been all-too-quickly attributed to the furtherance of an ideology or under the cloak of political color for the purpose of mitigating the imposable penalty when in fact they are no more

than ordinary crimes perpetrated by common criminals. In Baylosis v. Chavez, Jr., Chief Justice Narvasa aptly observed:

The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more stringent laws and more rigorous law-enforcement, cannot be gainsaid. 35

In the absence of clear and satisfactory evidence pointing to a political motive for the killing of SPO3 Jesus Lucilo, we are satisfied that the trial court correctly convicted appellant of the crime of murder. 36 It is of no moment that a single eyewitness, Nestor Armenta, sealed his fate, for it is settled that the testimony of one witness, if credible and positive, is sufficient to convict. 37 Against appellant's claims that he acted merely as a look-out, the testimony of one witness, his blood relative, free from any signs of impropriety or falsehood, was sufficient to convict the accused. 38Moreover, neither may lack of motive be availing to exculpate the appellant. Lack or absence of motive for committing a crime does not preclude conviction, there being a reliable eyewitness who fully and satisfactorily identified appellant as the perpetrator of the felony. 39 In the case at bench, the strength of the prosecution's case was furthermore bolstered by accused-appellant's admission in open court that he and the eyewitness, his own uncle, bore no grudges against each other. 40

Finally, treachery was adequately proved in the court below. The attack delivered by appellant was sudden, and without warning of any kind. 41 The killing having been qualified by treachery, the crime committed is murder under Art. 248 of the Revised Penal Code. In the absence of any mitigating and aggravating circumstances, the trial court was correct in imposing the penalty of reclusion perpetua  together with all the accessories provided by law.

WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September 14, 1993, sentencing the accused of Murder is hereby AFFIRMED, in toto.

SO ORDERED.

13. People vs. Hernandez

G.R. No. L-23916             October 14, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.DOMINGO HERNANDEZ, defendant-appellant.

Cirilo B. Santos for appellant.Acting Attorney-General Reyes for appllees

 

OSTRAND, J.:

The defendant is accused of the crime of rape, the information alleging "that on or about the 26th day of February, 1925, in the City of Manila, Philippine Islands, the said accused wilfully, unlawfully, and feloniously, by means of force and by intimidating one Conrada Jocson with killing her with a knife which said accused held in his hand should she not accede to his wish, did then and there lie with and have carnal knowledge of said Conrada Jocson, a girl under 12 years of age. That in the commission of the crime the following aggravating circumstances existed to wit: (1) The accused is the husband of the grandmother of said Conrada Jocson and (2) the crime was committed with grave abuse of confidence, inasmuch as the offended and the accused living in the same house."

The defendant is a man 70 years of age and the offended party is a child of 9 years, the granddaughter of the defendant's wife. There can be no question as to the defendant's guilt. The evidence shows that he and the offended party were living in the same house and that taking advantage of the absence of the other inhabitants of the house, he had intercourse with the child by force and violence. He admits that he did so, but maintains that he was intoxicated at the time and did not know what he was doing. The testimony of the witnesses for the prosecution is, however, to the effect that he did not show any signs of intoxication at the time of the commission of the crime or immediately afterwards.

The court below found the defendant guilty of frustrated rape and sentenced him to suffer ten years and one day of prision mayor. In holding that the crime was frustrated, the court seems to have been of the opinion that there can be no consummated rape without a complete penetration of the hymen. This view is not accordance with the weight of authority; in fact, it is contrary to practically all modern authorities. In State vs. Johnson (91 Mo., 439), the court held that "finding the hymen intact is not always proof that no rape has been committed, nor virginity; for the case are not rare where the hymen had to be removed after impregnation and in order to permit delivery."

In the same case, the court further said:

Any penetration whether reaching to the hymen or not is sufficient to constitute the crime; for as Lord Meadowbank said in case in Scotland. "Scientific and anatomical distinctions as to where the vagina commences are worthless in a case of rape; it is enough if the woman's body is entered; and it is not necessary to show to what extent penetration of the parts has taken place; whether it has gone past the hymen, into what is anatomically called the hymen, or even so far as to touch the hymen." (Stewart on Legal Medicine, p. 137.) 1awph!l.net

In People vs. Rivers (147 Mich., 643), the court says:

The law may now indeed be considered as settled that while the rupturing of the hymen is not indispensable to a conviction, there must be proof of some degree of entrance of the male organ "within the labia of Pudendum."

In the following cases it has been held that entry of the labia or lips of the female organ, merely, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction of the consummated crime of rape. (Kennyvs. State [Tex. Crim. App.]; 65 L. R. A., 316; 79 S. W., 817 [1903]. See [Eng.] Reg. vs. Lines, 1 Car. & K., 393 [1844]; 44 N. W., 571 [1890]; [Tex.] Rodgers vs. State, 30 Tex. App., 510; 17 S. W., 1077 [1891]; [Wis.] Brauer vs.State, 25 Wis., 413 [1870].)

In the present case the physician who examined the offended party immediately after the commission of the crime found the labia and the opening of the vagina inflamed together with an

abundance of semen, though the hymen was intact. It also appears from the evidence that the defendant lay on top of the child for over fifteen minutes and continued his efforts of penetration during that period; the child testifies that the defendant succeeded in a partial penetration and that she felt intense pain. In these circumstances, the crime must be regarded as consummated.

The judgment appealed from is therefore modified by finding the defendant guilty of the consummated crime of rape and, in view of the aggravating circumstances mentioned in the information, the penalty imposed upon the defendant is hereby increased to seventeen years, four months and one day of reclusion temporal, with the accessory penalties prescribed by law. In all other respects the judgment is affirmed with the costs against the appellant. So ordered.

14. People vs. Dasig

G.R. No. 100231. April 28, 1993.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RODRIGO DASIG @ KA RUBIN DAKU @ ARMAND; EDWIN NUÑEZ Y TABANAS @ MABI; ALVIN DOE @ AL @ KA ALVIN; ROGER DOE @ KA JAMES @ KA PEPE; TUDING ANDRINO @ KA ERMI @ KA ROEL @ KA GRINGO MONTAYRE; RUBEN DOE @ KA RUBEN @ KA JOJI @ INO ECHAVEZ; ANASTACIO BANGKAL @ KA JUNIOR; AND CARLITO MAGASIN @ BOBBY, accused, RODRIGO DASIG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Kinaadman and Archival for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CONFESSION, AS A RULE, ADMISSIBLE; EXCEPTION; NOT APPLICABLE IN CASE AT BAR. — The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of force and intimidation has not been substantiated by evidence other than his self-serving testimony. as has been pointed out, such allegation is another naive effort of appellant to back track from his prior

voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality.

2. CRIMINAL LAW; REBELLION; ABSORBS THE CRIME OF DIRECT ASSAULT WHEN DONE IN FURTHERANCE THEREOF. — The crime of rebellion consists of may acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge.

3. ID.; ID.; NOT COVERED BY INDETERMINATE SENTENCE LAW (R.A. 4203). — The Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion.

D E C I S I O N

NOCON, J p:

Appellant, Rodrigo Dasig is now before Us to plead the reversal of his conviction by the Regional Trial Court, Branch 28, Mandaue City finding him guilty of Murder with Direct Assault.

He was charged together with Edwin Nuñez and 6 others who are still at large, in an information which reads:

"That on or about the 4th day of August, 1987, in the city of Mandaue, of this Honorable Court, the aforenamed accused, conspiring and confederating together and helping one another, with intent to kill, treachery, evident premeditation, abuse of superior strength and use of motor vehicle, all armed with unlicensed firearms, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Redempto Manatad, a police officer on traffic duty, at his vital portion which caused his death soon thereafter, knowing beforehand that the victim was a policeman who was then in the performance of his official duties."

Upon arraignment, appellant and Edwin Nuñes entered a plea of "not guilty." However, after the prosecution had presented its first witness, accused Nuñes changed his plea of "not guilty" to "guilty." Hence, the lower court held in abeyance the promulgation of a judgment against said accused until the prosecution had finished presenting its evidence. While trial was still ongoing, Nuñez died on March 10, 1989, thereby extinguishing his criminal liability.

The facts surrounding this case show that in the afternoon of August 4, 1987, Pfc. Redempto Manatad, Pfc. Ninah Tizon and Pfc. Rene Catamora were tasked by their commanding officer to assist in canning the traffic at M.N. Briones and Bonifacio Streets in Mandaue City. Pfc. Tizon controlled the traffic lighting facility; Pfc. Manatad manned the traffic; while Pfc. Catamora acted as back-up and posted himself at Norkis Trading building.

At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8) persons, one of whom he identified as Edwin Nuñez, acting suspiciously. He noticed one of them giving instructions to two of the men to approach Pfc. Manatad. He followed the two, but sensing that they were being followed, they immediately proceeded to the middle of the road and engaged Pfc. Catamora to a gun battle. At

that instant, Pfc. Catamora heard a series of shots from the other group and thereafter saw Pfc. Manatad sprawled on the ground. Being out-numbered and to save his own life, Pat. Catamora sought refuge at the nearby BIR Office from where he saw two (2) persons take Pfc. Manatad's gun and again fired at him to make sure that he is dead while the rest of the group including Nuñes acted as back up. Thereafter, the Nuñes group commandeered a vehicle and fled from the scene of the shooting. Pfc. Rene Catamora testified that he can identify accused-appellant Nuñes because of a mole at the bridge of his nose near the left eye which he noticed when the accused passed 2 or 3 meters in front of him together with his companions.

On August 16, 1987, two teams of police officers were tasked to conduct surveillance on a suspected safehouse of members of the sparrow unit located in Peace Valley, Cebu City. Upon reaching the place, the group saw Rodrigo Dasig and Edwin Nuñes trying to escape. The team of Capt. Antonio Gorre captured Nuñes and confiscated a .45 caliber revolver with 3 magazines and ammunitions, while the group of Sgt. Ronald Arnejo pursued Dasig, who threw a grenade at his pursuers, but was shot on his left upper arm and subsequently apprehended. A .38 caliber revolver with 17 live ammunitions were confiscated from him.

Thereafter, Dasig was brought to the hospital for treatment, while Nuñes was turned over to the Metrodiscom for investigation. Meanwhile, Dasig was interrogated by M/Sgt. Ariston Ira of the PC Criminal Investigation Service on August 19, 1987 at his hospital bed at the Lapulapu Army Hospital in Cebu City. Assisting Dasig during the interrogation was Atty. Fortunato Parawan of the Creer Law Office, who was requested by the military to represent appellant who did not have a lawyer. Before the start of the interrogation, Atty. Parawan asked appellant whether he was willing to avail of his services, to which appellant agreed. M/Sgt. Ira then appraised Dasig of his constitutional rights. The interrogation was conducted in Cebuano upon appellant's request.

Dasig confessed that he and the group of Edwin Nuñes killed Pfc. Manatad. He likewise admitted that he and Nuñes were members of the sparrow unit and the their aliases were "Armand" and "Mabi," respectively. The extra-judicial confession of appellant marked as Exhibit "J" 2 was signed by him on every page thereof with the first page containing a certification likewise signed by him, which states: "I hereby certify that the herein statement is free and voluntary, and that I am assisted by my counsel in the course of this investigation" followed by the signed conformity of Atty. Parawan. The extra-judicial confession was subscribed and sworn to before Cebu City Asst. Fiscal Salvador Solima.

In the present appeal, Dasig contends that the procedure by which his extra-judicial confession was taken was legally defective, and contrary to his Constitutional rights. He further contends that assuming he conspired in the killing of Pfc. Manatad, he should be convicted at most of simple rebellion and not murder with direct assault.

Appellant also claims that the custodial interrogation was done while he was still very sick and consequently, he could not have fully appreciated the wisdom of admitting such a serious offense. That even with the presence of counsel, his extra-judicial confession is inadmissible in evidence as said counsel did not actively assist him and advise him of his rights. In effect, his presence was merely to give a semblance of legality to the proceedings and not to protect appellant against possible abuses of the investigator. Dasig, likewise questions the sincerity of Atty. Parawan in protecting his rights considering that the latter is a known anti-Communist advocate and that the law firm to which he belongs has represented high ranking officers of the Armed Forces of the Philippines.

We find the argument specious. Fiscal Salvador Solima in his certification, Exhibit "J-7-B," stated that he had personally examined the affiant and that he is convinced that the latter's statement was

free and voluntary and that the affiant signed the same in his presence and swore under oath as to the veracity of everything therein. Atty. Fortunato L. Parawan also testified that he assisted the affiant from the start of the investigation up to its termination. Atty. Parawan testified thus:

"Q Who introduced Rodrigo Dasig to you?

A I inquired from the personnel of the hospital the whereabout of Rodrigo Dasig and I introduced myself as a lawyer. So they informed me the room of Rodrigo Dasig. At that time I introduced myself as a lawyer who came to assist the person of Rodrigo Dasig. Once we had a confrontation with Rodrigo Dasig, I asked him whether he was willing to get me as his lawyer in that investigation. Then he told me yes.

Q Did he tell you whether he as a counsel of his own choice?

A No.

xxx xxx xxx

Q In other words he accepted your services as counsel in connection with that investigation which was about to be made?

A Yes.

Q Who are the persons present at that time?

A There were guards outside and inside. There was a man from the CIS in the person of Sgt. Ira, myself and Dasig.

Q What happened after that?

A The CIS started the investigation.

Q You mean this Ariston Ira?

A Yes.

Q Before Ariston Ira conducted the investigation was Dasig informed of his constitutional rights to remain silent, to counsel and if he chooses to testify or say something, that statement of his will be used against or in his favor in the court of justice?

A Yes. He was willing to get me as counsel in that investigation.

Q After he was informed of his constitutional rights what transpired next?

A The investigation started.

Q Were you present at the very start of that investigation?

A Yes. I was present from the start until it was finished.

Q Was that reduced to writing?

A Yes.

xxx xxx xxx

Q You said you were present during the entire investigation. Were the answers of the accused, Rodrigo Dasig, to the questions propounded by the investigator voluntary?

A Yes, they voluntary.

Q After the investigation was finished what transpired next?

A After the investigation, I think that was already past 3:00 or 4:00, we proceeded to the office of the City Fiscal at F. Ramos St., Cebu City and then we proceeded to the Office of Fiscal Solema (sic) and then it was subscribed there before Fiscal Solema (sic).

Q Were you present during the proceeding?

A I was also present."

We do not find any reason to doubt the factual findings and conclusions of the trial court that the extra-judicial confession of the appellant was voluntarily made. Said the trial court:

"The prosecution's evidence clearly shows that herein accused during his investigation was properly informed and appraised of his constitutional right to remain silent and to have a competent and independent counsel preferably of his own choice but since at that time he did not signify his intention to retain a lawyer of his own choice, so he was provided with a lawyer in the person of Atty. Fortunato Parawan of the Creer Law Office who was available at that time, to assist him during the custodial investigation conducted by T/Sgt. Ariston L. Ira at his hospital bed at Camp Lapulapu Army Station Hospital, Cebu City where he was confined after being hit on his upper left arm and in fact, Atty. Parawan only consented to assist herein accused after the latter has answered in the affirmative to his question as to whether he would be amenable to be assisted by him as his counsel of his own choice.

"The prosecution's evidence further show that Atty. Fortunato Parawan after consenting to be his counsel was with him when his extra-judicial confession or sworn statement was subscribed and sworn to by him before Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office who, before accused has actually affixed his signature on each and every pages of his extra-judicial confession, has informed him (accused) of his constitutional rights and has explained the contents of his extra-judicial confession.

"Moreover, per certification made by Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office, clearly shows that accused in executing the same has done so voluntarily and after having understood the contents thereof which is in the visayan language, a language known to him, found on the last page thereof now marked as Exhibit "J-7-B."

"Furthermore, this sworn statement of accused Dasig is collaborated by the sworn statement of his co-accused Edwin Nuñes dated August 18, 1987 which is sworn and subscribed to before City Fiscal Jopelinito Pareja of the city Fiscal's Office of Cebu City."

The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. 5 The case of People of the Philippines v. Parojinog is four square to the case at bar. In Parojinog this court had this to say:

"Anent his claim that Atty. Fuentes was not his choice, Section 12 (1) of Article III of the 1987 Constitution provides:

'Sec. 12(1). — Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel he must provided with one. These rights cannot be waived except in writing and in the presence of counsel.'

"It is very clear from the aforequoted provision that a person under investigation for the commission of an offense may choose his own counsel but if he cannot afford the services of counsel, he must be provided with one. While the initial choice of the lawyer in the latter case is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. In the instant case, the records show that no objection was voiced by the accused throughout the entire proceedings of the investigation and afterwards when he subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus, he apparently acquiesced to the choice of the investigators. He complained for the first time that Atty. Fuentes was not his choice only during trial. Thus it was too late."

Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of fore and intimidation has not been substantiated by evidence other than his self-serving testimony. As has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality.

Nevertheless, there is merit in appellant's argument that granting he is guilty, what he committed was a political crime of simple rebellion, and hence he should not be convicted of murder with direct assault.

The Solicitor General agrees with the accused-appellant on this point as manifested in the People's brief, which We quote:

"However, as correctly pointed by appellant, the lower court erroneously convicted him of Murder with Assault Upon a Person in Authority, instead of Rebellion.

"Rebellion is committed by taking up arms against the government, among other means. (Article 135, Revised Penal Code). In this case, appellant not only confessed voluntarily his membership with the sparrow unit but also his participation and that of his group in the killing of Pfc. Manatad while manning the traffic in Mandaue City in the afternoon of August 4, 1987. It is of judicial notice that the sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing

of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. Consequently, appellant is liable for the crime of rebellion, not murder with direct assault upon a person in authority."

The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. 9 The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge.

Moreover, in the case of People v. Mangallan 10 We held that where the accused who was charged with murder admitted his membership with the NPA and the killing of a suspected PC informer, the crime committed is not murder but rebellion punishable under Articles 134 and 135 of the Revised Penal Code.

As to the proper imposable penalty, the Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion. However, in the case at bar, there is no evidence to prove that appellant Dasig headed the crime committed. As a matter of fact he was not specifically pinpointed by Pfc. Catamora as the person giving instructions to the group which attacked Pfc. Manatad.

Appellant merely participated in committing the act, or just executed the command of an unknown leader. Hence, he should be made to suffer the penalty of imprisonment of eight (8) years of prision mayor. For the resulting death, appellant is likewise ordered to pay the heirs of Pfc. Manatad FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity.

Premises considered, We uphold the findings of the trial court that the extra-judicial confession was legally obtained. However, appellant being a confessed member of the sparrow unit, the liquidation squad of the New People's Army whose objective is to overthrow the duly constituted government, the crime committed is simple rebellion and not murder with direct assault.

WHEREFORE, accused Rogelio Dasig is found guilty of participating in an act of rebellion beyond reasonable doubt and is hereby sentenced to suffer the penalty of imprisonment of eight (8) years of prision mayor, and to pay the heirs of Pfc. Redempto Manatad, P50,000.00 as civil indemnity.

SO ORDERED.

15. People vs. Cabrera

16. People vs. Umali

17. People vs. Nabong

18. Gelig vs. People

19. Rivera vs. People

20. People vs. Ablos